Chen v Xie & Others

The plaintiff's argument

1. Mr A Cheshire SC for the plaintiff relies upon r 13.1 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). In particular, he emphasises that the rule applies, inter alia, to "any part of the plaintiff's claim for relief" (my emphasis). To found his claim for summary judgment he read the affidavit of his instructing solicitor, Belle Lou, sworn on 15 May 2020 and of the plaintiff sworn on 11 June 2020. The plaintiff is a Chinese National and permanent resident of Australia. He is fluent in the Mandarin language, but not in English. His affidavit was translated by Kai Zhong, an interpreter and translator accredited by the National Accreditation Authority for Translation and Interpreters. Mr Zhong's affidavit to that effect affirmed on 11 June 2020 is appended to the plaintiff's affidavit.
2. Ms Lou annexes what, on the plaintiff's case, disputed by the defendant, is a note or memorandum of the loan agreement the plaintiff sues on. The plaintiff's evidence of the formation of the loan agreement is contained in [7] to [13] of his affidavit. On his evidence security was provided by both a 20 percent parcel of shares in the second defendant and a charge over the Galston property.
3. While Mr Cheshire relies upon the evidence of his client for the purposes of r 13.1(1)(a), he argues that it is not necessary for evidence to be led as required by r 13.1(1)(b) for the purpose of this case. Indeed, senior counsel argued, it is not necessary for any evidence to be given that the first defendant has no defence to the plaintiff's claim because the countervailing agreement that the first defendant relies upon as the basis of the claimed set-off is of no legal effect, as "no action may be brought" to recover the alleged set-off by force of s 56 Unlawful Gambling Act 1998 (NSW).
4. Mr Cheshire argues that while, in some cases, the question of whether a contract made in apparent contravention of a statute is void and unenforceable for illegality raises somewhat nice questions of statutory construction, no such subtle approach is required in the present case. Rather, the alleged loan advances made at the casino in January 2019 are covered by the general principle stated by Jacobs J in Yango Pastoral Company Pty Ltd v First Chicago Australia Limited (1978) 139 CLR 410; [1978] HCA 42 ("Yango Pastoral Co") at p 430: When a statute expressly prohibits the making of a particular contract, a contract made in breach of the prohibition will be illegal, void and unenforceable, unless the statute otherwise provides either expressly or by implication from its language. Mr Cheshire argues that nothing could be clearer than the plain language of s 56. There is no express proviso, nor implication capable of displacing the statutory language of s 56. He also referred to the provisions of the Casino Control Act 1992 (NSW) providing that gaming is lawful within a casino, but only if the game is conducted, and any relevant gaming equipment provided, by the licensed operator of the casino, or on its behalf: s 4.
5. Mr Cheshire's primary argument is that the "loans" asserted by the first defendant were in fact themselves a form of wagering not conducted by the casino operator (or on its behalf) and directly prohibited by s 14, and caught by s 56, both of the Unlawful Gaming Act. In the alternative, against the possibility that the Court would find after a hearing that the "loans" were not bets, they remained an agreement that relates to a form of gambling and accordingly were equally caught by s 56, even if not prohibited by s 14. They have this character because on any view the plaintiff was borrowing from the first defendant for the express purpose of gambling in the casino.

The first defendant's argument

1. Ms M.M. Pringle of Counsel for the defendants argued that the evidence established that the advances made to the plaintiff by the first defendant were loans and not wagers. She relied on the evidence that the first defendant was a "junket operator" and it was an ordinary part of that business for the operator to introduce "clients" to the casino. The arrangements made among them included the junket operator "providing credit to the client, either in the form of casino chips or by cash advances directly to the client" (Affidavit, Xiongming Xie, 9 June 2020; [5] - [8]). She argued that for this reason the transactions between the plaintiff and the defendants did not offend the Unlawful Gambling Act.
2. In the alternative she argued that if the transactions were found to be a form of unlawful gambling the plaintiff, "who is equally to blame" (Written Submissions 10 July 2020 [20]) should not be unjustly enriched by the amounts advanced by the defendants. She relied on Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 to argue that relief should be made conditional upon repayment of the benefits which had been wrongly received by the plaintiff: Santos v Stephenson [2020] NSWSC 90 at [55] - [56], Parker J.
3. As I have said, a translation of the social media messages documenting the transactions impugned by the plaintiff is appended to Mr Xie's affidavit. During the course of argument I drew the terms of the first of these (CB73) to Ms Pringle's attention and asked: His Honour: … I mean is there any other interpretation of those words, assuming them to be accurately translated as I have said … than the fact it's a game? Ms Pringle: No, your Honour I don't really think so (13.18 - .22T).

Wickstead and Ors v Brown (1992) 30 NSWLR 1

1. During the course of argument, I raised with counsel Wickstead & Ors v Brown (1992) 30 NSWLR 1. The purpose of my question was to ascertain whether the principle established by Menzies v Australian Iron and Steel Limited (1952) SR (NSW) 62 discussed and applied at p 11 and 12 of the report of Wickstead had any application to the current case. That principle, as expressed by Handley and Cripps JJA is, "[i]f at the close of the plaintiff's case at the trial there was no evidence against this respondent he would not be entitled at that stage to judgment if any of the other defendants intended to go into evidence".
2. I raised the point, I now think erroneously, because the plaintiff was seeking summary relief against one of only two defendants. I allowed counsel the opportunity to provide further written submissions which both attended to promptly. Ms Pringle did not specifically invoke the point I had in mind, but emphasised the well established principle that the power to dispose of proceedings summarily "is to be sparingly employed and it is not to be used except in a clear case": General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 at 128 - 129. Learned Counsel argued this was not such a clear case.
3. Mr Cheshire argued the principle I had in mind can have no application to the present case because it was brought by the plaintiff against one of two defendants in relation to an asserted set-off. Given the legal basis on which summary judgment is sought, it could hardly be said that evidence might fall from another defendant during the hearing of the case to overcome the legal bar invoked here by the plaintiff.
4. I interpolate, it is also instructive that in Wickstead Handley and Cripps JJA were prepared to summarily dismiss an aspect of the plaintiff's case, which was not maintainable at law. That was a claim against a fiduciary framed in negligence. Their Honours were able to hold notwithstanding the application of Menzies that a trustee does not owe a common law duty of care recognised by the law of negligence to protect a beneficiary from economic loss affecting his beneficial interest. Rather, their rights and liabilities must be determined according to equitable principles, not the law of torts (pp 17 - 19).
5. The principle that the Court will not non-suit a plaintiff on the application of one of several defendants has no application to the current case.

Terms of the transactions in question

1. It is not necessary to set out each one of the series of transactions relied upon for the defendant's set-off. However, it is helpful to set out at least one. The matter I raised with Ms Pringle is the first social media message in the certificate of Mr Stephen Chan, Accredited Interpreter. It is in these terms (CB173): Boss/Chief Chen, to bet 60 thousand of chip on the table, equals to, based on settlement in Renminbi, equals to 600 thousand Renminbi. For winning of 60 thousand, the company needs to pay 600 thousand Renminbi. For losing of 60 thousand, Boss/Chief Chen needs to pay the company 600 thousand Renminbi. Thank you. There were three participants in the conversation. It is clear that the person who sent the message is the first defendant and the first recipient is the plaintiff. At least I am prepared to assume, in the defendant's favour, for the purpose of the application that that is the identity of the principal parties to the exchange. After receipt of the message, the plaintiff, referred to as Boss/Chief Chen, responded "OK".
2. Despite some contextual questions about it, it is common ground that the company is the second defendant.
3. There are five transactions following the same pattern. It is also relevant that when the first defendant (again) requested payment on 29 January 2019, the plaintiff responded (CB183): I really cannot afford repaying. Can only use the borrowed 1 million to offset. I will ask (a named person) to clear by offsetting the rest. My son just rushed back to China from Japan and fell out after knowing the situations. And I am hospitalised as well. The 1 million referred to in this message is the loan to the first defendant, the subject of this application.

Consideration

1. With respect, the principles governing the exercise of the Court's power of summary disposal are pithily summarised by Macfarlan JA in O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3]: The High Court decision in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application: (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid). (c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24]).
2. I emphasise that UCPR r 13.1 permits a court to exercise its power in relation to "any part of the plaintiff's claim for relief". This is important for at least two reasons. First, because Ms Pringle argues that the whole matter should be dealt with at once, and secondly, because there is no doubt that there is a real issue in relation to the plaintiff's claim for possession of the Galston property. In respect of the latter, there is a real dispute as to whether it was proffered as security for the original loan.
3. I am satisfied that it is appropriate to consider the plaintiff's application in relation to its claim in debt only for the repayment of his capital of $1 million together with the agreed interest.
4. I have no doubt that each of the five transactions recorded in the social media messages was a bet or wager and not a loan made by a junket operator to a client with the authority of the casino operator. To be clear I am satisfied that there is no triable issue about that fact. The casino chips advanced were clearly provided on terms which will bear no other construction than as a bet between the plaintiff and the second defendant at what appears to be odds of 10 to 1, that is, expressly providing that the loser owed the winner 10 times the stake. It is not possible to sensibly construe the social media message as a memorandum of a loan.
5. By the terms of s 14, the following offence is created: A person must not participate in, or bet on, an unlawful game. The maximum penalty is a fine of 50 penalty units or imprisonment for 12 months or both.
6. Section 56 Unlawful Gambling Act 1998 (NSW) is in the following terms: (1) Any agreement, whether oral or in writing, that relates to any form of gambling that is prohibited under this Act has no effect, and no action may be brought or maintained in any court to recover any money alleged to have been won from, or any money paid in connection with, any such form of gambling. (2) Nothing in subsection (1) applies to or in respect of any form of gambling that is otherwise lawful. Section 4 defines "gambling" as including "gaming, betting or wagering".
7. The expression "unlawful game" is defined by s 5 of the Act. The definition includes: any game that involves the disposal of money by lottery or by chance" (s 5(1)(d)).
8. Section 7 of the Act makes certain forms of gambling lawful or at least "does not prohibit" them including "gambling that is declared lawful under the Casino Control Act 1992": s 7(e). Each of the non-prohibited forms of gambling is permissible by reference to another Act of Parliament. Of them, only the Casino Control Act seems capable of being applicable given that the impugned transactions occurred at the Casino. I should say that Ms Pringle did not point to any other Act of Parliament that rendered the transaction lawful if it was in fact a wager.
9. Section 4 of the Casino Control Act 1992 (NSW) may be important and is in the following terms: (1) Despite the provisions of any other Act or law but subject to this Act, the conduct and playing of a game and the use of gaming equipment is lawful when the game is conducted and the gaming equipment is provided in a casino by or on behalf of the casino operator (that is, the holder of the licence for that casino under this Act). (2) The Unlawful Gambling Act 1998 and the Community Gaming Act 2018 do not apply to the conduct and playing of a game and the use of gaming equipment when the game is conducted and the gaming equipment is provided in a casino by or on behalf of the casino operator and in accordance with this Act, except to the extent (if any) that the regulations otherwise provide. (3) This section does not operate to validate or render enforceable a contract relating to gaming that would, apart from this section, be invalid or unenforceable. (4) Despite subsection (3), a contract to which that subsection refers and to which a casino operator is a party is enforceable against the casino operator. (5) The conduct of operations in a casino in accordance with this Act and the conditions of the casino licence is not of itself a public or private nuisance. Plainly, s 4(3) preserves the operation of s 56 of the Unlawful Gaming Act unless the casino operator is a party to the contract: s 4(4). Section 4(4) does not apply here. The licensed operator of Star Casino is not said by any party to the proceedings to have been a party to the transactions in question in the present case.
10. Notwithstanding the width of the language of s 4(1) and (2) referring to a "game … conducted … by or on behalf of the casino operator", there is absolutely no suggestion that the first defendant made, what I have said is, a bet with the plaintiff as agent for the casino operator. Sections 4(3) and (4) demonstrate to me that the expression "on behalf of the casino operator" refers to a true relationship of agency as understood in contract law.
11. Moreover, s 70 (1)(c) makes it a condition of a casino licence that gambling chips are not to be issued unless paid for in advance.
12. Section 74 prohibits a casino operator and its agent or employee from lending money, chips or any other valuable thing in connection with any gaming in the casino: s 74(1)(b). Credit and debit card transactions are prohibited except debit card transactions "with a person who is a participant in a premium player arrangement or junket" s 74(1)(c). I observe there is no suggestion in the present transaction of the chips being provided as part of a transaction involving the use of a debit card.
13. Section 74(5) creates a further exception "in the case of a person who is not ordinarily resident in Australia" which may apply to the plaintiff, although that is far from clear given that he describes himself as a permanent resident of Australia. In such a case the casino operator or its agent may "extend any form of credit to the person" to enable the person to participate in, inter alia, "a junket that is approved by the Authority".
14. Section 76 authorises the making of regulations "with respect to regulating or prohibiting - (a) the promotion and conduct of junkets involving a casino": s 76(1)(a). The current Casino Control Regulation 2019 (NSW) permits a casino operator to organise, promote and conduct a junket on its own behalf, but it does not permit a casino operator to act as a representative of a promoter of a junket: cl 14. This regulation commenced on 1 September 2019 and replaced the Casino Control Regulation 2009 (NSW): cl 2 of the 2019 Regulation. Clause 14 of the repealed regulation was in identical terms.
15. Even if one assumes favourably to the defendants, as is appropriate when considering an application for summary disposal at the suit of the plaintiff, that these provisions would permit the operator of the Star Casino to authorise the defendant to extend credit to the plaintiff on 10 January 2019 and that the casino had in fact authorised such transactions, the difficulty for the defendant is that the transactions evidenced by the social media messages are not capable of being understood as credit transactions, as asserted by the first defendant, rather than wagers. I have already found they are capable of bearing no other meaning, as Ms Pringle conceded.
16. The contract made by the first defendant (on behalf of the second defendant, and not the casino) with the plaintiff falls into that category of a contract expressly prohibited by the provisions of s 14, and rendered unenforceable by s 56, Unlawful Gambling Act. In the language of Jacobs J in Yango Pastoral Co. (see [9] above) the transactions are "illegal, void and unenforceable". There is no express or implied exception in the language of the provisions of that Act which salvages these transactions.
17. The language of s 56 is plain and intractable especially when read with the s 14 prohibition. A prohibited contract "has no (legal) effect" and "no action may be brought or maintained in any court to recover" either the winnings or the stake. The expression "any money paid in connection with" an agreement relating to unlawful gambling covers, if nothing else, quite obviously, the stake.
18. Given that s 14 prohibits the contract and the express language of s 56 makes clear that no action may be brought to recover either the winnings or the stake, I am of the view that the law of restitution cannot be invoked by the first defendant to recover even the stake, let alone the winnings which he seeks to set-off against the debt due to the plaintiff. In this circumstance the loss must lie where it falls.
19. In my opinion, this dictum derived from Lord Mansfield's judgment in Holman v Johnson [1775]1 Cowp 341 at 343; 98 ER 1120 at 1121 is applicable in the present case even if its affect is not "pervasive": Nelson v Nelson at 557, Deane and Gummow JJ, relied on by Ms Pringle.
20. In their joint judgment Deane and Gummow JJ (at 552) recognised that in his judgment in Yango Pastoral Company, Jacobs J drew a distinction between three classes of case where the question of illegality and its effect on the enforceability of a contract may arise. I have found that this case falls into his Honour's first category of an express statutory prohibition against the making of the contract. The second category relates to an express statutory prohibition against the doing of a particular act which may be required by a contract of a type not expressly prohibited. The third category concerns "contracts and trusts not directly contrary to the provisions of a statute", but which are "associated with, or in furtherance of, illegal purposes": Yango Pastoral Co. at 432, Jacobs J. Nelson v Nelson was concerned with that third category. It was also concerned with a claim for equitable remedies on equitable principles dealing with a resulting trust. The equitable interest of a resulting trust had arisen because the plaintiff had sought to so arrange her affairs by putting a house she owned in the name of her daughter so as to appear to be entitled to an advance under the Defence Services Homes Act 1918 (Cth) to purchase another property. Such an arrangement was not expressly prohibited, but Deane and Gummow JJ held that it was "tainted by illegality because of its association with or furtherance of a purpose which is contrary to the policy of the law as indicated by the scheme of the Act": p 571. Even so, their Honours held that Lord Mansfield's aphorism was not applicable. Relief was available to the plaintiff, but only upon terms "apt to make good" the policy of the law which was to assist only eligible persons into a first home. This required her "to do equity according to the requirements of good conscience" (p 571) which required her, in simple terms, to pay back the benefit she had received. In my opinion this approach has no application to the present case.
21. Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 concerned the right of a builder to seek recompense for building work performed under a contract rendered unenforceable by s 45 of the Building Licensing Act 1971 (NSW) (Repealed) for want of a written contract complying with the statute. The builder was held to be entitled to recover from the homeowner on a quantum meruit basis. Mason and Wilson JJ held that the ordinary words of the statute "are apt to provide for unenforceability" not only by means of legal proceedings, but also by means of any other remedy: p. 226 - 7. As I have held, the same may be said here of s 56. Their Honours accepted that the "statutory concept of unenforceability extends to indirect, as well as direct, enforcement of the contract". However, their Honours agreed with Deane J that an action on a quantum meruit "rests, not on implied contract, but on a claim to restitution or one based on unjust enrichment, arising from the respondent's acceptance of the benefits accruing to the respondent from the appellant's performance of the unenforceable oral contract": p 227.
22. In my judgment the combined legal effect of ss 14 and 56 Unlawful Gambling Act is different. This is not a case where the legislature seeks to strike down a contract made in contravention of the statute of frauds. Here the legislation expressly prohibits the contract, denies legal effect to the contract made in contravention of the prohibition, and any remedy to both parties to the void contract. Neither the winnings nor the stake can be recovered, as I have said more than once. No question of unjust enrichment can arise where both parties are tarred by the same brush of express illegality.
23. In Pavey and Matthews v Paul Deane J (at 261) referring to decisions on money-lending legislation said: In the legislation involved in those cases, it was possible to argue, both by reference to the different words used and the quite different history of money-lending legislation, that it was the plain legislative intent that the money-lender should be precluded from recovering any compensation for the loan which had been made and received by the borrower. The relevant provisions went well beyond a mere statement that the agreement was to be unenforceable by the lender and were plainly directed towards imposing unenforceability in the ordinary case at a stage after the consideration had been fully executed by the lender, that is to say, after the money had been lent without an adequate memorandum in writing of the terms of the loan. His Honour also referred to the judgment of Walsh J in Deposit & Investment Co. Limited v Kaye (1962) 63 SR (NSW) 453 at p 460. Walsh J did not permit recovery of an advance by a money-lender in contravention of the legislation as money had and received because the relevant provision creating the unenforceability provided that both "the borrower's obligations and the security for the performance of them shall not be enforceable". An unlawful gaming contract is in an analogous position.

Conclusion

1. For the reasons I am satisfied that the plaintiff is entitled to the relief sought. I am satisfied that the pleading of the set-off should be struck out under UCPR r 14.28 as disclosing no reasonable defence and pursuant to UCPR r 13.1, the plaintiff should have summary judgment against the defendants in the sum of $1,500,000 on his action in debt. My orders are: 1. Under rule 14.28(1) Uniform Civil Procedure Rules 2005 (NSW) strike out paragraphs 10 to 18 of the Defence filed on 25 April 2020; 2. Summary judgment for the plaintiff in the sum of $1,500,000 on his action in debt against the first defendant including interest up to and including 18 December 2019; 3. Liberty to apply in respect of interest after 18 December 2019 under s 100 Civil Procedure Act 2005 (NSW); 4. The first defendant to pay the plaintiff's costs of the proceedings for summary judgment; 5. List the matter before the Registrar for further directions concerning the claim for possession at 9 a.m. on 4 February 2020.

Amendments 04 January 2021 - Paragraph 40: Holman and Johnson citation amended from [1977] to [1775] 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: 04 January 2021