SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 | Case summary

SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 | Case summary | Zoe

[2]

Judgment 1MACFARLAN JA: I agree with Ward JA. 2WARD JA: This appeal arises out of a dispute between Mr Kerr, on the one hand, and Mr Shen and a company associated with him (SAS Realty Developments Pty Ltd, to which I will refer as SAS), on the other hand, as to certain arrangements entered into between Mr Kerr and one or both of SAS and Mr Shen in mid 2010 in relation to the proposed development of land owned by SAS at Parramatta. 3The proceedings in which judgment was ultimately entered for Mr Kerr against both SAS and Mr Shen were initiated in the District Court by another party, Nazero Constructions Pty Ltd, against SAS. That claim was for moneys due in relation to the building works commenced on the land. SAS then filed a cross-claim against Mr Kerr and in turn Mr Kerr filed a cross-claim against both SAS and Mr Shen. Nazero's claim was disposed of with the entry of summary judgment in its favour. The contested hearing that led to the judgment now the subject of appeal was thus solely in relation to the competing cross-claims between Mr Kerr and Mr Shen/SAS. 4In summary, the respective cross-claims were as follows: (i) a cross-claim by SAS against Mr Kerr claiming: (a) that Mr Kerr had breached a Joint Venture Agreement entered into in June 2010 by failing to provide the sum of $1 million to discharge an existing registered mortgage over the Parramatta property (as a consequence of which it was alleged that the joint venture had failed, leading to claimed losses by way of wasted expenditure; the judgment debt to Nazero; other unquantified liabilities to Nazero in relation to the construction contract; and loss of profit, again unquantified); and (b) damages for conversion or restitution for unjust enrichment in relation to a sum of $145,854 withdrawn by Mr Kerr from a bank account in the name of SAS; and (ii) a cross-claim by Mr Kerr against both SAS and Mr Shen, claiming the sum of $400,000 as damages for one or more of: breach of an agreement said to have been reached in July 2010 varying the Joint Venture Agreement; breach of the Joint Venture Agreement itself; and misleading and deceptive conduct. 5In the result, the primary judge found for Mr Kerr on both cross-claims and entered a verdict for Mr Kerr against both SAS and Mr Shen in the sum of $400,000 plus interest. In so doing, her Honour found:

that SAS (in breach of the Joint Venture Agreement) had failed to apply the sum of $400,000 paid by Mr Kerr to joint venture purposes and (in breach of the agreement reached in July 2010) had failed to refund that sum when funding approval was not obtained for the project ([35]);
that Mr Shen had been unjustly enriched by the taking of the sum of $400,000 and his application of that sum for his own purposes ([35]); (although I interpose to note that there was no allegation of unjust enrichment made in the pleadings against Mr Shen);
that Mr Kerr did not breach the Joint Venture Agreement by failing to provide the sum of $1 million, as had been claimed ([41]); and
that the claims against Mr Kerr in conversion and unjust enrichment in relation to the withdrawal of the $145,854 sum failed ([49]). 6Her Honour was not satisfied that Mr Kerr had entered the Joint Venture Agreement in reliance on any or all of the alleged representations ([56]) and hence his misleading and deceptive conduct claim failed. 7In the course of the primary judge's reasons, observations adverse to their credit were made against both Mr Shen and Mr Kerr. In relation to Mr Shen, however, those extended to a finding (in [30] and [34]) that he had fabricated his evidence in relation to the circumstances in which the payment of $350,000 was made and the July 2010 document came to be signed. (This finding of dishonesty is the cornerstone of the complaint made on appeal in relation to the adequacy of her Honour's reasons.)

[4]

Joint Venture Agreement 9On 25 June 2010, SAS and Mr Kerr entered into an agreement in relation to the development of the Parramatta land. This agreement was titled "Joint Venture Agreement". It was drafted by Mr Shen, who used as a template a document that had been drafted in relation to another joint venture. Perhaps for this reason, it was not a model of clear draftsmanship. The parties to the agreement were SAS and Mr Kerr (not Mr Shen, although he and another associated entity, SAS Financial Group Pty Ltd, were named in the agreement). Mr Shen signed the Joint Venture Agreement in the stated capacity as director for SAS. 10The recitals noted that: (A) the parties had agreed to enter into the joint venture agreement "for the purposes of the project more fully described herein"; (B) SAS was the registered proprietor of the land; (C) SAS had development application approval for a particular development of the property; (D) SAS was in the process of contracting Nazero to construct the building for a fixed price; and (E) (of some relevance when considering the nature of the payments that Mr Kerr was obliged to make under the terms of the agreement) that Mr Kerr "is to provide funds to the joint venture as detailed herein". 11Broadly speaking, the arrangement was one under which SAS was to be entitled to retain certain of the developed lots for its own use or sale and Mr Kerr was to be entitled, in return for his contribution to the joint venture, (subject to the particular terms and payments referred to in the balance of clause 6) to all of the profits of the venture. (All of the losses were to be to Mr Kerr's account). 12Clause 3, somewhat inaptly headed "The Bankers of the joint venture are ANZ Bank", provided: a) Each party must nominate Quentin Wayne Kerr to sign all cheques on their behalf. b) Joint venture cheques are to be signed Quentin Wayne Kerr on behalf of each party of by the Manager appointed herein to the amount over $10,000 must be informed to all parties. [the italicised words being in handwriting on the document] 13Clause 4, under the heading "Representative", commenced: In addition to the appointment of a Manager in clause 14 below, [seemingly a reference to clause 11 in which the parties agreed to enter into a Management Agreement appointing a Mr Yu as project manager to carry out the aims of the joint venture and for SAS to provide a power of attorney to the Manager to enable "the effect of this joint venture to be carried out"] SAS must appoint Quentin Wayne Kerr as a Sole [the word sole was deleted and the handwritten word "Joint" there inserted] Director of SAS Realty Development Pty Ltd to manage the affairs of the joint venture on its behalf and agrees that its representative has authority to bind the company on all matters relating to the joint venture. [I note that here, although this entity was a defined term (SAS), it was referred to by its full name.] 14Clause 4 then continued, under the sub-heading "[o]verview of the purpose of the joint venture", with a series of sub-clauses. Relevantly (as they appear in the document), those sub-clauses included: a) The joint venturers propose: b) For Quentin Wayne Kerr to provide one million dollars ($1,000,000) to enable the existing mortgage ... over the land to National Australia Bank to be discharged or fund for start construction; and Quentin Wayne Kerr is responsible to pay back the existing mortgage ... loan of one million dollars ($1,000,000) at necessary time. c) For Quentin Wayne Kerr to provide four hundred thousand dollars ($50,000) immediately to SAS Financial Group Pty Ltd and Sean Shen for sign the contract. $350,000 upon the approved of finance for the development. (my emphasis) 15Pausing there, it was not suggested that Mr Kerr was to provide two separate sums of one million dollars. Therefore, both parts of clause 4(b) must be read as relating to the same sum of $1,000,000 which was to be used to enable the discharge of the mortgage (or "fund for start construction"). The time at which Mr Kerr was to be responsible "to pay back the existing mortgage" (i.e. to provide that sum of $1,000,000) was stated to be "at necessary time" (which on its face could only sensibly mean at whatever time the discharge of the mortgage proved to be necessary for the purposes of the joint venture, not at whatever time Mr Shen or SAS might call for the sum to be provided). As it transpired, there was a dispute as to whether that time had ever arrived. Her Honour found that it had not and that there was therefore no breach by Mr Kerr of the obligation to provide the sum of one million dollars. 16I also note that clause 4(b) refers to SAS Financial Group. (Mr Shen's evidence was that SAS Financial Group was a separate company owned by him.) The primary judge accepted (at [24]) that this should be read as a reference to SAS, on the basis that the document was not well drafted and the parties had not carefully distinguished between themselves and related corporate entities. (I note that in at least one later SAS document (the minutes of a meeting held in November 2010) both Mr Shen and Mr Kerr are identified as directors of SAS Financial Group, although there is no suggestion that the latter was ever a director of that company, which tends to support the conclusion that not a great deal of care may have been used in other contexts to distinguish between SAS and SAS Financial Group.) 17Read literally, clause 4(c) refers to the specific entities to whom payment is to be made (Mr Shen and SAS Financial Group) only in respect of the sum of $50,000 (and not in respect of the sum of $350,000), although nothing was made of this in argument. Nevertheless, what is clear from a reading of the clause in the context of the whole of the agreement is that the payment (to whomever the balance of the $400,000 was to be made), was to be for the purposes of the joint venture (recital E recording the parties' agreement that the funds to be provided by Mr Kerr to the joint venture were detailed in the agreement). There is nothing in the Joint Venture Agreement to support a suggestion that this was to be a payment to Mr Shen (or to SAS Financial Group) for personal purposes (or in relation to anything other than the proposed joint venture). In particular, there is nothing in the signed agreement to indicate that the $400,000 was to be paid as part (or full) consideration for the issue to Mr Kerr of shares in SAS (as Mr Shen contended). 18The joint venture proposal was for construction finance to be obtained in the sum of $6.5 million, secured by a first registered mortgage over the land (for the purpose of which it would obviously be necessary either to discharge the existing first mortgage or, which might be less likely from a commercial perspective, to obtain the existing first mortgagee's consent to a new mortgage having priority over its mortgage). Clause 4 then went on to outline the steps to be taken following development of the land. 19Clause 6, under the heading "Contribution of Capital and Share of Profits and Losses", provided that the parties must contribute the capital required to complete the project in the following way with no fixed nominated proportions" and that, subject to the terms and payments in that clause, all of the profits and all of the losses of the venture were to be for the account of Mr Kerr. The clause went on to state, in the second bullet point: Quentin Wayne Kerr is paying the sum of $1.4 million under this agreement to SAS & the National Australia Bank. 20That statement is consistent with the payment of $400,000 referred to in clause 4(c) being a payment for the purposes of the joint venture. That supports a conclusion that the reference in that clause to the payment of $50,000 immediately "to SAS Financial Group and Sean Shen for sign the contract" was intended to be a payment to them on behalf of SAS (and for the purposes of the joint venture). Otherwise, there is no explanation for the statement in clause 6 that Mr Kerr was paying the sum of $1.4 million "under this agreement" to SAS and the Bank. (Again, there was no suggestion that there were to be two separate payments of $400,000.) 21Clause 21, under the heading "Joint venture's funding", provided that: Quentin Wayne Kerr must ensure that the joint venture has sufficient working capital to conduct the project from the Loan [presumably a reference to the loan referred to in clause 4(d) although that was not defined as a capitalised term] 22This is relied on by Mr Shen/SAS as support for the proposition that sums paid by Mr Kerr apart from the $400,000 (i.e., the sums totalling $145,854) were by way of contribution to the joint venture.

[6]

Payments by Mr Kerr 25It is not disputed that Mr Kerr paid the sum of $50,000 to Mr Shen on the signing of the Joint Venture Agreement. In July 2010, he paid a further sum of $350,000 by way of cheque dated 23 July 2010 drawn in favour of Mr Shen. (In evidence there was a copy of a cheque drawn payable to Mr Shen in that amount and dated 23 July 2010). There is a dispute as to the circumstances in which that sum was paid (to which I refer below). 26Mr Shen's evidence (in his affidavit of 8 August 2011) was that the payment of $400,000 "was the initial investment fund from Kerr under the clause 4(c) of JVA" but also that "[t]his money was paid in consideration of selling 37.50% of SAS's shares to Kerr" (something to which no reference at all was made in the Joint Venture Agreement). At [17] of his affidavit, Mr Shen deposes to a conversation with Mr Kerr (the date of which he cannot remember) in which he says Mr Kerr said that he wanted to secure "[his] investment by becoming a shareholder of SAS". (Mr Kerr denies this conversation.) 27On Mr Shen's own version of events, the reference by Mr Kerr to securing "his investment" would suggest that the conversation took place at least after some investment of funds by Mr Kerr in the project. The earliest such investment could only have been the $50,000 payment made on signing the contract, yet the conversation to which Mr Shen deposed suggested that the whole of the $400,000 was for payment for the issue of shares in the company; a further inconsistency which could be seen as casting doubt on the reliability of Mr Shen's recollection. 28There is no dispute that the payments totalling $400,000 were not used for the purposes of the joint venture but were treated by Mr Shen as moneys for his personal use. A concession to that effect was made at the hearing before her Honour. 29Mr Kerr also paid sums totalling some $145,854 into SAS's bank account (for expenses of the joint venture or otherwise). There was a dispute as to whether these represented a loan by Mr Kerr to SAS (as Mr Kerr deposed) or contribution of working capital as required by the Joint Venture Agreement (and as was indicated on some contemporaneous documents).

[7]

July Supplementary Agreement 30There was much contention at the hearing as to the document that Mr Shen accepts he signed in July 2010. That document, on the letterhead of a company associated with Mr Kerr (Staralbert Pty Ltd), stated as follows: Agreement between Quentin Kerr to Mr. Sean Shen in Joint Venture Agreement, Mr. Quentin Kerr has paid Mr. Sean Shen from SAS Realty Developments Pty Ltd (ACN: 102 737 575) total AU$400,000 from Staralbert Investment Group Pty Ltd (ACN: 144 870 744) as investment fund to SAS Developments Pty Ltd [sic] at July 23rd, 2010 in Joint Venture Agreement. Quentin Kerr will hold the right to withdraw the investment fund if Mr. Sean Shen fails to get the construction finance unconditional approved or receives less than $6,220,000 loan, Mr. Sean Shen should refund Mr. Quentin Kerr AU$400,000 immediately. 31The letter was dated 21 July 2010 (inconsistently with the reference therein, in the past tense, to the payment of a total of $400,000 "as investment fund" to SAS at 23rd July). The words "at July 23rd" might, perhaps refer prospectively to the then anticipated existence of an investment fund as at that date, following clearance of what Mr Kerr deposed was a post-dated cheque, but this possibility was not explored at the hearing. The first sentence, stating that the payment to Mr Shen was "as investment fund to SAS" (my emphasis) suggests that the signatories understood the payments in clause 4(c) to be for the benefit of SAS. 32Mr Shen signed the July 2010 document twice (once above his name and the title of managing director "SAS Developments Pty Ltd" and once below those words). He explained this in cross-examination as being due to a mistake. Objectively, however, the fact that Mr Shen signed the document twice supports a conclusion that he was doing so in two capacities (i.e. as managing director on behalf of SAS and in his personal capacity). 33Mr Kerr's evidence (in his affidavit affirmed 13 October 2011 at [19]) was that he gave the $350,000 cheque (that he says made payable to SAS) to Mr Shen on 21 July 2010 and that a receipt was drawn referring to the refund, which Mr Shen endorsed with his signature. Mr Shen (in his affidavit of 8 August 2011) acknowledged the payment to him of $400,000 on 21 July 2010 ([29]), though elsewhere in that affidavit he says the sum was paid "on or about" 21 July 2010 ([17]). Neither deponent was wholly accurate in his recollection of events (when tested against the objective evidence): in that, contrary to Mr Kerr's recollection, the cheque was not made out in favour of SAS; but also, contrary to Mr Shen's evidence, it is clear that the payment of $400,000 occurred in two tranches. 34Mr Shen deposed that he was given and signed the July document on 28 July 2010 (i.e. some five days after receipt of payment of the $350,000) and that he did so because Mr Kerr said to him that the document was a receipt for the payment of $350,000 (his affidavit at [32]). According to Mr Shen, he was unaware when he signed that document that it contained any promise to refund the sum of $400,000. (The evidence of a third party, Mr Gao, in the witness box was that the cheque was given and the receipt signed at the same time (Blue 181C; Blue 182Q) though his recollection, contrary to that of Mr Kerr, was that this occurred one night at a club.)

[8]

Correspondence in mid August 2010 35The ASIC extract in evidence records the changes to the company's share structure and issue of shares to Mr Kerr (600 shares out of the then issued capital of 1,600 shares) as being effective from 9 August 2010. 36By email on 15 August 2010 (by which time it seems that issues had arisen in relation to the treatment of pre-sales deposits), Mr Kerr's wife (Ms Minnie Yao), described therein as Business Manager of Staralbert Investment, sent the following message to Mr Shen (and to Mr Yu, a Mr Robert Hornsby and Mr Kerr), under the heading "a few issues" and apparently attaching pdf copies of a "receipt" and "contract front page": I just want to clear a few issues before we go ahead. Regarding to the past issues, I want to reply as follows: 1. The $400,000 funding for purchasing SAS Realty Development Pty Ltd shares is not from cash purchasing. The selling contract (see attachment) was clearly written that it was exchanged on 10% deposit. You might think my selling price is too low, it is another matter. The total 10% of three sales, $124,500 from my side is still in the company's account without touching. The bills and related costs which have been paid from my own funding which you can check out when you comes back. 2. The funding will be $500,000 short when we settle the loan. I am not sure if we should go ahead with the construction work. I feel uncomfortable. 37The references to the 10% deposit and to the sales contracts appear to be references to the pre-sale contracts and not to do with any sale of shares, so the relevance of this communication rests in what is conveyed by the words "$400,000 funding for purchasing SAS Realty Development Pty Ltd shares". This email (which Mr Kerr did not accept he had sent) was relied upon by Mr Shen as supporting his version of events relating to the $350,000 payment. Insofar as it stated that "[t]he $400,000 funding for purchasing [SAS] shares is not from cash purchasing", the meaning of "from cash purchasing" is unclear. However, the email does suggest that at least Ms Yao may have considered the sums paid by her husband to relate to a purchase of shares. As noted, there was a dispute as to whether Mr Kerr was the author of, or had approved in some fashion, this email. (It was suggested by Mr Allen that the denial of this by Mr Kerr in the witness box was a recent invention.)

[9]

Withdrawal of funds from the SAS bank account 38On 19 August 2010, Mr Kerr withdrew the sum of $145,854 from the SAS bank account. He had earlier attempted to withdraw that amount, stating that this was "to retrieve our personal funding", but the bank had queried the withdrawal with Mr Shen and Mr Shen had arranged for payment on the cheque to be stopped. Accusations of criminal conduct were made by Mr Shen against Mr Kerr in relation to the attempted withdrawal of this amount (by email of 17 August 2010 and see his earlier email of 12 August 2010 to Ms Yao). Mr Kerr then apparently drew two further cheques for the same amount (one to cash and one to another entity) but presented only the cheque for cash, which was duly paid. 39Mr Kerr deposed in his affidavit to the withdrawal of funds from the SAS account as the repayment of his personal funding to the company "by way of loan" (in the sum of $122,050) and by way of reimbursement of further expenses made by him on behalf of the company at ([65]), though in his verified defence he had alleged that the sums were erroneously paid into the SAS account. (The primary judge rejected the admission into evidence of an assertion made by Mr Kerr elsewhere in his affidavit, at [64(b)(iii)], as to this being a personal loan.) It was accepted by the appellants that Mr Kerr had paid into the SAS bank account as at July 2010 at least $122,050 of Mr Kerr's personal funds. It was contended that this represented a capital contribution to the joint venture (and that, once paid into the account, it became SAS's money that Mr Kerr had no authority "to appropriate"). 40There was evidence from a director of Nazero (Mr Ward Younan) that he had requested that SAS show evidence of a $300,000 balance in the company's bank account before Nazero would commence construction in July 2010. (He also deposed that by the end of August 2010 Stage 1 construction was 90% complete.) There is, therefore, some basis for an inference that Mr Kerr had deposited the bulk of the money that he later withdrew from the SAS bank account into that account for the purpose of demonstrating to the builder that there were funds available to be drawn upon (though whether this deposit was properly to be characterised as a loan or as a contribution to the joint venture is another issue).

[10]

Termination of the joint venture 41On 27 August 2010, solicitors acting for Mr Kerr wrote to SAS (in a letter inexplicably headed "Without Prejudice save as to costs") making a series of allegations in relation to the joint venture (including that the $400,000 had not been paid into the company's bank account) and making a number of (not wholly consistent) assertions all seemingly directed to the proposition that the joint venture was at, or was being brought to, an end. In particular it was asserted that the "purported joint venture agreement" was not valid at law or alternatively had been terminated or rescinded on SAS's part (that repudiation or termination, as far as can be discerned from the letter, apparently being attributed to a direction made by Mr Shen to "all other third parties not to communicate with [Mr Kerr]"). The letter also included the assertion that "the mere issuing of shares to our client purported in the joint venture agreement is not valid and in consequence your action and the operation of the joint venture agreement is not valid" (an assertion that seems to have been predicated on the issue of the shares being some kind of pre-condition to the operation of the Joint Venture Agreement, although that was not suggested elsewhere in the evidence). Demand was made for the immediate refund of the $400,000. 42In the course of argument on the appeal, Counsel for the appellants, Mr Allen, sought to place reliance on this letter as a wrongful repudiation of the Joint Venture Agreement, although an attempt to amend to plead wrongful repudiation as a separate cause of action had been rejected at the hearing. 43The response to the letter of demand from Mr Kerr's lawyers was sent to Mr Kerr on the letterhead of SAS, signed by Mr Shen, on 26 September 2010. It included the assertions that: the $400,000 was not "Joint Venture funds"; that SAS had not terminated or repudiated the agreement; that the agreement was not invalid; and, significantly in my view, that "[t]he Jointure [sic] stands alone & has nothing to do with the shares" and that the shares were issued "without consideration for finance purposes". (The acknowledgement in this letter that the shares were issued "without consideration for finance purposes" is inconsistent with the claim Mr Shen sought to make at the hearing as to the relationship between the payment of $350,000 and the shares.) 44By letter also dated 26 September 2010, on SAS letterhead and signed by Mr Shen, demand was made that Mr Kerr comply with his obligations under the Joint Venture Agreement. Those obligations were said to include, relevantly, the provision of $1,000,000 to enable the mortgage to be discharged; the provision of working capital for the joint venture; and the return to the joint venture of the sum of $145,854. 45The dispute between Mr Shen and Mr Kerr continued and seems to have led to the termination by SAS of the joint venture in November 2010. In evidence there was a signed copy of Minutes of an Extraordinary General Meeting of SAS on 2 November 2010, at which meeting Mr Shen and Mr Kerr were recorded as being present (the minutes describing them as directors of SAS Financial Group) and a resolution was recorded as having been passed in the following terms: As a result of the default by Quentin Kerr of his obligations under the Joint Venture Agreement, that the company terminate the Joint Venture pursuant to clause 23 of the agreement (or in the alternative). [It is not clear to what the alternative basis of termination there referred.] 46The minutes also recorded (somewhat inconsistently with the above resolution) a resolution noting the statement by Mr Kerr that the joint venture agreement was an invalid contract; Mr Shen's disagreement with that statement; and that "[n]o mediation has proceeded to date". Resolution 3, recorded as having been passed, was that Mr Kerr be removed as a director of the company. 47After exchanges of correspondence between the lawyers as to disputes over some of the pre-sales contracts (in which at least one threat to report the matter to the police was made by the lawyers acting for SAS), by letter dated 14 February 2011, SAS's lawyers demanded performance by Mr Kerr of the obligation to provide the sum of $1 million (on the basis that finance had been approved). (This demand, as evident from the brief chronology above, came some 3 months after SAS had apparently resolved to terminate the agreement, so the basis for that demand is by no means clear.)

[11]

Findings (i) Findings as to the payment of $400,000 (Grounds 1 and 2) 48The primary judge found that this amount was payable under the Joint Venture Agreement as joint venture working capital and that, under that agreement, the funds were to be received on behalf of SAS and applied to the SAS development ([25]). (As noted, her Honour read the reference to SAS Financial Group as a deficiency in drafting but ultimately nothing turns on this, at least for practical purposes, since the sum of $350,000 was paid to Mr Shen (not SAS Financial Group), as was the first payment of $50,000, and no claim was made against SAS Financial Group in relation to those moneys.) 49Her Honour noted that Mr Shen had signed the July document "as managing director of SAS" ([26]) and inferred that Mr Kerr and Mr Shen had intended that the July document would bind the parties to the joint venture agreement (i.e. SAS and Mr Kerr) or that the named parties (in the July document) "represented the parties to the Joint Venture Agreement". Her Honour said that the agreement to "refund" was an agreement that, if SAS failed to obtain the approval, then SAS would refund the moneys in question ([27]). 50The appellants complain that there was no determination as to the parties to the agreement found by her Honour to have been reached in July 2010 and recorded in the July document. However, what her Honour concluded in [26]-[27] was that there was an objective intention on the part of the signatories to the document (Mr Kerr and Mr Shen) that the refund obligation was (whether directly or, through the persona of Mr Shen, indirectly) to bind SAS to the refund of moneys in the contemplated circumstances. Implicitly, her Honour seems to have accepted that Mr Shen was a party to the agreement recorded in the July document. 51The primary judge expressly rejected the reasons advanced by Mr Shen as to why Mr Kerr's explanation of the circumstances in which the July document was signed should be rejected and found at [30] that Mr Shen had fabricated his evidence regarding those circumstances and the reason for the issue of the 600 shares to Mr Kerr. Her Honour found that those shares were issued in order to demonstrate to the proposed financier that Mr Kerr was integrally involved with the affairs of SAS ([30]), a finding not inconsistent with Mr Shen's own statement in September 2010 that the joint venture stood alone from and had nothing to do with the shares and, significantly, that the shares were issued without consideration for finance purposes. (Mr Shen's explanation for this statement, in effect that the letter was drafted by his lawyers and did not accord with his instructions, was, not surprisingly, rejected by her Honour. If this was the explanation for the statement then one would have expected it to have been the subject of evidence from Mr Leamey.)

[14]

Lack of consideration as pleading point 57At the hearing (and maintained on appeal) an objection was raised on behalf of the cross-defendants as to the failure by Mr Kerr to plead that there was consideration for the agreement. 58In the Second Cross-Claim, the July agreement was pleaded at [7]; it was alleged that, to the extent that the July agreement differed from the Joint Venture Agreement, the latter was thereby varied ([8]); there was an allegation at [10] of failure by Mr Shen and SAS to secure or obtain finance for the proposed construction and at [11] that "in the premises", Mr Kerr was entitled to a refund of the sum by SAS and/or Mr Shen; the allegation of breach by the refusal to refund the sum in question was an allegation that there was a breach of both agreements by the refusal of Mr Shen and SAS to refund the moneys [12]. 59Her Honour dealt with the pleading point briefly, considering that the issue was adequately raised on the pleadings but saying that in any event the case had been conducted on the basis that this issue had been raised. 60On appeal, it was contended by Mr Allen that the failure to plead an absence of consideration was fatal to the claim by Mr Kerr and that the appellants, having conducted the case on the basis of the pleading, should therefore have succeeded in resisting this claim. 61Counsel for Mr Kerr, Mr de Meyrick, pointed to the pleading in the Second Cross-Claim that funds were advanced in reliance upon the July agreement (read with the pleading that the working capital of $400,000 was to be provided by way of an up-front payment of $50,000 followed by a further $350,000 upon the approval of finance for the development) as sufficiently pleading what was in fact (he submits) the consideration for the agreement reached in July (that being the advance payment of the full $400,000, involving payment of $350,000 at a time prior to it being due under the Joint Venture Agreement). 62From a strict pleading point of view it is necessary for a plaintiff suing on an agreement to plead the facts that constitute consideration for such an agreement (see Pleadings Principles and Practice, Jacob and Goldrein (1990), citing Penny v Porter (1801) 2 East 2 and Bullen and Leake (3rd edn) at 60). Here, while the pleading did not expressly identify what was alleged to have been the consideration for the July agreement, it did (as Mr de Meyrick contends) plead facts that, if accepted, were capable of constituting valuable consideration for the agreement recorded in the July document. 63If her Honour's comment as to the basis on which the case had been conducted was meant to suggest that this was a case whereby the parties had acquiesced in a departure from the pleaded case (as, for example, was considered in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206), then the maintenance at the hearing of Mr Allen's submission that there was no pleading of consideration would tell against such a conclusion. More likely, what her Honour was there referring to was the fact that the question as to consideration for the agreement recorded in the July document was one that had been squarely raised at the hearing, having regard to the 'lack of consideration' defence pleaded by the cross-defendants and that the appellants had had every opportunity to argue the point. In those circumstances, the contention on appeal that the claim should have been dismissed on a pleading point (and that the judgment should now be overturned on that basis) is not one that in my view should be accepted.

[15]

Was the (implicit) finding as to consideration in error? 64Leaving aside the pleading point, the question is whether her Honour was in error in (implicitly) concluding that there was consideration for the agreement recorded in the July document and in (expressly) concluding that this operated as a variation of the Joint Venture Agreement, imposing an obligation for the $400,000 to be refunded on the failure of Mr Shen to obtain construction finance for the development. 65There is no doubt that payment of a sum in advance of the time such payment is otherwise contractually due is capable of constituting valuable consideration. In Pinnel's Case (1602) 5 Co Rep 117; 77 ER 237, it was accepted that (although acceptance of a security for a lesser sum cannot be pleaded in satisfaction of a similar security for a greater), payment and acceptance of part of a sum in advance of the date it was due, in satisfaction of the whole, would be a good satisfaction "in regard of circumstance of time". This was followed in Foakes v Beer [1884] 9 AC 605. 66The question here, however, turns on one of timing as to the so-called "refund" agreement. If payment of the sum of $350,000 in July 2010 (in advance of the contractual obligation to make that payment which accrued only on approval of financing), had already been made by the time an agreement was reached as to the circumstances in which it would be refunded, then (notwithstanding that in other circumstances an advance payment would be capable of constituting good consideration) the making of that advance payment would be past consideration by the time that the July document was signed. 67When viewing the question of consideration, the evidence seemed to throw up two possibilities (leaving aside the assertion, not accepted by her Honour, that the July document was no more than a receipt). 68First, that the $350,000 was paid (in advance of the time it was otherwise due) in consideration of a promise at that time (by Mr Shen, on his own behalf and on behalf of SAS) that this amount would immediately be repaid (by Mr Shen on behalf of SAS or by SAS) if construction finance was not obtained, and the July document simply recorded that agreement (whether it was signed at the time of payment or later). If that is the correct construction to be placed on the relevant events, then the July document would constitute a fresh agreement (enforceable on its own terms, whether or not it amounted to a variation of the Joint Venture Agreement) supported by good consideration (by reference to the early payment). 69Second, that the July document recorded an agreement reached after the payment of the sum of $350,000. If so, then it would be an agreement that was made with reference to past consideration and would fall foul of the well established principle that past consideration is not good consideration (Eastwood v Kenyon (1840) 11 Ad & E 438; 113 ER 482 ; Roscorla v Thomas (1842) 3 QB 234; 114 ER 496). 70(Mr de Meyrick submitted that the July document was not a stand-alone agreement (and was more appropriately to be classified as a variation of the Joint Venture Agreement) and that therefore it was appropriate to look at the agreement as a whole in order to determine whether there was consideration to make it enforceable. That, however, begs the question as to the enforceability of the variation itself. In that regard, Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 at [96], makes clear that fresh consideration is required to make valid an agreement varying another contractual agreement.) 71Her Honour accepted Mr Kerr's evidence as to the circumstances in which the July document was signed, in preference to that of Mr Shen (including, relevantly, that the $350,000 cheque was post-dated to 23 July 2010 to enable funds obtained from a Mr Fan to clear Mr Shen's account ([20])). In so doing, her Honour seems to have accepted that the July document was executed on 21 July 2010 when the cheque was given to Mr Shen. On those findings, the payment (in advance) of the $350,000 was good consideration for the agreement recorded in the July document. 72Mr Shen's evidence in cross-examination seemed to vary between the assertion that he signed the July document a week after its date (for example, Black 56.40, 57.C, Black 58.39) and the evidence at Black 60P that suggested that the receipt was signed at the time the cheque was given to him in his office. Mr Gao's evidence, as her Honour noted, was inconsistent with that of Mr Kerr in some respects but it was consistent with the proposition that the signing of the document took place at the same time as the giving of the cheque. 73I am not satisfied that her Honour's findings as to the circumstances in which the July document came to be executed have been shown to be incorrect. Accepting that part of the reason for rejection of Mr Shen's version of events appears to have been based on her Honour's view as to his credit, I am not satisfied that these findings were objectively inconsistent with incontrovertible evidence so as to warrant the conclusion that they should be overturned by this Court. 74It follows from the above that no error has been demonstrated in relation to the rejection of the defence based on lack of consideration for the July agreement.

[16]

Effect of July document 75Complaint is made by the appellants as to the entry of judgment against both Mr Shen and SAS for the $400,000, on the basis that there was no express determination as to the parties to the July agreement and that there was an available inference that Mr Shen signed on behalf of SAS and therefore was not personally a party to the agreement (Mr Allen referring to Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1988) 21 NSWLR 160). 76There is some tension between Mr Shen's evidence (that the payment of $350,000 was made to him personally in consideration, at least in part, for the issue of shares in SAS and hence was for his personal use) and the submission made on his behalf to the effect that there was an available inference that Mr Shen did not sign the July document on his own behalf, but it is not necessary, for present purposes, to do more than note the apparent inconsistency between those positions. 77In Clark Equipment, Giles J, as his Honour then was, (having considered what was said in National Commercial Banking Corporation of Australia Limited v Cheung (1983) 1 ACLC 1326; NEC Information Systems Australia Pty Limited v Linton (Wood J, 17 April 1985, unreported) and Scottish Amicable Life Assurance Society v Reg Austin Insurance Pty Limited (1995) 9 ACLR 909) concluded (at 174-175), that the proper approach in determining whether a signatory has assented to be personally bound is to ascertain the objective (not subjective) intention as to that issue, having regard to the construction of the document as a whole and the surrounding circumstances (to the extent to which evidence of the latter is permissible); the inquiry not being limited to consideration of the signature and its qualification, if any. (In that case, his Honour declined to find an intention that the directors were personally bound having regard to the form of the signing clause (which stated that one was signing for and on behalf of the company and the other as witness) in circumstances where: the same form of words had been used for a person who no one contended was personally bound; the addition of the common seal pointed to them having signed simply in their capacity as directors; and that the same form of words were used in a separate document where there was no provision for personal responsibility.) 78In the present case, there are a number of indications that support the conclusion that the parties' objective intention was that both Mr Shen and SAS should be bound by the 'refund' obligation. 79In the case of Mr Shen, the header to the document describes it as an "[a]greement between Quentin Kerr to Mr. Sean Shen" (albeit adding the words "in Joint venture Agreement") and the operative part of the text expressly refers to the payment to Mr Shen ("as investment fund to" SAS) and that "Mr. Sean Shen should refund" the money in the stated circumstances. 80In the case of SAS, the header to the document suggests that the agreement was one to be encompassed or treated as being "in" the Joint Venture Agreement (to which SAS but not Mr Shen was a party) and the typed execution clause referred to Mr Shen as managing director of SAS, which would be unnecessary if he were signing this document solely in a personal capacity (though there may be little weight to be attached to this, since Mr Kerr signed as managing director of Staralbert and there was no suggestion that Staralbert was a party to the July agreement). 81The most compelling indication that both Mr Shen and SAS were to be bound by the refund obligation is that Mr Shen signed the document twice (once above his name and once below the title of managing director of SAS). Although Mr Shen's evidence in cross-examination (the tenor of which, at least as it reads on paper, was somewhat vague) was that he had first signed the document in the wrong place under "Staralbert" and that is why he signed it twice (Black 59C-P), the determination as to whether a signatory has assented to being personally bound, as noted above, is to be made on an objective basis. 82I am not satisfied that her Honour was in error in finding both Mr Shen and SAS liable to refund the $400,000 in accordance with the agreement reached in July 2010. (Insofar as the agreement bound SAS but provided for the refund to be by Mr Shen, I would construe it as an agreement by SAS to cause Mr Shen to refund the said amount.) 83Accordingly, this ground of appeal fails.

[17]

Obligation to refund under Joint Venture Agreement alone? 84Mr de Meyrick also relied upon the finding that there was a breach of both the July agreement and the Joint Venture Agreement as supporting the orders ultimately made, whether or not a claim based on the July agreement alone should have succeeded. Strictly speaking, it is not necessary to consider this having regard to the conclusion reached above. Suffice it to note that the difficulty with this submission is that there was no obligation on SAS (let alone Mr Shen) under the Joint Venture Agreement to refund the sum of $400,000 (prior to termination of the joint venture) unless the Joint Venture Agreement was varied by the July agreement. 85Accepting, as I do, her Honour's finding (implicit in the finding of breach at [35]) that there was an implied obligation under the Joint Venture Agreement for SAS to apply the money required to be paid under clause 4 to the purposes of the joint venture, there would be a breach by SAS of that obligation if it received the money and used it for other purposes (for which a claim for damages - not a claim for the refund of the money - would lie). It was common ground that Mr Shen applied it for his own purposes. If the receipt by Mr Shen of the money was as agent or representative for SAS then SAS would be in breach of the implied obligation to use those funds for joint venture purposes and, on that basis, the finding of breach by SAS by reason of its failure to apply the moneys to joint venture purposes could be sustained. 86However, Mr Shen was not a party to the Joint Venture Agreement (unless, by signing the Supplementary Agreement, he somehow bound himself to more than an obligation to refund the $400,000 in the circumstances stated - a finding that was not made). Therefore, it is hard to see how Mr Shen could be said himself to have been in breach of an express or implied term of the Joint Venture Agreement as to the use of the moneys he had personally received (although it is arguable that he might have been in breach of duties as a director of SAS if his conduct caused it to be in breach of the Joint Venture Agreement or he might have had some liability for tortiously inducing a breach of contract in that regard - neither of which was a claim asserted by Mr Kerr). Nor did Mr Kerr plead any claim in unjust enrichment against Mr Shen (hence the finding that Mr Shen was unjustly enriched by the taking of that money and its application for his own purposes goes nowhere).

[19]

Conclusion 89As to grounds 1 and 2 of the appeal grounds, I consider that the appeal from the judgment against Mr Shen and SAS for the $400,000 should be dismissed. (ii) Claim for recovery of the sum of $145,854 withdrawn by Mr Kerr from SAS's bank account (Ground 3) 90At the hearing, this claim was put both as a claim in conversion and a claim for restitution. On appeal, there was no challenge to the finding on the conversion claim but it was maintained that Mr Kerr was liable to make restitution of this sum on the basis that Mr Kerr had no authority to withdraw the funds in question and was unjustly enriched by the receipt thereby. It was accepted by the appellants that Mr Kerr had deposited the sum of $122,050 from his personal moneys into SAS's account and that he had paid expenses of $23,808 on behalf of SAS. However, his authority to withdraw those amounts by way of repayment to himself was disputed. 91The primary judge noted that SAS had argued at the hearing that Mr Kerr was authorised under clause 3 of the Joint Venture Agreement only to draw cheques up to $10,000 and that any withdrawals had to be for the purposes of SAS and/or the joint venture. As to the former, her Honour did not accept that the contractual requirement to "inform all parties" in relation to cheques exceeding $10,000 was a requirement so to inform them before drawing such a cheque nor was it a requirement to obtain consent to such a cheque. I agree. As to the latter, her Honour found that Mr Kerr had voluntarily paid the sums comprising $145,854 (which were separate from the $1.4 million that he was contractually obliged to pay) in order to expedite the project and that the payments were loans repayable on call. Her Honour accepted that Mr Kerr was impliedly authorised only to draw cheques related to joint venture purposes but found that the repayment of loans he had made to SAS was such a purpose. The claims in conversion and unjust enrichment were not accepted ([49]). 92Emphasis was again placed by Mr Allen on the pleading, noting that Mr Kerr had not pleaded the making of loans on call but, rather, had pleaded (and had verified that pleading) that he had erroneously deposited this money into SAS's account (see [8] of the Amended Defence to Cross-Claim) (an inconsistency that he submits weighed against a conclusion that Mr Kerr's evidence should have been preferred to that of Mr Shen). Mr Allen also pointed to the evidence of the deposit slips written by Mr Kerr in relation to the payments making up the $145,854 which referred to "capital contributions" and to the obligations under the Joint Venture Agreement in clauses 4(b) and 21 as supporting the conclusion that these were moneys paid for joint venture purposes and not as loans. 93The timing of the payments comprising the $145,854 is consistent with the requirement to provide evidence of a bank balance to Nazero and the fact that construction expenses were being incurred at that time, which would support a conclusion that these were moneys provided for joint venture purposes (as seemed to be the thrust of the evidence from Mr Shen's solicitor, Mr Leamey at Black 99M). That said, it is by no means implausible that moneys provided to assist the joint venture could have been provided by way of loan (particularly if those were for the purpose of showing a positive bank balance, rather than for actual use as working capital). However, other than Mr Kerr's assertion, there is no evidence of this. 94It was submitted by Mr de Meyrick that there was nothing unlawful or improper in Mr Kerr refunding moneys to himself which he had paid from his own account into the joint venture bank account or had otherwise expended on behalf of the joint venture (a submission that somewhat begs the question as to the character of the moneys); that the obligation to provide working capital to the joint venture would not contractually oblige Mr Kerr to refrain from repayment to himself of moneys paid by him on behalf of the company (a submission that seems to me to have some force); and that the Joint Venture Agreement expressly gave him authority to make such a decision (a submission that is in my view correct). 95There was no claim for breach of directors' or fiduciary duties or breach of contract in relation to the withdrawals. As pleaded in the Amended First Cross-Claim ([9]), this claim was solely made by reference to the allegation that Mr Kerr took the money without the consent of SAS ([8]). Thus, the contention that Mr Kerr was unjustly enriched by withdrawing the money rested on the alleged lack of authority to do so (reference being made to s 198A of the Corporations Act 2001 (Cth) for the proposition that only the board of directors could give Mr Kerr such authority). 96Her Honour accepted that Mr Kerr was authorised to draw cheques on the SAS bank account. That finding is supported by reference to the terms of the agreement itself. I do not accept that clause 3 operated as no more than an administrative mechanism (akin to appointing someone as a mere signatory to a bank account) as was suggested by Mr Allen. SAS, under the Joint Venture Agreement signed on its behalf by Mr Shen, was authorising Mr Kerr to act on its behalf when signing cheques. It expressly provided for "joint venture" cheques to be signed by him. Whether or not Mr Kerr had done so in breach of an implied term of the Joint Venture Agreement (i.e. for a purpose otherwise than that of the joint venture) was not the contention. 97Therefore, whether or not her Honour was correct in concluding that these moneys had been the subject of a loan by Mr Kerr (which would not be inconsistent with money deposited merely for the purpose of artificially inflating the bank balance) or they were, as Mr Allen contends, a capital contribution to the joint venture, the withdrawal of the moneys from the account was prima facie authorised under the Joint Venture Agreement. In order to succeed in a claim of unjust enrichment SAS was required to show that the retention of the moneys was unjust. I am not persuaded that it has been shown that the withdrawal of the moneys led to an "unjust" enrichment of Mr Kerr and hence I am not persuaded that her Honour erred in dismissing this claim. This ground of appeal is not made out. 98(In passing I note that even if the July document was unenforceable for lack of consideration and did not operate to vary the Joint Venture Agreement, on the ultimate failure of the joint venture Mr Kerr might well have had a claim for the refund of the moneys deposited by him into the SAS bank account, by way of recovery of his initial contribution to the joint venture, applying the principles articulated in Muschinski v Dodds by Deane J at pp 618-620, assuming it could be said that the consensual joint relationship or endeavour had failed without attributable blame. Those principles have been recognised as being at least potentially applicable in relation to commercial joint ventures - see Liquor National Wholesale Pty Limited v The Redrock Pty Limited [2007] NSWSC 392 at [42]. No such claim was before her Honour and it is not clear how from a practical point of view the principles might have applied in relation to the particular circumstances of the SAS/Mr Kerr joint venture. Nevertheless, it provides an indication that, on a wash-up of the joint venture, there may have been no injustice in Mr Kerr being refunded these moneys.) (iii) Failure to give adequate reasons (Ground 4) 99The complaint raised by this ground of appeal relates particularly to the credit findings made by her Honour (although there is also a complaint as to the adequacy of reasons for her Honour's dismissal of the claim by Mr Shen that Mr Kerr was estopped from asserting that the Joint Venture Agreement had been varied by the July document). 100For Mr Kerr, it is submitted that the conclusions as to the rejection of the claims with respect to the $145,854 and the alleged breach of the Joint Venture Agreement by the failure to provide the sum of $1 million clearly turned on legal principles and the construction of the Joint Venture Agreement, not credit findings. I agree. The findings as to the $400,000 payment, however, involved a rejection of Mr Shen's evidence and this was seemingly based at least in part on his credit. 101The relevant observations or findings by her Honour as to credit were as follows. At [14], her Honour expressed the view that she had no confidence in the veracity of Mr Shen's evidence and that most other witnesses were "moderately reliable". At [15] her Honour noted that she had formed the view that Mr Kerr was a "far more reliable" witness than Mr Shen. Her Honour rejected the allegation by Mr Shen that another witness (Mr Yu) was biased against him ([16]) and said that she harboured doubts about the reliability of Mr Gao (who was described as a cavalier witness). Her Honour preferred Mr Kerr's evidence to that of Mr Gao in relation to the $400,000, though accepting parts of Mr Gao's evidence. 102Her Honour stated, albeit briefly, her reasons for reaching the conclusions that she did in relation to Mr Shen's evidence (her observation of him as a witness that was less than forthcoming, in that there were many occasions when she considered that he had prevaricated and appeared to be avoiding a frank response to questions; her disbelief as to evidence given by Mr Shen on what is said by Mr Allen to have been a collateral issue; her acceptance of Mr Yu's evidence that Mr Shen had asked him to "make a false evidence to accuse" Mr Kerr; and the fact that Mr Shen had been prepared to engage in deceptive conduct in relation to the attempt to obtain financing for the project ([14]). 103In relation to Mr Kerr, her Honour expressed an opinion as to the reason he had been agitated in the witness box; did not accept the criticism made as to omissions from his affidavit; and expressed the view that in general he was a believable witness though referring to two significant shortcomings in his evidence (evasiveness as to the capacity to source the $1 million when required and the fact that he may have been involved in the plan to deceive the financier as to the pre-sales)([15]). 104The Court of Appeal, in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (applied recently by Bergin CJ in Eq, with whom Tobias AJA agreed, and by McColl JA in CEVA Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46), considered the circumstances in which a miscarriage of justice may occur having regard to the inadequacy of reasons. There, the judicial assessment of the appellant's credibility was critical to the case. (Here, while the determination of the dispute in relation to the $400,000 payment was one which required assessment of the conflicting versions given as to the events of mid 2010, it was a finding that could have been made without much, or any, reliance on credit findings - simply on the basis that Mr Kerr's version of events as to the $400,000 was more consistent with the documentary evidence and the course of the transaction.) In Beale, the Court of Appeal ordered a re-trial on the basis that the reasoning process exposed by the trial judge left the appellant with what was referred to by Mason P as a justifiable sense of grievance. Relevantly, there, the appellant's evidence was significantly corroborated by three witnesses whose evidence was accepted and it was held that the statement of reasons did not expose any logical reasoning process behind the credit findings. 105Meagher JA there accepted that the content of an adequate statement of reasons would depend on the particular circumstances of the matter being considered by the court (referring to statements to that effect by Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728 and McHugh JA, as his Honour then was, in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281). In Mifsud, Samuels JA noted that: It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. 106Meagher JA went on to say, at 443: Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). 107In the present case, reasons were given for the credit findings challenged by Mr Shen. It is contended that those reasons were not sufficient to warrant the conclusion that her Honour reached. Notwithstanding the criticism made of one or more of the reasons articulated by her Honour, there were matters that objectively supported the conclusion that Mr Shen's account of the events leading up to the July document should not be accepted (in particular, his acknowledgement in September 2010 that the shares were issued without consideration for finance purposes). 108It was not necessary for her Honour to address each and every piece of evidence in setting out her reasons. To do so in each case would be an unnecessary, if not impossible, task. Her Honour's conclusion in rejecting the evidence as to the $400,000 could in my view have been reached without coming to the finding of fabrication (simply on the basis that Mr Kerr's account was the more credible). 109Mr Allen criticises the finding that Mr Kerr was a more reliable witness by reference to objective conflicts identified in Mr Kerr's evidence (said to warrant an inference of recent invention) and the conflict between Mr Kerr's evidence and Mr Gao's evidence (which her Honour took into account, though preferring Mr Kerr's evidence on the relevant issue). He also criticises the view formed by her Honour as to Mr Kerr's "agitated" demeanour. 110In relation to the first of those matters, Mr Allen handed up on appeal a schedule of evidence said to have been given for the first time in cross-examination (from which an inference of recent invention was said to be available): namely, evidence that Mr Shen had told Mr Kerr he did not have a bank account and that this was the reason why the $350,000 cheque had to be paid to Mr Shen; that the 15 August 2010 email was not approved and sent by him, despite evidence that he at times used his wife's email account; that he had post-dated the "23 July 2010" cheque; that he saw Mr Shen read the receipt; the reason he continued to deposit money into SAS's account when he knew the $350,000 had not been paid into that account; and that the conversation, when the receipt was signed, was in Chinese. It is submitted by Mr Allen that there was no evidence that would support any finding that the reason for omissions from his affidavit evidence in chief was that Mr Kerr may have overlooked or not appreciated the significance of particular evidence. Her Honour, however, had the benefit of hearing the cross-examination on those matters and was in a position to take into account the witness' response thereto. 111Her Honour was (not unreasonably in my view) critical of the affidavit evidence on both sides of the record. The fact that matters had emerged for the first time in oral evidence could well have been a function of the manner in which affidavits were prepared. There is no suggestion that her Honour treated the state of Mr Shen's affidavit evidence in this regard in any different fashion from that of Mr Kerr. At least from a reading of the transcript of the main witnesses, her Honour's criticism of the manner in which evidence was given was not in my view unwarranted. 112As to the criticism made of her Honour's observation that Mr Kerr was agitated because he perceived that he had been wronged, Mr Allen submits that this Court can be sceptical about findings based on demeanour (citing Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 197; (2006) 66 NSWLR 186). However, such scepticism does not require this observation by her Honour to be read as a finding as to Mr Kerr's mental state, as such. Rather, it seems to me a conclusion of a kind that would be open to a trial judge to draw based on his or her observations of the manner and way in which questions were answered by a witness in the witness box. True it is, that her Honour does not refer to any particular parts of Mr Kerr's evidence to support that conclusion. However, a review of the transcript in my view provides some basis for such a conclusion. (See, for example, and without being exhaustive, Black 105S; 114D; 117C-K; 119B and her Honour's observation that Mr Kerr was upset at Black 123M.) 113Mr Allen submits that the witnesses' credit had to be determined in the context that Mr Shen gave evidence with the occasional assistance of an interpreter and that Mr Kerr was "much more proficient having received a PHD from the University of Queensland". Insofar as the assessment of the witnesses turns on matters such as that, her Honour was far better placed to assess the manner in which evidence was given and the comparative ease or difficulty of understanding exhibited by the witnesses in the witness box. Mr Leamey's evidence suggested that both Mr Shen and Mr Kerr were capable of communicating in English (Black 99V), that being the basis on which he did not consider it necessary to have the assistance of an interpreter at his meeting with them. I am not in a position to assess the extent to which, if any, Mr Shen's language difficulties might have led to her Honour's conclusions save to note that her Honour seemed to base those conclusions not solely on the manner of his evidence in the witness box. 114Complaint is made that there was no mention (presumably no mention as to their reliability as witnesses) of two witnesses called in SAS's case (Mr Younan from Nazero and SAS's solicitor, Mr Leamey). Her Honour did not, however, need to comment on the credit of each and every witness. 115I accept, as Mr Allen submits, that it does not follow that because a witness is disbelieved on particular matters he or she ought to be disbelieved on all matters (Mr Allen citing Steinberg v Federal Commissioner of Taxation [1975] HCA 63; 134 CLR 640 at 695, Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 80 at 136 [100]; Australian Securities and Investment Commission v Hellicar [2012] HCA 17; 286 ALR 501 at [232]). However, as I read her Honour's general conclusions as to the witnesses, what is there being expressed is a lack of confidence in the truth and reliability of Mr Shen's evidence in general but not a conclusion that in all matters his evidence should be rejected without taking into account other evidence in relation thereto. Rather, the thrust of what is being said is that Mr Shen's evidence should be approached with some caution and that, where there was a conflict between his evidence and that of other witnesses, it was more likely that her Honour would find the latter more credible. 116The critical credit finding in relation to the July document was at [30]. Mr Allen emphasises the seriousness of a finding that evidence has been fabricated and points to evidence to which her Honour did not refer in this paragraph that he submits should have been dealt with by her Honour before making that finding (such as the evidence of what was said at the time the July document was given to Mr Shen). I do not repeat the submissions made by Mr Allen as to the evidence that are said to show that Mr Shen's case (that the cheque was given to him on 23 July 2010 and that the July document was signed on 28 July 2010 without him reading it) was arguable or that Mr Kerr's evidence should have been disbelieved. I am not satisfied that her Honour erred in these findings. 117It is submitted by Mr de Meyrick, and I agree, that findings as to the entitlement to a refund of the $400,000 are sustainable on the basis of the written wording of the Joint Venture Agreement and July document (reinforced by Mr Shen's own written communication in September 2010), without reliance on issues of credit. 118The circumstances in which findings based on credibility assessments may be found to be erroneous are well established (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 per Gleeson CJ, Gummow and Kirby JJ at [28]; as further explained by Kirby J in CSR Ltd v Della Maddalena (2006) 224 CLR 1 at [19]-[21]). More recently, in Nominal Defendant v McLennan [2012] NSWCA 148, Beazley JA (as her Honour then was) confirmed at [141] that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside simply because an appellate court thinks that the probabilities of the case are against (or even strongly against) that finding of fact; it being necessary for it to be shown that the trial judge "has failed to use or has palpably misused his (or her) advantage" (her Honour there citing Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479). 119I do not accept that her Honour's findings as to the $400,000 payment (or the $145,854 withdrawal) were improbable, nor were they inconsistent with incontrovertible evidence, so as to support the proposition that there was a misuse by her Honour of (or failure to use) the advantage that her Honour had in assessing the witnesses before her. With one qualification (that being the dishonesty finding) I consider that adequate reasons were provided for the general credit findings made. This is not a case, such as Beale or CEVA, where any inadequacy in her Honour's reasons as to those findings warrants the setting aside of the decision. 120The vehemence of the complaint by Mr Shen to the credit findings made against him, as I understand the submissions by his Counsel, was (as indicated earlier) as to the findings of fabrication. The plurality in Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 considered that, unless it was truly necessary for the purpose of disposing of the particular case, a specific finding that deliberately false evidence had been given should not ordinarily be made. Having regard to the difference between the rejection of a person's evidence and a finding that he or she deliberately lied, the dishonesty finding in the present case was not in my view necessary. The findings made by her Honour could have been made without resort to a finding as to dishonesty. While Mr Allen submitted that, if a rehearing was required, it was arguable that Mr Shen would succeed, I am not satisfied, on the material before this Court, that any different finding would have been made in the absence of the finding of dishonesty. 121As to the particular finding on estoppel (as to which it was said to have been unclear how, if at all, it was based on the credit findings), this was a finding that necessarily followed from a rejection of Mr Shen's evidence as to the circumstances in which the July 2010 document was signed. No error has been demonstrated in that finding. As to the balance of the matters to which it was said her Honour should expressly have had regard (such as the allegation that the agreement was partly oral), her Honour's conclusions (such as those in relation to the share consideration argument) necessarily encompass a rejection of the matters for which Mr Shen contends. 122I am not satisfied that an inference can be drawn that there was a failure by her Honour to give proper consideration to the evidence before her nor am I satisfied that the credit findings against Mr Kerr have worked a substantial miscarriage of justice. Rule 51.53 of the Uniform Civil Procedure Rules 2005 (NSW) provides that a new trial must not be ordered on any ground unless it appears to the Court that some substantial wrong or miscarriage has been occasioned. I would dismiss this ground of appeal. (iv) Claim by SAS for reliance damages (Ground 5) 123Ground 5 of the appeal grounds raises the question as to whether SAS was entitled to damages because of the failure of Mr Kerr to provide the $1 million and working capital for the joint venture (relying upon the fact that Mr Kerr had treated the joint venture as at an end from 27 August 2010 and had failed to meet the September demands for the payment of the $1 million). It is contended in submissions that the primary judge erred in not holding that Mr Kerr had wrongfully repudiated the joint venture agreement and in finding that SAS was not entitled to reliance damages. 124As set out in the submissions served on its behalf, SAS's case was that Kerr failed to provide $1 million in order to discharge the NAB mortgage "as he wrongfully repudiated" the Joint Venture Agreement (which repudiation it is said was accepted), as a consequence of which SAS claimed it was entitled to damages quantified at $254,873.55. (The submissions go on to assert a failure by Mr Kerr, by 2 November 2010, not only to provide the $1 million but also to provide working capital in compliance with clause 21 of the Joint Venture Agreement and to repay the sum withdrawn from the company bank account.) 125The damages claimed for breach of this obligation were in the sum of $254,873.55, comprising: the sum of $130,000 paid to Nazero; a further sum of $117,483.55 said to be payable to Nazero; and the sum of $7,390 paid to a quantity surveyor. Mr de Meyrick submits that those so called "losses" were not established to be "losses". The first two components were progress payments to Nazero. Mr de Meyrick points to evidence of Mr Shen and Mr Younan confirming that substantive improvements had been made to the development site in consideration for these payments, and submits that the benefit of those improvements has been retained by SAS such that no loss has been demonstrated in respect of those amounts. As to the claim for $7,390.00 for a quantity surveyor, Mr de Meyrick submits that there was no evidence led to prove that this expenditure was "wasted" such that it might attract an award of damages. At [43], her Honour found that SAS had not established whether and to what extent the expenditure on stage 1 of the project had been wasted. Mr de Meyrick submits that this finding should not be disturbed. Hence, it is submitted that even had her Honour found there to be a breach of the Joint Venture Agreement by reason that Mr Kerr had failed to provide the sum of $1 million, no loss or damage had been established as a result. 126Insofar as Mr Allen's submissions raise the issue of repudiation, Mr de Meyrick points to the fact that the primary judge expressly rejected an attempt by the appellants to amend their pleadings during submissions to include an allegation of repudiation (Black 204W to 206W) and notes that the pleaded case was that Mr Kerr had breached an obligation to provide $1 million to discharge the existing mortgage, leading to the venture failing, and a claim for loss and damage as a result. 127Her Honour dismissed the claim in relation to the failure to provide the $1 million on the basis, as appears from [41], that, as SAS did not obtain approval for development finance, Mr Kerr was never "put to the test" in relation to the obligation to provide the $1 million. In other words, her Honour found that the event on which the obligation to discharge the mortgage would have arisen had not occurred. There is nothing to suggest that this finding was incorrect. 128The Joint Venture Agreement made clear that the purpose of the $1 million payment was to enable the discharge of the NAB mortgage. (The words "or fund to start construction" must be read as meaning that the discharge of the mortgage was to enable that to occur, as the subsequent reference to the $1.4 million payment made clear.) "At necessary time" must be read in that context. There is no evidence that discharge of the NAB mortgage was necessary at any time prior to 2 November 2010 (when the Joint Venture Agreement was terminated by resolution of the directors of SAS) for the purposes of enabling construction to start or finance to be obtained. It was certainly not a condition even of the progression of the finance application for credit assessment (as opposed to something that would later become necessary as a condition of the then proposed finance facility assuming that was eventually approved). 129No error has been demonstrated in her Honour's finding that there was no breach of the obligation to pay the sum of $1 million. It is not necessary to consider the argument that Mr Kerr wrongfully repudiated the Joint Venture Agreement in the correspondence issued by his lawyers in September 2010 (since no claim in repudiation was pleaded). This ground of appeal therefore fails.

SAS Realty Developments Pty Ltd v Kerr

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (27)

Cited By (16)