By Michael Morgan -
Key decisions
- He v Kure [2023] NSWCA 179
CONTRACTS
Action for recovery of debts due under loan agreements – whether loans repaid in circumstances where debtor authorised to open and operate term deposits in creditor’s name and term deposits in creditor’s name opened by debtor in the amount of debt.
He v Kure [2023] NSWCA 179 (Meagher JA, Kirk JA and Griffiths AJA)
The appellant (‘Ms He’) and the respondent (‘Mr Kure’) grew up together in Shanghai, China. In early 2007, Mr Kure was living in Japan and Ms He was living in Sydney engaged in an embroidery business with Italasia Pty Ltd (‘Italasia’). In January 2007, Mr Kure authorised Ms He to operate bank accounts in one of his names held by both Citibank and the Commonwealth Bank of Australia (‘CBA’). Mr Kure’s authority enabled Ms He ‘to make and roll over term deposits on his behalf, and to receive bank statements and other communications with respect to those accounts and deposits’ (at [3]).
The first loan
In May 2008, a total of $633,774.57 was moved through a series of transactions from a term deposit with Citibank to Italasia’s account with the National Australia Bank. This was followed by further transactions resulting in those funds being transferred to CBA accounts. Mr Kure asserted that this was the first loan made by him to Ms He. This was denied by Ms He (at [19]-[21]).
The second and third loans
On 25 March 2009, $312,000 was advanced from Kuandao Wu (a name Mr Kure was previously known by) to a mortgage account for Italasia. On 1 May 2009, $159,738.43 was advanced from Kuandao Wu to Ms He. It was contended by Mr Kure and accepted by Ms He that these were loans (at [4]-[5]).
