Songshan Guo v Option Holdings Pty Ltd

Accord and satisfaction agreed?

1. It is not in dispute that, unless an accord and satisfaction is found, Option Holdings and Mr Cao are in default of the loan agreement and the guarantee. I do not accept that Option Holdings and Mr Cao can prove an agreement of accord and satisfaction for the following reasons.
2. An agreement of accord and satisfaction requires: 1. An agreement to resolve a genuine dispute between the parties, otherwise it fails for want of consideration; and 2. A clear intention by Mr Guo to release Option Holdings and Mr Cao from his claims in consideration of the payment agreed: see eg Ashton v Pratt (2015) 88 NSWLR 281 at [172]-[174] (Bathurst CJ, McColl and Meagher JJA agreeing).
3. Mr Cao cannot demonstrate either element for such an agreement. There was no dispute between the parties as at August 2022. Instead, the loan was simply in default. There was no challenge to its existence of validity.
4. Secondly, Mr Guo had no intention to release Option Holdings and Mr Cao for the following reasons.
5. The various versions of events by witnesses can be summarised as follows. It is not in dispute that Mr Guo and Mr Cao did not communicate directly in relation to the loan agreement and its payment. Instead, Ms Man and her former husband, Mr Lin (Daniel) Man, conveyed communications to and from Mr Guo and Mr Cao.
6. Originally in 2016, Ms Man approached Mr Guo for Mr Cao who was seeking a loan of $1 million. However, Mr Guo engaged solicitors for the 2021 loan agreement, without the assistance of Ms Man. The loan agreement was negotiated by Mr Guo and Mr Cao's lawyers, and Ms Man had never seen that agreement before giving evidence.
7. On 7 July 2022, Mr Guo's solicitors demanded repayment of the outstanding loan amount that was due on 31 December 2021, and threatened that Mr Guo may give them instructions to enforce his securities.
8. On 29 July 2022, Mr Cao sent Mr Man some WeChat messages, including: … I could make available some 500,000 to repay you … and for more you really need to wait for me… … the other thing is if the 500,000 is repaid to you, can I ask, if it is possible that you just retain the caveat on the two properties in town, the mortgage that is? And is it possible that the unit of ours at … could be transferred back to us or what. Because these two properties would be enough for the several hundred thousand in any case.
9. These messages appear consistent with Mr Cao accepting that he was liable for the full debt, but asking to pay $500,000 first, while also allowing Mr Guo to retain the caveats over the properties to protect his entitlement to a further $600,000 due.
10. Mr Man's response to Mr Cao was, "No. I could not agree with each of the comments you made".
11. Mr Man's evidence was that, because he did not agree with Mr Cao, Mr Cao then approached Ms Man, with whom he now claims he reached an agreement to settle the debt in a conversation on 12 August 2022. His version of the conversation is as follows: Ms Man: My family really need you to return some capital now. Mr Cao: My cashflow is really tight right now since none of my development projects are running as good as expected and the market conditions are also not good. If we can close off the deal right now, I can arrange for $500,000 to be paid to your father straight away. If we can close of the deal now, based on our friendship, I will make it up to your father when any of my future projects are fruitful. Ms Man: I understand where your position, but I will have to discuss your proposal with my family first.
12. Shortly thereafter he received from Ms Man a WeChat voice message: Hey, I've discussed with [Daniel Man], that's not a problem for the 50. Everyone knows that no one is easy, including him and you, well, then how much for the rest and what time … you two can communicate separately. …
13. The highest Mr Cao's alleged agreement rises is his alleged statement that he wanted to "close off the deal", which was then allegedly agreed by Ms Man with Mr Guo's authority. However, I do not accept that Mr Cao said those words, in circumstances where his evidence is inconsistent with all the other evidence. Ms Man was not asked whether Mr Cao said those words. I also prefer her evidence, which consistently referenced further payments after payment of the $500,000, which is also consistent with Mr Man and Mr Guo's evidence.
14. However, even if Mr Cao did say those words, I do not accept that the proper construction of the communications proves an agreement as alleged. Ms Man was not agreeing to Option Holdings and Mr Cao having no further liability. She clearly refers to "the rest", which is inconsistent with the whole debt having been forgiven.
15. Further, Mr Guo denies he agreed to extinguish the whole debt for $500,000. His evidence is that his conversation in about July or August 2022 with his daughter was: Ms Man: Father, I spoke to Hao Cao recently about the money owed to you. He said that he is going to repay $500,000 to you first. After that he will try his best to repay the balance as soon as possible. Is that ok with you? Mr Guo: Yes, let him pay $500,000 now. And ask him to pay the balance quickly. Ms Man: Ok, I will let Hao Cao know.
16. He was not relevantly challenged on his evidence, and I accept it. He had no intention to forgive the debt or to authorise Ms Man to do so. There is no reason to think that Ms Man communicated something different to Mr Cao.
17. Ms Man did not resile from her statement in the WeChat message when giving evidence in cross-examination. Her evidence was that during the July or August 2022 discussions with Mr Cao, she relayed to him that Mr Guo said that Mr Cao "need[ed] to return at least some of the amount first". Ms Man further asserted that Mr Cao "promised … that he will pay … the left amount", and that she "replied to [Mr Cao that] we accept the first amount, and then for the others we have further discussion".
18. Further, if Mr Guo had intended to extinguish the whole liability pursuant to the loan agreement and guarantee, I consider he would have documented it. All of the dealings Mr Guo had with Mr Cao were formally documented and signed: see Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605 at [18] (Bathurst CJ), [78]-[79], [84], [87] (Beazley P), [160]-[161] (Meagher JA). Mr Cao's own evidence was that he would not "just simply pay someone half a million dollars without asking for anything in [return]". However, the more logical reason for the lack of any written agreement was that Mr Cao was simply paying down the loan sum and asking for further time to pay the remainder. This is also consistent with the express terms in the loan agreement, that indicated that if Mr Guo granted Option Holdings an extension of time to perform its obligations, that did not impact on Mr Cao's obligations as guarantor, and that any variation or termination of the loan agreement was required to be in writing.
19. I do not accept, in those circumstances, that Mr Guo agreed to some oral, non-binding "gentleman's agreement" to forgive the outstanding debt. Mr Guo did not understand that phrase and was not asked about whether he agreed to that sort of arrangement with Mr Cao.
20. Further, Mr Cao was an unimpressive witness. Much of Mr Cao's non-responsive, loquacious evidence in cross-examination had not been included in his affidavits, even though he had prepared an affidavit as late as the first day of the hearing with the assistance of solicitors and counsel. For example, orally he asserted that there were other agreements or arrangements that he considered meant he was not required to pay more than $500,000 towards the loan. However, none of those matters were put to Mr Guo or Ms Man, and none of those other agreements or arrangements were in evidence. After some hesitation, Mr Cao's evidence changed and he accepted that he had only paid the sums identified by Mr Guo towards the borrowed sums, leaving a balance of $759,183.60.
21. Mr Cao also appeared deliberately argumentative and dishonest with his answers, or at least careless. For example, Mr Cao originally volunteered that he had not received legal advice about the 2021 loan agreement and guarantee, when in fact there was clear evidence that he had been legally represented in the negotiations around those documents. When that matter and other inconsistencies in his evidence were pointed out to him, he reverted to saying he could not recall any details or that he did not have the time and energy to properly prepare his case.
22. Mr Cao was also adamant that he was in a good relationship with Mr Guo and Ms Man until October 2023, when he realised he was "at war" with Mr Guo, because he received his letter of demand. However, I do not accept his evidence that until that time, he considered the outstanding loan sum had been settled pursuant to an oral agreement in August 2022. Such evidence is inconsistent with the other evidence.
23. For example, in August 2023, Mr Cao had signed a binding financial agreement with his former spouse, Ms Du, in which he had listed his liability as a guarantor for Option Holdings' loan for the sum of $1,300,000, but indicated it was "disputed subject to negotiation". This indicates that Mr Cao considered he was in "negotiation" about that debt, rather than it not existing. Further, in circumstances where he was advised by lawyers for his family law proceedings and these proceedings, it is incredible that there is no documentary evidence of Mr Cao challenging his liability to Mr Guo on the basis of an oral August 2022 agreement before September 2024.
24. Mr Cao also appears to have admitted his liability to Mr Man in October 2023. For example, on 13 October 2023, Mr Cao left Mr Man a voice message: … with respect to the several hundred thousand you have left, in fact you do not need to rush, and with the Caveat on the two properties of mine, it would make just enough for your matter of five to six hundred thousand right. Then you just give me some time, I can only start again by make money from … okay. I will salvage the project if it can be salvaged and if not I could just continue, continue working, and continue making money.
25. Based on my rejection of Mr Cao's evidence where it is inconsistent with Mr Guo and Ms Man's evidence and the other documentary evidence, I do not accept that Mr Cao has discharged his burden of proving on the balance of probabilities that Mr Guo authorised Ms Man to orally agree to extinguish the debt owing under the loan agreement and guarantee in return for $500,000.
26. Instead, all that was being discussed was an extension of time for Mr Cao and Option Holdings to pay the outstanding debt. In any event, part payment of a debt is not good consideration: Foakes v Beer (1884) 9 App Cas 605. Nothing was proffered by Mr Cao to extinguish the existing liability. Payment of $500,000 together with a vague unenforceable promise to pay something in the future is not good consideration to discharge a debt of close to $1.2 million.
27. I do not accept that Option Holdings and Mr Cao have any defence to the claim in relation to the breach of the loan agreement and guarantee. Therefore, the issue is whether, in addition to the declaration sought by Mr Guo concerning the debt, I ought to make orders for judicial sale of the properties, also having regard to Ms Du's allegations.

Should judicial sale be ordered?

1. I accept that pursuant to the terms of the loan and guarantee, Mr Cao is liable to indemnify Mr Guo for Option Holdings' obligations under the loan agreement, including the repayment of money owed. I also accept that Mr Cao granted Mr Guo a charge over his 50% interest in the properties.
2. Until closing submissions, Ms Du resisted a sale of the properties, asserting that her 2023 BFA with Mr Cao gives her priority ahead of Mr Guo to Mr Cao's interest in the properties. However, orally, Ms Du's solicitor accepted his client's position is difficult. In fact, Ms Du's submission is misconceived. By reason of the BFA, Ms Du has an equitable interest in Mr Cao's half interest in the properties, commensurate with her entitlement to seek specific performance of that agreement. However, Mr Guo's equitable charge over Mr Cao's interest in the properties arose in February 2021, some two years earlier and it takes priority. Ms Du is only able to obtain Mr Cao's interest in the properties, subject to Mr Guo's charge.
3. Despite her submission to the contrary, I also consider Ms Du was aware of Mr Guo's interest, because it was disclosed by Mr Cao in their agreement, and her lawyers searched the legal titles of the properties and discussed them with her. There is no reason to believe that her lawyers would not have discussed Mr Guo's caveat.
4. At most, Ms Du has an equitable interest over the properties, but Mr Guo's equitable charge is the better and earlier equity and must take priority with respect to both properties. Should it be appropriate for a judicial sale order, Ms Du would be entitled to enforce the BFA against Mr Cao for any proceeds remaining after Westpac and Mr Guo's debts have been paid from his share. Ms Du does not live in either of the properties. Therefore, I do not consider Ms Du has provided any valid reason as to why a judicial sale ought not be ordered immediately.
5. I note that until the commencement of the proceedings, Option Holdings and Mr Cao also defended the case on the basis of the operation of the BFA.
6. Westpac, as registered mortgagee, submits to the orders of the Court, as noted.
7. It is unclear on the authorities as to whether an equitable chargee is entitled to an order for judicial sale as of right, or whether the Court retains a discretion to withhold relief: see the discussion of authorities in Bellevarde Constructions Pty Ltd v Cosmas Pty Ltd [2016] NSWSC 406 at [25]-[35] (Stevenson J).
8. I consider the better view is that the power to order a judicial sale of Torrens land upon default arises from the Court's inherent equitable jurisdiction, and when considering whether to order judicial sale, the Court is exercising a discretion: Morris Finance Ltd v Free (2017) 18 BPR 37,223; [2017] NSWSC 1417 at [34] (Ward CJ in Eq, as the President then was). It may be that judicial sale is the standard remedy sought by an equitable chargee to enforce their equitable interest: Thorn v Boyd [2016] NSWSC 1344 at [64] (Sackar J). However, as an equitable remedy, the Court ought to have regard to the position of those who will be adversely affected by an order before making it, lest the remedy itself become "an instrument of injustice": Australia and New Zealand Banking Group Pty Ltd v Donnelly [2012] NSWSC 161 at [29]-[30] (Garling J), discussed with approval in Harriette & Co Pty Ltd v Platine Property Development Pty Ltd (No 2) [2022] NSWSC 1611 at [43] (Walton J) and ACT Plasterboard Pty Ltd v Pohorukov [2024] NSWSC 218 at [15] (Peden J).
9. Consistent with this view, Campbell J (as his Honour then was) observed in King Investment Solutions Pty Ltd v Hussain (2005) 13 BPR 25,077; [2005] NSWSC 1076 that "without factual material by reference to which the discretion can be exercised, which includes at least the value of the property and the amount owing on the security of it, the exercise of the discretion itself is likely to miscarry": at [119]; see also [100]-[101].
10. The parties have agreed on market appraisals giving the Pitt Street property a valuation of between $1.45 million and $1.55 million and the Sussex Street property a valuation of between $1.25 million and $1.35 million.
11. Also in evidence are loan statements from St George Bank, which established that as at 2 December 2023, $1,397,734.69 was owing under Westpac's first registered mortgage over the Pitt Street property, and that $676,978.49 was owing under Westpac's first registered mortgage over the Sussex Street property as at 9 February 2024. There is therefore likely to be sufficient equity in both properties to repay Westpac's debt, but not Mr Guo's debt from Mr Cao's share.
12. As for the appropriate form of order, Mr Guo submits that there should be a judicial sale out of Court, rather than a judicial sale in Court which would involve appointing trustees for sale and paying the proceeds of sale into Court for the Court to administer: see AJG Capital Pty Ltd v AJG Properties Pty Ltd (in liq) (2010) 15 BPR 28,837; [2010] NSWSC 884 at [1] (Slattery J).
13. Mr Guo proposes that he be appointed by the Court to sell the properties. I accept his unchallenged evidence that he will appoint a suitably qualified real estate agent, advertise the properties "properly, in accordance with professional advice", and use his best endeavours to sell the properties "for the best price which is reasonably achievable". He has no criminal convictions. He would prefer to avoid the costs of appointing an independent trustee, so the proceeds of sale are maximised for both himself and Ms Du.
14. Mr Cao and Ms Du oppose Mr Guo's appointment as trustee. However, the only criticisms they raised in oral closing submissions were that Mr Guo is elderly, in poor health, lives overseas, and does not speak English. However, for the following reasons, I consider it appropriate to appoint him, in effect as trustee for sale: 1. He was not challenged on his fitness for the role in cross-examination, nor was any evidence produced as to his want of fitness. I do not accept that his age, health, and language skills automatically mean he is not a fit and proper person to undertake the responsibilities that would be imposed upon him. Further, I accept Mr Guo's evidence that he intends to engage relevantly qualified real estate agents and lawyers to assist in the sale process. He has demonstrated that he has no difficulty engaging with the legal process and complex legal contracts, even where they are in English. 2. I reject Mr Cao's suggestion that the appropriate trustee would be Ms Du, in circumstances where she had never sought that role, and her interest in the properties is equal to that of Mr Guo. While Ms Du's solicitor orally, in closing, suggested she might be prepared to act as trustee or joint trustee, there is no evidence from her as to her fitness and experience for such a role, and Mr Guo was not on notice to be able to challenge her appointment.
15. Further, Option Holdings and Mr Cao seek that they be given an opportunity to satisfy any judgment sum that they are ordered to pay, before any relief such as judicial sale is granted to Mr Guo.
16. In circumstances where Mr Cao and Option Holdings have not repaid the full debt due on 31 December 2021, nor paid any sum since August 2022, I do not consider that they ought to be granted any time now comply with their longstanding obligations.
17. None of the defendants resist the proposed priority for the distribution of the proceeds of sale put forward by Mr Guo, and I consider them generally appropriate and in accordance with the reasons given.

Costs

1. Option Holdings and Mr Cao did not make any submissions against Mr Guo being entitled to indemnity costs for the costs of enforcing the loan agreement and guarantee in accordance with the terms of those agreements.
2. I consider it appropriate to make the orders sought by Mr Guo to enforce as he sees fit.
3. Mr Guo also seeks an order that Ms Du pay his costs on an indemnity basis. I am prepared to make such an order in circumstances where Ms Du's defence was clearly untenable and unsupported by law. Further, after the commencement of proceedings, Ms Du issued a lapsing notice in relation to Mr Guo's caveats on the properties. Yet, at the hearing of Mr Guo's application to extend them, she brought forward no evidence or cogent argument as to why they ought not be extended. I accept that Ms Du has acted unreasonably in the proceedings and an appropriate exercise of the Court's discretion is that she pay Mr Guo's costs on an indemnity basis.

Orders

1. I make the following orders: 1. A declaration that the whole of the properties at: 1. xxxx/xxx Pitt Street, Sydney in the state of New South Wales, being the whole of the land contained in folio identifier 6/SP60341 (Pitt Street Property); and 2. xxx/xxx-xxx Sussex Street, Sydney in the state of New South Wales, being the whole of the land contained in folio identifier 101/SP53413 (Sussex Street Property); are each subject to a charge securing payment to the plaintiff of all amounts owing pursuant to the Commercial Loan Agreement (2021 Loan Agreement) and Deed of Guarantee (Guarantee) between the plaintiff, the first defendant and the second defendant entered into and exchanged on 3 February 2021. 1. Order that each of the Pitt Street Property and the Sussex Street Property be sold by the plaintiff in such a manner as the plaintiff thinks fit. 2. Order that the plaintiff is to act at all times in relation to the sale of the Pitt Street Property and the Sussex Street Property in accordance with the duties owed by a mortgagee exercising a mortgagee's power of sale. 3. Order that the plaintiff be appointed to transfer the Pitt Street Property and the Sussex Street Property to any purchaser(s) to effect the sale of the properties. 4. Order that, prior to any sale of the Pitt Street Property or the Sussex Street Property: 1. the plaintiff is to consult with the fourth defendant to ascertain the amount secured by the first registered mortgage over the relevant property; and 2. the fourth defendant is to notify the plaintiff of the amount secured by each of the mortgages over the Pitt Street Property and Sussex Street Property upon the request of the plaintiff. 1. Order that, in the event the plaintiff is not able to ascertain a sale price for either the Pitt Street Property or the Sussex Street Property which exceeds the debt secured by the first registered mortgage over the relevant property, the plaintiff is to apply to the Court for further directions as to the minimum sale price with respect to any sale of any such property prior to exercising any power to sell the relevant property. 2. Order that the proceeds from the sale of each of the Pitt Street Property and the Sussex Street Property are to be applied as follows: 1. Council rates, water rates, any statutory duties and charges; 2. Payment of all expenses with respect to the sale of the Pitt Street Property including real estate agents' commissions and solicitors' costs; 3. Payment of amounts secured by the registered mortgage over the Pitt Street Property properties in favour of the fourth defendant; 4. As to the sale proceeds after the application of funds in accordance with (a) and (b) above: 1. 50% be paid to the third defendant; and 2. 50% be applied in accordance with (e)-(g) below; 1. Payment to the plaintiff of all amounts owing under the 2021 Loan Agreement and Guarantee; 2. Payment to the plaintiff of the plaintiff's costs of these proceedings; 3. Any surplus proceeds be paid to the second defendant. 1. Order that the proceeds from the sale of the Sussex Street Property are to be applied as follows: 1. Council rates, water rates, any statutory duties and charges; 2. Payment of all expenses with respect to the sale of the Pitt Street Property including real estate agents' commissions and solicitors' costs; 3. Payment of all expenses with respect to the sale of the Sussex Street Property; 4. Payment of amounts secured by the registered mortgage over the Sussex Street Property in favour of the fourth defendant; 5. As to the sale proceeds after the application of funds in accordance with (a) and (b) above: 1. 50% be paid to the third defendant; and 2. 50% be applied in accordance with (f)-(h) below; 1. Payment to the plaintiff of all amounts owing under the 2021 Loan Agreement and Guarantee; 2. Payment to the plaintiff of the plaintiff's costs of these proceedings; 3. Any surplus proceeds be paid to the second defendant. 1. Liberty be granted to the parties, and any other party claiming an interest in the Pitt Street Property and/or the Sussex Street Property, to apply with respect to any matter that may arise in respect of the sales or distribution of the sale proceeds. 2. A declaration that the plaintiff be a trustee of the Pitt Street Property and the Sussex Street Property for the purchaser(s) of those properties, from the date of exchange of contracts for the sale of each of the properties until completion of the sale, subject to the contract for sale. 3. Judgment for the plaintiff against the first defendant and second defendant (jointly and severally) in the sum of: 1. $759,183.60; plus 2. interest on that sum of $759,183.60 to today's date in the sum of $165,782.82; plus 3. all costs incurred by the plaintiff in connection with, or as a consequence of, the plaintiff's enforcement of its rights under the 2021 Loan Agreement and Guarantee, on a full indemnity basis. 1. Order that the first defendant and second defendant pay the plaintiff's costs of these proceedings on an indemnity basis, pursuant to the terms of the 2021 Loan Agreement and Guarantee. 2. Order the third defendant pay the plaintiff's costs of the proceedings on an indemnity basis as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2024