Yue v CN-AU Capital Pty Ltd - [2021] QSC 248

SUPREME COURT OF QUEENSLAND

CITATION:

Yue v CN-AU Capital Pty Ltd & Anor [2021] QSC 248

PARTIES:

LIANSHENG YUE

(plaintiff)

v
CN-AU CAPITAL PTY LTD ACN 625 191 246

(first defendant)

CN-AU INVESTMENT GROUP PTY LTD ACN 622 657 649

(second defendant)

AUSTRALIAN SN INTERNATIONAL INVESTMENT GROUP PTY LTD ACN 601 511 577

(defendant by counterclaim)

FILE NO/S:

BS 1164 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2021

JUDGE:

Kelly J

ORDER:

1. Pursuant to s 127(1) of the Land Title Act 1994, the following caveats be removed forthwith:

(a)      Caveat no 719713120 over Lot 1 on Registered Plan 45125 contained in Title Reference 11790135 located at 50 to 74 Riedel Road Carbrook in the State of Queensland; and,

(b)     Caveat no 719713134 over Lot 2 on Registered Plan 45125 contained in Title Reference 15702150 located at 4 to 48 Riedel Road Carbrook in the State of Queensland.

2.   The Registrar of Titles be notified and authorised to execute all documents on behalf of the plaintiff that are necessary to effect the removal of the caveats referred to in sub-paragraphs 1(a) and (b).

3.   Within 14 days of the date of these orders, the first defendant recover from the plaintiff, and the plaintiff deliver up to the first defendant, vacant possession of:

(a)      Lot 1 on Registered Plan 45125 contained in Title Reference 11790135 located at 50 to 74 Riedel Road Carbrook in the State of Queensland; and,

(b)     Lot 2 on Registered Plan 45125 contained in Title Reference 15702150 located at 4 to 48 Riedel Road Carbrook.

4.   The application filed by the plaintiff on 13 August 2021 (CFI 36) is dismissed.

5.   I will hear the parties as to costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the plaintiff and first defendant are parties to a deed of agreement – where the deed of agreement provides that “Mr Yue shall cause the Second Payment to be made to [Capital] on or before 24 May 2021, made payable to the JCL Trust Account” – where the central issue of construction concerns what was required of Mr Yue for him to “cause the Second Payment to be made to [Capital] on or before 24 May 2021” – where the plaintiff contends that a cheque drawn on a solicitor’s trust account satisfied the contractual requirement whether by bank cheque or clear funds – where the first defendant contends the primary obligation required the plaintiff to cause the second payment to be made on or before 24 May 2021 by way of cleared funds on or before that date – whether a reasonable business person in the position of the parties would have understood that, in order for the plaintiff to effect payment in accordance with the clause, and thereby become entitled to the release of the Mortgages, cleared…

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.

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Details

Case: [2021] QSC 248
Decision Date: 1 October 2021

CaseChat Overview and Summary

Yue v CN-AU Capital Pty Ltd is a case involving contractual disputes, equity claims, and real property issues. The plaintiff, Mr Yue, and the first defendant, CN-AU Capital Pty Ltd, are parties to a deed of agreement concerning the development of the Riedel Road Properties. The primary dispute concerns the interpretation of the deed of agreement and whether Mr Yue fulfilled his contractual obligations regarding the second payment. Specifically, the deed of agreement required Mr Yue to make a second payment to the first defendant on or before 24 May 2021. Mr Yue attempted to make the payment via a solicitor’s trust account cheque, but the first defendant refused to accept this form of payment. The court was tasked with interpreting the contractual obligations, assessing whether Mr Yue breached the agreement, and determining if specific performance or other equitable remedies should be granted.

The central legal issues involved the interpretation of the contractual obligations in the deed of agreement, the effect of the cheque payment, and the appropriate remedies for breach. The court considered whether the requirement for "cleared funds" was necessary for the contractual obligation to be fulfilled and if the cheque payment satisfied the agreement. Furthermore, the court examined whether specific performance of the deed of agreement should be granted, taking into account the discretionary factors and the validity of the deed. Additionally, the court assessed the validity of the equitable interests claimed by Mr Yue through caveats and whether these should be removed. The court also deliberated on the imposition of penalties and liquidated damages in the deed of agreement and the appropriateness of interlocutory injunctions.

The court concluded that the contractual obligation required cleared funds to be provided by the specified date, and the cheque payment did not meet this requirement. Therefore, Mr Yue breached the deed of agreement. However, the court found that the balance of convenience did not favour the grant of specific performance, and the equitable interests claimed by Mr Yue did not warrant the continuation of the caveats. Consequently, the court ordered the removal of the caveats and directed Mr Yue to deliver vacant possession of the properties to the first defendant. The court dismissed Mr Yue's application for declarations and interlocutory injunctions and reserved the matter of costs for further hearing.

The court's final orders included the removal of the caveats over the specified properties, the delivery of vacant possession to the first defendant, and the dismissal of Mr Yue's application for declarations and interlocutory injunctions. The court also authorised the Registrar of Titles to execute necessary documents to effect the removal of the caveats and directed the parties to discuss costs.

Orders

Orders of the court

1. Pursuant to s 127(1) of the Land Title Act 1994, the following caveats be removed forthwith:

(a) Caveat no 719713120 over Lot 1 on Registered Plan 45125 contained in Title Reference 11790135 located at 50 to 74 Riedel Road Carbrook in the State of Queensland; and,

(b) Caveat no 719713134 over Lot 2 on Registered Plan 45125 contained in Title Reference 15702150 located at 4 to 48 Riedel Road Carbrook in the State of Queensland.

2. The Registrar of Titles be notified and authorised to execute all documents on behalf of the plaintiff that are necessary to effect the removal of the caveats referred to in sub-paragraphs 1(a) and (b).

3. Within 14 days of the date of these orders, the first defendant recover from the plaintiff, and the plaintiff deliver up to the first defendant, vacant possession of:

(a) Lot 1 on Registered Plan 45125 contained in Title Reference 11790135 located at 50 to 74 Riedel Road Carbrook in the State of Queensland; and,

(b) Lot 2 on Registered Plan 45125 contained in Title Reference 15702150 located at 4 to 48 Riedel Road Carbrook.

4. The application filed by the plaintiff on 13 August 2021 (CFI 36) is dismissed.

5. I will hear the parties as to costs.

Background

Background to the litigation

It has been convenient to structure these Reasons by reference to the following headings:(a)Background to the proceeding;(b)Overview of the proceeding;(c)The Settlement Deed;(d)Events after the Settlement Deed;(e)The proper construction of the Settlement Deed;(f)Mr Yue’s Application;(g)Capital’s Applications.Background to the proceeding In about 2014, Mr Yue commenced discussions with the Logan City Council regarding the possible development of the Riedel Road Properties.[5] In the context of those discussions, he was introduced to a group of potential investors.[6] Mr Yue signed a letter of intent with some of the investors on 20 June 2014.[7] Capital and the second defendant (Investment Group) are corporations connected to the investors.[5]Affidavit of Liansheng Yue filed 17 December 2020 (CFI 25) [5].[6]Ibid [6].[7]Ibid [11]. Between March 2016 and March 2017, Mr Yue granted mortgages in respect of the Riedel Road Properties and another property, his former home, situated at 54 Bordeaux St, Eight Mile Plains (54 Bordeaux Street).[8] The mortgage transactions occurred as follows:(a)On or about 15 March 2016, the property situated at 4 Riedel Road Carbrook (4 Riedel Road) was mortgaged to La Trobe Financial Asset Management Limited (La Trobe);[9](b)On or about 14 June 2016, the property situated at 50 Riedel Road Carbrook (50 Riedel Road) was mortgaged to Fleming Family Super Fund Pty Ltd (Fleming);[10] and(c)On or about 15 March 2017, 54 Bordeaux Street and 4 Riedel Road were mortgaged to Fleming.[11] [8]54 Bordeaux Street is described as Lot 89 on RP 803039 contained in Title Reference 17508082.[9]Affidavit of Junyan Lu filed 9 November 2020 (CFI 15), Ex JL-1 at 97-99.[10]Ibid, Ex JL-1 at 41-42.[11]Ibid, Ex JL-1 at 155-158. I will refer to the Mortgages given to Fleming as “the Fleming Mortgages” and the mortgage given to La Trobe as the “the La Trobe Mortgage”. I will refer to the Fleming Mortgages and the La Trobe Mortgage collectively as the “the Mortgages”. The Mortgages were registered. By a Facility Agreement dated 14 June 2016 (the Facility Agreement), Fleming, at the request of Mr Yue,[12] had agreed to lend monies to the defendant by counterclaim (Australian SN) for the purpose, inter alia of funding the acquisition of 50 Riedel Road.[13] Mr Yue guaranteed Australian SN’s obligations under the Facility Agreement.[14] The Fleming Mortgages secured the obligations under the Facility Agreement and Mr Yue’s guarantee.[15] The principal debt involved an advance of $1,060,000.[16] Australian SN’s obligations under the Facility Agreement extended to the payment of interest[17] and the costs and expenses of enforcement.[18][12]Affidavit of Junyan Lu filed 23 November 2020 (CFI 18), Ex JL-2 at 38. [13]Ibid, Ex JL-2 at 7, 8, 26.[14]Ibid, Ex JL-2 at 38.[15]Ibid, Ex JL-2 at 13, 31.[16]Ibid, Ex JL-2 at 31.[17]Ibid, Ex JL-2 at 10, 31.[18]Ibid, Ex JL-2 at 20; Affidavit of Junyan Lu filed 6 November 2020 (CFI 15), Ex JL-1 at 179.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Yue v CN-AU Capital Pty Ltd & Anor [2021] QSC 248
PARTIES:	LIANSHENG YUE (plaintiff) v CN-AU CAPITAL PTY LTD ACN 625 191 246 (first defendant) CN-AU INVESTMENT GROUP PTY LTD ACN 622 657 649 (second defendant) AUSTRALIAN SN INTERNATIONAL INVESTMENT GROUP PTY LTD ACN 601 511 577 (defendant by counterclaim)
FILE NO/S:	BS 1164 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2021
JUDGE:	Kelly J
ORDER:	1. Pursuant to s 127(1) of the *Land Title Act* 1994, the following caveats be removed forthwith: (a) Caveat no 719713120 over Lot 1 on Registered Plan 45125 contained in Title Reference 11790135 located at 50 to 74 Riedel Road Carbrook in the State of Queensland; and, (b) Caveat no 719713134 over Lot 2 on Registered Plan 45125 contained in Title Reference 15702150 located at 4 to 48 Riedel Road Carbrook in the State of Queensland. 2. The Registrar of Titles be notified and authorised to execute all documents on behalf of the plaintiff that are necessary to effect the removal of the caveats referred to in sub-paragraphs 1(a) and (b). 3. Within 14 days of the date of these orders, the first defendant recover from the plaintiff, and the plaintiff deliver up to the first defendant, vacant possession of: (a) Lot 1 on Registered Plan 45125 contained in Title Reference 11790135 located at 50 to 74 Riedel Road Carbrook in the State of Queensland; and, (b) Lot 2 on Registered Plan 45125 contained in Title Reference 15702150 located at 4 to 48 Riedel Road Carbrook. 4. The application filed by the plaintiff on 13 August 2021 (CFI 36) is dismissed. 5. I will hear the parties as to costs.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the plaintiff and first defendant are parties to a deed of agreement – where the deed of agreement provides that “Mr Yue shall cause the Second Payment to be made to [Capital] on or before 24 May 2021, made payable to the JCL Trust Account” – where the central issue of construction concerns what was required of Mr Yue for him to “cause the Second Payment to be made to [Capital] on or before 24 May 2021” – where the plaintiff contends that a cheque drawn on a solicitor’s trust account satisfied the contractual requirement whether by bank cheque or clear funds – where the first defendant contends the primary obligation required the plaintiff to cause the second payment to be made on or before 24 May 2021 by way of cleared funds on or before that date – whether a reasonable business person in the position of the parties would have understood that, in order for the plaintiff to effect payment in accordance with the clause, and thereby become entitled to the release of the Mortgages, cleared…