Deng v Lieu & Ors [2009] NSWIRComm 5

Deng v Lieu & Ors [2009] NSWIRComm 5

The trial judge erred in law and fact by finding the contracts unfair and making consequential orders where Landmark paid nothing for its 49% shareholding, the liquidator had settled any outstanding debt, and there was no basis for the distributive orders made. The expert evidence upon which financial findings were made was inadmissible, and the remoteness of respondents' interest after settlement rendered the orders inappropriate. The costs orders below were also erroneous given these substantive findings.

Jurisdiction
Australia
Judgment Date
20 February 2009
Procedural Posture
Appeal / Judgment on Leave to Appeal and Appeal
Outcome
Appeal allowed; decisions/orders below set aside; further submissions on costs invited.
Legal Topics
['unfair Contract' 'sale of Business' "shareholders' Agreement" 'costs Orders' 'variation of Contract']
['industrial Law' 'contract Law'] ['unfair Contract' 'sale of Business' "shareholders' Agreement" 'costs Orders' 'variation of Contract']

Case Brief

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Procedural Posture

Appeal / Judgment on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the trial judge erred in finding relevant unfairness in the contractual arrangements between the parties' 'Whether the trial judge failed to have sufficient regard to the rights and obligations of the companies in respect of monies available to them' "Whether the trial judge erred in failing to order the respondents to pay 50% of the applicants' costs, after departing from the presumption the successful party is entitled to costs"]

Ratio Decidendi

The trial judge erred in law and fact by finding the contracts unfair and making consequential orders where Landmark paid nothing for its 49% shareholding, the liquidator had settled any outstanding debt, and there was no basis for the distributive orders made. The expert evidence upon which financial findings were made was inadmissible, and the remoteness of respondents' interest after settlement rendered the orders inappropriate. The costs orders below were also erroneous given these substantive findings.

Court Disposition

Appeal allowed; decisions/orders below set aside; further submissions on costs invited.

Orders

  • ['Leave to appeal is granted.' 'The appeal is upheld.' 'The decisions and orders of Staff J that were the subject of this appeal are set aside.' 'The third respondent shall within 14 days file any submission as to costs. The appellant and the other respondents shall have a further 14 days to respond. Costs will be...