Contract
Breach – Loan note
In Shao v Crown Global Capital Pty Ltd (in prov liq) [2025] HCA 43 (5 November 2025), the High Court unanimously allowed an appeal from the NSW Supreme Court with costs.
This matter related to a note facility agreement and note certificate between two lenders, a husband (Mr Peng) and wife (Ms Shao), a borrower (Crown Global Capital Pty Ltd) and a guarantor (Crown Group) for $1 million. A term of the contract stated that the loan must be repaid into an account nominated by the two lenders. The borrower repaid the loan into an account nominated by one lender, Mr Peng.
Mr Peng then remitted the funds to his parents in China. Ms Shao bankrupted Mr Peng and recovered partial funds from him, then claimed damages against the lender.
Ms Shao commenced proceedings in the NSW Supreme Court, which dismissed the claim, then to the Court of Appeal, then to the High Court.
The questions in the High Court were:
- whether a term requiring nomination of account by both lenders operated only as a condition precedent to discharge of debt
- whether the other lender waived the breach of contract term by prosecuting earlier proceedings against recipient lender
- whether it was an abuse of process for the lender subsequently to proceed against borrower and guarantor for breach of contract.
The High Court cited:
- Westacott v Hahn [1918] 1 KB 495 and the Victorian decision in Ardern v Bank of New South Wales [1956] VLR 569 on the issue of the double application
- Catlin v Cyprus Finance Corporation (London) Ltd [1983] 1 QB 759 followed in DAR International FEF Co v AON Ltd [2004] EWCA Civ 921.
In relation to the waiver of the breach, the High Court again cited Scutton LJ in Westacott v Hahn that “a party can accept performance or discharge of an obligation, despite the non-satisfaction of a condition precedent to that performance or discharge, without waiving the counterparty’s liability for breach” (at [55]).
On abuse, the High Court held that Ms Shao had good reasons for taking the actions she did and distinguished them from the actions taken in UBS AG v Tyne [2018] HCA 45.
Further, the High Court cited the High Court decision in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 (at [518]–[519]), citing PNJ v The Queen (2009) 252 ALR 612 (at [613]), that an abuse of a court’s process “is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute” (at [63]).
MIGRATION
Visa – Character test
In special case, in Farmer v Minister for Home Affairs [2025] HCA 38 (15 October 2025), the High Court answered each question in the negative and ordered the plaintiff pay the defendant’s costs.
Edelman J opened with a quote on freedom:
“[T]he freedom of some must at times be curtailed to secure the freedom of others … We cannot remain absolutely free, and must give up some of our liberty to preserve the rest … What then must the minimum be?”[67]
The key questions for the High Court, both of which were answered in the negative, were:
- Is s501(6)(d)(iv) of the Migration Act 1958 (Cth) (Migration Act) invalid because it unjustifiably burdens the implied freedom of political communication?
- If the answer to question 1 is “no”, is the decision of the Minister to refuse to grant the plaintiff the Temporary Activity (Class GG) visa invalid on the ground that the Minister adopted an incorrect construction of s501(6)(d)(iv)?
Candace Owens Farmer (Farmer) is a US citizen who sought a temporary action (Class GG) visa under the Migration Act to enter Australia and conduct a speaking tour in both private and VIP events. Under s501 of the Migration Act, the Minister can refuse or cancel a visa on character grounds.
On 25 October 2024, the Minister refused to grant a visa to Farmer on the basis that he reasonably suspected that she did not pass the “character test” on the basis that, “if Ms Farmer were allowed to enter Australia, there was a risk that she would ‘incite discord in the Australian community or in a segment of that community’”, within the meaning of s501(6)(d)(iv), and that he was also satisfied that the refusal of the visa “was in the national interest”, within the meaning of s501(3)(d) (at [6]).
Farmer argued that the refusal to grant a visa breached her implied right of political communication and sought writs of mandamus commanding that the Minister grant her a visa or that they remake the decision according to law.
The Minister examined Farmer’s views and comments in detail, under the headings: “Holocaust denial”, “Islamophobia”, “Anti-racism, Black Lives Matter and anti‑Semitism”, “Women’s and LGBTQIA+ rights” and “COVID‑19 and anti‑vaccination”.
After that examination, the Minister turned his mind to whether, if Ms Farmer were allowed to enter Australia, there was a risk that her presence would incite discord in the Australian community (or a segment of it), given her views and comments, which the Minister stated he found to be “extremist and inflammatory comments towards Muslim, Black, Jewish and LGBTQIA+ communities which generate controversy and hatred” (at [12]).
