Plaintiff v Defendant

EVIDENCE - Evaluation of witness evidence - Most compelling evidence is contemporaneous documentation - Assessment of credit - Indicators of unsatisfactory witness evidence - LL Up Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651 - Brookfield v Yevad [2004] FCA 1164 - Painter v Hutchinson [2007] EWHC 758 (Ch) - Webb v Getswift (No 5) [2019] FCA 1533 - Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm).

1 The dispute between the parties relates to approximately AUD11 million that was sent by the Plaintiff ('Jiyun') to the Defendant ('Allen') during 2021 and 2022.

2 Jiyun claims that this money was provided to her son, Allen, as part of an 'agreement' that Allen would invest the money for her in Australia. Issues arise as to the nature of the consideration for any such agreement, ranging from Jiyun's claim that this was in return for giving Allen AUD5 million that he could use to obtain an investment visa in Australia, to something more in the nature of mutual promises and dealings between the parties.

3 Allen, on the other hand, claims that the AUD11 million payment was, in fact, a payment by way of a gift to him and was his money to use as he pleased. Jiyun subsequently became angry when she learnt that Allen had spent some of that money on very expensive jewellery, expensive restaurant meals, a car and also on cosmetic surgery on his eyes. Jiyun's anger was made clear in communications between her and Mr Peng, Allen's paternal uncle, when she contacted him.[1] As a result of Jiyun's revelations as to Allen's spending, Allen made various 'apologies' to his mother and to Mr Peng. Allen claims that these were not admissions that he had used her money but, rather, that they represented a realisation that he had spent a good deal of money on frivolous items.[2] A different view is, however, taken on behalf of Jiyun and it is submitted that the critical communications, which are examined further in the reasons which follow, do represent clear admissions on Allen's part that he had expended money which belonged to his mother.

4 Jiyun subsequently obtained a Power of Attorney over Allen's Morgan Stanley account and transferred approximately AUD7 million of the AUD11 million into her own accounts via accounts associated with Allen's father, Yi Xu, claimed by Allen to be in breach of the Power of Attorney. The parties are also in dispute in respect to a property that Jiyun purchased for Allen at 2202/81 Harbour Street, Haymarket ('Haymarket Property'). Further Power of Attorney issues arise in relation to the Haymarket Property.

5 The parties agreed a list of issues in this proceeding. For reasons which will become clear, it is most convenient to address those issues with reference to events and legal consequences as set out in these reasons. An Appendix has been provided which provides answers to the 28 specific issues raised by the parties with reference to the relevant parts of these reasons. It is noted that one agreed issue (number 12) was whether the funds transferred to Allen were in contravention of Chinese law and, if so, whether that prevented Jiyun from recovering those funds. This issue has, however, now been abandoned.

6 Finally, in terms of general background, it should be observed that this proceeding is the outcome of a very unfortunate family dispute in which is seen very strong and fraught communications between the parties. Having regard to the facts and circumstances of this proceeding as they appeared at the conclusion of the four day trial on 21 March 2025, I referred the proceeding to judicial mediation before Gobbo AsJ. The mediation continued, but unsuccessfully, until 14 May 2025, and then 23 May 2025 was set aside to hear oral closing submissions.

7 Many of the facts are not contentious, having been set out in the Agreed Statement of Facts which was filed on 14 February 2025 and the Agreed Chronology.

8 Jiyun lives in China and does not speak English. She married twice and Allen is her son from her first marriage. She also has a 12‑year‑old son from her second marriage.

9 Allen was born on 8 November 1996 and is 29 years old.

10 Allen is clearly an intelligent person, with a double degree in finance and accounting from the University of South Australia as well as a Masters Degree in Economics from the University of Sydney. Jiyun financially supported Allen's tertiary fees and living expenses. She also financially assisted him to obtain a Business Innovation and Investment (Provisional) Visa (subclass 188C) which would allow him to reside in Australia. A personal loan was taken out with China Everbright Bank to fund the payment of AUD5 million for the purpose of obtaining this visa.[3] Jiyun does not seek to recover this money.

11 Between 26 July 2021 and 26 May 2022, while Allen was living in Australia, Jiyun made nine payments totalling AUD11,133,322.35 into bank accounts nominated by Allen[4] ('Jiyun Funds'). This is clearly a very substantial amount of money. Some funds were transferred from Singapore and Canada. The balance was paid by Jiyun to CJ Consignments in China which then made a corresponding payment into the bank accounts in Australia.[5]

12 Jiyun says that Allen agreed to help her invest the Jiyun Funds in Australia and agreed to pay the money which would allow Allen to obtain his residence visa.[6] Moreover, it is contended that before each transfer of funds Allen and Jiyun would discuss the transfer to be deposited in an account with Morgan Stanley. Jiyun gave evidence that:[7]

[E]ach time before I make bank transfer to Allen, I would always communicate with him; I will tell him on which day what time I will transfer money and how much will be transferred and in what currency and, um, and also I - I will doublecheck which Allen's account I will make bank transfer. Also, I ask him to check his bank account in around two or three days after bank transfer done by me to see if the money has arrived and how much; also, I require him to transfer this money to Morgan Stanley account in his dad's name to do investment.

...

[E]ach time I check with him if the money has been transferred to his dad's account in Morgan Stanley; he always told me it has been done, so that I believe until that finished.

The money was then paid into three different bank accounts with Westpac and the Commonwealth Bank. Jiyun said that if those representations or assurances had not been given by Allen, then she would not have transferred the Jiyun Funds to Allen in Australia.[8]

13 It is also contended on behalf of Jiyun that this is clear evidence that the money was to be 'invested' for her with Morgan Stanley in Australia. It is said that Allen was required to set up an investment account with Morgan Stanley in the name of Allen's father, Yi Xu, Jiyun's first husband, into which the money was to be paid.[9] Jiyun said Allen had assured her that he had done this.[10] Jiyun's evidence that the money was to be invested with Morgan Stanley was said to be consistent with this position and,[11] further, that her evidence was consistent with what is described later as the 'Second Letter' dated 18 June 2022.[12] This document is said to record what was agreed and transpired, including the requirement that Allen open an account for Jiyun and his father, Yi Xu. It was also said to be consistent with Jiyun's evidence in relation to what Allen told her after he was confronted with not opening an account into which the Jiyun Funds were to be transferred.[13] Allen's evidence was also that he was instructed to put the Jiyun Funds into a US dollar account[14] and Allen says she told him to change the 'nickname' on the account to 'Pengyou'.[15]

14 Allen denied ever having spoken to his mother about her investing in Australia.[16] More particularly in this vein, it is submitted by the Defendant that Jiyun's evidence is consistent with this position. Jiyun's evidence is that Allen told her in a phone conversation in April 2021 that he had attempted to open an account in her name but was unable to do so due to issues with her identity documents, and that Allen suggested setting up an account in his father's name.[17] However, it is contended that Jiyun produced no evidence of having provided any identity document to Allen and that this would have been done electronically rather than in person as Allen was located in Australia and Jiyun in China. Jiyun was asked to provide evidence of having given her identity documents to Allen by WeChat, but claimed to have deleted or no longer have access to the relevant messages, despite having produced other 2021 WeChat documents.[18]

15 Allen gave evidence that he had no identification documents for his mother or father, other than a Turkish passport he previously had a copy of for his mother.[19] Thus, it is submitted that it is unclear how Allen could have set up a bank account, or have been expected to set up a bank account, for either of his mother or his father without identification. Nevertheless, Jiyun's evidence was that Allen had agreed to help her open an account with Morgan Stanley into which the funds were to be deposited.[20] Jiyun said that Allen told her that there were identification issues and an account should be opened in his father's name instead.[21]

16 Jiyun denied that any of the money given to Allen was from Allen's Chinese bank account, or that she had control over that account.[22] When asked whether she had used Allen's bank account in 2021 for retail business transactions, she said that she could not recall clearly.[23]

17 Jiyun gave evidence that the AUD11 million she transferred to Allen represented her 'life savings'.[24] It is said that in cross‑examination, however, Jiyun declined to produce any documentation, such as tax returns or bank statements, that would prove her claim to the AUD11 million being her life savings.[25] Jiyun gave evidence that she operates nearly 40 retail shops in China.[26] She is a successful businesswoman. It is submitted on behalf of Allen that, without the provision of documentary evidence, the Court should give no weight to the claim that the payments to Allen comprised her life savings. Jiyun's first response to the request for production of documents supporting her evidence in this respect was that these were private matters and that she had lodged tax returns in China. Nevertheless, as noted, she did say in re‑examination that 'she would like to' provide the documents if the Court required it. As it was observed on her behalf in the course of closing submissions, there was no call for production of these documents and the matter was taken no further. No evidence was led by or on behalf of Allen to contradict Jiyun's evidence other than raising an inference that as a successful businesswoman, a claim with respect to the AUD11 million being her life savings was not plausible. This issue is considered further in the reasons which follow, particularly in the context of the credibility of the parties as witnesses.[27] For the reasons appearing in this context I observe, for the purposes of the present discussion, that I do not accept that Jiyun's evidence with respect to her life savings carries no weight.

18 It may, however, be thought to be inconsistent or difficult to understand, particularly in light of Jiyun's evidence that she was transferring her life savings to Allen, that she did not ask him for any bank statements or even bank account details for the Morgan Stanley account she believed he had created in Yi Xu's name.[28] This is, however, a proposition put against her which overstates the position in light of the evidence with respect to the transfer of funds and, further, does not give weight to her evidence and the support she had already provided to Allen which indicates that she trusted him as her son to look after her interests. There is also the broader context that, as has been noted previously, Allen is an intelligent person and has gained some significant tertiary qualifications in respect of financial matters which provides a further reason why his mother would trust and rely upon him to look after her interests in financial matters.

19 As set out in detail in the Defendant's closing submissions, Jiyun transferred a number of amounts between July 2021 and May 2022. But as there was some delay between the time of transfer and the time of its receipt, the amount received by Allen in Australia is not exactly the same as the amount of money transferred by Jiyun.[29] The amounts transferred total AUD11,133,322.35 but the amounts received in Allen's Australian accounts total AUD11,114,958.42. There is no dispute that Allen received these amounts as set out in the Defendant's submissions.

20 As indicated previously, Allen's evidence is that Jiyun did not speak to him about investing in Australia and does not accept that any communications with his mother were concerned with her investing in Australia. Rather, Allen says that his mother would tell him how much she would transfer and what currency it would be in and he would confirm that the amount had been received.[30] During these conversations, Allen says that Jiyun reiterated that he was not to tell her second husband about the transactions.[31]

21 The Plaintiff, in closing submissions, made reference to Allen's evidence that before each transfer of funds he spoke to Jiyun and she would tell him how much he was about to receive.[32] According to Allen, during these conversations, Jiyun said:[33]

During this - she mentioned about - you don't tell anyone, and in my recollection, it's especially that one, she said that one, but I realize that's her ex‑husband; so I-I-I know that - they, like, had some problems. So, she said 'Especially don't - don't tell that one'; 'that one' means 'that person', That person is her ex-husband.

22 It follows that, on a purely factual matter, the parties are in agreement, but perhaps only in a broad sense, in terms of inferences. In terms of the latter, the Plaintiff observes that, by this time, Jiyun was separated from her second husband, thus raising what is said to be a 'clear inference' that on the basis of this evidence, Allen believed that Jiyun was trying to save or preserve her assets by shifting money to Australia and hiding it from her second husband. It is submitted that it was Allen's understanding that the Jiyun Funds were transferred to avoid Jiyun's second husband from having access to that money. Before the money was sent, she said not to tell 'that one' (which Allen understood to be a reference to Jiyun's second husband).[34] The Canadian money, which I will come to shortly, was also to be kept secret from her second husband.[35] On this basis, the Plaintiff submits that this is consistent with the Jiyun Funds remaining Jiyun's and not the subject of a gift to Allen.

23 As submitted by the Plaintiff, Allen gave evidence that Jiyun had instructed him to change the nickname of the bank account into which the funds were paid to 'Pengyou', meaning 'friend' in Chinese.[36] In cross‑examination, Allen acknowledged that at the time he believed:

(a) he was requested to 'hide the money' from Jiyun's second husband;[37] and

(b) Jiyun sought to 'save' (or protect) her assets. This was specifically put to Allen in the following exchange:[38]

You said she wanted the nickname of the account changed to Pengyou? ---Yes

You believe that was to hide the money from her ex‑husband?---At the time, I-I-I did according to her instructions. I know the marriage, she had problem with her marriage. I know she wants to save her assets.

...

You knew she wanted to save her assets?---At the time.

You just said before, you said, you knew she wanted to save her assets? ---Yes, I ...

Save her assets from her ex‑husband?---I knew. In think I, I can tell I knew about. Yes, the answer is yes, yes.

24 The Plaintiff submits that Allen's evidence in this context was unequivocal because, at the time, he knew that Jiyun wanted to save or protect her assets. Rightly or wrongly, it is contended that Allen believed that the Jiyun Funds were being transferred to save that money from Jiyun's second husband, otherwise, there would have been no need for Allen to open an account for Jiyun in Yi Xu's name. At this point, it should be noted that there was no evidence that transferring funds by Jiyun to hide assets from her second husband was unlawful or improper. It is not pleaded and nor is any suggestion made that Jiyun was moving her assets to hide them from her second husband, and this was never put to Jiyun. As observed, she was never given an opportunity to respond to such an allegation. Nevertheless, it is said that Allen's evidence demonstrates a belief that Jiyun had sought to shift or conceal her wealth, rather than part with it.

25 The Jiyun Funds were transferred in US dollars. In this respect, Allen gave the following evidence:[39]

Did you open a new account for the purposes of the receiving USD?---Uh, yes; yes.

How did you - why did you open a new account?---My mother told me to open a new USD account; I did so.

Having regard to this evidence, the Plaintiff submits that Jiyun instructing Allen to deposit her funds into a US dollar account is inconsistent with the money having been transferred to Allen as a gift to spend as he pleased. Thus, it is contended that she retained control over that money, a position said to be inconsistent with the funds having been a 'gift'.

26 The Plaintiff also submits that Allen's conduct after being confronted by Jiyun following the discovery that he had been using the money for his own purposes and benefit by purchasing property and personal expenses, is inconsistent with the funds having been a 'gift'. Allen was, as the Plaintiff observes, initially contrite as indicated by the following examples:

(a) he directly and profusely apologised to Jiyun for taking the money;

(b) prepared or caused to be prepared correspondence - at that time - in which he specifically acknowledged that the funds had not been transferred to him as a gift;

(c) on 28 June 2022 - just nine days after the 'three letters' were shown to Jiyun on 19 June 2022 - Allen:

(i) signed a General Power of Attorney which stated, amongst other things, that Jiyun has the ability to operate his bank accounts;[40]

(ii) made Jiyun a signatory to his bank accounts[41] enabling her to operate his bank accounts; and

(iii) signed a Power of Attorney enabling her to deal with the Haymarket Property.[42]

27 Some of the funds were transferred from Canada. Jiyun gave evidence that she requested her friend, Ms Yuefang Lu, to transfer some money owed to Jiyun to Allen on Jiyun's behalf. As the Plaintiff submits, it appears that the fact that it was Jiyun's money to transfer as she pleased is not disputed. In support of this and by way of example, reference is made to Ms Lu's evidence that, when Jiyun was unwell, Jiyun gave Ms Lu instructions to transfer the money to Allen 'if something happen [sic] to me'.[43] This comment was conditional on something happening to Jiyun in circumstances where Jiyun was very sick and 'not sure about her health at all'.[44]

28 Jiyun gave evidence that Ms Lu drafted a letter for Jiyun to write and that Ms Lu had made it clear that if Jiyun did not send this letter, Ms Lu 'won't send money back to me [sic]'.[45] Ms Lu also gave evidence that she would not have transferred the funds until the letter was signed.[46] Jiyun further gave evidence that Ms Lu's initial draft stated that the funds were to be a 'gift' to Allen. Jiyun did, however, give evidence that she did not agree with using the 'gift' word and 'that's why I just revised it to living expenses and tuition fee [sic]'.[47] It follows that as a result, the letters as sent do not state that the Canadian funds were a gift to Allen. The Plaintiff contends that Jiyun's evidence is consistent with the contemporaneous WeChat messages between Jiyun and Ms Lu.[48] There is also evidence that Ms Lu had shown the letter to her lawyers.[49] Moreover, it is submitted that despite what was written in the letter, Allen did not have any business in China or tuition expenses at the time the letter was sent.[50] This is, it is observed, consistent with Allen's own evidence.

29 The Defendant, in closing submissions, casts a somewhat different light on the evidence of Ms Lu. More particularly, it is said that the correspondence in relation to the Canadian transfers directly contradicts Jiyun's version of events. On 30 January 2022,[51] and again on 22 April 2022,[52] Jiyun sent letters saying that she had lent money to Ms Lu and that she would send the balance of the amount owing to her (Jiyun) to Allen as support for his business, living expenses and tuition fees. It is observed that there was no reference in these emails to the money being used to invest in Australia for Jiyun.[53] Allen and Ms Lu corresponded about the transactions in WeChat between January and April 2022.[54]

30 Ms Lu gave evidence that Jiyun visited her in Canada in 2016 and told her she wanted to do something to make up for the years she had not looked after Allen as a child.[55] Jiyun transferred CAD2 million to Ms Lu and, when she was ill, she told Ms Lu that if something happened to her, to help give the money to Allen and keep it a secret from her second husband.[56] Ms Lu told Allen about the money when he came to visit her in Canada.[57] The Defendant concedes that Jiyun denied this in evidence, and said that the money was a loan.[58] It is, however, contended by the Defendant that Ms Lu's communications with Allen are consistent with her belief that the money was a gift for Allen.[59]

31 Prior to the two Canadian funds transfers to Allen, Jiyun told Ms Lu that she needed the money previously 'lent' to her returned for cashflow purposes. Jiyun's evidence was that she could not say it was for investment purposes or Ms Lu would not pay her back.[60]

32 Ms Lu required Jiyun to provide certain documentation for her lawyer so that the money could be handled for tax purposes.[61] Ms Lu sent Jiyun a template document that she asked Jiyun to fill in so that she could show it to the bank.[62] Jiyun gave evidence that she changed the reference to 'gift' in the template to 'for your business with China and partial living expenses'.[63] For the second transaction, Ms Lu consulted her lawyer and wrote a draft for Jiyun to sign.[64] Allen communicated with Ms Lu about these transactions and Ms Lu kept Allen updated on the transfers of money she was making to his accounts after speaking to his mother.[65]

33 In my view, the evidence to which reference has been made is consistent with the position that, in reality, no gift was intended by Jiyun to Allen of the Canadian funds. I regard this as a position consistent with the evidence given by Ms Lu and the contemporaneous documents, having regard to Ms Lu's evidence that she had to deal with the money for tax reasons and she needed documents to provide to her lawyer. Ms Lu gave evidence that Jiyun did not know what she should write and that Ms Lu consulted with her lawyer regarding what message Jiyun should provide and provided it to Jiyun.[66] The matters raised and the evidence to which reference is made by the Defendant in submissions on this issue does not, in my view, put a different light on Jiyun's position with respect to these funds. And, more particularly, in the context of Ms Lu's possible intransigence, taxation considerations as raised in the evidence and the ongoing perceived need for secrecy of the transactions from Jiyun's second husband, the evidence does not establish any intention on the part of Jiyun that these funds be a gift to Allen.

Payment of money - Proper characterisation of transaction

34 The Defendant contends that whether or not there was an agreement between Jiyun and Allen (in terms set out in Agreed Issue 1 or as amended as set out in Agreed Issue 3) is the key dispute between the parties and that resolution of this issue will determine the remaining issues in dispute in the proceeding. Whilst this may be so, I am of the view, for the reasons which follow, that the better analysis is, having regard to the state of the evidence and the absence of clear documentation, in equity rather than contract. Moreover, the evidence with respect to the dealings between the parties indicates that if an agreement is not established on the terms indicated in the Agreed Issues, this does not establish that Jiyun's intention in paying the Jiyun Funds to Allen was a payment by way of gift.

35 In any event, the Defendant contends that Jiyun's position in relation to the 'agreement' she says was in place between Allen and herself has changed dramatically since the commencement of the proceeding. However, as pleaded, it is said that the alleged agreement ties Jiyun's agreement to provide AUD5 million for the purpose of obtaining an investment visa to Allen's alleged agreement to open a bank account in Jiyun's name and to assist Jiyun to remit funds from China to Australia.

36 More particularly, the Defendant contends that Jiyun's position at trial conflates what were in fact two separate arrangements. The first was an arrangement made by both Jiyun and Allen's father, Yi Xu, that they would both provide the funds for Allen to obtain an investment visa in Australia. This occurred after Allen suggested the arrangement on a visit to China in 2019. He had a conversation at dinner with his parents, and they agreed to give him the AUD5 million for the investment visa so that he could live in Australia after graduation.[67] To this end, both parents signed declarations that they were providing funds to Allen as a 'gift' for this purpose in December 2019.[68] Jiyun's declaration stated that she was 'unconditionally donating' money to Allen and that the money was 'gifted ... free of any consideration'. Jiyun's effort to explain away these references in the declaration, the Defendant submits, were not credible.[69] The loan for the investment funds required for the visa was in the name of both Yi Xu and Jiyun, and the property mortgaged was the property of both of them.[70] Both Jiyun and Yi Xu told Allen that the money was a gift.[71] Indeed, this would appear to be uncontroversial as repayment of the AUD5 million paid to Allen for the purpose of his investment visa is not sought to be recovered.

37 Allen made an application for the visa and, after 12 months, the Australian Immigration Department sent a letter stating that the funds could be prepared.[72] Consequently, the visa money was paid into Allen's Westpac account between 26 February and 17 March 2021.[73] This was arranged through Ding Wang from CJ Consignments, a company that arranges foreign currency exchange transfers. Allen communicated with Ding Wang from around 23 February 2021 and sent forms for the purpose of the visa investment funds transfer on 23 and 26 February 2021.[74] The money was then transferred into Allen's BT Panorama account between around 12 and 15 March 2021.[75]

38 It is contended by the Defendant that the 'second arrangement' on Jiyun's version was not in fact an agreement at all, but an indication from Jiyun that she intended to give Allen some money for his own use. On Allen's evidence, Jiyun told him about this first in 2021 and told him that Ding Wang would contact him,[76] and also that Jiyun did not tell him that the money was for the purpose of investing, or that there was any limitation on its use.[77] Allen added that she told him to 'remain silent' about the money, to be 'lowkey' or 'low profile' and that it was his money.[78] It would, of course, have to be said that this evidence is self‑serving and unsupported by objective evidence or documentation.

39 Allen's evidence was also that Jiyun put these arrangements into effect by transferring funds to him over a period of time between July 2021 and May 2022, which he then used as he saw fit. He says that this was in accordance with what he believed to be a gift from his mother.[79] The first of these payments was also made via Ding Wang.[80] Moreover, it is said that the first payment was made using funds transferred by Jiyun from Allen's Chinese bank account into his father's Chinese bank account, and then on to Allen in Australia.[81] As indicated previously, Jiyun denies she had access to or used money from Allen's Chinese bank account.[82]

40 The Defendant in submissions also made reference to Jiyun's original affidavit in the freezing order application in this proceeding, which set out the discussion on the investment visa as separate and distinct from the 'agreement' about the AUD11 million.[83] Jiyun was cross‑examined regarding the suggested difference between her November 2022 affidavit, where she said that the visa investment discussion and the discussion about Allen helping her to invest were separate discussions, and her evidence in the trial that the two discussions were linked.[84] It is contended that her answers were non‑responsive.[85] In my view, having regard to the nature of the discussions between the parties, there is no significant issue arising out of the affidavit and other evidence given in the freezing order application and at trial. This all really goes to the question of whether there was any consideration for the agreement. The Plaintiff submits that there was a continuum of discussions involving the visa money and the investments. In a number of places, Jiyun said that one was in return for the other.[86] More particularly, Jiyun said 'in return, I also required him, he must help me set up account and do asset investment in Australia [sic]'.[87] Continuing, Jiyun said 'in return, Allen must set up, help me set up account and do I said investment in Australia [sic]'.[88]

41 As indicated in the preceding reasons, I am of the view that, having regard to the context of the dealings between the parties, consideration is established on the basis of benefits and disbenefits to them flowing from these dealings, which was adequate consideration for a contract in the context of the nature and substance of the arrangements which were made. I do, however, think it somewhat artificial to seek to define the contractual provisions in terms of Agreed Issues 1 and 3 or to analyse what was, in reality, an ongoing process of dealing as an agreement between the parties in terms of amendments to a preceding agreement. In my view, a more than sufficient finding supporting the Plaintiff's position is that the parties agreed that Jiyun would pay the relevant funds to Allen in Australia which were to be invested in a manner which would safeguard Jiyun's interests and that he would act in accordance with her instructions with respect to investments and related matters from time to time. Moreover, the evidence in this context makes it very clear that it was not part of any such agreement between the parties that the beneficial interest in the Jiyun Funds, or any part thereof, or assets into which these funds were directed, was to pass to Allen at any stage. As indicated in these reasons, Allen has breached this agreement in many respects.

42 The Plaintiff highlights that evidence is given of many WeChat messages and attachments after it was discovered that Allen had spent the Jiyun Funds, including to purchase a property at 6092 Bennelong Parkway, Wentworth, Sydney (the 'Bennelong Property') and numerous personal expenses. It is noted that in the Defence, for the first time, is the suggestion from Allen that the funds were a gift. Before the Defence was filed, no WeChat message, attachment, email or document filed in response to the freezing order application suggested that the money had been given to Allen and was his to spend. It is emphasised further that not once prior to the commencement of this proceeding did Allen suggest that the money had been a 'gift' for him to spend as he chose. To the contrary, it is said, the evidence establishes that he was contrite, remorseful and offered to repay Jiyun's money. For the reasons which follow, it is clear, in my view, that neither the Jiyun Funds, nor any part of those funds, were a gift by Jiyun to Allen, and this was a position which he well understood at all relevant times. Moreover, I do not accept that he was, at any time, under any misapprehension in this respect.

43 The evidence indicates that Mr Peng, the uncle of Allen, became involved as an intermediary between Allen and Jiyun, in June 2022. It appears from the evidence that Mr Peng's role as an intermediary was to seek to reconcile Allen and Jiyun following the revelations prior to that time as to what, as is common ground, was extravagant spending of a significant part of the AUD11 million which had been paid to him by his mother. Mr Peng's involvement is very much in relation to the, so called, 'three letters' onto which attention is now turned.

44 The 'three letter' process begins with a handwritten letter from Allen[89] ('First Letter') in which he writes:

Dear Mom,

I wouldn't be where I am today without you, I am fully aware of that. I know you are very sad but I still beg for your forgiveness. I know that you may [hate me so much] that you may even want to kill me, but I still dare to ask you not to get so angry for the sake of your health. In fact, no matter what, I know that the damage has been done, and I can't make it up. I would still say that the source of my mistakes was my hubris. Since you gave me the opportunity to study abroad, normally I would not have time to take a close look at myself. But since I started working, I started to review myself from the inside out. It follows that once the wealth that was in return for your hard work arrived in Australia, I became arrogant, even though I knew it was your wealth. Next, I would like to explain to you where the wealth went, I know you may become furious. But this has also become my precious life's wealth. By life's wealth I mean that I have gained valuable experience that ordinary people could not obtain because of the platform of wealth you have built. Speaking of which, these words are all from the bottom of my heart. I am sad and relieved at the same time, because you eventually knew. I have no intention to stop you from the bottom of the truth. I just don't know how to speak to you, maybe I am guilty. By the way, I look forward to speaking with you, and even more so, to seeing you. Maybe I can even fly back to [China], or beg you to fly to Australia. My eyes are still uncomfortable right now, but I still want to finish writing this letter. I hope you will pardon me for the scribbles due to my poor vision.

There is currently AUD$1.6 million yet to be invested. This is my mental journey - I came from the initial normal mindset to the sudden fantasy of having a large amount of wealth, and then back to the normal mindset. Let me put it this way, I also experienced the feeling of being rich. Now I understand well that super wealthy people are very low-key, but I always have to go through such a process. I truly realised that having money makes it easy to become complacent, arrogant, and ignorant. I used to understand these great truths, but now I can truly relate to them. I satisfied myself with your wealth and met many famous people and opened my horizon. You're right, I'm just vain. There were so many great truths I could not grasp.

The First Letter is written in Chinese characters which Allen admits he wrote himself.

45 Allen sent a second version of the letter as a WeChat attachment to Mr Peng late on 18 June 2022[90] ('Second Letter'). The covering WeChat message states:

Dear Mr Peng, I haven't finished the letter yet, please check first, how do you think? Is there anything wrong?

46 Allen sent the Second Letter to Mr Peng via WeChat on 18 June 2022. He acknowledged that this letter was specifically prepared for the purpose of showing his mother.[91] The Second Letter[92] states, noting the additions to the First Letter made in this letter are identified in italics:

Dear Mom,

I wouldn't be where I am today without you, I am fully aware of that. I'm really sorry. I'm really sorry. I'm really sorry. All this time, but for such a great mother like you, I would never be able to overcome difficulties and obstacles. I'm really sorry! I know you are very sad but I still beg for your forgiveness. I know that you may [hate me so much] that you may even want to kill me, but I still dare to ask you not to get so angry for the sake of your health. In fact, no matter what, I know that the damage has been done, and I can't make it up. I would still say that the source of my mistakes was my hubris. Since you gave me the opportunity to study abroad, normally I would not have time to take a close look at myself due to my heavy academic workload. But since I started working, I started to review myself from the inside out. It follows that once the wealth that was in return for your hard work arrived in Australia, I became arrogant, even though I knew it was your wealth. Next, I would like to explain to you where the wealth went, I know you may become furious. But this has also become my precious life's wealth. By life's wealth I mean that I have gained valuable experience that ordinary people could not obtain because of the platform of wealth you have built. Speaking of which, these words are all from the bottom of my heart. I am sad and relieved at the same time, because you eventually knew. I have no intention to stop you from the bottom of the truth. I just don't know how to speak to you, maybe I am guilty. I am in so much shame.

By the way, I look forward to speaking with you, and even more so, to seeing you. Maybe I can even fly back to [China], or beg you to fly to Australia. My eyes are still uncomfortable right now, but I still want to finish writing this letter. I hope you will pardon me for the scribbles due to my poor vision. There is currently AUD$1.6 million yet to be invested. This is my mental journey - I came from the initial normal mindset to the sudden fantasy of having a large amount of wealth, and then back to the normal mindset. Let me put it this way, I also experienced the feeling of being rich. Now I understand well that super wealthy people are very low-key, but I always have to go through such a process. I truly realised that having money makes it easy to become complacent, arrogant, and ignorant. I used to understand these great truths, but now I can truly relate to them. I satisfied myself with your wealth and met many famous people and opened my horizon. You're right, I'm just vain. There were so many great truths I could not grasp.

The process of opening an account in your name or my father's name is troublesome. The opening of an account kept delaying. As I was afraid that you would blame me for my incompetence, I didn't tell you the fact that the account was opened under my name. My plan is to not to tell you for some time. Most of the investment products were directly invested in Australian dollars. Since it is very convenient to exchange Australian dollars for US dollars in Australia, so I did not follow your opinion of investing solely in US dollars. I can honestly say that there is a total difference of $2.6 million in investment funds, of which $1.6 million is yet to be invested and $1 million is used for [my] daily life expenses. Of course, my daily life is my expenses on food, drink and shopping in Sydney. Speaking of this, you must be so upset. Yes, I failed you. Please curse me with the most vicious language in the world! However, my mood is calm, because my desires have been satisfied.

Yes, I am a greedy person, a dishonest person, an immoral person, and a very bad person. The bottom line is that I used your money. After Mr. Peng educated me, I felt like that I was an embezzler. I was extremely regretful. For someone like me who came to such a fancy world of Sydney from Adelaide, a small city, the temptation here was too great, with all kinds of luxury and designer goods and high‑end places where I could spend money. I know that these things don't belong to me, the money doesn't belong to me, and I don't have the ability to earn that much money. But under the circumstances at the time, I really couldn't control the devil living in my heart.

47 The additional material contained in the Second Letter, and other revisions, was a response to the WeChat message from Mr Peng dated 18 June 2022 at 22:14[93] which stated:

It is not enough only to apologize to Ms Ma, you should describe the followings clearly:

1. You did not open an account under Xu Yi's name due to trouble, then tell her why you did not tell her about this matter, and the reason why you told her you opened an account under Xu Yi's name?

2. Why did you change the US dollar to Australian dollar? How much was the exchange rate at that time, why did not tell her in advance, and kept deceiving her afterwards?

3. Just as you calculated temporarily that you spent totally 1 million yuan, please list a sheet to show the place, merchandise, purchasing details and price of each item. If all 1 million yuan was spent entirely on necessities based on what you said, it is unrealistic, and Ms Ma will never believe either.

4. Where is the other 1.6 million yuan?

5. Your plan to solve this matter to make Ms Ma satisfied.

48 The Second Letter was then further revised - after Allen received input from Mr Peng to include the following[94] ('Third Letter'), noting the additions to the Second Letter made in this letter are identified in italics:

I wouldn't be where I am today without you, I am fully aware of that. I'm really sorry. I'm really sorry. I'm really sorry. All this time, but for such a great mother like you, I would never be able to overcome difficulties and obstacles. I'm really sorry! I know you are very sad but I still beg for your forgiveness. I know that you may [hate me so much] that you may even want to kill me, but I still dare to ask you not to get so angry for the sake of your health. In fact, no matter what, I know that the damage has been done, and I can't make it up. I would still say that the source of my mistakes was my complacency and arrogance. Since you gave me the opportunity to study abroad, normally I would not have time to take a close look at myself due to my heavy academic workload. But since I started working, I started to review myself from the inside out. It follows that once the wealth that was in return for your hard work arrived in Australia, I became arrogant, even though I knew it was your wealth. Next, I would like to explain to you where the wealth went, I know you may become furious. But this has also become my precious life's wealth. By life's wealth I mean that I have gained valuable experience that ordinary people could not obtain because of the platform of wealth you have built. Speaking of which, these words are all from the bottom of my heart. I am sad and relieved at the same time, because you eventually knew. I have no intention to stop you from the bottom of the truth. I just don't know how to speak to you, maybe I am guilty. I am in so much shame.

By the way, I look forward to speaking with you, and even more so, to seeing you. Maybe I can even fly back to [China], or beg you to fly to Australia. I wanted to handwrite the letter to you, but my eyes are still uncomfortable right now. To avoid scribbles due to my poor vision, I decided to type the letter using a computer. There is currently AUD$1.6 million yet to be invested. This is my mental journey - I came from the initial normal mindset to the sudden fantasy of having a large amount of wealth, and then back to the normal mindset. Let me put it this way, I also experienced the feeling of being rich. Now I understand well that super wealthy people are very low-key, but I always have to go through such a process. I truly realised that having money makes it easy to become complacent, arrogant, and ignorant. I used to understand these great truths, but now I can truly relate to them. I satisfied myself with your wealth and met many famous people and opened my horizon. You're right, I'm just vain. There were so many great truths I could not grasp.

The process of opening an account in your name or my father's name is troublesome. The opening of an account kept delaying. As I was afraid that you would blame me for my incompetence, I didn't tell you the fact that the account was opened under my name. My plan is to not to tell you for some time. Most of the investment products were directly invested in Australian dollars. Since it is very convenient to exchange Australian dollars for US dollars in Australia, so I did not follow your opinion of investing solely in US dollars. I can honestly say that there is a total difference of $2.6 million in investment funds, of which $1.6 million is yet to be invested and $1 million is used for [my] daily life expenses. Of course, my daily life is my expenses on food, drink and shopping in Sydney. Speaking of this, you must be so upset. That's right, I failed you. Please curse me with the most vicious language in the world! However, my mood is calm, because my desires have been satisfied.

Yes, I am a greedy person, a dishonest person, an immoral person, and a very bad person. The bottom line is that I used your money. After Mr. Peng educated me, I felt like that I was an embezzler. I was extremely regretful. For someone like me who came to such a fancy world of Sydney from Adelaide, a small city, the temptation here was too great, with all kinds of luxury and designer goods and high-end places where I could spend money. I know that these things don't belong to me, the money doesn't belong to me, and I don't have the ability to earn that much money. But under the circumstances at the time, I really couldn't control the devil living in my heart. I have attached a list of my large expenses, please have a look. I admit that I was addicted to the world of high-grade jewelry. I was so fascinated that I couldn't extricate myself. These high‑grade jewels are my size, so you can also wear them, especially Bulgari's Serpenti ring is retractable. I can return them all to you. All the jewels I bought are of limited edition around the world, which are very precious. If you ask me what I have bought specifically, I can take photos for you or make a video call with you. For example, the Bulgari ring I wear uses Paraiba Tourmaline, a kind of rarest tourmaline in the world. This is the world's most precious tourmaline. In a word, I was obsessed with haute couture jewelry like an addict, and I can return all these 'stolen goods' to you.

49 This correspondence was shown to Jiyun by Mr Peng at a meeting around midday on 19 June 2022, just a few hours after Allen had emailed it to Mr Peng.[95] The evidence also showed that Allen sent the Second Letter to Mr Peng to show to Jiyun.[96]

50 Evidence was given by Allen that Mr Peng's daughter typed some - unknown - parts of the Second Letter, with no involvement from Allen at all. Allen explains this by saying that:[97]

I think [Mr Peng and his daughter], what I really thought was they'd set a trap to, they set a trap to, to let me answer questions via WeChat and provided this to Court.

The Plaintiff submits that this is not credible and, at this time, it was 18 or 19 June 2022 with no contemplation of litigation. Moreover, it is said that it is incredulous that Mr Peng's daughter could have written, without input from Allen, details relating to what Allen had agreed with his mother, such as:

The process of opening an account in your name or my father's name is troublesome. The opening of an account kept delaying. As I was afraid that you would blame me for my incompetence I didn't tell you the fact that the account was opened under may name.

For these reasons, it is contended that Allen's evidence that he had no involvement in the letter at all should be rejected.[98]

51 The Plaintiff concedes that Mr Peng or his daughter may have chosen some 'harsh words or just exaggerate[d] a little bit to push [Allen] to make a genuine apology to Ms Ma'.[99] However, it is said that details such as the agreement to open an account in his parents' name to receive the Jiyun Funds are neither 'harsh words' nor 'exaggeration'. It is said that details of what Allen had agreed with his mother in relation to opening an account in their names to receive the Jiyun Funds were only known to Allen and his parents. Additionally, it is said that nor could Mr Peng's daughter have known that Jiyun wanted the Jiyun Funds deposited into a US dollar bank account, as described in the Second Letter, unless Allen had told her.

52 This Second Letter was written and sent via WeChat by Allen before any proceedings had been issued and the detail could not have been known to Mr Peng's daughter without instruction from Allen. It does, however, the Plaintiff contends, accurately reflect Jiyun's pleaded case.

53 Allen sent the Second Letter to Mr Peng on 18 June 2022 - the day before it was shown to Jiyun - with the covering WeChat message:

Dear Mr Peng, I haven't finished the letter yet, please check it first, how do you think? Is there anything wrong?[100]

It has been suggested that Mr Peng's daughter drafted the words in the Second Letter and that somehow excuses Allen from admissions he might have otherwise made.

54 The Plaintiff contends that this point is wrong, and whether someone else typed or drafted some parts of that letter is irrelevant. Importantly, it is submitted that, in fact, Allen sent it and so adopted its contents, asking 'I haven't finished' suggesting he drafted it and then asked whether anything was wrong with it.[101]

55 The Plaintiff submits that the Second Letter, which was sent by Allen to Mr Peng,[102] is significant in containing a number of admissions against his interest that:

(a) the money advanced was Jiyun's (your wealth);

(b) there was still AUD1.6 million yet 'to be invested';

(c) there was a difference of AUD2.6 million in 'investment funds'; and

(d) the money 'doesn't belong to [Allen]'.

56 As submitted by the Plaintiff, an admission is a previous representation made by a party to a proceeding which is adverse to the person's interest in the outcome of the proceeding.[103] Further, acts subsequent to the date of an alleged declaration of trust, which tend to show the existence of the trust, will be admitted as admissions against interest.[104]

57 The Third Letter is, as observed by the Plaintiff, substantially identical to the Second Letter but includes more detail about some of the jewellery items purchased by Allen, saying:

These high-grade jewels are my size, so you [i.e. Jiyun] can also wear them.

It is submitted that any suggestion that Allen had no involvement in the preparation of the Third Letter is also fanciful and incredulous.[105] Allen explained that detail relating to products he purchased were included on invoices, but that does not explain:

(a) why anyone, other than Allen, would want to make this change to the Second Letter; or

(b) how anyone typing the Third Letter would know that Allen and Jiyun share the same ring size.

Thus, it is said that it is not credible that someone could write this detail in the Third Letter without input from Allen. The Third Letter - written when Allen was still contrite - concludes with an offer to return the 'stolen goods'.

58 The Plaintiff contends that the 'three letters' are an accurate record of the arrangement between Allen and his mother for the opening of an account into which the Jiyun Funds were to be deposited. The veracity of these letters is said to be corroborated by their timing, a matter said to be significant:[106]

1. The timing is significant, and corroborates what is in the three letters. Consistently with the three letters:

(a) on 20 June 2022 - the day after the three letters referred to above were shown to Jiyun - Allen sent a further WeChat message:

'Mum, I know that you may want to kill me, but please listen to me .... I need to pay out of pocket the related medical expenses and hospital inpatient expenses ... I'm worried about the cost, so I hope to use your money to help me go through this .... I'll sort things out and send them to you'.[107]

(b) on 28 June 2022, Allen proceeded to make arrangements for Jiyun to recover the Jiyun Funds by signing the General Power of Attorney; making her a signatory to his bank accounts and signing the Power of Attorney so that she could deal with her Haymarket Property.

1. There was not a single message or text in any WeChat message or other document prior to the filing of a Defence, in which Allen suggests that the money had been a gift or that Allen believed it was his to spend. Even throughout the freezing order application Allen did not suggest that the money had been a gift. Not even in response to being called a thief. In fact, the first time this argument was raised was in Allen's Defence to this proceeding.

2. Insofar as Allen suggests that an inference can be drawn from his mother having purchased Allen a house in China, Jiyun never denied that it had been purchased as a gift for Allen. She even gave evidence to that effect.[108] The 'Beijing Daxing District People's Court'[109] concluded that the house had been purchased 'for the consideration of his marrying and settling down in the future, as [Allen] would turn 18 when the house in question was purchased'. That rationale does not apply to the series of payments that are the subject of this dispute.

3. Allen has suggested that Jiyun's anger was because he had purchased personal goods. That was denied by Jiyun and disproportionate to her response when she found out that Allen had not opened an account with Morgan Stanley on Yi Xu's name and treated the money ($11,133,322.35) as his own.

4. We Chat messages from Allen in June and July 2022 (following 18 June) are consistent with Allen:

(a) agreeing to return money;

(b) agreeing the properties are held for Jiyun.

'I hope to use your money to help me get through this';[110]

'this house is your property';[111]

'I will ensure the safety of your house'.[112]

59 The Defendant argues against the position that the letters are to be regarded as 'admissions', and against interest and rather to cast their contents as the abject apologies of a contrite son. Moreover, more particularly, the Defendant submits that Jiyun's own witness, Mr Peng, gave evidence that entirely contradicted any suggestion that the typed letters were written by Allen and that, rather, his evidence established that the typed letters were written by him and by his daughter. Mr Peng also said that Jiyun did not raise anything with him about investment money in Australia. Mr Peng gave evidence that he did not learn anything about investment being an issue until he was spoken to by Jiyun's lawyer in preparation for the trial.[113] It is then said that the only letter that Allen wrote is the handwritten letter in Chinese characters which he sent to Mr Peng.[114] Allen's evidence in cross-examination is that the two typed letters were not written by him.[115]

60 The Defendant submits that the first few paragraphs of the two typed letters, though with some exceptions to which reference is made in these reasons, are copied from the handwritten letter that Allen wrote. It is, however, said that the latter part of each letter was not written by him, beginning with the paragraph commencing:

The process of opening an account in your name or my father's name is troublesome. The opening of an account kept delaying. As I was afraid that you would blame me for my incompetence, I didn't tell you the fact that the account was opened under my name.[116]

61 The Defendant says that the evidence establishes that the first of the two typed letters (the Second Letter) was written by Mr Peng's daughter[117] and was then sent to Allen via WeChat by Mr Peng's daughter.[118] The evidence is that Mr Peng was very worried about Allen's mother so he asked his daughter to draft the letters to show that Allen was really sincere in apologising to his mother in order to help them resolve the matter as soon as possible.[119] Mr Peng said that he was quite upset with Allen and 'made some revisions on the second version'.[120] He and his daughter added various things to the second typed letter (the Third Letter).[121]

62 Turning to the content of the two typed letters, it is said by the Defendant that they contained additional paragraphs,[122] making statements such as, 'I felt like that I was an embezzler', 'I know that these things don't belong to me', 'I am a greedy person, a dishonest person, an immoral person and a very bad person', and 'I used your money'.[123] Allen's evidence is that the first typed letter (the Second Letter) was sent to Allen by Mr Peng's daughter and forwarded by Allen to Mr Peng without reading it.[124] The typed letters also added words to the initial paragraphs that largely reflected Allen's handwritten letter but added:[125]

I'm really sorry. I'm really sorry. I'm really sorry. All this time, but for such a great mother like you, I would never be able to overcome difficulties and obstacles (first para).

... due to my heavy academic workload (first para).

I am in so much shame (first para).

At this point, reference should be made to the evidence from Allen that he did not read the Second Letter because, it is said, of issues with his eyes following the cosmetic surgery on his eyes. However, as indicated, this surgery preceded his writing of the handwritten letter (the First Letter). Consequently, it is, in my view, implausible that he would not have read the Second Letter, having been in a position to prepare the handwritten letter in spite of his eye surgery.[126] Thus, it might be said that the proper inference that should be drawn from this conduct is that, in light of the various communications with Mr Peng in relation to the 'three letters', it should be taken that Allen's forwarding of the first typed letter (the Second Letter) to Mr Peng is properly to be regarded as an adoption of its contents. In my view, this is, having regard to this context, the proper inference.

63 It was also put to Allen in cross‑examination that the typed letters contained details that only he or Jiyun could know.[127] However, when read in context, it is submitted that it is apparent that the first typed letter (the Second Letter) was drafted by Mr Peng or his daughter to refer to the various items referred to in the accompanying WeChat message, which references the various things that Mr Peng says the letter to his mother 'must' contain ('it is not enough only to apologize to Ms Ma, you should describe the followings clearly').[128] It is observed that Mr Peng agreed in evidence that the 'dot points' refer to things that have already been added to the letter by his daughter.[129] Thus, it is contended that they are not 'further' things that Mr Peng is saying Allen needs to add in; they are things that his daughter has already included in the first typed letter (the Second Letter). Mr Peng gave evidence that:[130]

Following point 123 was of Ms Ma. I just pass on her messages to Allen.

Thus, it is said that these dot points were 'questions from Ms Ma' that Allen needed to answer.[131]

64 The document that Allen sent to Mr Peng on 19 June 2022 was a list of invoices for the luxury items.[132] Thus, it is contended that the evidence is clear that Allen did not send the second typed letter (the Third Letter) to Mr Peng.[133] Further, it is said, that as evidenced in the WeChat messages, Allen did not send any letters to his mother between 17 and 20 June 2022.[134]

65 Finally, the Defendant submits that regard should be had to the evidence that Mr Peng spoke to Jiyun on 16 March 2025 prior to the trial and told her how the typed letters came about.[135] When asked about this in cross-examination, Jiyun denied ever having been told that by Mr Peng,[136] but did eventually agree that Mr Peng had sent a message to her on 17 March 2025, prior to her giving evidence, that the two typed letters (the Second and Third Letters) had been written by his daughter and him.[137] On this basis, the Defendant submits that Jiyun's willingness to omit this from her evidence‑in‑chief and to present the typed letters as having been written by Allen, when she knew that this was not the case, casts great doubt on her credibility. However, in my view, having regard to the fragmented and rather confused series of communications between Mr Peng, Allen and Jiyun, I do not regard this as a credibility issue but, rather, one more likely a result of confusion. Moreover, on the basis of my views with respect to the 'three letters' and the extent to which Allen might be said to have effectively adopted them or Jiyun's credibility in these circumstances, this issue goes nowhere.

66 For the preceding reasons, I am of the view that the Plaintiff's submissions with respect to the authorship, subsequent adoption by Allen, and the extent to which all three letters were ultimately provided to Jiyun, are to be preferred for the reasons and on the basis of the evidence relied upon in those submissions. As indicated in these reasons it is, in my view, more probable than not that Jiyun did receive the Third Letter, though there may have been problems in her opening the PDF version of that letter as attached to the WeChat messages when the message to which it was attached was first received. In any event, it is clear, in my view, that the evidence supports the finding that at the time the 'three letters' were being prepared, it was Allen's understanding and intention in the context of his communications with Mr Peng that these letters were to be sent by Mr Peng to Jiyun. Moreover, having regard to this position, their characterisation as admissions on Allen's part is not affected even if the position was that Jiyun did not receive the Third Letter at all, or about the time of receipt of the WeChat message to which it was attached. The same applies to the other letters. As submitted by the Plaintiff, an admission is a previous representation adverse to the person said to be making it. Moreover, the admission does not have to be conveyed to the party adverse to the person making the admission - it merely has to be a previous representation. In my view, the 'three letters' clearly fall into this category and are to be treated as admissions against interest by Allen.

67 Where a witness might be expected to be called but is not, an inference may be drawn that his or her evidence would not assist the party not calling him or her. This general statement of the rule in Jones v Dunkel[138] (the 'Rule') does, however, need to be examined more closely in terms of the threshold for the operation of the Rule. In this respect, it is most helpful to refer to the following passage from the judgment of the Court of Appeal in Tenth Vandy v Natwest Markets Australia as follows:[139]

1. Finally, under Grounds 9 and 10, counsel for the appellant submitted that the judge erred by refusing to draw a Jones v Dunkel inference adverse to the respondent on the basis of the absence from the witness box of the witnesses which the respondent had proposed to call.
2. As to that aspect of the matter, the judge reasoned as follows:

Applying the reasoning in Jones v Dunkel, I am of the opinion that no inference can be drawn in the present circumstances unless and until the party bearing the burden of proof of its case (the plaintiff) has by the evidence it relies upon established a case for the defendant to answer. If and when the plaintiff were to establish its case, then the defendant may, if it did not call evidence to rebut the case, be left in the position of arguing its case against the plaintiff's unchallenged or uncontradicted evidence. This may of itself, or with the aid of inferences according to the rule in Jones v Dunkel, establish the plaintiff's case. However, I am of the opinion that the rule in Jones v Dunkel may not be resorted to by a party, in effect, to fill in the facts of its case before the threshold for the operation of the rule is reached, as explained in the passage from the judgment of Windeyer J above.[140]

1. With respect, there is no error in that analysis.

The relevant principles are also considered in Primrose Meadows Pty Ltd v River View Pty Ltd.[141]

68 As is clear from the preceding discussion in relation to the WeChat messages and the 'three letters', a matter of significant uncertainty was the extent to which Allen had been involved or participated in the preparation of the Second and Third Letters. The Defendant has emphasised in its submissions that substantial and critical parts of these letters were the product of Mr Peng and his daughter's input and authorship, rather than that of Allen. It is quite clear that Allen's involvement or otherwise is a critical matter with respect to the issue of admissions which is put against him. This is not a fanciful or irrelevant issue in the context of this proceeding and, in my view, does raise the threshold for the application of the Rule in Jones v Dunkel as, on the evidence that is available, it is more than likely that Mr Peng's daughter could have given evidence in relation to Allen's involvement or otherwise in the preparation of the Second and Third Letters. In spite of this, Mr Peng's daughter was not called to give evidence, and in circumstances where it appears that Allen had contact with her in close proximity to the trial in this proceeding and where there is no suggestion, let alone evidence, that she could not have been called.

69 Against this background, it is helpful now to refer to particular matters raised in the Plaintiff's submissions which, in my view, for the reasons put and the materials relied upon, clearly indicate that the Rule is applicable and the inferences flowing from that are adverse to Allen's case on the admission issue. The Defendant's submissions, on the other hand, do not clearly address or rebut the matters raised by the Plaintiff and concentrate, rather, on questions as to 'whose camp' Mr Peng's daughter was in and who could, on that basis, have called her. The general proposition in this respect being that Mr Peng's daughter was in the Plaintiff's 'camp'.[142] In my view, this analysis is neither helpful nor persuasive in the particular circumstances of this proceeding given that the evidence is that Allen spoke to Mr Peng's daughter during the first day of the trial and there is no suggestion that he could not have called her if he thought she would support his evidence as to the authorship and preparation of the Second and Third Letters. On this basis, I turn now to some of the details raised in the Plaintiff's submissions which support the application of the Rule.

70 As the Plaintiff observes, despite sending the Second Letter to Mr Peng stating that he had not finished the letter yet,[143] Allen claims that he had 'no involvement at all'[144] in the preparation of that letter. He claims to have received it from Mr Peng's daughter by WeChat; a message or messages which he has not produced. In fact, he has not discovered any correspondence between himself and Mr Peng's daughter, despite this proceeding having commenced in November 2022, giving him notice of the issues in dispute and that they were material documents. As the Plaintiff observes, the Court has seen the exchange of correspondence dated 17 January 2025 between the parties' solicitors in which Madgwicks, on behalf of the Plaintiff, specifically sought clarification in relation to who had written the 'three letters' and were told that Allen only wrote the First Letter.

71 The Plaintiff also draws attention to the position that Allen's affidavit of documents did not disclose that the crucial correspondence between Allen and Mr Peng's daughter ever existed. In fact, Allen gave evidence‑in‑chief that he did not even look for any correspondence between Mr Peng's daughter and himself when complying with orders for discovery.[145] In cross‑examination:[146]

(a) despite initially saying that he last spoke to her at the end of last year, Allen conceded that he spoke to her on the first day of the trial; and

(b) Allen agrees that she could have given evidence in relation to:

(i) how the second and third versions of the letter came into existence; and

(ii) which parts of these letters she wrote or which parts Allen wrote or contributed to; and

(c) Allen does not know any reason why she could not have given evidence at trial.

72 As the Plaintiff submits, it became apparent during the course of the trial that Mr Peng's daughter was a 'key player in this case'. Jiyun had established a case for Allen to answer regarding the 'three letters' and their effect.[147] This emphasises my previous references to and comments in relation to the Jones v Dunkel threshold in the present context. Moreover, the Plaintiff contends that Mr Peng's daughter's evidence would not have been cumulative or corroborative of evidence given at trial. Allen and Mr Peng were unable to describe which parts of the Second Letter had been written by Mr Peng's daughter or the source of the detail which had been included in the typed letters. As indicated previously, these details included an acknowledgement that Allen had been asked to open an account in Jiyun or Yi Xu's name (which he now denies) as well as the admission that the money did not belong to Allen.

73 Flowing from these matters, the Plaintiff makes reference to the observation of Glass JA in Payne v Parker when considering whether a missing witness would be expected to be called by one party rather than the other:[148]

The ... condition is also described as existing where it would be natural for one party to produce the witness: ... or the witness would be expected to be available to one party rather than the other: ... or where the circumstances excuse one party from calling the witness, but required the other party to call him,,, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him ... or where the witness' knowledge may be regarded as the knowledge of one party rather than the other ...

The Plaintiff contends that the 'circumstances' of Allen relying on Mr Peng's daughter having prepared the draft Second Letter and by sending WeChat communications (not produced) are such that he ought to have called her. For the preceding reasons, including my observations on the application of the Rule in the present context, I accept that this is the position.

74 Applying the principles to which reference is made, the Plaintiff submits that the knowledge of Mr Peng's daughter in relation to the creation of the Second Letter and its content may be regarded as knowledge of Allen rather than Jiyun. Given Allen's failure to discover any communications between himself and Mr Peng's daughter - particularly the Second Letter that she supposedly sent to Allen by WeChat - it could not be expected that Jiyun should have called Mr Peng's daughter rather than Allen. Further, Allen had been communicating with Mr Peng's daughter as recently as the first day of the trial. Despite being given an opportunity to do so, no satisfactory explanation was given by Allen for not calling Mr Peng's daughter as a witness.

75 Concluding with respect to the application of the Rule, it is, in all the circumstances, appropriate for the Court to draw an inference that Allen did not call Mr Peng's daughter to give evidence in relation to the origin, content and authorship of the Second and Third Letters because it would not have assisted his case, or the inference that Allen provided the information to enable the letters to be prepared, to the extent it is found he did not personally prepare them, should also be drawn. In all the circumstances, the result with respect to the admissions issue would be the same.[149]

76 In the alternative, the Plaintiff submits that the Defendant held and holds all, or any, of the monies advanced, the Jiyun Funds, on trust for Jiyun beneficially. The Plaintiff alleges that the Jiyun Funds were advanced to Allen for investment on Jiyun's behalf and, therefore, as a consequence of Allen failing to use the money for this purpose, he held and now holds the Jiyun Funds and assets purchased with these funds on a resulting trust for Jiyun beneficially. In the context of this issue and all these submissions, it is useful to emphasise that, for the reasons which follow, I do accept and find that the Jiyun Funds, and any part thereof, were and now are held on trust by Allen for Jiyun beneficially. Further, as indicated previously, this position was not and is not affected by my finding of an agreement between the parties with respect to the application of these funds.[150]

77 The Plaintiff refers to Re Australian Elizabethan Theatre Trust[151] and Re BBY (Receivers and Managers appointed) ('Re BBY'),[152] and invited the Court to find that, if no transaction was established on the evidence, then a resulting trust in favour of the Plaintiff arose from the parties' conduct.[153] The Plaintiff submits that separation of the Jiyun Funds from Allen's own money provided a strong indication that the funds were held on trust. Indeed, in Re BBY,[154] Gleeson J said:

One important indicator of whether the parties intend to create a trust in the nature of a Quistclose trust is whether or not there is an intention that the subject monies be kept separate from other general monies of the recipient: Re Australian Elizabethan Theatre Trust at FCR 505-‍ 6; ALR 696; ACSR 601-‍2. In Quistclose, the borrower (Rolls Razor) had taken the step of establishing a special and separate account with Barclays Bank to receive the loan monies which had been provided to pay a dividend to shareholders. If the lender (Quistclose) had paid the monies into an existing account, it would not have been possible to deduce a common intention that the monies were to be held on trust until the purpose of the loan was achieved.

The Plaintiff argues that this principle of separate funds can also apply in support of a finding of a resulting trust.

78 The Plaintiff accepts that the presumption of resulting trust may, in the present circumstances, be displaced by the presumption of advancement, but contends that the presumption of advancement had been weakened by the High Court's decision in Bosanac v Commissioner of Taxation ('Bosanac')[155] and, in any case, the presumption has been rebutted by the evidence adduced at trial.[156] The Plaintiff argues that critical in this context is the intention of Jiyun in providing the Jiyun Funds to Allen; the determination of which is a question of fact, and regard may only be had to the intent which she manifested, as the person contributing the funds.[157]

79 During closing submissions, I invited the parties to provide submissions as to which party must satisfy the onus of proving the existence of a resulting trust. The Plaintiff contends that by establishing that money had been advanced from Jiyun to Allen, Jiyun had effectively discharged the onus of establishing a resulting trust.[158] The Plaintiff submits that the onus then shifted to Allen to establish that the Jiyun Funds were not provided on trust.[159] In discussing the issue of onus, particularly as considered in Bosanac, the Plaintiff made reference to the decision of Martin v Martin ('Martin'),[160] referred to by Kiefel CJ and Gleeson J in Bosanac, where their Honours said:[161]

The question of intention is entirely one of fact, and concerns the intention manifested by the person or persons who contributed funds towards the purchase of the property. In Martin v Martin, it was observed that for the most part it can be assumed that proof of intention will be made out by the circumstances. Reference was made to what had been said by Cussen J in Davies v National Trustees Executors and Agency Co of Australasia Ltd:

'It is impossible to try to arrange into certain sets of categories certain facts, and say beforehand they will or will not become decisive or immaterial. The attention must be kept steadily fixed on the one fact in issue - What was at the time the intention of the purchaser or transferor? Anything which is relevant to that issue is admissible.'

The Plaintiff, therefore, maintains that by providing the Jiyun Funds to Allen, Jiyun had effectively discharged the onus, and it was incumbent on Allen to establish that the presumption of resulting trust does not arise. The Plaintiff invited the Court to find that Allen is unable to meet this onus and, accordingly, to find that a resulting trust existed in favour of Jiyun.

80 The Defendant seeks to rely on the presumption of advancement to displace the presumption that Allen held the Jiyun Funds on trust on behalf of Jiyun.[162] It was not disputed during trial that the presumption of advancement could arise, as the provision of money flowed from mother to son. The Defendant also refers to Bosanac and submits that the presumption of advancement today exists as a circumstance of evidence that may prevent the presumption of resulting trust from arising.[163] In Bosanac, Kiefel CJ and Gleeson J said:[164]

On one view, the presumption of advancement is not strictly a presumption at all. It may be better understood as providing 'the absence of any reason for assuming that a trust arose'. At an evidentiary level, it is no more than a circumstance which may rebut the presumption of a resulting trust or prevent it from arising. It too may be rebutted by evidence of actual intention.

81 The Defendant also, in my opinion, correctly, concedes that both the presumptions of resulting trust and advancement have been weakened by the passage of time and would not be engaged unless the evidence is 'neutral, truly equivocal, non‑existent or uninformative'.[165] In Bosanac, Gordon and Edelman JJ said:[166]

Where the objective facts based on evidence led by the plaintiff tend to establish an objective intention that a provider of part of the purchase price would hold an equitable interest as to a particular proportion of a particular property, there will be an express trust which satisfies the three certainties of intention, subject and object. That is the case that the defendant has to meet. There is no need for a presumption of resulting trust to shift the onus of proof. The presumption of resulting trust does not arise. It is unnecessary.

On the other hand, where the objective facts based on evidence led by the plaintiff tend to establish, even weakly, an objective intention inconsistent with a declaration of trust, then there will be no case for the defendant to meet. Again, the presumption of resulting trust will not arise. In this circumstance, the fact that there is a spousal relationship is one of the objective facts: at best it merely reinforces, and is not determinative of, the objective intention of the parties established by the objective facts.

Where, however, the objective facts based on evidence led by the plaintiff are neutral, truly equivocal, non‑existent or uninformative as to the objective intention of the parties, then, consistent with the weak presumption of resulting trust, an inference can be drawn of a declaration of trust by the provider of part of the purchase price. That weak inference will be the case that the defendant has to meet.

82 In contrast to the Plaintiff's submission on onus, the Defendant submits that the onus lay on Jiyun to prove the existence of a resulting trust in her favour. The Defendant contends that the effect of the competing presumptions are to cancel one another out, such that the presumptions would be of no assistance to the Court and the Plaintiff would have failed to establish her case.[167]

83 As indicated previously, I have determined that an agreement existed between the parties for the investment of the Jiyun Funds by Allen on her behalf.[168] The existence of such an agreement is necessarily at odds with any intention on Jiyun's part that the funds were provided to Allen by way of a gift. Consequently, it is not strictly necessary to address Jiyun's alternative submissions regarding the existence of a resulting trust. However, it is desirable that I do so in the event that this proceeding goes further.

84 As indicated, the principles on resulting trusts and the presumption of advancement are well known and helpfully summarised in the High Court decision of Bosanac. The presumption of a resulting trust arises were a person advances money used to purchase property, held in the name of another. The law presumes that the first person intends to maintain a beneficial interest over that property.[169] This presumption also applies to personal property.[170] However, the presumption is subject to an opposing presumption of advancement, which, for example, may arise for purchases made by a husband for their wife, or a parent for their child. In such cases, were such a presumption to be applied, the beneficial interest would pass with the legal interest.[171]

85 Whilst the High Court in Bosanac accepted that the strength of both the presumption of resulting trust and advancement have been eroded over time,[172] it declined to find that these presumptions no longer form part of Australian law.[173] For instance, notwithstanding having characterised the presumptions as 'anachronistic',[174] Gageler J said:

For better or for worse, the weight of history is too great for a redesign of that magnitude now to be undertaken judicially. This Court in Charles Marshall Pty Ltd v Grimsley adopted the description by Eyre CB in Dyer v Dyer of the presumption and counter‑presumption as 'landmarks' in the law and said then that the applicable law could 'no longer be the subject of argument'. That view was repeated by Deane J in Calverley v Green and by Deane and Gummow JJ in Nelson v Nelson ...[175]

...

Unless and until they are together reappraised as an exercise in law reform and abolished or modified by legislation, the presumption of a resulting trust and the counter‑presumption of advancement are here to stay ...[176]

Therefore, the critical question is to what extent these presumptions may assist my determination of whether a resulting trust, so alleged by the Plaintiff, existed.

86 In Bosanac, Gageler J distilled the following principles:[177]

The presumption of a resulting trust is a presumption of fact, functionally akin to a civil onus of proof. The presumption will yield to an actual intention to the contrary found on the balance of probabilities as an inference drawn from the totality of the evidence. The weight to be given to the fact of a contribution having been made to the purchase price in drawing an inference as to actual intention will vary according to the totality of the circumstances of the case.

The counter‑presumption of advancement is not really a presumption at all. The existence of a relationship within a category recognised as triggering the counter‑presumption is no more than a 'circumstance of evidence'. Considered alone, the circumstance of such a relationship is enough to negative the presumption which arises from the bare fact of contribution to the purchase price. However, the circumstance of such a relationship will not be considered alone if other evidence going to intention is adduced and will then simply be weighed in the overall evidentiary mix.

...

Where evidence relevant to intention is adduced, the presumption and the counter‑presumption are therefore of practical significance only in rare cases where the totality of the evidence is incapable of supporting the drawing of an inference, one way or the other, on the balance of probabilities about what contributors and purchasers actually intended when they participated in the purchase transaction.

87 Similarly, Gordon and Edelman JJ also expressed the following views on the strength of the presumptions today:

In modern times, the presumption has been applied to personalty as well as realty. Acknowledging that it is too late to abolish it, the presumption of resulting trust should be recognised as a weak presumption given that the circumstances justifying it have changed so much since the foundations of the presumption in the 15th century.[178] ...

[O]nce evidence is adduced to address the issue in dispute, the presumption has no 'superadded weight'. Once that evidence is led, 'even weak evidence ... must prevail if there is not other evidence to counterbalance it'; the presumption only arises where the evidence is evenly balanced and the court is unable to make a decision. As Deane J explained in Calverley in relation to the presumption of resulting trust, the presumption 'serve[s] the same function as a civil onus of proof [by] operat[ing] to resolve a factual contest in circumstances where the relevant evidence [is] either uninformative or truly equivocal'. Or, as Lord Upjohn said in Vandervell v Inland Revenue Commissioners, 'the so‑called presumption of a resulting trust is no more than a long stop to provide the answer when the relevant facts and circumstances fail to yield a solution'.[179]

...

Put in different terms, where the presumption arises, the existence of a resulting trust is an inference drawn in the absence of evidence when, for example, a purchaser of property causes it to be transferred to another or when a person contributes to the purchase of property which is registered in the name of another. But such an inference - of resulting trust - cannot arise where a plaintiff has led evidence that tends to establish an objective intention or the lack of an objective intention to create a trust.

As a resulting trust is an inference drawn in the absence of evidence, it is necessary to start with the objective facts. It is a factual inquiry. The question may be framed in these terms: what were the parties' words or conduct at the time of the transaction or so immediately thereafter as to constitute part of the transaction - the objective facts?[180]

88 Finally, Kiefel CJ and Gleeson J elucidated the following principles regarding the operation of the presumptions:

On one view, the presumption of advancement is not strictly a presumption at all. It may be better understood as providing 'the absence of any reason for assuming that a trust arose'. At an evidentiary level, it is no more than a circumstance which may rebut the presumption of a resulting trust or prevent it from arising. It too may be rebutted by evidence of actual intention.[181]

...

The presumption of advancement, understandably, is especially weak today. In Pettitt, Lord Hodson considered that when evidence is given it will not often happen that the presumption will have any decisive effect. In the same matter, Lord Upjohn considered that given both presumptions are but a mere circumstance of evidence, they may readily be rebutted by comparatively slight evidence.[182]

...

The question of intention is entirely one of fact, and concerns the intention manifested by the person or persons who contributed funds towards the purchase of the property. In Martin v Martin, it was observed that for the most part it can be assumed that proof of intention will be made out by the circumstances. Reference was made to what had been said by Cussen J in Davies v National Trustees Executors and Agency Co of Australasia Ltd:

'It is impossible to try to arrange into certain sets of categories certain facts, and say beforehand they will or will not become decisive or immaterial. The attention must be kept steadily fixed on the one fact in issue - What was at the time the intention of the purchaser or transferor? Anything which is relevant to that issue is admissible'.

Cussen J went on to say that evidence of that person's thinking at the time might be accepted, although it would be received 'with caution' ...[183]

89 Following the decision in Bosanac, the following principles are clear:

(a) both the presumption of resulting trust and advancement are weak and capable of being rebutted by comparatively slight evidence;[184]

(b) weak evidence will prevail over the presumption of resulting trust if no counterbalancing evidence exists;[185]

(c) the presumptions will only affect the assessment where the evidence is equivocal, non‑existent or uninformative as to the parties' intention;[186] and

(d) evidence as to the intent of the parties, and inferences drawn from the available facts and the history of the parties' dealings, are relevant to the assessment of whether the alleged resulting trust exists.[187]

90 The question before the Court is, therefore, whether the evidence establishes that Jiyun intended to advance the AUD11 million to Allen to hold and deal with for her benefit; hence, in the eye of equity to be held on resulting trust for herself. This assessment is rendered somewhat difficult by the competing accounts put forth by Jiyun and Allen during examination and cross‑examination. Their evidence was, at times, completely and diametrically opposed and inconsistent with one another. Thus, a significant aspect of this assessment requires determination of the credibility of each witness, and whose account is to be preferred.

91 I turn first to the objective circumstances surrounding the parties. Allen is Jiyun's first son, and she has a younger son, Andy, who is 12 years old. During examination, Jiyun gave evidence that, as a consequence of Andy's age, she continues to have significant caring obligations towards him.[188] Jiyun gave further evidence that once Andy grows up, he hopes to move to Sydney to live in the same city as his older brother.[189] This evidence was not contradicted by the Defendant and, in light of the circumstances discussed below, is a strong indication that Jiyun did not intend for the Jiyun Funds to be given to Allen as a gift.

92 It was also not disputed that Jiyun purchased a house for Allen in Beijing ('Beijing Property') for the purpose of providing him with a property to settle down in when he gets married.[190] Allen is the registered owner of the Beijing Property, and it was not disputed during trial that the Beijing Property was a gift from Jiyun to Allen. Whilst the exact purchase price for the property is unknown, Allen gave evidence that the property is today worth approximately RMB10 million, equivalent to around AUD2 million.[191] The Defendant submits that, with the context of this purchase in mind, the purchase of the Haymarket Property for Allen to live in was 'not unusual or unprecedented within the family context'.[192] As a result, it was submitted that this evidence tends to indicate that the Jiyun Funds were a gift from Jiyun to Allen. The Plaintiff sought to distinguish the position with respect to the Beijing Property from that with respect to the Jiyun Funds on the basis that the Beijing Property was purchased for the specific purpose of providing Allen with a future matrimonial home, whereas no such similar purpose could be imputed with respect to the Jiyun Funds.[193]

93 I do not accept the Defendant's submissions that any such inference can be drawn between the purchase of the Beijing Property as a gift to Allen and the transfer of the Jiyun Funds. In my view, it does not naturally follow or necessarily imply that, as a consequence of a parent's previous gift, any subsequent monies advanced are by way of an unconditional gift. This is particularly the case where the purchase of the Beijing Property was for a stated purpose by way of gift, whereas no such similar purpose was established in relation to the Jiyun Funds. Further, in circumstances where Jiyun has made a considerable gift by purchasing the Beijing Property for Allen, and where she continues to be responsible for the care and support of her 12 year old younger son, the objective evidence adduced tends against the Jiyun Funds being an unconditional gift to Allen. This position is, in my view, further strengthened by Jiyun's evidence that these funds represented her live savings.[194]

94 Furthermore, both Jiyun and Allen gave evidence that Jiyun supported Allen by paying for his living expenses and tuition fees. There is, however, disagreement between them about when this support commenced, and whether Allen was also supported by his father. Jiyun's evidence was that she was solely responsible for supporting Allen from 2016, when he first moved to Australia and began studying at the University of South Australia. She gave evidence that this financial support amounted to approximately AUD80,000 per year, which was used to pay for his tuition fees and living expenses.[195] Allen's evidence was that it was his father who first paid for his living expenses and tuition fees, before Jiyun began to pay for a portion of his tuition fees from his second year of university. He gave further evidence that, after Jiyun began providing him financial support, his father continued to pay a portion of his fees and living expenses.[196]

95 It is difficult to see how Jiyun and Allen could give differing evidence as to what should have been proven by objective documentary evidence. Neither the Plaintiff nor the Defendant adduced any such documentary evidence to support their position. Consequently, this raises a significant challenge in the assessment of their differing claims. Notwithstanding this, it is not disputed that Jiyun advanced some significant funds to Allen in support of his living and education expenses. In opening submissions, the Plaintiff submitted that the difference between the value of this support and the Jiyun Funds raised an issue of parity. Thus, it is said, the provision of financial support in the tens of thousands of dollars for Allen's tuition fees and living expenses is vastly different in monetary value to the transfer of the Jiyun Funds, indicating that the Jiyun Funds could not be a gift. In light of the surrounding circumstances, addressed in these reasons, I accept this submission.

96 Finally, Jiyun gave evidence that the Jiyun Funds comprised of her life savings,[197] and thus, the Plaintiff submits, she could not have intended to give this away as a mere gift. During cross‑examination, the Defendant sought to call into question the truth of this evidence:

Have you produced, in this proceeding, any documents that would prove that the $11m was your life savings? - I believe my savings is my personal matter; is privacy. I don't have obligation to produce my private matters; no‑one asked me to explain that, either.

HIS HONOUR: So, I suppose the answer's 'no'.

MS WESTON‑SCHEUBER: I'm taking that as the inference.[198]

...

MS WESTON‑SCHEUBER: If I ask you for them, will you produce bank statements and tax returns that would prove that you gave your life savings to Allen?---Yep, can you repeat again? I can't quite understand this question. All right, I'll break it down so that you can interpret in parts, Madam Interpreter. (To witness) If I ask you for them now, will you give to the court bank statements and tax returns that would prove that you gave your life savings to Allen?---Life savings is my privacy; I don't think I could produce this to you.

HIS HONOUR: I'll take it the answer's 'no'.[199]

97 In closing submissions, the Defendant raised Jiyun's failure to produce necessary documentation to support her evidence that the Jiyun Funds were in fact her life savings, and sought to draw the inference that, as a consequence of this failure, her evidence on this matter should be given little weight.[200]

98 The Plaintiff opposes any such finding and submits that it was incorrect to characterise Jiyun's non-production of her financial records as being a refusal on her part. Instead, the Plaintiff submits, and consistently with Jiyun's evidence, that her financial records were not provided because she had not been prepared to do so prior to flying from Beijing to Melbourne. Jiyun gave evidence that she had neither been instructed nor ordered to produce her financial records before the trial commenced on 18 March 2025 and, in those circumstances, she could not have known that she was required to furnish this documentation prior to her arrival in Melbourne:

Are you able to produce bank statements and tax returns from 2021 and 2022 to this court?---Do you refer to my personal - - - I'm referring to your personal and your retail business accounts and bank statements?---I think this is - this dealings are made in China. Before I came to Australia, no-one required me to produce this; I'm not prepared.[201]

Counsel for the Plaintiff sought to clarify Jiyun's answer during re-examination:

All right, the words I use in this next question are important; do you remember this exchange? If Ms Weston-Scheuber asked you for bank statements and tax returns, would you provide them?---(No audible response.) You said 'no' because they were private; if you were required by this court to produce these documents, would you do so?

INTERPRETER: One moment.

WITNESS: Yes, if I were required by court to produce these documents, I would like to do so.

MR CAILLARD: That was 'I would like to do so'?

INTERPRETER: Yes, 'I would like to - - -'.[202]

99 During closing submissions, I invited the Plaintiff to address the issue of the Jones v Dunkel Rule and whether an adverse inference should be drawn against Jiyun as a consequence of her failure to adduce the relevant documentation demonstrating that the Jiyun Funds were her life savings. The Plaintiff submits, and I accept, that documentation pertaining to Jiyun's life savings were not part of the Plaintiff's cause of action and, accordingly, these documents were not ordinarily discoverable.

100 In my view, and in line with the authorities, it was incumbent on the Defendant to adduce contra evidence or to make an application to have Jiyun's financial records produced to disprove her evidence that the Jiyun Funds were her life savings. In light of the Defendant declining to seek out this documentation, I reject the submission that Jiyun's evidence, that the Jiyun Funds constituted her life savings, should be given little weight. This is particularly the case in circumstances where some two months have elapsed between the beginning of the trial on 18 March 2025 and closing submissions which concluded on 23 May 2025, and Jiyun having made a second visit to Melbourne on 14 May 2025 to attend a mediation before Gobbo AsJ. Notwithstanding that the Defendant may otherwise not have been aware of this evidence prior to the commencement of trial, as the Jiyun Funds being her life savings was not a matter pleaded in the Plaintiff's Further Amended Statement of Claim, nor referenced in their written opening submissions, once the Defendant was made aware, no steps were taken to have the financial records produced despite now asking this Court to draw the inference that these records would be inconsistent with Jiyun's evidence.

101 It is not the Court's function to engage in an inquisitorial process to search for evidence which disproves a witness' account in circumstances where no contrary evidence has been adduced to disprove their account. Accordingly, Jiyun's evidence that the Jiyun Funds were her life savings is to be accepted.

102 In light of these objective circumstances, I am of the view that the Jiyun Funds were and are held by Allen on resulting trust for Jiyun. It follows that orders should be made for the remaining funds to be transferred from Allen to Jiyun or at her direction.

103 As a further 'alternative', the Plaintiff submits that, if it were not successful on the grounds of an agreement or a resulting trust, the Jiyun Funds are recoverable on the basis of moneys had and received.

104 An action for moneys had and received arises as an aspect of restitutionary remedies. It is described by the High Court in Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation as follows:[203]

The basis of the common law action of money had and received for recovery of an amount paid under fundamental mistake of fact should now be recognized as lying not in implied contract but in restitution or unjust enrichment ... In other words, receipt of a payment which has been made under a fundamental mistake is one of the categories of case in which the facts give rise to a prima facie obligation to make restitution, in the sense of compensation for the benefit of unjust enrichment, to the person who has sustained the countervailing detriment.

105 The authorities are well settled that an action for moneys had and received cannot succeed merely on the basis that money has changed hands without consideration. Indeed, it is not the function of the Court to determine upon principles of fairness and unconscionability whether a remedy ought to be granted. Rather, a remedy in restitution and, consequently, on the basis of moneys had and received, exists only where a qualifying or vitiating factor exists. In Pavey & Matthews Pty Ltd v Paul,[204] Deane J said:

To identify the basis of such actions as restitution and not genuine agreement is not to assert a judicial discretion to do whatever idiosyncratic notions of what is fair and just might dictate ... That is not to deny the importance of the concept of unjust enrichment in the law of this country. It constitutes a unifying legal concept which explains why the law recognizes, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognize such an obligation in a new or developing category of case.

106 Similarly, the High Court in David Securities Pty Ltd v Commonwealth Bank of Australia ('David Securities')[205] held:

Accordingly, it is not legitimate to determine whether an enrichment is unjust by reference to some subjective evaluation of what is fair or unconscionable. Instead, recovery depends upon the existence of a qualifying or vitiating factor such as mistake, duress or illegality.

107 Accordingly, the categories of mistake, duress, illegality and fraud form the starting point for the basis of recovery for restitutionary relief. Whilst these categories of vitiating factors are not closed,[206] the authorities indicate that it is incumbent on a plaintiff to demonstrate the existence of a vitiating factor.

108 The Plaintiff makes no reference to any vitiating factor in support of its submission that the Jiyun Funds are recoverable on the basis of moneys had and received. Indeed, it was not a matter raised in its Further Amended Statement of Claim, in which the moneys had and received claim formed merely one line,[207] nor subject to any substantive assertions in either its written opening or closing submissions.[208] The Plaintiff presumably seeks to rely on the vitiating factor of fraud, having pleaded the tort of deceit as an alternative cause of action. However, it does not demonstrate how, if such conduct alleged existed, it met the threshold for fraud for the purposes of establishing a cause under a restitutionary action.

109 In my view, the Defendant's position that the Plaintiff has failed to establish the existence of a vitiating factor and, accordingly, its claim for moneys had and received should fail, is correct. As their Honours in David Securities held, recovery under a claim of moneys had and received 'depends on the existence of a qualifying or vitiating factor'.[209] It was for the Plaintiff to establish that the conduct alleged against Allen rose to the standard of fraud required to obtain restitutionary relief. Accordingly, in the absence of any substantive submissions or hint of evidence of the existence of such a vitiating factor, this ground must fail.

110 Finally, the Plaintiff submits in the 'alternative', that Allen engaged in fraudulent representations rising to an element of the tort of deceit and, accordingly, recovery of the Jiyun Funds should follow.

111 Today, the tort of deceit has been largely superseded by the Australian Consumer Law ('ACL')[210] and the accompanying statutory prohibition against misleading and deceptive conduct.[211] However, where the alleged impugned conduct is not performed in trade or commerce, the ACL is not engaged and, thus, the tort of deceit continues to operate today to protect a wider group of individuals.

112 The requirements to establish a claim under the tort of deceit for fraudulent misrepresentation are helpfully set out by Sundberg J in Tresize v National Australia Bank Ltd:[212]

(a) a representation of fact (which can be as to the representor's opinion or intention or the law) that is conveyed to the claimant by the representor's words or conduct;

(b) knowledge on the part of the representor that the representation is false or, failing that, (a) the absence of a genuine belief that it is true or (b) recklessness as to whether it is true or false;

(c) an intention on the part of the representor that the claimant (or a class including the claimant) should act upon the representation;

(d) actions by the claimant in reliance upon the representation that were induced by the representation; and

(e) in the case of a claim in deceit, damage as a result of that reliance.

In Magill v Magill,[213] the same requirements were considered by the High Court:

An uncontroversial modern statement of the elements to be proved in an action in deceit is that appearing as follows in the latest edition of Clerk & Lindsell On Torts:

'Where a defendant makes a false representation, knowing it to be untrue, or being reckless as whether it is true, and intends that the claimant should act in reliance on it, then in so far as the latter does so and suffers loss the defendant is liable for that loss'.

113 The Plaintiff contends, consistent with Jiyun's evidence, that Allen made a number of representations to Jiyun, being that:

(a) Allen would arrange for an account to be opened in Australia in Jiyun or his father (Yi Xu)'s name, and later that he had successfully opened a Morgan Stanley account in Yi Xu's name;[214] and

(b) he had deposited the Jiyun Funds into the Morgan Stanley account, and if Jiyun continued to transfer the Jiyun Funds to him, those funds would also be deposited into the Morgan Stanley account.[215]

114 The Plaintiff contends that each of these statements was false, and that Allen made each representation knowing that they were false. It is submitted that, had Jiyun known that these statements were false, she would not have transferred the Jiyun Funds to Allen. Indeed, during examination‑in‑chief, Jiyun gave evidence that:

Each time I transfer money to Allen's account he always told me he had a - he had to transfer money to Morgan Stanley account. I didn't know actually he had been deceiving me. He never ever did this. Just money's actually in his account until much later on. If she did not know that the funds were being transferred would she have continued to pay Allen the money?---Definitely not.[216]

...

And how did Allen respond when she said, each time, to transfer the money to the father's account? What did Allen say? ---Yeah, each time I check with him if the money has been transferred to his dad's account in Morgan Stanley; he always told me it has been done, so that I believe until that finished. If she knew that it had not been done, would she have continued to transfer money?---Absolutely not.[217]

115 However, Jiyun's evidence was directly contradicted by Allen, who gave evidence that, whilst he spoke to Jiyun prior to each payment,[218] he never had the alleged conversations with Jiyun about investing the Jiyun Funds or opening an Australian bank account for the purpose of making the deposits. For instance, during cross‑examination, Allen gave evidence that:

I just want to make sure I'm clear. You say you never spoke to your mother about investing in Australia?---I never. I never spoke, ah, with her about investing in Australia. But, um, in the visa process, we talk about visa funds. No, I'm asking, did you ever speak to your mother about investing in Australia?---Yep. No, never. So, you never said to her that Australia is a good place to invest money?---No.[219]

...

And you say you never discussed opening an account in your mother or father's name?---No. And you say that despite what this says, you never attempted to open an account in your mother or father's name?---No. And you have no explanation how that got into this letter? ---Sorry? You have no explanation for how those first three sentences found their way into this letter?‑--No, I don't know how.[220]

116 The Defendant contends that no such representations occurred; consistently with Allen's evidence, which it is said ought to be preferred over Jiyun's evidence. Further, it is said that Jiyun's evidence of these representations is entirely inconsistent with her failure to take steps to enquire about the status of her investments or obtain documentary evidence that an account with Morgan Stanley had in fact been set up. On the basis of the evidence, such as it is, I am not satisfied that Allen made any relevant representation or misrepresentation to Jiyun. In my view, it is more probable than not that what may, on Jiyun's part, have been thought to be representations were the product of imperfect communications and assumptions on her part arising out of any agreement with respect to the investment of her funds in Australia and her intention to retain, rather than gift, the funds she transferred to Allen.

117 The Defendant's position with respect to estoppel and change of position is that:[221]

(a) by Jiyun's conduct, Jiyun induced Allen to believe the Jiyun Funds were a gift for Allen's own use and benefit; and

(b) in reliance on this assumption, Allen used the Jiyun Funds for his own benefit; and

(c) Allen would suffer detriment if Jiyun were permitted to resile from this assumption; and

(d) it is unconscionable for Jiyun to be permitted to depart from this assumption.

The Defendant, therefore, argues that Jiyun is estopped from departing from this assumption.[222]

118 In the alternative, the Defendant's position is that in reliance on receipt of the Jiyun Funds, Allen acted in good faith on the assumption that he was entitled to deal with the Jiyun Funds as he wished and changed his position by using the funds for his own use so that the funds were largely dissipated and by purchasing the Bennelong Property.[223] It is said, by the Defendant, that Allen has therefore changed his position in reliance on receipt of the Jiyun Funds, and it would be inequitable, in all the circumstances, to require Allen to repay the Jiyun Funds.[224]

119 The Defendant submitted, in closing submissions, that the estoppel argument is based on Jiyun leading Allen to believe that the Jiyun Funds were a gift. The Defendant submits that, regardless of the fact that Allen did nothing for the Jiyun Funds, and that he gave no consideration for it, Jiyun induced Allen to believe and to adopt the assumption that the Jiyun Funds were his to use as he wished, and he so did.[225]

120 The Plaintiff submits that if the Jiyun Funds were paid based on the agreement, then estoppel cannot arise because there has never been a representation by Jiyun that could be acted upon to generate an estoppel.[226] The Plaintiff submits that this is premised on the Jiyun Funds having been sent to Allen as a gift. The Plaintiff, accordingly, submits that this defence must fail if it is determined that the Jiyun Funds were not a gift.[227]

121 As indicated in the preceding reasons, I have found that there was an agreement between the parties with respect to the Jiyun Funds and these funds were not advanced as a gift. Accordingly, the estoppel defence cannot be established. This is particularly so, having regard to the 'three letters', which, as I discussed in the preceding reasons,[228] contain admissions from Allen that the Jiyun Funds did not belong to him.

122 Although, having regard to previous findings, it is not strictly necessary to make findings in relation to the powers of attorney, it is desirable that I do so in the event this proceeding goes further.

123 It is not in contention that two powers of attorney were signed by Allen. However, the purpose of those powers of attorney, the circumstances upon which they were signed and whether they were in fact breached by Jiyun is in contention between the parties.

124 A General Power of Attorney with Allen as the Principal and Jiyun as the Attorney was signed by Allen and dated 28 June 2022 ('General Power of Attorney').[229] This power of attorney was ultimately used by Jiyun to transfer funds out of Allen's Morgan Stanley investment account and to Allen's father, Yi Xu, and then to herself. This Power of Attorney is of significance as Allen, in the Counterclaim, seeks a declaration that Jiyun holds funds transferred from Allen's account to her on constructive or resulting trust for him.

125 The General Power of Attorney was in the form prescribed by the Power of Attorney Act 2003 (NSW) and specifically states, on the first page:[230]

A general power of attorney gives the attorney the authority, if you choose, to manage your legal and financial affairs, including buying and selling real estate, shares and other assets for you, operating your bank accounts, and spending money on your behalf.

...

You may set whatever limitations or conditions on your attorney that you choose. An attorney must always act in your best interest. If your attorney does not follow your directions, or does not act in your best interest, you should revoke the power of attorney. You or someone on your behalf should inform the attorney of the revocation, preferably in writing. The attorney must then immediately cease to act as your attorney. If anyone else, such as a bank, has been advised about the power of attorney, that person or entity should also be informed of the revocation.

126 The General Power of Attorney lists the 'powers' of the Attorney stating:[231]

My attorney may exercise the authority conferred on my attorney by Part 2 of the Powers of Attorney Act 2003 to do anything on my behalf I may lawfully authorise an attorney to do.

127 Part 2 of the Powers of Attorney Act 2003 (NSW), at the time, relevantly provides:

1. Powers conferred by prescribed power of attorney

(1) Subject to this Act, a prescribed power of attorney confers on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do.

(2) A prescribed power of attorney has effect subject to compliance with any conditions or limitations specified in the instrument creating the power.

1. Prescribed power of attorney does not confer authority to act as trustee

A prescribed power of attorney does not confer authority to exercise any function as a trustee that is conferred or imposed on the principal.

1. Prescribed power of attorney does not generally confer authority to give gifts

(1) A prescribed power of attorney does not authorise an attorney to give a gift of all or any property of the principal to any other person unless the instrument creating the power expressly authorises the giving of the gift.

This subsection restates a rule of the general law. Accordingly, whether a gift of all or any of the property of a principal is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney.

(2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to give the kinds of gifts that are specified by that Schedule for that expression.

1. Prescribed power of attorney does not generally confer authority to confer benefits on attorneys

(1) A prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on the attorney unless the instrument creating the power expressly authorises the conferral of the benefit.

This subsection restates a rule of the general law. Accordingly, whether the conferral of a benefit on an attorney is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney.

(2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to confer on the attorney the kinds of benefits that are specified by that Schedule for that expression.

1. Prescribed power of attorney does not generally confer authority to confer benefits on third parties

(1) A prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on a third party unless the instrument creating the power expressly authorises the conferral of the benefit.

This subsection restates a rule of the general law. Accordingly, whether the conferral of a benefit on a third party is expressly authorised by a prescribed power of attorney is to be determined by reference to the general principles and rules of the common law and equity concerning the interpretation of powers of attorney.

(2) Without limiting subsection (1), a prescribed power of attorney that includes the prescribed expression for the purposes of this subsection set out in Schedule 3 authorises an attorney to confer on a third party the kinds of benefits that are specified by that Schedule for that expression.

1. Regulations may amend Schedule 3

(1) The regulations may replace or amend Schedule 3.

(2) (Repealed)

14A Effect of amendment of prescribed form or Schedule 3

The amendment or repeal of a form prescribed under section 8, or a provision of Schedule 3 that prescribes an expression or specifies a kind of gift or benefit for the purposes of section 11(2), 12(2) or 13(2), does not:

(a) confer any additional authority on an attorney under a power of attorney that was a prescribed power of attorney in force immediately before the day on which the amendment or repeal takes effect (an existing authority), or

(b) remove any authority conferred on a principal by an existing authority, or

(c) otherwise affect the continued operation of an existing authority.

128 Schedule 3 of the Powers of Attorney Act 2003 (NSW) provides:

Schedule 3 Prescribed expressions and authorisations for prescribed powers of attorney

1 Authority to give gifts

(1) The prescribed expression for the purposes of section 11(2) is as follows:

I authorise my attorney to give reasonable gifts as provided by section 11(2) of the Powers of Attorney Act 2003.

(2) The prescribed expression authorises an attorney to give a gift only if:

(a) the gift is:

(i) to a relative or close friend of the principal, and

(ii) of a seasonal nature or because of a special event (including, for example, a birth or marriage), or

(b) the gift is a donation of the nature that the principal made when the principal had capacity or the principal might reasonably be expected to make,

and the gift's value is not more than what is reasonable having regard to all the circumstances and, in particular, the principal's financial circumstances and the size of the principal's estate.

close friend of a principal means another individual who has a close personal relationship with the principal and a personal interest in the principal's welfare.

relative of a principal means:

(a) a mother, father, spouse (including wife or husband), daughter, son, step-daughter, step-son, sister, brother, half-sister, half-brother or grandchild of the principal, or

(b) if the principal is a party to a registered relationship or interstate registered relationship, within the meaning of the Relationships Register Act 2010, or a domestic relationship within the meaning of the Property (Relationships) Act 1984, any person who is a relative, of the kind mentioned in paragraph (a), of either party to the relationship.

(1) The prescribed expression for the purposes of section 12(2) is as follows:

I authorise my attorney to confer benefits on the attorney to meet the attorney's reasonable living and medical expenses as provided by section 12(2) of the Powers of Attorney Act 2003.

(2) The prescribed expression authorises an attorney to confer a benefit on the attorney only if:

(a) the benefit meets (whether in whole or in part) any expenses incurred (or to be incurred) by the attorney in respect of any of the following:

(i) housing,

(ii) food,

(iii) education,

(iv) transportation,

(v) medical care and medication, and

(b) the benefit is not more than what is reasonable having regard to all the circumstances and, in particular, the principal's financial circumstances and the size of the principal's estate.

3 Authority to confer benefits on third parties

(1) The prescribed expression for the purposes of section 13(2) is as follows:

I authorise my attorney to confer benefits on [insert name(s) and address(es) of each third party] to meet their reasonable living and medical expenses as provided by section 13(2) of the Powers of Attorney Act 2003.

(2) The prescribed expression authorises an attorney to confer a benefit on a named third party only if:

(a) the benefit meets (whether in whole or in part) any expenses incurred (or to be incurred) by the third party in respect of any of the following:

(i) housing,

(ii) food,

(iii) education,

(iv) transportation,

(v) medical care and medication, and

(b) the benefit is not more than what is reasonable having regard to all the circumstances and, in particular, the principal's financial circumstances and the size of the principal's estate.

129 It is not in contention that the General Power of Attorney contains no express conferral of benefit upon the Attorney, as set out in Schedule 3.

130 There are no conditions or limitations to the General Power of Attorney,[232] and it expressly stated it was to operate immediately upon signing.[233]

131 Relevantly, it is expressly stated the Attorney (Jiyun) must 'not benefit from being an attorney, unless expressly authorised by you [Allen]'.[234]

132 On 28 June 2022, the General Power of Attorney was executed by Allen. From 24 August 2022, Jiyun used the General Power of Attorney to withdraw funds in the sum of $7,230,553.07 from Allen's Morgan Stanley investment accounts ('Returned Funds').[235] After learning about these withdrawals, on 16 and 19 September 2022, Allen attempted to revoke the General Power of Attorney, and the General Power of Attorney was formally revoked on 7 October 2022.[236]

133 The Plaintiff submits generally that Allen took steps to ensure that Jiyun could recover what was left of her money, including by:[237]

(a) freely signing the General Power of Attorney;[238] and

(b) adding Jiyun as an account authoriser with Morgan Stanley.[239]

134 The Plaintiff highlights that Jiyun's evidence is that Allen signed the General Power of Attorney to get Jiyun's money back to her,[240] and Allen's evidence is that he freely signed the General Power of Attorney.[241] The Plaintiff submits that duress or unconscionability is not pleaded and, therefore, any evidence of Allen that he did not know Jiyun could not withdraw funds from the account when she was made a signatory should be rejected.[242] I accept this submission.

135 The Plaintiff further submits that the Jiyun Funds were always Jiyun's and, accordingly, she was not in breach of s 12 of the Powers of Attorney Act 2003 (NSW) or the terms of the General Power of Attorney.[243] This is an important point, which I will address in the reasons to follow.

136 The Plaintiff also contends that even if the funds were a 'gift', the General Power of Attorney and s 12 were not breached where Allen consented to and authorised the use of the General Power of Attorney to enable the Jiyun Funds to be returned to Jiyun, even if that conferred a benefit upon her.[244] The Plaintiff emphasises in submissions that Allen 'expressly authorised' any benefit (in terms of clause 6(c) of the General Power of Attorney ('Attorney Responsibilities')).[245] It is further noted that the General Power of Attorney included a description to the effect that the Attorney is authorised to operate the Principal's bank accounts. In this respect, the Plaintiff submits that Allen is intelligent, having obtained a Masters Degree in Economics from the University of Sydney.[246] I take this to mean that Allen would have been well aware of Jiyun's ability to operate his bank accounts with the use of the General Power of Attorney.

137 The Plaintiff submits, as a secondary argument, that in any event, the Jiyun Funds were always Jiyun's and, if the Court does not find in favour of this position, there should be no issue regarding the General Power of Attorney, as Allen expressly authorised Jiyun to obtain a benefit using this Power of Attorney.[247]

138 It is the Plaintiff's position that Allen provided express authorisation for Jiyun to transfer the Jiyun Funds to herself outside of the four corners of the General Power of Attorney instrument.[248] The Plaintiff contends this is possible because s 12 contemplates authority being provided outside of the instrument itself.[249]

139 The Plaintiff further submits that any suggestion the General Power of Attorney was signed to give Jiyun 'oversight' of her investment should be rejected, because if the General Power of Attorney was for this purpose, a Power of Attorney would not be required at all.[250]

140 The Defendant submits that the General Power of Attorney was arranged by Jiyun with Morgan Stanley, who facilitated Allen signing this power of attorney.[251] It is said Allen signed the General Power of Attorney and account authorisation on the understanding his mother would be able to monitor his investments.[252] The Defendant's position is that Allen signed the execution pages of a number of documents at the same time without reading or being shown the whole of the documents, and that Allen never spoke to Jiyun about the General Power of Attorney.[253] Allen's evidence is that he was not anticipating his mother would use the General Power of Attorney to withdraw funds from his Morgan Stanley account, and he described learning about the withdrawal of funds as 'like a heart attack to [him]'.[254]

141 The Defendant submits the General Power of Attorney does not authorise an Attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on the Attorney unless the instrument creating the power expressly authorises the conferral of the benefit.[255] Nor does the General Power of Attorney authorise an Attorney to confer a benefit on a third party.[256] It is highlighted that a general power of attorney need not be signed or accepted by the Attorney, unlike an enduring power of attorney.[257] I accept this submission.

142 From 24 August 2022, using the General Power of Attorney, Jiyun transferred investments held by Allen to accounts held in the name of Yi Xu (Allen's father). It is said the General Power of Attorney enabled Jiyun to do this without requiring Allen to perform SMS verification, which would otherwise be required.[258]

143 The Defendant submits that Jiyun's duties under the General Power of Attorney are fiduciary and that these transfers were in breach of the fiduciary duty that Jiyun owed Allen as his Attorney. It is contended that where the scope of fiduciary obligations is to be limited to exclude certain transactions or allow the fiduciary to profit from their appointment, it must be expressly stated.[259] It is further submitted that the General Power of Attorney did not provide for any transaction to benefit Jiyun, or refer to any pre-existing obligation or debt owed by Allen.[260] Thus it is said that when a fiduciary deals with the property of the person for whom they have the power of attorney, they are in breach of their obligations and liable to equitable intervention.[261] Consequently, it is contended that in the absence of an express power, the General Power of Attorney cannot be relied upon to authorise a gift to the Attorney.[262]

144 The Defendant also submits that, although Jiyun raises in her Defence to the Counterclaim that she did not sign the General Power of Attorney, as it was in English and she was not able to read it, it is not necessary that a fiduciary be aware of their obligations, or understand them, in order to be in breach of that duty.[263]

145 Finally, the Defendant submits, regarding the General Power of Attorney, that:

(a) by Jiyun's breach of the General Power of Attorney, Allen suffered loss of the amount of the funds transferred out by Jiyun;[264]

(b) it is irrelevant that the funds were initially provided by Jiyun - if the Court finds that the money advanced by Jiyun were a gift to Allen, then the funds belonged to him;[265] and

(c) by transferring the funds out of Allen's Morgan Stanley account, Jiyun acted in breach of the General Power of Attorney.[266]

146 In September 2022, Jiyun engaged Mack Lions Lawyers to represent her in the sale of the Haymarket Property. On 3 September 2022, Allen signed a General Power of Attorney, appointing Jiyun as his Attorney ('Haymarket Power of Attorney'), which stated:[267]

I authorise my attorney to do all acts and things in relation to the real property known as Unit 2202/81 Harbour Street, Haymarket NSW 2000 (Folider Identifier: 199/SP98739) including but not limited to executing transfers, mortgage documents and other instruments or documents required to affect the interest on the subject property.

147 The Haymarket Power of Attorney was to commence immediately. The Haymarket Power of Attorney was also in the form prescribed by the Power of Attorney Act 2003 (NSW), and Part 2 of the Power of Attorney Act 2003 (NSW), as discussed above,[268] also apply to this Power of Attorney.

148 The Plaintiff submits that Allen signed the Haymarket Power of Attorney to enable Jiyun to deal with the property, which she was authorised to do.[269] It is said that any suggestion this Power of Attorney was given for some other purpose, such as for 'oversight', is not credible and should be rejected.[270]

149 The Defendant submits that Jiyun's duties regarding the Haymarket Power of Attorney are the same as with respect to the General Power of Attorney and, in particular, she had a duty to always act in Allen's best interests.[271]

150 Jiyun lodged a Caveat in her name over the Haymarket Property on 3 May 2021 ('Haymarket Caveat'), which records:[272]

Estate or Interest claimed

Estate In Fee Simple

By virtue of: Beneficial Interest In Trust

Dated: 03/05/2021

Details Supporting The Claim: The caveator is the mother of the registered proprietor. The caveator paid money for the abovementioned land.

The parties have an oral agreement that the abovementioned land could not be sold unless the caveator gives her consent.

151 The Defendant submits the Haymarket Caveat was not in Allen's best interests and therefore constitutes a breach of the Haymarket Power of Attorney.[273] It is said that whilst the Haymarket Power of Attorney was executed on 3 September 2022, the Caveat was left in place and not withdrawn, and by continuing to maintain the Caveat, Jiyun was failing to act in Allen's best interests in relation to the Haymarket Property.[274] During closing submissions, the Defendant said:[275]

It's not an oral permission, it's something that is contained in the power of attorney document itself and applies, in my submission, regardless of whether or not the attorney has a view that they have some ownership. And I'm certainly not aware of any authority that says, 'Well if the person who takes a power of attorney believes that they have some entitlement, then that's somehow an exception to their duties'.

The duties of a power of attorney are fiduciary, they are quite strict, they are to act in the best interests, they include to act in the best interests of the person for whom the attorney is held. And regardless of whether the plaintiff has a concept or an idea that she has some entitlement to the money, for her to transfer the money to herself is not in Allen's best interests, and that in and of itself is a breach of the power of attorney.

152 The Defendant's position is that Allen continues to suffer loss from being unable to deal with the property and, accordingly, seeks an order for the removal of the Caveat.

153 It is noted that because the statutory provision for the 'prescribed expression' to confer a benefit is not intended to limit the main provision, which envisages that a principal can expressly authorise the conferral of a benefit on the attorney, it leaves open the prospect of the terms of the power of attorney to making express provision uninhibited by the limitations imposed by invoking the 'prescribed expression'.[276] Further, it was held in Siahos v JP Morgan Trust Australia Ltd[277] that where there is no express conferral of a broader authority, and the 'prescribed expression' is not used, the legislation dictates that the attorney is not authorised to benefit himself or herself under the power of attorney.

154 The New South Wales Court of Appeal, in Dimitrovski v Australian Executor Trustees Ltd ('Dimitrovski'),[278] discussed the effect of ss 9-13 of the Powers of Attorney Act 2003 (NSW):

Section 12 does not in terms or otherwise prohibit the doing by the attorney of acts for his or her benefit which are not expressly authorised by the power. Part 2 of the Act is concerned with 'prescribed powers of attorney' which at the time of the events in question referred to an instrument in or to the effect of the form in Schedule 2 to the Act. In 2013 s 8 was amended to refer instead to an instrument in or to the effect of the form prescribed by the regulations. Sections 9 to 13 describe the powers which are conferred and not conferred, or not conferred without express provision, by an instrument in or to the effect of the prescribed form. Sections 11, 12 and 13 state that in the absence of express words a prescribed power of attorney does not confer authority to give gifts or to confer benefits on the attorney or third parties. In so providing those sections do no more than state the position under the general law as applied to a power of attorney in the prescribed form. The position under the general law was summarised by Dixon J (as he then was) in Tobin v Broadbent [1947] HCA 46; 75 CLR 378 at 401 as follows:

'Prima facie, a power, however widely its general words may be expressed, should not be construed as authorizing the attorney to deal with the property of his principal for the attorney's own benefit. Something more specific and quite unambiguous is needed to justify such an interpretation. 'The primary object of a power of attorney is to enable the attorney to act in the management of his principal's affairs. An attorney cannot, in the absence of a clear power so to do, make presents to himself or to others of his principal's property.' Per Russell J., Reckitt v. Barnett Pembroke and Slater Ltd [(1928) 2 KB 244 at 268] a judgment approved in the House of Lords [(1929) AC 176, at p. 183 and p. 195].'

155 Their Honours, Meagher and Emmett JJA and Bergin CJ in Eq, go on to say:[279]

Section 7 of the Act otherwise preserves the operation of the general law in relation to powers of attorney, including a prescribed power of attorney. That law includes the doctrines of apparent authority and of ratification. For example, in Siahos v JP Morgan Trust Australia Ltd [2009] NSWCA 20, this Court rejected the respondent lender's argument that an attorney purporting to act for himself and the donors of the power, two co-mortgagors, had apparent authority to direct that part of the proceeds of the mortgage loan be applied for his own benefit. Macfarlan JA (Giles and McColl JJA agreeing) summarised the position at [29]:

'The respondent was entitled to rely upon the Powers of Attorney as clothing Peter Siahos with at least ostensible, if not actual, authority to do acts which he was apparently authorised by the Powers of Attorney to do, even if he was not in fact so authorised because an act apparently for the benefit for the donors was in truth for the attorney's own benefit. The act in question here was not however of that character as the payment was known by the respondent to be for Peter Siahos' benefit. It therefore fell outside the ambit of the ostensible authority Peter Siahos was given.'

In The City Bank of Sydney v McLaughlin [1909] HCA 78; 9 CLR 615 at 626‑628 the High Court held that payments out of a bank account purportedly made pursuant to a power of attorney which was void because it had been executed by the donor whilst insane had been ratified by the donor's subsequent conduct at a time when he had recovered his sanity.

If an agent uses a prescribed power of attorney to confer benefits either on himself or herself or others, in the absence of express authority, his or her doing so may not bind the principal. Depending on whether it does or does not, there may be remedies available as between the attorney and any third party who has acted in reliance upon the attorney having such authority. Whether any agreement made by an attorney pursuant to a prescribed power of attorney is enforceable will depend upon the application of the provisions in Part 2 and the operation of the general law, to the extent that the Act does not provide otherwise.

157 Their Honours conclude, regarding ss 12 and 13:[281]

[T]he short answer to the contention is that the Powers of Attorney Act does not prohibit anything. Sections 12 and 13, as their terms make clear, are intended to do no more than restate the principles of the general law, namely, that, without the express authority of the grantor, an attorney is not authorised by a power to execute instruments in his own favour or in favour of a third party. Further, in the present context, the question of whether Kosta acted beyond the authority conferred on him by Trena is a question of fact that would need to be explored if that question went to trial. Whatever effect the provisions of ss 12 and 13 of the Powers of Attorney Act might have, they did not purport to invalidate any instrument or to render any conduct illegal. They do no more than impose a limitation on the prima facie effect of a power of attorney in conferring authority on the grantee of a power.

158 The Plaintiff helpfully highlights the New South Wales Court of Appeal decision in Taheri v Vitek,[282] which found that:

An instrument complying with s 163B [of the Conveyancing Act 1919 (NSW)] may as a matter of law (and very often will) empower an attorney to do 'anything' the principal may lawfully authorise an attorney to do, even if there is a benefit to the attorney and no benefit to the principal.

159 Accordingly, unless the Powers of Attorney expressly includes a provision to confer a benefit upon the Attorney, or without clear and unambiguous authority outside of the Power of Attorney instrument, an Attorney will be in breach of the Power of Attorney if the Attorney benefits by use of the Power of Attorney.

160 As submitted by the Plaintiff, I accept that Allen freely signed both Powers of Attorney. In evidence‑in‑chief, Allen said:[283]

Then why did you sign the power of attorney for the Haymarket property?---Because - because my mum want to take control of the property at that time. I said, okay, let her take control of the property.

He helped me communicate with Morgan Stanley and get to know through him if I through this document I can get my money back. He also agreed to our son [sic] this power of attorney. In fact he did sign.

161 As indicated in the preceding reasons, I also find that in circumstances where the funds advanced by Jiyun constitute a property held on a resulting trust for her, it is not open to find that there has been a breach of s 12 of the Powers of Attorney Act 2013 (NSW) as the funds were always Jiyun's beneficially. These circumstances do, in my view, invite application of the approach of equity, epitomised in the equitable maxim that equity will not allow a statute to become an instrument of fraud.[285] However, having regard to my findings as indicated in these reasons, it is not necessary now to pursue this aspect of the equitable jurisdiction.

162 However, having regard to the operation of Part 2 of the Powers of Attorney Act 2013 (NSW) and the authorities, I do not accept the Plaintiff's secondary argument that if the funds advanced by Jiyun to Allen were a gift, s 12 would not have been breached, as the evidence does not indicate a clear and unambiguous authority to confer a benefit to Jiyun, authorising Jiyun to transfer the funds to herself.

163 Further, I reject the Defendant's submission that the Powers of Attorney were signed to enable Jiyun to have only oversight over the investments and the Haymarket Property. To the contrary, I accept the Plaintiff's submission that a general power of attorney would likely not have been required for the purpose of enabling Jiyun to oversee her investment.

164 I now turn to the Haymarket Caveat, upon which the Defendant submits is in breach of the Haymarket Power of Attorney in that this Caveat is not in the best interests of Allen. In my view, the Haymarket Caveat further supports the proposition that Jiyun always maintained a beneficial interest in trust over the property, claiming an estate in fee simple. The fact that there has been no application to withdraw the Caveat also points towards the proposition that the Haymarket Property was purchased on trust for Jiyun.

(a) that there be a declaration that Jiyun holds the Returned Funds on constructive or resulting trust for Allen;

(b) equitable compensation, including in respect of agent fees Jiyun transferred from Allen's investment account to a property agent, Michael Bao, who was engaged by Jiyun to sell the Haymarket Property (in the sum of $8,182);

(c) interest on the amount of compensation; and

(d) an order for the removal of the Haymarket Caveat.

166 The Defendant submits that the Returned Funds constitute moneys had and received by Jiyun and the relevant vitiating factor is illegality, in that Jiyun was in breach of the General Power of Attorney which she used to transfer the Returned Funds into Yi Xu's account.[286] However, in light of the preceding reasons, having found that Allen holds the Jiyun Funds subject to an agreement with Jiyun to invest these funds on her behalf in Australia or that the Jiyun Funds are held on resulting trust for Jiyun,[287] the Defendant's claim that Jiyun holds the Returned Funds on a constructive or resulting trust for Allen, accordingly, must fail.

167 Further, the Defendant's claim for equitable compensation, including in respect of the agent's fees, must also fail, in circumstances where there was no breach of the General Power of Attorney and the Jiyun Funds always remained Jiyun's beneficially.

168 It follows that I am satisfied that the interest claimed by Jiyun in the Haymarket Caveat over the Haymarket Property correctly states her beneficial interest in that property.

169 At the outset of its written closing submissions, the Plaintiff submits that the Court in assessing the oral evidence of Jiyun and Allen must consider the inherent probability that an event may or may not have occurred.[288] The Plaintiff correctly submits that in making an assessment on what probably occurred, significant weight should be placed on contemporaneous documents.

170 The Plaintiff referred to LL Up Pty Ltd v Kegland Distribution Pty Ltd ('Kegland'),[289] where Croft J cited Lander J in Brookfield v Yevad Products Pty Ltd who said, in relation to the importance of documents in terms of testing credibility:[290]

Often, especially in commercial causes, the best evidence of the events the subject of the inquiry in the trial is contained in the contemporaneous documents. Usually, documents are created in circumstances where parties do not expect the documents to surface in a trial. They often, therefore, contain the true account of the contemporaneous event.

171 The Plaintiff refers to three propositions which were accepted in Kegland regarding credit:[291]

Proposition 6: In the fact finding process, in addition to the significance of contemporaneous documents, courts prefer evidence which is consistent with (1) facts admitted by the parties or (2) matters of common knowledge or experience.

...

Proposition 10: In terms of assessing credibility and reliability, an important factor is the inherent consistency of the account. If the evidence of the witness contains internal contradictions, it cannot be accepted as a whole. The question may be which part to reject.

...

Proposition 13: In cross-examination, if counsel does not challenge certain evidence, that failure can bear on the fact-finding process.

172 The Plaintiff also drew to the Court's attention Painter v Hutchinson,[292] where Lewison J (as his Lordship then was) identified a non-exhaustive list of indicators of unsatisfactory witness evidence, including:

(a) evasive and argumentative answers;

(b) tangential speeches avoiding the questions;

(c) blaming legal advisers for documentation (statements of case and witness statements);

(d) discovery and evidence shortcomings;

(e) self-contradiction;

(f) internal inconsistency;

(g) shifting case; and

(h) selective disclosure of documents or information.

173 In Webb v Getswift (No 5),[293] Lee J referred to the reasoning of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Limited[294] (which has been cited with approval in this Court):[295]

As Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]‑[23], there are a number of difficulties with oral evidence based on recollection of events given the unreliability of human memory. Moreover, considerable inference with memory is also introduced in civil litigation by the procedure of preparing for trial. As his Lordship noted, a witness is asked to make a statement, often when considerable time has already elapsed since the relevant events. The statement is usually drafted by a solicitor who is inevitably conscious of the significance for the case of what the witness does nor does not say. The statement is often made after the memory of the witness has been 'refreshed' by reading documents. The documents considered can often include argumentative material as well as documents that the witness did not see at the time and which came into existence after the events which the witness is being asked to recall. It may go through several iterations before it is finished. As Lord Buckmaster famously said, the truth 'may sometimes leak out from an affidavit, like water from the bottom of a well'. This may be overly cynical, but the surest guide for deciding the case will be as identified by Leggatt J at [22]:

... the best approach for a judge to adopt in the trial of a commercial case, in my view, to place little if any reliance at all on the witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.

In Gestmin SGPS SA v Credit Suisse (UK) Limited,[296] Leggatt J continues:

This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross‑examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

174 Similarly, in Armagas Ltd v Mundogas SA (The Ocean Frost)[297] Robert Goff LJ made the following observation:

It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence ... reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.

175 Having regard to the indicators identified in Painter v Hutchinson, the Plaintiff submits the evidence of Jiyun should be accepted.[298] The Plaintiff says although Jiyun gave evidence through an interpreter, which necessarily increased the time required for her to respond to questions, and this gave the appearance that some responses were longer than they would otherwise appear, the transcript does not suggest that Jiyun's responses were particularly long or evasive.[299] The Plaintiff further submits that there were occasions, particularly in cross-examination, where clarification of the question being asked was sought, which suggested difficulty with the translation process. Accordingly, the Plaintiff contends that although Jiyun may not have directly answered questions from time to time which required a simple 'yes' or 'no' response, Jiyun does not fall within the Painter v Hutchinson indicators.[300]

176 It is said that Jiyun was not argumentative or evasive and, although she may have elaborated on some answers, Jiyun did not do so to avoid answering the questions.[301] The Plaintiff contends that for many questions it is not necessarily fair to require a 'yes' or 'no' answer.[302]

177 Further, the Plaintiff submits that there were no discovery or evidence shortcomings on the part of Jiyun and her version of events was consistent.[303] The Plaintiff says this is in stark contrast to the material gaps in Allen's discovery. The Plaintiff highlights that the Writ was filed on 28 November 2022, accompanied by an affidavit in support of the freezing order application sworn by Jiyun, clearly identifying the issues in dispute and exhibiting key documents.[304] The affidavit in support of the freezing order application exhibited the 'three letters' relied upon by the Plaintiff that had been shown to Jiyun on 19 June 2022, just six months before the proceeding was commenced and the freezing order obtained.[305] Accordingly, the Plaintiff submits that it is surprising that Allen did not discover any of the WeChat messages or emails between himself and Mr Peng or Mr Peng's daughter.[306] However, it is relevant to note that Jiyun had received a copy of some messages including the 'three letters' from Mr Peng, albeit in PDF format which prevented attachments from being opened.[307]

178 Allen's evidence was that he was sent the typed version of the letter described as the 'Second Letter' by Mr Peng's daughter.[308] However, not a single WeChat message or other correspondence between Allen and Mr Peng's daughter has been produced by Allen.[309] The following exchange occurred in examination between Allen and Allen's Counsel:[310]

Weston-Scheuber: How did you receive - so this typed letter you didn't write.

Allen: No.

Weston-Scheuber: How did you receive it?

Allen: His daughter send it to me.

Weston-Scheuber: How?

Allen: Via WeChat

Weston-Scheuber: And have you checked your WeChat to see if you can locate that document?

Allen: No.

Weston-Scheuber: And have you checked your WeChat to see if you could locate that document.

Caillard: I think he answered the question.

Weston-Scheuber: Well I'll ask the question again? Yeah, have you checked your WeChat to see if you could find the letter between, that was sent by Mr Peng's daughter to you?

Allen: Have I checked? No.

179 The Plaintiff submits that had these critical documents been produced at an early stage, the Court would be able to ascertain which parts of the 'three letters' had been written or dictated by Allen or Mr Peng's daughter.[311] The Plaintiff highlights that the affidavits of discovery sworn by Allen in the proceeding do not indicate that the material WeChat messages had ever existed or what had become of them.[312]

180 In contrast to the Plaintiff's submissions on credit, the Defendant submits that Jiyun was not a credible witness. The Defendant referred, in oral closing submissions, to the Painter v Hutchinson indicators and likened them to 'a catalogue of things that one might say were true of Jiyun's evidence', referring specifically to evasive and argumentative answers, tangential speeches, self-contradiction, internal inconsistency, shifting case and selective disclosure of documents for information.[313]

181 The Defendant submits Jiyun's evidence was marked by significant internal inconsistency, in the way in which her evidence at trial differs from the evidence she gave in her affidavit in support of the freezing order application.[314] It is said, however, that the documentary evidence is important, but that it indicates a picture that is entirely consistent with Allen's version of events and casts serious doubts upon Jiyun's credibility.[315] The Defendant says Jiyun's answers often did not make sense, and there was an avoidance in answering questions.[316]

182 The Defendant also contends that despite being reminded many times to answer the questions Jiyun was asked, and even allowing for difficulties in translation, Jiyun repeatedly refused to answer questions without going off on tangents.[317] The Defendant says this was particularly the case where the obvious answer to the question was likely to be damaging to Jiyun.[318]

183 The Defendant further submits that it is not credible that Jiyun would have provided AUD11 million to Allen for the purposes of him investing that money in Australia on Jiyun's behalf, and not sought any details or documentation as to those investments.[319] The Defendant says this is so in circumstances where Jiyun is a sophisticated businesswoman whose evidence indicates has no difficulty in dealing with the Chinese speaking agents at Morgan Stanley very directly.[320]

184 Further, it is said that Jiyun's assertion that she had to entrust her investment to Allen because she does not speak English[321] and could not do so lacks credibility, given Jiyun's evident ability to navigate the management of Allen's accounts with Morgan Stanley.[322] The Defendant also submits that Jiyun's evidence that after transferring her 'life savings' to Allen she was content to have no oversight of the accounts, or even to find out her bank account statement, because she completely trusted Allen lacks credibility.[323]

185 The Defendant goes on to highlight that if Allen had told Jiyun he had set up an account in Yi Xu's name, Jiyun could simply have asked him for the account number and transferred the AUD11 million into that bank account, as she had with all the other sums comprising the AUD11 million.[324] The Defendant says Jiyun attempts to evade questioning on that issue, which call her credibility strongly into question.[325] Furthermore, the Defendant notes that obtaining details of a bank account and transferring money into it are not things that require any knowledge of English and in fact they were things that she did with all the other investment sums.[326]

186 There are clearly fundamental issues with the credit of each of the opposing party's witnesses, namely Jiyun and Allen's evidence, and, accordingly, where possible I must rely on the contemporaneous documentary evidence available. I consider primary reliance on the contemporaneous documents in evidence is preferred, including the 'three letters', over the evidence of Jiyun and Allen, having regard to the observations of Lee J in Webb v Getswift (No 5) and the principles summarised above taken from Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor and as cited by approval by this Court. Where it is not possible for me to rely on documentary evidence, I must make findings based solely on the witnesses' account of the relevant events.

187 For the preceding reasons, the remainder of the Jiyun Funds (AUD3,902,789.28) are to be returned to Jiyun. The Bennelong Property was purchased with the Jiyun Funds and, accordingly, is also to be returned to Jiyun. If, however, Jiyun were entitled to the recovery of all the Jiyun Funds and the property purchased using the Jiyun Funds, she may recover in excess of the funds transferred to Allen - perhaps creating an undesirable outcome. Equally, however, equity necessarily dictates that a wrongdoer should not be entitled to the proceeds of their actions and, accordingly, it would not be appropriate to allow Allen to benefit from any capital gains from the Bennelong Property.

188 Evidence was also adduced during trial that Allen has recently rented out the Bennelong Property and receives approximately $780 per week in rental income.[327] Absent consent by Jiyun that Allen could retain these proceeds, evidence of which was not adduced during trial, it necessarily follows that Jiyun is also entitled to the net proceeds of income derived from the Bennelong Property.

189 The Haymarket Property was not purchased with the Jiyun Funds, but subject to a separate transfer of funds from Jiyun to Allen and, accordingly, is to be treated separately from the Bennelong Property.

190 In these circumstances, I will make an order that both the Haymarket and Bennelong Properties are held by Allen on trust for Jiyun. I will order that Allen return the remainder of the Jiyun Funds and the net proceeds of rental income derived from the Bennelong Property less the purchase price and related costs incurred by Allen in purchasing the Bennelong Property ('Net Jiyun Funds'). If any improvements have been made by Allen in relation to the Bennelong Property, the costs of such improvements are to be accounted for in the Net Jiyun Funds. The parties are to confer and provide a draft agreed form of orders to give effect to these reasons with respect to the return of the Net Jiyun Funds and other matters to which reference has been made.

191 There is also the following matter which I raised with the parties at a hearing mid‑mediation on 14 May 2025, at which I said, among other things, with respect to the possible outcome of the trial:

Whilst the ultimate outcome may be orders as requested in the trial pleadings there are other matters which may arise in the course of the final disposition and decision making by the Court. By way of illustration of other matters of this kind I draw the attention of the parties to the decision of The Hon Justice Delany in Timeless Sunrise Pty Ltd v Big Enterprises Pty Ltd (No 10) [2023] VSC 524. Reference should be made to paragraphs 1583 and 1584 of that judgment. On the basis of the evidence I have heard in this case I would, at the conclusion of closing addresses, anticipate raising the referral of proceedings question in a similar manner as did Justice Delany. It follows from the nature of these proceedings that relevant authorities that might be anticipated to be the subject of and recipients of a referral (and the provision of all papers and evidence in the trial) would, include, those responsible for immigration, visas, taxation and foreign investment.

192 I will arrange, subject to any submissions in this respect which the parties may wish to make before final orders are made, for a copy of my reasons for judgment to be provided to the Department of Home Affairs, the Australian Tax Office, the Department of Foreign Affairs and Trade, and the Australian Securities and Investments Commission. Should any of these authorities wish to access the Court Books and/or transcript of this proceeding, I will order that a copy be provided to that organisation upon request. It will be a matter for those authorities to take such action as they deem appropriate.

193 The question of costs is reserved, and the parties will be heard on this issue as required.

Agreement between Jiyun and Allen in relation to the advancement of funds to Allen

If so, what were the terms of the Agreement between Jiyun and Allen?

If the Agreement was made, was there an amendment made to the Agreement?

If the Agreement (or an amended agreement) was made, did Allen breach the terms of the Agreement? by:

b. not promptly transferring the Disputed Funds to the New Account?

c. not assisting with the remittance of the Disputed Funds to Australia?

Were the Disputed Funds, or any part thereof, transferred to the Defendant (Allen) between 26 July 2021 and 26 May 2022:

a. pursuant to the Agreement, or the Agreement as amended; or

[11], [41]-[42]

What amount did the Defendant (Allen) receive from Jiyun between 26 July 2021 and 26 May 2022 (Disputed Funds)?

[103]-[109]

Were the Disputed Funds received by Allen monies had and received?

1. he would arrange for an account to be opened in Australia to assist Jiyun in the repatriation of funds from China; and
2. he had successfully opened an account with Morgan Stanley for that purpose? (Representations) and if so did Jiyun rely on the Representation.

[110]-[116]

Did Jiyun transfer the Disputed Funds to Allen in reliance upon a misrepresentation made by Allen?

[110]-[116]

Did Allen promise to repay the balance of the Disputed Funds to Jiyun in or about June 2022?

[110]-[116]

What sum from the Disputed Funds was transferred to Jiyun from Allen's Morgan Stanley account, and how was it transferred?

[110]-[116]

Were the Disputed Funds transferred to Allen in contravention of Chinese law and, if so, does that prevent Jiyun from recovering the Disputed Funds?

Issue abandoned - see [5], [24]

Does the presumption of advancement apply so as to preclude Jiyun from recovering the Disputed Funds?

Is the Haymarket Property held on trust for Jiyun?

Is the property at 2202/81 Harbour Street, Haymarket, New South Wales:

[42], [168], [187], [189]

Is the Bennelong Property held on trust for Jiyun?

Is the property at 6092 Bennelong Parkway, Wentworth Point in New South Wales (Bennelong Property) held on constructive or resulting trust from Jiyun?

[42], [187], [188], [189]

Did Jiyun induce Allen to believe she was giving him the Disputed Funds for his own use and benefit (Assumption) and if so, is she estopped from recovering the money?

Will Allen suffer detriment if Jiyun is permitted to resile from the Assumption?

Would it be unconscionable for Jiyun to depart from the Assumption?

Did Allen act in good faith on the Assumption that he was entitled to deal with the Disputed Funds as he wished?

Did Allen change his position to his detriment and in reliance on the Assumption by using the Disputed Funds for his own use and the use of his friends and associates so that the Disputed Funds and by purchasing the Bennelong Property?

Would Allen be placed in a worse position if ordered to make restitution than if he had not received the Disputed Funds in the first place?

Did Jiyun request that Allen provide her with a General Power of Attorney?

Does not arise having regard to these findings - Allen agreed to grant this power of attorney.

Is the Power of Attorney a Prescribed Power of Attorney for the purposes of s 8 of the Powers of Attorney Act 2003 (NSW)?

[125]-[128]

What duties did Jiyun have pursuant to the Power of Attorney?

[143]-[145]

Was there a breach of the terms of the General Power of Attorney?

Did Jiyun transfer or arrange for the transfer of investment products (Transferred Amount) to an account in the name of Yi Xu, without Allen's authority and in breach of the Power of Attorney?

Did Jiyun transfer $8,182 to De Brennan Property on 12 September 2022 without Allen's authority, and in breach of the Power of Attorney?

Did Allen suffer loss as a result of any breach by Jiyun of the Power of Attorney?

Is the Transferred Amount held by Jiyun on constructive or resulting trust for Allen?

Did Jiyun request that Allen provide her with a Power of Attorney in respect of the Haymarket Property (Haymarket POA)?

Does not arise having regard to other findings, and Allen agreed to grant this power of attorney.

Is the Haymarket POA a Prescribed Power of Attorney?

[125]-[128], [147]

What were Jiyun's duties pursuant to the Haymarket POA?

Was Jiyun's lodgement of a caveat in breach of the Haymarket POA?

Did Allen suffer loss and damage by any breach by Jiyun of the Haymarket POA?

[164], [167]

Note: The pinpoint references to the reasons must be read in the context of the contents of the reasons as a whole. Moreover, it should be noted that establishing 28 (plus multiple sub‑categories) staccato 'Agreed Issues' in a proceeding such as this is misconceived and unhelpful. Among other things, this is likely to produce confusion, delay and further costs. There is great wisdom in the system of pleadings, which has been applied to define issues for many centuries.

[12] CB1298; and see below, [46].

[25] T115.29-116.5; T117.11-7. In re‑examination she said 'she would like to' provide the documents if the Court required it: T208.7-16.

[27] See below, [96]-[101].

[29] See Defendant's Closing Submissions, [56]; and see the amounts set out in tabular form by date and the amounts pleaded in [57]-[58].

[32] T235.30-236.20; and see T237.3-6 (where Jiyun told Allen to open a new account).

[51] Email chain between Julie Lu, Allen and Jiyun, 31 January 2022, CB1039-40; WeChat between Allen and Ms Lu, CB2093-4, 30 January 2022 message.

[52] Email chain between Julie Lu and 'Obama' (Allen), 19-22 April 2022, CB1064-7.

[54] WeChat between Allen and Ms Lu, CB2093-2135.

[59] WeChat between Allen and Ms Lu, CB2093-2135, for example 25 February 2022 message (CB2101) and 19 April 2022 (CB2123).

[62] T90.14-8; Jiyun/Julie Lu WeChat, (CB1065-7).

[65] WeChat Julie Lu and Allen, CB2093-2135.

[68] Yi Xu Gift declaration, 6 December 2019, CB982-983 (CB983); Jiyun Ma gift declaration, 9 December 2019, CB984.

[70] Personal Loan Contract of China, Everbright Bank, CB988-1020 (CB999-1000).

[74] WeChat Ding Wang and Allen, 23-26 February 2021, CB2058-68; Changjiang Currency Forms filled in by Allen, CB1025-6.

[75] BT Panorama statement 1 March 2021 to 30 June 2021, CB2019 (see two cash deposits totalling around $5m).

[80] See WeChat Ding Wang and Allen, 2 August 2021 (CB2085) (remittance for $1.126m AUD).

[81] T241.28-247.12; CB1777-82 (Yi Xu bank account statements).

[83] Jiyun affidavit (First), CB65-283; CB66, [7]-[11].

[101] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, [47]; Equuscorp Pty Ltd v Glengallen Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471, [33]: 'The respondents each having executed a loan agreement, each is bound by it'.

[103] Evidence Act 2008 ss 87, 88, and the definition of 'admission' in the Dictionary (sch 2 pt 1).

[104] Herdegan v Federal Commissioner of Taxation [1988] FCA 419; (1988) 84 ALR 271, 276-7; Shepherd v Cartwright [1954] UKHL 2; [1955] AC 431, 445; Calverly v Green [1984] HCA 81; (1984) 155 CLR 242, 262.

[106] Plaintiff's Closing Submissions, [66]-[70].

[114] Handwritten letter (CB1296-1297); T266.20-7.

[116] Second Letter, CB1298 (bottom para).

[117] WeChat between Allen and Mr Peng, CB1082-54 (untranslated version at CB2194-2366); CB1094; T150.24-8.

[120] T134.9-11 (regarding the 2nd typed letter).

[128] WeChat between Allen and Mr Peng, 18 June 2022, CB1094.

[129] T151.28-152.20 (referring to the top of CB1094).

[130] T132.30-1 (referring to CB1094-1095 dot points).

[132] Document at CB1098 (Letter to mom.pdf); T136.8-21; T143.31-144.3, invoices (CB1304-‍1319).

[134] WeChat Jiyun and Allen p 28-9 (CB2163-8).

[138] [1959] HCA 8; (1959) 101 CLR 298.

[139] Tenth Vandy v Natwest Markets Australia [2012] VSCA 103, [154]-[156] ('Tenth Vandy').

[140] Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2010] VSC 2, [17](Croft J).

[141] [2019] VSC 263.

[147] Tenth Vandy, [155]; Sunland Waterfront (BVI) v Prudentia Investments Pty Ltd (No 2) [2012] VSC 239; (2012) 266 FLR 243, [346]-‍[348].

[148] Payne v Parker [1976] 1 NSWLR 191, [7] cited with approval in Manly Counsil v Byrne [2004] NSWCA 123, [53] and Primrose Meadows, [24] (emphasis added, citations omitted).

[149] And see above, [66].

[150] See above, [41].

[151] [1991] FCA 344; (1991) 30 FCR 491.

[152] [2022] NSWSC 29; (2022) 409 ALR 558.

[153] T457.21-25; T458.3-10; Plaintiff's Closing Submissions, [108].

[154] [2022] NSWSC 29; (2022) 409 ALR 558, [58].

[155] [2022] HCA 34; (2022) 275 CLR 37.

[156] Plaintiff's Written Closing Submissions, [80], [83].

[157] Plaintiff's Written Closing Submissions [83].

[160] [1959] HCA 62; (1959) 110 CLR 297.

[162] Defendant's Written Opening Submissions [4]-[5].

[163] Defendant's Written Opening Submissions [5].

[164] Bosanac, [15] (citations omitted).

[166] Bosanac, [108]-[110] (emphasis added).

[168] See above, [41] and also, [76].

[169] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 246.

[170] Bosanac, [98] (Gordon and Edelman JJ).

[171] Nelson v Nelson (1995) 184 CLR 538, 547-8.

[172] Bosanac, [22] (Kiefel CJ and Gleeson J), [97]-[98], [110] (Gordon and Edelman JJ).

[173] Bosanac, [58] (Gageler J), [30]-[31] (Kiefel CJ and Gleeson J), [95] (Gordon and Edelman JJ).

[175] Bosanac, [58] (Gageler J) (citations omitted).

[177] Bosanac, [64]-[67] (Gageler J) (emphasis added, citations omitted).

[178] Bosanac, [98] (Gordon and Edelman JJ) (emphasis added, citations omitted).

[179] Bosanac, [102] (Gordon and Edelman JJ) (emphasis added, citations omitted).

[180] Bosanac, [105]-[106] (Gordon and Edelman JJ) (emphasis added, citations omitted).

[181] Bosanac, [15] (Kiefel CJ and Gleeson J) (citations omitted).

[182] Bosanac, [22] (Kiefel CJ and Gleeson J) (citations omitted).

[183] Bosanac, [32]-[33] (Kiefel CJ and Gleeson J) (emphasis added, citations omitted).

[184] Bosanac, [22] (Kiefel CJ and Gleeson J), [65] (Gageler J), [98], [103] (Gordon and Edelman JJ).

[185] Bosanac, [13] (Kiefel CJ and Gleeson J), [102], [111] (Gordon and Edelman JJ).

[186] Bosanac, [97], [102], [105], [110] (Gordon and Edelman JJ).

[187] Bosanac, [33] (Kiefel CJ and Gleeson J).

[192] Defendant's Written Closing Submissions, [114].

[193] Plaintiff's Written Closing Submissions, [68].

[194] See below, [96]-[101].

[200] Defendant's Written Closing Submissions [23].

[203] [1988] HCA 17; (1988) 164 CLR 662, 673 (citations omitted).

[204] [1987] HCA 5; (1987) 162 CLR 221, 256-7.

[205] [1992] HCA 48; (1992) 175 CLR 353, 379.

[206] Haxton v Equuscorp Pty Ltd (formerly Equus Financial Services Ltd) [2010] VSCA 1; (2010) 28 VR 499, [3].

[207] Further Amended Statement of Claim, [9].

[208] Plaintiff's Written Opening Submissions, [4(c)]; Plaintiff's Written Closing Submissions [110].

[210] Competition and Consumer Act 2010 (Cth) sch 2 ('ACL').

[211] ACL s 18.

[212] Tresize v National Australia Bank Ltd [2005] FCA 1095; (2005) 220 ALR 706, [38] (citations omitted).

[213] [2006] HCA 51; (2006) 226 CLR 551, [59] (Gummow, Kirby and Crennan JJ).

[221] Amended Defence and Counterclaim, [25].

[222] Amended Defence and Counterclaim, [26].

[223] Amended Defence and Counterclaim, [27].

[224] Amended Defence and Counterclaim, [28].

[227] Plaintiff's Written Closing Submissions, [111].

[228] See above, [66].

[235] Defendant's Written Closing Submissions, [154]-[166].

[236] Defendant's Written Closing Submissions, [162]-[165]; CB1686; CB1742-3.

[237] Plaintiff's Written Closing Submissions, [122].

[238] Plaintiff's Written Closing Submissions, [123].

[239] Plaintiff's Written Closing Submissions, [123].

[242] Plaintiff's Written Closing Submissions, [125].

[243] Plaintiff's Written Closing Submissions, [126].

[244] Plaintiff's Written Closing Submissions, [127].

[245] Plaintiff's Written Closing Submissions, [127]; CB1490.

[246] Plaintiff's Written Closing Submissions, [128].

[250] Plaintiff's Written Closing Submissions, [129].

[251] Defendant's Written Closing Submissions, [135]-[144].

[252] Defendant's Written Closing Submissions, [145].

[253] Defendant's Written Closing Submissions, [145]; T273.15-7; T383.30-384.15.

[255] Defendant's Written Closing Submissions, [150].

[256] Defendant's Written Closing Submissions, [150].

[257] Abbott v UDC Finance Ltd [1991] NZCA 97; [1992] 1 NZLR 405, 414; Whitney v National Australia Bank [2007] QSC 397, 4.

[258] Defendant's Written Closing Submissions, [155]; CB1277.

[259] Defendant's Written Closing Submissions, [167].

[260] Defendant's Written Closing Submissions, [167].

[261] Defendant's Written Closing Submissions, [168].

[262] Defendant's Written Closing Submissions, [169].

[263] Defendant's Written Closing Submissions, [170].

[264] Defendant's Written Closing Submissions, [176].

[265] Defendant's Written Closing Submissions, [177].

[266] Defendant's Written Closing Submissions, [177].

[268] See above, [125]-[131].

[269] Plaintiff's Written Closing Submissions, [132].

[270] Plaintiff's Written Closing Submissions, [132].

[271] Defendant's Written Closing Submissions, [186]-[187].

[273] Defendant's Written Closing Submissions, [189].

[274] Defendant's Written Closing Submissions, [190].

[276] Dal Pont, G. E., Powers of Attorney (Lexis Nexis Butterworth, 3rd Edition, Butterworths).

[277] [2009] NSWCA 20, [22].

[278] [2014] NSWCA 68, [16].

[282] [2014] NSWCA 209; (2014) 87 NSWLR 403, [130].

[285] See Young, Croft and Smith, On Equity (Thomas Reuters, 2009) pp 194-7.

[286] Defendant's Written Closing Submissions, [178].

[287] See above, [41], [102].

[288] Plaintiff's Written Closing Submissions, [1].

[289] [2024] VSC 651, [23].

[290] [2004] FCA 1164, [416].

[291] LL Up Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651, [23].

[292] [2007] EWHC 758 (Ch), [3].

[293] [2019] FCA 1533, [17]-[18].

[294] [2013] EWHC 3560 (Comm), [15]-[23].

[295] White v Woodward [2020] VSC 258, [14] (John Dixon J); 3 Apples Childcare Centre Pty Ltd v MMC Pacific International Pty Ltd (2023) 167 ACSR 401, [144] (M Osborne J).

[296] [2013] EWHC 3560 (Comm), [22].

[298] Plaintiff's Written Closing Submissions, [3].

[299] Plaintiff's Written Closing Submissions, [3].

[300] Plaintiff's Written Closing Submissions, [3].

[301] Plaintiff's Written Closing Submissions, [3].

[302] Plaintiff's Written Closing Submissions, [3].

[303] Plaintiff's Written Closing Submissions, [4].

[304] Plaintiff's Written Closing Submissions, [4].

[305] Plaintiff's Written Closing Submissions, [4].

[306] Plaintiff's Written Closing Submissions, [5].

[307] Plaintiff's Written Closing Submissions, [5].

[309] Plaintiff's Written Closing Submissions, [6].

[311] Plaintiff's Written Closing Submissions, [7].

[312] Plaintiff's Written Closing Submissions, [7].

[314] T477.9-12; see above [40].

[317] Defendant's Written Closing Submissions, [27].

[318] Defendant's Written Closing Submissions, [27].

[319] Defendant's Written Closing Submissions, [77].

[320] Defendant's Written Closing Submissions, [77].

[322] Defendant's Written Closing Submissions, [30].

[323] Defendant's Written Closing Submissions, [30].

[324] Defendant's Written Closing Submissions, [31].

[325] T167.12-169.12, T169.20-23; Defendant's Written Closing Submissions, [31].

[326] Defendant's Written Closing Submissions, [31].