Jin Niu Investments Pty Ltd v Wang - [2020] NSWSC 649 - NSWSC 2019 case summary — Zoe

NSWNSWSC

Jin Niu Investments Pty Ltd v Wang

[2020] NSWSC 649

Supreme Court of NSW|2019-11-26|Before: Henry J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-11-26

Before

Henry J

Source

Original judgment source is linked above.

Judgment (36 paragraphs)

[1]

R 89; [2007] HCA 22 Fast Financial Solutions Pty Ltd v Crawford and Battye [2012] NSWSC 40 Friend v Brooker (2009) 239 CLR 129; [2009] HCA 21 George v Webb [2011] NSWSC 1608 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 Hasler v Singtel Optus Pty Ltd; Curtis v Singtel Optus Pty Ltd; Singtel Optus Pty Ltd v Almad Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 Hoh v Ying Mui Pty Ltd [2019] VSCA 203 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 John Alexander's Club Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1; [2010] HCA 19 Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association [1999] FCA 27 Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165; [2001] HCA 31 Potter v Potter [2003] 3 NZLR 145 Rambaldi v Commissioner of Taxation (2017) 107 ATR 1; [2017] FCAFC 217 Raulfs v Fishy Bite Pty Ltd [2012] NSWCA 135 Re Associated Securities Ltd and the Companies Act [1981] 1 NSWLR 742 Re Australia Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia (1991) 30 FCR 491 Twinsectra Ltd v Yardley [2002] 2 AC 164 United Dominions Corporation Ltd v Brian Pty Limited (1985) 157 CLR 1; [1985] HCA 49 Warman International Limited v Dwyer (1995) 182 CLR 544; [1995] HCA 15 Weige v Cupton Pty Ltd [2012] NSWCA 414 Ying v Song [2010] NSWSC 1500 Texts Cited: JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) Young, Croft and Smith, On Equity (2009, LawBook Co) Robert Austin and Ian Ramsay, Ford, Austin and Ramsay's Principles of Corporations Law (17th ed, 2018, LexisNexis Butterworths) WA Lee & HAJ Ford, Principles of the Law of Trusts (March 2018, Thomson Reuters, looseleaf) Category: Principal judgment Parties: Jin Niu Investments Pty Ltd (First Plaintiff) Henan Jin Niu Industrial (Group) Co Ltd (Second Plaintiff) Jianqiang Wang (Third Plaintiff) Yuehui (Christine) Wang (First Defendant) Ping Li (Second Defendant) Jin Niu Property Development Pty Ltd (Third Defendant) Jin Niu Agribusiness Pty Ltd (Fourth Defendant) Australian Securities and Investments Commission (as recipient of the property of NSW Land Pty Ltd) (Fifth Defendant) Representation: Counsel: Dr K Stern SC with Mr G Ng (Plaintiffs)

[3]

JUDGMENT

These proceedings arise out of an alleged joint venture between the third plaintiff, Mr Jiangiang Wang, and the first and second defendants, Ms Yuehui (Christine) Wang and Ms Ping Li.
The terms of the alleged joint venture provided for a company to be formed to invest in Australian assets. Mr Wang was to arrange funding for the company and hold 90% of the shares. Ms Wang and Ms Li were to manage the company and each hold 5% of the shares. No one was to be paid fees or salary and profits were to be divided between them.
On 26 February 2013, Jin Niu Investments Pty Ltd (JN Investments) was incorporated as the joint venture vehicle and Mr Wang, Ms Wang and Ms Li were each appointed as directors.
Subsequently, and over an 18 month period, Mr Wang and Henan Jin Niu Industrial (Group) Co Limited (Henan), a Chinese corporation of which Mr Wang was the president and majority shareholder, provide funding to JN Investments of around $11 million. Between October 2013 and December 2017, those funds were used to pay for three investments in Australia, which are referred to in these reasons as the Hyde Apartment, the Blueberry Farm and the Lane Cove Property. They were also used by Ms Wang and Ms Li to pay themselves over $4.5 million by way of consulting fees, reimbursed expenses, loans or salary.
On 26 June 2018, Mr Wang was granted leave, pursuant to s 237 of the Corporations Act 2001 (Cth), to bring these proceedings on behalf of JN Investments so as to facilitate the prosecution of various claims against Ms Wang and Ms Li. On that occasion, the Court also made freezing orders over Ms Wang and Ms Li's Australian assets and orders for substituted service.
In addition to claims made in the name of JN Investments as the first plaintiff, Henan (the second plaintiff) and Mr Wang (the third plaintiff) also advance a range of claims against Ms Wang and Ms Li on their own account.
In essence, the plaintiffs' claims are that Ms Wang and Ms Li misappropriated and used funds held by JN Investments and created and issued interests in three corporate and trust entities, namely Jin Nui Agribusiness Pty Ltd (JN Agribusiness), Jin Nui Property Development Pty Ltd (JN Property), and the Jin Nui Property Development Unit Trust (JN Property Trust), in breach of their director and fiduciary duties owed to JN Investments, in breach of the joint venture agreement, in breach of fiduciary duties owed to Mr Wang as joint venturers, and in breach of trusts that arose in favour of Henan and JN Investments. The plaintiffs also claim that Ms Wang and Ms Li knowingly assisted each other's breaches of fiduciary duties and are liable to account as constructive trustees and that the proceeds from the sale of the Hyde Apartment and the interest in the Lane Cove Property are held on trust.
In terms of relief, the plaintiffs seek a range of declarations, an order for an account, pecuniary relief in the amount of $5,318,019.74, and orders for the transfer to Mr Wang of shares in JN Agribusiness and JN Property and units in the JN Property Trust.
The claims advanced give rise to relief against Ms Wang and Ms Li that overlaps between the different plaintiffs and, in some cases, are alleged as alternatives. While contending that each of the claims made by the respective plaintiffs are good claims, as Senior Counsel stated at the hearing, if relief is founded as against Ms Wang and Ms Li in respect of one claim, the Court would not need to consider the alternative claims which lead to the same conclusion. I have approached the claims made in this case on that basis.

[4]

The hearing

The proceedings were originally listed for a 10 day final hearing to commence on 18 November 2019.
On 15 November 2019, Ms Wang was declared bankrupt. Prior to then, she had taken steps to defend the proceedings.
The hearing was adjourned to enable the plaintiffs to obtain leave from the Federal Court, pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth), to continue the proceedings. They did so on 18 November 2019. On 25 November 2019, I granted an order pursuant to s 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) for the proceedings to be determined by this Court: Jin Niu Investments Pty Ltd v Wang [2019] NSWSC 1697.
On 25 and 26 November 2019, the hearing proceeded before me on an uncontested basis.
Ms Wang's trustee in bankruptcy was on notice of the hearing but did not appear and was not joined as a party. The hearing proceeded in his absence as correspondence before the Court indicated that he accepted that he did not need to be joined as any findings of trust against Ms Wang's property would take that property out of the bankruptcy and any findings for an account or quantum of debt would be provable under s 82 of Bankruptcy Act.
As for Ms Li, she had taken no steps in the proceedings. An affidavit of Wen-Ts'ai Lim sworn 3 July 2018 established that Ms Li had been served in accordance with the substituted service order made on 26 June 2018. There was also evidence that Ms Li had been informed of the hearing date and served with other material filed by the plaintiffs.
The third and fourth defendants are JN Property and JN Agribusiness. They were not represented.
The fifth defendant is the Australian Securities and Investments Commission (ASIC), as recipient of the property of NSW Land Pty Ltd (NSW Land). NSW Land was incorporated by Ms Li, holds shares in JN Property and is now deregistered. There was no appearance by ASIC.
At the hearing, the plaintiffs relied on a substantial amount of lay, documentary and expert evidence in support of their claims. The Court book comprised eleven volumes. During the course of the hearing, the plaintiffs provided three additional volumes, as well as detailed schedules referring to and summarising some of the documentary evidence relied on.
I have been assisted by the summary schedules prepared by the plaintiffs as well as by the written and oral submissions from their senior and junior counsel.
The lay evidence comprises two affidavits from Mr Wang, two affidavits from Robert Wolton (the farm manager of the Blueberry Farm), and an affidavit from Susan Wahhab, a partner of Money Intelligence Pty Ltd, formerly trading as Winner Partnership Pty Ltd (Winner Partnership), an accounting and wealth advisory practice that was engaged by Ms Wang on behalf of JN Investments, JN Agribusiness and JN Property from September 2013 to mid-2017. The plaintiffs also read two extracts from an affidavit affirmed by Ms Wang.
The plaintiffs also rely on an expert report of Jennifer Exner, a partner in the forensic practice of Deloitte Risk Advisory Pty Ltd (Exner Report). Ms Exner was provided with bank records and financial statements relating to JN Investments, JN Agribusiness and JN Property which had been prepared by the Winner Partnership for the 2013-2016 financial years, and revised financial records for the same years which had been prepared by Ms Evelyn Xie of E-AccounTax. Ms Exner analysed the records and reported on: 1. the amounts paid to Ms Wang and Ms Li (and their companies) and the purpose or nature of the payments made; 2. the details of loans made by Ms Wang and Ms Li (or their companies) to JN Investments, JN Property and JN Agribusiness; and 3. the amounts, if any, paid to Henan and Mr Wang.

[6]

The parties

Mr Wang is a Chinese businessman. He does not speak or read English. During 2013 and 2017, Mr Wang spent most of his time in China, where he was a resident and national.
Ms Wang was born in China and is an Australian resident. According to her tax return for the 2011 financial year, during 2010 and 2011, Ms Wang worked for the Department of Trade and Investment. She has been a director of four companies in Australia, a company secretary of two companies and has held shares in seven.
Ms Li was born in China and trained as a lawyer. She has been a director of two companies in Australia and has held shares in one company.
Ms Wang and Ms Li both speak and read English and Chinese.
Mr Wang first met Ms Wang in March 2009 at an Australian investment promotion conference in Beijing, China. Ms Wang's business card identified her as a director of PRIMEX, NSW Department of Primary Industries.
After meeting, Mr Wang had a number of telephone conversations with Ms Wang. During one of those calls, Ms Wang told Mr Wang that she could assist him if he was interested in investing in Australia.
In March 2012, Mr Wang met with Ms Wang in Beijing and told her that his company, Henan, remained interested in investing in Australia and asked for her advice. Ms Wang said she would be willing to provide investment assistance and legal advice and that she had many contacts in government. At that time, she also recommended Ms Li as a lawyer who could assist him.
In May 2012, Mr Wang met Ms Li in Zhengzhou. Ms Li's business card indicated that she was a partner in Tongshang, a Chinese law firm. Ms Li told Mr Wang that she had been a lawyer in Australia, that she was "well versed in the laws of Australia and China" and that she could assist him to maximise returns on investments if he decided to do business in Australia.
In August 2012, Mr Wang, Ms Wang and Ms Li discussed going into business together. At the time, Mr Wang understood that Ms Wang was employed by an Indonesian company.
In early February 2013, Ms Wang invited Mr Wang to come to Sydney to discuss working together and investing in Australia. He met with Ms Wang and Ms Li at "The Canopy" café in Liverpool Street, Sydney on 25 February 2013. During the meeting, Ms Wang and Ms Li presented to Mr Wang on how he could conduct business with them in Australia. The presentation lasted for approximately one hour.
During the presentation, Ms Wang and/or Ms Li said to Mr Wang that: 1. they would form a company in Sydney for the purposes of making investments in Australia; 2. each of them would be a director of the company and Ms Wang would be the company secretary; 3. Mr Wang would hold 90% of the share capital in the company and each of Ms Wang and Ms Li would hold 5%; 4. each of them would receive a third of the net profits of the business; 5. none of them would be paid any fees or salary. They would only seek reimbursement for expenses reasonably incurred in the course of business for the company; 6. Ms Wang and Ms Li would be responsible for the day to day management of the company and Ms Wang would be responsible for regular reporting to Mr Wang; and 7. Mr Wang would be responsible for raising funds for the company and would participate in the company's management as required.
After the presentation, Mr Wang told Ms Wang and Ms Li that he agreed with their explanation of how the joint venture would work. He also told them that he agreed to their joint venture proposal and that he would arrange for Henan to obtain the funds for the company through loans from China. He asked Ms Wang and Ms Li to start preparing the documents to incorporate the company according to their proposal.

[7]

The establishment of JN Investments

On 26 February 2013, Mr Wang, Ms Wang and Ms Li attended ASIC's registry and lodged the forms to incorporate JN Investments (then known as Zheng Zhoug Jin Niu Industrial (Group) Australia Pty Ltd). Mr Wang, Ms Wang and Ms Li were recorded as directors and Ms Wang as company secretary. JN Investments' share capital was recorded as AUD$6 million, with Mr Wang holding 5,400,000 ordinary shares and Ms Wang and Ms Li each holding 300,000.
Sometime between 26 February and 17 June 2013, Mr Wang had a conversation with Ms Li and Ms Wang during which they told him that $6 million share capital was not necessary and that $600,000 was sufficient. During that period, they also discussed fund raising progress in China, the foreign exchange permit application to the Chinese government and a plan to research a blueberry farm project in Australia.
On 17 June 2013, Mr Wang arranged the transfer of $449,999 to bank accounts nominated by Ms Wang and Ms Li to provide equity capital for JN Investments. The amount transferred was by way of eight deposits of $50,000 and one deposit of $49,999. At around this time, Ms Li and Ms Wang told Mr Wang not to transfer any more money, that Ms Li would contribute the remaining $150,000 and that she would get that amount back from JN Investments.
In mid to late June 2013, an account in the name of JN Investments was established with the China Construction Bank Corporation Limited (CCB) in Sydney (account initially ending in 3297 and then ending in 0050) (CCB Account). Between 18 June and 26 June 2013, $600,000 was deposited into the CCB Account made up of two deposits of $150,000 from Ms Li, one deposit of $150,036 from Ms Wang, and three deposit amounts of $49,988 from others.
On 24 June 2013, JN Investments' share capital and allocations were corrected at ASIC to provide for share capital of $600,000 and 600,000 ordinary shares on issue of $1 each, with 540,000 held by Mr Wang and 30,000 each held by Ms Wang and Ms Li.

[8]

Retainer of Winner Partnership and preparation of financial statements

In around September 2013, Ms Wang retained Winner Partnership to provide accounting, tax and financial advice to JN Investments. That retainer was later expanded to include JN Property, the JN Property Trust and JN Agribusiness.
During the course of Winner Partnership's retainer, Ms Wahhab prepared financial statements and tax returns for JN Investments, JN Property, the JN Property Trust and JN Agribusiness in relation to the 2013 to 2016 financial years based on instructions from Ms Wang and Ms Li.
Relevantly, those instructions included that regular cash payments that Ms Wang and Ms Li received, usually on a monthly basis, should be recorded in the financial statements as loans they owed to JN Investments and that certain initial $20,000 payments to each of them should be recorded as consulting fees. Ms Wahhab's evidence is that Ms Wang and Ms Li also instructed her that they were going to bring in their own money to invest in JN Investments.
During the course of her retainer, Ms Wahhab also recorded cash payments made from JN Investments and JN Agribusiness to Ms Wang and Ms Li as expense reimbursements. She did so based on information contained in "reimbursement" spreadsheets she received from Ms Wang each fortnight or month. The spreadsheets itemised amounts which Ms Wang and Ms Li claimed as business expenses. Copies of the reimbursement spreadsheets are in evidence, as are some of the underlying receipts.
On 17 December 2013, Mr Wang's 540,000 shares in JN Investments were transferred to Henan. That change was made by Winner Partnership on instructions from Ms Wang without Mr Wang's knowledge or consent. It is not clear on the evidence why that change was made.
On 18 December 2013, an amount of $120,000 was recorded as a "share allocation" against each of Ms Wang and Ms Li's loan accounts with JN Investments. The effect of these share allocations was to record a reduction in the amount of the loans owing by Ms Wang and Ms Li to JN Investments by $120,000. The allocations were made by Ms Wahhab based on instructions from Ms Wang that she and Ms Li had each initially transferred $150,000 to JN investments by way of share capital.

[11]

Acquisition of the Blueberry Farm

In December 2013, at a meeting in Sydney, Ms Wang showed Mr Wang a business report about a blueberry farm and suggested it as a good investment. Shortly afterwards, Mr Wang visited the farm, which was located in Fairy Hill, NSW.
Due to a delay in raising funds in China, Ms Wang proposed to Mr Wang that the purchase of the Blueberry Farm be funded by way of a loan to Ms Wang and Ms Li for $1 million to be secured by a mortgage over the Hyde Apartment. Mr Wang agreed to the purchase of the farm being funded by a loan but told Ms Wang that the loan had to be paid in full immediately after he transferred sufficient funds to JN Investments.
On 8 April 2014, Ms Wang transferred $1,099,865.50 into JN Investment's CCB Account, which were from funds that Ms Wang and Ms Li had borrowed from Westpac. Their loan from Westpac was secured by a mortgage which was registered on the title to the Hyde Apartment (Westpac mortgage). JN Investments' financial ledger records that an amount of $549,932.75 was credited to each of Ms Wang and Ms Li's loan accounts on 8 April 2014.
On 21 May 2014, JN Investments became the registered proprietor of the land on which the Blueberry Farm is situated (being Lot 5 in Deposited Plan 817939) (Blueberry Farm) for $750,000.
On 23 June 2014, Mr Wang arranged for Henan to transfer the amount of $1,054,753 to JN Investments to enable Ms Wang and Ms Li to discharge the Westpac mortgage, in accordance with the discussions referred to in [56].
On 26 June 2014, $1 million was transferred from JN Investments' CCB account to a Westpac account jointly held by Ms Wang and Ms Li with account number ending 9528 (Joint Account). Ms Wang and Ms Li did not use the $1 million to immediately discharge the Westpac mortgage. Rather, the evidence demonstrates that they instructed Ms Wahhab to record that JN Investments had made "investment" loans of $500,000 to each of them. They then appeared to have used the $1 million for other purposes, including to make loan payments in reduction of their loans from JN Investments and JN Agribusiness.
In particular, the evidence discloses that: 1. following the transfer on 26 June 2014 of the $1 million, Ms Wang and Ms Li's Joint Account had a balance of $1,040,538.70; 2. on 1 September 2014, the balance of the Joint Account, being a sum of $1,032,825.65, was withdrawn, and deposited: 1. as to $549,552.22 into a Westpac loan account jointly held by Ms Wang and Ms Li with account number ending 4026 (the 4026 Account), which had previously been overdrawn in the amount of $549,522.22; and 2. as to $483,273.43 into a Westpac loan account jointly held by Ms Wang and Ms Li with account number ending 5627 (the 5627 Account), which had previously been overdrawn in the amount of $549,552.34; 1. on 14 October 2014, the sum of $600,000 was withdrawn from the 4026 Account and on 15 October 2014, the same amount was deposited into JN Investments' CCB Account. This is recorded in JN Investments' financial ledger as loan payments made by Ms Wang and Ms Li to JN Investments; 2. on 13 February 2015, an amount of $100,000 was withdrawn from the 5627 Account and applied towards an unknown purpose; 3. on 16 February 2015, a further $100,000 was withdrawn from the 5627 Account and deposited into an account held by JN Agribusiness at ANZ. This amount is recorded as loan payments made by Ms Wang and Ms Li to JN Agribusiness in JN Agribusiness' financial ledgers; 4. on 26 October 2015, $220,386.33 was withdrawn from JN Investments' CCB Account and deposited into the 5627 Account. This is recorded in JN Investments' financial ledger as loans of $110,193.17 made to Ms Wang and Ms Li by JN Investments; 5. on 11 December 2015, $300,000 was withdrawn from JN Investments' CCB Account and deposited into the 4026 Account. This is recorded in JN Investments' financial ledger as loans of $150,000 made to Ms Wang and Ms Li by JN Investments; 6. on 15 February 2016, $250,000 was withdrawn from the 5627 Account and, on 16 February 2016, the same amount deposited into JN Investments' CCB Account. This appears in the financial ledger as loan payments made by Ms Wang and Ms Li to JN Investments; and 7. on 21 June 2016, $150,000 was withdrawn from the 4026 Account, and deposited in JN Agribusiness' ANZ account. This is recorded as another loan payment made by Ms Wang and Ms Li to JN Agribusiness in the financial ledger.

[13]

Establishment of JN Agribusiness, JN Property and the JN Property Trust

On 23 September 2014, Ms Wang and Ms Li caused NSW Land and NSW Asset Holdings Pty Ltd (NSW Asset Holdings) to be incorporated. Ms Li was registered as the sole director and shareholder of NSW Land. Ms Wang was registered as the sole director and shareholder of NSW Asset Holdings.
On the same day, Ms Wang and Ms Li caused JN Property to be incorporated and the JN Property Trust to be settled, with JN Property appointed as the corporate trustee.
JN Property was registered as having 100 dividend shares and 100 ordinary shares on issue at $1 each. 60% of the shares were recorded as being held by Mr Wang and 20% by each of NSW Land and NSW Asset Holdings. Mr Wang, Ms Wang and Ms Li were registered as the directors.
On 23 September 2014, Ms Wang and Ms Li executed an Application for Units in the JN Property Trust and the JN Property Trust Deed. The documents provided for 60 units in the JN Property Trust to be issued to Mr Wang, 20 units to NSW Land as trustee for the NSW Land Trust, and 20 units to NSW Asset Holdings as trustee for the NSW Asset Holdings Trust.
Mr Wang did not execute any instrument or participate in any resolution to give effect to the incorporation of JN Property, the establishment of the JN Property Trust or the allocation of shares and units in those entities.
On 29 September 2014, Ms Wang and Ms Li caused JN Agribusiness to be incorporated as the management company for the Blueberry Farm business. Mr Wang, Ms Wang and Ms Li were registered as directors. JN Agribusiness was registered as having 100 dividend and 100 ordinary shares on issue at $1 each, with Mr Wang holding 40% of the shares and Ms Wang and Ms Li each holding 30%.
There is evidence that Mr Wang signed a page from a Share Application Journal recording an application by him for shares in JN Agribusiness and a document recording his consent to act as a director, both of which are dated 29 September 2014.
Mr Wang's evidence is that he did, on occasion, sign documents in English which he did not ask to be translated by Ms Wang, including at a meeting on 30 September 2014 at the offices of Baron & Associates (the then solicitors for JN Investments), and that he was not aware of JN Agribusiness until late in 2017. Based on his evidence, I consider it open to find that, when Mr Wang signed the documents referred to in [69], he did so not knowing that he was consenting to be a director of JN Agribusiness or applying for shares which provided him with 40% of the equity.

[20]

Events leading to these proceedings

By the second half of 2017, Mr Wang began to have concerns about the lack of information provided to him about JN Investments. Despite repeated requests to do so, Ms Wang and Ms Li had failed to provide Mr Wang with copies of any of the books, records and bank statements relating to JN Investments. Nor had they provided him with contact details for the accountants they had retained to act on behalf of JN Investments or updated him on progress made in trading in respect of the Blueberry Farm or on the Lane Cove Property development.
In late November 2017, on a trip to Sydney, Mr Wang attended a CCB branch with Ms Wang and Ms Li. Mr Wang observed that the balance of the funds held in JN Investments' accounts was in the "thousands". Having regard to the amount of the funds advanced by Henan and the sale proceeds from the Hyde Apartment, Mr Wang expected to see a balance of several million dollars. He was later provided with bank statements for the CCB Account and another account.
Mr Wang asked Ms Wang what had happened to the funds and was told that "it should be in one of the bank accounts". After attending a nearby ANZ branch and identifying that the "missing money" was not in any ANZ account, Mr Wang arranged for the balance of the ANZ accounts to be transferred to JN Investments' CCB Account and instructed CCB to freeze all funds pending further instructions.
In early December 2017, Mr Wang received from the Winner Partnership copies of the financial records relating to JN Investments, JN Agribusiness and the JN Property Trust. On a review of those records, Mr Wang became aware of the existence of JN Agribusiness, JN Property, the JN Property Trust and his respective holdings in those entities. He also became aware that Ms Wang and Ms Li had received various payments from JN Investments and JN Agribusiness which were recorded in the financial statements as consulting fees, reimbursement for business expenses and loans or salary.
On 14 December 2017, Mr Wang and Ms Wang met in Sydney and discussed the transfer of funds from JN Investments to Ms Wang and Ms Li. Ms Wang asserted that some of the money was "salary". Mr Wang disputed their entitlement to salary noting that they had agreed only to share net profits. Following that meeting, Mr Wang instructed lawyers and an accountant to assist him to understand what had happened to the funds and transactions.
On 7 February 2018, Ms Wang resigned as director and company secretary from JN Agribusiness and JN Investments. NSW Land had previously been deregistered on 20 February 2017.
As noted earlier, the proceedings were commenced on 26 June 2018.
On 3 December 2018, JN Property's 35/100 interest in the Lane Cove Property was sold to BMV Developments Pty Limited for $3,525,072.00.

[21]

The claims and issues for determination

The Further Amended Commercial List Statement (FACLS), filed on 25 October 2019, advances a range of claims against Ms Wang and Ms Li. The Third Amended Summons, filed on 29 November 2019, sets out the final relief sought. The nature of some of the trust claims and pecuniary relief was also the subject of supplementary materials received on 26 and 29 November 2019.
As finally put, the plaintiffs' claims and relief sought against Ms Wang and Ms Li can be summarised as follows.
First, they claim that Ms Wang and Ms Li have retained the net sale proceeds of the Hyde Apartment in breach of trust in favour of JN Investments and that they did so in furtherance of a dishonest and fraudulent design or having knowingly procured the other to act in breach of trust. They claim that Ms Wang and Ms Li are liable to account and that JN Investments is entitled to declaratory relief and equitable compensation in respect of the net sale proceeds: FACLS at [31D], [31DE], [31E], [37], [37A]; Third Amended Summons at [11], [12], [13] and [24].
Second, they claim that the 35/100 interest in the Lane Cove Property was held by JN Property on resulting or constructive trust in favour of JN Investments, or alternatively, in favour of Henan following breach by JN Investments of a Quistclose trust over the funds advanced to it by Henan. They claim that the proceeds from the sale of the interest in the Lane Cove Property are also held by JN Property on trust and that JN Investments, or alternatively, Henan, is entitled to declaratory relief to that effect: FACLS at [31F], [31G], [33(e)], [38]; Third Amended Summons at [24A].
Third, they claim that Ms Wang and/or Ms Li caused cash payments to be made to themselves from JN Investments' funds in breach of their statutory duties and fiduciary obligations as directors of JN Investments and in breach of the JV Agreement. They also claim that, in making the cash payments to Ms Wang and Ms Li, JN Investments acted in breach of a Quistclose trust over the funds it held in favour of Henan: FACLS [30(c)], [31], [32] and [33].
The plaintiffs allege that Ms Wang and Ms Li knowingly assisted or induced each other in their breaches of fiduciary obligations to JN investments in furtherance of a dishonest and fraudulent design to appropriate funds from JN Investments for their own benefit. They also allege that Ms Wang and Ms Li knowingly assisted JN Investments in furtherance of a dishonest and fraudulent design to appropriate funds towards purposes other than the joint venture: FACLS [34] and [34A]. They claim that Ms Wang and/or Ms Li are liable to account as constructive trustees and to compensate JN Investments and Henan, or alternatively Mr Wang, for the unauthorised payments and seek declaratory relief and equitable compensation: FACLS [36]; Third Amended Summons [7], [10], [12], [13] and [24].
Fourth, they claim that the $1 million which was provided to Ms Wang and Ms Li for the purposes of discharging the Westpac mortgage was held on resulting trust in favour of JN Investments and that they used those funds for other purposes in breach of that trust: FACLS [31BC] - [31BE].
Fifth, they claim that the creation and issue of shares and units in JN Agribusiness, JN Property and the JN Property Trust by Ms Wang and Ms Li was in breach of the JV Agreement and in breach of fiduciary duties they owed to Mr Wang as joint venturers. They also claim that the breaches of fiduciary duty were in furtherance of a dishonest and fraudulent design and that NSW Land and NSW Asset Holdings assisted with those breaches with knowledge of the design: FACLS at [24] to [27]. Mr Wang claims that Ms Wang, Ms Li, NSW Land and NSW Asset Holdings' interests in JN Agribusiness, JN Property and the JN Property Trust, to the extent they hold more than 5% of the shares and units, are held on constructive trust. Mr Wang seeks declaratory relief and orders that those interests be transferred to him or, alternatively, damages: FACLS [28], [29], [36(e)] and [36(f)]; Third Amended Summons [7], [15] to [23].
Sixth, they claim that Ms Wang and Ms Li used JN Investments' funds to purchase the 35/100 interest in the Lane Cove Property by JN Property (as trustee) and to enable JN Agribusiness to occupy the Blueberry Farm on a rent free basis in breach of Ms Wang and Ms Li's fiduciary and director's duties owed to JN Investments and in breach of the JV Agreement. They also claim that the use of the funds for those purposes was a breach by JN Investments of the Quistclose trust in favour of Henan: FACLS [31F] to [31H], [32A], [33]. The plaintiffs claim that Ms Wang and Ms Li knowingly assisted each other in their breaches of fiduciary duty and knowingly assisted JN Investments in its breach of trust and are liable to account as constructive trustees and to compensate JN Investments, or alternatively Henan, or alternatively Mr Wang, for gains made: FACLS [34], [34A].
As is evident, the claims advanced by the plaintiffs are based on a range of legal and equitable relationships that they allege arose out of the discussions between the parties on 25 February 2013 and their subsequent dealings. Before dealing with the particular claims, it is necessary to first consider the nature of the relationships and whether they give rise to the particular obligations asserted.
The key relationships and obligations asserted are that: Ms Wang and Ms Li were directors of JN Investments and owed it statutory and fiduciary duties; Ms Wang and Ms Li were parties to a legally binding agreement and joint venture with Mr Wang which gave rise to fiduciary obligations between them; and JN Investments held funds advanced to it pursuant to a Quistclose trust in favour of Henan.
As directors of JN Investments, there is no doubt that Ms Wang and Ms Li owed duties to JN Investments to exercise their powers and discharge their duties in good faith in the best interests of JN Investments and for a proper purpose, and to not improperly use their position to gain an advantage for themselves or cause detriment to JN Investments: ss 181 and 182 of the Corporations Act 2001 (Cth) (Corporations Act).
Ms Wang and Ms Li also owed fiduciary duties to JN Investments to not promote their personal interests by making or pursuing a gain in circumstances in which there was a conflict, or a possibility of a conflict between their interests and those of the company: Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 at 103 per Mason J (Hospital Products); ASIC v Adler [2002] NSWSC 171 at [735] per Santow J.
Before dealing with each of the six claims, the two issues that arise for consideration are: 1. whether there was a legally binding agreement entered into by Mr Wang, Ms Wang and Ms Li on 25 February 2013 and/or whether there was a fiduciary relationship between the parties arising from the joint venture; and 2. whether the funds advanced to JN Investments were held on and subject to a Quistclose trust in favour of Henan.

[22]

Was there a binding joint venture agreement and did it give rise to fiduciary obligations?

The plaintiffs claim that, on 25 February 2013, Mr Wang, Ms Wang and Ms Li entered into a joint venture (referred to as the JV Agreement or Joint Venture), the terms of which were that: 1. they would incorporate a joint venture company to invest in Australian assets; 2. Mr Wang or his nominee would be issued 90% of the equity of the corporate entity through which the Joint Venture might invest in Australian assets; 3. Ms Wang and Ms Li or their respective nominees would each be issued 5% of the equity in the joint venture company; 4. Mr Wang or his nominee would advance funds to the joint venture company to provide working capital for the Joint Venture; 5. Ms Wang and Ms Li would manage the affairs of the Joint Venture but did not have to provide any funding; 6. each of Mr Wang, Ms Wang and Ms Li would be directors of the joint venture company; 7. none of Mr Wang, Ms Wang and Ms Li would receive any remuneration from the joint venture company; and 8. each of Mr Wang, Mr Wang and Ms Li would receive one third of any profits earned by conducting the business of the Joint Venture.
The agreement is alleged to have been made orally and in Mandarin.
The plaintiffs also allege that, by reason of the terms of the JV Agreement that provided for Mr Wang to advance funds and for Ms Wang and Ms Li to manage the affairs of the Joint Venture and not provide funding, Ms Wang and Ms Li assumed responsibility to act in Mr Wang's best interests, and thereby owed him fiduciary obligations in relation to the affairs of the Joint Venture.
I am satisfied that Mr Wang, Ms Wang and Ms Li entered into a binding agreement on 25 February 2013 on the terms alleged by the plaintiffs. The terms alleged reflect the terms of the joint venture proposal proffered by Ms Wang and Ms Li. That proposal was accepted by Mr Wang on that day.
While not in writing, the terms of the joint venture proposal which were proposed by Ms Wang and Ms Li and accepted by Mr Wang were sufficiently certain for a binding agreement of the nature asserted by the plaintiffs. Although somewhat high level and informal, they provided for the key rights and obligations of the parties in respect of the business arrangement that they had agreed to pursue. Those rights and obligations continued to govern the business arrangement after the agreement was entered into on 25 February 2013.
To the extent there is any dispute that Ms Wang and Ms Li entered into a binding agreement, the subsequent conduct of the parties may be considered in determining the existence of the asserted contract: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [25], [71]-[81] per Heydon JA.
The subsequent conduct of the parties is also consistent with the formation of a binding contract in the terms alleged and agreed. On 26 February 2013, Ms Wang, Ms Li and Mr Wang incorporated JN Investments, appointed themselves as directors and took shareholdings in proportions consistent with what had been agreed. Mr Wang provided funding for investments that were made in Australian assets and Ms Wang and Ms Li took on the management of the business.
Considered objectively, the language the parties employed when they met on 25 February 2013, the nature of the commercial arrangement and their subsequent conduct all point to the parties having mutually assented to a sufficiently clear regime which was intended to be binding as the essential elements of a contract: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [74]-[80]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [369] per Allsop J (as he then was).
As to whether there was a joint venture, in United Dominions Corporation Ltd v Brian Pty Limited (1985) 157 CLR 1; [1985] HCA 49 (United Dominions), Mason, Brennan and Deane JJ considered what was meant by that term, at 10: "The term 'joint venture' is not a technical one with a settled common law meaning. As a matter of ordinary language, it connotes an association of persons for the purposes of a particular trading, commercial, mining or other financial undertaking or endeavour with a view to mutual profit, with each participant usually (but not necessarily) contributing money, property or skill. Such a joint venture (or, under Scots' law, 'adventure') will often be a partnership. The term is, however, apposite to refer to a joint undertaking or activity carried out through a medium other than a partnership: such as a company, a trust, an agency or joint ownership. The borderline between what can properly be described as a 'joint venture' and what should more properly be seen as no more than a simple contractual relationship may on occasion be blurred."
In this case, Mr Wang, Ms Wang and Ms Li associated together for a common purpose of carrying out commercial activities, namely, the investment in assets in Australia, for mutual commercial gain in the form of the profits which were to be shared equally. They each contributed to the joint undertaking, although not equally. Mr Wang contributed all the finances, whereas Ms Wang and Ms Li contributed their skills and experience in legal and business matters.
The medium through which they agreed to carry out the joint activity was through an incorporated entity which was to be held by way of equity in the agreed proportions of 90/5/5, with Ms Wang and Ms Li's lesser shareholdings reflecting their non-financial contributions. As directors of the incorporated entity, they were legally entitled to exercise joint control, although it was agreed that Ms Wang and Ms Li would be responsible for managing the affairs of the joint venture business and exercise practical control, which they did.
Accordingly, I am satisfied that the relationship between Mr Wang, Ms Wang and Ms Li may be described as joint venturers and that they were parties to a joint venture agreement.
Whether the relationship between Ms Wang, Ms Li and Mr Wang as joint venturers was fiduciary depends upon the form of their particular joint venture and upon the content of the obligations they undertook: United Dominions at 11.
The JV Agreement provided for the incorporation of a joint venture vehicle, with all the participants in the joint venture becoming directors and shareholders.
The plaintiffs accept that, as a general proposition, "equity does not impose fiduciary duties between the parties to a deliberate commercial decision to adopt a corporate structure in which they would owe duties but to the corporation and as directors": Friend v Brooker (2009) 239 CLR 129; [2009] HCA 21 at 160. But they submit that the form and content of the JV Agreement, the trust and confidence that Mr Wang reposed in Ms Wang and Ms Li and Mr Wang's vulnerability and reliance on them, support the conclusion that fiduciary obligations to Mr Wang arose, notwithstanding the corporate structure adopted. In this case, I am persuaded by the plaintiffs' submission.
In my view, the terms of the JV Agreement and other facts provide the foundation for a fiduciary relationship between Ms Wang, Ms Li and Mr Wang that is independent of and co-exists with Ms Wang and Ms Li's fiduciary duties owed to JN Investments that arise from the incorporated legal structure adopted by the parties: Fast Financial Solutions Pty Ltd v Crawford and Battye [2012] NSWSC 40 at [114] (Fast Financial).
The authorities recognise that contractual and fiduciary relationships may co-exist and fiduciary obligations may be owed as between joint venture parties, both before and after a joint venture agreement is entered into: Hospital Products at 97. In this case, the terms of the JV Agreement are not inconsistent with the existence of a fiduciary relationship as they required Ms Wang and Ms Li to manage the joint venture business and the funds which were to be provided by Mr Wang. The terms also continued to govern the manner in which the corporate vehicle and joint venture business was to operate and be managed by Ms Wang and Ms Li.
A critical feature of a fiduciary relationship is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another when exercising a power or discretion which will affect the interests of that other person in a legal or practical sense: Hospital Products at 96-97.
As Dawson J said in United Dominions at 16: "Although the relationship between participants in a joint venture which is not a partnership will be governed by the particular contract rather than extrinsic principles of law, the relationship may nevertheless be a fiduciary one if the necessary confidence is reposed by the participants in one another".
As Barrett J (as his Honour then was) stated in Fast Financial at [118], after reviewing the authorities: "The High Court cases show that three factors will be crucial to the resolution of the question whether a fiduciary relationship or a fiduciary duty exists between parties associated together under some recognised legal structure (such as a contract or company shareholdings) not of its nature productive of fiduciary consequences: the nature and incidents of that recognised legal structure; whether there exists a special kind of vulnerability or reliance; and whether there is a strong degree of trust and custodianship."
The evidence establishes that there existed in Mr Wang a special kind of vulnerability and reliance on Ms Wang and Ms Li. He also placed a strong degree of trust and custodianship in them. That vulnerability, reliance and trust arose from circumstances over and above the corporate structure the parties put in place and needs protection by the recognition of a fiduciary relationship.
At the time he entered into the JV Agreement, Mr Wang had explored but not undertaken any investment opportunities in Australia. He was not familiar with Australian commercial practices and had no knowledge of Australian laws and regulations, particularly in relation to business investment. Mr Wang believed that Ms Wang and Ms Li were experienced in dealing with those matters based on statements they made to him prior to entering into the JV Agreement and throughout their relationship. He trusted them to put together corporate structures, manage the joint venture company and business and deal with the funds which he was to provide in the manner agreed and provided for by the terms of the JV Agreement. Thus, the very foundation of the relationship between the parties was based on Mr Wang placing significant trust and confidence in Ms Wang and Ms Li.
That relationship of trust and confidence continued over the period in which Mr Wang did business with Ms Wang and Ms Li while he remained in China. He relied on them when they proposed purchasing the Hyde Apartment in their names. He trusted them to manage the operations of the Blueberry Farm and to negotiate and complete the transactions relating to the purchase of the 35/100 interest in the Lane Cove Property. Ms Wang and Ms Li had practical custodianship over the significant funds Mr Wang arranged to be remitted to JN Investments.
Mr Wang's lack of English also meant that he was heavily dependent on Ms Wang and Ms Li. He relied on them to explain documents which they asked him to sign, including at times when he was unable to independently verify whether the documents were as they had explained to him. Ms Wang and Ms Li encouraged Mr Wang to trust them when he asked for documents to be translated. They also asked him to sign documents which were not explained or were not in his interests, such as the share application and director's consent form relating to JN Agribusiness.
Mr Wang's physical presence in China is also a significant factor. It put him in a position akin to "a remote principal lacking the capacity to observe what was happening half the world away": John Alexander's Club Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1; [2010] HCA 19 at [93], referring to Hospital Products.
The evidence also demonstrates that Ms Wang and Ms Li refused to provide Mr Wang with company information and documents when requested and did not include him in meetings of directors or shareholders. They also excluded him from relevant decision making, such as when they created and issued interests in JN Agribusiness, JN Property and the JN Property Trust and purchased the Lane Cove Property interest in the name of JN Property.
The practical reality was that Ms Wang and Ms Li had control of the joint venture business and all activities undertaken on behalf of Mr Wang, including in respect of the funds which he caused to be advanced by Henan. Ms Wang and Ms Li were in a position of significant ascendancy and authority over Mr Wang and he was, correspondingly, in a position of significant vulnerability and reliance.
As the plaintiffs submit, the terms of the JV Agreement and the facts demonstrate that Ms Wang and Ms Li agreed to act for and in the interests of Mr Wang and had the power or discretion to affect his interests in a legal and practical sense. The nature of the relationship, being one based on trust and confidence reposed in them by Mr Wang, gave Ms Wang and Ms Li a special opportunity to exercise their power to his detriment. He was, accordingly, vulnerable to abuse by them of their position: Hospital Products at 97.
This was an arrangement which involved three parties to a joint endeavour to invest in assets in Australia for mutual profit where the party who provided the funds was overseas and lacked control, and the other two undertook to act for the benefit of all in managing the joint venture business. Notwithstanding the joint venture vehicle was a corporate entity, based on the terms of the JV Agreement and the factual circumstances of this case, it seems to me open to find that the corporate structure adopted was not intended to cover the field in terms of the rights and responsibilities of the parties, and that Ms Wang and Ms Li owed fiduciary duties to Mr Wang, in addition to the fiduciary duties they owed to JN Investments as directors: Hoh v Ying Mui Pty Ltd [2019] VSCA 203 at [208] to [210] and [217], Fast Financial at [130].
As fiduciaries, Ms Wang and Ms Li were, therefore, obliged not to promote their own personal interests by making or pursuing a gain in relation to the activities and affairs of the joint venture business in circumstances where there was a conflict or a real or substantial possibility of a conflict between their interests and those of Mr Wang without his informed consent: Hospital Products at 103 per Mason J; Pilmer v Duke Group Ltd (in liq) (2001) 207 CLR 165; [2001] HCA 31 at [78].

[23]

Were the funds advanced by Henan subject to a Quistclose trust?

The plaintiffs' claim that the funds advanced by Henan to JN Investments were held on trust in favour of Henan.
While the alleged trust is pleaded to be an express, or in the alternative, a resulting trust (FACLS 30), at the hearing, Senior Counsel contended that the funds were held on an express trust, in the nature of a Quistclose trust, in favour of Henan: T108:2-19.
The plaintiffs contend that a Quistclose trust arose as the funds were advanced to JN Investments for the purpose of the joint venture and were to be used in a manner consistent with the agreement entered into by the parties on 25 February 2013, which included that Mr Wang would hold 90% of the equity in the corporate entity through which investments would be made in Australian assets, and Ms Wang and Ms Li would each hold 5%. Thus, they allege that JN Investments held the advanced funds on trust, subject to a power or mandate to deploy them for the purposes of the joint venture, being a joint venture in which Mr Wang held 90% of the equity.
In support of that contention, the plaintiffs' written submissions rely, in particular, on the statement by Lord Millett in Twinsectra Ltd v Yardley [2002] 2 AC 164 at [100]: "The lender pays the money to the borrower by way of loan, but he does not part with the entire beneficial interest in the money, and in so far as he does not it is held on a resulting trust for the lender from the outset.… when the purpose fails, the money is returnable to the lender, not under some new trust in his favour which only comes into being on the failure of the purpose, but because the resulting trust in his favour is no longer subject to any power on the part of the borrower to make use of the money. Whether the borrower is obliged to apply the money for the stated purpose or merely at liberty to do so, and whether the lender can countermand the borrower's mandate while it is still capable of being carried out, must depend on the circumstances of the particular case."
During oral submissions, reference was also made to George v Webb [2011] NSWSC 1608 and Rambaldi v Commissioner of Taxation (2017) 107 ATR 1; [2017] FCAFC 217 to demonstrate that the principles in respect of Quistclose trusts are well established and have been applied by Australian courts.
The principle established by Barclays Bank Limited v Quistclose Investments Limited [1970] AC 567 (Barclays v Quistclose) is that where money has been loaned to another on terms that it will be applied for a specific purpose, so that there can be said that there is a trust for that purpose, and that purpose has not been fulfilled or becomes impossible, then the money loaned will be held by the latter on trust for the former: See also JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) at [12-06]. The principle recognises that where the relationship between parties is that of debtor and creditor, there may also be obligations of trust in relation to monies advanced.
As Lord Wilberforce stated in Barclays v Quistclose at 581-582: "There is surely no difficulty in recognising the co-existence in one transaction of legal and equitable rights and remedies: when the money is advanced, the lender acquires an equitable right to see that it is applied for the primary designated purpose: … when the purpose has been carried out (i.e. the debt paid) the lender has his remedy against the borrower in debt: if the primary purpose cannot be carried out, the question arises if a secondary purpose (i.e. repayment to the lender) has been agreed, expressly or by implication: if it has, the remedies of equity may be invoked to give effect to it, if it has not (and the money is intended to fall within the general fund of the debtor's assets) then there is the appropriate remedy for recovery of a loan."
In Australasian Conference Association Limited v Mainline Constructions Pty Limited (in liq) (1978) 141 CLR 335; [1978] HCA 45 (Mainline), Gibbs ACJ (Jacobs and Murphy JJ agreeing) said, at 353, that the decision in Barclays v Quistclose was authority for the proposition that: "….where money is advanced by A to B, with a mutual intention that it should not become part of the assets of B, but should be used exclusively for a specific purpose, there will be implied (at least in the absence of an indication of a contrary intention) a stipulation that if the purpose fails the money will be repaid, and the arrangement will give rise to a relationship of a fiduciary character, or trust."
In Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia (1991) 30 FCR 491 (Re Australian Elizabethan Theatre Trust), Gummow J (as he then was) considered Barclays v Quistclose and concluded that the trust that arose in that case was an express trust with two limbs, rather than an express trust in favour of the intended payee (the beneficiary under the primary trust) and a resulting trust in favour of the original payer arising by reason of the incomplete disposition. His Honour noted that Quistclose had a beneficial interest (although not at all relevant times an exclusive beneficial interest) in the money in question. Thus, it was not merely in the position of a lender with a benefit of a promise to repay but rather in a position where it had a beneficial interest in the fund, whether by way of resulting or by express trust: at 500-501.
Gummow J also considered that the references to purpose by Gibbs ACJ in Mainline and by Lord Wilberforce in Barclays v Quistclose should not be regarded as characterising an express trust which did not have to satisfy the ordinary requirements for any private (as distinct from public) trust: Re Australian Elizabethan Theatre Trust at 502. As Ward J (as her Honour then was) noted in George v Webb [2011] NSWSC 1608 at [202], those requirements include the three certainties of intention, subject matter and objects.
Accordingly, the existence of any Quistclose trust will be answered by reference to whether there was an intention on the part of the parties to create a trust in respect of the funds advanced by Henan or JN Investments, and, if so on what terms.
As stated by Young, Croft and Smith, On Equity (2009, LawBook Co) at [6.1020], which was cited with approval in Raulfs v Fishy Bite Pty Ltd [2012] NSWCA 135 at [49] (Raulfs v Fishy Bite): "Cases in this area will often depend on a close analysis of the facts and, in particular, whether the person who provided the money annexed a trust or equitable obligation that it was only to be used for the nominated purpose. The mutual intention of the parties and 'the essence' of their bargain will be important."
The evidence establishes that, on 25 February 2013, Mr Wang, Ms Wang and Ms Li agreed that the funds to be provided by Mr Wang would be used for the purpose of the joint venture business which was, in essence, to make investments in Australia and that Mr Wang would hold 90% of the equity in the joint venture vehicle. The evidence also establishes that Mr Wang caused Henan to contribute $449,999 by way of share capital and advance $10,785,766.83 by way of loans to JN Investments for the purposes of the joint venture business. It may be accepted that Henan, as the party advancing the funds, had such a purpose and that the purpose was also known to JN Investments.
In order to establish the existence of a Quistclose trust, it is not sufficient to show that the parties intended that the funds contributed and advanced by Henan by way of loans were to be used only for the purpose of the joint venture business. A trust does not necessarily arise because money is advanced or lent for a particular purpose: Twinsectra Ltd v Yardley [2002] 2 AC 164 at [73].
It remains necessary to consider whether an intention to create a trust can be discerned from the evidence of the objective indicators; by looking at the language used, the nature of the transaction and the relevant circumstances attending the relationship between them: Re Australian Elizabethan Theatre Trust at 502 - 503; Raulfs v Fishy Bite at [47] and [51].
Also relevant is whether the parties intended that the monies advanced by Henan would become part of the general assets of JN Investments: Barclays v Quistclose at 580 and 581; Mainline at 353.
The plaintiffs' commercial list statement refers to the "$450,000" in equity capital and the loans funds as having been transferred by Henan for the purposes of the joint venture and the "funds advanced" being held by JN Investments on trust: FACLS at [21], [22], [30].
In so far as the plaintiffs' claim that a Quistclose trust arose in respect of the initial share capital amount of $449,999, it was money that Mr Wang was bound to provide to pay for the allocated shares. Even if the share capital was to be used for the purposes of the joint venture business in accordance with the terms of the JV Agreement, that money was owned by and became part of JN Investments' assets in respect of which neither Mr Wang nor Henan retained a beneficial interest by way of a trust: Re Associated Securities Ltd and the Companies Act [1981] 1 NSWLR 742 at 746; Barclays v Quistclose, at 581; see also Robert Austin and Ian Ramsay, Ford, Austin and Ramsay's Principles of Corporations Law (17th ed, 2018, LexisNexis Butterworths) at 17.020, 17.100 and 17.200.
As to the bulk of the funds advanced by Henan, I am also not persuaded that the plaintiffs have demonstrated that they were held subject to an express trust, in the nature of a Quistclose trust, in favour of Henan.
According to Mr Wang's evidence, the funds advanced by Henan were advanced by way of loans to JN Investments. Those loans represented the payment of funds to JN Investments which Mr Wang had agreed to raise for the joint venture company and which Mr Wang asserts was provided as "working capital" for the joint venture: FACLS [5(d)]. The advancement of those funds was consistent with the agreement reached between the parties on 25 February 2013 that Ms Wang and Ms Li were to manage JN Investments and for Mr Wang, as the silent partner and a director, to fund the company. In other words, the funds advanced by Henan reflected Mr Wang's contribution to the joint venture business.
In my view, as working capital advanced by or on behalf of a director and majority shareholder of JN Investments, those monies are more properly characterised as the provision of funds that Mr Wang had agreed to pay, as contemplated by the arrangement agreed by the parties, to be used by and at the disposal of JN Investments as part of the assets of the company, rather than as funds which were held by JN Investments for a specific purpose on trust for Henan.
Put another way, they were routine loans made on behalf of a joint venture partner, who was also a director, in order to provide working capital to be expended in the course of conducting the business of JN Investments, which was a start-up joint venture investment company that Mr Wang had agreed to fund and which Ms Wang and Ms Li were empowered to manage on a day to day basis.
As a company controlled by the joint venture funding partner and (as events transpired) the majority shareholder, Henan had an interest in providing the funds generally for the benefit of the company. On the evidence, Mr Wang did not expect to be repaid until the joint venture parties decided to realise assets. This is to be contrasted with the position of, say, a third party lender who has mandated that funds be held, used and accounted for a particular purpose and are to be returned if that purpose fails.
A loan to a company is ordinarily understood to be an advance of money coupled with a contract for its repayment, with the company free to apply the money for the purposes of its business, unless there is some evidence to suggest otherwise: Ying v Song [2010] NSWSC 1500 at [32]; Potter v Potter [2003] 3 NZLR 145 at [14]. In my view, the evidence in this case does not suggest otherwise. Rather, the manner in which the loans funds were advanced and were to be used tend against a finding that they were held on trust in favour for Henan and support the view that they were at the disposal of and formed part of the assets of JN Investments.
All the loan funds advanced by Henan were deposited into JN Investments' CCB Account. While there is a challenge to the use to which some of those funds were put, Ms Wang and Ms Li had the authority and discretion to use the funds to pay for a range of legitimate operating expenses, such as the payment of legal and accounting expenses, the running costs associated with the Blueberry Farm, expenses related to trips by Mr Wang to Sydney and travel by Ms Wang and Ms Li in China, as well as to cover the cost of the three investments which were made.
In other words, the funds advanced by Henan were paid into a general business account at the disposal of JN Investments to be used for a range of business related purposes, rather than some special account to be used for one particular purpose (being to make an investment in an asset) and subject to specific directions from Henan or Mr Wang. Save for Ms Wang and Ms Li's misappropriation of funds, the CCB Account would have remained in significant credit and, presumably, continued to be used for the purposes of JN Investments' business until profits were to be taken. According to Mr Wang's evidence, that was to occur when the assets of JN Investments were realised and after payment of "loans".
Other than the discussions between Mr Wang and Ms Wang about the advancement of funds by Henan for the purposes of discharging the Westpac mortgage, there is little evidence that arrangements, directions or instructions were given by Henan (or Mr Wang) as to how and in what manner the moneys advanced by Henan were to be held or applied: Peter Cox Investments Pty Ltd (in liq) v International Air Transport Association [1999] FCA 27 at [49].
The parties did not refer to the funds advanced by Henan being held on trust or needing to be immediately repaid to Henan if, for example, the purpose for which the funds were advanced failed.
The initial discussion on 25 February 2013 was of a general nature, just that Mr Wang would "raise funds for the company", they would not be paid a salary but could be reimbursed for reasonable business related expenses and that Ms Wang and Ms Li would have authority for the day to day management of the company.
There were discussions around the time funds were advanced by Henan to cover the purchase of the Hyde Apartment and the interest in the Lane Cove Property. Relevantly, the funds advanced exceeded the amounts needed to pay for those investments. Those discussions did not involve any direction or instruction as to how the excess funds were to be held or applied, such as the additional funds that had been lent for the Lane Cove Property project and which were later repaid. Nor is there evidence of any direction or instruction given in respect of the just over $1 million in funds that were advanced by Henan on 25 August 2014.
In this case, no express intention to create a trust has been shown. In my view, the evidence is that the parties gave no actual thought to the matter. The implicit basis of the trust is said to arise because the funds were advanced as loans for the purposes of the joint venture, to be used in a manner consistent with the JV Agreement.
Looked at objectively, it must have been the purpose and intention of Mr Wang (and Henan) that the funds it advanced were to be used for the ordinary business operations of JN Investments, consistent with the terms of the JV Agreement. It is inherent in the notion that money paid as working capital of a business enterprise is to be expended in the course of conducting that enterprise: Raulfs v Fishy Bite at [62]. Such a notion does not mean that such funds are held as anything other than an asset of the business enterprise. Nor, in the absence of other evidence, does it suggest that those funds were to be held on trust for or on behalf of the company associated with the founding shareholder and director.

[24]

Hyde Apartment: trust claim by JN Investments over the sale proceeds

JN Investments' claim to recover the net sale proceeds is based on the Hyde Apartment having been held by Ms Wang and Ms Li on a resulting trust in favour of JN Investments.
A resulting trust may arise where a person provides the money to purchase property and legal title to that property is in another's name. In such a case, a resulting trust in favour of the person who provided the money is presumed to arise at the time of purchase of the property. That presumption may be rebutted by evidence establishing the contrary: Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 at 246-7, 252; see also JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) at [12-10].
The evidence establishes that JN Investments provided all the necessary funds for the purchase of the Hyde Apartment. On 8 October 2013, two amounts totalling $3,010,000 were transferred from JN Investments' CCB Account to Ms Wang and Ms Li to cover the purchase price of $3 million. Other costs associated with the purchase, such as stamp duty (in the amount of $150,510), legal and conveyancing fees (in the amounts of $1,450 and $825) were also funded by JN Investments.
Prior to its purchase, Ms Wang told Mr Wang that the Hyde Apartment was to "belong to the company" even though it was to be registered in her name and Ms Li's name. Mr Wang acceded to the proposal because he believed Ms Wang's advice that there were restrictions on the Hyde Apartment being purchased in JN Investments' name or in his name. Had Ms Wang not advised him of those matters, Mr Wang would have required the Hyde Apartment to be purchased in JN Investments' name.
The $3,010,000 funds were, therefore, advanced by JN Investments in the character of a purchaser of the Hyde Apartment, rather than as a lender of funds to enable Ms Wang and Ms Li to purchase it on their own behalf: Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 at 246.
The existence of a purchase money resulting trust in favour of JN Investments also accords with the admission made by Ms Wang that the amounts transferred to her and Ms Li to purchase the Hyde Apartment were for the benefit of JN Investments and that they received their respective portions of the proceeds of sale on trust for JN Investments: Further Amended Commercial List Response, filed 1 November 2018, at [37].
It follows that I am satisfied that the Hyde Apartment was held by Ms Wang and Ms Li on a resulting trust in favour of JN Investments. As a resulting trust, JN Investments' interest does not fail for lack of compliance with s 23C of the Conveyancing Act 1919 (NSW).
As trustees under a resulting trust, Ms Wang and Ms Li are liable to account to JN Investments for the sale proceeds as trust property, including any profit from that sale. Beneficiaries under a resulting trust enjoy the same proprietary rights to trust property and the same personal right to ensure the trust fund is reconstituted in the event of dissipation or misappropriation of the trust property, as beneficiaries under an express trust. It is for the resulting trustee to establish that it would be inequitable for them not to be awarded some of the profit gained as an allowance for their skill and effort. Ms Wang and Ms Li have not done so: WA Lee & HAJ Ford, Principles of the Law of Trusts (March 2018, Thomson Reuters, looseleaf) at [21.180]; Crampton-Smith v Crampton-Smith [2012] 1 NZLR 5; [2011] NZCA 308; Clementi v Rossi [2019] VSC 725 at [302]-[304]; Warman International Limited v Dwyer (1995) 182 CLR 544; [1995] HCA 15 at 561-2.
Ms Wang's evidence, which is not challenged by Ms Li, is that all of the sale proceeds were paid into her and Ms Li's joint account and that they made the decision to transfer $1.1 million of the sale proceeds to themselves, rather than remit the proceeds to JN Investments or to Mr Wang (Exhibit F).
Ms Wang asserts that she and Ms Li kept those proceeds because of a concern that Mr Wang might act in a manner prejudicial to their interests and her belief that JN Investments should indemnify them for an expected $85,000 capital gains liability. I do not accept those matters as sufficient reasons for failing to account for the proceeds and not remitting them to JN Investments which, as trustees, they were obliged to do. Any suggestion that Ms Wang had some proper basis for not remitting the sale proceeds is also undermined by Mr Wang's unchallenged evidence that she told him, falsely as events transpired, that the proceeds had been transferred to JN Investments.
Ms Wang and Ms Li each retained a significant portion of the Hyde Apartment sale proceeds in circumstances where they knew they were not entitled to do so. Ms Wang was aware that she held her share of the sale proceeds on trust and was liable to account to JN Investments. She also failed to transfer them to JN Investments' bank account when asked by Mr Wang where the funds were. I also consider it open to infer that Ms Li retained sale proceeds knowing that she was liable to account to JN Investments for her share. Ms Li was aware that her share of the purchase price had been funded by JN Investments and yet transferred $1.1 million of the sale proceeds to herself. I am, therefore, satisfied that Ms Wang and Ms Li have retained the net sale proceeds of the Hyde Apartment in breach of trust.
JN Investments also claims that Ms Wang and Ms Li are each liable to account as constructive trustees to JN Investments for the net sale proceeds, not just for their own share, but also for the share of the other.
Ms Wang and Ms Li decided together to transfer the sale proceeds into their joint account and then pay themselves $1.1 million each. Thus, they had actual knowledge of and agreed to the other retaining those funds for their own purposes in breach of trust. Accordingly, I accept that it is open to find that they knowingly induced or procured the other to breach their duty as a trustee, which duty required them to account for the sale proceeds to JN Investments: Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89; [2007] HCA 22 (Farah Constructions) at [161]; Hasler v Singtel Optus Pty Ltd; Curtis v Singtel Optus Pty Ltd; Singtel Optus Pty Ltd v Almad Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 (Hasler v Singtel Optus) at [77], [79].
If I am wrong about that finding, I am also satisfied that Ms Wang and Ms Li knowingly assisted the other in a dishonest and fraudulent breach of their duties as trustees in respect of the trust property, being the sale proceeds.
In my view, Ms Wang and Ms Li's conduct was dishonest and fraudulent in the required sense. They agreed to retain the sale proceeds for their personal benefit, whether to use that money themselves or to seek to obtain some form of leverage over Ms Wang in respect of their other dealings. Either way, in doing so, they put their own interests ahead of JN Investments' interest in the trust property and retained significant sums of money to which they knew they were not entitled. I accept the plaintiffs' submission that such conduct transgresses "ordinary standards of honest behaviour": Hasler v Singtel Optus at [124].
As noted above, Ms Wang and Ms Li had actual knowledge of and agreed to the other retaining the sale proceeds for their own purposes. Thus, they each assisted the other with knowledge of the dishonest and fraudulent design: Farah Constructions at [160] to [163]; Hasler v Singtel Optus at [78].
It follows that I am satisfied that Ms Wang and Ms Li are liable to account as trustees, not just for their own portion of the net sale proceeds of the Hyde Apartment, but also for the share of the other.
JN Investments is, therefore, entitled to declaratory relief that Ms Wang and Ms Li acted in breach of the resulting trust in failing to remit the net sale proceeds of the Hyde Apartment to JN Investments and that they knowingly received those funds and assisted each other in breach of that trust. Ms Wang and Ms Li are liable to account to JN Investments for the net sale proceeds or pay equitable compensation in order to make good the loss suffered as a result of the breach of trust: Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1; [1999] NSWCA 408 at [432].
As to the quantum of the net sale proceeds, JN Investments' claims the amount of $840,000 less stamp duty, conveyancing fees and adjustments on closing, and that Ms Wang's share is $500,000 and Ms Li's is $340,000: Third Amended Summons at [11]; MFI-3.
The amount of $840,000, which I accept for the purposes of quantification of loss, is calculated based on Ms Wang and Ms Li each receiving 50% of the sale proceeds (namely, $1.925 million) from which their respective shares of the purchase price are deducted: for Ms Wang, $1.425 million is deducted leaving an amount of $500,000; for Ms Li, $1.585 million is deducted leaving an amount of $340,000.

[25]

Lane Cove Property interest: trust claim over sale proceeds

At the hearing, the plaintiffs' claim that the proceeds from the sale of the 35/100 interest in the Lane Cove Property were held on trust by JN Property was put on three bases.
The first is that the interest in the Lane Cove Property, and thus the sale proceeds, was held on constructive trust in favour of Henan following breach by JN Investments of a Quistclose trust in respect of the funds used to acquire it. As the foundation for that claim is the existence of a Quistclose trust over the funds advanced by Henan to JN Investments, for the reasons outlined above, it does not succeed.
The second basis is that the 35/100 interest in the Lane Cove Property was held on trust by JN Property for JN Investments by way of a purchase money resulting trust.
I am satisfied that the plaintiffs have established that claim and that the sale proceeds are also held by JN Property on the terms of that resulting trust.
As set out in [78] and [79], all of the funds for the acquisition of JN Property's 35/100 interest in the Lane Cove Property were provided by JN Investments. There was, therefore, a presumption that the beneficial ownership of 35/100 interest in the Lane Cove Property was held by JN Investments with a resulting trust arising at the time of its acquisition by JN Property in February 2015.
Mr Wang's evidence also supports a finding that JN Investments' funds were used in the character of a purchaser of the interest in the Lane Cove Property and the existence of a resulting trust. Mr Wang agreed to JN Investments' funds being used to pay for the investment, intending for JN Investments to be the purchaser and "co-owner". He was not aware that JN Property or the JN Property Trust existed until late in 2017 and did not consent to JN Property acquiring the interest in the Lane Cove Property using the funds held by JN Investments.
The onus of rebutting the presumption of the resulting trust in favour of JN Investments lies on the party seeking to rely on the legal title, namely JN Property, or others with an interest in that legal title, being Ms Wang, Ms Li, NSW Land or NSW Asset Holdings: Weige v Cupton Pty Ltd [2012] NSWCA 414 at [46]. They have not done so.
JN Property was (and remains) the trustee of the JN Property Trust. As the interest in the Lane Cove Property was held on a resulting trust, the only property that could become the subject of the JN Property Trust was JN Property's bare legal title.
As the plaintiffs' submit, clause 3.2 of the JN Property Trust Deed relevantly provides that unit holders hold no interest in any particular part of the Fund (as defined by the Trust Deed), nor in any moneys, investments or property that forms part of the Fund. Accordingly, to the extent that the interest in the Lane Cove Property formed part of the Fund, unit holders, namely Mr Wang, NSW Asset Holdings and NSW Land, held no interest in it. Nor do they hold any particular interest in the sale proceeds.
As JN Property held its interest in the Lane Cove Property subject to a resulting trust in favour of JN Investments, it also holds the sale proceeds subject to that trust and is liable to account to JN Investments for the sale proceeds as trust property, including any profit from that sale.
JN Investments is, therefore, entitled to declaratory relief that JN Property holds any proceeds from the sale of the 35/100 interest in the Lane Cove Property on the terms of a resulting trust in favour of JN Investments.
As I have concluded that the sale proceeds are held on resulting trust, it is not necessary to deal with JN Investments' alternative claim that they are held on constructive trust in its favour following breaches by Ms Wang and Ms Li of their fiduciary duties for which they are both liable to account as constructive trustees.

[27]

Evidence of payments and amounts misappropriated

The payments made to Ms Wang and Ms Li are detailed in the financial statements prepared by Winner Partnership, the bank records and other documents in evidence. They are also summarised in the Exner Report for the 2013 to 2016 financial years and in MF1-1 for the 2017 financial year.
The Exner Report and MFI-1 identify that, in total, $7,598,510 was paid to Ms Wang and Ms Li by JN Investments and JN Agribusiness during the course of the 2013 to 2017 financial years by way of loans (and/or salary), consulting fees, expense reimbursements and "other".
Ms Wang received payments totalling $3,948,996, made up of: 1. $2,290,468, by way of "loans" (and/or "salary") and "consulting fees" from JN Investments and JN Agribusiness in the 2013 to 2017 financial years; 2. $1,425,000, being the funds transferred to Ms Wang for the purchase of the Hyde Apartment on 8 October 2013; and 3. $233,528, for "expense reimbursements" from JN Investments in the 2013 to 2016 financial years.
Ms Li received payments totalling $3,649,514, made up of: 1. $2,035,433, by way of "loans" (and/or "salary") and "consulting fees" from JN Investments and JN Agribusiness in the 2013 to 2017 financial years; 2. $1,585,000, being the funds transferred to Ms Wang for the purchase of the Hyde Apartment on 8 October; and 3. $29,081, for "expense reimbursements" from JN Investments in the 2013 to 2016 financial years.
A number of observations may be made about these payments and the plaintiffs' claim about the misappropriation of funds by Ms Wang and Ms Li.
First, a significant proportion of the "loan" and "consulting fees" payments received by Ms Wang and Ms Li were in the form of regular monthly or fortnightly payments, of which $1.35 million were later reclassified by Ms Xie in the revised financial statements as part of the wages expense of JN Investments.
In relation to JN Investments, the regular payments commenced in June 2013 in an amount of $12,948, increased to $20,000 per month for the period from September 2013 to February 2014, and then to $30,000 per month for the period from March 2014 to April 2016 (with limited exceptions). These payments also included amounts of $20,000 which were recorded as "consulting fees" based on instructions Ms Wahhab received from Ms Wang and Ms Li in August 2015.
The regular payments from JN Agribusiness commenced on 28 November 2014 and were, in the main, fortnightly payments in the amounts of $5000 or $3,000 (with some exceptions).
Second, in addition to the regular monthly or fortnightly payments, Ms Wang and Ms Li received ad hoc amounts as "loans" ranging from $10,000 to $500,000, including the loan amounts referred to at [60], [61(f)] and [61(g)].
Third, there is evidence that, between April 2014 and December 2016, Ms Wang and Ms Li made payments totalling $3,019,865.50 to JN Investments and JN Agribusiness. The payments are detailed in MFI-3, being a listing of deposits made from Ms Wang and Ms Li's Joint Account into the JN Investments and JN Agribusiness CCB and ANZ Accounts, as follows: JN Investments AUD$ Amount 08/04/2014 1,099,865.50 15/10/2014 600,000.00 15/02/2016 250,000.00 29/11/2016 70,000.00 15/12/2016 150,000.00 JN Agribusiness 16/02/2015 100,000.00 21/06/2016 150,000.00 25/11/2016 300,000.00 15/12/2016 300,000.00 Total $3,019,865.50
Some of the payments were made following receipt of the $1 million from the funds provided for the purpose of discharging the Westpac mortgage: at [61(c)], [61(e)], [61(h)] and [61(i)]. The payments made on 15 December 2016 represent some of the sale proceeds from the Hyde Apartment: at [87].
The payments made from Ms Wang and Ms Li's Joint Account in the 2013 to 2016 financial years are recorded in JN Investments and JN Agribusiness' financial statements as loan payments as if they had been contributed equally; namely, 50% as a loan payment from Ms Wang and 50% from Ms Li. Adopting that approach, the plaintiffs accept, as do I, that Ms Wang and Ms Li have each made payments of $1,509,932.75 to JN Investments and JN Agribusiness which should be taken into account in calculating the sums alleged to have been misappropriated by Ms Wang and Ms Li.
Fourth, the plaintiffs contend that most, but not all, of the payments made to Ms Wang and Ms Li for expense reimbursements do not represent reasonable business expenses for which they were entitled to be reimbursed by JN Investments. The plaintiffs have identified, by reference to the expense reimbursement schedules and receipts in evidence, those payments which they do not challenge (which include payments related to technology related costs, expenses incurred while Mr Wang was in Sydney, and other expenses relating to business trips to China) and those they claim were paid without authority: Exhibit B.
In relation to Ms Wang, the plaintiffs contend that $137,591.97 of the $233,528 expense reimbursement payments made to Ms Wang relate to items for which she was not entitled to be reimbursed. By way of example, the amount of $137,591.97 includes reimbursement to Ms Wang of the following: 1. around $9,500 for "travel bags", "luggage" and "suitcases", including $672.46 for a parka and pants from Paul Reader Snow Sports and $160 for a "Persian lion tote" and a "Persian lion zip case" from the Metropolitan Museum of Art store; 2. around $6,500 for "corporate clothing", "uniforms" and "gifts", including $998 on Cami and Carla Zampatti clothing from David Jones and $615 for a long dress from "Clueless"; 3. over $2,000 for hair and beauty products described variously as "office", "Trumps Alto" and "gifts", which included $1,128 spent at "Trumps Alto Ego", $150 at "Valonz & Miss Frou Frou" and $865 at "I Enjoy Hair Beauty"; 4. many thousands of dollars on what might be described as "personal" expenses, including: 1. $2,051.60 between 2 November 2015 and 10 December 2015 for "medical" and "medication"; 2. $720 for 12 sessions of "acupuncture"; 3. $1,304.81 on 23 August 2015 for four "taxi's", one "meal", "water", "entertainment" and three "gifts"; 4. $1,077.60 on 8 January 2015 for two "taxi's", "dry cleaning", a "tray", "food", "meal", "fruits" and "entertainment"; and 5. $355.54 on 22 January 2015 for three "meals", six "taxi's" and "fruits" from Woolworths; and 1. over $10,000 for "entertainment" and "dinner", including $2,742.10 spent at the Palace Chinese Restaurant, $844.23 at the Century, Star Sydney (including $747.53 for lobster sashimi) and $729.38 at the Fisherman's Wharf Seafood Restaurant (including approximately $400 for lobster).
In relation to Ms Li, the plaintiffs contend that $24,392.27 of the $29,081 expense reimbursement payments made to Ms Li relate to items for which she was not entitled to be reimbursed. By way of example, the amount of $24,392.27 includes reimbursement for the following: 1. around $3,500 for "corporate clothing" and "uniforms", including $729.45 for jackets, socks, pants and a beanie spent at Patagonia, $529.33 at Kathmandu and $60 for a sports bra and leggings from Rebel Sport; 2. around $900 for "settlement equipment", including $839 for two under blankets from Myer; and 3. many thousands of dollars on what might be described as "personal" expenses, including: 1. $1,118.59 between 1 May 2014 and 22 June 2014 on "medical" or "medication"; 2. $842.15 on 19 December 2014 for two "coffees", a "meal", "fruits" and two "gifts"; 3. $398.00 on Royal Doulton homewares and "guest bedding" from David Jones; and 4. $863.98 at Sydney International Airport Duty Free for "whisky" and "wines".
Fifth, while significant and regular cash payments were made to Ms Wang and Ms Li, according to Mr Wang's evidence and the Exner Report, no payments were made by JN Investments or JN Agribusiness to Mr Wang or Henan during the 2013 to 2016 financial years.
Other than the funds advanced from Henan appearing in JN Investments' financial ledger as credits to its loan account, the only other transactions processed against Henan's loan account relate to the purchase of the Hyde Apartment and some other property related costs totalling $328,215.
Finally, to the extent that payments were made to Ms Wang and Ms Li from JN Agribusiness, they were sourced from funds held initially by JN Investments. As the Exner Report identifies, JN Agribusiness' operations were funded by JN Investments.
Taking into account all of the payments made to Ms Wang and Ms Li as loans (or salary), consulting fees and expense reimbursements, the payments made from Ms Wang and Ms Li's Joint Account, and the value of the expense reimbursements which are not challenged by the plaintiffs, I am satisfied that the evidence establishes that Ms Wang has received and retained payments totalling $2,343,127.22 and Ms Li has received and retained payments totalling $2,134,892.52 from JN Investments and JN Agribusiness during the 2013 to 2017 financial years. In these reasons, I refer to these amounts as the "impugned cash payments".

[28]

Were the cash payments made in breach of duties to JN Investments?

The plaintiffs' claim that, in causing JN Investments directly, and through JN Agribusiness, to make the cash payments to themselves, Ms Wang and Ms Li contravened ss 181 and 182 of the Corporations Act and breached their fiduciary duties owed to JN Investments.
As noted at [113] and [114], as directors, Ms Wang and Ms Li owed statutory duties under ss 181 and 182 of the Corporations Act and fiduciary obligations to JN Investments.
As directors, Ms Wang and Ms Li could not use company property for their personal benefit without the company's authority and could not take remuneration or other benefits from the company's resources unless authorised by law, authorised by the company's constitution or with the fully informed consent of the company in general meeting: Robert Austin and Ian Ramsay, Ford, Austin and Ramsay's Principles of Corporations Law (17th ed, 2018, LexisNexis Butterworths) at [9.200].
Their fiduciary duty to not promote their personal interests by taking profits or advantage from a company's property or funds for themselves (or some other person) in conflict with the interests of the company, and their statutory duties to act in good faith and for a proper purpose and not to improperly use their position to gain an advantage for themselves or someone else cover the same ground. If a director has promoted their personal interest or improperly used their position to gain such an advantage, their statutory and fiduciary duties would be breached: ASIC v Adler (2002) 168 FLR 253; [2002] NSWSC 171 at [735] per Santow J.
I am satisfied that Ms Wang and Ms Li caused JN Investments and JN Agribusiness to make the impugned cash payments to themselves in circumstances where they were not entitled to those payments.
Mr Wang, as the majority shareholder and other director of JN Investments, did not reach any agreement with Ms Wang or Ms Li regarding the payment of any consultancy fees, loans or salary. To the contrary, the terms of the JV Agreement and Mr Wang's evidence make clear that none of them were to receive any remuneration from the "joint venture company" other than profits that were to be shared equally.
The regular monthly and fortnightly payments meant that Ms Wang and Ms Li each received an annual payment of roughly $240,000 for the 2014 financial year, increasing to roughly $480,000 in the 2016 financial year. Receiving regular payments in those amounts was in clear breach of what the parties had discussed and agreed on 25 February 2013. I also reject any suggestion that Ms Wang and Ms Li were authorised to pay themselves such significant sums in the context where the joint venture business was a non-income producing start-up venture in respect of which the parties had agreed that financial benefits were to be taken by way of profits.
Based on Mr Wang's unchallenged evidence, I am also satisfied that Ms Wang and Ms Li were not entitled to take money out of JN Investments' funds by way of ad hoc loans to use for their own purposes. Neither Mr Wang nor the Board of JN Investments provided consent or authority to Ms Wang or Ms Li to use company funds in that way.
As for the expense reimbursement payments, during their meeting on 25 February 2013, the parties agreed that Ms Wang and Ms Li would "only seek reimbursement for expenses reasonably incurred in the course of business for the company". On any view, expenses of the type challenged by the plaintiffs are not of the nature that could seriously be said to have been properly incurred for the purposes of a joint venture business that invested in assets in Australia. Rather, their nature and preponderance indicate that, from as early as 9 May 2013, Ms Wang and Ms Li caused JN Investments to fund their daily expenses as well as an apparently fairly extravagant lifestyle.
Ms Wang and Ms Li caused the impugned cash payments to be made by JN Investments and by JN Agribusiness (from funds sourced from JN Investments), without the authority of JN Investments. Nor were they approved by Mr Wang as a director or subject to any proper corporate process within that company. The limits of the authority conferred on Ms Wang and Ms Li, while extending to the management of JN Investments and by extension to JN Agribusiness, did not extend to paying themselves the impugned cash payments.
Ms Wang and Ms Li improperly used their position as directors to withdraw funds from JN Investments' CCB Account for their personal use and to cause JN Investments to transfer moneys to JN Agribusiness and take funds from JN Agribusiness' ANZ accounts for their own benefit. Having regard to the nature and regularity of the cash payments, I consider it open to infer that their motivation for procuring JN Investments and JN Agribusiness to make those payments was self-interest and for their own personal benefit, rather than in the interest of those companies.
Based on the evidence, I also consider it open to find that Ms Wang and Ms Li dishonestly directed significant amounts of money from JN Investments and JN Agribusiness into their own hands.
They concealed or sought to distinguish those payments by instructing Ms Wahhab to classify those payments as loans to directors, consulting fees and reimbursement of business expenses. Instructing Ms Wahhab that they were going to invest funds and to characterise the payments as "loans" also appears to have been a thinly disguised attempt by Ms Wang and Ms Li to avoid paying tax. They also failed to provide copies of financial statements and company records to Mr Wang, their fellow director, despite requests for them to do so and them having made statements to him to the effect that he should "trust" them.
Based on the unchallenged evidence of Mr Wang, there was no basis on which either of Ms Wang and Li could have had any genuine or objectively based belief that they were entitled to regular monthly payments from JN Investments and JN Agribusiness, equating to between $240,000 to $480,000 per annum, not repay significant 'ad hoc' loans, or be paid for all the expenses of the kind for which they were reimbursed. Ms Wang's tax returns for the 2013 to 2016 financial years do not disclose any significant income, also undermining any suggestion that she was, in fact, entitled to receive any salary from JN Investments.
The establishment of the loan accounts was also, in part, based on the fiction that Ms Wang and Ms Li were contributing capital and could take out loan moneys on that basis. The $120,000 share allocation to Ms Wang, which was reflected in the loan accounts, was simply an invention Ms Wang's part. The evidence establishes that Ms Wang did not contribute any capital to JN Investments so there is no possible basis for any share reallocation to be treated as a payment by her to JN Investments. There is also the evidence that establishes that a substantial portion of the loan payments from Ms Wang and Ms Li to JN Investments and JN Agribusiness were made with funds which had been provided for the purposes of discharging the Westpac mortgage.
In summary, Ms Wang and Ms Li orchestrated a situation where JN Investments funded payments to them of millions of dollars over three and a half years in circumstances where Mr Wang, the majority shareholder and other director, had not agreed to the impugned cash payments being made and the company had not authorised the payments to be made to them. I am satisfied that it is open to conclude that, in doing so, Ms Wang and Ms Li engaged in conduct which amounted to a transgression of ordinary standards of honest behaviour as part of a scheme to appropriate JN Investments' funds for their own use and benefit: Hasler v Singtel Optus at [124], [127], [128].
By effecting those transactions to benefit themselves, they did so without regard to the legitimate interests of JN Investments and JN Agribusiness, or Mr Wang as the other director. Ms Wang and Ms Li were not entitled to use their authority as directors of JN Investments to act in their own interests and confer benefits on themselves by taking and retaining the impugned cash payments from JN Investments and JN Agribusiness. It follows that I am also satisfied that Ms Wang and Ms Li have breached ss 181 and 182 of the Corporations Act and their corresponding fiduciary duties owed to JN Investments and they did so dishonestly.

[29]

Did Ms Wang and Ms Li knowingly assist each other's breach of fiduciary duty?

The plaintiffs also advance claims of knowing assistance, or alternatively knowing inducement, against both Ms Wang and Ms Li and seek to establish them as constructive trustees in respect of the impugned cash payments.
Each of Ms Wang and Ms Li will be liable as constructive trustees for their own and the other's share of the impugned cash payments if they assisted each other with knowledge of the dishonest and fraudulent breach of fiduciary duty on the part of the other: Barnes v Addy (1874) LR 9 Ch App. 244.
In my view, the evidence establishes that Ms Wang had actual knowledge of and actively participated in Ms Li's breaches of fiduciary duty such that can it can be said that she assisted or facilitated Ms Li's fraudulent and dishonest breaches of duty with actual knowledge that she was doing so: Farah Constructions at 162-164.
The facts giving rise to the fraudulent and dishonest breaches of fiduciary duty by Ms Li were well known to Ms Wang and the evidence indicates that she assisted in, or facilitated, those breaches. Ms Wang was deeply and directly involved in the relevant activities that led to the impugned cash payments being made to Ms Li. She engaged in dishonest breaches of fiduciary duty of the same type, was present at meetings with Ms Wahhab when the making of certain payments were discussed, and had knowledge of and facilitated the same type of payments being made to Ms Li.
The evidence establishes that Ms Wang: 1. recorded the making of the regular payments to herself and Ms Li in her diary notes during the period June 2013 to 23 June 2017 and had no basis for believing that JN Investments or Mr Wang had consented to those payments being made to Ms Li; 2. was responsible for instructing Ms Wahhab in relation to the preparation of the financial statements, which included that the regular payments should be recorded as "loans" to Ms Li; 3. sent the expense reimbursement schedules to Ms Wahhab on behalf of herself and Ms Li; and 4. was copied to correspondence from Ms Wahhab to Ms Li relating to the payment to Ms Li of "consulting fees and research expenses" in December 2013, which form part of Ms Li's cash payments amount.
Similarly, I am satisfied that the evidence establishes, on the balance of probabilities, that Ms Li assisted in and had knowledge of Ms Wang's activities in furtherance of a dishonest and fraudulent design to appropriate JN Investments' funds for Ms Wang's own use and benefit. Ms Li associated herself with Ms Wang's breaches with actual knowledge of dishonest wrongdoing.
Like Ms Wang, Ms Li received the impugned cash payments by way of regular monthly and fortnightly amounts, ad hoc payments as loans and consulting fees and expense reimbursements, and had no basis for believing that she nor Ms Wang were entitled to them or that JN Investments or Mr Wang had consented to them being paid out. Ms Li was present at the meeting with Ms Wahhab in January 2014 when Ms Wang and Ms Li discussed and instructed Ms Wahhab to account for their "future payments" as loans they owe to the company. She was also present at the meeting with Ms Wahhab in August 2015 when she and Ms Wang agreed to account for "initial payments" as consulting fees and to allocate the $500,000 loans as an investment loan to each of them. She also provided her "expenses" to Ms Wang for the purposes of claiming reimbursements.
In other words, Ms Li had knowledge of the essential facts constituting what was a dishonest breach of duty in which she participated in a significant way: Hasler v Singtel Optus at [139] and [142]; Farah Constructions at [180].
Overall, the evidence demonstrates that Ms Wang and Ms Li acted together over a number of years to cause the impugned cash payments to be made to each other in breach of their fiduciary duties owed to JN Investments knowing that they were not entitled to take those funds for their own personal benefit.
Accordingly, I am satisfied that the plaintiffs have established the knowing assistance claim against Ms Wang and Ms Li in relation to the impugned cash payments to the requisite standard.

[32]

Funds to discharge the Westpac mortgage: trust claim

At the hearing, Senior Counsel clarified that the trust claim in respect of the $1 million, which was transferred from JN Investments' CCB Account into Ms Wang and Ms Li's joint accounts on 26 June 2014, was a claim based on a resulting trust in the nature of a Quistclose trust: T99:50-100:1.
The Quistclose trust is asserted to arise as the sum of $1 million was taken by Ms Wang and Ms Li from funds held by JN Investments that were made available by Mr Wang for the specific purpose of discharging the Westpac mortgage. The plaintiffs also claim that Ms Wang and Ms Li used those funds in breach of that trust, relying on the matters referred to at [60] and [61], which evidence that Ms Wang and Ms Li used the funds for a range of purposes and did not discharge the Westpac mortgage until the time the Hyde Apartment was sold.
While there is force to the plaintiffs' claim that Ms Wang and Ms Li used the $1 million funds for purposes which were not authorised and which may have been in breach of trust, no specific relief is sought in respect of this claim.
It is also a claim which seems to me to overlap with the other claims made in relation to the Hyde Apartment and the impugned cash payments. I have already concluded that Ms Wang and Ms Li are liable to account for the net sale proceeds of the Hyde Apartment and to pay equitable compensation for that amount to JN Investments (at [194]-[197]). I have also found that JN Investments is entitled to recover equitable compensation from Ms Wang and Ms Li for the impugned cash payments (at [260]). The quantum of that equitable compensation takes into account the $1 million transferred to Ms Wang and Ms Li, the payments they subsequently made and the discharge of the Westpac mortgage.
In those circumstances, I consider it unnecessary to decide whether the $1 million advanced were subject to a Quistclose trust in favour of JN Investments or whether Ms Wang and Ms Li breached that trust by using the funds in the way they did.

[33]

Unauthorised creation of business entities: claims by Mr Wang

Mr Wang makes two claims against Ms Wang and Ms Li in relation to the creation of JN Agribusiness, JN Property, and the JN Property Trust and the issuing of shares and allocation of units in respect of those entities; a trust claim and a claim in contract.
The trust claim is that Ms Wang and Ms Li created those entities and allocated shares and units to themselves and their companies (NSW Land and NSW Asset Holdings) in breach of the fiduciary duties they owed to Mr Wang, as they did so acting in their personal interests at Mr Wang's expense. Mr Wang claims that the breaches of fiduciary duty were in furtherance of a dishonest and fraudulent design, namely, the diversion of the business of the joint venture to vehicles in which Mr Wang did not hold 90% of the equity without Mr Wang's knowledge or consent, and that NSW Land and NSW Asset Holdings knowingly assisted in those breaches of duty. Thus, he claims that NSW Land and NSW Asset Holdings hold their interests in JN Agribusiness, JN Property and the JN Property Trust, to the extent they are more than 5% of the shares and units in those entities, on constructive trust in his favour.
The contract claim is based on Ms Wang and Ms Li having breached the JV Agreement by creating those entities without Mr Wang's authority or consent and allocating interests to him which departed from the term of the JV Agreement that provided for a 90/5/5 division to apply to the equity in the joint venture between them.
Mr Wang had no knowledge of the existence of JN Agribusiness, JN Property or the JN Property Trust, or that he held less than 90% of the equity and units in them, until late 2017, well after the entities were created and the capital structures and unit holdings were first put in place. Nor was Mr Wang aware of the reallocation of units in the JN Property Trust which resulted in him holding only 34 units.
The fiduciary obligations that I have found were owed to Mr Wang required Ms Wang and Ms Li not to pursue their own personal interests in circumstances where there was a conflict between their interests and those of Mr Wang's: at [145]. In other words, they were bound by their fiduciary duty not to make or pursue a gain in respect of the joint venture business at Mr Wang's expense.
The entities created by Ms Wang and Ms Li were involved in the operations of, and held property acquired as part of, the joint venture business. JN Agribusiness operated the Blueberry Farm and JN Property acquired the interest in the Lane Cove Property as trustee for the JN Property Trust.
In my view, the creation and allocation of equity and units in those entities by Ms Wang and Ms Li to themselves and their companies of more than 5%, with the consequence that Mr Wang's interests were less than 90%, in the absence of Mr Wang's informed consent, entailed a breach of their fiduciary duties to Mr Wang.
What Ms Wang and Ms Li put in place had the effect of diminishing Mr Wang's interests in entities through which the joint venture business operated and held assets. Correspondingly, the effect was to increase Ms Wang and Ms Li's own interests in those entities (whether held directly or indirectly via NSW Asset Holdings and NSW Land), from which they might have expected to have derived some increased control and economic benefit at Mr Wang's expense. This is particularly so in respect of JN Property and the JN Property Trust, which acquired the interest in the Lane Cove Property. As to JN Agribusiness, while its operation of the Blueberry Farm ran at a loss, as noted in a letter dated 25 January 2017 from the Australian Taxation Office to JN Investments, there was an expectation of profits from "the farming of the blueberries".
Looked at objectively, by allocating themselves (and their companies) greater shares and units in those entities, each of Ms Wang and Ms Li promoted their own personal interests in the pursuit of an economic gain which was in conflict with their duties to Mr Wang. The conflict of interest seems clear. Had they disclosed what they intended to do, Mr Wang would not have approved. Indeed, his evidence is that when asked on 30 September 2015 to sign documents that related to two newly incorporated entities and provided for his original holdings to be reduced by transferring some shares to Ms Wang and Ms Li, he refused to sign them.
The JV Agreement and their duties as fiduciaries required Ms Wang and Ms Li to act honestly and in the best interests of the joint venture parties by setting up corporate structures in a manner that reflected the joint venture proportions agreed to by the parties. They set up entities and structures in equity proportions at odds which what had been agreed, without Mr Wang's knowledge or consent. They did so in circumstances where Mr Wang's consent was required, Ms Wang and Ms Li were either aware or should have been aware that he would not consent, and each stood to benefit economically from the structures they adopted. In my view, such conduct involves more than just a mere breach of duty, but is of a "morally reprehensible" nature: George v Webb [2011] NSWSC 1608 at [260] and the cases cited there. It follows that I am satisfied that Ms Wang and Ms Li breached their fiduciary duties to Mr Wang in furtherance of a dishonest and fraudulent design, as the plaintiffs' claim.
Ms Wang and Ms Li were both engaged in and also assisted the other in the conduct. They each signed the relevant constituent documents relating to the JN Property Trust. They exchanged emails on 26 September 2014 about the "need to register more companies", which referred to the new corporate entities and the interests to be allocated to each of them. They were also each involved in instructing Baron & Associates in June 2015 to implement the changes to the allocations of units in the JN Property Trust that resulted in Mr Wang holding only one third of the units. In other words, they assisted each other in their dishonest breaches of duty.
Ms Wang and Ms Li each hold 30% of the shares in JN Agribusiness, which departed from the 90/5/5 division that was to apply to the joint venture entities. Accordingly, some of the shares they hold in JN Agribusiness is property obtained in breach of their fiduciary obligations. As fiduciaries, they are liable to account to Mr Wang for the gain or benefit they received by reason of their fiduciary position which, in this case, is 25% of their shares in JN Agribusiness: Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36 at 198-199; Hospital Products at 107-108.
As to JN Property and the JN Property Trust, Ms Wang and Ms Li caused shares and units to be issued and allocated to NSW Asset Holdings and NSW Land in breach of their fiduciary duties.
NSW Land and NSW Asset Holding were, in effect, the "corporate alter egos" of Ms Wang and Ms Li. In that context, I am satisfied that NSW Land and NSW Asset Holding each knowingly assisted in Ms Wang and Ms Li's dishonest breaches of fiduciary duty. They did so with knowledge that the wrongful allocation to them of shares and units in JN Property and the JN Property Trust was part of a dishonest and fraudulent design on the part of Ms Wang and Ms Li to divert the business of the Joint Venture to entities in which Mr Wang did not hold a 90% interest, without his knowledge or consent.
It follows that I am satisfied that NSW Asset Holdings and now ASIC, as the recipient of the property of NSW Land, are liable to account as constructive trustees to Mr Wang for shares and units in JN Property and the JN Property Trust which exceed 5% of the equity and units on issue, being 15 dividend and 15 ordinary shares in JN Property and 29 units in the JN Property Trust and that they hold those shares and units on Mr Wang's behalf.
As to the form of relief, I am satisfied that a declaration that 25% of the shares that each of Ms Wang and Ms Li hold in JN Agribusiness are held on trust in favour of Mr Wang is appropriate in this case. Similarly, I am also satisfied that Mr Wang is entitled to a declaration that NSW Asset Holdings and ASIC each hold 15 dividend and ordinary shares in JN Property and 29 units in the JN Property Trust on trust for Mr Wang.
Mr Wang is also entitled to orders that Ms Wang, Ms Li and ASIC transfer, or cause to be transferred, title to the shares and units in JN Agribusiness, JN Property and the JN Property Trust to Mr Wang. The breaches of fiduciary duty related to the improper and dishonest issuance by each of Ms Wang and Ms Li of shares and units away from Mr Wang and NSW Asset Holdings and NSW Land knowingly assisted in those breaches of duty. The shares are the identifiable benefit derived from those breaches and Ms Wang, Ms Li, NSW Asset Holdings and NSW Land should be held to account for that benefit: Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 at [513]-[515].
As I have found for Mr Wang in respect of his trust claims, it is unnecessary to consider the claim that Ms Wang and Ms Li's conduct in creating the entities with the associated structures was also in breach of the JV Agreement. In any event, I note that the plaintiffs accept that there is no evidence before the Court on which to quantify the loss consequent upon that breach, being the value of the additional shares and units which Mr Wang would have held if they had been issued to him in the proportions contemplated by the JV Agreement.

[34]

Other uses of JN Investments' funds: claims by Mr Wang, JN Investments and Henan

The plaintiffs' final claims relate to the purchase by JN Property of the interest in the Lane Cove Property and the rent-free occupation of the Blueberry Farm by JN Agribusiness. There is a deal of overlap in the way these and some of the other claims have been put. Based on my previous findings, the final claims are, in effect, alternative claims and can, in my view, be dealt with in a more summary way.
The first claim is based on Ms Wang and Ms Li having caused JN Investments to spend $3.255 million to purchase the 35/100 interest in the Lane Cove Property in the name of JN Property and accounted for as an asset of the JN Property Trust. The plaintiffs allege that this was done by Ms Wang and Ms Li in furtherance of a dishonest and fraudulent design to appropriate funds for their own benefit, namely acquiring property through vehicles in which they held more than 5% of the equity and units, in breach of Ms Wang and Ms Li's fiduciary and statutory duties owed to JN Investments. They also claim the conduct was in breach of the JV Agreement and in breach of the Quistclose trust in favour of Henan.
For reasons similar to those at [268] to [282], I am satisfied that Ms Wang and Ms Li's conduct in causing JN Property to purchase the interest in the Lane Cove Property using JN Investments' funds was in breach of their fiduciary duties they owed to JN Investments and to Mr Wang and, in doing so, they knowingly assisted each other in those dishonest breaches of duty. It was a transaction under which Ms Wang and Ms Li stood to make personal gains through their shareholdings in NSW Asset and NSW Land Holdings, was undertaken without the consent or authority of Mr Wang or the Board of JN Investments, and was contrary to and in conflict with the interests of Mr Wang in his capacity as the other director of JN Investments and a joint venturer. They assisted each other with the transaction and had actual knowledge of the dishonest nature of the breaches of duty.
That said, I have already found that NSW Asset Holdings and ASIC are liable as constructive trustees to account for and transfer their interests in JN Property and the JN Property Trust to Mr Wang. I have also found that JN Property holds the sale proceeds of the 35/100 interest in the Lane Cove Property on trust for, and is liable to account for them to, JN Investments. In that context, there does not seem to me to be a basis for further relief in respect of this additional claim of breach of fiduciary duty by Ms Wang and Ms Li.
It follows from my earlier reasons that any claim for damages by Mr Wang for breach of the JV Agreement and an account of gains to Henan arising from a breach of the Quistclose trust cannot succeed due to the absence of evidence as to the value of any loss arising from the breach and my conclusion that a Quistclose trust does not arise.
The position is similar, although there are additional issues, in relation to the claim that Ms Wang and Ms Li breached their statutory and fiduciary duties as directors of JN Investments, breached the JV Agreement and breached the terms of the Quistclose trust by causing the Blueberry Farm to be purchased by JN Investments for $750,000 and occupied by JN Agribusiness rent free.
While accepting that the transaction was undertaken without consent or authority from Mr Wang or the Board of JN Investments, it is not apparent how the rent-free occupation by JN Agribusiness of the Blueberry farm gave rise to any real or potential conflict in the interests of Ms Wang and Ms Li on the one hand, and JN Investments and Mr Wang on the other. There is no evidence that Ms Wang expected JN Investments to pay rent had it occupied the farm. Nor is it clear that, in causing the transaction to take place, Ms Wang and Ms Li "used funds for their own use and benefit" (as asserted in the FACLS at [34A(a)]) or stood to obtain any personal benefit or gain from JN Agribusiness having rent-free status.
Even if I was persuaded that the transaction involved some breach of fiduciary duty owed to JN Investments on the part of Ms Wang and Ms Li, no specific relief is sought by JN Investments in respect of this aspect of its claims.
As for the claim by Mr Wang, I have already found that Ms Wang and Ms Li hold 25% of their shares in JN Agribusiness on trust and are liable to transfer them to Mr Wang and he has not established any loss that would give rise to a claim for damages for breach of the JV Agreement.
Finally, it follows from my earlier reasons that the claim for an account of gains to Henan arising from a breach of the Quistclose trust does not succeed.

[35]

Relief, costs and orders

I have already made findings in relation to some of the relief to be granted to the plaintiffs. I make the following further observations about the relief sought in the Third Amended Summons.
At paragraph 14 of the Third Amended Summons, the plaintiffs seek an order that Ms Wang and Ms Li render accounts in respect of themselves, JN Investments, JN Property and JN Agribusiness. That order is sought in aid of further proceedings for the taking of accounts and the hearing of any claim by the plaintiffs for either a proprietary interest in, or an equitable charge over, any property of Ms Wang and Ms Li.
An order that Ms Wang and Ms Li render accounts in common form is available to JN Investments as of right as funds are held by them as constructive trustees: Chong v Channell [2009] NSWSC 765 at [7]. That said, at this stage, I have only made an order that Ms Wang is to render accounts in respect of herself. I have deferred making an order in relation to Ms Li, JN Investments, JN Property and JN Agribusiness in order to enable the plaintiffs to consider these reasons and make further submissions as to whether they wish to pursue an order in respect of Ms Li and the other entities and, if so, on what basis.
Paragraph 24 of the Third Amended Summons seeks an order for Ms Wang and Ms Li to pay to JN Investments equitable compensation in the amount of $5,318,019.74, less the amount of stamp duty, conveyancing fees and adjustments on closing paid or payable on the sale of the Hyde Apartment and subject to any amounts recovered pursuant to any further proceedings after the taking of accounts. The amount of $5,318,019.74 reflects the total of the cash payments (at [229]) and the Hyde Apartment net sale proceeds (at [197]), in respect of which I have found Ms Wang and Ms Li to be jointly and severally liable to pay to JN Investments. It is appropriate to make that order, subject to any recovery in the event of proceedings for the taking of accounts.
Paragraph 25 of the Third Amended Summons seeks an order for interest. I have deferred making any specific order in respect of interest to allow the plaintiffs to make submissions as to nature of the interest order they seek and the quantum of any interest that should be subject to the order.
As for costs, I see no reason why the usual rule should not apply and will order the first and second defendants to pay the plaintiffs costs of the proceedings.
If, having considered these reasons, the plaintiffs seek additional or varied orders, such as in relation to the rendering of accounts, interest or costs, they are at liberty to approach my chambers for that purpose within the next 14 days.
For these reasons, I make the following declarations and orders: 1. Declare that the first and second defendants acted in breach of the fiduciary obligations that they owed to the first plaintiff and in contravention of ss 181 and 182 of the Corporations Act 2001 (Cth) and in breach of the JV Agreement in causing the first plaintiff to make payments to the first defendant in the amount of $2,343,127.22 and to the second defendant in the amount of $2,134,892.52. 2. Declare that the first and second defendants hold the net proceeds from the sale of the property located at 2801/157 Liverpool St, Sydney (being Lot 114 in Strata Plan 83861) (Property), being the amount of $840,000.00 less stamp duty, conveyancing fees and adjustments on close (net sale proceeds), on the terms of a resulting trust in favour of the first plaintiff pleaded in paragraph 37(b) of the Further Amended Commercial List Statement. 3. Declare that the first and second defendants acted in breach of trust in failing to remit to the first plaintiff the net sale proceeds of the Property. 4. Declare that each of the first and second defendants knowingly received funds paid as a result of their breaches of fiduciary duty and breach of trust, as specified in orders [1] and [3] above, in the amount of: 1. in the case of the first defendant $2,843,127.22; and 2. in the case of the second defendant, $2,474,892.52. 1. Declare that the first and second defendants knowingly assisted each other in the breaches specified in orders [1] and [3], which breaches were committed in the furtherance of a dishonest and fraudulent design, being the application or retention of funds to which the first defendant was entitled in the amount of $5,318,019.74 less the amount of stamp duty, conveyancing fees and adjustments on closing paid or payable on the sale of the Property for the benefit of the first and second defendants. 2. Order that, by 29 June 2020, the first defendant render accounts in respect of herself to the Court and that the proceedings be referred to an appropriate judicial officer for the taking of accounts and for the hearing of any claim by the first plaintiff to either a proprietary interest in, or an equitable charge over, any property of the first defendant. 3. Declare that the first defendant holds on trust in favour of the third plaintiff: 1. 25 dividend-V-R shares in the fourth defendant; 2. 25 ordinary shares in the fourth defendant. 1. Declare that NSW Asset Holdings Pty Ltd ACN 601 970 254 holds on trust in favour of the third plaintiff: 1. 29 units in the Jin Niu Property Development Trust; 2. 15 dividend-V-R shares in the third defendant; 3. 15 ordinary shares in the third defendant. 1. Declare that the second defendant holds on trust in favour of the third plaintiff: 1. 25 dividend-V-R shares in the fourth defendant; 2. 25 ordinary shares in the fourth defendant. 1. Declare that the fifth defendant holds on trust in favour of the third plaintiff: 1. 29 units in the Jin Niu Property Development Trust; 2. 15 dividend-V-R shares in the third defendant; 3. 15 ordinary shares in the third defendant. 1. Order that, by 26 June 2020, the first defendant transfer, or cause to be transferred, to the third plaintiff: 1. 29 units in the Jin Niu Property Development Trust; 2. 15 dividend V-R shares in the third defendant; 3. 15 ordinary shares in the third defendant, in default of which an appropriate judicial officer is authorised to execute any instrument of transfer on behalf of the first defendant for the purpose of giving effect to this order. 1. Order that, by 26 June 2020, the fifth defendant transfer, or cause to be transferred, to the third plaintiff: 1. 29 units in the Jin Niu Property Development Trust; 2. 15 dividend-V-R shares in the third defendant; 3. 15 ordinary shares in the third defendant, and authorise an appropriate judicial officer to execute on behalf of the fifth defendant any instrument of transfer for the purpose of giving effect to this order. 1. Order that, by 26 June 2020, the first defendant transfer, or cause to be transferred, to the third plaintiff: 1. 25 dividend-V-R shares in the fourth defendant; 2. 25 ordinary shares in the fourth defendant, in default of which an appropriate judicial officer is authorised to execute any instrument of transfer on behalf of the first defendant for the purpose of giving effect to this order. 1. Order that, by 26 June 2020, the second defendant transfer, or cause to be transferred, to the third plaintiff: 1. 25 dividend-V-R shares in the fourth defendant; 2. 25 ordinary shares in the fourth defendant, in default of which an appropriate judicial officer is authorised to execute any instrument of transfer on behalf of the second defendant for the purpose of giving effect to this order. 1. The first and second defendants pay equitable compensation to the first plaintiff in the amount of $5,318,019.74 less the amount of stamp duty, conveyancing fees and adjustments on closing paid or payable on the sale of the Property and less any amounts recovered under order [6]. 2. Declare that the third defendant holds any proceeds from the sale of its interests in Lot 78 in Deposited Plan 1055896 and Lots 12 and 13 in Deposited Plan 808119 on the terms of the resulting trust in favour of the first plaintiff pleaded in paragraph 38(c) of the Further Amended Commercial List Statement. 3. The first and second defendants pay the plaintiffs' costs of the proceedings. 4. Relist the proceedings at 9.45am on 10 July 2020 in the Commercial List for further directions in respect of the proceedings for the taking of accounts.

Jin Niu Investments Pty Ltd v Wang

At a glance

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Judgment (36 paragraphs)

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Legislation Cited (4)

Cases Cited (44)

Cited By (3)