BM Sydney Building Materials Pty Ltd v AWT Building Group

Supreme Court of NSW|2019-04-03|Before: Hammerschlag J

2017/317266 A. Norrie - Plaintiff A.P. Cheshire SC with B.D. Phillips - First and Third Defendants

Solicitors: 2015/178796 and 2015/178811 Deutsch Partners - Plaintiffs Herald Legal - Defendants

2017/317266 Herald Legal - Plaintiff Deutsch Partners - First and Third Defendants File Number(s): 2015/178796; 2015/178811; 2017/317266

Introduction

HIS HONOUR: BM Sydney Building Materials Pty Ltd (BMS) is a company associated with Mr Ming Lee.
AWT Building Pty Ltd and AWT Building Group Pty Ltd are companies associated with Mr Wenge (Jack) Teng. I will refer to them collectively as AWT.
BMS is a supplier of materials for commercial and residential use. It operates from 254 Railway Parade, Cabramatta.
AWT installs and fixes plasterboard.
Mr Wenjun Lu was the general manager of AWT at all material times.
In early 2014, Messrs Lee and Teng agreed to become associated in a venture to import aerated autoclave concrete panels (panels) from China and sell them in Australia. The venture was to be conducted through a company, which transpired to be Harpro Group Pty Ltd (Harpro), formed on 6 January 2014.
Harpro was incorporated with three shares on issue. Two were held by Mr Teng and one by Mr Lee's nominee, Ms Ngoc Anh Thu Le. The directors were Mr Teng and Ms Le.
It was envisaged that Mr Teng's side would be responsible for arranging the importation of the panels and dealing with technical issues, and that Mr Lee's side would be in charge of sales. Evidently, Mr Teng played no role in the management and internal affairs of Harpro itself.
Harpro commenced to trade. It had people working for it, although the exact nature of the relationship of each person to Harpro is not clear. Harpro's records indicate that some were employed as consultants and others appear to have received salaries, but no formal employment records made it into evidence. Bernard Reynauld held the position as Chief Executive Officer, and Mr Lee's son, James, also worked there, as did persons named Lee Blackbourne, Sam Iitoyo, and Sunny Zhao.
Harpro's day-to-day operations were funded by BMS. Harpro's business records disclose that it paid consultancy fees to various persons and entities, wages to some people, travel expenses, car lease expenses, and rent.
On or about 15 January 2014, Mr Lee asserts that he and Messrs Teng and Lu had a conversation to the following effect: Lee: BM Sydney will loan money to Harpro but any money that Harpro makes must be paid to BM Sydney to pay off the loan before anything else because BM is incurring all of Harpro's expenses. Teng: Ok.
There is in evidence a document entitled "Loan Agreement", on its face dated 15 January 2014, between BMS and Harpro. The Loan Agreement provides for BMS to lend Harpro a maximum of $700,000, to be repaid before 31 December 2014. The document displays some peculiarities. The execution clause states that the instrument is signed for and on behalf of Harpro Global Pty Ltd, and clause 10 provides that the agreement is governed by, construed, and enforced, in accordance with the law of England and Wales to the jurisdiction of which the parties submit. There is no evidence that suggests that Harpro Global Pty Ltd exists and the transaction appears to have no ostensible connection with England and Wales. There was a reference in the evidence to a company associated with Mr Lee called Homebuild Global Pty Ltd, but nothing suggests it had a role in connection with the Loan Agreement.
Harpro's primary business record in evidence is an extract from its general ledger pertaining to an account designated "Loan from BMS Sydney" (ledger). The ledger records itemised expenses between 17 January 2014 and 17 February 2015, which total $509,389.39. They are treated as a loan from BMS to Harpro.
There is also primary documentation of one kind or another which provides support for the bulk of the underlying transactions in the ledger. The ledger records 10 payments, totalling $336,592.23, in reduction of the loan and records the outstanding balance owed (and presumably still owed) by Harpro to BMS as $172,796.92. Despite its peculiarities, the Loan Agreement is at least not inconsistent with the loan arrangement disclosed in the ledger.
On 14 August 2014, in suspicious circumstances to say the least, the electronic record of Harpro's company details held by ASIC were changed to remove Mr Teng as a director and to reflect the transfer of his shares to Ms Le. Plainly, Mr Teng did not know about this and Mr Lee, unconvincingly in my view, disavowed any knowledge of it.
Just after this, on 18 August 2014, Harpro entered into a written Distribution & Stock Transfer Agreement (Hume transaction) with Hume Plasterboard Pty Ltd (Hume) under which Hume agreed to purchase Harpro's existing stock of panels and reimburse it with the "full cost [of the panels] including certain other costs related to improvement of product quality and market development."
As best as I can make out, Hume was to buy 7854.30 square metres of panels at $22 per square metre for $172,794.60 and pay consultancy fees for work done by Messrs Blackbourne and Reynauld of $125,000. The Hume transaction refers to another 22,384.80 square metres of panels valued at $492,465.60, but does not seem to deal with what is to happen to them. They may have been previously sold to Hume, or perhaps they were intended to be sold to Hume. If they were previously sold, the evidence does not reveal whether they were paid for. Either way, it seems that $297,794.60 was payable by Hume to Harpro. Of this, Hume paid only $150,000, by way of $60,000 on 29 September 2014 and $90,000 on 1 October 2014, all of which went directly to BMS and is recorded in the ledger as reducing BMS' loan to Harpro. On one view, Hume still owes Harpro $147,794.60. On another, it may still owe $640,260.20.
Mr Teng says that he found out about the change to Harpro's records with ASIC in December 2014. Then, on or about 12 December 2014, had a meeting with Mr Lee, which Mr Lu also attended.
Mr Teng's initial version of this meeting, deposed to in his first affidavit, [1] was that Mr Lee expressed his intention to quit Harpro and then Mr Teng was given the Distribution & Stock Transfer Agreement, of which he had had no previous knowledge.
In this affidavit, Mr Teng recounts a conversation that he says took place on 10 June 2015 to the following effect: Lee: AWT Building and AWT Building Group owe BM Sydney $490,987.04. I would like to ask you to pay. If you do not pay I have no choice but to sue you. Teng: I think you owed me money in regard [sic] the financial affairs in Harpro. I am not willing to pay you until we resolve those affairs first. Lee: I won't start suing you until we resolve Harpro's matters.
In a later affidavit, [2] Mr Teng recounts that at the December 2014 meeting he and Mr Lee had the following conversation (the agreement conversation): Teng: Why didn't you inform me before you removed me as a director and a shareholder of Harpro? Lee: I am sorry. I was wrong to remove you as a director and as a shareholder. I will quit Harpro. I have organised for Harpro to enter into an agreement with Hume. [Mr Teng said that he was then handed the Hume Agreement.] Teng: You never told me that you had been selling Harpro stock. This is also my company. I was a director of Harpro and its majority shareholder before you had me removed without my prior knowledge. Is that why you had me removed as a director of Harpro. So you could sell its stock without my knowledge? I will report you to the police. Lee: Please don't do that. I am currently supplying the building materials for AWT Building and AWT Building Group for the project with Parkview Construction. I can continue to supply your companies with the materials. Teng: The Harpro stock which you sold has a market value of $33 per square metre. According to this document, you have sold almost $1 million dollars worth of Harpro stock to Hume. You also sold Harpro stock to another company in Adelaide. You also took more panels on two occasions from Harpro. In total you have sold approximately $1.36 million worth of Harpro stock. You must return all the Harpro stock or reimburse Harpro $900,000.00. This is a reduced amount based on $22.00 per square metre instead of the market value amount of $33.00 per square metre. I am prepared to reduce this amount in order to avoid legal proceedings between us. Lee: I agree. Teng: I understand that you and BM Sydney have also received money from Hume. This must be returned to Harpro. Lee: I agree. As I already stated, I will continue to supply your companies, AWT Building and AWT Building Group with the materials for Parkview Construction. Teng: I am prepared to consider any materials supplied as being contributions towards the debt which must be repaid to Harpro. As long as this agreement is respected, I will not commence legal proceedings against you. Lee: That is fine with me.
Mr Lu's first version of what appears to be the same December 2014 meeting is: [3] Lu: You [Lee] sold Harpro's stock to Hume Plasterboard for around $800,000 without Mr Teng's knowledge. We also found out that Hume Plasterboard had partly paid $150,000 for the sale. The money has not been accounted to Harpro. You also sold Harpro's AAC panel to buyers in Adelaide. I believed the value of goods sold is around $180,000 which is paid. You have not accounted the money to Harpro. Mr Teng proposes to use the amount that you should account to Harpro to offset any money that AWT Building and AWT Building Group owe to BM Sydney. Teng: You [Lee] owe me money regarding Harpro's business affairs. Lee: I will not sue you until we resolve Harpro's matters.
In a later affidavit, [4] Mr Lu said that after the discussion at the December 2014 meeting Mr Lee said to him and Mr Teng: Okay it's settled. Harpro will not sue me on the condition that my company [BM Sydney Building Materials Pty Ltd] will continue to supply building materials to your companies [AWT Building and AWT Building Group] for the Parkview Construction project. The supply of these materials will be considered as contributions towards the debt which must be repaid to Harpro.
Mr Lee denies all of these conversations.
In late December 2014, Harpro's accountant, Mr Ketan Amin, produced a profit and loss balance sheet for the 2014 calendar year. The balance sheet shows Harpro as owing $341,808 to BMS for "BM Sydney Loan".
On 7 January 2015, Mr Amin emailed, amongst others, Messrs Teng, Lee, and Lu. The email was written in an English version and a Mandarin version and read, relevantly: As discussed, we full [sic] understand your concerns and thinking. We expect to focus on the key points during lots of consultation and discussion base [sic] on we have long time friendship , firstly we should understand below: … 3, Harpro has nothing to do with the transactions between AWT and BM Sydney. BM Sydney supplied materials to AWT for their jobs and this amount was not paid to BM Sydney. Because of AWT's non-payment, BM Sydney can't pay to its suppliers. Harpro does not have any link or connection to the transactions and payments between AWT and BM Sydney as it is not involved in the materials supply by BM Sydney to AWT. Therefore AWT has to pay all debt [sic] to BM as soon as possible. This must be understood clearly.
On 24 March 2015, AWT sent a payment schedule to BMS setting out payments it would make in instalments to BMS (apparently for goods sold and delivered). Mr Teng's evidence was that Mr Lee asked for the schedule because he needed it to show suppliers to BMS, who were baulking at supplying BMS on credit.
In early June 2015, AWT gave BMS a cheque for $37,265.04 (apparently for goods sold and delivered). The cheque was dishonoured on presentment.
Mr Teng says that in reliance on his friendship and previous business activities with Mr Lee, as well as the agreement reached in the agreement conversation, he did not commence legal proceedings against Mr Lee in connection with his removal as a director of Harpro, the transfer of his shareholding without his knowledge or consent, or the sale of Harpro's stock to Hume and other unknown recipients, AWT did not pay for building materials supplied by BMS, and AWT continued to order from BMS further building materials amounting to $811,809.05.

The debt proceedings

In the first, BMS sues AWT Building Group (Aust) Pty Ltd for goods sold and delivered having a total invoice price of $449,190.92.
In the second, BMS sues AWT Building Pty Ltd for goods sold and delivered having a total invoice price of $275,558.15.

The breach of duty proceedings

In the third, Harpro sues Mr Lee for breaches of his statutory and fiduciary duties (as a de facto director [5] of Harpro), said to consist of procuring, to Harpro's disadvantage, payment to BMS of monies owed to Harpro by third parties (including Hume). These are the payments shown as loan repayments in the ledger. Harpro claims these amounts as damages or equitable compensation.
Mr Lee does not dispute that he acted as if he was a director of Harpro.
Harpro sues BMS as a knowing participant in the alleged breaches.
Harpro also sues Ms Le, but her whereabouts are unknown and she took no part in the proceedings.

The debt proceedings

It is common cause that BMS sold and delivered goods to AWT, for which AWT has not paid.
It is also common cause that, but for AWT's defences referred to below, the debts for which BMS sues are due and payable.
First, AWT contends that "BM[S] is estopped from claiming the amount owing to it by AWT pursuant to the Agreement".
AWT puts that the terms of the agreement, reached at the December 2014 meeting, were that: (a) Mr Teng would not report Mr Lee to the police (presumably for fraud); (b) BMS would continue to supply materials to AWT for the project with Parkview Construction; (c) it was agreed the market value of the panels was $33 per sqm, not $22 sqm, and Mr Lee was to procure the return of those panels or pay Harpro $900,000; (d) AWT would apply the cost of any further materials supplied by BMS against the debt owed to Harpro; and (e) as long as the agreement was "respected" Mr Teng would not commence legal proceedings against Mr Lee.
AWT submits that the "elements of equitable estoppel are made out in that": (a) there were clear and unambiguous representations made by Mr Lee and BMS; (b) AWT and Mr Teng relied on the representations reasonably in that the agreement reflected a logical and sound commercial bargain which would avoid the need for a multiplicity of legal proceedings; (c) AWT and Mr Teng suffered detriment by reason of their reliance by, first, ordering further materials from BMS on the basis of a belief the cost of those materials would be applied towards the $900,000 debt to Harpro and, secondly, by not causing Harpro to commence proceedings against BMS and Mr Lee; and (d) in the circumstances, it would be unconscionable to permit BMS and Mr Lee to resile from those representations.
Second, AWT contends that the agreement is enforceable "and as such there is no debt due and owing to [BMS]".
Third, AWT contends that "the terms of the [a]greement were such that the debt claimed by [BMS] is not due and payable unless and until [BMS] had either paid $900,000 to Harpro or procured the return of [panels] of the same value of Harpro".
Each of these contentions rests, in the first instance, on AWT establishing, on the probabilities, that the agreement conversation occurred.
None of Messrs Lee, Teng, or Lu has English as his first language. Mr Lee speaks conversational English, to a moderate level. Mr Teng appears to have very limited English. And, Mr Lu apparently has some conversational English.
The affidavits of Messrs Teng and Lu were not sworn in Mandarin and then translated into English but were sworn in English and read to them in Mandarin by the person who witnessed the affidavit, whose translation credentials are not established. Mr Teng's affidavit, in which he deposes to the agreement conversation, includes a notation by the witness that the affidavit was read to Mr Teng in Mandarin in the witness's presence and it appeared to the witness that he understood the affidavit and subscribed the affidavit by signing it in his presence. Mr Teng's first affidavit contains no such notation, but I am satisfied that he could not properly have understood the English terminology used in it. Mr Lu's 3 March 2016 affidavit similarly contains no translation notation, but his 11 August 2016 affidavit does.
Mr Lee gave evidence and was cross-examined in English. Messrs Teng and Lu gave evidence and were cross‑examined through a sworn Mandarin translator. The terminology employed by counsel on both sides during cross‑examination took no account of difficulties with the English language faced by the witnesses. I have no confidence that Mr Lee had an adequate grasp of the questions asked of him. And, having regard to the way in which Messrs Teng and Lu were questioned - assuming (as I do) that the Mandarin translator succeeded in accurately translating the questions - I have the same lack of confidence with respect to their grasp.
There is no reliable contemporaneous record or other satisfactory corroboration for the agreement conversation. What objective material there is provides no corroboration for it.
Moreover, the witnesses were speaking of events which took place five years ago.
The Court has little to go on in assessing whose version is to be preferred. AWT, however, has the onus.
Where a party seeks to rely upon spoken words as a foundation for a cause of action the conversation must be proved to the reasonable satisfaction of the Court. This means that the Court must feel an actual persuasion of its occurrence or its existence. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319.
I feel no such actual persuasion with respect to the agreement conversation.
Although it is clear that the affidavits on both sides are the work product of lawyers, I think it is significant that the first affidavits of Messrs Teng and Lu disclose no agreement, let alone one that included the notion that BMS would supply goods to AWT on the basis that the price would be taken as a reduction of money said to be owed by BMS or Mr Lee to Harpro.
I think it is significant that both Messrs Lee and Lu say in their first affidavits that Mr Lee said he would not sue Mr Teng (presumably AWT) until Harpro's matters were resolved, whereas in Mr Teng's later affidavit he attributes the substance of this statement to himself.
I think it is significant that in Mr Lu's first affidavit he attributes to himself a statement that Mr Teng proposes to use the amount that Mr Lee should account to Harpro to offset any money that AWT owed to BMS, whereas in his second affidavit Mr Teng attributes a similar statement to himself.
I think it is significant that both first versions of the conversations end off with Mr Lee saying that he would not sue until Harpro's matters were resolved. This sits uneasily with what is said to be the agreement reached later in the same conversation.
I think it is significant that in his first affidavit Mr Teng recounts the conversation in which Mr Teng is said to have stated that he was not willing to pay BMS until Harpro's matters were resolved and Mr Lee said he would not sue until they resolved Harpro's matters as having occurred on 10 June 2015. The occurrence of this conversation sits uneasily with the terms of the earlier agreement conversation.
I think it is probable that a discussion occurred in December 2014, after Mr Teng had found out about the ASIC records change, and that the discussion included a complaint about this and about the Hume transaction. I think it is probable that a conversation along the lines deposed to in Mr Teng and Mr Lu's first affidavits occurred. But I consider that the agreement conversation deposed to by Mr Teng in his later affidavit, so far as it purports to recount agreement as to figures, returning money received from Hume, and Mr Teng not commencing legal proceedings on the footing that BMS would supply materials to AWT and the price would be taken to reduce the asserted liability of BMS to Harpro, is a contrivance.
It is apt to observe that, if Harpro was entitled to repayment, this arrangement would have been a breach of fiduciary duty to Harpro because Harpro would not have received monies it was owed.
At the time of the agreement conversation BMS had lent Harpro a significant amount of money, $150,000 of which had been repaid out of the proceeds of the Hume transaction. If the agreement conversation occurred, Mr Lee would have, in effect, been committing to refund monies that had been received by BMS in reduction of the loan. I do not consider it probable that Mr Lee would have so agreed.
The occurrence of the agreement conversation is at odds with both the 7 January 2015 email and the 24 March 2015 payment schedule. I am not persuaded that the payment schedule was an artifice as Mr Teng suggests.
The agreement conversation is also not consistent with the AWT cheque in favour of BMS.
It follows that AWT fails, and BMS is entitled to judgment.
If AWT had established the agreement conversation, it would nevertheless have failed. Its own articulation of the prejudice allegedly suffered as a result of the claimed representations is not sufficient in equity to preclude BMS from claiming its debt. AWT bought building material from BMS. It is no prejudice to have to pay the proper price for goods bought and received. If anyone suffered prejudice by the arrangement, it was Harpro.
On the terms of the agreement conversation itself, Harpro would not sue so long as BMS respected the arrangement. BMS has not respected the arrangement, so Harpro can sue and, indeed, has done so.
There cannot be extracted out of the agreement conversation a consensus that there would be no debt due and owing to BMS. There also cannot be extracted any consensus that AWT's debt would not be due and payable, unless and until BMS had either paid $900,000 to Harpro or procured the return of the panels to it.

The breach of duty proceedings

Harpro accepted that if the payments "diverted" to BMS were in discharge of Harpro's loan obligations to BMS, its claim must fail because Harpro would not have suffered any detriment by BMS being paid.
Harpro's contention was that BMS' advances were by way of equity and it would ultimately have recouped its investment by receipt of dividends out of Harpro's profits. I reject this contention.
Harpro's own accounting records (which it did not seek to impeach in any way) record the loan and the repayments. Most of the single loan entries are vouched.
This provides objective corroboration for Mr Lee's evidence of the conversation with Messrs Teng and Lu in January 2014 in which he contends that it was agreed that BMS would loan money to Harpro to pay off the loan before anything else because BMS was incurring all of Harpro's expenses.
It follows that this claim must be dismissed.

conclusion

There will be judgment in Supreme Court proceedings no. 178796 of 2015 for BMS against AWT Building Group (Aust) Pty Ltd for $449,190.92.
There will be judgment for BMS in Supreme Court proceedings no. 178811 of 2015 against AWT Building (Aust) Pty Ltd of $275,558.15.
Mr Teng was joined as a second defendant in the debt proceedings, but the case against him in both proceedings was not proceeded with and is dismissed.
The claim in Supreme Court proceedings no. 317266 of 2017 is dismissed.
Unless within seven days any party gives notice to the other parties and to my Associate that some other costs orders are sought, there will be orders that AWT pay BMS' costs of the debt proceedings, BMS pay Mr Teng's costs of the debt proceedings, and Harpro pays the costs of BMS and Mr Lee in the breach of duty proceedings.
If notice is given, it is to state the order/s sought and give brief reasons. In that event, directions for the determination of costs will be made. If no notice is given, the provisional costs orders set out in the immediately preceding paragraph will solidify.
The Exhibits are to be returned.

Endnotes

Dated 19 February 2016.
Dated 26 July 2016.
Deposed to in an affidavit dated 3 March 2016.
Dated 11 August 2016.
Corporations Act 2001 (Cth) s 9, definition of 'director' (b).

Amendments 18 April 2019 - Corrected file numbers on cover page DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2019

Corporations Act 2001(Cth)s 9, definition

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