Uy v Ng (No 2) [2021] NSWSC 605

Uy v Ng (No 2) [2021] NSWSC 605

The plaintiff failed to prove either alleged oral agreement. The Court did not accept his evidence that there was an agreement to pay a $500,000 commission, noting the lack of support in contemporaneous documents, the absence of any mention of commission for about three years, and the more credible evidence of the defendants. The Court also found that the $800,000 was paid as part of arrangements for payments to Everest in reduction of GR Capital's indebtedness, through Mr Liu's guarantee, and was not impressed with any express or implied trust and was not a loan repayable to the plaintiff.

Jurisdiction
Australia
Judgment Date
31 May 2021
Procedural Posture
Equity Commercial List; Contract and Trust Claims / Principal Judgment After Hearing
Outcome
Proceedings dismissed with costs.
Legal Topics
['oral Agreement' 'commission' 'construction Finance' 'trust Account Payments' 'express or Implied Trust' 'loan Repayable on Demand' 'barnes V Addy Liability' 'civil Standard of Proof']
['contract' 'equity' 'trusts'] ['oral Agreement' 'commission' 'construction Finance' 'trust Account Payments' 'express or Implied Trust' 'loan Repayable on Demand' 'barnes V Addy Liability' 'civil Standard of Proof']

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Procedural Posture

Equity Commercial List; Contract and Trust Claims / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendants orally agreed to pay the plaintiff a $500,000 commission or red pocket for introducing or promoting Everest as financier to GR Capital.' "Whether the $800,000 paid into Ashurst's trust account was held on trust for the plaintiff or was a loan repayable on demand." 'Whether Everest Private was liable as a knowing participant in or recipient of any breach of fiduciary duty by Mr Ng.' 'Whether the plaintiff discharged the civil onus of proof in relation to the alleged oral agreements.']

Ratio Decidendi

The plaintiff failed to prove either alleged oral agreement. The Court did not accept his evidence that there was an agreement to pay a $500,000 commission, noting the lack of support in contemporaneous documents, the absence of any mention of commission for about three years, and the more credible evidence of the defendants. The Court also found that the $800,000 was paid as part of arrangements for payments to Everest in reduction of GR Capital's indebtedness, through Mr Liu's guarantee, and was not impressed with any express or implied trust and was not a loan repayable to the plaintiff.

Court Disposition

Proceedings dismissed with costs.

Orders

  • ['Dismiss the Amended Summons filed on 12 June 2020.' "Order the plaintiff to pay the defendants' costs of the proceedings." "Note the defendants' intention to seek a special costs order in the event that these proceedings are dismissed and direct the parties to bring in consent orders in respect of costs within 14...