Anxin Capital Pty Ltd v Zhuo [2025] QCATA 124

• [7] To this date Anxin has not paid all or any part of the final instalment.
• [8] After further efforts to obtain payment Zhuo began these proceedings on 23 January 2024, claiming $18,679.50 (including costs and interest). Anxin, for its part, denied liability, alleging that Zhuo was in breach of the agreement by making statements and disclosures detrimental to the interests of Anxin Capital.
• [9] Zhuo's case, in essence, is that Anxin's failure to make due payment to him was insufficiency of funds, and that the company's complaints of breach of contract are a relatively recent invention, concocted after relations deteriorated, and Zhuo, tired of procrastination, publicised Anxin's financial embarrassment by resort to legal action. There is no record of an allegation of a breach on Zhuo's part prior to the late filing of Anxin's Response in May 2024.

• [10] The trial took place on 4 February 2025. Each party's submissions were brief, and the judgment was proportionately brief; its brevity is not a proposed ground of appeal.
• [11] Ms Li (for Anxin) asserted that the final instalment was withheld because, according to Anxin, Zhuo violated it 'by making irrelevant statements to discredit Anxin Capital',[1] 'said something bad about my personal issue; tried to attack the company's benefits',[2] and said 'bad words about our company'.[3]
• [12] Li relied on clause 4.1 and 5.2 of the Introducers Agreement. Clause 4.1 provides, so far as is now material:

The Introducer shall not ... disclose any Confidential information to any other person, and shall not use or attempt to use information in any manner which may injure or cause loss to Anxin Capital (sic) business.

Anxin Capital may terminate the agreement immediately if any of the following occurs: ... the Introducer commits a breach of this Agreement which is not remediable.

• [13] The Adjudicator remarked that Anxin did not become aware of the alleged breach until Zhuo had served his relevant invoice, and payment had become due[4] - implying that termination, if effective, did not occur until after those events had taken place. 'But [by that time] he'd already done the work'. Li did not dispute that sequence of events.
• [14] Li sought refuge in clause 7 which reads: 'Anxin has the final right to interpret the agreement'.
• [15] To which the Adjudicator replied:

And you're saying that you interpret clause 7, which says that Anxin Capital has the right to interpret this agreement, but that doesn't say you can withhold the commission.[5]

• [16] Whatever Clause 7 precisely means, and whatever it purports to allow, it is invalid and unenforceable. Interpretation of the contract is a matter for the courts, not for a party. Thus in effect, clause 7 is an attempted ouster of jurisdiction, which common law forbids as a matter of public policy.[6] Clause 7 is quite incapable of transporting Anxin to 'an Alsatia[7] where the King's writ does not run'.[8]
• [17] The Adjudicator faced a choice between the following alternatives: Was the real reason for non-payment Anxin's admitted 'financial difficulties', followed by a resolution not to pay, perhaps because Zhuo caused Anxin or its management 'loss of face' by suing it in a public form? Or, alternatively, was the reason for non-payment a breach of contract by Zhuo entitling Anxin to refuse payment?
• [18] In the event, the Adjudicator, as judge of fact and credit, chose the first of these alternatives - a decision which rendered it unnecessary to embark on more esoteric and extensive enquiries such as: What evidence was there of the alleged breach? Were proper steps taken to warn Zhuo, or to notify him formally of the decision to reject his claim? Was such action authorised by the agreement? Might a breach discovered after payment was overdue, absent any evidence of non-performance of relevant work, retrospectively extinguish his right to recovery?

• [19] The tribunal found that 'on 31st October 2023 [Anxin] acknowledged the debt; ... they were having financial difficulties and could not pay immediately'.[9] There was no suggestion of any breach by Zhuo at that stage, or at any time before these proceedings began. Specifically, in a note to Zhuo on 31 October the accounts clerk (Li?) confessed:

I have no money these days. There's only a few hundred dollars left in my account. The fund has been used to pay for the projects (unspecified). I'm waiting for the loan to be approved, and it should be released this week. I'm totally broken down.

• [20] There was no suggestion at that stage that Zhuo was guilty of any breach of confidence. That became an elaborate plea in defence only after Anxin's late Response was filed some six or seven months later.
• [21] Crucially, the Adjudicator made no finding of contractual breach by Zhuo. On the contrary, he treated such a suggestion hypothetically: '... even if I found that he had [breached] 2.2 ... or 4.1'.[10] It is implicit that the Adjudicator viewed Anxin's financial embarrassment, followed by a deteriorating relationship, as the causa causans of non-payment.

1. That is a reasonable view of the available evidence which the Adjudicator was quite entitled to take. It is not for this appeal tribunal to express a different view, even if it were so disposed. An application for leave is not an opportunity to 'second guess' the primary tribunal's findings of fact, even if another reasonable view were available. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[11] Fact-finding is the prerogative of the primary decision-maker; that is his task.[12] Reasonable findings of fact or credit, supported by some evidence, are seldom disturbed on appeal.[13] Only 'glaring improbability'[14] warrants an exception to that principle. On the view reasonably taken by the primary judge, it follows that issues as to breach of contract by Zhuo do not arise; therefore they need not be the subject of academic discussion here.

• [23] I see no appellable error in the primary decision. The application for leave to appeal is dismissed.

• [24] Anxin seeks leave to tender additional evidence. It consists of unsworn statements by two persons formerly employed by the company. One of them (Chen) was party to a mortgage from Li, for which, no doubt, she was understandably grateful. Chen offers no corroboration of the story that Zhuo defamed the company, merely stating a 'belief' that he is spreading 'false information about me'.[15] The second deponent (M Yu) claims that in early 2023 (date unspecified) Zhuo told her that Anxin was 'risky'. It is not unlikely that, by this time, the debt action was a subject of public record.
• [25] Directions issued by the tribunal to Anxin in February 2025 clearly state that additional evidence offered after a hearing is concluded must be accompanied by evidence satisfactorily explaining why it was not tendered at the trial.[16] Presumably the proposed witnesses were well known to Anxin, and timely, competent interviews would have disclosed the 'new' material, for whatever it was worth, before the trial. The application to adduce it now is dismissed.
• [26] Finality in litigation, particularly in lower courts, is an important consideration. The interests of litigants in the queue and the public purse are involved.[17] That is precisely why there is a threshold requirement to obtain leave to appeal in cases of the present kind.[18]
• [27] The application to adduce additional evidence is dismissed.

[1] Transcript of hearing on 4 February 2025 ('T') page 3 line 40.

[6] TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533, [76]; Daewoo Shipbuilding & Marine Engineering Co Ltd v INPEX Operations Australia Pty Ltd [2022] NSWSC 1125, [91].

[8] Czarnikow v Roth Schmidt & Co [1922] 2 KB 478, 488.

[10] T page 6 line 21 (emphasis added).

1. [11] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [131]; In Re W (an infant) [1971] AC 682, 700 (Lord Hailsham); Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014, 1025.

[12] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151; Myers v Medical Practitioners Board [2007] VSCA 163; (2007) 18 VR 48, [53].

[13] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125-126; JM v QFG [1998] QCA 228, 20 (Pincus JA); Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479.

[14] Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479.

[16] Simply a restatement of the common law: French v Bremner [2020] NSWCA 299; Fisher v O'Hehir [2020] WASC 353.

[17] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217; Sali v SPC Limited [1993] HCA 47; (1993) 67 ALJR 841, 843-844; Reihana v Beenleigh Show Society [2019] QCATA 91, [25]; The Pot Man Pty Ltd v Reaoch [2011] QCATA 318, [8], [10].

[18] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142.