Lei Li v Evincy Cosmetic Medical Centre & Ors [2026] VCC 358

1. The parties agree that Lei Li, ECMGW, ECG and Guo Li signed the Shareholder Agreement on or around 23 November 2018.
2. Prior to the signing of the Shareholder Agreement, a number of events and transactions had already occurred.
3. By and large those dealings are irrelevant to the matters to be determined before me. The Shareholder Agreement appears to be a complete document, the parties to it agreed that any antecedent arrangements between them were discharged, and it was not ambiguous such as to permit extraneous evidence of surrounding circumstances to be admitted.[2]
4. Lei Li and Guo Li each gave evidence as to some of those matters. I do not record them here because, as I have just explained, they were not relevant to the issues I have to decide.

1. On 20 May 2018, Lei Li's husband Xuhong Yang (Yang) signed a Cooperation Agreement with EMG. The subject of cooperation was the establishment of a cosmetic and dental centre, in which the investing party - Yang - would invest $2,000,000. The Cooperation Agreement also provided for a shareholding ratio of 35:65 between Yang and EMG, as well as payment of $100,000 within a week of the agreement taking effect.
2. The Cooperation Agreement contemplated that the parties might agree further matters between themselves and reduce such agreements to writing. It provided that if:

matters not mentioned in the process of execution of this agreement, both parties should be friendly consultation, can sign supplementary agreement after consensus, the supplementary agreement and this agreement has the same legal effect.

1. A meeting occurred in late May 2018 in Nunawading between Lei Li (participating remotely) and Guo Li, Wang and Tao Zhang (Zhang)[3] in which the parties agreed to vary the business arrangements that had been reflected in the Cooperation Agreement. Exactly what was discussed and agreed is a little unclear.
2. What is clear is that it was agreed that Yang would no longer be a party to the Cooperation Agreement and that Lei Li would take his place. This is apparent from the subsequent allocation of shares in ECMGW to Lei Li rather than to Yang as noted in paragraph ‎23 below.
3. Guo Li gave evidence that it was also agreed at that meeting that:

(a) Lei Li would invest $2,000,000;

(b) The investment was for the purpose of a subclass 188 Business Innovation and Investment visa application;

(c) Lei Li would receive 35% equity in ECMGW;

(d) ECG would hold 65% equity in ECMGW;

(e) Lei Li would be a capital investor only.

1. It is unnecessary for me to resolve the question of what was discussed and agreed at that meeting for the reasons I have given in paragraph ‎16 above.
2. On 29 May 2018, Guo Li caused a change to the ASIC register by which he added Lei Li as a shareholder of ECMGW and certified the transfer of 35 shares from EMC to Lei Li. Whether the shares were actually transferred on this date is disputed, but this is not relevant to the determination of this proceeding.
3. Between 6 June 2018 and 20 September 2018, Lei Li paid the sum of $1,450,000 to ECMGW. For each payment, EMG issued receipts confirming it had received the "deposit of investment funds from Ms Lei Li" in accordance with the Cooperation Agreement.

1. As noted above, the Shareholder Agreement was executed on about 23 November 2018. This was after Lei Li had paid $1,450,000 to ECMGW. The Shareholder Agreement made fundamental changes to the arrangements between the parties that were previously reflected in the Cooperation Agreement.
2. First, it rearranged the parties to the arrangement. Under the written Cooperation Agreement, the parties were Xuhong Yang and EMG. It will be recalled that the parties were subsequently varied so as to substitute Lei Li for Yang. Under the Shareholder Agreement, the parties were EMC, Lei Li, ECG and Guo Li. The company whose affairs were the subject of the Shareholder Agreement was ECMGW.
3. To the extent that Guo Li in final submissions argued that the change in parties meant that the Shareholder Agreement did not fully discharge and take the place of the Cooperation Agreement (as orally varied), I reject that argument. First, it is clear enough from all subsequent documents and dealings between the parties that, as from the date of the Shareholder Agreement - 23 November 2018 - they regarded their business arrangements as governed by that document and not the Cooperation Agreement. From 23 November 2018 onwards, there is no documentary record of the Cooperation Agreement being mentioned again. It seems obvious that the parties to those two agreements conducted their affairs on the basis that the Cooperation Agreement was permitted to fully fall away or be discharged or be abandoned, and the Shareholder Agreement to take its place.
4. Secondly, the parties agreed in the Shareholder Agreement that any and all prior agreements between them were terminated and that the parties had no further rights and obligations under any such agreements: clause 3(a).
5. Thirdly, the parties acknowledged and agreed that the shareholding structure in ECMGW was, and would be, 35 shares to Lei Li and 65 shares to ECG: clause 4(a).
6. Fourthly, the Shareholder Agreement provided that Guo Li and Lei Li would be appointed as directors of ECMGW. The Cooperation Agreement did not specify who were to be the directors of the company: clause 5(a).
7. Fifthly, the Shareholder Agreement dealt with funding of the company in a quite different way. The Cooperation Agreement appears to require Yang (and later Lei Li) to invest $2,000,000 in the company in return for 35% of the capital of the company. I say "appears" as the exact intent is decidedly unclear. Under 'Definition of Cooperation', the unnumbered clause says as follows:

As the main body of cooperative chain international medical centre (Cosmetic Centre and Dental Centre), Between the main investment of a $2,000,000, On the basis of specific the budget of the investment target medical centre and the project plan.

Party A as a capital investors holding accounts for 35% of the total amount of shares.

Party B as a technology and management in party holding 65% of the total shares.

The equity of Party A - Shall have the right to 35% of the asset ownership and usufruct.

The equity of Party B - Shall have the right to 65% of the asset ownership and usufruct.

Party A is responsible for all investment costs cooperative medical center project ...

Party B in charge of the international medical center, operation management and professional technical output ...

1. Under 'Terms and Other Effect', another unnumbered clause says:

After this agreement takes effect, party A shall pay one hundred thousand of dollars ($100000) within a week as the performance of gold (Margin).

After waiting for the party B shall arrange cooperation body (Medical Center), Party A shall within 15 days will need to invest the money paid to party B or investment fund of the receiver.

If party A fails to fulfill the obligations of this agreement, the paid performance bond will be the default all compensation to party B. If 6 months after signing this agreement, party B fails to fulfill the obligations of this agreement, party B will return party A the performance bond...

1. Other than those clauses the Cooperation Agreement makes no further provision for funding of the company.
2. By contrast, the Shareholder Agreement provided:

Each shareholder agrees to endeavour to cause the company to finance expansion and normal operation firstly from operating cash flows. In the event the shareholder loans described in clause 10(b) become fully drawn, each shareholder must contribute its respective proportion of the funding requirements of the company, in the proportion the shareholder's shares have to the issued shares.

Lei Li agrees to lend monies to the company from time to time up to $2,000,000.00 as shareholder's loan pursuant to clause 10(d) of this agreement. Parties further acknowledge that on the date of this agreement, Lei Li have advanced to the company by way of shareholder's loan pursuant to clause10(d) an aggregate amount of $1,450,000.00.

The funding obligations provided for in the clause must be satisfied by either:

(i) subscription by the shareholders in accordance with their respective proportions for new fully paid shares; or

(ii) the making of loans to the company by the shareholders, in accordance with their respective proportions, as the board requires;

(i) the number of new fully paid shares to be issued; and

(ii) the terms and conditions (including the amount) of loans to be provided;

Unless the company and a shareholder otherwise agree in writing, any loan made by a shareholder to the company is made on the following terms:

(i) Each advance by a shareholder is separate loan;

(ii) Interest shall compound on on each advance at the Target Cash Rate published by the Reserve Bank of Australia from time to time plus 4%;

(iii) Each advance is repayable on the shareholder ceasing to hold shares;

(iv) The shareholder may in its absolute discretion vary the repayment date in respect of any or all advances made by that shareholder by giving the company at least 60 days' written notice. Such variation shall take effect at the end of the notice period;

(v) ...

1. It is apparent from these clauses that the parties to the Shareholder Agreement agreed:

(a) that Lei Li would inject up to $2,000,000 as a shareholder's loan upon the terms set out in clause 10(d);

(b) up to that point in time, Lei Li had "advanced to the company by way of shareholder's loan pursuant to clause 10(d)" $1,450,000;

(c) that after Lei Li's $2,000,000 loan funds were fully drawn, they would each provide further funding in proportion to their shareholdings;

(d) that those further funds would be provided as equity capital in return for shares or as loans, as the board determined;

(e) that loan funds would attract interest and would be repayable upon a shareholder ceasing to hold shares;

(f) that a shareholder could advance the repayment date of their loan funds by giving the company 60 days' written notice.

1. Guo Li argues that the words "Parties further acknowledge that on the date of this agreement, Lei Li have advanced to the company by way of shareholder's loan pursuant to clause 10(d) an aggregate amount of $1,450,000.00" (emphasis added) in clause 10(b) did not operate to change the character of the funds paid by Lei Li pursuant to the Cooperation Agreement from equity capital to loan funds.
2. He accepts that parties could agree to vary their funding arrangements, for example, by converting debt to equity and equity to debt, but he submits that the words of this clause of the Shareholder Agreement does not do that. He submits that the use of the word "acknowledges" has no more than an evidentiary effect - it does not in fact vary the contractual landscape.
3. He relies on a passage in Steiner v Strang (Steiner) that "...the Acknowledgement had no juridical effect in creating or giving rise to an obligation, it could only be admissible as evidence of an admission by Mr Steiner."[4] in support of the proposition that an acknowledgement of loan merely has an evidentiary effect, unless there is an actual pre-existing debt.
4. The difficulty with Guo Li's reliance on this quote from the decision is that it is entirely out of context. Steiner involved a document that dealt entirely with the acknowledgment of loan by a son to his mother as well as the circumstances in which it would be repayable out of the mother's estate. It was not found in a comprehensive commercial document such as the Shareholder Agreement which contains various rights, obligations, liabilities and duties between multiple parties in a commercial context. That context being to regulate the funding of an ongoing cosmetic medical business, including loans, equity positions, management, relationship to visa application and exit arrangements.
5. As the acknowledgement in this case is found in a comprehensive commercial document, its effect is to be considered against the backdrop of the entirety of those obligations found in the Shareholder Agreement.
6. I do not accept Guo Li's construction of the words of clause 10(b) as a mere acknowledgment in the sense of Steiner. It is clear that the parties agreed to re-set and change the contractual terms upon which they would conduct the affairs of the Business that Lei Li was injecting funds into.

(a) They rearranged the corporate entities. The unnamed corporate entity through which the enterprise was to be conducted under the Cooperation Agreement became ECMGW under the Shareholder Agreement.

(b) The shareholders in the operating company went from EMG (65%) and Yang (35%) under the Cooperation Agreement to ECG (65%) and Lei Li (35%).

(c) Under the Shareholder Agreement, the funds that were injected and to be injected by Yang/Lei Li went from equity or capital to loan funds.

(d) Under the Cooperation Agreement, the only party required to inject funding into the operating company was Yang/Lei Li. Under the Shareholder Agreement, both parties assumed an obligation to inject funds as required after the loan from Lei Li was fully drawn.

(e) The Cooperation Agreement made no provision for the funds injected by any of the shareholders to be repaid at any time, whereas under the Shareholder Agreement, the loan funds were to be repaid upon a shareholder exiting the company.

(f) Under the Shareholder Agreement, a shareholder could require repayment of any loan funds upon giving 60 days' written notice. No such right existed in the Cooperation Agreement.

1. It should also be noted that the Shareholder Agreement contains a comprehensive series of further terms that the parties agreed would regulate their conduct of ECMGW and its business. I will not set out the full suite of terms as they run to about 30 pages of single-spaced small font type. The agreement also contains an entire agreement clause in the following terms:

This agreement, together with any documents referred to in this agreement, or executed simultaneously in connection with this agreement, comprises the entire agreement between the parties with respect to the subject matter of this agreement and supersedes all prior understandings, agreements, representations and correspondence with respect to the same.

1. Having regard to the Shareholder Agreement as a whole, the parties must be taken to have varied the Cooperation Agreement such that the terms of the Shareholder Agreement would prevail in entire substitution for the terms of the Cooperation Agreement.
2. This includes the parties' agreement to vary the manner in which the parties were to fund ECMGW. Properly construed, they must be taken to have agreed that, in the first instance, all investment funding would be provided by way of a shareholder's loan of up to $2,000,000 from Lei Li. The parties acknowledged that ECMGW had received from her up to that date $1,450,000 "by way of shareholder's loan pursuant to clause 10(d)" (emphasis added), so that she was only obliged to provide a further sum of $550,000 in order to satisfy her obligation to pay an aggregate $2,000,000 in shareholder's loan.
3. The plain words of the agreement vary the manner in which the parties agreed to characterise the payment of $1,450,000 hitherto made by Lei Li from equity to debt.
4. To hold, as Guo Li submits I should, that the words of acknowledgement of payment by way of loan funds do not in fact vary the character in which the parties agreed that those funds would be treated, would be to entirely negate the plain words of the agreement and to undermine its evident purpose. That purpose was to set in place an entirely new set of contractual arrangements for their participation and funding of the venture.
5. The law on variation of contract is well known and uncomplicated. The learned authors of Cheshire & Fifoot Law of Contract, said this:

A contract cannot be varied unilaterally, but only by a further contract. Ex hypothesi, variation by contract involves two contracts, the existing one (which may or may not continue to exist: see 22.5) and the new one (the contract of variation). The existence of a contract of variation must be clearly demonstrated by reference to the usual rules of formation. A definite agreement, going beyond discussion or negotiation, must be established, but as with any contract such an agreement may be inferred from conduct. Consideration must also be established. Where a variation is made in favour of one party ostensibly without advantage to the other (for example, a reduction in price), the element of consideration may be missing. However, the modern doctrine of consideration recognises a 'practical' as well as a legal benefit in such situations.

An intention to create a legally binding agreement, as well as sufficient certainty of the varied terms, must also be established; unless this is achieved the original contract continues in undiminished operation.[5]

1. It is my view that all of these requirements have been satisfied in the Shareholder Agreement. Having been reduced to writing, the Shareholder Agreement is definite and went beyond mere discussion or negotiation. Its terms are certain. All of the parties took on new and different obligations under the Shareholder Agreement. Consideration was present. The parties stated that the Shareholder Agreement superseded all prior agreements. There is no room for any further operation of the Cooperation Agreement.
2. As a consequence, I find that by operation of the Shareholder Agreement, the funds provided by Lei Li to ECMGW of $1,450,000 were provided by way of shareholder's loan pursuant to clauses 10(b) and (d). As a consequence, that loan was regulated by the terms of the Shareholder Agreement as from 23 November 2018.
3. On 17 May 2019, Guo Li certified an ASIC Form 484 which recorded the registration of Lei Li as a Director of ECMGW.
4. Upon her appointment as Director, Lei Li began to interrogate the financial position of ECMGW and how the loan funds she advanced had been spent.
5. On 21 May 2019, Lei Li's legal representatives wrote to Guo Li and ECG requesting, amongst other things, relevant financial documents.
6. The parties thereafter fell into dispute.
7. Following a series of communications between the parties, Lei Li advised Guo Li and other parties interested in the business of ECMGW that she wished to withdraw from her participation in the company and to have her loan funds repaid.

1. On 4 July 2019, ECMGW, ECG, EMG, Guo Li, Wang and Zhang (the Covenantors) and Lei Li signed a Deed of Agreement which provided for the orderly repayment of her loan and for her exit from the company.
2. The Deed of Agreement recited amongst other things that disputes had arisen between the parties (relevant correspondence was attached) and that the parties wished to resolve their disputes on the terms in this Deed. In other words, this was a classic deed of settlement of parties' disputes. The Deed annexed a copy of the Shareholder Agreement.
3. The Deed of Agreement provided that:

(a) Lei Li had advanced a total of $1,450,000 to ECMGW by way of a shareholder's loan pursuant to the Shareholder Agreement.

(b) Lei Li had served notice to vary the repayment date of the shareholder's loan of $1,450,000.

1. Guo Li disputes that such notice was in fact served. In oral and written closing submissions he argued that the mere fact that the parties agreed such a notice was given did not make it so. I reject this argument. The parties subscribed to a document that stated that such a notice was given and then undertook obligations upon that basis. That is what was agreed and it is not open to any of the parties to resile from that position. Attempting to put a legal construction on what occurred, this acknowledgement can be taken as a waiver of any right to require Lei Li to formally serve such a notice.[6]

(c) ECMGW and ECG "acknowledged" in clause 2(b) and "agreed" in clause 5 that, as at the date of the Deed, the sum of $1,450,000 was due and payable by ECMGW to Lei Li immediately.

(i) Guo Li disputes that this sum was immediately due and payable notwithstanding that he executed the Deed in which the acknowledgement of, and agreement to, this fact was made.

(ii) I reject this argument for 2 reasons. First, I have already found that the loan was made pursuant to the Shareholder Agreement (see paragraph ‎49 above). Second, by reason of the matters referred to in paragraphs ‎57(a) - (c) above, the parties agreed that the amount of the loan was immediately due and payable. The plain words of the Deed of Agreement make clear that the parties ordered their affairs through the Deed based upon a certain substratum of agreed facts. One was that Lei Li had loaned ECMGW the sum of $1,450,000. Another was that that sum was due and payable as at the date of the Deed of Agreement.

(d) Lei Li agreed not to take immediate action to recover the debt on the condition that ECMGW repay her the full amount advanced according to the repayment schedule set out below:

(e) If ECMGW fails to pay any of the instalments on their due date, Lei Li is entitled to take immediate court action to sue for recovery of the debt, and ECMGW and ECG will not defend the proceedings.

(f) Upon full repayment of the advance, Lei Li agrees to transfer all her shares in ECMGW to ECG pursuant to the Shareholder Agreement.

1. Pursuant to the Deed of Agreement, Guo Li and Wang provided a Covenantor's Guarantee (the Guarantee) that they:

...jointly and severally guarantee to Lei Li the due and punctual performance of all the obligations of the Business under this Deed and hereby indemnif[y] Lei Li against all losses, expenditures, costs and expenses of whatever nature suffered...by Lei Li in recovering any money owing as a result of default in such performance.

1. Between 26 August 2019 and 2 March 2020, ECMGW made a total of $1,000,000 in repayments to Lei Li.

1. On 26 May 2021, Lei Li's legal representatives issued letters of demand to each of the Covenantors demanding payment of the outstanding $450,000. This amount has not been repaid and Ms Lei Li sues on the guarantee.

1. By the conclusion of the case, Guo Li contested his liability under the guarantee on the following three bases. Wang simply adopted the position of Guo Li.

Issue 1: Did Lei Li loan any funds to ECMGW under the Shareholder Agreement?

Issue 2: Did the Deed of Agreement create any obligations upon ECMGW?

Issue 3: Is the Deed of Agreement a valid and binding agreement?

Issue 1: Did Lei Li loan any funds to ECMGW under the Shareholder Agreement?

1. For the reasons given in paragraphs ‎41 to ‎49 above, I have found that she did.

Issue 2: Did the Deed of Agreement create any obligations upon ECMGW?

1. Guo Li submits that the terms of the guarantee only extend to the "due and punctual performance of all of the obligations of ECMGW under this Deed"."
2. He says that, properly construed, unless ECMGW has "obligations under this Deed", there is nothing for the guarantee to fix upon.
3. The argument then continues that the Deed of Agreement did not create any obligations on ECMGW to repay a loan, because that obligation already arose under the Shareholder Agreement.
4. He submits that the Deed of Agreement only operates as a deed of forbearance to sue by Lei Li and does not create any obligation on ECMGW that was not already present under the Shareholder Agreement.
5. He argues that in order to avoid this consequence, Lei Li calls in aid the doctrine of merger, by which obligations under the Shareholder Agreement are extinguished by the Deed of Agreement. He relies on passages from Balanced Securities v Dumayne Property Group Pty Ltd as authority for the view that, where a second agreement varies a first agreement, it may be necessary to determine whether the second agreement merely amends the first or wholly brings it to an end.[7] This issue is to be determined objectively by discovering the manifest intention of the parties.[8] The Court of Appeal said this:

A potentially critical factor militating in favour of a conclusion that the manifest intention of the parties, objectively ascertained, was to bring the earlier agreement to an end and replace it, is where the terms of the two relevant agreements deal with the same subject matter in different and inconsistent ways.[9]

1. He then submits that, applying those principles, the Deed of Agreement does not bring the Shareholder Agreement to an end.
2. I do not consider it necessary for me to make any finding as to whether the Deed of Agreement brings the Shareholder Agreement to an end. What I need to construe is the ambit and operation of the Deed of Agreement and specifically the guarantee and indemnity found within it.
3. Viewed as a whole, the Deed of Agreement was entered into to resolve disputes that had arisen between the parties to the Shareholder Agreement.[10] The resolution was that ECMGW would pay Lei Li $1,450,000 by three instalments on specified dates and that Lei Li would withhold suing on the loan that the parties agreed was immediately due and owing. The parties also agreed that, upon such payments having been made, Lei Li would transfer her shares and thereby exit the company.
4. Whether it brought the Shareholder Agreement to an end is not a matter that I need to resolve.
5. What is clear is that whatever arrangements were found in the Shareholder Agreement as to the repayment of loan funds and Lei Li exiting her shareholding - as to which there plainly are such terms - were varied to the extent provided for in the Deed of Agreement.
6. As to Guo Li's submission that there was no obligation placed on ECMGW to actually make the payments specified in clause 2(c) of the Deed of Agreement, I reject this argument.
7. Giving clause 2 a commercial construction, it provides that Lei Li agreed to forbear suing upon condition that certain payments by ECMGW would be made on specified dates.
8. Prior to the Deed of Agreement, the obligation on ECMGW was to pay the full sum of the loan immediately. By operation of this agreement, it was no longer obliged to do that. In place of that obligation, if it was to have the benefit of the forbearance, it was obliged to make specified payments on specified dates. It obtained an extra three months or so to repay the loan, and then it had to do so by specified payments on specified dates. If it did so, then the parties agreed that Lei Li would exit her shares by transferring them to ECG as provided for in clause 7(a).
9. If ECMGW did not make the payments as specified, the Deed of Agreement provided for a default mechanism. It gave to Lei Li additional protections including the ability to enter consent judgment and machinery provisions for doing so. It provided that certain events would trigger immediate repayment. It also provided for the Covenantors' guarantees and security for payment.
10. The document provides a comprehensive scheme for the settlement of the disputes that had arisen.
11. One of the integers to that scheme was that ECMGW would make certain specified payments on certain dates.
12. Against the backdrop of the Deed of Agreement as a whole, the only sensible construction that can be put on clause 2(c)(i) - (iii) is that it imposed an obligation on ECMGW to make the specified payments on the specified dates. That it had a different obligation to repay the full loan immediately under the Shareholder Agreement does not negate that the parties altered that obligation to an obligation to make payment in three instalments. To that extent it does deal inconsistently with an obligation under the Shareholder Agreement such that it must be taken to have replaced those obligations.
13. Finally, Guo Li argues that clause 5 of the Deed of Agreement provides that any unenforceability of any part of the Deed of Agreement "would not affect the enforceability in respect of the underlying debt."
14. This is not a proper reading of the clause.

To avoid doubt, parties acknowledge and agree that even if any part of this Deed is unenforceable or voidable, as at the date of this Deed, the debt of $1,450,000.00 is due and payable immediately to Lei Li by Evincy Cosmetic Medical Centre (Glen Waverley) Pty Ltd ACN 625807525.

1. The effect of the clause is that the parties, as a separate and further agreement embodied in this clause, agreed that even if part of the deed is unenforceable, the debt of $1,450,000 is due and payable immediately. That is, they agree that the amount of $1,450,000 is due and payable immediately by force of the agreement contained in this clause. This is different to agreeing that the debt owing under the Shareholder Agreement is preserved as is its effect as being immediately due and payable. The effect that Guo Li submits is simply not found in the words of clause 5.
2. For all of those reasons I find that the Deed of Agreement did impose on ECMGW an obligation to pay $1,450,000 to Le Li by three specified instalments.
3. It was this obligation that was the subject of the guarantee by Guo Li and Wang, found in clause 10 of the Deed of Agreement.

Issue 3: Is the Deed of Agreement a valid and binding agreement?

1. Guo Li argues that the absence of the word "sealed" in the execution clause of the Deed of Agreement means that it was not executed as a deed.
2. He relies on Bendigo and Adelaide Bank Ltd v DY Logistics Pty Ltd.[11] I agree this authority makes clear that, absent the words "sealed" in the execution clause, in Victoria, a document signed by a natural person does not take effect as a deed.[12]
3. I also note that in Allsopp v Elly Property Pty Ltd & Ors, Delany J held that "in Victoria, execution with respect to deeds by an individual must be signed by the individual and must include express words to the effect that the deed has been 'sealed'".[13]
4. Lei Li faintly submitted that, as long as the intention of the parties to enter into a deed was clear, the document is to be treated as a deed. She relied on a passage from Butt's Land Law (Butt's).[14] That passage deals with the common law requirements for an executed document to take effect as a deed, which are not relevant to the present issue. Butt's continues in the succeeding paragraphs to deal with statutory modifications of the common law.
5. In this case, notwithstanding that the document itself speaks in terms of a deed, describes itself as a deed and expressly states that it is executed as a deed, the execution clauses of the Deed of Agreement do not include the word "sealed".
6. Given the terms of s 73A of the PLA and the judicial treatment of it, I am bound to find that the absence of the word "sealed" in the execution clause prevents the Deed of Agreement from taking effect as a deed.
7. Notwithstanding this, the Deed of Agreement can obviously take effect as an agreement. However, this requires there to be consideration.
8. Guo Li argues that the onus is on Lei Li to prove that there is consideration to support the guarantee and that such consideration cannot be past consideration, unsupported by further consideration.
9. He relies on two arguments that there was no consideration in the Deed of Agreement to support the guarantee.
10. First, he relies on the argument that there was no binding debt owed by ECMGW for Lei Li to forbear enforcement under the Shareholder Agreement. For the reasons in paragraphs ‎36 to ‎49 above, I have rejected this argument.
11. Secondly, he says that under clause 10(d) of the Shareholder Agreement, shareholder loans are repayable upon the shareholder exiting their shareholding. He notes that under clause 10(d)(iv), the shareholder could give 60 days' written notice to require repayment of their shareholders loan earlier. He submits that there is no evidence that such a notice was actually given. For the reasons given in paragraph ‎57(b) above, I have also rejected this argument.
12. Having rejected the only arguments advanced in support of this issue, I find that consideration was given to support the guarantee given by Guo Li and Wang.

1. For the reasons outlined above, the plaintiff is entitled to judgment against Guo Li and Wang in the sum of $450,000 together with interest pursuant to section 50 of the County Court Act 1958 (Vic) and section 58 of the Supreme Court Act 1958 (Vic), from the date of demand being 26 May 2021 to the date judgment is entered. The parties should confer and agree on the amount of interest to be awarded and advise my chambers within seven days.
2. Subject to any matters that the parties bring to my attention on the question of costs, I propose to order that Guo Li and Wang pay Lei Li's costs of the proceeding (including reserved costs) on the standard basis, in default of agreement.
3. The parties should submit draft orders to my chambers to reflect these reasons within seven days of today's date.
4. Should there be any matters that require the Court's further attention (including in respect of costs) they should correspond with my chambers within seven days.

I certify that these 25 pages are a true copy of the judgment of His Honour Judge Wise delivered on 27 March 2026.

[1] Lei Li has already entered judgment against the First, Second, Third and Sixth Defendants.

[2] I will return to an argument made by Guo Li in closing by which he noted that the parties to the Cooperation Agreement did not fully coincide with the parties to the Shareholder Agreement. He submitted that this impinges on the efficacy of the Shareholder Agreement as fully taking the place of the Cooperation Agreement.

[3] Zhang was the sixth defendant. Default judgment was previously entered against him.

[4] [2015] NSWCA 203 at [4].

[5] Seddon and Bigwood, Cheshire & Fifoot Law of Contract (12th ed, LexisNexis Australia, 2022) at [22.3].

1. [6] Although neither party sought to rely on the doctrine of estoppel by convention (see Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226 at 245), the effect of the contractual agreement reflected in the acknowledgement is much the same. Parties will not be permitted to depart from the state of affairs upon which they have agreed to conduct them.

[7] [2017] VSCA 61; (2017) 53 VR 14 at [77].

[10] This is set out in Recitals C and D. Recital C attaches correspondence which manifests the disputes.

[11] [2018] VSC 558 at [24].

[12] I have not ignored the effect of s 73A of the PLA. This relieves the signing party of actually "sealing" the document - but only so long as the word "sealed" is used.

[13] [2024] VSC 669 at [78].

[14] Edgeworth, Butt's Land Law (7th ed, Thomson Reuters, 2017) at [12.230].