Federal Court of Australia

Liu v Huang [2026] FCA 1410

ORDERS

THE COURT ORDERS THAT:

1.    The further hearing of the applicant’s interlocutory application lodged on 2 July 2026 is adjourned.

2.    The applicant is to provide to chambers, and to the respondents, a particularised calculation of the applicant’s claim to interest at [3] of the interlocutory application by 4.00 pm on 2 October 2026, calculated to 1 October 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCELWAINE J:

1    Jinhua Liu commenced this proceeding in January 2020. Breach of three agreements entered in 2018 are pleaded together with claims for misleading or deceptive conduct and, or alternatively, unconscionable conduct contrary to the Australian Consumer Law (ACL). Each claim concerns assistance to be provided to Jinhua “in the form of setting up business structures to assist” Jinhua to migrate to Australia. More particularly, that Robert Huang would take steps to lay the foundation for an application for a Business Talent (Permanent) visa (subclass 132). This visa class was closed with effect from 1 July 2021.

2    The first agreement is identified as partly written, partly oral and partly to be implied, and was entered into between 4 July and 8 August 2018. The second agreement (Chinese agreement) is in writing dated 4 July 2018. The third agreement (English agreement) is dated 8 August 2018. The essential terms are common across the agreements. Jinhua agreed to pay $3 million to Robert and a related company Oxford on Crown Gold Coast Pty Ltd, the second respondent. Payment was required by instalments and between 4 July and 11 September 2018 a total of $2,150,000 was paid. Robert agreed to provide somewhat vague migration assistance to Jinhua, including by endeavouring to develop with Jinhua a property at Southport in Queensland. He agreed to provide as security apartments 1302/51 and 903/51 Crown Street, Wollongong in New South Wales. At the time, Crown Street was a development site (Crown Street Development).

3    Jinhua contends that in breach of each agreement, Robert failed to “commence establishing business structures”, did not provide apartments 1302 and 903 as security and sold apartment 903 to a third party. This is said to amount to a repudiation of the agreements, which Jinhua accepted with consequential termination. Further, Jinhua claims that Robert made representations to him about the assistance he could provide to set up business structures for the purpose of enabling his visa application, which were false because Robert did not have the necessary expertise and did not intend to apply the amounts paid for that purpose. Additionally, Robert’s conduct was in the circumstances unconscionable within the meaning of the unwritten law and s 20 of the ACL.

4    Jinhua, Robert and Oxford reached a compromise as documented in a Deed of Settlement and Release. The counterparts are dated March 2023 and 5 April 2023. Broadly the Deed required Robert and Oxford to pay Jinhua the Settlement Sum of $2,150,000 (less certain adjustments where applicable) on or before the Settlement Date (which comprised moving parts, but with the ultimate sunset date of 14 August 2023). The Deed provided for the usual releases and by cl 10:

Upon signing this Deed of Settlement, Liu, Huang and [Oxford] agree to sign and file with the Court consent orders striking out the Proceeding with a right of reinstatement with no orders as to costs.

5    Now, pursuant to that clause a consent memorandum was provided to my chambers and on 5 April 2023, I ordered by consent that the proceeding be struck out with a right of reinstatement with no order as to costs.

6    Jinhua, by interlocutory application lodged on 2 July 2026, seeks orders that:

1.    Pursuant to Order 1 of the orders made by the Honourable Justice McElwaine on 5 April 2023, the Proceeding be reinstated.

2.    Pursuant to section 31A(1) of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth), judgment be entered in favour of the Applicant against the First Respondent and the Second Respondent, jointly and severally, in the sum of $2,150,000.00.

3.    The First Respondent and the Second Respondent pay the Applicant interest on the sum referred to in paragraph 2 above, calculated at the rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic), from 1 May 2026 to the date of judgment, pursuant to clause 11.2(b)(ii) of the Deed of Settlement and Release dated March 2023 (Deed).

4.    The First Respondent and the Second Respondent pay the Applicant interest on the judgment sum from the date of judgment until payment pursuant to section 52 of the Federal Court of Australia Act 1976 (Cth).

5.    The First Respondent and the Second Respondent pay the Applicant’s costs of the Proceeding (including this application and the costs of reinstatement) on an indemnity basis, pursuant to clause 11.2(b)(iii) of the Deed.

6.    The Applicant have liberty to apply on three (3) days’ notice for any further or consequential orders, including in aid of enforcement.

7.    Such further or other order as the Court considers appropriate.

7    The affidavit evidence in support is from Esther Dong, the solicitor for Jinhua, dated 16 June and 23 September 2026 and Jinhua dated 11 June 2026 (in the form of a certified English translation as Jinhua resides in China and his language is Mandarin). There is an affidavit from the interpreter Yan Cheng dated 11 June 2026. Robert resists the interlocutory application and relies on his affidavit of 28 July 2026. He also emailed an affidavit to my chambers on 24 September 2026, which is concerned with steps recently taken, that is since filing the interlocutory application, to facilitate compliance with the Deed. Ms Tyson objected to the receipt of that evidence, which I upheld because it was not affirmed by Robert. On 28 September 2026, Robert emailed another affidavit to my chambers, together with his written submissions. At the hearing, I granted leave for Robert to file a further written submission because he appeared remotely, the connection was not satisfactory and his accent made it very difficult to follow his submissions. I have read the submission, but not the further affidavit. Robert should understand that it is not open to any party to file evidence once a hearing is concluded, except in unusual circumstances and only after a successful application for leave to adduce further evidence.

8    The orthodox affidavits were read without objection or requirement for cross-examination.

9    A preliminary issue is whether it is open to Jinhua to apply for reinstatement of the proceeding. Ordinarily, when a proceeding has been compromised, a breach of the settlement terms gives rise to a new cause of action enforceable in a new proceeding. The Deed does not expressly provide that, in the event of breach, Jinhua may have recourse to the original claim. However, by cl 9.1 the release by Jinhua is conditional:

Subject to settlement of the Contracts of Sale and payment of the Settlement Sum in accordance with clause 4, and upon full compliance with the terms of this Deed, Liu releases and forever discharges Huang and [Oxford], their officers, employees and agents from all Claims, demands, suits and costs of whatsoever nature arising out of, or in any way connected directly or indirectly with the Proceeding and subject matter of the Proceeding. For clarity, the release does not extend to any Claims or Liabilities covered by the Huang Indemnity.

10    Jinhua contends that the Deed has not been complied with by Robert and Oxford. If that is established, then cl 11 of the Deed provides for the determination of a Default Sum which becomes immediately payable upon issue of a Default Notice. The clause provides:

11.1    The following events are each a Triggering Event for the purpose of this clause 11:

(a)    execution and exchange of the Contracts of Sale does not occur by 31 July 2023;

(b)    settlement of the Contracts of Sale does not occur on or before the Settlement Date;

(c)    if Liu rescinds one or both of the Contracts of Sale for any reason;

(d)    documents evidencing availability of funds sufficient for payment of the Settlement Sum is not provided to Liu’s solicitors by 24 July 2023 in accordance with clause 3;

(e)    payment of the Settlement Sum is not made in accordance with clause 4;

(f)    Huang attempts to refinance the Wollongong Property and does not provide an unconditional letter of offer and associated loan and mortgage documentation entered into or to be entered into to Liu in accordance with clause 5(a);

(g)    payment of funds raised from refinance is not made in accordance with clause 5(b) and 5(c);

(h)    Huang attempts to refinance the Southport Property and does not provide an unconditional letter of offer and associated loan and mortgage documentation entered into or to be entered into to Liu in accordance with clause 6(a);

(i)    payment of funds raised from refinance is not made in accordance with clause 6(b) and 6(c); or

(j)    for any reason, Liu is not the sole registered proprietor of the Units within 7 days of the Settlement Date,

then Liu’s Solicitors shall be entitled to give written notice to Huang and/or [Oxford] of the Triggering Event(s) (Default Notice) and that Huang is required within 30 days of the Default Notice, to pay to the Nominated Account the amount of $2,150,000 (being the Advances described in Recital C), less the following:

(k)    if the Contract of Sale of Unit A804 has settled, the A804 Purchase Price (including the deposit) and any Adjustments for Unit A804 in favour of Liu paid by PCI; and

(l)    if the Contract of Sale of Unit A1104 has settled, the A1104 Purchase Price (including the deposit) and any Adjustments for Unit A1104 in favour of Liu paid by PCI: and

(m)    any Stamp Duty and Fees paid, at the date of the Default Notice (provided that one or both of the Contracts of Sale have settled); and

(n)    any payment received by Liu or Liu’s Solicitors in accordance with clauses 3, 4 and/or 5.

(Default Sum)

11.2    If Huang or OCGC fail to comply with the Default Notice given under clause 11.1, then:

(a)    the Default Sum, will become immediately due and payable jointly and severally by Huang and OCGC;

(b)    Liu, at his unfettered discretion, is entitled to re-instate the Proceeding against Huang and OCGC to recover the Default Sum without further notice to Huang and OCGC and, in the Proceeding, apply for summary judgment for:

(i)    the Default Sum;

(ii)    interest at the penalty interest rate as fixed under section 2 of the Penalty Interest Rates Act 1983(Vic) from the date of default to judgment; and

(iii)    the costs of reinstating the Proceeding and obtaining judgment on an indemnity basis.

11.3    For the purpose of obtaining judgment pursuant to the provisions of clause 11.2 Huang and OCGC hereby agree that:

(a)    this Deed may be produced to the Court as evidence of Huang and OCGC's irrevocable consent to such judgment; and

(b)    that an affidavit by Liu's Solicitor will be sufficient evidence that a Triggering Event has occurred, that the Default Notice has been served on Huang and/or OCGC (as the case may be) and the Default Sum is payable by Huang and/or OCGC to Liu pursuant to clause 11.2, and as to the amount of the Default Sum.

11    An order that a proceeding be struck out with a right of reinstatement is not one ordinarily made in this Court, although it appears to be more common in Victorian courts. In Herald and Weekly Times Pty Ltd v Victoria [2006] VSCA 146; (2006) 25 VAR 124, Chernov, Nettle and Ashley JJA observed at [19] (when deciding whether the Victorian Civil and Administrative Tribunal had power to reinstate a proceeding):

Generally, as was pointed out by Kaye J in R v McGowan; Ex parte Macko & Sanderson [1984] VR 1000 an order striking out an action does not terminate it. The latter occurs where judgment is entered in the proceeding or where it is discontinued. An order striking out an action, said his Honour, only has the effect of removing it from the list.

12    In this Court, r 39.03 of the Federal Court Rules 2011 (Cth) provides for dismissal of a proceeding “without prejudice to any right of the applicant to bring a fresh proceeding” or for “leave to claim the same relief in a new proceeding”. There is authority pursuant to an equivalent rule that an order made in the exercise of this power does not contravene the finality principle: Ferella v Otvosi [2005] NSWSC 678; (2005) 63 NSWLR 523.

13    I accept that the effect of the order of 5 April 2023, when read with the Deed, is that the striking out of the proceeding did not terminate it and it may be reinstated for the purpose of determining the interlocutory application. The proceeding was not finally determined. The order was procedural, entered without a hearing and as such no res judicata applies: Zetta Jet Pte Ltd v The Ship Dragon Pearl (No 2) [2018] FCAFC 132; (2018) 265 FCR 290 at [30], [34] and [50], Allsop CJ, Moshinsky and Colvin JJ. Although this Court’s individual docket system does not provide an equivalent to the removal of a proceeding from the list of cases to be heard, that procedural difference does not affect the parties’ agreement reflected in the consent order. That is, Jinhua was entitled to apply for the reinstatement of the proceeding in the event of default by Robert, Oxford, or both, in complying with the settlement terms as expressed in the Deed.

14    Jinhua’s evidence establishes the following by reference to the Deed. By cl 2 Robert undertook to use his best endeavours to procure the execution and exchange of contracts of sale by PSR Crownview Investment Pty Ltd as the vendor for apartments A804 and A1104 in the Crown Street Development within 30 days of the issue of an occupation certificate for those apartments or 31 July 2023, whichever is the earlier. Clause 1 identifies the purchase price for those units as $770,000 and $790,000 respectively.

15    Clause 1 further defines the “Contract of Sale” for those apartments as the contracts set out in schedules 1 and 2. Each is a standard form contract for the sale of real property in New South Wales. The purchaser is not identified.

16    Nonetheless Jinhua’s evidence is that he was the intended purchaser under each proposed contract, that neither was executed, and that no settlement occurred. It follows that Jinhua was not registered as proprietor of either apartment. The Settlement Sum as defined at cl 1 provided for various adjustments:

Settlement Sum means $2,150,000

(a)    less the A804 Purchase Price (which for the avoidance of doubt includes the A804 Deposit); and

(b)    less the A1104 Purchase Price (which for the avoidance of doubt includes the A1104 Deposit): and

(c)    less Stamp Duty and Fees:

(d)    if the Adjustments for Unit A804 result in:

(i)    a payment by Liu to PCI, then less Adjustments for Unit A804; or

(ii)    a payment by PCI to Liu, then plus Adjustments for Unit A804; and

(e)    if the Adjustments for Unit A1104 result in:

(i)    a payment by Liu to PCI, then less Adjustments for Unit A1104; or

(ii)    a payment by PCI to Liu, then plus Adjustments for Unit A1104.

(f)    less $10,000 for paying the accountant(s) for all work necessary to give effect to clause 7 of this Deed.

17    Clause 2 of the Deed discloses the logic of the deductions at (a) – (e). On execution and then settlement of the Contracts of Sale, Robert accepted the obligation to procure payment of the deposits and the balance of the purchase price. It follows that no deductions from the Settlement Sum are required relating to the purchase of the apartments. As to the residual deduction at subclause (f), it is concerned with the resignation of Jinhua as a director of Australian Golden Care Pty Ltd and deregistration of that company. There is no evidence that Jinhua resigned, that accountants were engaged or that it was deregistered.

18    The Deed further provides at cl 4 that on or before the Settlement Date, Robert and Oxford jointly and severally agreed to pay Jinhua the Settlement Sum by electronic funds transfer to a nominated account. Jinhua’s evidence is that no payment was received on or before the sunset date of 14 August 2023. The definition of the Settlement Date at cl 1.1 contemplated that Jinhua might extend the time pursuant to cl 37.3 of the special conditions of each of the Contracts of Sale. That issue does not arise because the contracts were never executed.

19    The facts as found above establish the Triggering Events at cl 11.1(a), (b), (e) and (j). Jinhua’s solicitors served a Default Notice on Robert on or about 31 March 2026 by express post and email. That notice identified several Triggering Events in default, including the subparagraphs of cl 11.1 just referred to. The notice demanded payment of $2,150,000 as the correctly calculated Default Sum and nominated a bank account into which the funds were required to be paid. There is no dispute that the Default Sum has not been paid.

20    Jinhua’s evidence, which Robert does not dispute, is that on or about 9 April 2026 he had a telephone discussion with Robert through the WeChat audio facility during which Robert confirmed receipt of the Default Notice and said words to the effect of “see you in court”. Jinhua further deposed that on or about 27 May 2026, Robert telephoned him through the WeChat audio facility and advised that occupation certificates for apartments A804 and A1104 had been obtained and that he would forward the purchase contracts for execution. Jinhua’s evidence is that he has not received any further communication from Robert, nor has he received the contracts. Robert does not traverse that evidence, and I accept it.

21    Summary judgment may be entered pursuant to s 31A(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) if the Court is satisfied that Robert has no reasonable prospect of successfully defending the proceeding. It is not a necessary precondition to the exercise of the power to enter summary judgment in favour of an applicant that any defence be hopeless or bound to fail: s 31A(3). Nonetheless, as is well understood, the discretion to enter summary judgment requires the applicant to discharge a heavy burden and the discretion is to be exercised cautiously: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24] – [25] French CJ, Gummow J. If there is a real or triable question of fact to be determined between the parties, summary judgment is unlikely to be granted.

22    Robert’s evidence in opposition to the interlocutory application raises the following. On 19 December 2022, a Prohibition Order was issued and served relating to defects in the Crown Street Development. Orders of that type are authorised by s 9 of the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW), which provides for the making of an order prohibiting the issue of an occupation certificate in relation to a residential apartment building and, if relevant, the registration of a strata plan for a strata scheme relating thereto if, inter alia, the Secretary is satisfied that a serious defect in the building exists. The Prohibition Order was issued by a delegate of the Secretary, David Chandler, the Building Commissioner of the New South Wales Fair Trading Department of Customer Service. The Prohibition Order identifies serious building defects and prohibits the issue of an occupation certificate or the registration of a strata plan for the strata scheme unless the order is revoked.

23    Robert’s evidence is that the Prohibition Order prevented satisfaction of cl 2 of the Deed. His evidence is:

The Prohibition order strictly prohibited the issue of any occupation certificate or the registration of a strata plan for the building. Consequently, it was a legal impossibility for the respondents to settle the property contracts by the dates initially contemplated in the Deed.

24    Robert’s evidence is that for that reason he insisted on the insertion of a force majeure provision which became cl 14.14:

Neither party shall be liable for any delay in performing or failing to perform its obligations hereunder to the extent that and for so long as the delay or failure results from any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event”). Force Majeure Events shall include but not be limited to the following:

(a)    strikes, lockouts or other industrial action (other than strikes, lockouts or other industrial action of the party seeking to rely on the Force Majeure Event);

(b)    civil commotion, riot, invasion of war (whether declared or not) or threat of or preparation for war;

(c)    fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic or other natural disaster;

(d)    impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

(e)    if a Force Majeure Event lasts for more than thirty (30) days during which the party affected by the Force Majeure Event is prevented from performing its obligations in whole or to a material extent, either party may terminate this Agreement by giving not less than fourteen (14) days’ written notice to the other party.

25    That contention does not raise a defence that has a reasonable prospect of success. The Prohibition Order was in force when the Deed was executed. Robert nevertheless accepted the obligations imposed by cl 2 of the Deed to use his best endeavours to procure the execution of contracts of sale for each of the apartments within 30 days of the issue of an occupation certificate or by 31 July 2023 (whichever is the earlier) and to settle those contracts no later than 14 August 2023. To the extent the Prohibition Order impeded performance of Robert’s obligations, he expressly accepted that risk knowing that he could not comply absent revocation. The Prohibition Order was not a force majeure event as the Deed expressly allocated the known risk of its effect to Robert. Objectively, cl 14.14 cannot be reasonably construed as operating in favour of Robert when the impediment created by the Prohibition Order was known to him when he executed the Deed and nonetheless, he agreed to the time limits specified at cl 2: see generally the discussion in Asia Pacific Resources Pty Ltd v Forestry Tasmania (No 2) [1998] TASSC 50; [1998] Aust Contract Reports 90-095; Thomson J, Warnick L and Martin K, Commercial Contract Clauses: Principles and Interpretation (4th ed, Thomson Reuters, 2024) [70460] at pp 773 – 779. Robert’s subjective reason for including the clause is irrelevant to its objective meaning.

26    The next matter Robert raises is that the builder contracted to undertake the Crown Street Development, and by inference to address the defects referred to in the Prohibition Order, was placed into liquidation on 9 July 2025. In consequence, he submits that this was “a major, preventable disruption entirely beyond the reasonable control of the respondents” and therefore an event within the force majeure clause. There are two insurmountable difficulties with that. One, the Deed required the Contracts of Sale to be executed, exchanged and settled by no later than 14 August 2023; the external administration of the contractor occurred almost two years thereafter. The other is the external administration of the contractor was not an event within cl 14.14 that relieved Robert and Oxford of the separate obligation at cl 4 to pay the Settlement Sum on or before 14 August 2023, being the outer limit of the Settlement Date. As Ms Tyson correctly submits, the obligation to pay the Default Sum was triggered when the Default Notice was served which is unrelated to the insolvency of a third party. No causal connexion exists: World Touring Melbourne Ltd v Australian Grand Prix Corporation [2024] VSC 521 at [205], and the cases there cited by Croft J.

27    Robert also contends that Jinhua agreed to vary the Deed or alternatively waived certain rights pursuant to it. His evidence is that in early 2024, Jinhua was aware of the delay in progressing building work at the Crown Street Development. In March 2024, Jinhua’s wife travelled to Australia and conducted an on-site inspection. In consequence, his evidence is that on 30 March 2024:

[B]oth parties reached an explicit agreement via WeChat (upon consent of the applicant) to vary the settlement parameters and addressed the delay to avoid parties going back to court again.

28    Robert’s affidavit attaches the Mandarin version and a certified translation of the WeChat exchange:

[Jinhua’s wife]: General Manager Huang (Robert Huang) reached an agreement on 30 March 2024 regarding the delay in processing the property purchase certificates and settlement for Wollongong properties 804 and 1104/373 Crown Street, Wollongong NSW 2500. Upon receiving the occupancy certificate, General Manager Huang will promptly notify and assist Jinhua Liu to apply for the property purchase qualification and bear half of the qualification application fees, with the remaining half to be borne by Jinhua Liu personally. The portion to be borne by Jinhua Liu will be advanced by General Manager Robert Huang first. After the property settlement is completed, the purchase certificate fees advanced by General Manager Robert Huang will be deducted from the remaining cash balance.

[Robert]: Received, I agree to the above contents including bearing half of the property purchase qualification fees.

[Jinhua’s wife]: General Manager Huang, thank you for your hard work! Thank you for the hospitality you provided during my trip to Australia and thank you also for giving me your commitment at the end. Hoping to see you again in October. At that time, I will have Lao Liu (Mr. Liu) have a drink with you.

[Robert]: It is you who have worked hard, Mrs. Liu! Thank you for travelling ten thousand miles to ultimately turn weapons into jade and silk (idiom: to resolve conflict and make peace). Please forgive any shortcomings in my hospitality! Please pass my words onto General Manager Liu: The bright moon remains, waiting for the colourful clouds to return.

29    That exchange does not raise a matter that may provide a reasonable defence to the claim, if subsequently pleaded. There is no evidence that the wife of Jinhua had authority to negotiate and agree on his behalf, but on the summary judgment application Ms Tyson did not take that point. The reference to the “property purchase qualification” is explained in Robert’s affidavit as the requirement for a foreign resident to apply for approval from the Foreign Investment Review Board to own real estate in Australia. That arrangement has nothing to do with the obligation to pay money pursuant to the Deed. It did not operate to displace the accrued rights of Jinhua to rely on one or more of the other Triggering Events at cl 11.1. At best it is evidence of a future arrangement to contribute to the payment of a fee if the Contracts of Sale were entered into, which was not the case when the Default Notice was served which created the obligation to pay the Default Sum. Another difficulty is that the arrangement cannot amount to a contractual variation because cl 14.5 provides that a variation of the Deed “must be in writing and signed by the parties”.

30    On no objective view can the WeChat exchange or the evidence of Robert support a reasonable defence of waiver or estoppel. Waiver at common law may operate on an identified promise or representation that a party will not enforce a contractual right (see generally the discussion in Heydon JD, Heydon on Contract (Thomson Reuters, 2019) [5.550] – [5.590] at pp 164 – 165) but not inconsistently with the Deed which at cl 14.6 provides:

Waiver

(a)    No right under this Deed is waived or deemed to be waived, except by written notice signed by the party waiving the right.

(b)    A party does not waive its rights under this Deed by granting an extension or forbearance to another party.

31    In equity cl 14.6 may not prevail if the variation is supported by valuable consideration: Hawcroft General Trading Co Pty Ltd v Hawcroft [2017] NSWCA 91 at [35], Leeming JA. The consideration being payment of “half of the qualification application fees” for “the property purchase qualification” is not consideration for the variation of the accrued right to give a Default Notice under cl 11. The arrangement fails to identify which of the Deed obligations is varied or the new dates for performance of the multiple obligations of Robert and Oxford. It has nothing to do with performance of the primary obligation to pay the Settlement Sum. The reference to “upon receiving the occupancy certificate” is without limitation as to time and cannot objectively be construed as displacing the dates in the Deed, where time was of the essence: cl 14.9.

32    In any event, as explained in Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38; 277 CLR 445 at [28] waiver requires “an unequivocal decision by a party, communicated to the other party, not to insist upon a right or not to exercise a power”. The WeChat messages are not of that character. Further at [29], “waiver of a right is rarely irrevocable” and may be revoked on reasonable notice; which is what occurred in this case by service of the Default Notice.

33    The evidence about variation does not raise a reasonable prospect of defence.

34    The asserted agreement cannot amount to equitable estoppel. Fundamentally, what is lacking is clarity in the representation that Robert relies on, for the reasons above: Crown Metropolitan Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1 at [35].

35    Nor does the evidence raise any reasonable prospect of establishing reliance and detriment coupled with a subsequent unjust departure by the representor, each of which is necessary for a defence of estoppel in pais: Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507 at 547, Dixon J; and for promissory estoppel: Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 at 428 – 429, Brennan J. Reliance is disavowed by Robert’s subsequent conduct in purporting to terminate the Deed by serving notice of termination pursuant to cl 14.14(e) on 15 July 2026 on the ground that performance became impossible when the building contractor was wound up.

36    Consequently, there is no merit in Robert’s further contention that Jinhua repudiated the Deed as varied and that in consequence he was entitled to give his notice of termination.

37    I am therefore satisfied that Jinhua has established an entitlement to summary judgment in his favour against Robert and Oxford in the amount of $2,150,000.

38    As to the claim for pre-judgment interest pursuant to cl 11.2(b)(ii), Jinhua has not produced any evidence of the calculation of that amount. However, it is a matter of mathematical calculation and before judgment is formally entered, Jinhua should be afforded the opportunity of calculating the amount to the date of publication of these reasons. The claim for interest pursuant to s 52 of the FCA Act is misconceived. The judgment, once entered, carries interest until it is paid.

39    The claim for indemnity costs rests on the entitlement pursuant to clause 11.2(b)(iii) of the Deed. Jinhua has not adduced any evidence of the quantum of the legal costs incurred in reinstating the proceeding and in obtaining summary judgment. However, there is no reason why costs should not be ordered on an indemnity basis in reliance upon the contractual entitlement.

40    At this stage the appropriate order is to adjourn the further hearing of the interlocutory application for a short period to enable the solicitor for Jinhua to provide the particularised interest calculation under cl 11.2 (b)(ii) of the Deed to my chambers. If I determine the calculation to be correct, judgment will then be entered conformably with these reasons.

Associate:

Dated:    1 October 2026