Brar v Singh Bal (Civil Dispute)

[2018] ACAT 66

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BRAR v SINGH BAL (Civil Dispute) [2018] ACAT 66

XD 1168/2017

Catchwords:             CIVIL DISPUTE – debt recovery – informal, undocumented loan – credibility of witnesses – demeanour of witnesses

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 ss 6, 7

Cases cited:               Armagas Ltd v Mundogas (‘The Ocean Frost’) [1985] UKHL 11

Ballard v Multiplex [2012] NSWSC 426
Chen v State of New South Wales (No 2) [2016] NSWCA 292
In the matter of Hayvio Pty Ltd – Ottavio v Hayvio Pty Ltd [2011] NSWSC 1125
Maddock & Maddock & Anor (No.2) [2011] FMCAfam 1340
Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
NOM v DPP [2012] VSCA 198
R v E (1997) 96 A Crim R 489
Sarbandi v Sharif [2017] ACAT 57
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29
WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188

List of

Texts/Papers cited:   The Hon Justice Peter McClellan, ‘Who is telling the truth? Psychology, common sense and the law’ (Paper presented at Local Courts of New South Wales Annual Conference, 2-4 August 2006).

Tribunal:                  Senior Member H Robinson

Date of Orders:  21 June 2018

Date of Reasons for Decision:         21 June 2018

AUSTRALIAN CAPITAL TERRITORY        )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 1168/2017

BETWEEN:

RAJVEER BRAR

Applicant

AND:

SIMRANJIT SINGH BAL

Respondent

TRIBUNAL:  Senior Member H Robinson

DATE:21 June 2018

ORDER

The Tribunal orders that:

1.The application is dismissed.

………………………………..

Senior Member H Robinson

REASONS FOR DECISION

1.The applicant seeks to recover an amount of $3,500 that, she says, she loaned the respondent by way of an informal, undocumented loan. The respondent denies that the loan existed, or that he even received $3,500 from the applicant. The case is demonstrative of the problems that arise when trying to recover debts for which there is no proper record.

The case

2.The applicant’s case is that on or about 19 September 2014 she loaned the respondent the sum of $3,500 so that he could urgently pay his migration agent, Mr Ingle. The applicant made the loan by depositing the $3500 directly into Mr Ingle’s account. She says that some months later she sought to recover the money, but the respondent refused to repay it and thereafter severed contact with her. She now, several years later, seeks recovery through the tribunal.

3.The applicant’s evidence consisted of:

(a)her written statement;

(b)her oral evidence, given on oath, primarily in English but with the occasional assistance of an interpreter;

(c)the oral evidence of a friend, Mr Varinder Singh, also given on oath;

(d)an extract from a bank statement showing that the applicant had withdrawn $3,500 from her savings account on 19 September 2014;

(e)a statement from Mr Ingle confirming the transfer of $3,500 into his account on 19 September 2014; and

(f)a letter from Legal Aid to Mr Singh evidencing an attempt at recovery in November 2015.

4.In her oral evidence, the applicant explained that the loan was informal and undocumented. There was “no conversation”, or very little of it, before the loan was made.[1] There were no agreed terms, other than a promise that the respondent would repay the monies “within a month or two”.[2]

[1] Transcript of proceedings, 16 May 2018, page 9

[2] Transcript of proceedings, 16 May 2018, page 10

5.The applicant denied having any significant pre-existing relationship with the respondent, saying only that: “He met my husband at work and then I met him once before asking him to act as a referee for a job for me at a restaurant.”[3] They knew each other mainly through the Sikh community. When asked by the Tribunal why she would loan money to someone she barely knew, the applicant said “because he looked quite all right. He looked like a big fellow, but we never realised that in spite of his turban and in spite of him looking like a Sikh, he does not behave like one…”[4] The inference I drew from this evidence, and some other comments made by the applicant and the evidence of Varinder Singh (summarised below), is that it was not uncommon for persons within the Sikh community to loan small amounts of money to other, known members to help them in times of need, and that this, on the applicant’s story, was one of those occasions.

[3] Transcript of proceedings, 16 May 2018, page 10

[4] Transcript of proceedings, 16 May 2018, page 9

6.The loan was effected by the applicant withdrawing the money from her bank account and depositing it in Mr Ingle’s account. The applicant explained that: “I told [the respondent] I will transfer the money directly into his account but he said he doesn't have the time and told me to put it straight into Ingle's account”,[5] and so she did just that.

[5] Transcript of proceedings, 16 May 2018, page 8

7.In summary, therefore, the applicant’s position was that she and her husband met the respondent through employment and social circles within the broader community. When the respondent needed to borrow money urgently, her husband asked her to help him out, and after a brief conversation with the respondent, she transferred $3,500 to the immigration agent on his behalf.

8.The applicant said her only motivation in these proceedings was the recovery of monies owed to her. She explained that she had taken what steps she could to recover it earlier, but had been unable to contact the respondent. She had gone to Legal Aid, who had written the letter, but she had no response to that. She did not want to accrue legal fees, but finally commenced proceedings in the Tribunal when an associate advised her that she could run the proceedings herself.

9.The applicant’s other witness was her friend, Mr Varinder Singh. He gave evidence that it was “very common” for members of the Sikh community in the ACT to loan each other small sums of money. He set out several occasions on which he had done exactly this:

I give my friends some money and they have given me back. So it is a common practice. Like, we just trust each other. We try to help each other.”[6]

and

…. as long as I know that person a little bit and I'm thinking he's in need and if I can help him, which is, like, a main motto of our culture, our religion, then I will definitely help him.[7]

[6] Transcript of proceedings, 16 May 2018, page 17

[7] Transcript of proceedings, 16 May 2018, page 18

10.The applicant’s husband was in attendance throughout the proceedings, but did not file a witness statement or give evidence. I understand his English is limited.

11.For his part, the respondent denied the existence of any loan from the applicant. He stated that his brother had acquired the $3,500 in cash from third parties and had then given that money to him, and he had in turn then provided it to the applicant, so that she or her husband could pay Mr Ingle on his behalf.

12.The respondent’s evidence consisted of:

(a)A written statement to the tribunal, unsigned but attached to his response;

(b)Oral evidence given on affirmation;

(c)A further written statement filed 11 May 2018 (respondent’s second statement), attaching:

(i)      a series of documents relating to his employment dispute;

(ii)     a bank account statement showing pay from his employer;

(iii)    a series of emails between himself and Mr Ingle;

(d)A statement from his brother, Mr Bachittar Singh Bal (Mr Bal), attaching a series of bank account records, dated 2 May 2018;

(e)Mr Bal’s oral evidence, given on oath; and

(f)A statement from an associate, Mr Jagbir Singh, dated 2 May 2018.

13.The respondent’s second statement set out, in some detail, his account of the history of his relationship with the applicant’s husband, Mr Brar. On the respondent’s evidence, he had known Mr Brar for some time, and Mr Brar had helped him to secure employment in the ACT and introduced him to Mr Ingle. The respondent’s oral evidence was that when his employment with Mr Brar’s associate did not work out, the “link was totally broken”[8] between himself and Mr Brar, and he effectively severed communication with the applicant and her husband for that reason.

[8] Transcript of proceedings, 16 May 2018, page 21

14.The rest of the respondent’s version of events was as follows. On Friday 5 September 2014, Mr Ingle sent him an email requesting documents for a VISA application as soon as possible. The respondent also needed to pay the relevant fees – some $5,888. He did not have the money, so he contacted his brother, Mr Bal, and asked for help.

15.On Sunday, 7 September 2016, Mr Bal gave the respondent $3,500 in cash, “all hundreds and fifties”.[9] Mr Bal told the respondent he had raised the money from friends and associates. He had also obtained the use of a friend’s credit card to cover the remaining $2,388. The respondent took the envelope of cash and gave the money to the applicant’s husband “on the way to work” – apparently outside a restaurant.

[9] Transcript of proceedings, 16 May 2018, page 26

16.In his written statement, the respondent explained the reason for his rather unusual action of giving a large amount of cash money to a third party as follows:

I was working Monday-Saturday so didn’t have time to go and see Ian Ingle myself to pay him and get the process started. When I told [Mr Brar] about my problem he gave me a way out. He said if [I couldn’t get a day off] then I could hand over the money to [Mr Brar] because his wife was going to see Ian Ingle. Because I was referred to Ian Ingle for his case file, so I was hoping to get some discount from Ian Ingle if I could go through [Mr Brar]…

17.The respondent denied receiving any monies from the applicant, whether by a loan or otherwise. He said he had “never” had a conversation with the applicant and certainly never had a conversation about the loan of money.[10]

[10] Transcript of proceedings, 16 May 2018, page 23

18.A short time later, Mr Ingle sent thought the final documentation to the Department of Immigration and Border Protection, and on 15 September 2014 he emailed through his final invoice. The actual invoice was not before the Tribunal, but the covering email was. Apparently, the invoice did not include a discount, because on 17 September 2014, the respondent sent Mr Ingle an email that read:

As u know I have been referred to you by [Mr Brar] and Frank, they will give you more clients in future and I will also give you some Clients. A discount in total Fee would be much appreciated. [Mr Brar] told me that he paid 3000, so if u are alright with it please send me a new invoice with new fee.

19.Mr Ingle replied on 18 September stating that he did not give discounts. The respondent’s evidence was then:

Very next day on 18^th Sept 2014 after I read the email from Mr Ingle stating he does not give discounts I called [Mr Brar] and asked him to put the money in Mr Ingle’s account. He told me that his wife has the money and he will get it done on Friday 19^th Sept 2014…I asked her to do a cash deposit as it was Friday and the case was already delayed enough.

20.Following this, the respondent’s application for permanent residency progressed, and in March 2015 it was finally granted. He then returned to India to see his family. It was around this time, the respondent said, that Mr Brar suggested that the respondent marry his sister-in-law:

When I refused he told me that I will get in lots of trouble for not doing this. He even threatened me that he had get my permanent residency cancelled. I told him to stop all that nonsense else I would complain to the police.[11]

and also:

I was forced to marry with the applicant’s sister so that she could arrive in Australia on a spouse visa. I did not fulfil this unlawful demand. The applicant made it clear with me that if I will not marry with the applicant sister then I have to bear the consequences.[12]

[11] Respondent’s submissions, received 11 May 2018

[12] Respondent’s submissions, received 11 May 2018

21.The evidence of this alleged coercion was opaque on both sides. The applicant’s evidence was that she does not have an unmarried sister, but it appears to be common ground between the parties that the discussion may have been about the respondent marrying or at least meeting the applicant’s cousin[13]. For whatever reason that did not work out. Relevantly, the respondent suggested that his refusal to consider a marriage to a relative of the applicant was a motivation for the applicant to pursue this claim. The applicant denies this.

[13] The undisputed evidence of Mr Singh and Mr Bal is that the Punjabi word for ‘cousin’ and ‘sister’ is the same or similar – Transcript of proceedings 16 May 2017, page 36

22.Thereafter, the respondent became embroiled in a dispute with his employer, with his employer suggesting performance problems, and the respondent alleging bullying and underpayment in response. United Voice was involved and there appear to be proceedings on foot, the details of which I do not have. I do not need to go into detail as to the matter, except to note that during the course of this dispute, someone notified the Department of Immigration and Border Protection about the dispute and the applicant’s employment status. The respondent alleged that the applicant, her husband and his former employer “conspired against me to take their revenge as I didn’t bow in front of them.”[14] The allegation of a loan, he suggested, was part of this plot.

[14] Respondent’s submissions, received 11 May 2018 at [15]

23.The respondent’s other witness was his brother, Mr Bal.

24.Mr Bal gave detailed evidence as to how he collected $3,500 in cash for his brother over the course of the weekend of the 8 and 9 of September 2014 (as well as securing the use of a credit card for the additional $2,388 requested by Mr Ingle). In his statement, he names each of the individuals he says he obtained loans from. The loans, he explained, were made in cash, as “we couldn’t get the, any transfers at all because transfers would only appear on Monday.”[15]

[15] Transcript of proceedings, 16 May 2018, page 28

25.It is notable that, notwithstanding the rush to borrow the money, on any version of events, it was ultimately not paid into Mr Ingle’s account until 19 September 2014.

26.In his evidence Mr Bal set out how he had paid back the borrowed money. He produced bank statements that demonstrated that he had paid certain amounts to certain individuals at stated times. Individual transactions were highlighted as being repayments, the first one of which was made on 10 September 2017. The documentary evidence is consistent with his statement, but it must be noted that there are a lot of transactions on the tendered statements, only a small number of which are said to be repayments of the amount the subject of this dispute. There is nothing in the record to confirm that any of the payments were made to repay a loan.

27.A further written statement was provided by Mr Jagbir Singh. In his statement, Mr J Singh confirmed that he received a call from Mr Bal on 6 September 2014, requesting $3,000. He said that he loaned his friend $2,000 and returned it in a few days. Mr Singh was not available for cross-examination, but his evidence was consistent with the documentation. The statement does not specify the purpose for which Mr Singh loaned the money to Mr Bal.

Consideration

28.The evidence of the applicant and the respondent was completely contradictory. It was so contradictory that the discrepancy cannot be rationalised as one or both parties making a mistake or being under a misapprehension or as the consequence of some other kind of confusion. While it is possible to conceive highly speculative scenarios where the applicant and the respondent’s witnesses are both telling the truth, I can conceive of no circumstances under which both the applicant and the respondent are doing so. Either one party is not telling the truth, or both parties are and there is far more to the story than is currently before the Tribunal.

29.The Tribunal has to determine the matter of the evidence before it, and that means the outcome must depend largely on my findings as to the credibility of the respective parties, as witnesses.

30.Where credibility is an issue, the preferable starting point is to compare the parties’ evidence to the documents available. As Robert Goff LJ opined in in The Ocean Frost[16] at paragraph 57:

…I have found it essential…when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case…

[16] Armagas Ltd v Mundogas (The Ocean Frost) [1985] UKHL 11

31.The difficulty in this case is that, while a not-inconsiderable amount of documentary evidence was filed, none of it goes directly to the issues in question. There is no loan documentation nor any receipt of monies given or received. There is evidence that the applicant withdrew $3,500 from her account, and deposited it with Mr Ingle, but on the respondent’s story that is because he had given the money to her several days before. Her full bank account records are not in evidence.  There is evidence that Mr Bal repaid certain monies to friends and associates, but nothing that confirms that he borrowed the money for his brother’s benefit. At best, there is circumstantial evidence that supports aspects of the evidence of each of the parties, but nothing that completes the picture.

32.In the absence of clear documentary evidence, I am left with little option but to draw conclusions on the comparative credibility of the witnesses based on the credibility of their oral testimony.

33.A witnesses’ credibility includes, but is not limited to, their honesty.[17] A witness can be completely honest in his or her evidence, and still not be a credible witness. They may have incomplete or partial information, conscious or unconscious bias, or little capacity observing or remembering the events in issue. They may be wrong. As such, when considering credibility, the question is not necessarily ‘who is the most trustworthy’, but rather, the question is, ‘whose evidence is the most believable?’ Again, this is where corroborative documents are highly important, but where (as here) they are of limited use in this case, other considerations must be relied upon.

[17] For example,  R v E (1997) 96 A Crim R 489 (NSW CCA)

34.As a starting point, I have given some consideration to the inherent believability of both parties’ stories. Both have a certain degree of incredulity to them.

35.On one side, the applicant loaned a significant sum of money to a man she barely knew on a verbal promise that it would be repaid, sometime. This seems like a remarkably naïve thing to do, even in the circumstances where there is a cultural custom that allows for it.

36.On the respondent’s story, on the other hand, his brother borrowed various cash and credit amounts from other members of the community, on short notice. He gave that money, in fifty and hundred dollar notes, to the applicant.  The applicant then provided an envelope containing that cash to the applicant and her husband, without any receipt or evidence, to be deposited with an immigration agent, at some future time, in the hope of receiving a poorly defined “discount” that he could not have received had he paid himself. The applicant and her husband had now taken advantage of this occurrence, amongst other incidents, to extract revenge against him for perceived slights, including a reluctance to marry the applicant’s sister. In other words, the respondent is asking that I accept that the applicant is prepared to commit fraud and perjury to extract some kind of revenge against him.

37.As such, on balance, I tend to find the applicant’s story more credible than the respondents, although neither is entirely convincing, if only because of the lack of care taken over the custody and use of a not-insubstantial amount of cash money.

38.The third consideration relevant to credibility is demeanour, and particularly demeanour when giving evidence.

39.While it is permissible for the Tribunal to decide a contested matter solely on the basis of the parties’ respective demeanour,[18] the risks involved in doing so are well recognised.[19]

[18] See, for example, Sarbandi v Sharif [2017] ACAT 57

[19] See for example The Hon Justice Peter McClellan, ‘Who is telling the truth? Psychology, common sense and the law’ (Paper presented at Local Courts of New South Wales Annual Conference, 2-4 August 2006)

40.For her part, the applicant impressed me as a forthright and genuine witness and I have no reason to doubt the credibility of her evidence, other than the inherent incredibility of parts of her story.  I acknowledge that the assessment of the applicant’s demeanour may have been complicated by the involvement of a translator at certain points in the hearing. The translator performed her role very admirably, and there is some possibility that this may have benefitted the applicant. While I certainly do not wish to disadvantage the applicant because she used the translator, I note that the tribunal should exercise particular care if it relies on demeanour in circumstances where a person provides oral evidence through an interpreter.[20]  Still, even having regard to this caution, I am satisfied that my impressions the applicant’s demeanour are well-founded.

[20] WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 per Lee, Hill and Marshall JJ at [17] and [18]

41.For his part, there were aspects of respondent’s demeanour that struck me, on occasion, as defensive and argumentative, particularly when compared to that of the applicant. However, justice is not a likeability contest. There was nothing about the respondent’s demeanour that could legitimately be said to raise any concerns about the credibility of his evidence.

42.The respondent’s brother, Mr Bal, gave evidence in a straightforward manner and answered questions promptly and without hesitation. There was nothing in his demeanour that gave me cause for concern about the credibility of his evidence.

43.There were minor inconsistencies in the stories of all the witnesses, but nothing that suggests fabrication. Given the amount of time that has passed, an inability to remember, for example, specific dates, is of little real consequence for these proceedings.

44.It is possible that the factual discrepancies in this matter could have been resolved by an adjournment and the gathering of further evidence. Were the claim for a larger amount then it may have been appropriate for the tribunal to adjourn and direct the parties to obtain further evidence, for example, witness statements from the persons from whom Mr Bal is said to have borrowed money, or bank account records for the applicant to establish the source of the $3500. However, regard must be had to the fact that Tribunal processes are intended to be simple and inexpensive[21] and as informal as is consistent with achieving justice[22]. Adjournments for small claims, such as this, are usually inefficient and disproportionate to the claim. The parties were given time and directions to file their evidence, and while it is unfortunate that there have been oversights (albeit unforeseen ones, this is not intended as a criticism of the parties), the appropriate course is that the Tribunal must make do with what it has before it.

[21] ACT Civil and Administrative Tribunal Act2008 section 6(a)

[22] ACT Civil and Administrative Tribunal Act2008 section 7(a)

45.On balance, therefore, I must bring this matter back to simple principle that this is a civil application, brought by the applicant against the respondent. As with all civil matters, the onus of proof lies on the applicant, and the standard of proof is the balance of probabilities. To find for the applicant, I must be actually persuaded that she loaned the money to the applicant, that he was indebted to her as a consequence, that he was required to repay the money and that he has not done so as required.[23] In light of the conflicting evidence of the parties and their witnesses, and the lack of basic documentation, I simply cannot be so persuaded.

[23] NOM v DPP [2012] VSCA 198 at [124]; see also Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 at [136] per Spigelman CJ; Nguyen v Cosmopolitan Homes [2008] NSWCA 246; Ballard v Multiplex [2012] NSWSC 426 at [123]-[127] per McDougall J; Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331 at [749]–[753]; Chen v State of New South Wales (No 2) [2016] NSWCA 292 at [34]

46.I therefore must dismiss the claim.

47.I note in passing that there is another issue that arises in this case, one that was not well argued, but which nonetheless plays on my mind – and that is the question as to whether, assuming the applicant ‘loaned’ the money to the respondent, that loan was even intended to create a legally enforceable contractual promise to repay. By the applicant’s own evidence, the loan had few terms, no timeline, no security, no interest. At best, this could be described as a loan “payable on demand”, a form of loan that can have extraordinarily harsh consequences for the debtor.[24] In the alternative, however, it may well also be capable of being characterised as a gift, with equally undesirable consequences for the applicant. Or it may be that, given the informality and uncertainty, the arrangement defies legal analysis at all,[25] thereby exposing both parties to an uncertain legal status that is not readily resolved through a court-like forum like the tribunal.

[24] Eg. In the matter of Hayvio Pty Ltd - Ottavio v Hayvio Pty Ltd [2011] NSWSC 1125

[25] See discussion in Maddock & Maddock & Anor (No.2) [2011] FMCAfam 1340

48.Nothing in this decision should suggest that an undocumented loan will never be enforceable in the tribunal. In Sarbandi v Sharif [2017] ACAT 57, President Neate dismissed an appeal against a decision by a presidential member of the Tribunal recognising and enforcing an informal, undocumented loan. In that case, at first instance, the presidential member preferred the evidence of one party because he appeared to be more credible than the other, based on his oral evidence and his demeanour.[26] On appeal, President Neate said that not only was that open to the Tribunal, but it was “necessary” to make the judgement to decide the case.[27] However, in that case, the Tribunal had sufficient basis to draw the conclusions it did. Having regard to the matters set out above, I do not.

[26] At [30] to [34]

[27] At [71]

49.This case is illustrative of the need for parties to any form of commercial transaction to take appropriate care for their own self-interest. When lending money to family, friends, associates or fellow community members, or indeed when borrowing it, is important to get some written confirmation of the existence of the loan, the terms upon which it is made and the circumstances under which it may be repaid. This is the only way to ensure the interests of all parties are properly protected and avoid situations such as the present one.

………………………………..

Senior Member H Robinson

HEARING DETAILS

FILE NUMBER:	XD 1168/2017
PARTIES, APPLICANT:	Rajveer Brar
PARTIES, RESPONDENT:	Simranjit Singh Bal
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Senior Member H Robinson
DATES OF HEARING:	16 May 2018