- in China
- with readers working within the Chemicals and Retail & Leisure industries
- within Environment, Law Department Performance and Transport topic(s)
In brief
On 5 November 2025, the High Court of Australia handed down judgment in Shao v Crown Global Capital Pty Ltd [2025] HCA 43, allowing an appeal from a decision of the New South Wales Court of Appeal (see Shao v Crown Global Capital Pty Limited [2024] NSWCA 302).
Key takeaways:
- A clause in a contract can operate as both (1) a condition precedent to a borrower's discharge of a debt and (2) an obligation on the part of the borrower to discharge a debt in a particular manner.
- If a borrower repays the debt in a manner that is not in accordance with the contract, the borrower may discharge the debt but still be in breach of the contract. This could arise if the borrower repays the debt to an account that has been unilaterally nominated by one but not all relevant creditors.
- A creditor cannot demand repayment of a debt when they have affirmed the debtor's contractually non-compliant discharge of the debt.
- However, affirmation does not waive the creditor's claim for damages for breach of contract against the debtor in respect of the loss occasioned by the contractually non-compliant discharge of the debt.
- Care should be taken when there are multiple creditors involved to ensure that the contract expressly sets out how the creditors are to nominate accounts for repayment, to avoid the risk of any unilateral payment directions being made.
Background
Ms Shao and Mr Peng were married. In early 2015, the couple advanced $1 million to Crown Global in the form of a loan note, pursuant to a Note Facility Agreement (NFA) that they entered into with Crown Global. Crown Group Holdings guaranteed repayment of the amount.
Clause 4 of the NFA provided:
All money payable by the Borrower to the Lender under the Notes must be paid by cheque drawn by the Borrower and either delivered personally to the Lender on the due date for payment or deposited into the Lender's bank account as notified by the Lender to the Borrower from time to time.
Clauses 1-2 defined Crown Global as the Borrower and Mr Peng and Ms Shao as the Lender.
Shortly after entering into the NFA, Mr Peng nominated a joint account in the names of Ms Shao and Mr Peng for Crown Global to deposit interest payments. Crown Global made various deposits into that account from March to December 2015. However, in that period, Ms Shao and Mr Peng divorced and were no longer talking to each other.
Subsequently, in February 2016, Crown Global contacted Mr Peng and asked him for his account details to repay the loan and interest owing under the NFA, as the loan note was expiring soon. Mr Peng replied on the same day, providing the details of a bank account which was in his name only (different from the joint account held by Ms Shao and Mr Peng into which interest payments had previously been made). Later that month, Crown Global paid the principal amount and outstanding interest ($1,018,740) to the nominated account which was solely in Mr Peng's name.
In March 2016, Ms Shao contacted Crown Global to discuss the imminent expiry of the loan note, However, Crown Global told Ms Shao that the loan note had already been redeemed, as payment had been made to Mr Peng. On that same day, Ms Shao commenced proceedings in the Supreme Court of New South Wales, seeking interim freezing orders. However, Mr Peng had already transferred the entire amount that he had received from Crown Global to his parents in China.
Ms Shao then brought proceedings against Crown Global in the Supreme Court. The principal claim was for damages for breach of various terms of the NFA. One term that Ms Shao alleged Crown Global had breached was clause 4: it had failed to make payment 'into the Lender's bank account as notified by the Lender to Borrower from time to time'. However, the trial judge dismissed Ms Shao's claim. His Honour found that Ms Shao had ratified Mr Peng's unauthorised nomination of his personal account as the destination of the redemption payment, by claiming that she had rights in respect of the money paid to Mr Peng, obtaining judgment against him to that effect, and seeking to enforce that judgment. Ms Shao's subsequent appeal to the New South Wales Court of Appeal was also dismissed.
Key issues and reasoning
Before the High Court, the key issues in dispute were as follows:
- What was the proper construction of clause 4 of the NFA?
- Could Ms Shao accept that Crown Global's payment discharged the debt without also waiving Crown Global's breach of clause 4 (i.e. depositing the redemption payment into an account that had been nominated by Mr Peng alone, contrary to clause 4)?
Proper construction of clause 4
The High Court recognised that a term of a contract can have a double operation and create both a duty and a condition. Clause 4 was an example of this: it required interest payments and the redemption payment to be deposited only into the bank account as notified by both Ms Shao and Mr Peng. This was a requirement that operated as both (1) a condition precedent to discharge of the debt and (2) a negative duty not to deposit the repayments into an account not nominated by both Ms Shao and Mr Peng.
The Court observed that where a term of a contract between a borrower and two or more lenders imposes both a condition precedent and a separate obligation as to the manner of repayment (as was the case with clause 4), a further question arises as to whether that obligation is owed to the lenders jointly, or jointly and severally. If the obligation is owed to the lenders jointly, both would need to be joined to the proceedings where a claim for breach of that obligation is brought. However, this was a non-issue on the facts, as the obligation in clause 4 as to the manner of repayment was owed jointly and severally such that Ms Shao was entitled to sue Crown Global for breach of that obligation without needing to join Mr Peng to the proceedings.
Acceptance of discharge without waiver of breach
The Court went on to observe that the default common law position is that a payment to one joint creditor will discharge a debt to all joint creditors. However, this position can be altered by the parties' agreement, as was the case under clause 4 of the NFA which prevented discharge of Crown Global's debt unless its payment complied with a direction as to the relevant bank account given by both Ms Shao and Mr Peng.
Before the High Court, Ms Shao accepted that she had affirmed the discharge of the debt owed by Crown Global to her and Mr Peng. That affirmation occurred when Ms Shao (1) commenced proceedings against Mr Peng seeking freezing orders, alleging that the funds paid by Crown Global to Mr Peng were held on trust for her and (2) commenced bankruptcy proceedings against Mr Peng, bankrupting him and claiming dividends in his bankruptcy referable to the payment made by Crown Global. The Court noted that those actions were dependent upon Ms Shao asserting an entitlement to the proceeds, and such an entitlement could only have arisen if the debt had been discharged. Consequently, Ms Shao's conduct involved an acceptance that Crown Global had discharged the debt by transferring the redemption payment to Mr Peng's sole account.
The critical issue was whether this acceptance by Ms Shao waived Crown Global's breach of its negative obligation to only make payments under clause 4 to an account nominated by both Ms Shao and Mr Peng. The Court held that there was no waiver. It observed that a party can accept performance or discharge of an obligation, despite non-satisfaction of a condition precedent to that performance or discharge, without waiving the counterparty's liability for breach of contract. The use of the language of ratification by Crown Global in its submissions had the tendency to confuse the analysis of two separate questions: (1) whether discharge of the debt had been accepted by Ms Shao and (2) whether Crown Global's breach of the negative obligation in clause 4 had been waived by Ms Shao. While Ms Shao's actions (described above) had affirmed the discharge of Crown Global's debt, those actions did not ratify the direction that Mr Peng gave to Crown Global to transfer the redemption payment to his own sole account. Consequently, the Court held that there was no waiver of Crown Global's breach of clause 4 which had been occasioned by the contractually non-compliant manner in which it discharged the debt owing under the NFA. Their Honours in turn allowed the appeal (having also found that Ms Shao's proceedings were not an abuse of process), entering judgment for Ms Shao against Crown Global and Crown Group Holdings for $1.13 million. That amount reflects the loss incurred by Ms Shao for its breach of the negative obligation in clause 4.
Potential impacts and key takeaways
The High Court's judgment offers several key insights:
- In loan agreements, a term of the contract can have a dual function, imposing both a precondition (i.e. a condition precedent) to the borrower's discharge of the debt as well as an obligation as to the manner in which the debt must be discharged (e.g. via payment to a particular bank account jointly nominated by the lenders).
- Affirmation by a creditor of the discharge of a debt precludes the creditor from demanding repayment of the debt, but does not waive the creditor's claim against the debtor for breach of contract if the debtor has failed to comply with an obligation as to the manner in which he or she was supposed to discharge the debt.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
