Batam Pham v Ngoc Anh Tran (also known as Rosy Tran)
[2014] VSCA 313
•4 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0005
| BATAM PHAM | Appellant |
| V | |
| NGOC ANH TRAN (also known as ROSY TRAN) | Respondent |
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| JUDGES: | OSBORN and WHELAN JJA and GINNANE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 October 2014 |
| DATE OF JUDGMENT: | 4 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 313 |
| JUDGMENT APPEALED FROM: | Batam Pham v Ngoc Anh Tran (also known as Rosy Tran) [2013] VCC 1212 (Judge Cosgrave) |
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CONTRACT – Loan – Whether loan to one person or two persons jointly.
APPEAL – Whether trial judge failed to have regard to acknowledgement of indebtedness – Whether trial judge wrongly cast an onus on appellant to cross-examine a witness about matters in issue.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr W G Stark | Blaak and Associates |
| For the Respondent | Mr R A Harris | Lennon Mazzeo |
OSBORN JA
WHELAN JA
GINNANE AJA:
Mr Batam Pham[1] (the appellant) appeals from a judgment of his Honour Judge Cosgrave given in the County Court by which the appellant’s proceeding against Ms Ngoc Anh Tran (the respondent), seeking the repayment of the sum of $190,000.00 which he alleged that he loaned to her, was dismissed.[2]
[1]The Notice of Appeal contained in the Court Book names the appellant as Ba Vu Tuan Pham. However, the Notice of Appeal filed in the Court Registry named the appellant as Batam Pham, which was the name contained in his County Court writ and in the judgment of that Court. We have therefore used the name Batam Pham for the appellant in this judgment.
[2]Batam Pham v Ngoc Anh Tran (also known as Rosy Tran) [2013] VCC 1212 (‘Reasons’).
The appellant obtained the $190,000.00 from Equity-One by mortgaging the small shop that he owned on Barkly Street, Footscray.
The respondent was the girlfriend of the appellant’s nephew, Mr Tuan Pham. The respondent joined Mr Tuan Pham as a third party in this proceeding, but no orders were made against him. Mr Tuan Pham and the respondent resided together in a domestic relationship from about February 2009 to about February 2010 at the appellant’s Footscray shop. The appellant had allowed Mr Tuan Pham and the respondent to operate their business from the front of the shop.
Mr Tuan Pham was the son of the appellant’s brother, Mr Ba Tan Pham and his sister-in-law, Ms Nho Doan.
The trial judge decided that the evidence led on the appellant’s behalf failed to satisfy the minimum requirements of the onus of proof of his cause of action. His Honour described the evidence as inconsistent, and lacking in cohesion and credibility.[3] His Honour stated that he had little confidence in much of the evidence of the appellant and the witnesses giving evidence in support of his case, due to the inconsistencies, the confusion and the likely collusion.[4] He also stated that the respondent was ‘certainly not above reproach’.[5] However, he considered that her explanation of events was more credible and consistent with the rest of the evidence.[6]
[3]Reasons [78].
[4]Reasons [79].
[5]Reasons [79].
[6]Reasons [80].
The appellant’s case, as pleaded, was that on 15 May 2009 he and the respondent agreed that he would lend, and the respondent would borrow, the sum of $190,000.00. The term of the alleged loan was for a period ending on 1 August 2011. The respondent was to use the loan to purchase a property in Clayton and would pay interest on the loan monthly until the loan was repaid. If the respondent was unable to repay the loan on or before 1 August 2011, she would sell the property and use the proceeds of sale to repay the loan. The appellant pleaded that the respondent had breached the loan by not repaying the $190,000.00.
The respondent did not dispute that she has not paid the sum of $190,000.00 to the appellant, but contended that the loan was made not to her but to Mr Tuan Pham who, as previously stated, was her boyfriend and is the appellant’s nephew.
His Honour noted that the appellant’s case was opened on a different basis to the pleadings in that it contended that both Mr Tuan Pham and the respondent would borrow the moneys from the appellant to purchase and renovate the Clayton property which they would then resell at a profit within six months. They would use the profit to repay the loan to the appellant. The appellant’s agreement to use his property as security for the loan that he obtained to provide the $190,000.00 and the respondent and Mr Tuan Pham’s agreement to repay the loan to him, were agreements made between him, Mr Tuan Pham and the respondent.
His Honour, in describing the different ways in which the appellant presented his case, stated:
As is apparent from other parts of the judgment, the confusion did not stop there because the evidence oscillated between ascribing exclusive responsibility in respect of the loan funds to Tran and having Tuan and Tran jointly responsible for the loan and its repayment. Such a conflict makes it difficult for the plaintiff to advance a coherent case when there is such a disconformity between the pleaded case and the evidence. The need for the plaintiff to put forward a coherent case is all the more important in light of the legal burden of proof that rests with the plaintiff in proving its claim against the defendant.[7]
[7]Reasons [11].
Having regard to the basis on which the case was put, his Honour identified the critical issue in the case to be whether the appellant lent the $190,000.00 to Mr Tuan Pham only or to Mr Tuan Pham and the respondent jointly.
The money that the appellant borrowed from Equity-One was paid into a Commonwealth Bank account which was opened for him. From that account, the sum of $138,664.05 was paid into Mr Tuan Pham’s account.[8]
[8]The sum of $20,150.00 of the proceeds of the Equity-One loan was paid to the respondent’s sister, who had advanced funds required to pay the balance of the deposit on the purchase of the Clayton property.
Evidence of the parties
The appellant’s evidence was that he met with Mr Tuan Pham and the respondent three times to discuss them borrowing money from him so that they could buy a property to renovate and resell. He wanted to help because his nephew was involved.
The appellant gave evidence that he agreed that he would provide Mr Tuan Pham and the respondent with a loan and that they would buy a property, renovate it and resell it at a profit within six months. They would use the profits to repay the money to him. They were both responsible to do so.
Mr Ba Tan Pham and Mr Tuan Pham gave evidence that the appellant’s loan was to Mr Tuan Pham and the respondent jointly.
The respondent gave evidence that the appellant’s loan was to Mr Tuan Pham. She denied that she borrowed money from the appellant. She said that the appellant lent the money to his nephew, Mr Tuan Pham, who used the money partly for living expenses, partly for repaying debts and partly for purchasing an interest in the Clayton property. Her evidence was that she financed the bulk of the cost of the acquisition of the Clayton property, although Mr Tuan Pham made some contribution. She disputed the allegation that she had ever accepted liability to repay the loan to the appellant.
The first issue
Although there were ten grounds of appeal contained in the notice of appeal, there were three issues pursued on appeal that encapsulated the ten grounds.
The first issue was that his Honour failed to give any, or sufficient, weight in his deliberations to the respondent’s written acknowledgment of indebtedness to the appellant, in the form of several text messages sent by the respondent to the mobile telephone of the appellant’s niece, Ms Thi Thu Phong Pham.
Those text messages were in Vietnamese, but were in evidence at the trial in the following translations:
First text message:
I can understand that you really love me as your family. But things has happen and it can not be back to normal. Please tell mum and dad don’t need to worry for me. Tell your mum that I’m so sorry to make her upset. I know what I have to do. With the shop I will do everthing to put it back to normal. I will repayment it back once I finish the house. Tell every one that I’m very sorry.
Second text message:
I (Ngoc Anh) now realise only one thing that is, how I (Ngoc Anh) have come into this office and your (Thi’s) family. so now I will leave, the same as before. I (Ngoc Anh) will try my best to return everything back to normal as before. I (Ngoc Anh) will not make anyone unhappy …
Third text message:
Now Ngoc Anh knows well one thing, that is in what situation did Ngoc Anh come into this Office and Thi’s family, then Ngoc Anh should be leaving them in just the same situation. Ngoc Anh will try her best to put everything back as previously. Ngoc Anh will not make anyone unhappy with her !
Ms Thi Thu Phong Pham gave evidence that she sent text messages on 6 March 2010 to try to reason with the respondent because the respondent had told Mr Tuan Pham’s mother that she planned to leave the Footscray shop, which they used for business purposes, in about three months, and find another place to work. Her relationship with Mr Tuan Pham had recently ended.
The respondent gave evidence that the text messages referred to the fact that when she left the shop she would leave it in its normal condition. Her statement that she would repay money once she finished the house was a reference to the fact that she would repay the money that she owed to Mr Tuan Pham once she had finished the house. Mr Tuan Pham had advanced some of the funds required for the renovation of the Clayton property.
The respondent said that she did repay the money that she owed to Mr Tuan Pham when she paid $20,000.00 to him in settlement of a proceeding that he brought against her in the County Court. The separate proceeding brought by Mr Tuan Pham against the respondent was to have been heard at the same time as the appellant’s proceeding against the respondent. In that other proceeding, Mr Tuan Pham alleged that the respondent and the appellant had formed a joint venture to buy and develop properties for profit, which was to be divided equally between them. He alleged that he entered into a contract to buy the Clayton property for $450,000.00 on 9 June 2009, and then nominated the respondent as the sole proprietor. They obtained a loan from the appellant to assist Mr Tuan Pham in settling the purchase of the Clayton property. Mr Tuan Pham said that he paid $103,063.26 as his contribution to the acquisition of the Clayton property, and that the respondent held the property on a resulting trust as to 50 per cent for him. Mr Tuan Pham sought an order that the Clayton property be sold and the net proceeds of sale be first used to repay the loan to the appellant together with interest, with any surplus divided equally between himself and the respondent. The respondent counterclaimed for an order that the Registrar of Titles remove Mr Tuan Pham’s caveat over the Clayton property. As stated, Mr Tuan Pham settled the proceeding on terms that the respondent would pay him the sum of $20,000.00 and he agreed to remove the caveat. The terms of settlement did not make express reference to the appellant’s claim or to any obligation on the part of the respondent to repay a loan to the appellant.[9] Counsel for the respondent on appeal emphasised that it was by no means clear that the respondent’s equity in the Clayton property was sufficient to permit any sum greater than $20,000.00 to be paid in settlement of Mr Tuan Pham’s proceeding.
[9]Reasons [16]–[19].
His Honour’s findings about the credibility of parties and witnesses
His Honour’s determination of the case was largely governed by his assessment of the credibility of the parties and the witnesses.[10] As previously stated, his Honour expressed concerns about the credibility of all of the witnesses. In particular, his Honour expressed concern that there had been a meeting in counsel’s chambers regarding the case between the appellant and all the witnesses giving evidence on his behalf, although according to the appellant’s brother, Mr Ba Tan Pham, they did not discuss with the lawyers the evidence that he was intending to give in court.[11]
[10]Reasons [29].
[11]Reasons [12(a)].
His Honour also referred to the fact that the appellant and his brother discussed the evidence which they proposed to give in court, however, Mr Ba Tan Pham stated that the last discussion that he had with his brother about the case was in March 2010.[12]
[12]Reasons [12(b)].
His Honour concluded that generally the appellant, and the witnesses giving evidence in support of his case, were keen to be critical of the respondent and cast her in a bad light. He had little confidence in much of their evidence due to the inconsistencies, the confusion and likely collusion. His Honour stated that plainly it was in the best interests of the appellant, his brother, and his brother’s immediate family if the whole responsibility for the repayment of the loan could be shifted from Mr Tuan Pham to the respondent. No longer would the debt burden the appellant, Mr Ba Tan Pham and Ms Thi Thu Phong Pham, Mr Tuan Pham’s sister, as it currently does, while they make monthly interest payments to cover the loan which Ms Thi Thu Phong Pham obtained to repay the amount the appellant borrowed from Equity-One.
His Honour also described several of the appellant’s witnesses as often prone not to answer the question asked, but to give non-responsive answers or to give answers which were responsive to a degree but included some gratuitous criticism or comment, particularly of the respondent. His Honour pointed to differences between the appellant’s evidence and that of other witnesses as to whether Mr Tuan Pham had introduced the respondent to other people as his wife.[13]
[13]Reasons [14].
An important point in his Honour’s reasoning about credit was that Mr Brian Luong, a solicitor who signed a solicitor’s certificate in relation to the loan made by Equity-One to the appellant, gave evidence that the respondent was not present at the meeting at which he gave that certificate, whereas the appellant contended that she was. His Honour said that Mr Luong was the only independent witness at the hearing and accepted his evidence on this point.[14]
[14]Reasons [34].
His Honour also noted that the appellant had no satisfactory explanation as to why in December 2009, when the loan money was not repaid, he failed to take any effective action to pursue Mr Tuan Pham or the respondent for the loan money. His Honour also took into account that although the appellant did not have to repay the Equity-One loan until August 2011, he initially insisted that the loan had to be repaid within six months.[15]
[15]Reasons [36]–[37].
His Honour expressed dissatisfaction with a number of the other witnesses called on behalf of the appellant. He regarded the evidence of Mr Ba Tan Pham, the appellant’s brother, as unsatisfactory in a number of respects.
He stated that Mr Tuan Pham’s evidence provoked concern in a number of areas, including his denial that he had borrowed money from his uncle and his evidence that it was the respondent who had done so. He described Mr Tuan Pham as having an ‘apparently casual attitude towards the law’.[16] Mr Tuan Pham had a criminal history which included imprisonment.
[16]Reasons [49].
His Honour considered the evidence of Ms Nho Doan, the appellant’s sister-in-law, as more peripheral as she was not involved in relevant discussions.
He found that Mr Tuan Pham’s sister, Ms Thi Thu Phong Pham, was not a party to any of the discussions regarding the loan. He expressed concern about her evidence.
In contrast, his Honour described the respondent as a fairly forthright witness, although an opportunistic character who was keen to improve her financial position, and who was focused on pursing this goal.[17]
[17]Reasons [64].
His Honour accepted the respondent’s evidence that she did not ever attend an initial meeting with the appellant, Mr Tuan Pham and Mr Ba Tan Pham, at which discussions occurred about the appellant lending money to Mr Tuan Pham and/or the respondent. His Honour found that the appellant’s witnesses did not give a consistent account of such a meeting.[18]
[18]Reasons [67].
His Honour referred to evidence given of a conversation in March 2010. Mr Ba Tan Pham had given evidence about that meeting but Mr Tuan Pham said nothing about it. It was a meeting at which the respondent was said to have made a potentially damaging admission that she would repay the money, but the substance of that comment was not raised with her in cross-examination.[19]
[19]Reasons [72].
His Honour also found that the respondent, contrary to the case of the appellant, financed the bulk of the acquisition of the property herself. This was principally through a loan from the Commonwealth Bank as well as from the sale of her unit at Noble Park. She spent over $100,000.00 on renovations to the Clayton property. His Honour accepted that Mr Tuan Pham had made some contributions to the purchase of the property, but it appeared that he had ‘accepted a low valuation regarding the value of his contribution to that project’.[20]
[20]Reasons [76]–[77].
His Honour described the respondent’s explanation of events as more credible and consistent with the rest of the evidence. Mr Tuan Pham was keen to take advantage of the respondent’s greater experience and knowledge so that he could participate in a project with her. Mr Tuan Pham did not have funds and had to borrow to participate in such a project and that was why he approached his uncle to borrow against his equity in his Footscray property.[21]
[21]Reasons [80].
Conclusion as to the first issue
As previously stated, the first issue was whether his Honour failed to give any, or sufficient, weight to the text messages. His Honour clearly preferred the evidence of the respondent as to the transactions. He decided the case on the basis of findings regarding the credibility of witnesses. He gave extensive reasons for preferring the respondent’s evidence. He said that he found the documentary evidence in the case of little utility and not especially helpful in establishing an objective context against which the actions of the main protagonists could be assessed. It would appear that his Honour considered the text messages to be part of the documentary evidence. Those text messages were ambiguous. The references to the respondent repaying money could refer to money loaned by the appellant or money paid by Mr Tuan Pham for renovations to the Clayton property. His Honour, in view of his findings on credibility, was entitled to accept the respondent’s evidence of their meaning.
His Honour’s findings of fact were not ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case.[22] Accordingly, the grounds relied on by the appellant in respect of the first issue are not established.
[22]Fox v Percy (2003) 214 CLR 118, 128.
The second issue
The second issue argued by the appellant was that, if his Honour did take into account the text messages, his Honour had failed to give reasons for not treating them as a written acknowledgement of indebtedness and in effect dismissing that evidence. As stated above, his Honour expressed the view that the documents contained in the court book did not provide him with much assistance. There was a lot of inconsistency in the oral evidence concerning discussions between the parties. There was no obligation on the judge to refer to every piece of evidence. The appellant did rely on the text messages as part of his case, but they were only one piece of evidence in a case that largely turned on the impressions that his Honour made of the witnesses. His conclusion about the documentary evidence should be taken as including a reference to the text messages.
In those circumstances, despite the reliance the appellant placed on the text messages at the trial, his Honour’s reasons reveal adequately enough why he found in favour of the respondent.
This ground is not established.
The third issue
The third issue argued by the appellant was that his Honour wrongly cast an onus on the appellant to cross-examine the respondent about an aspect of the appellant’s completed and uncontroverted evidence, when there was no such onus in law.
This contention is based on a passage in his Honour’s judgment in the following terms:
(iii) The March 2010 conversation
Ba [the appellant’s brother, Mr Ba Tan Pham] gave evidence as set out in paragraph 12 about a discussion which took place at the Footscray property in March 2010. When he gave evidence, Tuan said nothing about the meeting. Also, although the comment attributed to Tran was a potentially damaging admission on her part, the substance of the comment was not raised with her in cross-examination. There was no explanation given for this failure.[23]
[23]Reasons [72].
Mr Ba Tan Pham gave evidence that in this discussion the respondent told him that she wanted to keep the Clayton house and she would pay the debt.[24] She said that she would pay back the money. She then contacted him by phone three times that evening and confirmed that she wanted to keep the house and would pay back the money.
[24]Transcript of Proceedings, Batam Pham v Ngoc Anh Tran (County Court of Victoria, CI-11-05844, Judge Cosgrave, 3 September 2013), 73.
In cross-examination, the respondent’s counsel put to Mr Ba Tan Pham that no such conversation occurred.[25]
[25]Transcript of Proceedings, Batam Pham v Ngoc Anh Tran (County Court of Victoria, CI-11-05844, Judge Cosgrave, 3 September 2013), 83.
The appellant submitted that there was no obligation upon him to put to the respondent that such meeting occurred and that he was entitled to rely on Mr Ba Tan Pham’s evidence without more and adopt the forensic approach of ‘letting the sleeping dog lie’.[26] His Honour had erred in attaching significance to a ‘failure’ to cross-examine the respondent on this point.
[26]Scalise v Bezzina [2003] NSWCA 362 [97]–[98].
We do not consider that his Honour made any adverse finding against the appellant in the passage on which this ground of appeal relies. Rather, his Honour, when faced with competing accounts of what occurred at the meeting, was attempting to draw conclusions in a case that turned on issues of credibility. His Honour’s finding about the credibility of the witnesses was based on many factors. His Honour’s statement that the substance of the comment attributed to the respondent ‘was not raised with her in cross-examination’ was only one of many factors that he took into account. He had already found that Mr Ba Tan Pham’s evidence was unsatisfactory in a number of respects, including that he had given incorrect evidence about such a simple matter as the place where his son lived.[27]
[27]Reasons [43].
The grounds of appeal in respect of the third issue do not succeed.
Conclusion
The appeal must be dismissed.
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