Yan v Yangdo Pty Ltd [2024] NSWSC 1250

Yan v Yangdo Pty Ltd [2024] NSWSC 1250

Neither the first nor the second report of the expert complied with the contractual requirements of the Deed, as the expert did not perform the precise stipulated task in either instance, therefore neither determination binds the parties. The expert is not functus officio and must prepare a binding determination in accordance with the contract. There was no manifest error in the approach to embedded CGT, as the differences were a matter entrusted to the expert's judgment. As to trust distributions, Penlop Pty Ltd is entitled only to declared distributions from the Yan Unit Trust made after 22 June 2023 as specified.

Parties
First Plaintiff/fourth Cross Defendant: Philip Kam Hung Yan; Second Plaintiff/fifth Cross Defendant: Amelia Shu Man Yan; Third Plaintiff/sixth Cross Defendant: Fincob Pty Ltd; First Defendant/first Cross Defendant: Yangdo Pty Ltd; Second Defendant/second Cross Claimant: Kam Wing Yan; Third Defendant/second Cross Defendant: Yangdo Service Pty Ltd; Fourth Defendant/third Cross Defendant: Pengie Pty Ltd; Fifth Defendant/first Cross Claimant: Penlop Pty Ltd
Jurisdiction
Australia
Judgment Date
11 October 2024
Procedural Posture
Equity / Principal Judgment After Hearing on Merits
Outcome
Declaration as to construction of clause; Summons and Cross-Summons otherwise dismissed.
Legal Topics
Expert Determination, Valuation Clauses, Functus Officio, Manifest Error, Interpretation of Deeds, Trusts and Corporate Entities
Equity Contract Law Commercial Law Expert Determination Valuation Clauses Functus Officio Manifest Error Interpretation of Deeds +1 more

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Parties

Philip Kam Hung Yan

First Plaintiff/fourth Cross Defendant

Amelia Shu Man Yan

Second Plaintiff/fifth Cross Defendant

Fincob Pty Ltd

Third Plaintiff/sixth Cross Defendant

Yangdo Pty Ltd

First Defendant/first Cross Defendant

Kam Wing Yan

Second Defendant/second Cross Claimant

Yangdo Service Pty Ltd

Third Defendant/second Cross Defendant

Pengie Pty Ltd

Fourth Defendant/third Cross Defendant

Penlop Pty Ltd

Fifth Defendant/first Cross Claimant

Procedural Posture

Equity / Principal Judgment After Hearing on Merits

Legal Issues

  1. 1 What was the task assigned to the expert under the Deed?
  2. 2 Did the expert perform the assigned task so as to become functus officio?
  3. 3 Are either of the expert determinations binding under the Deed?

Ratio Decidendi

Neither the first nor the second report of the expert complied with the contractual requirements of the Deed, as the expert did not perform the precise stipulated task in either instance, therefore neither determination binds the parties. The expert is not functus officio and must prepare a binding determination in accordance with the contract. There was no manifest error in the approach to embedded CGT, as the differences were a matter entrusted to the expert's judgment. As to trust distributions, Penlop Pty Ltd is entitled only to declared distributions from the Yan Unit Trust made after 22 June 2023 as specified.

Court Disposition

Declaration as to construction of clause; Summons and Cross-Summons otherwise dismissed.

Orders

  • Declare that Penlop Pty Ltd is entitled to any distributions from the Yan Unit Trust which are declared after 22 June 2023 in accordance with para [141] of the judgment.
  • Otherwise dismiss the Amended Summons and Amended Cross-Summons.