Wang v Hur [2024] QCA 126

COUNSEL: M Condon SC, with D Ananian-Cooper, for the appellant / D de Jersey KC, with C Chiang, for the respondents

SOLICITORS: Juris Cor Legal for the appellant / Rice Legal for the respondents

1. THE COURT: The present appeal raises issues concerning the circumstances in which an appellate court should (1) be prepared to interfere with the fact finding made by a primary judge and (2) be prepared to admit new evidence on appeal in relation to the fact finding made by the primary judge. We turn first to a consideration of the latter issue.

Application for leave to adduce new evidence on appeal

2. In the proceeding below the plaintiff alleged she had been misled and deceived by certain oral and written representations made by the first, second and third defendants to enter into an agreement called the Cooperation Agreement, to pay over a sum of $600,000 in return for receiving from the first and second respondents 30% of the share capital in, and appointment as a director of, the fourth defendant. The plaintiff abandoned her case against the first defendant on the first day of trial but continued against the second, third and fourth defendants.

3. The primary judge dismissed the claim at trial because she was not persuaded that the pleaded representations had been made. For completeness she also expressed the view that she would not have been persuaded of reliance even if she had been persuaded that the representations had been made.

4. The plaintiff is now the appellant. The first defendant is not a party to the appeal. The second, third and fourth defendants are now the first, second and third respondents to the appeal. To avoid confusion, we will refer to the parties to the appeal by the position they occupied at the trial.

5. The first language of the plaintiff and of the first, second and third defendants is Mandarin and insofar as the representations were pleaded to have been made orally, they were made in conversations conducted in that language. The plaintiff and the first, second and third defendants all gave evidence at trial. The plaintiff and the third defendant gave their oral evidence with the assistance of Ms Wu, who was a certified Mandarin interpreter, with experience in interpreting in court situations.¹ It was common ground at trial that Ms Wu was to be regarded as a joint interpreter and that both sides were satisfied as to her qualifications.² The first defendant gave her evidence in English, and although Ms Wu remained available in Court in case she was needed, the transcript reveals that she was not needed. The second defendant gave her evidence entirely in English via a video link and without the need for any assistance from an interpreter.

6. The plaintiff was legally represented at trial by counsel and solicitors. Counsel could neither speak Mandarin nor read Chinese script. However, the solicitor who had the day-to-day carriage of the proceeding on behalf of the plaintiff and who instructed counsel during the trial was Mr Jin. He was a native Mandarin speaker, and he was able to read Chinese script. During the trial Mr Jin listened carefully to the oral evidence given by the plaintiff as well as to the interpretation work done by Ms Wu and did not have any concerns about the accuracy of the interpreting work done by Ms Wu.

7. Amongst other pieces of documentary evidence tendered at trial, the plaintiff tendered various documents which were expressed in Chinese script, together with English translations which had been agreed between the parties. One such document was referred to as the Internal Document. The plaintiff tendered the Chinese script version of that document together with the related English translation and the two documents were received as Exhibit 1.³ The significance which the plaintiff attributed to the Internal Document appears in the discussion at [36] to [48] below. In an affidavit before this Court, Mr Jin explained that the English translation of the Internal Document tendered at trial had been prepared by the defendants and provided to him before the trial. He read it and did not identify any translation errors. The primary judge was told that it was common ground that the translation was accurate and the two documents which were Exhibit 1 were received without objection.⁴

8. Despite the agreed way in which the trial was conducted, the plaintiff now seeks the leave of the Court to adduce new evidence in order to persuade the Court that three errors were made in translation and interpretation at the trial.

9. The proposed new evidence is opinion evidence in the form of two reports which the plaintiff has obtained since the trial from Ms Zhao, an expert in the translation and interpretation of Mandarin. On the hearing of the appeal the Court was provided with a supplementary appeal book which contained Ms Zhao’s proposed evidence and other evidence relevant to determining the application.

10. The nature of the alleged errors and the difference between the evidence received at trial and the opinion evidence proposed to be adduced from Ms Zhao as expressed in her first report appear in the table below:

Item Alleged error Evidence received at trial Ms Zhao’s opinion

1 The correct translation of the third last bullet point on page two of the “Internal / Document.” The agreed translation of that bullet point was: / “Approval of an RTO institution to be within one month” The translation of the third last bullet point on page two is : / “The college, as an RTO, will be approved within a month”

2 The correct English interpretation of the Chinese evidence of the plaintiff recorded at Lines 3 to 4 of the Page 31 of the transcript of the hearing on 4 April 2022. The plaintiff's original evidence in Chinese was spoken between 5:10 and 5:58 of the recording of the proceedings on 4 April 2022. The relevant part of the transcript is recorded below. The proposed evidence relates to the accuracy of the interpreter’s response: / MR TOOTH: Was anything mentioned about a registered training organisation? / INTERPRETER: Yes, they mentioned it. They said that, "Yes, we will - we will get it very soon. Maybe in May. Very soon." The English interpretation of the Chinese spoken between 5:10 and 5:58 is: / “Yes, mentioned it. They said will get it very soon, will get it in May.”

3 The correct translation of the question asked of the plaintiff at Lines 42 to 43 of Page 84 of the transcript of the hearing on 4 April 2022. The Chinese language was spoken between l:39:41 and l:40:06 of the recording of the proceedings on 4 April 2022. The relevant part of the transcript is recorded below. The proposed evidence relates to the accuracy of the interpreter’s interpretation of the question, not the answer. / MR DE JERSEY: Ms Wang, you were told that the fourth defendant, Loyal Education, had only been incorporated in September of 2017; correct? / INTERPRETER: Correct The English interpretation of the Chinese spoken between 1:39:41 and 1:40:06 is: / “Ms Wang, you mentioned earlier that the fourth defendant, which is Loyal Education, had been incorporated in September of 17, correct?”

11. The application was opposed by the second, third and fourth defendants, who relied on a report from Mr Gao – also an expert in the translation and interpretation of Mandarin – who had performed the original translation which had been agreed for the purposes of the trial and who adhered to the correctness of his original translation. Mr Gao’s report responded to the opinion of Ms Zhao, including by –

(a)observing:

“The original text of the Chinese document itself is somewhat ambiguous as far as the subject words and its surrounding paragraphs are concerned.

The subject text may be translated and understood in more than one way.

It may be interpreted that Loyal Education or Loyal Education Group is planning to become an RTO itself.

It may also be interpreted that Loyal Education or Loyal Education Group is planning to set up a separate RTO.

I, therefore, do not consider [Ms Zhao’s] translation to be incorrect.”

(b)explaining why he nevertheless adhered to the correctness of his original translation:

“As stated above, “RTO institute for learning will be approved within a month” is the literal translation.

However, having regard to the context in the Chinese document and the headings used, I confirm that my translation is correct. After careful consideration, I arrived at my translation, which is read together with the heading preceding it, provides that:

“Outlook of Loyal Education Group

Apart from the established and steady business at present, there are many possibilities for the development of Loyal Education in the next two years:

…

Approval of an RTO institution to be within one month;”

Between my translation and the other translator’ translation, my view is that my translation communicated the meaning from the original text without losing any important nuance and is the preferred version.”

12. If the plaintiff’s application was successful, the second, third and fourth defendants would press an application for leave to adduce the report of Mr Gao on the appeal.

13. The second, third and fourth defendants’ proposed responsive reliance on the report from Mr Gao led to the plaintiff obtaining a second report from Ms Zhao which engaged with the report of Mr Gao and explained why she still strongly adhered to her opinion.

14. If Ms Zhao’s evidence before this Court was accepted, it would suggest that there was an error in the translation used at trial. If Mr Gao’s evidence before this Court was accepted, the contrary position would obtain. His evidence would suggest that Ms Zhao’s views merely reflected one expert opinion within the range of expert opinions which were reasonably open. That would hardly be surprising. Neither interpretation nor translation involves literal translation because as the Equal Treatment Bench book reminds trial judges, “word-for-word translations normally produce nonsensical renditions”.⁵ As neither translator was called or cross-examined, this Court would have no basis on which it could determine which view was the better one.

15. The Court heard argument concerning the applications to adduce new evidence at the same time as hearing the argument on the appeal and reserved its decision on both.

16. In our view the plaintiff’s application for leave to adduce further evidence should be refused.

17. In a civil appeal from a final judgment, an appellant can only adduce further evidence as to questions of fact with the leave of the Court and on demonstrating “special grounds” for doing so: UCPR rr 766(1)(c) and 766(2). It has been held in this Court⁶ that the test for admission of such further evidence on appeal generally requires: that it could not have been obtained with reasonable diligence for use at the hearing; it would probably have an important (though not necessarily decisive) influence on the result of the case; and it must be apparently credible (though not necessarily incontrovertible).

18. First, we are not persuaded that the evidence as to the translation of the Internal Document could not have been obtained with reasonable diligence for use at the hearing. We find: The issue of accurate translation of Chinese script documents was obviously an important one in the proceeding below. It was specifically addressed by the plaintiff’s solicitor who, as mentioned, had the advantage of himself being a native Mandarin speaker who could read Chinese script. If the plaintiff, by her lawyers, had thought it was important to focus more carefully on the proper translation of the relevant part of the Internal Document, and to obtain expert evidence on that question, there is no reason to think that it could not have been done before trial. The written English translation was not the only evidence which the Court received as to the meaning to the third last bullet point on page two of the “Internal Document.” During the plaintiff’s evidence the following exchange occurred with the interpreter, which suggested a slightly different interpretation:

“MR TOOTH: What did the second defendant say to you in relation to that [the Internal Document]?

INTERPRETER: Okay. This is the interpreter speaking. Ms Wang has pointed to the – one, two, three – the third-last sentence, where it starts with “RTO”, “The RTO”, in Chinese, and the translation of that will be the school, as an RTO, will be will be accredited or will be approved within one month.

MR TOOTH: Madam Interpreter, was that – what page was that one?

INTERPRETER: Sorry. It is Interpreter speaking. It was on page 14. So there was a list of dot points on the se – on the second paragraph, and this one was the fifth, fifth line, and it reads, in English, “RTO”, followed by Chinese characters, and that line specifically said this RTO, school, will be approved in one month.”

Moreover, the trial evidence was received between 4 and 7 April 2022. The hearing then adjourned after both cases had closed. Thereafter pleadings were amended to have them accord more closely with the evidence which had been received. With the leave of the primary judge, the plaintiff filed a further amended statement of claim on 19 May 2022. The defendants filed a second further amended defence on 27 May 2022. The plaintiff filed a further amended reply on 6 June 2022.

Written submissions were received from the second, third and fourth defendants dated 27 May 2022 and from the plaintiff dated 6 June 2022. The hearing reconvened for closing oral argument on 7 July 2022. The primary judge published her reasons for judgment dismissing the claim on 28 July 2022.

The timetable of the events which occurred after both cases had closed suggests that there is no reason to think that the expert opinion presently sought to be adduced could not have been obtained before closing oral argument and, if thought necessary, an application for reopening could have been made.

On the evidence before this Court, it seems that the explanation for the development of the proposed evidence is that after the case was lost on 28 July 2022 the plaintiff retained different lawyers to consider an appeal, and the different lawyers formed a different view to that of Mr Jin as to the accuracy of the translation of the Internal Document and as to the accuracy of how the transcript recorded two aspects of the plaintiff’s evidence.⁷

19. Second, we are similarly unpersuaded that any concerns as to the accuracy of the interpretation of the issues dealt with at items 2 and 3 of the table above could not have been addressed with reasonable diligence at the hearing. Indeed, as already mentioned, Mr Jin has explained that during the trial he listened carefully to the oral evidence given by the plaintiff as well as to the interpretation work done by Ms Wu and did not have any concerns about the accuracy of the interpreting work done by Ms Wu. All that has happened since then is that once the case was lost and for the purposes of a possible appeal, different lawyers formed (and have sought to support) a different view.

20. Third, although the proposed new evidence is apparently credible, and it could not be said to be immaterial, it could hardly be said to have an important impact on the case either. The translation issue seems to be the most significant, but the evidence which would have to be admitted if this Court acceded to the plaintiff’s application would merely paint a picture of a very short passage of Chinese script which the plaintiff sought to have translated in a slightly differently to the agreed translation at trial, and where the correctness of the translation would be, in any event, a contestable proposition. The reasons why we are not persuaded of the significance of the document will become more clear subsequently in these reasons when we explain the significance of the primary judge’s fact finding in relation to the timing of the provision of the Internal Document.

21. Fourth, and most importantly, so far as interpretation and translation were concerned, the trial was conducted on an agreed basis. The plaintiff did not have to accept the defendants’ proposed translation. She could have advanced her own. And had she done so and there was a dispute, the translators could have been called to give expert opinion evidence, then the nuances between the different translations could have been explored with the translators and, more importantly, in examination and crossexamination of relevant witnesses. We say “more importantly” because the most important consideration was always whether the plaintiff had regard to the document as part of her decision making as she alleged (but which, as will appear, the judge did not accept) and, if she did, what she reasonably made of the document, regardless of what translators after the event thought that it meant. That was already a necessary subject of consideration at the trial. It would be unfair to the defendants to permit her to chart the course she now proposes to chart. The plaintiff should be bound by the way in which she conducted the trial.

22. We conclude that the plaintiff has neither demonstrated special grounds to justify the reception on appeal of the proposed new evidence, nor persuaded us that it would be in the interests of justice to exercise our discretion in favour of the grant of leave. We would order the plaintiff’s application for leave to adduce further evidence be refused. On that basis, the second, third and fourth defendants would not press their application and we would order that it too be refused.

Appellate restraint

23. The principles governing the circumstances in which an appellate court should be prepared to interfere with the fact finding made by a primary judge are settled. The leading High Court authorities are Warren v Coombes;⁸ Allesch v Maunz⁹; Fox v Percy;¹⁰ Robinson Helicopter Company Incorporated v McDermott;¹¹ and Lee v Lee¹².

24. The relevant passages from those authorities were recently examined at length in this Court in Sutton v Hunter.¹² To summarise further, but retaining the language used by the High Court authorities referred to in the previous paragraph: On an appeal by way of rehearing, it is for the appellant to satisfy the appellate court that the order that is the subject of appeal is the result of some legal, factual or discretionary error. On such an appeal, the appellate court is bound to conduct a “real review” of the evidence given at first instance and of the judge's reasons for judgment to determine whether it should be so satisfied. If the appellate court concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. When determining whether a judge has erred in fact, in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. However, in determining whether the judge has erred in fact, an appellate court is required to exercise restraint when invited to interfere with a primary judge’s findings of fact, at least where those findings are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. Such appellate restraint applies not merely to findings of primary facts but also applies to findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. In such cases, a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. The finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused [his or her] advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence”, or which was “glaringly improbable”, or which was “contrary to compelling inferences.”

25. It is a difficult task to conduct a trial where important witnesses cannot speak English and both questions and answers must pass through the filter of an interpreter. In the present case the evidence of the plaintiff and of the first defendant was affected in that way. This was a consideration of which the primary judge was well aware and which she had at the forefront of her mind when making her findings. Her Honour addressed how she approached the task of resolving issues of credibility and reliability in that context in a passage of her reasons which is worth quoting in full:

“Credibility and reliability

The witnesses who gave evidence were the plaintiff and the first, second and third defendants. Much of the plaintiff’s case depends on acceptance of her evidence in preference to contrary evidence of the other witnesses. It is my view that the evidence of each of the witnesses was coloured by a desire to support their own interests. While the proceedings were discontinued against the first defendant at the commencement of the trial, I do not accept the defendants’ submission that this means that she had no interest in the outcome of the litigation. She introduced the plaintiff to the second and third defendants and had worked for Bulkbuild, of which the second defendant was a director. The interests of the plaintiff and the second and third defendants are obvious as they are parties to the litigation. Further, the imperfect recollections of each of them was exacerbated by the fact that they were purporting to recall details of conversations of some four years earlier and, in most instances, without reference to contemporaneous documents.

I have been mindful to ensure that the inconsistencies between the accounts of the witnesses are not determined merely by having regard to their demeanour. This is particularly important in a case such as this where each of the witnesses were either giving evidence through an interpreter, or in circumstances where English is not their first language.

Wherever possible, I have sought to resolve conflicts in witness accounts by reference to the objective facts proved independently of the testimony given, in particular, by reference to the documents in the case, by paying particular attention to the witnesses’ motives, and to the apparent logic of events. Where this has not been possible, it has been necessary to resort to concepts of onus of proof.

The plaintiff bears the onus of proof to satisfy the court on the balance of probabilities that her version of the events and discussions should be accepted. There are parts of her evidence which I do not accept. For example, I do not accept her evidence to the effect that she did not tell the first defendant that she had significant experience in Chinese business and that she was an accountant. This was all true as evidenced by the contents of the Business Proposal referred to above. Further, I am unpersuaded by the plaintiff’s evidence that before she first met the second defendant on 17 April 2018, the first defendant had told her that the value of the second defendant’s school exceeded $5 million. I prefer the first defendant’s evidence that it was her understanding that the second defendant was not operating a school at this time. Support for this can be found in the first defendant’s WeChat message to the second defendant on 15 April 2018. Another aspect of the plaintiff’s evidence that I do not accept is her assertion that she was wanting to invest in a mature business. This was clearly not an apt description of the fourth defendant’s business, which she knew had only been operational for about eight months.

Further, I do not accept the plaintiff’s evidence that one of the principal reasons that she did not follow the recommendation of her accountant to undertake due diligence of the fourth defendant was because of repeated assurances by the second defendant that the fourth defendant’s business was worth several million dollars. I also do not accept any such information had any role to play in her decision as to whether to seek the advice of her lawyer in relation to any aspect of the fourth defendant’s business. This is because I am not persuaded that the second defendant ever gave the plaintiff such reassurances about the profitability of the fourth defendant and this is discussed in further detail below. I also do not accept that the second defendant attempted to dissuade the plaintiff from seeking the advice of her lawyer on the basis that they already had the necessary legal documents. In addition, I am not persuaded that the first defendant told the plaintiff that the lawyer she was seeking advice from had a very bad reputation in the Chinese community. I accept the first defendant’s evidence that she did not know who this lawyer was.

Having said this, I reject the submission made on behalf of the defendants that the plaintiff’s evidence should not be accepted unless it is supported by contemporaneous documents. Although I have rejected parts of the plaintiff’s evidence, there are other parts of her evidence that I accept. The same can be said for the other witnesses. For this reason, where necessary, I have indicated below the extent to which I have accepted or rejected the evidence of particular witnesses.”

26. In the present appeal, and with regard to the passage quoted the plaintiff submitted:

“In dealing with the parties’ conflicting evidence, her Honour stated that she would resolve disputes independently of the testimony given, by reference to documents, motives, the apparent logic of events and, in the last resort, the onus of proof. Her Honour at [53] and [54] explicitly disavowed reliance on demeanour, which she noted was important given the language issues and the use of an interpreter.

Reflecting that approach, her Honour did not base any of the key factual findings on a finding about credit or demeanour.

As such, her Honour’s factual findings are not due special deference. The threshold for error is not whether the trial judge’s findings are contrary to incontrovertible facts, glaringly improbable or contrary to compelling inferences. Instead, the Court of Appeal can in this case consider and form its own conclusions on the evidence, while remaining conscious of a trial judge’s other advantages.”

27. We reject those submissions.

28. First, the submission pays insufficient regard to the fundamental rule that the starting point in a factual appeal is that it is for the appellant to demonstrate error. As McPherson JA said in Director of Public Prosecutions (Cth) v Hart (No 2):

“[The trial judge’s] findings of fact, including those based on inference, are therefore to be taken as correct unless and until the contrary is demonstrated. This is to state no more than the elementary rule that, in an appeal raising issues of fact, it is for the appellant to satisfy this Court that the decision of the judge below is wrong. …”¹³

29. Second, the passage from the primary judge’s reasons started with a discussion plainly influenced by her impressions about the credibility and reliability of witnesses formed as a result of seeing and hearing them give their evidence, namely that the evidence of each witness was affected by a desire to serve their own self interests.

30. Third, when at [53] the primary judge stated that inconsistencies “are not determined merely by having regard to their demeanour” it could not be thought that she was stating that her fact-finding was unaffected by her impressions about the credibility and reliability of witnesses formed as a result of seeing and hearing them give their evidence. That would be inconsistent with what she had written to open the discussion and directly inconsistent with the use of the word “merely”. The primary judge must be taken to have intended to convey only that it was appropriate to give weight to other matters as well.

31. Fourth, at paragraph [54] the primary judge identified the other matters and made some observations about the weighting which she gave them. But for four reasons, the paragraph could not be interpreted as suggesting an exclusion of the significance to her Honour’s fact finding of the impressions she formed about the witnesses as a result of seeing and hearing them give their evidence. First, the paragraph started with “wherever possible”. Second, although the tenor of the first sentence suggests resolution independent from testimony, it does not suggest complete independence of her impressions of the witnesses, because it refers to paying attention to the witnesses’ motives, and her Honour’s assessment of motives were necessarily informed by her impressions of the witnesses when they gave evidence at trial. Third, the same point can be made about the impressions which the trial judge formed about the “apparent logic” of events. Finally, the second sentence of [54] could not, in light of what had been written at [52] and [53] be read as referring to concepts of onus of proof to the exclusion of other matters. Indeed that must be so when regard is had to the findings concerning the plaintiff’s evidence which were then made at [55] and [56].

32. Fifth, the second, third and fourth defendants correctly referred to the following other aspects of the primary judge’s reasons as being consistent with the plaintiff’s reading of the quoted passage from the primary judge’s reasons: The primary judge’s finding that the plaintiff gave “inconsistent evidence as to whether she read the Internal Document when she was shown it.” The primary judge’s finding that the plaintiff’s evidence that the RTO and business representations were made was “partly contradictory, partly implausible and aspects of it contradicted by other witnesses” and evidence that “defies logic”. The primary judge’s rejection of the plaintiff’s claim that the plaintiff “wanted to invest in a mature and highly profitable school”. The primary judge’s rejection of the plaintiff’s oral evidence that the profitability representation was made, on the basis that “[w]hile the plaintiff may presently believe her evidence on this issue to be the truth, I am not persuaded by it. It is internally inconsistent, is influenced by hindsight and is contrary to compelling inferences”.The primary judge’s rejection of the reliability of the plaintiff’s evidence regarding what she was told about the Internal Document and the primary judge’s observation that her Honour “simply do[es] not accept” that evidence.

33. Appellate restraint necessarily looms large in the consideration of the factual findings challenged by the plaintiff on this appeal. We are utterly unpersuaded by the plaintiff’s general proposition that this is a case in which this Court should consider and form its own conclusions on the evidence, unconstrained by the usual considerations.

The case below was confined by amendments and in exchanges with the primary judge

34. We have already mentioned that amendments were made to the pleadings in the period between the close of evidence on 7 April 2022 and the making of oral closing submissions on 7 July 2022. As to this: The possibility of amending the pleadings after evidence had been closed was discussed with the primary judge on 6 April 2022. It was common ground that there had been some inconsistency between the evidence adduced from witnesses and the pleadings, particularly in relation to the dates on which events had occurred. Counsel for the defendants proposed to the primary judge (apparently with the agreement of counsel for the plaintiff) that the pleadings could be amended carefully and in conjunction with the transcript to get the amendments precisely right. The primary judge accepted the proposed course. As mentioned, a further amended statement of claim was filed on 19 May 2022, a second further amended defence on 27 May 2022, and a further amended reply on 6 June 2022.

35. Having regard to that background, the choices made by the plaintiff by her lawyers in restructuring her articulation of the dates on which representations were made and the means by which they were made are particularly significant. Issues were further confined during discussions between counsel and the primary judge on 7 July 2022, which was after the pleadings had been amended and written submissions provided. Some important points must be made about the case as ultimately pleaded and as so confined.

36. The plaintiff alleged that in reliance on all or each of the pleaded representations she did two things, namely on 27 April 2018, she executed the Cooperation Agreement and on 30 April 2018 she paid $600,000 to the fourth defendant.

37. The representations to which she referred were: The Business Representation, namely “Loyal [i.e. the fourth defendant] conducted a business of a school specialising in training in all areas of construction”; The Profitability Representation, namely “the business of Loyal was very profitable”; The RTO Representation, namely “Loyal would be approved as a Registered Training Organisation, so that it would be capable of delivering training courses and qualifications recognised by the Australian Qualifications Framework, by May 2018”; The Training Representation, namely “Loyal had already trained Chinese people to work in the construction industry as well as other industries like cooking and aged care”; The Investment Representation, namely “Loyal had already invested $180,000 and would be investing another $200,000 to set up schools overseas.”

38. Those representations were alleged to have been made “by reason of … the things said in the 17 April meeting, the Internal Document, the 18 April meeting and the 19 April meeting.” The pleading had asserted that the Internal Document was given to the plaintiff to read (but not to keep) at the meeting on 17 April. Accordingly, as advanced in the pleading, the proposition was that the representations were made orally and by the Internal Document in three meetings during the brief chronological period of 17 April 2018 to 19 April 2018.

39. The plaintiff’s further amended statement of claim at [8] had pleaded that at the 17 April 2018 meeting the plaintiff and the second defendant had a conversation in which: The first defendant introduced the second defendant as the “Chief Financial Officer” of Bulkbuild; One of them said that “Bulkbuild” was a construction company;The second defendant said words to the effect that:

“There is a good opportunity to invest in a school, specialising in providing training in all areas of construction, run by [the second and third defendants]. The school will have the support of our building company, Bulkbuild, which will give the school a special advantage in the area of construction. The School business is very profitable and worth millions. If you invest in this school, you will settle very well in Australia. Not to mention the school would satisfy your investment requirement under your Visa. You will be involved in the running and managing of the business.”

The second defendant also said words to the effect that:

“We have retained assistance from a key person who can approve a Registered Training Organisation application. He is in Sydney. He is very reliable and we will get our RTO approval no later than the end of May this year.”

The second defendant gave to the plaintiff the Internal Document to read, but which she was not allowed to keep. The Internal Document – identified the school by the name “Loyal Education”; described development plan for the school; said, in effect, that Loyal Education had been set up in September 2017, and that it trained Chinese people to work in the construction industry as well as other industries like cooking and aged care; and said, in effect, that Loyal Education had already invested $180,000 and would be investing another $200,000 to set up schools overseas.

The second defendant said that –the school had a long history and was highly profitable and was a very good business; the school was worth millions of dollars; the school had many different courses and provided certifications to Chinese teachers; RTO approval would occur very soon, in May 2018; the school was operated by her and the third defendant, and their share was 50 and 50.

40. The plaintiff’s further amended statement of claim at [9] and [10] had pleaded that at the 18 April 2018 meeting the second defendant introduced the plaintiff to the third defendant and there was a conversation in which: The second defendant said words to the effect that the third defendant was a shareholder in, and directors of, the owner of the Loyal; The second defendant said words to the effect that the school was worth millions; The plaintiff said to the second and third defendants words to the effect that she was interested in investing in the school, but that prior to doing so she wanted to have an accountant and a lawyer to look over the transaction; andThe second defendant said words to the effect that –the company was only founded in September 2017; it would be a waste of Wang’s money to engage any solicitor or accountant; the second and third defendants had invested a lot of funds in cash to develop the school which does not show on the school’s records.

41. The plaintiff’s further amended statement of claim at [11] and [12] had pleaded what happened at the 19 April 2018 meeting. However, in response to questioning from the primary judge on 7 July 2022, the plaintiff’s counsel confirmed that the plaintiff did not rely on the 19 April 2018 meeting as an occasion on which any representations were made.

42. In response to the primary judge’s questions, the plaintiff’s counsel confirmed that: The Business Representation was made orally and in writing. Insofar as it oral it was made at the meeting on 17 April 2018 and insofar as it was in writing it was made in the Internal Document provided at that meeting which was also the meeting when the plaintiff made a handwritten notation on the final page of the Internal Document.

The Profitability Representation was made orally. Necessarily that was a reference to both the 17 and 18 April 2018 meetings.

The RTO Representation and the Investment Representation were made orally and in writing, but necessarily that was a reference only to the 17 April 2018 meeting at which the plaintiff alleged the Internal Document was provided to her and the second defendant said the things to her recorded in her pleading at [8(f)] (which we have recorded at [39](f) above).

The Training Representation was written, which was a reference to the Internal Document provided at the 17 April 2018 meeting.

43. In response to the plaintiff’s pleaded case that the Internal Document was provided at the 17 April 2018 meeting, the second further amended defence had specifically asserted that “the Internal Document was not given to [the plaintiff] during a meeting on 17 April 2018, instead, the Internal Document was handed to [the plaintiff] on 26 April 2018.” In response to a question from the primary judge addressing the significance to the plaintiff’s case of establishing that the two meetings of 17 and 18 April occurred on those dates, the plaintiff’s counsel accepted that the plaintiff had given evidence that by 23 April 2018 she had made the decision to enter into the Cooperation Agreement and he agreed that the “pivotal time” was when the first two meetings occurred and they occurred before 23 April 2018. The plaintiff’s counsel also confirmed in response to a question from the primary judge that whatever date the primary judge found that the Internal Document was shown the plaintiff was also the date on which the conversation occurred in which the second defendant said the matters pleaded at [8(f)] of plaintiff’s further amended statement of claim (which we have quoted at [39](f) above).

44. Counsel for the defendants submitted that their principal submission was that the plaintiff had to establish the two meetings occurred on the particular dates alleged. He submitted: The evidence which had been adduced from the plaintiff at trial was that she had made her decision to invest on 23 April 2018. He said that mattered because if the Internal Document did not come to the plaintiff’s attention until 26 April 2018, then it must follow that all the written representations occurred after she had already made the decision to invest. And he submitted that it would be necessary for the plaintiff to demonstrate that she read the document and when she did so. He submitted that it was necessary for the primary judge’s findings to be precise about what was said on the particular days pleaded and that, for example, it would be wrong for the primary judge to conclude “I wasn’t satisfied that that was said on the 17th, but as the case developed, and my overall impression is that it was said before the 20th, so that’s enough.”

45. Counsel for the plaintiff was given an opportunity to respond. He drew the primary judge’s attention to the plaintiff’s evidence that she did read the Internal Document but otherwise did not make any submission on the issues as to when the representations were made.

46. The plaintiff’s case was significantly confined by the plaintiff’s amended pleading and her counsel’s exchanges with the primary judge. First, the representations were particularised in the way we have described at [42] above. Second, it was accepted that the pivotal issue was whether the two particular pleaded meetings occurred in the way the plaintiff said they had occurred. Third, it was accepted that the plaintiff had made her decision to invest by 23 April 2018. Fourth, the conversation pleaded at [8(f)] of the further amended statement of claim (which we have quoted at [39](f) above) happened at the same time as the Internal Document was handed to the plaintiff.

47. In this regard, it is also important to note that neither in the plaintiff’s amended pleadings nor in response to the primary judge’s questions did the plaintiff’s counsel seek to advance an alternative case which embraced the possibility that the Internal Document and the associated conversation may not have been provided in the context asserted by the plaintiff, but may have been provided after 23 April 2018 as alleged by the defendants, and which suggested that they should nevertheless have been regarded as causative representations in relation to her execution of the Cooperative Agreement and paying money over.

48. Any rejection of the plaintiff’s pleaded case about the timing of the provision of the Internal Document (and the associated conversation) would do significant damage to the plaintiff’s representations case as pleaded and particularised. All that would be left of the case as pleaded was that on 17 February 2018 the second defendant said words to the effect described at [39](c) and [39](d) above and that on 18 February 2018 he said words to the effect described at [40](b) and [40](d) above. On that basis the Training Representation and the Investment Representation could not stand at all. And the other representations would depend upon the primary judge finding that words to the effect alleged were said, and in a context which required them to be understood as specifically referable to the fourth defendant and not as more general statements.

49. It will appear that the way in which the plaintiff’s further amended pleading and her counsel’s exchanges with the primary judge confined the plaintiff’s case shaped the structure of the primary judge’s fact finding on the question whether the pleaded representations were made.

Consideration of the basis on which the primary judge rejected the case as so confined

50. As to the plaintiff, the primary judge found: The plaintiff had a background in business and finance. She had a degree in Business Accounting from a Chinese university. She had sought to immigrate to Australia and in that regard had obtained specialist advice. One potential pathway to permanent residency was to obtain a s 188A visa. That is a provisional visa for people with business skills which allows successful applicants to remain in Australia for a period of four years and to own and manage a business or conduct business and investment activity. As part of the application process for that visa, the plaintiff prepared a “Business Proposal” document. It detailed that her work history in China had involved working as an accountant, clerk and vice general manager/financial manager of various family-owned businesses. On 21 February 2017 the plaintiff obtained a s 188A visa and she emigrated to Australia on 17 April 2017. She engaged a local immigration agent, an accountant and a lawyer. Her plan was eventually to obtain permanent residency. She was advanced that he would need to meet two out of these three criteria: a personal net worth of at least $800,000; an investment of at least $500,000 in a small business; and/or at least two of the employees of the business would need to be Australian citizens or have permanent residency.

51. As to the second, third and fourth defendants, the primary judge found: The second and third defendants and a third person, Ms Li, were in business together. A company called Auz Co Pty Ltd was established in 2015 and in 2017 it had applied for registration as an RTO which would allow it to deliver nationally recognised vocational training and qualifications in Australia and offshore. Ms Li assisted in funding the application process and the third defendant was a director of Auz Co. The intention was that was intended that Auz Co would operate as an RTO in Sydney, principally providing accreditation for Recognised Prior Learning (‘RPL’) in the construction industry. If granted, Auz Co could assess the competency of an applicant with recognised skills that had been gained through prior formal or informal learning or previous work experience. The qualifications it could offer applicants included a Diploma of Leadership and Management, a Certificate III in bricklaying, carpentry and plumbing, and a Certificate IV in building and construction.

At Ms Li’s suggestion the second and third defendants brought the fourth defendant into existence. It was intended that the fourth would act as an agency management company in Queensland which could work with Auz Co once Auz Co was registered as an RTO, but that the fourth defendant would not itself become an RTO. That was because government regulations restricted the fees that RTOs could charge for administering the RPL process and no such restrictions applied to agency or consultancy type businesses.

The primary judge found:

“The plan was that the fourth defendant would be used to connect mainly Mandarin speaking local and overseas workers with Auz Co and other RTOs for them to have their trade skills formally recognised in Australia. More specifically, the fourth defendant would assist these individuals in the compilation of the paperwork and other information to be submitted to the RTO for the RPL assessment to be undertaken.

It is against this background that the fourth defendant was incorporated and commenced business in September 2017, with the second and third defendants as its directors and their respective family trusts as the shareholders. By this time the RTO application by Auz Co had not been determined. For this reason the fourth defendant began working with other RTOs. It was not until approximately August 2018 that the third defendant was notified that Auz Co’s application had not been successful. This meant that the fourth defendant continued existing business relationships with some RTOs and established new relationships with others.

Further, in February 2018 the fourth defendant entered into an agreement with a Chinese company, Yingtang Culture Communications Co Ltd, for the fourth defendant to set up an official training and testing centre for Chinese language teacher certificates in Australia. The fourth defendant would be responsible for delivering the training. The second defendant knew a person who could provide this training and it was intended that it would be provided in the classroom at the fourth defendant’s premises. This did not eventuate as there was a change in Chinese government policy which made performance of the agreement financially unviable for the fourth defendant.”

52. The primary judge found that in early 2018 the plaintiff was investigating business opportunities for the purpose of satisfying her immigration requirements when she first met the first defendant. They became friends and the plaintiff told her about the requirement that she invest at least $500,000 in an Australian business. In the next few months, the plaintiff continued investigating business opportunities but to no avail. She discussed opportunities with the first defendant.

53. The first defendant told the plaintiff about Bulkbuild in April 2018 and that the second defendant was going to use Bulkbuild to open up a training school. She offered to speak to the second defendant about the possibility of the plaintiff investing in the business as a way to help with the plaintiff’s immigration application. The first defendant messaged the second defendant that the plaintiff was keen to invest between $500,000 and $800,000 in a business to satisfy immigration requirements.

54. Against that background, the primary judge examined the critical question whether the plaintiff could make good her case as to the making of the representations. She made the following relevant findings.

55. At the initial meeting on 17 April 2018, the second defendant was introduced to the plaintiff as the chief financial officer of Bulkbuild and a director and shareholder of the fourth defendant. The second defendant was informed that the plaintiff was looking at investment opportunities for migration purposes to apply for a subclass 888 visa. There was discussion around the fact that the plaintiff and the second defendant’s husband were both from the Yunnan province in China. The plaintiff was told that the second and third defendants were in business together. The second defendant talked about their business interests in a general way. She did not name the fourth defendant.

56. Although there was no dispute that the second defendant had prepared the Internal Document and showed it to the plaintiff, there was a dispute as to when this occurred. The Internal Document was a confidential business plan for the Loyal Education Group. At the time when the second defendant showed the Internal Document to the plaintiff, the second defendant made some handwritten notes on the last page of the document.

57. The plaintiff’s pleaded case was that at meetings on 17 and 18 April 2018, oral and written information was provided to the plaintiff which conveyed the pleaded representations. In oral submissions, counsel for the plaintiff had clarified that it was alleged that the business, RTO and Investment Representations were partly oral and partly conveyed in the Internal Document; the Profitability Representation was oral; and the Training Representation was conveyed in the Internal Document. It was also clarified in oral submissions that the oral representations pleaded at [8(f)] of the statement of claim were made in the context of the second defendant discussing the Internal Document with the plaintiff.

58. The primary judge noted that it was necessary to determine whether the Internal Document was provided to the plaintiff at the first meeting (i.e. 17 April 2018) as the plaintiff alleged. She noted that in the original statement of claim the plaintiff had suggested that the document was provided at a later meeting on 19 April and that it was not until the pleading filed after the trial that it was alleged to have been provided at the first meeting. Given the confidential nature of the Internal Document the primary judge found it unlikely that the second defendant would have shown it to the plaintiff at such an early stage. The primary judge did not accept the plaintiff’s evidence that the Internal Document was shown to the plaintiff at the first meeting. Her Honour recorded that it followed that she was not persuaded that at the first meeting the second defendant said to the plaintiff the matters pleaded at [8(f)] of plaintiff’s further amended statement of claim (which we have quoted at [39](f) above) at the first meeting. She noted that defendants had pleaded that it occurred at a meeting on 26 April 2018, which was the day before the plaintiff signed the Cooperation Agreement and that there was no dispute that by the latter date the plaintiff had already decided to invest in the fourth defendant.

59. We observe that, for the reasons mentioned at [48] above, the primary judge’s rejection of the plaintiff’s case about the timing of the provision of the Internal Document (and the associated conversation) caused significant damage to the plaintiff’s case.

60. The primary judge then went on to consider whether the second defendant made the RTO Representation and the Business Representation. Consistently with her rejection of the plaintiff’s case concerning the timing of the provision of the Internal Document her Honour considered whether – the second defendant conveyed the RTO Representation by saying words to the effect alleged at [8(d)] of the pleading (described at [39](d) above); and the second defendant orally conveyed the Business Representation by saying words to the effect alleged at [8(c)] of the pleading (described at [39](c) above).

61. As to the RTO Representation:It will be recalled that this was said to be a representation that the fourth defendant would be approved as a Registered Training Organisation, so that it would be capable of delivering training courses and qualifications recognised by the Australian Qualifications Framework, by May 2018. Her Honour noted that this representation was alleged to have been made at the first meeting by the second defendant saying words to the effect that they had retained the assistance of a key and reliable person from Sydney who could approve an RTO and that they would get the approval by no later than May 2018. Her Honour noted that the plaintiff did not give evidence consistent with the pleaded representation. She observed that when asked as to whether anything was mentioned about an RTO, the plaintiff responded “Yes, they mentioned it. They said that ‘Yes we will – we will get it very soon. Maybe in May. Very soon.” The primary judge found that the answer had to be considered in the context of other evidence of the plaintiff to the effect that the second defendant did not specifically refer to the fourth defendant at the first meeting, and that the discussions were around the broader business interests of the second and third defendant. Against this background, the reference to ‘we’ could not be said to be a reference to the fourth defendant, as distinct from any of the other business interests of the second and third defendants. The primary judge expressed her ultimate conclusion in this way:

“I found the plaintiff’s evidence with respect to both representations to be partly contradictory, partly implausible and aspects of it contradicted by other witnesses. In the result, I have concluded that it cannot be preferred over that of any of the other witnesses. In short, I am not persuaded that the plaintiff was told by the second defendant at the first meeting words to the effect that the fourth defendant would be approved as a RTO by May 2018 or that it conducted the business of a school.”

62. As to the Business Representation:It will be recalled that it was said to be a representation that the fourth defendant conducted a business of a school specialising in training in all areas of construction. The primary judge found that the plaintiff did not give compelling evidence about being told that the fourth defendant was a school and that she in fact said that she was not sure whether it was a school or a company. The primary judge found that it was likely that there were some discussion about the fourth defendant’s business being involved with schools and RTO’s. Her Honour referred to the background as to the second and third defendants’ business interests and concluded that it was likely that the second defendant told the plaintiff of those business interests, if only in a general sense. The primary judge’s ultimate conclusion was that recorded at [61](e) above.

63. As to the Profitability Representation: It will be recalled that the Profitability Representation was said to be a representation that the business of the fourth defendant was very profitable. The primary judge noted the pleaded allegations suggested that the second defendant repeatedly told the plaintiff at the meetings of 17 and 18 April that the school was very profitable and worth millions. The primary judge noted that the defendants accepted that the second defendant told the plaintiff at the first meeting that the fourth defendant would be quite profitable but that was in the pleaded circumstances that the second defendant had a business plan and saw great potential for the fourth defendant in the education sector because the economy was strong and there were increasing numbers of Chinese people immigrating to Australia. Her Honour regarded that as quite distinct from the representation that the school was very profitable. (We observe that the distinction between being profitable in the future and being profitable at the time the representation was made was material because the plaintiff’s case was not that the Profitability Representation was a misleading representation as to a future matter.) The primary judge was not persuaded by the plaintiff’s evidence. She noted:

“While the plaintiff may presently believe her evidence on this issue to be the truth, I am not persuaded by it. It is internally inconsistent, is influenced by hindsight and is contrary to compelling inferences. An example of an inconsistency can be found in her evidence where she said that she was told by the second defendant that the value of the fourth defendant’s business exceeded $2 million. However, in cross-examination she said that on 17 April 2018 the second defendant told her that the fourth defendant was currently making more than $1 million. Later in cross-examination she said that she had been told by the second defendant at that same meeting that the fourth defendant was currently worth $2 million.

It seems improbable that the second defendant would have said this about a business that had only been operating for eight months. As the plaintiff said, the second defendant told her that it had not been operating for long enough to have its financial records audited. It was in its infancy in the sense that its operations were at that stage limited to providing consultancy services to a few RTOs. Its business plan included working with Auz Co once it was accredited and providing training to aspiring Chinese language teachers in accordance with its agreement with Yingtang Culture Communications Co Ltd. Given these future plans, it is perhaps unsurprising that the second defendant told the plaintiff that she was confident that the fourth defendant would be quite profitable.”

64. We interpolate that it was obvious that the findings made in relation to the RTO Representation, the Business Representation and the Profitability Representation were likely to have been affected by the impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. The findings must stand unless it can be shown that the primary judge “has failed to use or has palpably misused [her] advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable” or which was “contrary to compelling inferences.”

65. The primary judge then noted that given her findings that she was not persuaded that the plaintiff was shown the Internal Document at the first meeting, it may be unnecessary to make findings as to whether the representations were conveyed in the Internal Document or by information provided by the second defendant to the plaintiff at the time the plaintiff was shown the Internal Document. Nevertheless she continued on to explain why she did not accept the plaintiff’s case as to what was conveyed in that manner.

66. The result of these findings was that the case necessarily failed because the primary judge had found that the pleaded representations were not made.

The grounds of appeal

67. Bearing in mind the law concerning appellate restraint identified at [24] above and the conclusion expressed at [64] above, it is necessary to turn to a consideration of the grounds of appeal.

68. The plaintiff, who is appellant in this Court (see [4] above), was given leave to amend her notice of appeal as identified in an amended notice of appeal exhibited to the affidavit of Ms Chen in the supplementary appeal record book. That document identified 10 grounds of appeal and sought orders setting aside the orders made by the primary judge and either remitting the matter back to the District Court for retrial before a different judge or giving judgment for the plaintiff.

69. In oral argument before this Court the plaintiff pressed only her claim that there should be a retrial. That meant that it was unnecessary to consider appeal grounds 8, 9 and 10 and no argument was addressed to those grounds.

70. Accordingly, it is necessary only to consider appeal grounds 1 to 7. We do so under relevant subheadings below.

Appeal grounds directed at challenging the findings that the Business Representationand the RTO Representation were not made

71. The relevant appeal grounds were appeal grounds 1, 2 and 3.

72. Appeal ground 1 asserted:

“In relation to the Internal Document, the learned trial judge erred in:

construing the Internal Document on the basis that it was provided by the [second defendant] to the [plaintiff] on 17 April 2017, inconsistently with its finding that the Internal Document was not provided on that date;

failing to construe the Internal Document on the basis that it was provided by the First Respondent to the [plaintiff] on 26 April 2018;

failing to have regard to the First Respondent’s evidence that the Internal Document was drafted by her for the purpose of explaining the business of the [fourth defendant] to the [plaintiff];

finding that the [plaintiff] had not read the Internal Document, particularly in circumstances where such a case was not pleaded, opened or squarely put to the [plaintiff] in crossexamination or by the Court;

failing to find that the provision of the Internal Document by the First Respondent conveyed representations about the business of the [fourth defendant] (as it did);

relying on an incorrect translation of the third last bullet point on the final page, giving rise to a miscarriage of justice;

failing to find that the provision of the Internal Document by the First Respondent conveyed the Business Representation and the RTO Representation.”

73. Appeal ground 2 asserted:

“In relation to the finding that the Business Representation was not conveyed orally, the learned trial judge erred in:

relying on evidence of the [plaintiff] that she was not sure whether the [fourth defendant] was a company or a school, particularly in circumstances where the significance given to that evidence by her Honour was not put to the [plaintiff] in cross-examination or by the Court;

relying on the importance which the learned trial Judge found (wrongly, as set out in Ground 7 below) that the [plaintiff] subjectively placed on whether the [fourth defendant] was a school, where that was in any event irrelevant to whether the representation had been made;

failing to have regard to the corroborative terms of the Internal Document, that was drafted by the First Respondent;

failing to find that there was a compelling inference that the Business Representation was conveyed orally by the First Respondent.”

74. Appeal ground 3 asserted:

“In relation to the finding that the RTO Representation was not conveyed orally, the learned trial judge erred in:

failing to assess the question objectively by reference to what a reasonable representee would have understood from what occurred, in its full context;

failing to have regard to the corroborative terms of the Internal Document and the Cooperation Agreement, which were drafted by or on behalf of the First Respondent;

failing to consider the First Respondent’s evidence as to the nature and subject matter of the discussion at the meeting on 17 April 2018;

failing to consider the context of the parties’ dealings and the [plaintiff]’s circumstances;

relying on an incorrect interpretation of the [plaintiff]’s evidence, giving rise to a miscarriage of justice;

failing to allow a departure from the [plaintiff]’s pleaded case as to precisely when it was represented that the Third Defendant would be approved as a Registered Training Organisation, where to do so would have resulted in no unfairness;

failing to find that the RTO Representation was conveyed orally by the First Respondent.”

75. The plaintiff’s submissions on appeal recorded that the plaintiff did not contend that the primary judge erred in finding that the Internal Document was not provided at the meeting on 17 April 2018. Rather, the plaintiff contended that given that it was not in dispute that the Internal Document was provided to the plaintiff at some stage, it necessarily followed (and the primary judge should have found) that it was provided to the plaintiff at the meeting on 26 April 2018, in accordance with the second defendant’s pleading and evidence. The plaintiff then sought to argue that one could identify relevant representations from the Internal Document even if it was provided on that later date, and that the primary judge erred in not construing the document as supporting representations made on that later date.

76. These arguments must be rejected. They fly in the face of the plaintiff’s case as pleaded and particularised and as confined by the plaintiff’s counsel at trial. The case was confined to representations made on 17 and 18 April 2018 which were relevant because they preceded the date on which the plaintiff made her decision to invest, namely 23 April 2018. Moreover the plaintiff accepted at trial that whatever date she found that the Internal Document was shown to the plaintiff was also the date on which the conversation occurred in which the second defendant said the matters pleaded at [8(f)] of plaintiff’s further amended statement of claim. And, as previously mentioned, no alternative case was advanced at trial which might have permitted the plaintiff to rely on representations made in and concerning the Internal Document if it was provided to her on 26 April 2018. It is untenable for the plaintiff to contend on this appeal that the primary judge should have conducted her fact finding by permitting any departure from the case as it had been conveyed by her. To do so would have been unfair to the defendants.

77. Once it is accepted that the Internal Document was not provided until 26 April 2018, it becomes irrelevant to consider whether the primary judge erred in her construction of the document and it became unnecessary to find whether anything in the document or what was said about conveyed a representation.

78. At its highest, the only utility of a consideration of the Internal Document would be whether the fact and nature of its subsequent production suggested that the primary judge made a reviewable factual error in relation to her rejection of what was left of the plaintiff’s pleaded case concerning the Business Representation and the RTO Representation.

79. We turn first to the Business Representation: The Business Representation was alleged to have been made orally and in writing. Insofar as it oral it was made at the meeting on 17 April 2018 (as to which the pleaded case is recorded at [39](c), [39](d) and [39](f) above) and insofar as it was in writing it was made in the Internal Document (as to which the pleaded case is recorded at [39](e) above). The way in which the case was confined meant that once it was found representations made in and concerning the Internal Document had not occurred on 17 April 2018, the pleaded justification for a finding that the Business Representation had been made was that recorded at [39](c) because [39](d) related to the RTO Representation. But if all the second defendant said were words to the effect described at [39](c), she would not have made the Business Representation, at least without proof that the words were said in a context which required them to be understood as specifically referable to the fourth defendant and not as more general statements. Accordingly, it was material to determine whether the second defendant conveyed to the plaintiff that the fourth defendant (as opposed to anyone else) conducted the business of a school specialising in training in all areas of construction. In making that assessment it was plainly appropriate to consider whether the words said referred to the fourth defendant or merely more generally to “school” and in that regard it was also plainly appropriate to consider whether the plaintiff equated references to “school” with the fourth defendant. As appears at [62] above, the primary judge was not persuaded to make the requisite findings. There is no reason to find that her conclusion in that regard was in error. The plaintiff’s present argument that the primary judge should have considered whether one could reason backwards from the subsequent provision of the Internal Document to find support for the Business Representation goes nowhere near providing a basis to interfere with the reasoning which the primary judge did employ in rejecting what was left of the plaintiff’s case once the now unchallenged finding was made. At best the document reveals that by the time it was produced, references to the first person plural made orally could well have been a reference to the fourth defendant, although they might also have been a reference to an undefined “group”. However even if the better view was the former, that would hardly be a compelling basis to think that the same position must have been the case at the first meeting which was, as the primary judge found, in essence an introductory one.

80. We turn now to the RTO Representation: The RTO Representation was alleged to have been made orally and in writing. Insofar as it was oral, it was made at the meeting on 17 April 2018 (as to which the pleaded case is recorded at [39](c), [39](d) and [39](f) above) and insofar as it was in writing it was made in the Internal Document (as to which the pleaded case is recorded at [39](e) above). The way in which the case was confined meant that once it was found representations made in and concerning the Internal Document had not occurred on 17 April 2018, the pleaded justification for a finding that the RTO Representation had been made was that recorded at [39](d) because [39](c) related to the Business Representation. But if all the second defendant said were words to the effect described at [39](d), she would not have made the RTO Representation, at least without proof that the words were said in a context which required them to be understood as specifically referable to the fourth defendant and not as more general statements. Accordingly, it was material to determine whether the second defendant conveyed to the plaintiff that the person getting the RTO approval no later than the end of May was the fourth defendant (as opposed to anyone else). It was plainly appropriate to consider whether any reference to the first person plural in what was said was or should have been taken to be a reference to the fourth defendant (as opposed to anyone else).

As appears at [61] above, the primary judge was not persuaded to make the requisite findings. There is no reason to find that her conclusion in that regard was in error.

The conclusion expressed at [79](e) applies equally in relation to the RTO Representation. Indeed, when one has regard to the terms of the Internal Document as translated at trial, it is not even clear that the reference to “approval of an RTO institution to be within one month”, should be understood as conveying that the fourth defendant (as opposed to some other company in the “group”) would be approved in the period suggested. If that ambiguity existed as at 26 April, it hardly corroborates the proposition that there was a compelling reference on 17 April that the subject of the statement made on that date was the fourth defendant.

81. It remains to note: One can immediately set aside the arguments concerning incorrect interpretation because once the attempt to adduce further evidence is rejected, there is no basis for that argument. Nor is there any basis to conclude that the primary judge failed to consider context or particular relevant evidence. There was no breach of the rule on Browne v Dunn. It was for the plaintiff to establish that words were said in a context which required them to be understood as specifically referable to the fourth defendant and not as more general statements. If questions and answers damage that proposition by revealing confusion, there is no breach of the rule by not putting to the witness the significance of those responses.

82. These grounds of appeal fail.

Appeal ground 4

83. This appeal ground asserted:

“In relation to the finding that the Profitability Representation was not conveyed orally, the learned trial judge erred in:

failing to have regard to the relevant contextual facts, being:

i.that the [plaintiff] was proposing to pay $600,000 for 30% of the shares in the [fourth defendant];

ii.that the [plaintiff] was aware that her application for a permanent residency visa required her to have an investment of at least $500,000 in a small business;

iii.that Ms Li Yang had written to the First Respondent on behalf of the [plaintiff] that the [plaintiff]’s objects in investing were to “break even”, “earn a basic income” and “obtain a permanent visa”, and that she required an investment that could be recovered;

iv.contrary to the inference drawn from the fact that the business had only been operating for 8 months – that the Cooperation Agreement contained a (false) statement regarding the net business assets of the [fourth defendant];

failing to find that the provisional burden of proof had shifted to the Respondents, and to consider that the Respondents had adduced no evidence of what they had said to the [plaintiff] about the [fourth defendant]’s present net worth and profitability;

finding at J[79] that the [plaintiff]’s evidence contained inconsistencies regarding the statements made to her regarding the net worth and profitability of the [fourth defendant] when in fact there was no inconsistencies in her evidence on this matter;

failing to find that the Profitability Representation was conveyed orally by the First Respondent.”

84. The Profitability Representation was that the business of the fourth defendant was very profitable. It was pleaded as being misleading and deceptive because “the business of [the fourth defendant] was not profitable at all”. The plaintiff was attempting to paint a picture that despite the fact that she acknowledged that she had been told on 18 April 2018 that the fourth defendant was incorporated in September 2017, she had been misled into thinking that the fourth defendant owned a highly profitable school with a long history. Unlike the RTO Representation and the Investment Representation the Profitability Representation was not pleaded as being a misleading representation as to a future matter. No onus shifted to the defendants to prove reasonable grounds for making a prediction. The case was not advanced on the basis that there was a misleading representation as to the present worth of the fourth defendant based on misleading predictions of future profitability.

85. The primary judge’s reasoning accepted that the second defendant conveyed that the fourth defendant would be quite profitable. The element of futurity in that finding does not make good the pleaded case, which depended upon a representation which conveyed profitability as a state which existed at the time it was made, namely present profitability. That the plaintiff subsequently did the things she did does not provide a basis for gainsaying the finding made by the primary judge as to the pleaded representation. It is just as consistent with having a belief that the future for the business was rosy and the plaintiff’s understanding the proposition that the fourth defendant would be quite profitable in the future.

86. As recorded at [63] above, the primary judge had recorded that she was not persuaded by the plaintiff’s evidence as to the Profitability Representation. She regarded it as internally inconsistent, influenced by hindsight and contrary to compelling inferences. She recorded that an example of the internal inconsistency could –

“… be found in her evidence where she said that she was told by the second defendant that the value of the fourth defendant’s business exceeded $2 million. However, in cross-examination she said that on 17 April 2018 the second defendant told her that the fourth defendant was currently making more than $1 million. Later in crossexamination she said that she had been told by the second defendant at that same meeting that the fourth defendant was currently worth $2 million.”

87. The plaintiff argued that the example which the judge gave of the plaintiff’s “inconsistency” should not be regarded as such an example at all. For the following reasons we do not accept that criticism.

88. In chief, the plaintiff said that her accountant told her on 18 April that if she were to invest the sort of money she was talking about “then the school needs to be worth at least $2 million”. She was then asked what she said to her accountant in response. Her evidence was non-responsive to that question and merely explained that she did not take the advice of her accountant because the first defendant and the second defendant had told her that “the worth of the school was highly exceeded – this $2 million mark”. She was later asked why she thought that the company was worth $2 million as she said that the first and second defendants have “constantly said to me that all the schools in Australia are worth millions of dollars – several million dollars”.

89. In cross-examination, the evidence changed from contending that representations were made as to the worth of “the school” or “all schools” to representations as to what it was “making”. It was suggested to her that all she was told was that if she invested in an agency she might make “A$400,000 in the second year of the business’ operation”. Her response was that the second defendant told her “that, at present, the school is making more than $1 million.” It was later put to her that she was, in fact, told from 17 April that the fourth defendant itself was not a school but, instead, that it did business with other organisations which were schools. She denied being told that and said that she was never told of such “complex relations”. There was then this exchange:

“MR DE JERSEY: But it did appeal to you, I suggest, that you were to invest in a company which did not itself hold an RTO because that company could charge more fees than a company that did hold an RTO, correct?

INTERPRETER: Nobody told me the above information, so all I heard was Loyal Education is a school, very profitable, and after they received the RTO status will it be even more profitable.

MR DE JERSEY: And you said to Ms Hur, didn’t you, that that’s why you liked the investment, because it could charge more fees than an RTO; correct?

INTERPRETER: Not in that obvious manner that I said those words, but they have told me that, at the moment, this was $2 million and after the RTO status, would be worth $5 million.

MR DE JERSEY: That was said on the 17th of April, was it?

INTERPRETER: Correct.”

90. We remark that there was internal inconsistency in the plaintiff’s evidence. The plaintiff’s evidence in chief did not support the pleaded case as it did not attribute to the second defendant a representation as to the present profitability of the fourth defendant as opposed to representations as to the present worth of “the school” or “schools”. But then in cross-examination (and assuming that the reference to what the school was “making” was a reference to profit) then the evidence went from a representation that the school was “making more than $1 million” to a statement which could be interpreted either as a statement that present profitability was $2 million but was apparently interpreted as a statement that present worth was $2 million. There is an obvious inconsistency between present profitability of $1 million and present worth of $2 million.

91. None of this demonstrates that the primary judge erred by concluding that a representation as to present profitability of the fourth defendant was not made. Perhaps a case could have been constructed about misleading representations as to present worth based on predicted future income or profit, but that was not the case pleaded and run. It is too late now to try to reframe the pleaded case.

92. This ground of appeal fails.

Appeal ground 5

93. This appeal ground asserted:

“The learned trial judge erred in law by determining (at J[50]) the claim against the [second defendant] by reference to her having to be a person involved in the conduct, rather than as a direct claim based upon her being the person who engaged in the impugned conduct.”

94. Having regard to the fact that we have concluded that the primary judge’s findings that the relevant representations were not made should not be overturned, it is not necessary to consider this ground.

Appeal ground 6

95. This appeal ground asserted:

“In relation to the Court’s dismissal of the claim against the [third defendant], the learned trial judge erred in law and in fact by:

determining the claim against the [third defendant] by reference to her having to be a person involved in the conduct, rather than as a direct claim based upon her being the person who engaged in the impugned conduct;

failing to draw the compelling inference that an attendee at a meeting heard the words spoken by another attendee at that meeting.”

96. For the reasons expressed in relation to ground 5, it is unnecessary to consider this ground.

Appeal ground 7

97. This appeal ground asserted:

“In relation to the Court’s finding that the [plaintiff] did not rely on any of the pleaded representations, the learned trial judge erred in law and in fact by:

drawing the wrong inference from evidence that the [plaintiff] had “decided” to invest by 26 April 2018, that the [plaintiff] did not rely on anything that occurred after that date;

failing to ask the right question as to causation, and failing to ascertain what would have occurred for the Defendants not to have engaged in conduct which was misleading;

failing to draw the natural inference of fact that, where a statement is material and calculated to induce, it was relied on;

failing to consider evidence which corroborated the natural inference, including:

i.the facts referred to in (d)(i) above;

ii.that the [plaintiff] had previously demonstrated that she was willing to pass over investment opportunities if she did not consider them appropriate; and

iii.the circumstances that the [plaintiff]’s requirements would not be met unless the Profitability Representation was substantially true;

finding that the [plaintiff] was motivated exclusively by the considerations identified at J[95], particularly in circumstances that it was not pleaded or put to the [plaintiff] in crossexamination that she would have acquired shares in the [fourth defendant] based on those considerations even if the Business, RTO and Profitability Representations had not been made;

failing to find that the [plaintiff] relied on the Business, RTO and Profitability Representations in entering into the Cooperation Agreement and paying $600,000 to the [fourth defendant].”

98. For the reasons expressed in relation to ground 5, it is unnecessary to consider this ground.

Conclusion

99. We make the following orders:

The appellant’s and the respondents’ applications for leave to adduce further evidence are refused.

The appeal is dismissed.

The appellant must pay the respondents’ costs.