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China Insurance Group Finance Company Limited v Kingston, Phillip James (No 3) [2023] VSC 6

CONTRACT, UNCONSCIONABLE CONDUCT, FOREIGN LAW, EVIDENCE
Supreme Court of Victoria
Division: 
Commercial Court
Judge(s): 
Delany J
Parties: 

China Insurance Group Finance Company Limited v Kingston, Phillip James (No 3)

Judgment Date: 
19 January 2023
Catchwords: 

CONTRACT - Loan agreements - Action for recovery of loans made to the defendant personally - Counterclaim raising a multiplicity of issues - Whether defendant was induced to enter into the agreements by representations the agreements would not be enforced against him personally and that the sole recourse would be to the security provided in connection with the loans - Whether plaintiff estopped by reason of representations - Whether plaintiff engaged in misleading and deceptive conduct - Whether plaintiff engaged in unconscionable conduct - Application of the Money Lenders Ordinance (Hong Kong) cap 163 of the Hong Kong Special Administrative Region - Construction of the loan agreements - Allegations raised by the defence and counterclaim not established - Judgment for the plaintiff.

UNCONSCIONABLE CONDUCT - Australian Securities and Investments Commissions Act 2001 (Cth), ss 12BAA(7)(k), 12BAB, 12CB, 12CC, 12GBCL, 12GM - Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1, applied - Unique International College Pty Ltd v Australian Competition and Consumer Commission (2018) 266 FCR 631; Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; Smash Enterprises Pty Ltd v Euromark Ltd [2022] VSCA 267, referred to.

FOREIGN LAW - Application of the Money Lenders Ordinance (Hong Kong) cap 163 of the Hong Kong SAR, ss 18(1), 18(2), 22(1), 25(2) - Hong Kong Shanghai (Shipping) Ltd v The Owners of the Ships or Vessels "Cavalry" (Panamanian Flag) [1987] HKLR 287; China Merchants Bank v Minvest International Limited [2001] HKCFI 763, referred to.

EVIDENCE - Tender of a foreign document - Evidence Act 2008 (Vic), s 49 - Failure to call a material witness - Adequacy of explanation - Larner v George Western Foods [2014] VSCA 62 applied; Jones v Dunkel (1959) 101 CLR 298, referred to.

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