Li v Wang (No 4) [2026] NSWSC 668 | Case summary | Zoe

NSWNSWSC

Li v Wang (No 4)

[2026] NSWSC 668

Supreme Court of NSW|2026-06-11|Before: Weinstein J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-06-11

Before

Weinstein J

Catchwords

CONTRACTS — construction — loan agreement — extrinsic evidence — where agreement was allegedly partly written partly oral — ascertainment of parties to the loan agreement — whether post-contractual conduct supported existence of a contract and its terms — informality of dealings within a family context CONTRACTS — construction — breach of contract — damages — claim for repayment of loan and interest — whether terms uncertain — whether interest payable PRIVATE INTERNATIONAL LAW — applicable law — choice of law rules — contracts — where loan advanced for the purchase of real property in Australia — where the proper law of contract is Australian law CIVIL PROCEDURE — evidence by audio visual link — where application made for witnesses to give evidence from the People’s Republic of China by audio visual link (AVL) — whether leave can be granted — orders set aside

Catchwords

CONTRACTS — construction — loan agreement — extrinsic evidence — where agreement was allegedly partly written partly oral — ascertainment of parties to the loan agreement — whether post-contractual conduct supported existence of a contract and its terms — informality of dealings within a family context CONTRACTS — construction — breach of contract — damages — claim for repayment of loan and interest — whether terms uncertain — whether interest payable PRIVATE INTERNATIONAL LAW — applicable law — choice of law rules — contracts — where loan advanced for the purchase of real property in Australia — where the proper law of contract is Australian law CIVIL PROCEDURE — evidence by audio visual link — where application made for witnesses to give evidence from the People’s Republic of China by audio visual link (AVL) — whether leave can be granted — orders set aside

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Li v Wang (No 4) [2026] NSWSC 668

Hearing dates: 18–21 June 2024, 25–29 November 2024, 14 March 2025, 5–6 May 2025

Date of orders: 11 June 2026

Decision date: 11 June 2026

Jurisdiction: Common Law

Before: Weinstein J

Decision: (1) Judgment for the plaintiff against the first, second and third defendants, jointly and severally, in the amount of $400,000.
(2) The first, second and third defendants are to pay interest at a rate of 5.5% per annum, jointly and severally, from the date that the initial sum, and then the additional sum, were advanced in the amount of $273,377.23.
(3) The first, second and third defendants are to pay the plaintiff's costs incurred up to and including 7 June 2024 on the ordinary basis, as agreed or assessed, and on the indemnity basis from 8 June 2024 onward save for those costs ordered to be paid by the plaintiff to the second and/or third defendants by Registrar Jones on 16 December 2022, Walton J on 19 July 2023, Weinstein J on 27 July 2023 and by Lonergan J on 28 May 2024.

Cases Cited: Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429
Alexiadis v Zirpiadis (2013) 302 ALR 148; [2013] SASCFC 64
Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50
Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647; [1908] HCA 88
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58
Chidiac v Maatouk [2010] NSWSC 386
Diransson Pty Ltd v Hassan El Dirani [2019] NSWSC 617
Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 WLR 1213
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Green v Green (1989) 17 NSWLR 343
Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68
In the matter of H&C Investment Holdings Pty Ltd [2023] NSWSC 1387
In the matter of Mulberry Capital Management Pty Ltd v Shen - AVL Application [2022] NSWSC 1023
In the matter of Sunnya Pty Ltd [2023] NSWSC 1286
Jeans v Cleary [2006] NSWSC 647
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213; [2011] FCAFC 95
Lactos Fresh Pty Ltd v Finishing Services Pty Ltd (No 2) [2006] FCA 748
Lewis v Lewis [2022] QSC 208
Li v Wang [2022] NSWSC 653
Li v Wang [2023] NSWSC 878
Li v Wang (No. 3) [2024] NSWSC 661
Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548
Loyola v Cryeng Pty Ltd [2012] FCAFC 71
Lumbers v W Cook Builders Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27
Lym International Pty Ltd v Marcolongo (2011) 15 BPR 29,465; [2011] NSWCA 303
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32
Marshall v Fleming [2010] NSWSC 86
Michael Wilson and Partners Ltd v Nicholls [2009] NSWSC 1033
Miliangos v George Frank (Textiles) Ltd (No 2) [1977] QB 489
Mitchell v Gibbins [2024] NSWSC 1524
Moses v Macferlan (1760) 2 Burr 1005
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54
Nu Line Construction Group Pty Ltd v Fowler (2012) 16 BPR 31,011; [2012] NSWSC 587
Official Trustee in Bankruptcy v Lopatinsky (2003) 129 FCR 234; [2003] FCAFC 109
OLI 1 Pty Ltd v OLG 1 Pty Ltd (No 2) (2022) 164 ACSR 171; [2022] NSWSC 1199
Ormwave Pty Ltd v Smith [2007] NSWCA 210
Pan Ocean Shipping Co Ltd v Creditcorp Ltd [1994] 1 WLR 161
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5
Rowson v Alpass (No 2) [2024] VSC 169
Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68
Royal Bank of Canada v The King [1913] AC 283
Shepherd v Doolan [2005] NSWSC 42
Silversea Cruises Australia Pty Ltd v Abellanoza [2019] NSWCA 306
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306; [1999] HCA 3
Talacko v Talacko [2009] VSC 349
Taleb v DPP [2014] VSC 285
The Bell Group Ltd (In liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1; [2008] WASC 239
Tomkinson v First Pennsylvania Banking and Trust Co [1961] AC 1007
Tryam Pty Ltd v Grainco Australia Ltd [2003] NSWSC 812
Volonakis v Erceg [2019] NSWSC 1875
Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986
Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society (1934) 50 CLR 581; [1934] HCA 3
West v Mead [2003] NSWSC 161

In accordance with the agreement, the plaintiff advanced sums amounting to RMB3,000,000 into bank accounts nominated by the defendants;
In or about early July 2016, there was a further agreement between the plaintiff and the defendants that the plaintiff would lend to the defendants an additional sum of AUD203,200.00 (“the additional sum”), also for the purpose of the Wolli Creek property purchase, and the defendants agreed to repay the additional sum plus interest on the same terms noted at paragraph (3) above;
The additional sum was transferred to accounts associated with Zisu;
In July 2016, the funds were used to purchase the Wolli Creek property for Zisu;
The defendants each resided in the Wolli Creek property during the period between July 2016 and February 2020, or parts thereof;
Upon the plaintiff demanding repayment in November 2017, the defendants repaid RMB400,000 on 3 November 2017, RMB20,000 in early May 2018 and RMB637,000 on 9 May 2018;
In late 2019, the defendants promised to repay the outstanding balance following the sale of the Wolli Creek property and the plaintiff agreed not to demand repayment of the outstanding balance until after the Wolli Creek property was sold;
On 7 February 2020, the Wolli Creek property was sold;
The total net proceeds of the sale of the Wolli Creek property were AUD1,001,193.00;
Zisu received the proceeds of the sale of the Wolli Creek property;
Upon the plaintiff again demanding repayment of the outstanding balance in about February 2020, the defendants promised to pay AUD220,000 within one month and to sell a second property at Vernon Avenue, Eastlakes, NSW (“the Eastlakes property”) and repay the balance of the loan after that sale;
On 9 March 2020, Zisu repaid AUD220,000 to the plaintiff;
On 19 January 2021, the defendants promised to sell the Eastlakes property within three months and to repay the outstanding amount using the sale proceeds;
In April 2021, the plaintiff again demanded repayment of the outstanding balance from the defendants;
In about June 2021, the plaintiff discovered that the Eastlakes property had been sold and again demanded repayment;
On 4 August 2021, Changshun instructed Zisu to repay AUD400,000 to the plaintiff;
On 5 August 2021, Changshun left Australia and went to the PRC;
On 15 August 2021, the plaintiff demanded that the defendants repay the outstanding balance including interest by no later than 16 August 2021;
On 26 August 2021, Zisu represented that she would cause a transfer of AUD400,000 and RMB333,115 in accrued interest to the plaintiff;
The defendants have failed to pay the outstanding sum of AUD400,000 plus interest, in breach of the agreement; and
The plaintiff has suffered loss and damage in the amount of AUD400,000 plus interest.
By Amended Defences filed on 5 September 2023, the second and third defendants admitted that certain funds had been transferred amongst themselves, that Changshun and Jianrong had resided in the Wolli Creek property from time to time, that Zisu had received the proceeds from the sale of the Wolli Creek property and that in August 2021 Changshun left Australia and went to the PRC where he has remained. They otherwise broadly did not admit or else denied the balance of the plaintiff’s pleaded case.

Jianrong and Zisu had also proposed to rely on evidence from three further witnesses at the hearing: Zhongpeng Wang, a Chinese lawyer, Fenglan Su, Jianrong’s younger sister, and Subo Zhang, a hospital administrator in the PRC. I rejected the evidence of each of these witnesses and indicated I would give reasons in the judgment. These are my reasons.
Zhongpeng Wang, Fenglan Su and Subo Zhang are each resident in the PRC. Prior to the hearing before me, Jianrong and Zisu made an application for an order under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) that Fenglan Su, Subo Zhang, and Zhongpeng Wang give evidence from the PRC by way of audio-visual link (“AVL”). That application was heard and granted by Lonergan J: see Li v Wang (No. 3) [2024] NSWSC 661, where her Honour relied principally on the statements of Hammerschlag CJ in Eq in In the matter of Mulberry Capital Management Pty Ltd v Shen - AVL Application [2022] NSWSC 1023 at [20] and [24]-[25].
However, at the hearing before me, I drew the parties’ attention to the decisions of In the matter of Sunnya Pty Ltd [2023] NSWSC 1286 (“Sunnya”), Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986 (“Wang Chunfeng”) and In the matter of H&C Investment Holdings Pty Ltd [2023] NSWSC 1387. The import of these decisions, for present purposes, is that the taking of evidence by this Court from witnesses located in the PRC may, first, give rise to a contravention of the laws of the PRC and, second, amount to an intrusion on the PRC’s sovereignty—in the sense of its “internal independence, including freedom from the exercise of jurisdiction by foreign states, without permission, within the [PRC’s] geographical confines”: see Sunnya at [133] citing Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213; [2011] FCAFC 95 at [55]-[56] and [63] (Keane CJ, Dowsett and Greenwood JJ) and the authorities cited therein, see also J Crawford, Brownlie’s Principles of Public International Law (9th ed, 2019, Oxford University Press) at 462.
The effect of the relevant prohibition under Chinese law was identified by Stewart J in Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153 at [19] (with the benefit of advice from Chinese lawyers, which his Honour accepted) (see also Wang Chunfeng at [18]):-

Mr Fielder submitted that in view of the amount of money in dispute, the interest already accrued and the costs already incurred by both parties, the expense was not undue. Mr Fielder also submitted that there was insufficient evidence to satisfy the Court of the actual expense which was to be incurred, given that evidence of the expense was one sentence in an affidavit of the defendants’ solicitor providing an estimate of $10,000, and that there was no evidence about how that figure was arrived at.
In my opinion, there was little evidence to suggest that the cost of Mr Wang’s travel to Sydney was significant enough to amount to undue expense. Indeed, the evidence supporting that submission was weak and came from someone other than the witness. Whilst I accept that there would be expense, it does not rise to undue expense, which is synonymous with excessive in this context. Furthermore, the evidence would be admissible only as credibility evidence and might only be marginally relevant (if at all) to any fact in issue in the proceedings. Lastly, no notice was given and no explanation was given for the failure to give notice. I took into account all matters set out in s 192(2) of the Evidence Act in arriving at the conclusion that I should not dispense with notice. In the circumstances, I rejected Zhongpeng Wang’s evidence.
With respect to Fenglan Su, Mr Kabilafkas relied on s 63 of the Evidence Act. He submitted that the witness was unavailable within the meaning of the Evidence Act, because all reasonable steps had been taken by the defendants to secure her attendance without success. Mr Kabilafkas relied on the affidavit of Mr Lu affirmed on 25 November 2024, which indicates that Ms Su had twice applied for a visa to come to Australia and had twice been refused (in 2023 and 2024), that there were no review avenues available to her, and that she had no new material to place before the decision-maker to found a new application. Mr Kabilafkas asked me to draw an inference that a third application would have been similarly futile (and for which there was no merits review).
Mr Fielder submitted first, that Jianrong and her legal representatives had known about the refusal of the witness’s visa application before arranging for her affidavit. Second, Mr Fielder submitted that the refusal of the visa application might be attributed to the way the application was completed. He pointed out that when asked to list all family members, Fenglan Su failed to disclose her sister Jianrong, and in her second application, having answered “Yes” to the question “Has the applicant previously applied for a Visa for Australia?”, the witness then answered “No” when asked if she had ever had a visa “refused or cancelled” (in circumstances where the first application had obviously been refused). Mr Fielder submitted that the witness was therefore not “unavailable” in the relevant sense, because her unavailability may or may not have come about by her own doing in answering the form incorrectly. Mr Fielder further submitted that there was insufficient evidence explaining why no application was made for a short stay visa in more recent times.
Mr Kabilafkas accepted that if I found that the witness was unavailable, he would also need a direction that the notice requirements in s 67(1) of the Evidence Act be dispensed with. Mr Kabilafkas submitted that any such direction could be conditioned on the plaintiff having the opportunity to administer interrogatories. Mr Kabilafkas submitted that, having regard to the matters in s 192(2) of the Evidence Act, I would make such a direction. However, he conceded that if I refused the application it would greatly simplify the trial, which was itself also an important factor as the witness’s evidence might be characterised as peripheral.
As to Ms Su’s availability, I was not satisfied that all reasonable steps had been taken, but without success, by the party seeking to prove she was unavailable. Until such time as Ms Fu had correctly completed a visa application, I was not prepared to find her to be unavailable. Furthermore, her evidence was of questionable relevance as it was proposed to be deployed largely for credibility purposes. Again, without explanation, no notice was given. In those circumstances, I rejected Ms Su’s evidence.
As to Subo Zhang, Mr Kabilafkas relied on s 63 of the Evidence Act with respect to unavailability. Mr Kabilafkas relied on the affidavit of Mr Lu affirmed on 25 November 2024 to the effect that Ms Zhang told Mr Lu that she has claustrophobia which prevents her from flying, that she would not provide a medical certificate verifying the phobia and that she did not have a passport enabling her to travel to Australia. Mr Kabilafkas submitted that in the circumstances, all reasonable steps had been taken by the defendants, Jianrong and Zisu, to secure Ms Zhang’s attendance, and therefore the test for unavailability was satisfied.
Mr Fielder submitted that there was insufficient evidence to establish that the witness was unavailable within the meaning of the Evidence Act. Mr Fielder submitted that the only evidence of the witness’s alleged mental condition was one word in the affidavit of Mr Lu, and that there was no explanation of how that was communicated to Mr Lu or anything in writing from the witness herself to verify this. Mr Fielder submitted that there was no medical evidence of any kind referring to the witness’s phobia, let alone the extent of her condition and whether it might be ameliorated by, for example, medication.
In my view, the evidence was insufficient to establish unavailability. At its highest it was an assertion by Ms Zhang to Mr Lu that she has a phobia. At the least, the Court would have expected some confirmation in a medical report. Therefore, I did not find that Ms Zhang was unavailable. Further, the failure to serve a notice in the case of Ms Zhang was particularly egregious, as it must always have been known to the defendants that she could not come to Australia to give evidence because of her alleged phobia. Her evidence was likewise primarily relevant only for a credibility purpose. I would not have dispensed with notice, even if I had found her to be unavailable. In the circumstances, I excluded Ms Zhang’s evidence.

The plaintiff alleges that in about April 2016, Changshun contacted her by telephone and asked for a loan of RMB3,000,000. The loan was allegedly sought for the purpose of helping Zisu to purchase a property in Sydney. The plaintiff said that she did not agree to lend the money to Changshun during that initial conversation.
The plaintiff said that Jianrong contacted her a short time after Changshun, and asked for a loan of RMB3,000,000 to her, Changshun and Zisu for the purpose of Zisu purchasing a property in Sydney. Again, the plaintiff did not agree to loan any money at that stage and they did not discuss or agree on interest. At this time, Jianrong, Changshun and the plaintiff were in the PRC, and Zisu was in Sydney.
The plaintiff said that she did later agree to lend the money, pursuant to an agreement with all three defendants, in about May 2016. The plaintiff said she agreed to lend them RMB3,000,000 for the purpose of purchasing the Wolli Creek property and that the agreement was concluded between the parties across multiple conversations involving all three defendants at various times. Jianrong and Zisu denied this.
The plaintiff gave evidence of a telephone conversation involving the plaintiff (who was in the PRC), the plaintiff’s son Chang Su and Zisu (who were both in Sydney) in about May 2016. This evidence was corroborated by Chang Su in his evidence. The plaintiff said that Chang Su told her that he had been unable to help Zisu secure a loan for the purchase of the Wolli Creek property, and that Zisu told her that it was unlikely that she would be able to get a bank loan. The plaintiff said that Zisu then said that she "would be so grateful if you can lend $600,000 [the equivalent of RMB3,000,000] for me to purchase a property in Wolli Creek in Sydney". The plaintiff said that she recalls telling Zisu that she could not advance any funds because her money was tied up in term deposits and investments which had not matured. The plaintiff said that she was persuaded by Zisu telling her that she had already paid an AUD200,000 deposit, which would be lost if the plaintiff did not lend her the money. The plaintiff says she also recalls that Zisu explicitly asked her how much interest she was earning on her investments, that she told Zisu that she was earning 5.5% per annum, and that Zisu told her that after she settled the Wolli Creek property, she would pay back the money along with interest of 5.5% per annum. Zisu told the plaintiff that her own money was tied up in other real property, including a property in Eastlakes that she was refurbishing and which she intended to sell for a profit. Zisu also told her that her mother, Jianrong, had just had a “big surgery” and that was why her father had not been able to provide Zisu with the funds himself. The plaintiff said that she told Zisu that she would think about it and that she would do her best to help her. She recalled feeling bad for Zisu at the time.
The plaintiff then described several subsequent telephone conversations with both Changshun and Jianrong as follows:

The plaintiff gave evidence that, as a result of these conversations, in about early June 2016 she agreed to lend the money to the three defendants. She said that, in a conversation with Jianrong and Changshun in the PRC, she said words to the effect of: "I will lend RMB3,000,000 to you for settle the property in Wolli Creek if you agree to pay 5.5% interest per annum and pay the money back to me after the settlement or whenever I need it." She said that Changshun and Jianrong responded with words to the effect of "Thank you very much, we couldn't thank you more, we will pay the 5.5% interest per annum and pay the money back to you after the settlement or whenever you need it, please trust us. We will ask Zisu [to send] the bank account details for you to transfer funds." The plaintiff said that she was ultimately content to provide the loan for the sake of her relatives’ well-being and because they agreed to pay the same interest she was earning on a term deposit with China Construction Bank and an investment fund in Shanghai Pudong Development Bank.
The plaintiff said that, consequently, between 12 June 2016 and 1 July 2016 she caused RMB3,000,000 to be transferred to the defendants. The transfer was achieved using intermediaries: the plaintiff transferred RMB1,000,000 and arranged for two friends to transfer a further RMB1,000,000 each—for a total of RMB3,000,000—into a Bank of China account in the name of Zisu’s father-in-law, Difei Jiang. Difei Jiang subsequently transferred equivalent amounts to Changshun’s Westpac account in Australia. The plaintiff’s evidence was that Zisu asked her to send the money to Difei Jiang and that Zisu gave her Difei Jiang’s bank account details in order to do so. Zisu denied this in her evidence and in her affidavit, but I observe that it is unlikely that any other person would have known his bank details. Difei Jiang was not called to give evidence.
It is not in dispute that those funds ultimately found their way to bank accounts associated with the three defendants in Australia (to which see below).

The plaintiff’s evidence is that in early July 2016, Changshun and Jianrong requested a further loan of AUD203,200 (RMB1,000,000) to apply to the settlement of the Wolli Creek property, on the same terms as the initial loan including interest, which Jianrong and Zisu deny. The plaintiff’s evidence is that she agreed to loan the further amount, and that between 4 July and 17 August 2016 she caused AUD203,200 to be transferred to the defendants in four instalments. One instalment of AUD51,000 was sent to Jianrong’s ANZ bank account on 4 July 2016 and three instalments were sent to Changshun’s Westpac bank account on 11 July 2016 (AUD50,200), 26 July 2016 (AUD51,000) and 17 August 2016 (AUD51,000). Documents in evidence confirm the transfers of these funds.
Documents conclusively show that between 13 July and 26 August 2016, AUD50,999.96 was transferred to Zisu's bank account in multiple instalments from Jianrong's ANZ bank account and AUD150,000 was transferred to Zisu's bank account in multiple instalments from Changshun's Westpac bank account (which Zisu admits). Jianrong’s evidence demonstrated that she allegedly had very little knowledge about the Australian bank accounts in her name and Zisu admitted in cross-examination that she operated Changshun’s Westpac bank account and Jianrong’s ANZ bank account, and that she undertook all of the transfers of funds from those accounts into her own account.
In July 2016, the Wolli Creek property was purchased by Changshun for AUD1,025,000. The property was registered in Changshun’s name, although I observe that curiously (and without explanation), Zisu was recorded as the “transferee” on Annexure “A” to the transfer. The transfer was lodged by Alice Yang & Associates Solicitors and signed by Alice Yang on behalf of the transferee. Documents in evidence demonstrate that, from at least 2013 to 2022, Alice Yang has acted for Zisu with respect to three additional real property transactions and I infer that Zisu arranged for Ms Yang to act on the purchase of the Wolli Creek property, and gave her instructions. Alice Yang was not called to give evidence.

In early 2017, Jianrong apparently was admitted to hospital and subsequently diagnosed with stomach cancer. Shortly thereafter, she moved with Changshun to Australia where she has lived ever since.
From about November 2017 onwards, the plaintiff said she made numerous demands for repayment from the defendants. In about November 2017, the plaintiff said that she contacted Changshun over the phone and asked him and his family to repay the loan. On 3 November 2017, Changshun repaid the plaintiff RMB400,000 in cash at her home in the PRC.
The plaintiff was granted permanent residency in Australia on 29 January 2018. On or about 15 April 2018, the plaintiff travelled to Sydney. She said that by this time, Changshun and Jianrong were living with Zisu at the Wolli Creek property. Jianrong and Zisu denied that Zisu was living at the Wolli Creek property. The plaintiff said that, during her trip, she met all three of the defendants at the Wolli Creek property and again asked them to repay the balance of the loan so that she could buy real property in Sydney. The plaintiff said that each of the three defendants told her that they did not have enough money to pay back the loan at that point, but that they would shortly sell the Wolli Creek property and would repay her using the proceeds from that sale.
The plaintiff said that shortly thereafter she returned to the PRC. In early May 2018, Changshun made a further partial repayment of the loan by transferring RMB20,000 to her account and also by giving her USD100,000 in cash in person. The plaintiff said that, following receipt of this further repayment, she made a notation on the handwritten IOU note that she had earlier received from Changshun and Jianrong in August 2016, indicating that an amount of “one million Chinese Yuan” had been paid back. The plaintiff said that this was intended to make clear that only a balance of RMB3,000,000 remained.
From 2018 onwards, the plaintiff said that she had frequent contact with each of the defendants and asked to be repaid on numerous occasions. She said that she was told multiple times by each of the defendants that they were in financial difficulty and needed more time to repay.

The plaintiff said that on or about 7 February 2020, Changshun informed her that the Wolli Creek property had been sold and that the balance of the loan and interest would shortly be repaid. When the plaintiff asked Changshun if the defendants could repay her immediately, Changshun responded that he would let Zisu pay her back from the proceeds of the sale of the Eastlakes property which was owned solely by Zisu.
On 17 February 2020 at the Eastlakes property, the plaintiff says that she asked each of the defendants to repay the loan and interest, knowing that the Wolli Creek property had been sold. Zisu asked to delay payment because she was refurbishing the Eastlakes property. She said that the property would soon be sold and she would use the proceeds of its sale to repay the plaintiff. The three defendants said that they would make a payment of AUD220,000 within a month and that Zisu would sell the Eastlakes property within a year and pay the outstanding balance.
On 9 March 2020, Zisu transferred AUD220,000 into the plaintiff’s bank account. In her Amended Defence, Zisu denied that this AUD220,00 payment was intended to be a “repayment” of the loan. In her affidavit, Zisu stated that the transaction related to a “moat redevelopment business” and that “my father asked me to transfer $220,000 to [the plaintiff], which I did”. Indeed, Zisu’s evidence was that she did not become aware that there was a loan between the plaintiff and her father until much later, in late July or early August 2021, which for various reasons to which I will shortly come, I cannot accept.
In the plaintiff’s bank statements, the description of the 9 March 2020 transaction was only partially visible, showing only the words “Zisu Wang purpose is” with the rest of the description cut off. However, bank records produced pursuant to subpoena on the eve of the trial revealed that the full description for the transaction by Zisu Wang was “purpose is to refund a loan”. When pressed about this inconsistency in her evidence when cross-examined by Mr Fielder, Zisu denied that the payment was repayment of the loan. Zisu said that on the day of that transaction she had accompanied her father to the bank and told the bank staff to do whatever her father asked with the money. She said that she was at the bank counter with her father the whole time that the transaction was being processed, but denied hearing that the purpose of the transaction was to refund a loan. She denied fabricating a story of attending the bank with her father after the complete transaction record was produced.
On 19 January 2021, the plaintiff said that she visited the defendants at the Eastlakes property and asked about the progress of its sale. Changshun said that the property would be sold within three months and that the loan would then be repaid. Jianrong and Zisu participated in that conversation and they nodded their assent to Changshun’s proposal.
On 20 April 2021, the plaintiff again visited the defendants at Eastlakes. Zisu told the plaintiff a sale would soon be forthcoming, following which the plaintiff would be repaid. In late May or early June 2021, during a phone call with Changshun and Zisu, they told the plaintiff that the Eastlakes property had been sold and that they would repay the loan of AUD400,000 plus interest once the sale was complete.

Changshun then provided the plaintiff with written instructions for Zisu, directing her to repay the plaintiff the outstanding principal amount of the loan. Changshun also provided the plaintiff with a second note confirming the principal amount loaned by the plaintiff. Those documents were in evidence. On 10 August 2021, the sale of the Eastlakes property was completed. The sale price was AUD1,980,000. Zisu received the net proceeds of sale.
Changshun has never returned to Australia, and the relationship between the plaintiff and the defendants broke down. The plaintiff said that she and each of the defendants were unable to reach an agreement regarding, amongst other things, the interest which was payable.
The plaintiff said that on 25 August 2021, Changshun offered to pay her a lump sum of AUD400,000 as repayment for the principal and to pay accrued interest in the amount of RMB330,115. The plaintiff said that she disagreed with Changshun’s interest calculation. The plaintiff asked Changshun to repay the principal immediately, with a view to leaving the question of interest to be dealt with separately. However, the plaintiff said that none of the defendants have ever made a further repayment, which was not in dispute.
Included in evidence were a number of WeChat messages that were exchanged between the plaintiff and Changshun and Zisu at about this time. These messages included the following:
On 15 August 2021, Zisu sent messages to the plaintiff which were translated into English by both a certified translator and by the interpreter during the trial as follows: “Nobody said you will not be paid back” and “We always said you will be paid back”. At trial, the defendants contested this characterisation of the message and asserted that the message did not contain the word “we”.
On 15 August 2021, the plaintiff sent a message to Zisu which said, amongst other things, “isn’t paying back the debt you owe the rightful thing to do?” Zisu did not respond to this message.
On 16 August 2021, the plaintiff wrote to Changshun: “Do you sometimes look at the IOU you and Jianrong wrote on a copy of an ID card, and go over the details of the things that happened in the old days?” In response, Changshun said: “Let me tell you this, sister. Jianrong and I are your debtors, and we have no money in our bank accounts. This has nothing to do with [Zisu]. If you want to sue someone, go ahead.”
The plaintiff says that she repeatedly tried to contact Jianrong over this period by phone, but that Jianrong never replied to her calls or messages.
On 26 August 2021, Zisu sent the plaintiff a message in which Zisu confirmed that she would repay AUD403,000 to the plaintiff "so the [principal] is paid off". The plaintiff said that she expressed her disagreement with the defendants’ interest calculation and asked Zisu to repay the principal amount of AUD400,000 immediately. The plaintiff said that Zisu then blocked her on WeChat and stopped responding to the plaintiff’s attempts to contact her.

Also in evidence were various documents produced by the plaintiff’s lawyers, over which privilege had been waived.
In early August 2021, the plaintiff engaged Legal Point Lawyers for advice in relation to “Changshun Wang and others”. The plaintiff’s evidence at the hearing was that she consulted Legal Point Lawyers specifically for the purpose of “working out the interest”. In her answers to the firm’s online questionnaire, the plaintiff stated that the defendants “even disputed the bank’s interest rate”. A letter of advice issued by the firm recorded the firm’s understanding of the plaintiff’s instructions, stating on the first page that “[t]hey agreed to compensate the loss of interest that [the plaintiff] would have [been] entitled to under her bank finance product”. The letter does not record any instructions that a specific interest rate of 5.5% per annum was agreed, although I note that the plaintiff’s evidence is that her various investments yielded interests of 5.5% per annum.
Later in August 2021, the plaintiff retained KWL Lawyers to act for her. Documents produced by KWL Lawyers indicate that the plaintiff told KWL Lawyers that she had been unable to reach an agreement with the defendants on interest in 2021. The documents do not explicitly address whether an agreement on interest was reached in 2016. Also in evidence were WeChat messages between the plaintiff, her son and the firm, where an interest rate of 7.6% is discussed.
On 6 September 2021, KWL Lawyers issued a letter of demand on behalf of the plaintiff to Changshun and Zisu. The letter claimed a sum in interest but no specific reference is made to an interest rate of 5.5% per annum or to any other rate. Zisu’s solicitor (who at that time was also acting for Changshun) replied to that letter on 13 September 2021, inquiring as to the method of calculating the amount of interest claimed, the applicable interest rate and the basis for claiming interest at that rate, and the basis of making a claim against Zisu. There was no reply to this letter.
On 16 September 2021, KWL lawyers sent a letter of demand for repayment to Jianrong. On 17 September 2021, the defendants’ solicitor replied to that letter indicating that they also acted for Jianrong and repeating the inquiries contained in their letter of 13 September 2021.
On 19 November 2021, KWL Lawyers filed a statement of claim on behalf of the plaintiff, against Changshun and Jianrong only, in the District Court of New South Wales. The proceedings were removed to this Court by Johnson J on 23 May 2022: Li v Wang [2022] NSWSC 653.
In November 2022, the plaintiff appointed Lexsons Legal to act for her. Included in evidence before me were documents setting out the instructions which were given to Lexsons Legal by the plaintiff and her son. They provided a letter of advice dated 15 December 2022 along with a draft statement of claim. These documents discuss a claim for interest but do not specifically refer to a rate of 5.5% per annum.
In February 2023, the plaintiff’s current solicitor, Mr Li Feng of Lawside Lawyers, commenced acting on her behalf. Mr Feng initially confirmed that the plaintiff would not amend her Statement of Claim, although he reserved the plaintiff’s rights to seek amendment “in due course if the circumstances require her to do so”.
Jianrong filed a defence to the plaintiff’s Statement of Claim on 27 March 2023. On 11 May 2023, the plaintiff filed an application seeking leave to amend her Statement of Claim to add Zisu as a defendant, on the basis that she was also a party to the loan agreement in 2016. I made orders granting the application for amendment, along with other orders, on 25 July 2023: Li v Wang [2023] NSWSC 878. The plaintiff filed an Amended Statement of Claim on 15 August 2023. Jianrong and Zisu filed their defences to that Amended Statement of Claim on 5 September 2023. Amended defences were later filed during the hearing on 20 June 2024.
Both Jianrong and Zisu deny that they were party to any agreement with the plaintiff. They also deny being aware of an agreement (which they say was with Changshun only) until 2020 (in the case of Jianrong) and 2021 (in the case of Zisu). Further, they deny that a rate of interest was agreed, which I observe is at odds with being unaware of any agreement until many years after it was entered into. It is also at odds with many other facts which cannot seriously be in dispute, to which I will come.
Chang Su (the plaintiff’s son) and Jianjiang Su (the plaintiff’s husband) gave evidence in the proceedings on behalf of the plaintiff. Yupeng Jiang (Zisu’s husband) gave evidence on behalf of the defendants. Their evidence was largely uncontroversial.

Both parties invited me to make credibility findings with respect to each of the critical witnesses. I set out these arguments and my determinations below. I acknowledge the “fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom”: see Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In L**iq) (1999) 73 ALJR 306; [1999] HCA 3 at 328 [88]. I have endeavoured to limit my conclusions, “as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] (Gleeson CJ, Gummow and Kirby JJ).
The plaintiff (and, to a limited extent, her son), Jianrong and Zisu were cross-examined on credibility pursuant to s 103 of the Evidence Act, on the assumption—which was realised in the case of Jianrong and Zisu—that the evidence adduced in cross-examination would substantially affect the assessment of their respective credibility.
The cross-examination on credibility was evidence relevant to both the defendants’ reliability and to their honesty. In this case, the cross-examination of the defendants was devastating with respect to their respective credibility.
I accept the evidence of the plaintiff and her witnesses. I accept the evidence of the plaintiff and her son as to their recollections of the period from 2016 to 2021 which, by and large, match up with documents created at the time, and which Jianrong and Zisu largely disavowed or explained away in an unconvincing manner. I prefer their evidence to the defendants’ evidence in every material respect, including their evidence about the timing and content of conversations that were had, and in particular about the conversations between the plaintiff and each of the defendants in May and June 2016 when the agreement was formed.
I make adverse credibility findings against Jianrong and Zisu. These findings are not based solely on demeanour, but rather are based largely on the documentary evidence which contradicted their evidence in this Court. As a result, I do not accept any substantive matter to which they depose in their affidavits, including their alleged conduct after the agreement—which I find they entered into with Changshun—to jointly and severally borrow the sums alleged in the Amended Statement of Claim and which included the agreement to pay interest on the borrowed money at the rate of 5.5% per annum.
I deal with the credibility findings in more detail below.

Mr Kabilafkas cross-examined the plaintiff over more than three days, and she was steadfast. He submitted that the plaintiff’s evidence could not be relied on in the absence of independent corroborative evidence. He submitted that her evidence, in particular with respect to the question of interest, which she adhered to under cross-examination, was wholly inconsistent with the objective evidence. Mr Kabilafkas submitted that the plaintiff’s evidence might have been knowingly false, or she might have unconsciously adopted a narrative which accorded with her interests in the proceedings, but that either way it could not be relied upon.
Mr Kabilafkas was critical of the plaintiff because she was allegedly incorrect about two events to which she tied her evidence: first, the date of her mother-in-law’s death, and second, the timing of Jianrong’s stomach cancer. He was critical of the plaintiff for not conceding the error she had allegedly made with respect to the timing of Jianrong’s cancer.
As to the date of the plaintiff’s mother-in-law’s death, I do not think it is of any particular significance, and no independent evidence establishes that date. As to the second, whilst I accept that Jianrong was diagnosed and had surgery performed in the PRC in January 2017, I infer that she had been very unwell in the months leading up to that surgery, which would encompass the months in which the plaintiff agreed to loan the funds to the defendants. In that context, I accept the plaintiff’s evidence that she felt bad for Jianrong and Zisu when she was asked to lend money for the purchase of real property in Sydney for Zisu.
As to the plaintiff’s explanations about interest, I observe that the tenor of the plaintiff’s evidence was “why would I lend this money without the payment of interest?”. I accept that explanation in its entirety. As to the calculation, I accept that the only terms on which the plaintiff would lend the money was at the approximate average rate of interest on her Chinese investments which I accept was 5.5% per annum and which rate was accepted by the defendants. That the documents produced from the plaintiff’s former solicitors from August 2021 and thereafter do not mention that rate of interest does not, in my opinion, demonstrate that the rate was never agreed. Those documents only came into existence after Zisu had a conversation with the plaintiff in 2021 (which I accept), when Zisu said that, because the agreement as to interest was not in writing, it was unenforceable and the defendants would not pay it. In light of that conversation, the documents upon which Mr Kabilafkas relied and the circumstances in which they came into existence (by telephone, during COVID-19 and through the plaintiff’s son) are entirely explicable.
In my opinion, the plaintiff was a credible and honest, although voluble, witness. I accept her evidence in every instance when it conflicts with the second and third defendants, including the phone call with Zisu when Chang Su was present in about May 2016 and the occasion in August 2016 when Jianrong presented the plaintiff with the IOU which had already been signed.

Mr Kabilafkas submitted that Chang Su’s evidence was given to assist his mother, that it could not be accepted absent independent corroboration and that little reliance should be placed upon it. He observed that Chang Su prepared his affidavit after the documents concerning interest calculations that were produced by Lexsons Legal were put into evidence, and that Chang Su did nothing to explain those documents despite his involvement in the preparation of them.
I found Chang Su to be a reliable and honest witness who did his best to answer Mr Kabilafkas’s questions. With respect to the material conversation between Chang Su, Zisu and the plaintiff in about May 2016, I accept that Chang Su had a good recollection of it because he was busy at the time when Zisu had insisted that he attend her home so that they could speak to his mother together. I accept that Zisu told the plaintiff, in Chang Su’s presence, that she needed a loan to settle on the Wolli Creek property and that she would pay back the money with 5.5% per annum interest on demand. I accept that Chang Su heard his mother say that most of her money was in a term deposit and a financial management account earning 5.5% per annum in interest and it would be difficult to withdraw it early, and she would have to think about it. I accept too, that in 2021, Zisu told Chang Su that, whilst she and her parents had agreed to repay the plaintiff interest of 5.5% per annum, there was nothing in writing about it, and that the interest rate was too high. So far as Chang Su’s communications with lawyers and legal assistants on behalf of his mother in 2021 are concerned, I accept that they must be understood in the context of Zisu’s assertion to him that the rate of interest was not in writing and unenforceable.
Mr Kabilafkas suggested that Chang Su’s evidence was tailored to assist his mother’s case, which he denied. In light of the negative findings I make with respect to Zisu’s credibility, I accept Chang Su’s evidence wherever it contradicts Zisu’s, including that they had a close relationship in the years when they were in Australia without their respective parents.

Mr Fielder submitted that there were a number of significant issues with Zisu’s evidence which warranted a finding that her evidence was unreliable and that she was not a credible witness. He highlighted various aspects which were said to be problematic:-
First, Mr Fielder submitted that Zisu’s affidavit evidence in respect of the AUD220,000 payment that she made to the plaintiff in March 2020 was untruthful. Zisu’s affidavit stated that this payment was for a “moat redevelopment business” and that the “first time [she] became aware that there was a loan between Bin and Changshun was in late July or early August 2021”. Mr Fielder submitted that this evidence was false because bank statements produced under subpoena revealed that Zisu gave the AUD220,000 payment the following transaction description: “purpose is to refund a loan”. He submitted that Zisu attempted to explain this contradiction in cross-examination by creating a narrative about attending the bank with Changshun and instructing staff to do what Changshun told them, which was a recent invention. He submitted that Zisu's narrative was incoherent, unbelievable, and not contained anywhere in her affidavit, which I accept. Mr Fielder submitted that Changshun could have been, but was not, called to give evidence, and that an inference ought to be drawn that Changshun’s evidence would not have assisted Zisu on this issue: Jones v Dunkel (1959) 101 CLR 298 at 320-321; [1959] HCA 8 (“Jones v Dunkel”). I accept this submission.
Second, Mr Fielder submitted that Zisu’s evidence that in August 2021 Changshun told her that he had borrowed money from the plaintiff, and that Jianrong was not involved, was untenable. Mr Fielder submitted that this was inconsistent with the message which Changshun sent to the plaintiff in August 2021 stating “Let me tell you this, sister. Jianrong and I are your debtors”. He again submitted that Zisu could have called Changshun to give evidence to explain this message, but she did not call him. I accept this submission.
Third, Mr Fielder submitted that the evidence demonstrated that Zisu was willing to, and did, repeatedly lie to Australian financial institutions in order to obtain mortgages. The evidence clearly demonstrated that Zisu had purchased three properties in New South Wales in her own name, located in Bella Vista, Eastlakes and St Ives, and that she obtained a mortgage for each property from three different financial institutions: Westpac (2013), National Australia Bank (2015) and Perpetual (2022). As Mr Fielder submitted, Zisu conceded in cross-examination that she told each of those financial institutions in her application for the mortgages that she was employed, so that she could secure finance, and that on each occasion, this was a lie as she has never been employed in her life. I accept this submission. I also infer that the reason Zisu asked the plaintiff to loan her money to purchase the Wolli Creek property is because she was unable to secure a mortgage without lying about her employment status.
Fourth, Mr Fielder submitted that the evidence demonstrated that Zisu was willing to, and did, give false information to an Australian Government department. Records produced under subpoena from the Department of Home Affairs included two Australia Government visa application forms, which Zisu accepted that she filled out and submitted on behalf of her aunt in June 2023 and March 2024. Mr Fielder submitted that, in preparing these forms on behalf of her aunt, Zisu failed to disclose on both applications that her aunt had a sister who was living in Australia at the time. Further, in the second application, Zisu had stated that her aunt had not previously had a visa application refused, which she must have been aware was incorrect as she was the person who completed the earlier application. I accept this submission.
Fifth, Mr Fielder submitted that, despite giving evidence that she never had anything to do with her father’s finances, Zisu was heavily involved in negotiating an interest rate with the plaintiff in 2021. He submitted that Zisu could not provide any rational explanation for why she was then suddenly involved in negotiations concerning the loan. Mr Fielder submitted that the reason Zisu was involved was because she knew that she was a party to the loan and was obliged to repay the plaintiff. I accept this submission as well.
I observe that Zisu provided no credible explanation as to why, in 2021, she did not repay AUD400,000 to the plaintiff on her father’s instructions. Further, she could not explain why, in June 2016, ten transfers amounting to AUD652,650 which went into her father’s Westpac account were transferred into her own account and then into the lawyer Alice Yang’s trust account to be used for the purchase of the Wolli Creek property. I observe too, that the evidence about whether or not Zisu ever lived in the Wolli Creek property was unsatisfactory.
Mr Kabilafkas submitted that the plaintiff’s submissions mischaracterise every error as a deliberate untruth. He pointed out that Zisu acknowledged in cross-examination that she had provided false information in the loan applications and the visa applications. He submitted that the deficiencies in Zisu’s evidence regarding her understanding of the AUD220,000 payment in March 2020, and how that payment was said to have occurred, were explainable errors of memory. I reject this submission. He also submitted that, in any event, Zisu’s knowledge of the payment in 2020 does not demonstrate that she had the requisite knowledge in 2016, which the defendants submitted is the relevant question. Mr Kabilafkas also submitted that the plaintiff’s submission regarding Zisu’s involvement in negotiating with the plaintiff contains an error of logic; that is, just because Zisu was negotiating on her father’s behalf in some respects does not mean that she had insight into his finances more generally.
I found Zisu to be an evasive and generally dishonest witness. She was prepared to lie to banks to obtain a financial advantage and to lie to the Department of Home Affairs to secure her aunt a visa. Her explanation about the transaction description “purpose is to refund a loan” was not credible. Indeed, the purpose of the loan of monies was to benefit her alone, as she received the settlement funds on the sale of the Wolli Creek property, which she reinvested in real property. I note, too, that Zisu continues to be supported by her father Changshun who is resident in the PRC. I reject Zisu’s evidence whenever it was contradicted by either the plaintiff or the plaintiff’s son.

Mr Fielder submitted that Jianrong’s evidence generally was also inherently unreliable. He first pointed to Jianrong’s evidence that she was not involved in any discussions at all about the family purchasing a property in Sydney, that she did not have any discussions with Changshun about moving to Sydney prior to moving in 2017, that she did not remember if she flew to Sydney on the same plane as her husband, and that, despite exchanging contracts for the Wolli Creek property in 2014 and completing the purchase in July 2016, the first time Changshun told her about the purchase was in 2017 (at about the time they moved into the property). Mr Fielder submitted that these answers were evasive and unbelievable. I agree.
Second, Mr Fielder submitted that Jianrong did not accurately portray her relationship with Changshun. He pointed out that, despite giving evidence that she does not have a good relationship with Changshun and that they have been “separating” since about August 2021, in cross-examination Jianrong admitted that Changshun still gives her money for living expenses, that she is still married to Changshun, and that her role is that of a “housewife”.
Third, Mr Fielder relied on Jianrong’s responses to questions about the AUD51,000 which she received in her ANZ bank account from the plaintiff in July 2016. Jianrong said that she had no recollection of the transaction. She could not recall the money being transferred to Zisu, despite the descriptions confirming that occurred. Ultimately, after being confronted with ANZ documents, Jianrong agreed that she had transferred the money to Zisu to be used to purchase the Wolli Creek property.
Fourth, Mr Fielder submitted that Jianrong’s evidence was materially inconsistent with Zisu’s evidence. Mr Fielder referred to Jianrong’s evidence in her affidavit that she did not become aware of the IOU until about July 2022, whereas in cross-examination, Zisu said that when the plaintiff messaged her about the IOU in August 2021, she asked Jianrong (who was living with Zisu at the time) about it and Jianrong told her that she did not write the IOU. When Jianrong was asked about this in cross-examination, Jianrong denied talking to Zisu about those messages. Mr Fielder submitted that this exposed a significant contradiction in the evidence given by Zisu and Jianrong and that, contrary to Jianrong’s affidavit, Zisu’s evidence confirms that Jianrong was aware of the IOU in August 2021. He submitted that neither Zisu nor Jianrong could explain why they did not confront Changshun about the IOU if they believed it was a forgery.
Fifth, Mr Fielder relied on the fact that Jianrong’s affidavit evidence contained a large amount of direct speech and that, when asked if such conversations were exactly what was said, she responded in the affirmative. Mr Fielder submitted that Jianrong had obvious difficulties with her memory throughout her cross-examination and that it was not believable that she could recall the exact terms of any of the conversations in her affidavit.
Finally, Mr Fielder pointed to Jianrong’s evidence regarding a conversation with Changshun where he allegedly said to her “I already told [the plaintiff] the loan had nothing to do with you”. Mr Fielder submitted that this is contradicted by a text message sent from Changshun to the plaintiff at about that time, in which Changshun said “Jianrong and I are your debtors”.
Mr Kabilafkas accepted that there were deficiencies in Jianrong’s evidence but submitted that they were of little significance. He submitted that Jianrong’s memory is poor, and that this explains her lack of memory regarding the transactions and when she learned about the IOU. With respect to the criticism of Jianrong’s use of direct speech, he submitted that the same criticism can be made of the plaintiff’s and Chang Su’s evidence. With respect to the text message sent by Changshun to the plaintiff stating “Jianrong and I are your debtors”, he submitted that Changshun could not make admissions on the part of Jianrong and that little weight should be given to the message.
I found Jianrong to be an unsatisfactory and unreliable witness. She clearly had an involvement with the loan in July 2016 when the AUD51,000 was transferred into her ANZ account. She could not explain any contradictions in her evidence. She is still supported by her husband, with whom she maintains a relationship despite living apart. I reject Jianrong’s evidence in every material respect that it differs from the plaintiff’s.

Mr Fielder submitted that a loan agreement was concluded between the parties by the multiple conversations between the plaintiff and each of the defendants in and around May 2016, that the loan agreement was partly oral and partly written, that each of the three defendants were borrowers pursuant to the loan agreement, and that it was a term of the loan that the plaintiff would be paid interest at a rate of 5.5% per annum.
In addition to the affidavit evidence which contained contested accounts of the conversations between the parties, the plaintiff relied on various contemporaneous documents and evidence of the parties’ conduct referred to above.
With respect to Jianrong, the plaintiff relied on the IOU document dated August 2016. Mr Fielder submitted that the plaintiff could not verify Jianrong’s claim that Changshun had forged her signature on the IOU because the plaintiff did not witness the IOU being signed, as it was already signed when it was handed to her. Mr Fielder submitted that Changshun could have been called by Zisu and Jianrong to explain the IOU, but was not.
Mr Fielder further submitted that Jianrong’s evidence that she first became aware of the loan in around July 2022 must be untruthful, given Zisu’s evidence that she spoke to Jianrong about the IOU in August 2021. The plaintiff also observed that, in response to the plaintiff’s WeChat message to Zisu that “[y]our Mum wrote the IOU”, Zisu, instead of denying that statement, responded confirming that no one had said that the plaintiff would not be repaid and that they always said she would be repaid. Mr Fielder submitted that if Jianrong had truly told Zisu that she wasn’t aware of the IOU at that time, Zisu would have challenged, or at least questioned, the assertion by the plaintiff that Jianrong had been involved in preparing the IOU.
The plaintiff also highlighted the WeChat exchanges between the plaintiff and Changshun, where the plaintiff referred to “the IOU you and Jianrong wrote” and Changshun’s response that “Jianrong and I are your debtors”. Mr Fielder submitted that, instead of denying that Jianrong was party to the loan agreement, Changshun’s message confirmed that (at least) both he and Jianrong were debtors. Again, Mr Fielder submitted that Changshun could have been, but was not, called to explain or contradict this statement.
With respect to Zisu, the plaintiff relied on the bank statements showing that the initial funds were transferred to Zisu’s father-in-law, Difei Jiang, then to the bank accounts of Changshun and Jianrong, and then into Zisu’s account. The plaintiff emphasised Zisu’s admission in cross-examination that she operated each of her parents’ bank accounts and that she transferred all of the funds from those accounts into her own bank account.
The plaintiff’s evidence was that Changshun had asked her to send the funds to Difei Jiang and that Zisu had provided her with his bank account details, which Zisu denied. Mr Fielder submitted that, if Zisu had not provided Difei Jiang’s account details, the plaintiff would not have known where to send the funds and that, given that the defendants provided no other explanation for the transfer and had not called Difei Jiang, the only inference available was that Zisu must have provided these details to the plaintiff in order to enable the transfer. Mr Fielder submitted that this would indicate, contrary to Zisu’s evidence, that Zisu was aware of, and involved in, the loan in 2016.
The plaintiff emphasised that all of the funds loaned by the plaintiff ultimately ended up in Zisu’s bank account and were then used to purchase the Wolli Creek property. The plaintiff noted that, while the Wolli Creek property was ultimately registered in Changshun’s name, the transfer instrument recorded Zisu as the "transferee" in Annexure “A”. Mr Fielder submitted that the defendants could have called the solicitor involved in preparing the transfer instruments (Ms Alice Yang) to explain this inconsistency, but had provided no explanation as to why she was not called. Mr Fielder submitted that the document on its face demonstrates (at least) Zisu’s involvement in the purchase of the Wolli Creek property.
The plaintiff also relied on the several repayments that were made to the plaintiff by the defendants. The plaintiff highlighted the AUD220,000 payment made by Zisu on 9 March 2020 with the transaction description of “purpose is to refund a loan”. The plaintiff submitted that this payment was relevant post-contractual conduct and constituted an act of part performance of the loan agreement by Zisu. Mr Fielder submitted that, when asked about the transaction in cross-examination, Zisu provided an unbelievable explanation as to how that transaction was carried out in the presence of Changshun at a branch of the National Australia Bank. Mr Fielder submitted that Changshun could have been, but was not, called to give evidence on this issue. Mr Fielder submitted that Zisu’s evidence regarding this transaction was untruthful and that Zisu was caught in a lie by the documents produced under subpoena on the eve of the trial.
The plaintiff further relied on the WeChat messages from Changshun and Zisu to the plaintiff in 2021, in which the amount of interest payable on the loan was negotiated. Mr Fielder submitted that these message indicate both Changshun and Zisu were aware that they had to repay the plaintiff’s loan plus interest, and indicate that the only real dispute concerned the rate of interest to be paid. Mr Fielder submitted that the defendants considered the 5.5% per annum interest rate to be too high and were trying to avoid paying that rate because it had not been put in writing. Mr Fielder submitted that Zisu’s evidence that she was negotiating interest on her father’s behalf should not be accepted. Mr Fielder submitted that this was inconsistent with her evidence elsewhere that she “never” asked Changshun where he got his money from and that she never had anything to do with his finances. Mr Fielder submitted that Zisu was negotiating with the plaintiff in 2021 because Zisu was aware that she and her parents were responsible for repaying the loan.

Jianrong and Zisu’s submissions began by identifying several aspects of the plaintiff’s pleaded case which were said to be problematic. Mr Kabilafkas submitted that:-
The plaintiff’s pleading of the alleged loan agreement was defective because critical material facts were placed into the particulars, together with other matters which were evidence, and that it is not clear from the particulars whether the agreement was alleged to have been concluded in May 2016 or in August 2016;
The plaintiff’s submission that the contract was partly oral and partly written, with the written component being constituted by the IOU, could not be correct because by the time the written component (the IOU) came into existence, the agreement to loan money must already have been formed given that it had already been performed (the plaintiff already having loaned the money); and
Agency had not been pleaded or argued. Mr Kabilfakas submitted that neither Jianrong or Zisu were parties to all the communications relied upon by the plaintiff, and that they are not liable to account to the plaintiff for Changshun’s default simply because they are family members.
Mr Kabilafkas submitted that neither Jianrong or Zisu had agreed to be personally liable to repay the loan, which was an agreement made between the plaintiff and Changshun only. Mr Kabilafkas submitted that the Court could not achieve a state of actual satisfaction that the conversations relied on by the plaintiff as establishing the loan agreement occurred in the way alleged by the plaintiff. He pointed to a number of reasons for this:-
First, Mr Kabilafkas emphasised that the evidence given by the plaintiff concerning the critical conversations with the defendants was tied to the timing of Jianrong’s cancer and the death of her mother-in-law, and that the plaintiff was shown to be incorrect about the dates of those events. Mr Kabilafkas submitted that this was significant because it demonstrated the plaintiff’s refusal to concede error and because the timing of the cancer was fundamental to the plaintiff’s recollection of the relevant conversations which the plaintiff said were critical to her decision to make the loan.
Second, Mr Kabilafkas submitted that although the plaintiff gave evidence of multiple conversations with Jianrong and Zisu regarding the loan, the only conversation said to give rise to a contractual liability on the part of Zisu was the telephone conversation involving Chang Su. Mr Kabilafkas submitted that the terms of the loan had not been agreed at that time and only crystalised in subsequent conversations with Changshun and Jianrong. Mr Kabilafkas submitted that, absent a pleading of agency, this single conversation provides an insufficient foundation to find that Zisu had bound herself personally to repay the loan.
Third, Mr Kabilafkas submitted that, by not requiring the defendants’ handwriting expert for cross-examination, the plaintiff conceded that Jianrong’s purported signature on the IOU document was in fact made by Changshun. Mr Kabilafkas submitted that the plaintiff’s case regarding the IOU document was unclear, but that in any event the document only recorded Jianrong and Changshun as borrowers. Mr Kabilafkas submitted that the plaintiff’s claim that Zisu would have challenged or questioned the plaintiff’s message about the IOU should be rejected, given that Zisu’s evidence was that she had assumed the IOU was written by her mother but when she later asked her about it, her mother denied it.
Fourth, Mr Kabilafkas submitted that, in relation to the conversation which occurred on 4 August 2021, the plaintiff did not assert that a promise was made to repay the loan by either Jianrong or Zisu. Mr Kabilafkas submitted that the note produced by Changshun recorded the borrowers as himself and Jianrong only, and submitted that this did not prompt a complaint from the plaintiff even though she received that document and tendered the document into evidence. Mr Kabilafkas emphasised that there is no pleading or evidence that Changshun was in a position to make the relevant admission on behalf of Jianrong.
Fifth, Mr Kabilafkas submitted that the messages between the plaintiff and the defendants regarding the plaintiff’s attempts to have the loan repaid do not support a conclusion that Zisu was a party to the agreement. Mr Kabilafkas highlighted the plaintiff’s response to messages from Changshun stating that Zisu was a not a party to the loan, in which the plaintiff did not refer to any alleged promise from Zisu but rather threatened to freeze Zisu’s and Jianrong’s assets. In relation to the messages from Zisu to the plaintiff where Zisu stated that “We always said you will be paid back” (noting there was some dispute as to whether the message actually contained the word “we”), Mr Kabilafkas submitted that this message arose in the context of Zisu’s assistance in trying to resolve the dispute between her father and the plaintiff. Mr Kabilafkas submitted that even if the word “we” was intended, the content of the WeChat messages indicated that Zisu was not participating on her own behalf.
Sixth, Mr Kabilafkas highlighted that at no stage before the service of the plaintiff’s proposed Amended Statement of Claim on 14 April 2023 did any of the plaintiff’s legal documents or communications with her lawyers contain a single reference to a promise by Zisu to repay the loan (although I observe that a letter of demand for repayment was sent to Zisu in September 2021).
Seventh, Mr Kabilafkas submitted that the loan payments were made to Zisu’s father-in-law, her father and her mother, and were then transferred to her father’s account in Australia.
Eighth, Mr Kabilafkas submitted that the Wolli Creek property was registered solely in Changshun’s name and never in Zisu’s name, either solely or jointly, and neither was it ever subject to a trust in her favour.
Mr Kabilafkas also submitted that, contrary to the submission made by the plaintiff, Zisu was not the ultimate beneficiary of the payments made by the plaintiff in any sense recognised in law or equity. Mr Kabilafkas submitted that the beneficiary was Changshun and that, as borrower, he was entitled to do as he pleased with his money and property. Mr Kabilafkas submitted that the provision of funds to Zisu was simply a continuation of what Mr Kabilafkas described as Changshun’s pater familias role.
Mr Kabilafkas further submitted that all of the matters relied on by the plaintiff to corroborate her case were of little, if any, probative significance to the question of whether Jianrong and Zisu both made promises to her in May and June 2016 in such a way that the reasonable bystander would have understood them to be promising to be personally liable for the repayment of the loan.
In relation to Jianrong, Mr Kabilafkas submitted as follows:-

A threshold question raised by the pleadings with respect to the claim for interest is the appropriate choice of law. In addition to denying that any agreement was entered into, Jianrong and Zisu pleaded in their respective defences that any loan agreement would be governed by the laws of the PRC, with the effect that interest is not payable on a loan between natural persons unless there is clear agreement both as to the payment of interest and the interest rate applicable. On the issue of the appropriate choice of law, the defendants bear the onus of proof. It is appropriate to deal with this aspect first.
Mr Fielder submitted that the loan is governed by the laws of Australia. He pointed out that the funds were sent to Changshun and Jianrong’s Australian bank accounts, that the purpose of the loan was for the defendants to purchase a property in Australia, and that the defendants’ obligations under the loan were partially performed in Australia by Zisu making the AUD220,000 repayment to the plaintiff.
In the event that the Court found that PRC law applied to the loan, Mr Fielder submitted that the Court must determine how the foreign court would have resolved the rights of the parties in a hypothetical trial: Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331; [2005] HCA 54 at [191]. Mr Fielder submitted that, in the present case, the expert evidence was to the effect that the relevant PRC law makes no material difference to the way the claim is to be dealt with. I agree entirely with that submission.
Mr Fielder submitted that the evidence of the plaintiff’s expert, Mr Li, should be preferred over the evidence of the defendant’s expert, Mr Zhang. In the Joint Report, the experts disagreed on the nature of an IOU. Mr Li said it was a debt certificate issued after money has been lent as a “receipt”. Mr Zhang agreed that an IOU is a debt certificate, but said an IOU “constitutes a loan contract”. However, Mr Zhang also said that an IOU can be issued before or after money is lent. Mr Fielder submitted that, in this case, the IOU was issued after the money was lent and could not possibly “constitute” the loan contract as Mr Zhang asserted because, by the time it came into existence, an agreement to loan money must have already been formed (and indeed had already been performed by the lending of money).
Mr Fielder submitted that the experts otherwise agreed that if the Court finds that the parties agreed to a specific interest rate orally, such an agreement would be enforceable under PRC law. Finally, Mr Fielder submitted that even if PRC law were to apply such that the plaintiff was not entitled to interest at the contractual rate of 5.5% per annum, the plaintiff would still be entitled to interest under s 100 of the Civil Procedure Act.

Mr Kabilafkas submitted that the only evidence in support of the plaintiff on the question of interest was the plaintiff’s and Chang Su’s affidavit evidence. He submitted that, when regard is had to the principles outlined in the authorities and to the other evidence adduced in the proceedings, the Court could not achieve a state of actual satisfaction that the parties expressly agreed to the payment of interest on the loan at a rate of 5.5% per annum.
Mr Kabilafkas submitted that the only contemporaneous documentary evidence as to the existence of a loan is the IOU which purports to record the terms of the loan agreement, and which makes no reference to any interest payable. He submitted that the omission of any reference to interest in this document is wholly inconsistent with the plaintiff’s case, although I note that the plaintiff’s evidence (which I accept) was that it was meant to record the principal only and that it was amended when repayments of the principal were made.
Mr Kabilafkas also pointed out that there was no reference to an agreed interest rate of 5.5% per annum in the WeChat messages between the plaintiff and the defendants regarding her attempts to have the loan repaid, nor in the conversation recorded between the plaintiff and Changshun on 4 August 2021, nor in the handwritten note of the same date. He submitted that the absence of any reference to a specific interest rate in this material is significant because it is clear that the plaintiff was pursuing interest, and that the calculation of that interest was in dispute between the parties. He submitted that if the plaintiff’s evidence regarding an agreement as to a specific interest rate was correct, then she would have referred to that earlier agreement in subsequent discussions about the amount of interest to be paid, and that the fact that she did not do so is telling.
Mr Kabilafkas submitted that it is significant that, at no stage before the filing of Jianrong’s defence on 27 March 2023 (which denied an obligation to pay interest on the basis that there was no agreement as to a specific rate of interest), did any of the plaintiff’s legal documents, or the plaintiff’s communications with her lawyers, contain a reference to a 5.5% per annum interest rate. While those documents referred to the plaintiff’s belief that the defendants agreed to compensate the loss of interest that she would have been entitled to from her investments, and referred to other interest rates of 5.17% and 7.6%, Mr Kabilafkas submitted that the first time that there was any reference to an agreed rate of 5.5% per annum specifically was in the plaintiff’s proposed Amended Statement of Claim. He submitted that the only evidence of 5.5% per annum in interest being earned by the plaintiff on her investments at the time is the uncorroborated evidence of the plaintiff and her son. I observe that Zisu’s extraordinary evidence in cross-examination—which I reject—referred to the plaintiff claiming 8% and/or 10% interest.
Mr Kabilafkas submitted that the plaintiff’s evidence about a specific rate of 5.5% per annum could not be regarded as a mere lapse of memory or confusion. Mr Kabilafkas observed that the question of interest was the subject of a considered amendment to the pleadings, that the plaintiff never resiled from her affidavit evidence during cross-examination and that she continued to press the 5.5% per annum rate as the agreed amount in her closing submissions. He submitted that there was no evidence that the plaintiff responded to the dispute regarding the calculation of interest in 2021 by referring to the earlier agreement she now asserts, and that this significantly and adversely impacts her credibility. Mr Kabilafkas submitted that, in the face of incontrovertible facts established by the objective evidence, the evidence of the plaintiff is glaringly improbable and should not be accepted.
Mr Kabilafkas submitted that whatever agreement was made regarding interest was unclear, and that under the law of the PRC that has the consequence that no interest is payable as between natural persons. He submitted that the fact that Zisu appears to have accepted that interest was payable by her father was, at most, an admission about a matter of law of no consequence.

In response to the assertion that there was no express agreement as to the rate of interest, Mr Fielder pointed out that, in her WeChat messages, Zisu had accepted that interest was payable to the plaintiff and submitted that the only dispute was as to the applicable rate. Mr Fielder submitted that Mr Kabilafkas’s submission points to an inherently improbable counter-factual scenario, whereby the defendants would have agreed that the plaintiff would be entitled to interest without discussing or agreeing the rate of interest to be paid.
In relation to the IOU, Mr Fielder submitted that there is no evidence that the IOU was required to specify the rate of interest, and that the IOU was a debt certificate recording the specific amounts loaned after a loan agreement had already been formed.
In response to the defendants’ point that the 5.5% per annum interest rate was not discussed between the parties in their communications in 2021, Mr Fielder submitted that the negotiations concerning interest in 2021 only arose because Changshun and Zisu disputed the 5.5% per annum interest rate agreement in the first place, and because Zisu told the plaintiff (and Chang Su) that the 5.5% per annum interest agreement was not payable because it was made orally and never “in writing”.
In relation to the plaintiff’s legal documents and communications with her lawyers, Mr Fielder submitted that the plaintiff had initially approached Legal Point Lawyers for assistance with calculating interest in circumstances where the defendants had refused to pay the 5.5% per annum interest rate which she says had been agreed orally. Mr Fielder submitted that the plaintiff only spoke to Legal Point Lawyers over the phone, and that the documents indicate that interest was discussed and that the lawyers had asked for more information in relation to interest.
Mr Fielder submitted that in mid to late 2021, the plaintiff had been under a misapprehension that because the 5.5% per annum rate of interest was only agreed to orally, and not recorded in writing, she would not be entitled to claim that rate under Australian law. Mr Fielder submitted that this misapprehension may have arisen from what the plaintiff (and Chang Su) had been told by Zisu or potentially from inadequate legal advice received about that time in 2021. He noted that, once she changed lawyers, an Amended Statement of Claim was subsequently filed which pleaded the interest rate of 5.5% per annum agreed orally.
Mr Fielder submitted that the contention that the plaintiff’s evidence was inconsistent with the objective evidence should be rejected. He submitted that omission does not demonstrate inconsistency and that, in mounting that argument, Jianrong and Zisu had carefully selected various documents in which the 5.5% per annum interest rate was not specifically referred to. Mr Fielder also reiterated that, at the time when the plaintiff was discussing the dispute with her lawyers in 2021, the defendants had already denied any liability to pay a rate of 5.5% per annum interest because it was not recorded in writing.

Mr Fielder submitted that the constructive trust is a remedial institution, which equity imposes regardless of actual or presumed agreement or intention to preclude the retention of beneficial ownership of property if such retention would be contrary to equitable principle. He observed that equitable relief by way of constructive trust will only properly be available if applicable principles of the law of equity require that the person in whom the ownership of property is vested should hold it to the use, or for the benefit, of another. Mr Fielder submitted that this is not to say that general notions of fairness and justice have become irrelevant to the content and application of equity, and submitted that they remain relevant to the traditional equitable notion of unconscionable conduct which persists as an operative component of some fundamental rules or principles of modern equity: Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 (“Dodds”).
Mr Fielder submitted that all of the loan funds were ultimately sent to bank accounts in the name of the first and second defendants, and then to Zisu’s own bank account. Mr Fielder submitted that Zisu operated all of the accounts and carried out the transfers from both Changshun’s Westpac bank account and Jianrong’s ANZ bank account, to her own account. All of the loan funds ultimately ended up in Zisu’s bank account and were then used to purchase the Wolli Creek property. Mr Fielder submitted that this was the sole purpose of the loan from the outset. Mr Fielder submitted that the parties intended for the plaintiff to have a proprietary interest in the proceeds of sale from the Wolli Creek property because they agreed that she would be repaid after the property was sold.
Mr Fielder submitted that Zisu received the ultimate benefit of all of the loan funds provided by the plaintiff in two respects: in 2016 when the loan was provided, all of the plaintiff’s loan funds ended up in Zisu’s bank account before the Wolli Creek property was purchased, and in 2020, when the property was sold, Zisu received all of the sale proceeds. Mr Fielder submitted that Zisu has therefore been unjustly enriched at the expense of the plaintiff. He reiterated that it was the intention of the parties that the defendants would repay the plaintiff using the sale proceeds of the Wolli Creek property once they had sold it. Further, or in the alternative, Mr Fielder submitted that it would be unconscionable for Zisu to retain all of the proceeds of sale of the Wolli Creek property without paying such funds back to the plaintiff.
Mr Fielder submitted that it is just and equitable for there to be a finding that Zisu held the proceeds of sale of the Wolli Creek property (or, at least, such part of the sale proceeds as represented the outstanding balance) on trust for the plaintiff, and that the outstanding balance ought be repaid on that basis.

Mr Kabilafkas submitted that the remedy of a constructive trust does not represent “a medium for the indulgence of idiosyncratic notions of fairness and justice”: Dodds at 615 (Deane J), and further that the decisions of courts are not “a wilderness of single instances determined by idiosyncratic exercises of discretion”: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [138]. Mr Kabilafkas emphasised that the terms “unconscientious” and “unconscionable” are used throughout the breadth of the equity jurisdiction and describe, in their various applications, the instruction of conscience by reference to well-developed principles. Mr Kabilafkas submitted that it is those principles that the Court must have regard to.
Mr Kabilafkas submitted that the categories of case in which equity has recognised that a constructive trust will be imposed are not unsettled. He submitted that the plaintiff had pleaded a common intention constructive trust but had then not made submissions on that basis. He submitted that a common intention constructive trust would require the plaintiff to prove that the parties had an intention that she would obtain an interest in land, that there was no submission by the plaintiff to that effect, and that such an intention would have been inconsistent with the parties’ intention to enter into a loan agreement in any event.
Mr Kabilafkas also submitted that the plaintiff’s reliance on Baumgartner was misplaced, as the extract relied on by the plaintiff was concerned with the doctrine of a joint endeavour constructive trust. Mr Kabilafkas relied on Shepherd at [32], citing West v Mead [2003] NSWSC 161 at [59], for the proposition that “a plaintiff needs to establish there is indeed a joint endeavour between the parties, in which expenditure is shared for the common benefit. It is also necessary to identify what the scope of that joint endeavour is”. Mr Kabilafkas submitted that the plaintiff had not pleaded a joint endeavour or identified any joint endeavour in submissions and that, on the plaintiff’s own case, she made a loan and there was no suggestion that the parties were participating in a joint endeavour of any kind.
Mr Kabilafkas submitted that the only other established category of constructive trust relied on by the plaintiff is the kind discussed in Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58 (“Black”) at 110 (O’Connor J):-

Mr Kabilafkas submitted that, in the present case, the plaintiff has a valid loan agreement against the first defendant, and therefore restitution is not available as an alternative to an action on a loan agreement*: Alexiadis v Zirpiadis* (2013) 302 ALR 148; [2013] SASCFC 64 at [19] (Kourakis CJ). Mr Kabilafkas submitted that the principle that a claim in restitution must respect the contractual allocation of risk between the parties (unless the contract is abandoned, rescinded, frustrated or set aside) applies, as here, when there are more than two parties. He relied on the decisions of the House of Lords in Pan Ocean Shipping Co Ltd v Creditcorp Ltd [1994] 1 WLR 161 and of the High Court in Lumbers v Cook for the proposition that, where there is a contract between A and B for A to provide a benefit to C, A does not have a cause of action against C in restitution, whether or not B fulfils its contractual obligation to A. The relevant element of “unjustness” is absent because recovery of the money paid is governed by the contract between A and B.
Mr Kabilafkas submitted that restitution does not permit resort to an over-arching principle of “unjust enrichment” to decide a particular case, just as equity does not permit such cases to be decided by reference to an over-arching principle of “unconscionability”: Mann at [79] (Gageler J), at [199], [212]-[213] (Nettle, Gordon, and Edelman JJ). He submitted that, in each case, the plaintiff may only recover the funds paid in accordance with an established category of case, save for the “extremely rare” circumstances where the courts recognise a new category of case.
Mr Kabilafkas accordingly submitted that, if the plaintiff is unable to prove that Jianrong and Zisu were parties to the loan agreement, then the plaintiff is limited to her rights against Changshun. Mr Kabilafkas submitted that, in those circumstances, the plaintiff would have no claim for money had and received against Jianrong and Zisu, “even if some or all of that money ultimately in some way inured to their benefit.”
Finally, Mr Kabilafkas submitted that:

Li v Wang (No 4)

At a glance

Court

Decision date

Before

Catchwords

Catchwords

Judgment

Source

JUDGMENT

Introduction

Pleadings

The contract case

The trust case

The unjust enrichment case

Choice of law

Evidence

Documents

Lay witnesses

Expert witnesses

Other witness evidence that was rejected

Issues of fact

The alleged agreement to lend money

The additional sum

The handwritten IOU

First demands for repayment and partial repayments

Further demands for repayment

Disputed payment in March 2020

Subsequent communication between the parties

Communications with lawyers and procedural history

Issues of credibility

The plaintiff

Chang Su

Zisu

Jianrong

Jones v Dunkel issues

Changshun

Difei Jiang

Alice Yang

Issues of Chinese law

Areas of agreement between the experts

Areas of disagreement between the experts

The claim in contract

Principles

The plaintiff’s submissions

Jianrong and Zisu’s submissions

The plaintiff’s reply

Consideration

The claim for interest

The plaintiff’s submissions on choice of law

Jianrong and Zisu’s submissions on choice of law

The plaintiff’s submissions on whether interest was agreed

Jianrong and Zisu’s submissions on whether interest was agreed

The plaintiff’s reply

Consideration

The claim in trust

The plaintiff’s submissions

Jianrong and Zisu’s submissions

The plaintiff’s reply

Consideration

The claim for money had and received

The plaintiff’s submissions

Jianrong and Zisu’s submissions

The plaintiff’s reply

Consideration

Orders

Parties

Legislation Cited (5)

Cases Cited (103)