Chong v Wu [2010] NSWCA 10

Chong v Wu [2010] NSWCA 10

The respondent established a defence of change of position because the primary judge accepted that all funds received had either been lost in gambling or returned to the first defendant. The appellant did not demonstrate error in the primary judge’s acceptance of the respondent’s evidence or inferences; the credit-based findings could not be overturned. The respondent was unaware at the relevant times that funds originated from the appellant rather than the first defendant.

Parties
Appellant: Qingyi Chong; Respondent: Hong Wei Wu
Jurisdiction
Australia
Judgment Date
02 March 2010
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
Moneys Had and Received, Change of Position Defence, Third Party Recipient, Tracing
Restitution Moneys Had and Received Change of Position Defence Third Party Recipient Tracing

Case Brief

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Parties

Qingyi Chong

Appellant

Hong Wei Wu

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the respondent (third party recipient) could rely on the defence of change of position in answer to a claim for moneys had and received by the appellant
  2. 2 Whether the respondent knew or ought to have known the funds came from the appellant without the appellant’s authority

Ratio Decidendi

The respondent established a defence of change of position because the primary judge accepted that all funds received had either been lost in gambling or returned to the first defendant. The appellant did not demonstrate error in the primary judge’s acceptance of the respondent’s evidence or inferences; the credit-based findings could not be overturned. The respondent was unaware at the relevant times that funds originated from the appellant rather than the first defendant.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.