VINPAC INTERNATIONAL PTY LTD v ZHANG & ORS [2026] SADC 60
Applicant: VINPAC INTERNATIONAL PTY LTD Counsel: MS M HAMLYN - Solicitor: MINTER
ELLISON
Respondent: MR ZHUONAN (JACK) ZHANG No Attendance
Second Respondent: MRS RIHONG (ULA) WANG No Attendance
Third Respondent: MR SCOTT CURTIS In Person
Hearing Date/s: 06/11/2025
File No/s: CIV-23-014405
B
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply
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VINPAC INTERNATIONAL PTY LTD v ZHANG & ORS
[2026] SADC 60
Judgment of Her Honour Judge Mackenzie
26 May 2026
DAMAGES – ASSESSMENT – CONCURRENT WRONGDOERS –
PROPORTIONATE LIABILITY – AUSTRALIAN CONSUMER LAW
Vinpac International Pty Ltd (Vinpac) was owed a substantial debt by Southern Bottling Company
Pty Ltd (SBC) at the time it was wound up in March 2021. SBC had run a wine export business to
China and Vinpac had supplied it with bottles. The first and third respondents (Mr Zhang and Mr
Curtis) had guaranteed SBC’s debt. Vinpac had earlier reached settlement with Mr Curtis, which
remained unrecovered.
Vinpac alleged Mr Zhang and the second respondent (Ms Wang), as directors of SBC, had engaged
in misleading or deceptive conduct for the purposes of section 18 of The Australian Consumer Law
(ACL) causing Vinpac to extend trade credit to SBC, ultimately resulting in the debt being incurred.
Following separate default judgments for liability against Mr Zhang and Ms Wang, the principal
issue for determination concerns the assessment of damages to be awarded in favour of Vinpac.
Vinpac only pursues Mr Zhang for the liquidated claim under the guarantee. Unliquidated damages
are sought against Ms Wang for the ACL judgment, noting it is an apportionable claim.
HELD:
(1) The GST exclusive amount of the outstanding debt ($1,561,919) owed by SBC to Vinpac
(Revised Loss) represents the quantified loss in respect of the claim under the contractual
guarantee.
(2) The Revised Loss also represents the loss suffered by reason of misleading or deceptive
conduct of the respondents.
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(3) Mr Zhang is liable to Vinpac in the amount of the Revised Loss representing his liability as
guarantor of SBC’s debts to Vinpac.
(4) The relevant misleading conduct resulting in the Revised Loss pursuant to s 18 of the ACL is
attributable to multiple persons (concurrent wrongdoers). SBC was not a concurrent
wrongdoer because its acts were not sufficiently independent of its officers.
(5) Based upon an evaluative assessment of the extent and force of the particular acts of each of
Mr Zhang, Ms Wang and Mr Curtis being causative of the misleading or deceptive conduct,
and the role of each played in inducing Vinpac’s decisions to advance and maintain credit and
continue to trade with SBC, the apportionment of the loss between them is :
• 30 percent to Mr Curtis;
• 35 percent to each of Mr Zhang and Ms Wang.
(6) Lump sum amounts awarded in lieu of pre-judgment interest.
(7) Lump sum costs ordered with capped amounts recoverable against each of Mr Zhang and Ms
Wang.
Australian Competition and Consumer Act 2010 (Cth); Uniform Civil Rules 2020 (SA); Wrongs Act
1958 (NSW); District Court Act 1991 (SA), referred to.
Stevens v Mayberry [2012] SASC 220; QBE Insurance Ltd v Nguyen (2008) 100 SASR 560; Watson
Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85; Chen v Lok [2020] SASC 14; Testel
Australia Pty Ltd v KRG Electrics Pty Ltd & Anor [2013] SASC 91; Leacon Pty Ltd v Angus Clyne
Australia Pty Ltd [2022] SADC 104; SJ Berry Pty Ltd v McEntee [2022] SASCA 133; Henville v
Walker (2001) 206 CLR 459; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; Re
Broons [1989] 2 Qd R 315; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574;
Re Neate, Ex parte Pegasus Leasing Ltd (1995) 134 ALR 233; King v Hoare (1844) 13 M&W 494;
Commonwealth Bank of Australia v Johnston (1990) 54 SASR 322; McDermott v Black (1940) 63
CLR 161; Murray-Oates v Jjadd Pty Ltd (1999) 76 SASR 38; Walker v Bowry (1924) 35 CLR 48;
Ehrenfeld v Oriana Nominees Pty Ltd [1999] WASCA 222; Baxter v Obacelo (2001) 205 CLR 635;
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; DSHE Holdings
Ltd (recs and mgrs apptd) (in liq) v Potts and Anor (2022) 405 ALR 70; Potts v National Australia
Bank Limited [2023] HCA 41; Stav Investments Pty Ltd v Taylor [2022] NSWSC 208; Ramadan v
ACN 098 408 176 Pty Ltd (No.3) [2024] SASCA 19, considered.
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VINPAC INTERNATIONAL PTY LTD v ZHANG & ORS
[2026] SADC 60
Introduction
1 This matter concerns a substantial debt of $1,561,919 owed by Southern
Bottling Company Pty Ltd (SBC) to Vinpac1 at the time SBC was wound up in
early 2021. The debt related to the supply of bottles for SBC’s wine export
business to China which appears to have suffered during the COVID-19 pandemic
and through China imposing tariffs on Australian wine in 2020.
2 Vinpac was left to pursue the respondents for recovery of the debt as they
were at relevant times the directors and officers of SBC. Mr Zhang and Mr Curtis
had guaranteed SBC’s debts to Vinpac. Vinpac also alleged that Mr Zhang and
Ms Wang, as directors, had engaged in misleading or deceptive conduct causing
Vinpac to extend trade credit to SBC ultimately resulting in the debt being
incurred.
3 Following default judgments for liability entered against Mr Zhang and Ms
Wang, the principal issue before me concerns the determination of the damages to
be awarded in favour of Vinpac. It is also necessary for me to assess costs and
pre-judgment interest against each of Mr Zhang and Ms Wang.
4 Earlier consent orders agreed between Vinpac and Mr Curtis, addressing both
liability and relief, finalised the claim brought against him, including as to interest
and costs.
5 The principal relief claimed against Mr Zhang is for a liquidated sum
pursuant to the guarantee he provided in favour of Vinpac. Vinpac no longer
presses for a separate assessment of the damages in respect of misleading or
deceptive conduct claim against him.
6 Against Ms Wang, I will need to assess damages under section 236 of The
Australian Consumer Law (ACL) for loss caused by misleading and deceptive
conduct contravening section 18 of the ACL, pursuant to matters addressed at trial
under UCR 142.9(3).
7 I am mindful that having regard to the liquidated sum recoverable from Mr
Curtis pursuant to the consent orders, it will be necessary to determine the relief
against Mr Zhang and Ms Wang in a non-cumulative way such that Vinpac
receives no more than one satisfaction of its loss.
8 There is good reason having regard to ensuring the just, efficient, timely,
cost-effective and proportionate resolution of this matter to assess damages and
ancillary relief against Mr Zhang and Ms Wang contemporaneously.
1 See paragraph 10 as to references to “Vinpac” in these reasons.
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[2026] SADC 60
2
9 Therefore, the key issues before me are:
(a) quantification of the loss to Vinpac;
(b) whether judgment should be entered against Mr Zhang for $1,561,919
as a liquidated sum payable to Vinpac under the contractual guarantee;
(c) what is the proper assessment of damages against Ms Wang under
section 236 of the ACL (including any apportionment required by the
proportionate liability regime);
(d) what is the appropriate award of pre-judgment interest; and
(e) what costs orders ought to be made, and whether a fixed lump sum
amount ought to be assessed against each of Mr Zhang and Ms Wang.
10 In these reasons I refer to the applicant as “Vinpac”. As a matter of
convenience, I also use the term “Vinpac” to encompass the relevant activities of
VI Packaging Pty Ltd prior to 2 February 2020 because from that time that
company’s assets, liabilities and employees were transferred to the applicant
pursuant to a court-ordered restructure scheme approved by the Federal Court of
Australia on 19 December 2019.
Hearing of this matter
11 The trial of this matter was listed for two days commencing on 6 November
2025. Ultimately, only one day was required and Vinpac was granted leave to file
supplementary submissions and evidence concerning some particular issues that
had arisen during the course of the hearing.
12 Mr Curtis attended the hearing but did not actively participate because the
case against him was finalised.
13 Neither Mr Zhang nor Ms Wang attended, and they were not otherwise
represented. Ms Wang initially defended the claim against her,2 but her lawyers
ceased acting 5 July 2024 and she thereafter failed to engage with the proceedings.3
14 I am satisfied that Vinpac served each of Mr Zhang and Ms Wang with the
notice of the hearing.4 On the morning of the first day of the trial calls were made
for them outside the court room. I am satisfied they chose to abandon participating
in these proceedings some time ago, having regard to the basis for the default
judgments on liability entered against them.
2 FDN 6 (Defence filed 30 January 2024).
3 She failed to attend directions hearings, she did not comply with discovery orders and generally failed
to respond to correspondence.
4 Exhibit A6 (Jack Edwin Eccleston Affidavit made 5 November 2025).
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[2026] SADC 60
3
15 Vinpac relied upon written submissions filed on 31 October 2025,5 and
supplementary written submissions filed on 25 November 2025 to address some
particular issues raised during the hearing on 6 November 2025.6
16 The following written material was tendered by Vinpac and admitted into
evidence (some of it I admitted by orders made subsequent to the hearing):
(a) affidavit of Anthony Graham Wood made 12 August 2025 (Exhibit A1);
(b) affidavit of Julie-Ann Lesley Schulze made 29 July 2025 (Exhibit A2);
(c) affidavit of Jack Edwin Collins Eccleston made on 5 November 2025
(Exhibit A6);
(d) second affidavit of Mr Eccleston made on 25 November 2025 (Exhibit
A7);
(e) numerous business records relating to SBC and communications
between SBC and Vinpac and their representatives during the period
from 27 June 2017 to 29 July 2022, as well as extracts from the corporate
registry maintained by the Australian Securities and Investments
Commission (ASIC) for SBC and the respondents accessed in October
2025 (Exhibit A3);
(f) further compilations of invoices issued by Vinpac to SBC for periods
throughout April 2019 to March 2021 (Exhibit A4);
(g) a summary schedule of the SBC Trading Account showing amounts
traded and invoiced from 3 July 2019 to 3 March 2021 (Exhibit A5).
17 Ms Schulze was also called to give oral evidence.
Ms Schulze
18 Ms Schulze’s evidence was directed primarily to quantum (proof of debt) and
whether any payments had been received since the proof of debt was prepared.7
She confirmed she prepared Vinpac’s proof of debt in the liquidation of SBC and
identified the proof of debt and its supporting schedules in the tender book. In
particular, she explained the proof of debt comprised two separate accounts; what
she described as: (i) a main “trading account” (schedule 1), and (ii) a “parked-debt”
account (schedule 2), which carried a different interest arrangement and expected
monthly repayments. She confirmed the schedule 1 total of $1,519,725.52
represented outstanding invoices on the trading account at the relevant time, and
the schedule 2 total of $206,300 represented the outstanding amount on the parked-
debt account - together making up the proof of debt amount. (I note that these
5 FDN 53.
6 FDN 61.
7 Exhibit A3, tab 14.
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[2026] SADC 60
4
amounts were inclusive of an amount for goods and services tax (GST), which
relates to an issue I raised with Ms Hamlyn of counsel during the trial, and in
respect of which Vinpac later conceded it would not pursue recovery of the GST
component of the debt owed. It is this GST-exclusive amount that is referred to as
the “Revised Loss”.)
19 To support the schedules, Ms Schulze identified and explained a
supplementary bundle of underlying invoices corresponding to each schedule
page, including how part-payments were recorded by hand on invoices so that
schedules reflected only the remaining balance outstanding. She also explained
why invoice references appeared in different formats: including because Vinpac
had transitioned from an older system, described as “MasterPack”, to a Microsoft
system, described as “D365/365”, so some invoice numbers came from the old
system and later “ARIN” numbers from the new system, with overlap during the
transition.
20 Ms Schulze also gave evidence relevant to non-payment and causation. She
explained that if any recent payments had been received, they would have been
receipted in the current system, and she confirmed that when she checked the day
before her evidence, no further payments had been received on either the old or
new systems beyond what was already reflected. She additionally produced a
document showing payments made by SBC in relation to the parked-debt from
mid-2019 through June 2020,8 and explained those payments related to invoices
that had been paid (and therefore would not appear on the “outstanding” schedules
except to the extent of any remaining balance).
21 Finally, on the reliance or counterfactual issue for the ACL claim, Ms
Schulze said she had been involved in negotiating and implementing the July 2019
arrangements on behalf of Vinpac (including the “parked-debt” structure for SBC).
She said she was assured in discussions, particularly with Mr Curtis, that SBC was
a growing, stable business able to repay, and that those assurances underpinned
Vinpac’s decision to continue trading and to extend and maintain credit. She said
that if Vinpac had not received those assurances, and if she had known SBC had
not made profits for years and was struggling, she would have recommended
Vinpac not continue trading and would not have supported the granting of, or
continuing, the parked-debt arrangement. In response to my questions, she also
acknowledged that even if a start-up was not profitable, funding or backing can
still enable payment of debts; she also said that she believed the directors’ backing
and capability to pay were key to Vinpac’s ongoing extension of credit.
Mr Wood
22 Mr Wood’s evidence was admitted by tender of his affidavit and he was not
called to give further oral evidence.9 His affidavit was relied upon as part of
Vinpac’s proof of loss case, including to address whether there had been any
8 Exhibit A5.
9 Exhibit A1 (Affidavit of Anthony Graham Wood made 12 August 2025).
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[2026] SADC 60
5
adjustment to the indebtedness due to payments from SBC or through the
liquidation process.
23 As summarised in submissions during the hearing, Mr Wood deposed that
when he ceased employment with Vinpac in March 2025, he was not aware of any
further payments from SBC or from the liquidation process that would require any
adjustment of the debt figure. Therefore, his evidence supported Vinpac’s
proposition that, at least up to March 2025, Vinpac’s claimed debt remained
outstanding and had not been reduced by later recoveries, and complemented Ms
Schulze’s later system-check evidence (performed the day before the hearing) that
no payments had been receipted.
24 In his affidavit Mr Wood also deposed to having held a number of meetings,
and engaged in email correspondence, relevant to Vinpac’s reliance upon the
representations made as to the financial status of SBC, particularly in or around
early 2021. Mr Wood deposed that from email correspondence10 he “was aware
from Scott [Curtis] that SBC had improved its business efficiency in early 2019
and that he, Jack Zhang, and Ula Wang were confident that the business would
succeed going forward” and that his “impression from those statements was that
SBC had opened up new business opportunities and was confident in trading
ongoing”. He also deposed to attending a meeting with Mr Curtis in February
2021 where he recalled being assured by Mr Curtis that SBC had reached an
agreement with its landlord for a rent-free period which would allow SBC to have
a positive cash flow and pay back amounts it owed to Vinpac. He notes that he
only later discovered the landlord was a company associated with Ms Wang. Mr
Wood deposes to the falsity of the representations concerning the financial
prospects and capacity of SBC having regard to the liquidation records that he
subsequently obtained.
Factual background and uncontroversial matters
25 Following default judgments on liability against Mr Zhang and Ms Wang, I
summarise below the factual background. This is largely taken from the pleaded
facts in Vinpac’s Claim,11 though reference is also made to some of the documents
received into evidence.
26 SBC was incorporated on 31 August 2016 with Mr Zhang, Ms Wang and Mr
Curtis as its directors.12 In mid-2017 SBC applies for a credit account with Vinpac
in connection with the supply of wine bottles and associated dry goods, with a
credit limit of $20,000 plus GST.
27 Mr Zhang and Mr Curtis gave joint and several guarantees to Vinpac for
SBC’s debts, which were documented in the form of a written guarantee dated 21
June 2017 (Guarantee). The Guarantee was entitled “Guarantee & Indemnity by
10 AGW Affidavit, AGW-3.
11 FDN 30 (Statement of Claim – Revision 1 filed on 13 February 2025).
12 Exhibit A3, tab 31.
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[2026] SADC 60
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Directors”, was expressed to be “for all monies at any time owing by [SBC to
Vinpac] for goods and/or services supplied and (if applicable) late payment fees”
and was given by each of Mr Curtis and Mr Zhang “jointly and severally”.13
28 From November 2018 to March 2021 Vinpac supplied wine bottles to SBC
under a long-term supply contract allowing SBC to bottle and package wine for
export to China. Mr Zhang and Ms Wang were directors of SBC and Mr Curtis
was its manager throughout much of the period of SBC trading with Vinpac. In
making supplies Vinpac relied on a declaration made by SBC in mid-2017, as part
of the supply agreement terms, that it was able to pay all of its debts as and when
they were due and that it would notify Vinpac, within 2 days, if there was any
material and adverse change to that position.
29 In November 2018 Vinpac increased the line of credit available to SBC to
$80,000. This increase was based, at least in part, on conversations between
representatives of Vinpac and Mr Curtis regarding the financial backing of SBC
by Mr Zhang and Ms Wang and access to growth opportunities in the Chinese
market.14
30 In mid-2019 the outstanding balance of the trading account for SBC was
$916,161, representing supplies between March and July 2019. This was referred
to as the “July 2019 Debt” and Vinpac transferred $591,000 from that debt amount
to a separate debt account, to be known as the “SBC Second Account”; this is also
referred to as the “parked-debt” arrangement. Vinpac also agreed to SBC entering
into a monthly payment plan for the SBC Second Account to be repaid by ten fixed
monthly payments. Mr Zhang, Ms Wang and Mr Curtis all gave written
undertakings to comply with the terms of the payment plan. At or about that time,
Vinpac also offered to increase the line of credit to $400,000 on the SBC Trading
Account. These changed arrangements were proposed, at least in part, based on
conversations with Mr Curtis regarding the financial backing of SBC by Mr Zhang
and Ms Wang and their access to growth opportunities in the Chinese market.15
31 From August 2019 to February 2020, SBC paid almost $290,000 to Vinpac
to reduce the debt owing, but a portion remained unpaid. Trading otherwise
continued pursuant to the supply agreement with credit being provided on the SBC
Trading Account.
32 By mid-2020, during the COVID-19 pandemic, the debt SBC owed to Vinpac
had increased to $1,767,039 (inclusive of GST); $306,306 represented the SBC
Second Account and $1,460,733 represented the SBC Trading Account amount.
In June 2020, a meeting was held between representatives of SBC, including Mr
Curtis, and representatives of Vinpac to discuss the payment of the debt.16 Mr
Curtis made representations about the financial position of SBC, and further as to
13 Exhibit A3, tab 1.
14 Exhibit A2 (Affidavit of Julie-Ann Lesley Schulze made on 29 July 2025), [15]-[16] and JLS-2.
15 JLS Affidavit, [17]-[21], JLS-4; AGW Affidavit, [21]-[22].
16 JLS Affidavit, [23]-[26] and JLS-5.
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[2026] SADC 60
7
the financial backing of Mr Zhang and Ms Wang.17 Shortly after that meeting, a
payment of $100,000 was made by SBC to Vinpac to reduce the debt on the SBC
Second Account. However, the substantive debt on both accounts remained
unpaid.
33 In or about mid-2020 the Australian Government introduced temporary
restructuring relief for businesses impacted by the COVID-19 pandemic, limiting
the ability of creditors to enforce payment of outstanding debts.18 Later in 2020
China imposed significant tariffs on Australian wine exports.19
34 By January 2021 representations were made in an email from Mr Curtis, on
behalf of SBC and its directors, to Vinpac seeking variations to the payment plan
for the outstanding debt and asserting that they were confident that they had the
expertise, market knowledge and assets to succeed.20 There was a follow-up email
from Mr Curtis to Vinpac in early February 2021 to confirm this position.21 Mr
Zhang and Ms Wang had knowledge of and authorised Mr Curtis to send this
correspondence at the time. At no time during this period did Mr Zhang or Ms
Wang inform Vinpac that the financial circumstances of SBC were other than had
been represented by this email correspondence. Ms Wang ceased to be a director
of SBC on 19 February 2021.22
35 In early March 2021, SBC entered into voluntary administration, and on 28
April 2021 the creditors resolved for the company to be wound up and Duncan
Powell were appointed as liquidators. At that time SBC owed Vinpac
$1,718,111.29 (inclusive of GST): $1,511,805 related to the SBC Trading Account
and $206,305 related to SBC Second Account.
36 Mr Zhang, as the then sole director of SBC, had caused SBC to enter into
voluntary administration for the reason that, once the insolvency moratorium
imposed during the COVID-19 pandemic had ended in December 2020,23 and
because the COVID-19 JobKeeper payments were ending in March 2021,24 he
considered SBC was no longer viable to continue trading. SBC’s financial
statements also revealed at that time three preceding financial years of net losses
of: $678,000 (June 2020), $297,000 (June 2019) and $867,000 (June 2018). On
28 July 2021 the liquidators reported that based upon their investigations SBC
appeared to have had difficulty in paying its debts as and when they became due
and payable since at least 2019. By email to lawyers acting for the liquidator sent
17 n 16.
18 AGW Affidavit, [24].
19 JLS Affidavit, [22].
20 JLS Affidavit, JLS-6; AGW Affidavit [26] and AGW-3.
21 AGW Affidavit, AGW-3.
22 Exhibit A3, tab 31.
23 A temporary moratorium introduced by the Australian Government during the COVID-19 pandemic
provided a broad shield against creditor enforcement until 31 December 2020.
24 JobKeeper was a temporary COVID‑19 wage subsidy (March 2020–March 2021) under which the
Australian Government paid employers up to $1,500 per fortnight per worker to keep employees
connected to their jobs during the pandemic.
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[2026] SADC 60
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on 17 June 2021, Mr Zhang admitted SBC’s business was largely funded by
borrowed money from a bank and family relatives and that it was “not really a
profitable business for the last 4 years of its operation”.25
37 The declarations made in 2017, the failure to make the relevant disclosures
about SBC’s financial position, the undertakings in July 2019 and the further
representations made in mid-2020 and February 2021 were all representations
made by the respondents and Mr Curtis that induced Vinpac’s representatives to
agree to the improved trading terms and the increased levels of credit and payment-
plan arrangements. These representations were made when the true financial status
of SBC was that it was having difficulty paying its debts as and when they fell due.
The representations were misleading or deceptive conduct contrary to section 18
of the ACL in the context of the true financial position of SBC, to the knowledge
of Mr Zhang and Ms Wang. Vinpac suffered a loss as a result of the
representations.
38 Vinpac seeks to recover from the respondents severally a loss of
$1,561,919.35 (being the debt amount reduced by the GST component) (Loss or
Revised Loss), which it claims to have suffered as a result of it extending trade
credit to SBC and which debt has not been repaid.
39 In December 2023, Vinpac issued claims against all of the respondents in the
following terms:
(a) it pleaded that Mr Zhang and Mr Curtis were liable for the debt owed by
SBC pursuant to the joint and several guarantees they had given to
Vinpac. Pursuant the written guarantee, Mr Zhang and Mr Curtis had
jointly and severally guaranteed Vinpac the payment of the outstanding
debt owed by SBC and losses suffered by Vinpac for SBC’s failure to
pay that debt. On 31 May 2021 and in July-2022 Vinpac demanded
payment of the debt from Mr Zhang and Mr Curtis. Despite those
demands, neither Mr Zhang nor Mr Curtis paid the debt and have thereby
breached the terms of the guarantee they have to Vinpac (Guarantee
Claim); and
(b) all of the respondents had engaged in misleading and deceptive conduct
under section 18 of the ACL relating to SBC’s financial viability, which
caused or contributed to the Loss and pursuant to which damages were
sought under section 236 of the ACL. Mr Zhang and Ms Wang, as
directors of SBC at the relevant times, had knowledge of the true
financial position of SBC when the representations were made. If SBC,
through its directors or Mr Curtis, had advised Vinpac of the true
financial performance of SBC throughout the relevant period of trading,
Vinpac would not have continued to trade with SBC on and from July
25 JLS Affidavit, JLS-9.
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[2026] SADC 60
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2019 and would not have increased the credit limits of the SBC Trading
Account and SBC Second Account on 22 July 2019 (ACL Claim).
Summary of claims against respondents
40 As already noted, judgments have been entered in this court against all three
respondents in favour of Vinpac. For Mr Curtis, judgment was entered by consent
orders made by the Registrar on 14 February 2025.26 Respectively for Mr Zhang
and Ms Wang, default judgments were made by the Registrar on 18 February
202527 and by an Associate Judge on 17 April 2025.28
41 Ultimately, Vinpac has only pressed the Guarantee Claim against Mr Zhang
for the liquidated sum in the amount of the Loss plus interest and costs.
42 Against Ms Wang Vinpac claims damages pursuant to the ACL Claim.
Though seeking to recover by way of damages the full amount of the Loss against
Ms Wang, Vinpac acknowledges the Court must assess the appropriate amount of
those damages pursuant to UCR 142.9(3). Interest and costs have also been sought
against Ms Wang. As will become apparent, it will also be necessary for me to
have regard to section Part IVA of the Competition and Consumer Act 2010 (Cth)
(CCA) to determine Ms Wang’s proportionate liability in relation to the ACL
Claim.
43 Vinpac’s relief against Mr Curtis was addressed by earlier consent orders,29
more recently corrected by orders to reduce the quantum so that the loss amount
no longer inappropriately includes a component for GST. As such, the revised
amount of $1,561,919, being equal to the Loss, is the final judgment against Mr
Curtis.30 No further amounts are recoverable against him. During the hearing
Vinpac confirmed that it had not yet sought to enforce this judgment against Mr
Curtis and it remained unsatisfied.
44 Following judgment against Mr Curtis in February 2025, Vinpac amended
its original Statement of Claim31 to remove the ACL Claim against Mr Curtis.32
The terms of the original consent orders expressly permitted Vinpac to continue
proceedings against each of Mr Zhang and Ms Wang for the Loss and provide for
the judgment to be several and non-cumulative.33
26 FDN 32.
27 FDN 33.
28 FDN 44.
29 FDN 32.
30 FDN 66.
31 FDN 1.
32 FDN 30.
33 FDN 32.
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Applicable legal principles
Assessment of damages
45 A registrar of the Court has power to grant default judgment for the full
amount of a liquidated claim, including a lump sum amount of costs, based solely
upon a pleaded or particularised calculation of that sum.34 This approach is
supported by authority that describes the effect of a default judgment to be that the
respondent is taken to have admitted the allegations against them,35 save for where
a claim is unliquidated such that the respondent is not taken to have admitted
quantum and it must be assessed.36 Therefore, where there is default judgment
entered for an unliquidated monetary claim it falls for the Court to assess the relief
to which an applicant is entitled (if any), which entails consideration of causation
and issues of remoteness of loss.37 Such assessment is made in accordance with
ordinary principles.38
46 Where the respondent is on notice of the hearing for the assessment of
damages but has failed to put a contrary position, including by failing to tender any
evidence, the Court may award loss or damages on the applicant’s evidence if the
Court is satisfied that the loss or damage has been incurred by the applicant and is
reasonable.39 In those circumstances the Court may also make orders for costs on
a lump sum basis to avoid further expense and delay.40
Categories of loss
Liquidated sum
47 The Guarantee Claim against Mr Zhang is for a liquidated sum equal to the
Loss. This represents a contractual claim. Although the nature of a guarantor’s
obligation, to see to it that another performs, can only sound in damages and not
debt, the measure of the guarantor’s liability is generally fixed by reference to that
of the debtor. If the debtor’s liability is liquidated in nature, then so should be the
guarantor’s; and in that case the claim against a guarantor is liquidated in nature if
the liability of the debtor has been established as a money sum.41 It follows that
where a creditor’s claim is fixed by reference to the debtor’s obligation to pay
money to the creditor, and the amount due has been ascertained or is readily
ascertainable by calculation at the time of enforcement by the creditor, it will
amount to a liquidated claim.
34 UCR 142.3 and 142.7.
35 Stevens v Mayberry [2012] SASC 220; QBE Insurance Ltd v Nguyen (2008) 100 SASR 560.
36 Watson Specialised Tooling Pty Ltd v Stevens [1991] 1 Qd R 85 at [93]-[94].
37 UCR 142.9.
38 Chen v Lok [2020] SASC 14; Testel Australia Pty Ltd v KRG Electrics Pty Ltd & Anor [2013] SASC
91 at [141] – [145].
39 Leacon Pty Ltd v Angus Clyne Australia Pty Ltd [2022] SADC 104 at [25].
40 n 39 at [42].
41 Courtney W and Carter J, Debts, Liquidated Sums and the Enforcement of Claims under Guarantees
and Indemnities (2013) 30 JCL 70.
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48 For the purposes of determining damages it is therefore only necessary for
the Court to be satisfied that the amount claimed by Vinpac represents a reasonable
quantification of the amounts owing pursuant to the contract of guarantee in
respect of SBC’s unpaid debt.
49 Vinpac sought to quantify the Loss (being the outstanding debt owed by SBC
to Vinpac at the time of winding up) through an extensive volume of tendered
invoices and other accounting records which were complemented by the oral
explanations of Ms Schulze, and further supported by the affidavit evidence of Mr
Wood.42 The calculation of the debt was helpfully summarised in schedules
annexed to Vinpac’s written submissions, which I find to be an accurate summary
of the relevant evidence of the debt.43
Unliquidated sum
50 The ACL Claim against Ms Wang is a claim for damages under section 236
of the ACL for economic loss caused by pleaded conduct contravening the ACL,44
which is taken to be admitted pursuant to the default judgment against Ms Wang.
51 In assessing the damages for this ACL Claim, I must be satisfied that there is
a sufficient and direct link between the contravening conduct and the loss
suffered.45 It is unnecessary at this stage to require Vinpac to prove that it relied
upon the misleading or deceptive conduct because that aspect is already
established by operation of the default judgment against Ms Wang. That said,
evidence of reliance can be relevant to establishing the sufficient and direct link to
the loss.46
52 If I am satisfied as to the sufficient and direct link, section 236 of the ACL
then provides for the loss established to be recovered from a person who committed
or was involved in the contravening conduct. Section 2 of the ACL casts a broad
net over those who will be considered to be “involved” in a contravention because
it includes a person “being in any way, directly or indirectly, knowingly concerned
in, or party to, the contravention”.
Multiple respondents - Guarantee
53 As noted above, the Guarantee provided for Mr Curtis and Mr Zhang, as
guarantors, to be “jointly and severally” liable for SBC’s debt to Vinpac. The
theory of a joint and several obligation is that it creates both a joint obligation
incumbent upon all and a number of several obligations respectively incumbent
42 See paragraphs 18, 19 and 23 above.
43 FDN 53.
44 See Schedule 2 to the Competition and Consumer Act 2010 (Cth).
45 SJ Berry Pty Ltd v McEntee [2022] SASCA 133 at [306].
46 See Henville v Walker (2001) 206 CLR 459; Campbell v Backoffice Investments Pty Ltd (2009) 238
CLR 304.
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upon each one; however, the several obligations are non-cumulative, so that (as
with purely joint liability) performance by any one will discharge all.47
54 In the case of joint and several liability it has been said that the law operates
as if there is one joint contract and a number of several contracts.48 A judgment
against one or some joint and several promisors, while it extinguishes the cause of
action on the joint promise, does not affect the causes of action on the several
promises.49 Further, a judgment against one does not discharge the other until it is
satisfied.50 In that sense joint and several liability can be viewed as generally non-
cumulative, “the performance is due only once, and each promisor undertakes that
the whole performance will be rendered”.51 Once the debt is paid by one debtor
then all the debtors are discharged as there is but one debt.52
55 The joint and several obligation under the Guarantee claim in the present
matter therefore exposes both Mr Curtis and Mr Zhang to the same loss,53 which is
recoverable from both of them or either of them, though the total amount recovered
cannot exceed the total loss and any amount recovered against Mr Curtis would
reduce the amount recovered against Mr Zhang and vice versa.
56 This position is distinguished from cases where there are multiple
respondents who are only jointly liable in contract, where judgment against one
respondent merges the cause of action and bars proceedings against the other
respondent – even where judgment remains unsatisfied.54 Unlike for some other
Australian States, there has been no statutory modification of this rule in South
Australia.55
57 The position is also distinguished from a release being given to a co-debtor,
who is jointly, or jointly and severally, liable with other co-debtors.56 At common
law, a release of one of a number of co-debtors who are jointly, or jointly and
severally, liable for the same debt releases all of them.57 Similarly, if a creditor,
without having received full payment or performance from the debtor, agrees to
release the debtor, any guarantor will also be released.58 There is no evidence
47 Re Broons [1989] 2 Qd R 315.
48 G Williams, Joint Obligations, Butterworths, London, 1949, pp 74, 135.
49 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 603-4.
50 n 48, p 103.
51 n 48, p 34.
52 n 48, p 93.
53 Re Neate, Ex parte Pegasus Leasing Ltd (1995) 134 ALR 233 at 235.
54 King v Hoare (1844) 13 M&W 494; Commonwealth Bank of Australia v Johnston (1990) 54 SASR
322; McDermott v Black (1940) 63 CLR 161. See also W H Griffith, Joint Rights and Liabilities, 1897,
Butterworths, London, pp 3, 22.
55 See, for example, s 24AA of the Wrongs Act 1958 (NSW).
56 Murray-Oates v Jjadd Pty Ltd (1999) 76 SASR 38 at 52, 54; [2001] SASC 537 per Wicks J (Doyle CJ
and Mullighan J agreeing).
57 Walker v Bowry (1924) 35 CLR 48 at 58.
58 Ehrenfeld v Oriana Nominees Pty Ltd [1999] WASCA 222 at [19].
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before me of Vinpac granting a release from the debt to either Mr Zhang or Mr
Curtis.
58 In this case, though Vinpac has had judgment against Mr Curtis for some
time in respect of the Guarantee claim, that judgment remains unsatisfied.59 Vinpac
accepted that the orders it seeks may be expressed to address the extent to which
any partial satisfaction against Mr Curtis will need to be offset against the amount
it can then recover against Mr Zhang so as to avoid duplication of recovery. Those
matters can be addressed in the formulation of the orders so as to reflect the rule
against double satisfaction.60
Proportionate liability - ACL claim
59 The claim for damages against Ms Wang under section 236 of the ACL must
be treated as an “apportionable claim” under section 87CB of the CCA because it
is evident from Vinpac’s pleaded claim and the evidence that there were other
persons, that is concurrent wrongdoers, whose conduct also contributed to that
loss. Vinpac proceeded on this basis.61
60 No question arises against Ms Wang that her conduct constituted deliberate
wrongdoing or unconscionable behaviour so as to oust the proportionate liability
regime under Part IVA of the CCA.62 Further, no submission was made that Ms
Wang was solely responsible for the Loss, nor that Pt VIA should not operate to
cap the damages awarded against her.
61 Vinpac’s submissions were that Ms Wang should bear a substantial portion
of responsibility for the loss. I address these submissions in more detail below.
62 In apportioning liability, section 87CD of the CCA provides:
(1) In any proceedings involving an apportionable claim:
(a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim
is limited to an amount reflecting that proportion of the damage or loss claimed
that the court considers just having regard to the extent of the defendant’s
responsibility of the damage or loss; and
(b) the court may give judgment against the defendant for not more than that amount.
…
(3) In apportioning responsibility between defendants in the proceedings:
(a) the court is to exclude that proportion of the damage or loss in relation to which
the plaintiff is contributorily negligent under any relevant law; and
59 FDN 61 (Supplementary Submissions), [31].
60 Baxter v Obacelo (2001) 205 CLR 635 AT 656-657 [48]; [2001] HCA 66 at [48].
61 FDN 53 (Written Opening Submissions), [22].
62 Section 87CC of the CCA.
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(b) the court may have regard to the comparative responsibility of any concurrent
wrongdoer who is not a party to the proceedings.
(4) This section applies in proceedings involving an apportionable claim whether or not
all concurrent wrongdoers are parties to the proceedings.
…
63 The object of section 87CD is for a respondent to be liable only to the extent
of their own responsibility for the claimed loss or damage. In claims for damages
under section 236 caused by conduct in contravention of section 18 of the ACL the
court must be careful not to award damages for more than the proportion of the
loss or damage that it considers just having regard to the extent of the respondent’s
responsibility for the loss or damage. Where the damages sought, as in this case,
are for economic loss, the loss or damage may be understood as the harm suffered
to the applicant’s economic interests.63
64 Once a claim is an apportionable claim it is necessary to determine the
liability of concurrent wrongdoers. A concurrent wrongdoer is a person whose
acts or omissions caused the loss, whether independently of others or jointly with
them. A person may be a concurrent wrongdoer even where they are insolvent,
being wound up or have ceased to exist or died.64 The risk that one of the
wrongdoers is insolvent or impecunious falls on the claimant.
65 Vinpac submitted that the assessment ought not take into account the role of
parties or non-parties who would have had only vicarious responsibility for the
impugned acts, such as SBC.65 A person, typically a company, will not ordinarily
be a concurrent wrongdoer for the purposes of Pt VIA where its liability arises
solely in a vicarious or attributive manner from the same conduct that founds the
liability of another person, and no independent act or omission of that person
(company) is identified.66 The inquiry is a factually dependent one; proportionate
liability will only arise for the company if there is truly a separate causal
contribution.
66 Although Vinpac’s claim pleads that the relevant representations were made
by SBC, those allegations are particularised as conduct undertaken by, or through,
Mr Curtis and the directors. The pleaded case before the Court does not identify
any conduct of SBC independent of the conduct of those individuals. As such,
SBC’s liability, if any, is derivative of the conduct of those persons and does not
constitute a separate act or omission causing the loss for the purposes of Part VIA.
63 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 at 629[24].
64 Section 87CB(5) of the CCA.
65 FDN 53, [23].
66 DSHE Holdings Ltd (recs and mgrs apptd) (in liq) v Potts and Anor (2022) 405 ALR 70; (2022) 163
ACSR 23; [2022] NSWCA 165 at [444]-[449]; also see Potts v National Australia Bank Limited [2023]
HCA 41.
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It is therefore unnecessary, and inappropriate, to treat SBC as a separate concurrent
wrongdoer for the purpose of apportionment.
67 Vinpac appeared to accept that the Court is required to take into account its
own contributory responsibility, if any.67 Although section 87CD(3) contemplates
the exclusion of any proportion of the loss for which the plaintiff is contributorily
negligent, no such case was pleaded or advanced before me in respect of Vinpac.
The evidence instead indicates that Vinpac’s decisions concerning continuing to
trade with SBC and extending credit were influenced by the representations made
to it. As such, the matter proceeds on an unopposed assessment, and the evidence
does not permit me to make any finding that Vinpac acted unreasonably in relying
upon the representations concerning the solvency of SBC, or in continuing to
extend credit to SBC. In those circumstances, it would not be appropriate to
attribute any proportion of responsibility for the loss to Vinpac.
68 In view of these principles, Ms Wang’s proportionate liability will fall to be
determined having regard to the conduct of Mr Zhang and Mr Curtis, as concurrent
wrongdoers, and what is determined to be just having regard to her responsibility
for the damage or loss to Vinpac. Vinpac submitted that the Court will be guided
by considerations of relative blameworthiness, causative potency, any benefits or
profit obtained by one concurrent wrongdoer, the task that the wrongdoer was
required to perform, and the degree of departure from that standard of care.68
Vinpac suggested that the evaluative task is commonly approached by the
relatively straightforward allocation of percentage shares of the loss.69
69 In the context of the pleaded case and evidence before me, the evaluative
assessment will consider the extent to which each of Ms Wang’s, Mr Zhang’s and
Mr Curtis’s conduct contributed to Vinpac’s loss, including, respectively, the
directness of their involvement in the relevant representations, their role in
inducing Vinpac’s decision, and their knowledge and capacity to control or correct
the conduct.70 Such matters are not answered in a “legal vacuum” but are answered
in the legal framework in which they arise.71 In undertaking that evaluative
assessment I rely upon:
• the admitted allegations;
• the uncontradicted affidavit and oral evidence; and
• reasonable inferences drawn from that material, particularly in light of the
respondents not participating in the hearing.
67 FDN 53, [24].
68 Stav Investments Pty Ltd v Taylor [2022] NSWSC 208 at [548].
69 FDN 53, [26].
70 Hunt & Hunt Lawyers at 635[45].
71 Hunt & Hunt Lawyers at 635[47] and 649[91].
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70 I now turn to consider each of the issues arising in this case.
What is the amount of the proven loss?
71 Vinpac has established the existence and amount of the underlying unpaid
indebtedness owed by SBC at the time of its winding up by documentary records
(proof of debt schedules, account statements, and the underlying invoices).
72 Ms Schulze identified the proof of debt and explained that it was supported
by two schedules: Schedule 1 recording the outstanding invoices on the main
trading account (total $1,519,725.52 at the time of preparation) and Schedule 2
recording the outstanding balance on the “parked-debt” account (total $206,300),
with the proof of debt being the sum of those accounts. She also identified the
supplementary invoice bundles she had gathered to support each schedule,
explaining that the schedules reflected only amounts outstanding, with any
part‑payments recorded on invoices so that only remaining balances were listed.
73 Vinpac subsequently accepted (and I proceed on the basis) that its originally
quantified loss inadvertently included a GST component, and that it should not
recover that component where it has, or is entitled to, input tax credits or
adjustments (including bad debt adjustments). Vinpac quantified the GST
component as $156,191.94 and reduced the recoverable loss to the GST‑exclusive
amount of $1,561,919.35 (Revised Loss).
74 On the evidence, there is no basis to reduce the assessed principal for any
satisfaction or part satisfaction. I am satisfied Vinpac remained out-of-pocket for
the Revised Loss.
75 The Revised Loss clearly represents the quantified loss in respect of the
Guarantee claim.
76 For the ACL claim I am satisfied that the representations of the respondents,
particularly the declarations made in 2017, the failure to make the relevant
disclosures about SBC’s financial position and the undertakings given in July 2019
were all causative of Vinpac’s decision in July 2019 to enter into the debt-parking
arrangement, and to continue trading with SBC – including by providing an
increased line of credit. Had Vinpac not been so induced, I am satisfied that the
payments received from SBC after that time would have been sufficient to
discharge all debts owed in mid-2019 and Vinpac would not have then suffered
the Revised Loss. This conclusion is supported by the payment history, which
demonstrates payments made after July 2019 exceeded the then outstanding
balance and, applying ordinary accounting principles, would have discharged that
debt. Had Vinpac not been induced to continue trading, those payments would
have satisfied the earlier debt and the eventual loss would not have arisen.
77 In forming this view I also gave consideration to the potential impact of the
insolvency moratorium introduced by the Australian Government during the
COVID-19 pandemic providing for a moratorium on certain statutory demands
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between 25 March 2020 and 31 March 2021. Ultimately I have adopted Vinpac’s
submissions that these measures did not impact the liability of the respondents to
Vinpac and only affected enforcement options and insolvent trading liability
during the moratorium period.72 As such, the moratorium does not affect the loss
suffered by Vinpac.
78 Therefore, I am satisfied that the principal sum to be assessed for both: (a)
the liquidated amount recoverable under the Guarantee; and (b) the quantum of
loss under section 236 of the ACL, is the Revised Loss of $1,561,919.
Should judgment be entered against Mr Zhang for that amount as a
liquidated sum under the guarantee?
79 A claim on a guarantee is, in substance, a claim that the guarantor must pay
the creditor the amount of the principal debtor’s unpaid indebtedness that falls
within the scope of the guarantee. Once the underlying indebtedness is
ascertained, the guarantor’s liability is capable of being expressed as a sum certain.
80 Having determined the amount owing by SBC to Vinpac as the Revised Loss
of $1,561,919, the appropriate outcome is entry of final judgment against Mr
Zhang for that sum on the guarantee.
What is the proper assessment of damages against Ms Wang under section
236 of the ACL (including any apportionment required by the proportionate
liability regime)?
81 To assess Ms Wang’s liability for damages, the Court must undertake an
evaluative assessment of the extent to which each concurrent wrongdoer’s conduct
contributed to the Revised Loss, and apportion liability accordingly. For the
reasons already given, the relevant concurrent wrongdoers are Ms Wang, Mr
Zhang and Mr Curtis.
82 Vinpac submits that it is just and appropriate for Ms Wang to bear liability
for a substantial proportion of the loss, as a result of:
• her role as a director of SBC, with duties under the Corporations Act 2001
(Cth) to, amongst other things, to be cognisant of SBC’s affairs, and to not
cause or permit SBC to trade when insolvent;
• her half-ownership of SBC, which meant that she stood to benefit personally
from indulgences allowed to SBC which may have assisted in its
profitability; in contrast to the position of Mr Curtis, who acted as an
employed officer of SBC;
• her additional knowledge of, and financial interest in, SBC’s trading
performance, including through her interest in the landlord entity which
leased SBC its principal place of business; and her shareholding and
72 FDN 61, [21]-[24].
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directorship of another substantial creditor of SBC, Southern Vintners &
Negotiants Pty Ltd; and
• her personal execution of documents that were required by Vinpac in
arranging the debt-parking and extension of credit in July 2019.
83 Relying upon those matters, Vinpac submits that the loss ought to be
apportioned equally between Ms Wang and Mr Zhang, with a lesser portion
allowed for Mr Curtis. Vinpac contends that Mr Curtis was, in essence, acting as
a representative for Mr Zhang and Ms Wang when making representations and it
was Mr Zhang and Ms Wang who stood to benefit financially as the owners of
SBC.
84 For these reasons Vinpac submits that liability as to at least 40 percent ought
to be assessed against Ms Wang.73
Consideration
85 Paying particular attention to Vinpac’s pleadings,74 the relevant
representations, and the resulting loss, are attributed to multiple actors. In
particular:
• the “solvency representations” are pleaded as having been made by SBC, Mr
Zhang and Ms Wang from at least 27 June 2017 (see paragraphs [30]–[31]);
• Mr Curtis is alleged to have made representations about the business
operations and capabilities of SBC via email communications to Vinpac
representatives in January 2021 (see paragraphs [25]–[28]);
• however, those communications from Mr Curtis are expressly pleaded as
being made “with the knowledge and authority of Mr Zhang and Ms Wang“
and “on behalf of the directors of SBC” (see paragraphs [25], [26], [28], and
[31.3]); and
• the directors, including Ms Wang, are alleged to have been aware of SBC’s
true financial position and to have authorised, or failed to correct, the
representations made (see paragraphs [29], [31.3], [45]–[46]).
86 The pleadings also reveal Mr Curtis making representations to Vinpac at
meetings in mid-2020 concerning SBC’s “good” financial position though it might
need time to get back what it had lost during the COVID-19 pandemic (see
paragraph [32]).
73 FDN 53, [55].
74 FDN 30.
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87 Further, the pleaded case is not confined to a single communication. It
alleges a continuing state of affairs in which SBC, through its officers, represented
that it was able to meet its obligations, including by:
• making declarations as to solvency in the credit application and trading
arrangements; and
• failing over time to disclose material adverse changes in SBC’s financial
position (see paragraphs [10], [29], [31] and [45]-[46]).
88 The representations about a continuing state of affairs for SBC meeting its
obligations were also alleged against the written undertakings signed by each of
Mr Zhang, Ms Wang and Mr Curtis at the time that the payment plan was entered
into in July 2019 (see paragraph [18]).
89 Those matters establish that the loss was caused by the acts or omissions of
more than one person. I am therefore satisfied that Mr Curtis and Mr Zhang were
concurrent wrongdoers for the purposes of Pt VIA of the CCA. For the reasons
already given, I have determined that SBC was not a concurrent wrongdoer
because its acts were not sufficiently independent of its officers.
90 Once it is established that multiple persons caused the same loss, Pt VIA
requires the Court to make an evaluative assessment of the extent to which each
person’s conduct contributed to that loss, and to apportion liability. As already
mentioned the evaluative assessment required by section 87CD is directed to the
extent of each wrongdoer’s responsibility. Here, that assessment is informed by:
• the casual potency of each wrongdoer’s conduct;
• the degree of knowledge of SBC’s true financial position;
• the extent of control or capacity to prevent the misleading conduct; and
• the role played in inducing Vinpac’s decisions.
91 For Mr Curtis, the evidence establishes that he was the primary
communicator of the relevant representations to Vinpac. His conduct had an
immediate causal effect. In her affidavit, Ms Schulze testified that she had
frequent, and often weekly, telephone calls with Mr Curtis, in which he reassured
her that SBC’s debts would be paid, and that as a result she did not have concerns
about receiving payment.75 Ms Schulze testified that in later communications Mr
Curtis continued to reassure her that all debts would be met and that, with the
financial backing of the directors, there would be no issue in doing so.76 Those
communications, she said, formed the basis upon which she considered that SBC
75 JLS Affidavit, [14]-[15].
76 JLS Affidavit, [18].
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was in control of its debt.77 Ms Schulze confirmed those matters in her oral
testimony.78
92 However, the evidence also makes clear that Mr Curtis was not acting
independently. Ms Schulze gave evidence that she understood from her
discussions with Mr Curtis that Mr Zhang and the defendant were his business
partners and the financial backers of SBC, and that the opportunity for SBC in the
Chinese market was driven by them. She further understood that Mr Curtis was
communicating with her on their behalf.79
93 The credibility and effect of the representations made by Mr Curtis were
therefore closely bound up with the involvement and financial support of the
directors. Ms Schulze’s evidence indicates that the assurances given by Mr Curtis
derived their persuasive force not merely from his personal communications, but
from the asserted backing and capacity of Mr Zhang and Ms Wang.
94 Those matters are reinforced by Vinpac’s conduct in requiring the directors
to sign undertakings for the debt restructuring arrangements. Ms Schulze
explained:80
it was important at that time for each of the directors, not just Scott Curtis, to sign the
agreement as in addition to confirming the personal guarantees to repay the debt, I
understood that Jack Zhang and Ula Wang were the financial backers of the business, and
it was important we received their commitment.
95 Further, the pleaded case and the evidence establish that the misleading
conduct was not confined to isolated communications, but formed part of a
continuing course of conduct over an extended period, in which the directors, with
knowledge of SBC’s true financial position, authorised or permitted the ongoing
representations and failed to correct them.
96 The evidence reveals Mr Zhang and Ms Wang were directors of SBC for the
entire period relevant to the misleading conduct.81 Mr Curtis was a director from
the time of incorporation in 2016 up to 26 June 2018, representing an earlier period
and well prior to the debt restructuring arrangements agreed in mid-2019.
97 In those circumstances, while Mr Curtis’ conduct had clear causal
significance as he directly communicated with Vinpac, Mr Zhang’s and Ms
Wang’s conduct was not merely secondary. Their knowledge, authority and
financial backing were essential to the content, credibility and continuation of the
misleading representation. They had capacity to authorise, prevent, or correct the
77 JLS Affidavit, [17].
78 T38-39.
79 JLS Affidavit, [15].
80 JLS Affidavit, [20].
81 Exhibit A3, tab 31.
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representations made. Their role was not passive; it involved authorising and
sustaining a continuing course of misleading conduct.
98 The loss was therefore the product of a combined course of conduct of all
three wrongdoers, where:
• Mr Curtis communicated the relevant assurances to Vinpac on the authority
of SBC’s financial backers – Mr Zhang and Ms Wang; and
• Mr Zhang and Ms Wang authorised and sustained those assurances despite
knowledge of the true position.
99 Doing the best I can on the available material, and recognising that the
assessment is undertaken in an unopposed context, I consider a just apportionment
of the loss between the concurrent wrongdoers to be:
• 30 percent to Mr Curtis; and
• 35 percent each to Mr Zhang and Ms Wang.
100 To my mind, this allocation reflects the fact that, although Mr Curtis was the
immediate source of the representations relied upon, the conduct of Mr Zhang and
Ms Wang (as directors and major shareholders of SBC for the material period) in
authorising, controlling and failing to correct those representations over time
contributed at least equally, and in aggregate more substantially, to the loss
suffered by Vinpac.
Pre-judgment interest
101 Vinpac sought pre-judgment interest against Mr Zhang and Ms Wang
pursuant to section 39 of the District Court Act 1991 (SA) calculated in accordance
with the presumptive rate in UCR 182.3(2)(a).
102 Vinpac submitted a revised calculation for pre-judgment interest in its
supplementary submissions, based upon the Revised Loss of $1,561,919.35. This
amount was based upon a fixed period starting on 13 December 2023 (when the
proceedings were issued) and ending on 25 November 2025 (when the matter was
heard). Applying the current presumptive rate of interest at 7 percent per
annum, the pre-judgment interest now sought by Vinpac is $208,184.59.
103 It is trite that the purpose of pre-judgment interest is to compensate an
applicant from having been kept out of their award.82 Pursuant to section 39(1) of
the District Court Act, the Court will include in a judgment an award of interest
“unless good reason is shown to the contrary”. The rate of interest and the time
from which it commences to accrue are matters to be determined by the Court.
82 Ramadan v ACN 098 408 176 Pty Ltd (No 3) [2024] SASCA 19 at [17].
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104 I am satisfied that this is a case where it is appropriate to award pre-judgment
interest; there is no good reason for me not to do so. In so doing, it is necessary
for me to consider an appropriate rate of interest and to fix a period for which
interest should be calculated; alternatively, it is also open for me to award a further
lump sum in lieu of such interest.83 Determination of an award of interest is an
evaluative exercise where the Court must also be astute to ensuring the applicant
is not over-compensated.84
105 In determining an appropriate rate of interest I can be guided by
the current presumptive rate of 7 percent set out under UCR 182.3(2)(a) which
commenced on 20 September 2024.85 Prior to that time the presumptive rate was
5 percent.86
106 A further consideration concerns the period for which interest should be
allowed. For judgment given on a liquidated claim (such as that against Mr
Zhang), it must be the period running from when the liability to pay the amount of
the claim fell due to the date of judgment, unless the Court otherwise
determines.87 I am cognisant that this prescriptive approach would give rise to
significant forensic accounting complexities in attempting to calculate the interest
on the liquidated judgment amount awarded against Mr Zhang. This is because it
would call for: (i) disaggregating the unpaid individual invoiced amounts from the
time that they each became due for payment; (ii) taking into account the timing of
payments subsequently made to reduce the debt; and (iii) having regard
to the differing presumptive rates that applied during that period. I have not
endeavoured to undertake this forensic accounting exercise. There is
no similar prescription for the period of interest to apply for unliquidated claims,
such as that against Ms Wang.
107 Due to the failure of Mr Zhang and Ms Wang to participate in these
proceedings, the issue of awarding interest was not disputed. That said, I note
there is complexity before me in determining interest by strict application of the
prescribed methodology for a liquidated judgment sum. Accordingly, there is an
attraction to the methodology for which Vinpac contends; broadly speaking,
it avoids the need for a difficult forensic accounting exercise by conceding the
period for which Vinpac was out of pocket prior to 13 December 2023, and by way
of balance would then apply the higher presumptive interest rate of 7 percent for
the entire period since that time. Vinpac’s approach is also consistent against
both respondents and therefore removes the artificiality that would otherwise be
present in applying different methods in respect of what is ultimately the same
loss.
83 District Court Act, s 39(3).
84 Ramadan (No 3) at [17].
85 Amended with effect from 20 September 2024 (Gazette No 65).
86 Commenced from 18 May 2020 upon introduction of the UCR 2020.
87 District Court Act, s 39(2)(b).
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108 Ultimately, I do not adopt Vinpac’s methodology but instead use it to
inform the broad evaluative assessment that I have undertaken. While Vinpac’s
approach has the advantage of simplicity, without the benefit of further forensic
evidence, I cannot be satisfied that using the 7 percent rate for the entire period
(albeit only commencing on 13 December 2023) would not risk
over-compensating Vinpac. That said, I accept that 13 December 2023 is a
reasonable and convenient starting point for the assessment of interest, particularly
if the differing presumptive rates are picked up over time having regard to the
compensatory nature of the award.
109 In the circumstances, I consider it is in the interests of justice that a lump
sum be awarded instead of interest. In determining to make a lump sum award, I
have had regard to:
• Vinpac’s submissions for determination of pre-judgment interest;
• the period of time for which Vinpac has been “out of pocket”;
• the prescriptive rules for fixing a period (particularly the arithmetic
difficulties for determining interest on a liquidated judgment);
• the preferred utility of a single evaluative approach for both respondents;
• the presumptive rates of interest; and
• the overall discretion vested in the Court.
110 In so fixing a lump sum I have been mindful that the exercise is to provide
fair compensation to Vinpac for the period of time it has been out of pocket in
respect of the amount of the Revised Loss (or a portion of that loss, in the case of
Ms Wang). I have also been mindful to ensure Vinpac is not over-compensated.
111 With these matters in mind, against Mr Zhang, applying a broad brush, I
make a lump sum award instead of interest in the sum of $240,000. As a cross-
check, I note that this amount broadly equates to an application of the then
presumptive rate of 5 percent per annum to 19 September 2024 and to 7 percent
thereafter to the date of judgment, using 13 December 2023 as a starting
point. As Ms Wang bears liability for 35 percent of the Revised Loss (in respect
of the ACL claim), applying a broad brush, I make a lump sum award instead of
interest against her in the sum of $84,000. These amounts are non-cumulative
awards because they compensate the same loss in respect of Vinpac being out of
pocket for the Revised Loss.
112 In determining these lump sum awards in lieu of pre-judgment interest I
have also had regard to the existence of the Curtis judgment since 14 February
2025 but note that it remains unsatisfied to date. Further, though it would have
been preferable for judgment to be made on quantum against all of the respondents
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at or about the same time, I consider Vinpac was not responsible for the delay in
obtaining judgment against Mr Zhang and Ms Wang.
Costs
113 Vinpac made substantive submissions in relation to the final costs orders it
seeks against Mr Zhang and Ms Wang.
114 I note that costs orders were previously made:
• against Mr Zhang in respect of Vinpac’s successful application for
substituted service (FDN 19) (Zhang Costs); and
• against Ms Wang in respect of Vinpac’s successful application for default
judgment (FDN 33) (Wang Costs).
115 The remaining costs incurred by Vinpac and for which it seeks recovery are
referred to as the “Balance”.
116 Against Mr Zhang, Vinpac seeks its costs on the indemnity basis pursuant to
the terms of the Guarantee, which extend to providing indemnification for
Vinpac’s loss in recovering the guaranteed monies. Vinpac submits that Mr Zhang
should be solely responsible for the Zhang Costs and severally liable for the
Balance (excluding the Wang Costs).
117 Against Ms Wang, Vinpac seeks its costs (other than the Zhang Costs),
assessed having regard to Ms Wang’s failure to participate in the proceedings.
Vinpac submits that Ms Wang should be solely responsible for the Wang Costs
and severally liable for the Balance (excluding the Zhang Costs).
118 In its supplementary submissions, Vinpac sought costs orders in the form of
a lump sum of $120,000, of which:
• up to and including the sum of $100,000 may be recovered from Mr Zhang,
comprising the Zhang Costs and the Balance on an indemnity basis: and
• up to and including the sum of $75,000 may be recovered from Ms Wang,
comprising the Wang Costs and the Balance on a standard basis.
119 For the following reasons I am content to make costs orders based upon the
revised formulation proposed by Vinpac in its supplementary submissions. Vinpac
has succeeded in obtaining judgment against Mr Zhang and Ms Wang. The usual
order is that costs follow the event. In this Court, costs between parties are
ordinarily determined on the standard basis and in accordance with the Higher
Courts costs scale unless the Court orders otherwise.
120 Mr Zhang and Ms Wang did not meaningfully contest the proceedings and
the hearing before me principally concerned the assessment of damages. In those
circumstances, I am satisfied that making a lump sum costs order is appropriate; a
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taxation or other assessment process would add disproportionate delay and
expense to what has already been a protracted course for Vinpac. Further, I am
satisfied that in the circumstances it is fair and reasonable to fix those costs
applying a broad-brush approach while ensuring compliance with the indemnity
principle.
121 Putting to one side the specific Zhang Costs and Wang Costs to which earlier
orders relate, I am satisfied that there was substantial overlap in legal work
required for Vinpac against both Mr Zhang and Ms Wang. Ultimately, the
allocation of costs should reflect the differing bases of liability (contractual
indemnity against Mr Zhang, and standard costs against Ms Wang) while
recognising overlap in the work.
122 In those circumstances, I consider it appropriate to fix a single lump sum for
Vinpac’s costs of $120,000; this amount pays regard to Vinpac’s total costs of the
proceedings (including an estimate based upon work-in-progress to trial)
exceeding $126,000.
123 Further, it is appropriate that up to $100,000 of that sum (inclusive of the
Zhang Costs of $29,500) is recoverable from Mr Zhang on an indemnity basis
having regard to the terms of the Guarantee.
124 For Ms Wang, who is not a party to the Guarantee, it is appropriate that up to
$75,000 of the total sum (inclusive of the Wang Costs of $12,000 and
approximating the standard basis) is recoverable from Ms Wang.
Orders
125 In view of these reasons, I make the following orders:
1. Judgment is entered against the first respondent (Mr Zhang) in the amount
of $1,801,919, representing the loss of $1,561,919 plus an amount of
$240,000 in lieu of pre-judgment interest.
2. Damages are assessed against the second respondent (Ms Wang) in the sum
of $630,671, representing a 35 percent apportionment of the loss plus an
amount of $84,000 in lieu of pre-judgment interest.
3. The applicant’s costs (Vinpac’s) of the proceeding are fixed in a lump sum
of $120,000.
4. The first respondent (Mr Zhang) is liable to pay up to $100,000 of that sum.
5. The second respondent (Ms Wang) is liable to pay up to $75,000 of that
sum.
6. Notwithstanding orders 1 and 2, the applicant (Vinpac) is not entitled to
recover more than its loss of $1,801,919. The applicant (Vinpac) may
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enforce this judgment against any respondent only to the extent that loss
remains unsatisfied.
7. For the avoidance of doubt, any amount recovered by the applicant (Vinpac)
pursuant to the judgment previously entered against the third respondent
(Mr Curtis) is to be taken into account in determining the extent to which
the applicant’s (Vinpac’s) loss remains unsatisfied.
8. Order 7 applies, with necessary changes, in respect of any amount
recovered by the applicant (Vinpac) pursuant to orders 1 and 2.
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