Dang Pharmacy P/L v Dang - [2016] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DANG PHARMACY P/L v DANG
[2016] SADC 106
Judgment of His Honour Judge Beazley
13 September 2016
PERSONAL PROPERTY
Theft - stolen moneys - remedies at law and in equity - action for damages in conversion and for moneys had and received - whether plaintiff entitled to relief for claim which has not been pleaded - the plaintiff company owns two pharmacies, one of which is managed by the brother of its principal director and shareholder - the defendant was, at all relevant times, the wife of that manager and sister-in-law of the principal. It was alleged that between 2007 and 2010 the defendant misappropriated cash in the sum of $600,000.

EQUITY - EQUITABLE REMEDIES
Compensation for plaintiff's loss - discussion of principles for quantifying the plaintiff's claim for money had and received.

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT
Tendency evidence - whether evidence of alleged misappropriation of chattels, not the subject of the claim, ought be admitted into evidence as to a fact in issue - whether it falls within the collateral evidence rule.
Held:
(1) That the plaintiff be entitled to judgment against the defendant in the sum of $243,000 which sum includes interest on a lump sum basis of $73,000.
(2) That the defendant pay to the plaintiff the costs of the action on a party/party basis to be agreed or taxed.
District Court Act (1991) s 39(3); Rules of Court 6 DCR 27; 6 DCR 53; 6 DCR 261 & 6 DCR 264, referred to.
Lipman Gorman v Karpnale Ltd [1991] AC 548; Sze Tu v Lowe [2014] 89 NSWLR 317; Hraki v Hraki [2011] NSWSC 656; Grivas v Brooks (1997) 69 SASR 532; Sheldon v Sun Alliance Aust (1989) 53 SASR 97; Artcraft v Dickson [2014] SASC 108; Brigginshaw v Brigginshaw [1938] HCA 34; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; Shaw Building Group v Narayan (No 2) [2015] FCA 585; Black v Freedman & Co (1910) 12 CLR 105; Nguyen v Phan [2015] VSC 634; White v Johnston [2015] NSWCA 18; Horticulture Innovation Aust Ltd v Westley [2015] NSWSC 1292; Tarrant "Property Rights to Stolen Money" (2005) 32 UWAL Rev. 234; Scott "The recovery of money - the claim for money had and received" (1994) Otago Law Rev 239; Hudson v Robinson [1816] E.R 244; Port of Brisbane Corporation v ANZ Securities Ltd [2001] Q.S.C 466; Helou v Nguyen [2014] NSWSC 22; Fistal v Roverwood Legion & Community Club [2016] NSWCA 81; Chong v CC Containers Pty Ltd [2015] USCA 137; Kuhl V Zurich Financial Services Australia [2011] 243 CLR 361; Gwinnett v Day [2012] SASC 43; Gould v Mount Oxide Mines Ltd (1916) 22 CLA 490; Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287; Wandel v Halloran [2015] SASCFC 155; R v Brown (1912) HCA 6; Fischer c Nemeske Pty Ltd [2016] HCA 11 at 169; R v Musolino (2003) 86 SASR 37; Morris v Western Australia [2009] WASC 318; Chong v CC Containers Pty Ltd [2015] VSCA 137; Gersbach v Gersbach (No 2) [2016] NSWSC 762; Hogan v Hinch [2011] HCA 4, considered.

DANG PHARMACY P/L v DANG
[2016] SADC 106
Introduction

This is a claim, by a corporate entity, in which it was, at least initially, alleged that the defendant had, between 2002 and 2010, misappropriated at least $600,000 in cash from one of the plaintiff’s pharmacy businesses.
Claims of this nature are notoriously difficult to prove, even where specific items of property are allegedly misappropriated.[1] Those difficulties are amplified where the item is cash.
[1] See Artcraft v Dickson [2014] SASC 108.
In the subject case, no one saw the defendant physically take cash from the plaintiff. The plaintiff’s case is based upon the defendant’s limited sources of funds, indeed so limited that she could not otherwise account for the large sums of money, later discovered in her various bank accounts from 2010.
The circumstances which underlie the subject action are most unusual, and include the breakdown in extended family relationships as between the directors of the plaintiff, on the one hand, and the defendant, on the other.
The defendant was not employed by the plaintiff. At all relevant times she was the wife of one its directors, and the sister-in-law of the other. Prior to the commencement of the subject proceedings against her, the defendant had instituted proceedings in the Family Court of Australia for property and custody relief, which proceedings remain on foot.
Any allegation that the defendant had stolen cash from the plaintiff is, of course, a very serious matter. It must however been seen in the context of a bitter end to a marriage which had occurred in 2012.[2]
[2] T. p 49; 225.
A determination that certain monies were misappropriated by her would obviously impact adversely upon the defendant’s credit and reliability in the Family Court proceedings.
As is patently obvious, it is most unfortunate whenever family disputes are aired in a civil court. In some respects it reflects poorly on the whole extended family. It can colour the evidence given by otherwise credible witnesses. In Evans v Evans,[3] The Court of Appeal (NSW) noted at [146]:
… a mediation can deal with aspects of the relationship, both past and future, of the parties, in a way that is not possible for court proceedings. When a dispute involves members of a family, as the present one does, that feature of mediation can make it a particularly useful tool for dispute resolution.
[3] [2011] NSWCA 92.
Ultimately the parties elected not to proceed down that path.
Inevitably those family disputes did cast a shadow over the evidence given in the subject case by some of the witnesses. The plaintiff maintained, until part way through the proceedings that its quantum was in the sum of $600,000, when objectively the claim must have been for a significantly lesser figure. The family disputes also explain, to some degree, the long delay between the alleged acts of misappropriation and the institution of the subject proceedings.
It is therefore, unfortunately, necessary to provide some detail as to the backgrounds of the parties and those family relationships.
The parties
Dang Pharmacy Pty Ltd (‘the plaintiff’) is and was at all relevant times, the proprietor of two pharmacies to which I will refer as Pharmacy ‘A’ and Pharmacy ‘B’.
The plaintiff was incorporated on 8 February 1999. Tran Da Thao Dang (‘Ms T. Dang’), a qualified Pharmacist, is the plaintiff’s Managing Director and principal shareholder.[4]
[4] The company extract (Ex. P1, Pg 3) notes that Ms. T. Dang is a Director and the secretary of the plaintiff. She was allocated 99 out of the 100 ordinary shares of the plaintiff.
She has managed, on a day to day basis, the plaintiff’s Pharmacy ‘A’ since 9 February 1999.
Ms T. Dang is one of eight high achieving children of Vietnamese born parents, who arrived in Australia as Refugees from the war in Vietnam.
One of her siblings is Dat Dinh Dang (‘Mr D. Dang’), who is also a qualified Pharmacist. He had initially been employed by the plaintiff at its Pharmacy ‘A’.[5] He was a Director of the plaintiff. In 2001, Mr D. Dang had applied for approval to establish his own separate pharmacy. He suffered significant losses in consequence of the ultimately unsuccessful application. For some reason, which was not adequately explained, Mr D. Dang was the registered proprietor of the Pharmacy ‘A’ premises, and remained as such until 2010.[6]
[5] The company extract, supra, note 1, notes that on 9 February 1999, Mr D Dang was appointed a director of the plaintiff. He was allocated 1 ordinary share, which I infer was held on trust for Ms T Dang.
[6] T. p 96 - 97.
In 1997, Mr D. Dang met Quan Thi Dang (‘the defendant’) in Vietnam. The defendant was one of nine children of parents who were rice farmers. Evidence was tendered as to the GDP per capita in Vietnam between 1995 and 2013.[7] Their respective families agreed to the marriage.[8]
[7] Ex P7.
[8] T. p 229-230.
In 2002, the plaintiff established Pharmacy ‘B’, and appointed Mr D. Dang as its manager of that pharmacy. Ms T. Dang continued to spend most of her time managing the pharmacy ‘A’, however would attend the Pharmacy ‘B’ from time to time.
On 27 September 2002, the defendant married Mr D. Dang in Adelaide. They resided with Mr Dang’s parents at the latter’s family home, at two addresses for many years until 31 January 2011. Until about 2007, Ms T. Dang had also resided at those homes.
The defendant had little or no command of the English language when she arrived in Australia. At the time of the trial, she explained that she could read and write, a little, in English. While she had the assistance of an interpreter, she demonstrated a reasonable command of the language.
The defendant and Mr Dang have two children, with one born on 16 May 2003, and the other on 7 May 2005.
The defendant had not been in paid employment at any relevant time. Mr D. Dang was in receipt of a salary as the employed manager of Pharmacy ‘B’. The defendant would attend at that pharmacy from time to time. She did not obtain a driver’s licence until 2009, and, until then, on each occasion, she was driven to the pharmacy, and other places by her father-in-law. Apart from a joint account in the names of Mr D. Dang and herself, the defendant did not have a bank account in her sole name until 2010.
She explained that when she arrived in Australia in 2002, she had $40,000 in her possession. This was denied by the plaintiff’s witnesses, who asserted that this was a recent invention by her to justify the substantial sums of money found in her bank accounts. She also explained that she had saved a substantial amount of money from allowances of between $300 and $1,000 given to her weekly by Mr D. Dang.
The nature of the proceedings
The plaintiff’s claim against the defendant is for the alleged misappropriation of cash monies from the plaintiff’s Pharmacy ‘B’.
In Port Brisbane Corporation v ANZ Securities Ltd,[9] Chesterman J described the form of action as one in ‘money had and received’, at [24]:
Lord Ellenborough L.C said in Hudson v Robinson, in 1816 that … an action for money had and received is maintainable wherever the money of one man has, without consideration, got into the pocket of another’
That statement was quoted with approval by Lord Templeman in Lipkin Gorman (a Firm) v Karpnale Ltd (1991) 2 AC 548.
[9] (2001) QSC 466.
The claim for money had and received has been described as a ‘curious survival of past legal history’.[10] Even an innocent volunteer who receives stolen money may be sued in a claim for money had and received.[11]
[10] See Scott: 'The recovery of stolen money - the claim for money had and received' (1994) Otago Law Review 239, 240.
[11] Fistal v Riverwood Legion and Community Club [2016] NSWCA 81, [29], [31].
In Shaw Building Group Pty Ltd v Narayan (No 2),[12] Foster J said at [35] –
The starting point for the Court’s analysis of the present problem must be the cause or causes of action relied upon by the applicant against [the defendant].
The plaintiff’s pleaded case against him is not a model of clarity. Nevertheless I consider that the plaintiff has fairly raised in its Statement of Claim a cause of action for money had and received …
Money that has been stolen may be recovered from the thief in an action for money had and received. The claim against the thief is an independent restitutionary claim based upon unjust enrichment by subtraction because the defendant’s receipt of an obviously unjust enrichment has resulted from the defendant’s commission of a wrong against the plaintiff …
Conversion does not lie for money, taken and received as currency … but the law imposes an obligation on the recipient of stolen money to pay an equivalent sum to the victim if the recipient has been ‘unjustly enriched’ at the expense of the true owner. The conduct of the defendant imposes a primary obligation upon him or her to repay the money which he or she has stolen …
Another way of addressing the present problem is to regard the stolen funds as trust property held in trust for the plaintiff by the defendant. This was the approach taken by the High Court in Black v S Freedman & Co (1910) 12 CLR 105 at [108]-[109].
As the defendant was not an employee of the plaintiff, nor was there any contractual arrangement with it for her to act in a way which might adversely affect the plaintiff, I do not need to consider whether the defendant had owned a fiduciary duty to the plaintiff.[13]
Accordingly the relief which may be open to a plaintiff is for an order requiring the ‘thief’ to repay the full amount stolen, and for the payment of interest thereon.
[12] [2015] FCA 585.
[13] Contrast Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64, and Woolworths Ltd v Olson [2004] NSWSC 849.
The Standard of proof
The plaintiff accepts that because of the serious allegation that the defendant had misappropriated the plaintiff’s cash, it must discharge the Briginshaw v Briginshaw onus.[14]
[14] (1938) 60 CLR 336, 361-362.
In Helou v Nguyen,[15] it was held that the seriousness of allegations such as those in the subject case dictated the ‘application of a standard of proof approximating, but not identical with the criminal standard of proof beyond reasonable doubt.’
[15] [2014] NSWSC 22, [46] - [48].
However, in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[16] the High Court explained the standard of proof in a civil action, saying:
The ordinary standard of proof required of a party who bears the onus in civil litigation in their country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a facts or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that ‘clear and cogent’ or ‘strict proof’ is necessary. ‘Where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that member of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v Briginshaw: ‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, to the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved. (my emphasis)
[16] (1992) HCA 66. See Chong v C C Containers Pty Ltd [2015] VSCA 127.
I respectfully adopt, and will apply the dicta in Neat Holdings.
The witnesses
The principal witnesses at the trial were Ms T. Dang and Mr D. Dang for the plaintiff, while the sole witness for the defence was the defendant.
The only other witnesses were the plaintiff’s accountant, Ms Karen Phu, and the plaintiff’s solicitor Mr Oliver Oks. I have no doubt that Ms Phu gave a credible and reliable account of the facts as she recalled them. Mr Oks gave evidence on formal matters, none of which was controversial.
The plaintiff had for many years engaged Karen Phu, a certified practising accountant, to provide accounting services for both pharmacies.[17] The services were different however in respect of each business. She explained that at Pharmacy ‘A’ Ms T. Dang would personally undertake the financial duties, including lodging the BAS statements. At the end of the financial year, Ms T. Dang would provide her with the profit and loss figures so as to enable the annual returns to be prepared.[18]
[17] T. p 27.
[18] T. p 49.
By contrast, Pharmacy ‘B’ had a computerised cash register in place, and Karen Phu would access it on three monthly intervals. On those occasions she would physically attend at that business.[19] The accuracy of the records depended upon the input of the staff. Scanning and other errors would occur from time to time.[20] Karen Phu would access the computer program in order to reconcile cash sales with the cash deposits at the bank.[21] The pharmacy’s income came from cash sales, and EFPTOS sales, over the counter, and payments made by the Commonwealth under the Pharmaceutical Benefits Scheme.[22] The PBS payments constituted the most significant contributor to the net profit of the business.
[19] T. p 29.
[20] T. p 31.
[21] T. p 29.
[22] T. p 33 - 35.
The plaintiff’s claim is based upon discrepancies in the cash receipts of the Pharmacy, and not on either the EFTPOS sales or the PBS payments.
As will shortly become clear there was a direct conflict between the evidence of Ms T. Dang and Mr D. Dang on the one hand, and that of the defendant on the other, as to almost every issue in the trial; and in particular as to whether she had access to the plaintiff’s cash, and as to the source of funds in her various bank accounts.
A number of potential witnesses, including the parents of Ms T. Dang and Mr D. Dang were not called as witnesses. Further there were a large number of documents which had been obtained by the plaintiff by subpoena. The relevant documents were tendered in evidence by the parties.[23]
[23] Exhibit P1 - the plaintiff's tender book; Exhibit P3 - the money transfer documents.
Some exhibits were provided very late in the proceedings, and after some of the plaintiff’s witnesses had completed their evidence.[24] The documents however generally provided a reliable and contemporaneous account of the defendant’s bank accounts, and also of moneys allegedly transmitted by the defendant to Vietnam over many years.
[24] Exhibit P6, T. p 227.
In light of what I have described as the shadow cast by the Family Court proceedings, I make it clear that I have placed the most significant weight upon those contemporaneous documents, and the inferences which I can properly draw from them.
A brief chronology which includes some unusual background facts
There are many unusual facts in the subject case. The defendant asserts that when she arrived in Australia in 2002, she had in her possession some $40,000 in Australian currency.[25] Both Ms T. Dang and Mr D. Dang deny that she had any such money when she arrived in Australia. In light of the fact that the defendant did not have a bank account available to her solely until 2010, it raises the question as to where that cash was placed for some 8 years.
[25] T. p 165.
One of the more unusual facts relates to the management of the cash receipts of the Pharmacy ‘B’. It was not in dispute that, until 2009, Mr D. Dang, as manager, would take the daily cash receipts, save for a $300 float, to his parent’s home each night.
Part of his task was to count it; bundle the cash into separate denominations; and then to bank it. There was a dispute, on the evidence, as to whether the defendant played any role in that task. Further the cash would be banked, on Mr D. Dang’s evidence once every two or three weeks, while on Ms T. Dang’s evidence, only once a month.[26] It would remain in a drawer, presumably in the bedroom of Mr D. Dang and the defendant, until it was banked.
[26] T. p 64.
It is asserted by the plaintiff that between 31 October 2005 and 17 May 2007 the defendant caused payments totalling $25,200 to be transmitted to relatives in Vietnam through a money transfer corporation.[27]
[27] See Kim Son Money Transfer transaction sheet Exhibit P1, p 157.

The defendant admits that she paid some of those moneys, but did so from money given to her by her husband. She denies other payments, which she asserts were made by her father-in-law.
In or about 2007 and 2009, Karen Phu raised concerns with Ms T. Dang about alleged discrepancies between the cash recorded, and the cash banked at Pharmacy ‘B’. The two pharmacies had operated in a similar demographic area, and Ms T. Dang had anticipated that they would produce a similar turnover. Ms Phu’s reconciliation of Pharmacy ‘B’ accounts between 1 July 2007 and 20 June 2010 had disclosed a ‘discrepancy of $601,373.81’,[28] in the financial years 2007 to 2009.
[28] See items 7A and 16A in Exhibit P1.
It was this alleged discrepancy which was the basis of the Statement of Claim, as pleaded.
Ms T. Dang deposed that she had observed the defendant in possession of cash at the family home, which she believed was money from the pharmacy.[29] She said that she did not mention this to her brother Mr D. Dang, despite it being ‘strange’.
[29] T. p 87.
Between July 2009 and early 2010, Ms T. Dang instructed Mr D. Dang that he should no longer take the cash proceeds home for counting.[30] In evidence, Ms T. Dang asserted that thereafter there was an increase in the amounts received and banked in respect of Pharmacy ‘B’. She said that the total trading profit increased from $371,814 in 2010, to $588,131 in 2011; and $715,575.33 in 2012.[31] It does not follow from those accounts alone that there was any misappropriation.
[30] T. p 64.
[31] Ex P1, pg 97A.
The defendant denied that she had ever handled the plaintiff’s cash money at the house. She asserted that she had observed her mother-in-law counting the cash with the defendant’s husband; and that her father-in-law had banked the cash. She denied that she was asked about any money by Ms T. Dang or anyone else. She explained that she established various bank accounts with deposits from money given to her by her husband, and the $40,000 that she had brought with her.
No other investigation was undertaken by the plaintiff at that time, despite the fact that, on its face, there appeared to be this large unexplained discrepancy.
There may be various reasons why some investigation into this alleged discrepancy was not pursued, until after the Family Court proceedings were commenced. Of course one might infer that no further investigation took place because Mr D. Dang was the manager, and the defendant was his wife.
The defendant would submit that the subject action was simply an act of spite in answer to the institution of the Family Court Proceedings.
Alternatively, it may be that there was some doubt as to the accuracy of the financial accounts at the time. The profit and loss statements did not differentiate between cash sales, EFTPOS sales nor PBS receipts. There were two casually employed pharmacists at Pharmacy ‘B’. I will not speculate as to why no further action was taken in respect of the alleged discrepancy after 2009, but the lack of action is but one further curious aspect of the evidence in this trial.
I am satisfied that, between 20 March 2007 and 14 December 2010, moneys in her name totalling $21,000 were transmitted by another money transfer company to relatives in Vietnam.[32] Between 20 April 2009 and 24 April 2012 a further $11,000 in her name was transmitted to relatives in Vietnam.[33]
[32] Hai Ha money transfer statement - Exhibit P1, p 156.
[33] Dong K Han H money transfer. Exhibit P6.
Another unusual feature of the evidence is the conduct, or more relevantly the failure, of Mr D. Dang to act following a discovery allegedly made by him in the wardrobe of their bedroom in 2010.
In his evidence, in chief, he said:[34]
[34] T. p 108 - 110.
QWere you aware as to whether [the defendant] was transferring money overseas during the time you were married.
AI’m not aware of it.
QBut I think at sometime in 2010 you came home and you made an observation about some cash, can you tell us about that.
A…
QDo you see in the book in front of you, No 159A.[35]
[35] Ex P1.
AYes.
QDo you recognise those photos.
AI took the photos, yes … it’s in late 2010. One day [the defendant] basically went out for a quick take-away, I play with the kid, the kid want some toy, so I ran into the room, the door was open, I found a new – what you call ‘luggage’, suitcase, full of money.
QDid you speak to [the defendant] about that.
AWell at the time no. At the time I was in shock suddenly. She got no money. There’s a lot of money in the house for no reason.
QAnyway, the answer is you didn’t speak to the defendant about it even though she was your wife.
ANot straight away.
QDid you speak to your sister about it.
ANo.
QWhy not.
AWell, I don’t want her to know that my wife is a stealer and a thief …
QDid you subsequently speak to your wife about it.
ALater on, yes.
QTell us about that.
ABasically I found the money, I was in shock, I didn’t know what to do, so the next day I rang my lawyer.
QDid you speak to your wife, when and what did you say.
AWell later on.
QHow much later.
AI can’t remember the exact day, I told her ‘this money, you took the money, return it’, and she basically – she just walk away and that’s the end of it …
QWhat was your relationship like with your wife at that time.
AStill Okay.
It was not until after the Family Court proceedings were commenced, that Mr D. Dang told Ms T. Dang of the alleged money in the suitcase.
While the defendant denied having taken any of the plaintiff’s cash, nor indeed knowing anything of the cash allegedly observed by her former husband, she did acknowledge that she had kept cash in her suitcase in her room.[36] She asserted that the source of that cash was the sum of $40,000 she had brought with her in 2002; and the allowances given to her by her husband over the years.
[36] T. p 209.
Difficulties started to appear in the marriage of Mr D. Dang and the defendant. It is not appropriate to speculate upon all of the potential causes of those difficulties. However as counsel for the plaintiff noted in his final address, ‘this extended family and its customs were different to what we are used to in contemporary western society’.[37] The defendant deposed that she wanted to leave the parent’s-in-law’s home, because she had been living there with 10 people for 10 years, and was treated “as a housekeeper”.[38] I accept that the defendant did resent those living arrangements. I infer that she also resented the fact that Mr D. Dang was not the proprietor of Pharmacy ‘B’.
[37] T. p 261.
[38] T. p 245.
On 25 December 2010, a quantity of jewellery was allegedly removed by some person from Ms T. Dang’s jewellery box at the parent’s home. There was a dispute between the parties as to whether this was the same jewellery as was later found in the defendant’s bank security deposit box.
At all relevant times, Mr D. Dang continued to manage the Pharmacy ‘B’.
Between July 2010 and June 2012, various bank accounts and the security deposit box, in the defendant’s name, were opened and cash deposits were made.[39]
[39] See Ex P1, pp 142 - 144.
On 31 January 2011, Mr D. Dang, the defendant, and their two children moved from the Dang parent’s home into rental accommodation at Croydon Park.
On 24 June 2012, the defendant separated from Mr D. Dang. He returned to his parent’s family home with the two children. The defendant remained in the rental premises.
On 16 November 2012, the defendant instituted proceedings seeking relief in the Family Court of Australia against Mr D. Dang. Those proceedings remain on foot.
Another unusual feature of this case is that in or about December 2012 the plaintiff’s accountant Karen Phu, apparently of her own motion, approached the defendant offering to mediate her family dispute with Mr D. Dang.[40]
[40] T. p 49, 51.
Soon thereafter Mr D. Dang told Ms T. Dang that, in the Family Court proceedings, the defendant had deposed that she had in her possession, the sum of $50,000.[41]
[41] T. pp 66 - 67.
On 5 June 2013, the plaintiff instituted the subject proceedings in this Court.
On 12 June 2013, a Judge of this Court made a Freezing Order directed to eliciting information from the defendant as to any assets and bank accounts held by her. That order was varied on 21 June 2013 and 9 July 2013. The various bank accounts were discovered and copies of at least some of the bank statements are to be found in Exhibit P1.
On 1 October 2013, representatives of the plaintiff and the defendant examined the contents of a Commonwealth Bank security box. They located various items including several pieces of jewellery which the plaintiff asserts are the property of Ms T. Dang.
The plaintiff further asserts that the money deposited in each of the bank accounts in the defendant’s name; and the money transmitted by the defendant to relatives in Vietnam are funds misappropriated by her from Pharmacy ‘B’. It asserted, again at least initially, that she took that money from the cash register at the pharmacy, as well as from the cash taken home for counting.
The police interviewed the defendant in respect of the allegations of misappropriation but declined to charge her with any criminal offence. That decision of the Police does not have any relevance to the subject proceedings. I respectfully adopt the remarks of Lindsay J in Helou v Nguyen,[42] supra at [50]:
These proceedings cannot be determined, either way, by reference to opinions attributed correctly or otherwise, to police officers whose opinions, if any, may have been based on evidence different from that adduced in the proceedings.
[42] [2014] NSWSC 22
The pleadings
The pleadings were not particularly helpful.
The somewhat sparsely pleaded Statement of Claim was based upon the alleged discrepancies identified by the accountant Karen Phu in the 2007 to 2009 financial records of Pharmacy ‘B’.
·In its Statement of Claim, the plaintiff asserted that:
·The defendant attended at Pharmacy ‘B’ between the end of 2002 until 2010 during which she had access to the plaintiff’s cash register; and counted the cash takings of the pharmacy.
·The cash takings at the pharmacy did not reflect the business of the pharmacy as ‘they were $600,000 less than they should have been.’
·The defendant kept at her place of residence in mid to late 2010 ‘a considerable sum of money being about $500,000 in cash in a suitcase.’
·The defendant was not in employment and did not obtain this money lawfully.
·Between 2006 and 2010 the defendant took at least $600,000 without authorisation from the plaintiff for her personal use and benefit, and thereby constituted a fraudulent conversion of funds.
·In her Second Defence, the defendant denied each of the allegations against her save that she admitted having attended Pharmacy ‘B’ on an infrequent basis; and that she only had access to the plaintiff’s cash register with the permission of the plaintiff or one of its staff members, who was present.
There were obvious hurdles facing the plaintiff in relying upon the financial reports of Pharmacy ‘B’ for the 2007 to 2009 financial years, and the allegation of $500,000 in cash in a suitcase.
There could be a number of reasons for the apparent discrepancies in those years. This was a relatively new pharmacy. There may have been matters related to the economy to explain a reduction in cash. The arrangement whereby Pharmacy ‘A’ would transfer stock to Pharmacy ‘B’ and how it was documented, would have required more explanation. The opportunity for others to take cash would have had to be excluded. At the very least there would have been the need for a forensic accounting report. If $600,000 had been misappropriated, that surely must have been apparent to anyone, including Mr D. Dang as manager. There was no referral to the police at any time. One might ask rhetorically where could one hide $600,000 in cash? I do not accept that there was $500,000 in cash in the suitcase. Indeed there was no evidence apart from a colour photograph as to how much cash was there.
In general any relief ultimately ordered by the Court ought to be determined upon the issues identified by the parties in their respective pleadings.[43]
[43] Banque Commerciale SA v Akhil Holdings (1990) 169 CLR 79; Bravir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424 and Wandel v Halloran [2015] SASCFC 155.
Procedural matters and the conduct of the trial
The plaintiff’s case at trial accordingly was refined. Subsequent to the filing of the Statement of Claim, the plaintiff had obtained access to the defendant’s banking records; the records of overseas money transfers in her name, and access to her bank safety deposit box. Some difficulties arose because of the late production of bank documents on subpoena. Ultimately the plaintiff elected to pursue the defendant in respect of identified banking transactions, including overseas transfers. In his final address, Mr Riggall, counsel for the plaintiff said:
As the trial evolved, the difficulty of identifying specific amounts of money which may have been taken by the defendant because more apparent and as a result by applying the Bringhsaw onus to the present case, we’ve made a forensic decision to claim only the amounts of money that are demonstrable on the documents.[44]
[44] T. p 254.
The refined quantum
The moneys identified by the plaintiff in the bank records and overseas payments totalled the sum of $296,506.70.
This was the total of:
·Cash banked in the defendant’s accounts $230,806.70.
·Money transmitted via Hai Ha agency $22,100.
·Money transmitted via Kim Son agency $30,200.
·Money transmitted via Cat Tuong agency $13,400.[45]
[45] Closing Address - paragraph 11.
This course had its own difficulties in that there was a need to forensically examine each of the deposits and payments to determine the source of the funds, or the inferences which ought be drawn from them.
The evidence of Karen Phu as to the alleged shortfall remained relevant.
To the extent that the defendant had possession of moneys after 2007, the financial records of the plaintiff supported an inference that it came from Pharmacy ‘B’, in the absence of some other reasonable explanation. On the evidence the defendant’s sources of funds were limited to moneys bought by her to Australia in 2002; a weekly allowance provided by her husband and any deposits paid by him.
The jewellery
The plaintiff sought to lead evidence as to the various pieces of jewellery found in the defendant’s bank security deposit box. The plaintiff asserted that the jewellery was owned by Ms T. Dang personally and that it was stolen by the defendant from her jewellery box.
It sought to tender it as evidence of the defendant’s propensity to steal, and therefore relevant to a fact in issue, namely the misappropriation of the plaintiff’s cash. With the consent of the parties I heard the evidence as to that jewellery, de bene esse, and intimated that I would rule upon its relevance in these reasons. Both parties sought to have the evidence before me. However there was no ad idem as to its use. I repeat that the plaintiff sought to lead it on the basis of propensity or tendency evidence,[46] while the defendant sought its admission into evidence as going solely to the respective credibility of the witnesses. Although there was, in the event, no objection from the defendant to its tender, the question remained whether it fell within the collateral evidence rule.[47]
[46] Sheldon v Sun Alliance (1988) 50 SASR 236.
[47] Kurgiel v Mitsubishi Motors Aust Ltd (1990) 54 SASR 125; and R v Musolino (2003) 86 SASR 37.
Ms T. Dang did not seek to be joined as a plaintiff, nor did she seek any relief in respect of the jewellery. However counsel for the plaintiff submitted that the Court should declare property rights in respect of it ‘in the interests of the administration of justice’. The various items of jewellery remain in the possession of the police.
Issues to be determined at trial
1.   Whether the defendant had cash totalling $40,000 in her possession when she entered Australia in 2002.
2.   What is the source of the funds deposited in the bank accounts in the name of the defendant.
3.   Did the defendant count, or in any way handle the cash brought home from the Pharmacy.
4.   Whether the Court ought permit evidence as to the alleged ‘theft’ of jewellery by the defendant from Ms T. Dang’s jewellery box in December 2010, as propensity evidence.
5.   Whether the Court may make any declaration as to the status of the jewellery in the absence of Ms T. Dang as a party, and in the absence of any pleading claiming such relief.
6.   Did the defendant misappropriate any cash monies, the property of the plaintiff, and if so, the quantum thereof.
A synopsis of the evidence of the witnesses as to the general issues in dispute
·Mr D. Dang
He explained that he had come to Australia as a refugee in 1980. He had met the defendant in 1997. Together they had a traditional Vietnamese wedding banquet in Vietnam in mid-2002, before marrying in Adelaide on 27 September 2002.
He described the defendant as “lying – 100% lying” about having $40,000 in cash when she came to Australia.[48] He said that her family lived on a rural holding; that she was one of nine children, and that she had never received any income for employment in Vietnam.
[48] T. p 104, 114.
He said that the defendant had travelled with him, to Australia. He explained that, “Well at that time she got no money. She only travel with me. Basically we got one suitcase, and she got a couple of clothing with her. There’s no money at all.”
He deposed that he lost about half a million dollars in trying to set up a pharmacy. Had he succeeded it would have been valued at three or four million dollars.[49]
[49] T. p 106.
He said that in the years 2007 to 2009, inclusive, he, his family and the extended family lived at a previous home. He would take home cash from Pharmacy ‘B’ each night. It would be banked every two or three weeks. It would be counted shortly before it was banked. There was no safe at the home. The money would be separated into bundles and then counted. He would keep the money in a drawer.
He deposed that the defendant would help him count the money. It would take place in their room which was upstairs in the home.[50] He denied that his parents had counted the money.[51]
[50] T. p 107.
[51] T. p 119.
He deposed that his sister, Ms T. Dang, had raised with him the discrepancies in the accounts of Pharmacy ‘B’. He said that about two weeks later in 2010, as I have explained, he found a suitcase full of cash money, in a wardrobe in their bedroom. He took colour photographs of it.[52] He said that he rang his solicitor for advice, but by the time he returned home the money had gone.
[52] T. p 108 - 109, 122 - 123.
He deposed that, on 25 December 2010, his sister, Ms T. Dang, had complained that her jewellery had gone. Soon thereafter he, the defendant and their children moved out of the family home.
When cross-examined, he said that the defendant did not attend the pharmacy on a regular basis.[53] This appeared to be inconsistent with the evidence of the defendant, and also that of his sister.
[53] T. p 115.
He denied that it was even possible that he had left the money in her suitcase or had overlooked it when banking. He said the Pharmacy’s money had been kept in a drawer and that he did not overlook it. He agreed that this was the only time that he had noticed cash monies other than in the drawer.
He denied that he had any knowledge of a security deposit box in her name.[54] He said he thought that he had lost his gold watch – but it ended up being found in her security deposit box.
[54] T. p 126.

He denied offering to buy the defendant a house if she surrendered the children to him.[55]
[55] T. p 128.
He said that he would give her some money if he had some spare cash.[56] He said that he purchased a motor vehicle for about $50,000 for her from the joint savings account. He said that he did not know of any accounts that she may have had, other than the joint account.[57]
[56] T. p 130.
[57] T. p 133.
He was not asked about money transfers to Vietnam.
·Ms T. Dang
She had graduated in Pharmacy in 1993, after arriving as a refugee when she was aged 8 years.
She presented as an extremely competent person. She described herself as ambitious.
She had employed her brother, Mr D. Dang, at her new Pharmacy ‘B’ together with two casual pharmacists. She explained that the cash receipts of the pharmacy are entered into a cash register, and later banked as a deposit with the Bank. She said that she had “100% trust in her brother”.[58]
[58] T. p 58.
In 2007 she was informed by Karen Phu of discrepancies in the accounts of Pharmacy ‘B’. She said that she had observed that the defendant was often present at the pharmacy.
She said that she spoke to the defendant about the missing money. The defendant had told her that “the staff, look at the staff, they must have been taking”.[59] She said that thereafter she had watched the staff, but was satisfied that no money was taken by them from the pharmacy.
[59] T. p 60.
She said that she has a very close relationship with the two children of her brother and the defendant. She would come home early to help her parents with the care of the two children.
As to the counting of the cash, she deposed that while she was still living at the family home:[60]
A… Dat would come home, he put the cash on his desk, which is just outside his bedroom and then [the defendant] would go through it, roll it up and often I see her on her bed just near that desk outside, you know, counting the money out in front of her like playing cards.
QWere there ever large amounts of money at the family home.
AYes.
QAnd what was that.
AAbout 50-60,000 after – in a month.
QBut why would you have so much money in the house at any one time.
AWell it’s just too much trouble going and banking it every week, it’s just too hard. It was more likely easier to do it once a month along with everything that we have to do like stop and close and do updates … at home we’ve got good security …
[60] T. p 61 - 62.
In 2009 she spoke to the defendant and asked her directly, ‘Did you hold back cash’. The defendant denied having done so.[61]
[61] T. p 64.
She then told Mr D. Dang in mid 2010 to cease taking cash home.
She deposed that on 25 December 2010, she had noticed that her jewellery box had disappeared. She reported the loss to the Police.
After her brother and the defendant had separated, she learnt from her brother of his allegations of cash money in the suitcase, and that the defendant had deposed in the Family Court to having $50,000 in her bank accounts. She then commenced an investigation as to what bank accounts, the defendant may have.
On 1 October 2013 her solicitor had recorded the contents of the defendant’s security deposit box at the Commonwealth Bank.
Ms T. Dang recognised most of the jewellery as that missing from her jewellery box. She said that the Police declined to prosecute the defendant.[62]
[62] T. p 73.
When cross-examined she denied that the defendant could have brought in $40,000, as the defendant had never worked other than to receive board.
She said that the Pharmacists were too busy to use the till, and that, in any event, they had to learn to use it. She said that the majority of the cash money was taken home. She excluded as a possibility that the staff would have taken money from the cash register before or after 2007.[63]
[63] T. p 87.
She said that after she asked the defendant whether she had held money back, she did not ask her again. She was critical of the defendant for not caring for her children.[64] She said that she became aware from private detectives that the defendant had sent moneys to Vietnam. This evidence was hearsay, and I will ignore it. She conceded that prior to 2010, her brother Mr D. Dang was the registered proprietor of the Pharmacy ‘A’ property, before transferring it to her.[65]
·The defendant
[64] T. p 90 - 91.
[65] T. p 96- 97.
She deposed that when she came to Australia in 2002, she had $40,000 in cash with her, which had come from investments in Hui clubs and family members in Vietnam.[66]
[66] T. p 169 - 170; 175.
She had little understanding of the English language, and, effectively, was a ‘home person’, caring for her two young children, and her parents-in-law at their home. She did not obtain a driver’s licence until 2009. She would be driven to the Pharmacy and other places by her father-in-law.[67]
[67] T. p 179.
She was adamant that she did not count any of the pharmacy’s cash either at the pharmacy or at home. She deposed that it was her husband and her mother-in-law who counted the money. Further it was her father-in-law who banked the money for the pharmacy.[68] She explained that she would receive, on a weekly basis, an allowance from her husband, which would vary between $300 and $1,000.
[68] T. p 176 - 178.
She said that she was frugal and saved a substantial amount of money which she eventually banked. She said that she did not know about cash monies in the home.[69]
[69] T. p 178.
She denied ever having been spoken to by Mr T. Dang about missing money. She said that Ms T. Dang “just makes up a story to accuse me”.[70]
[70] T. p 232 - 233.
She denied ever having taken any of the pharmacy’s money. She deposed that her husband had taken her to an ANZ Bank branch to open a joint account soon after her arrival in Australia. She said that he had given her money to send to her relatives in Vietnam.[71]
[71] T. p 182.
In 2009, he had purchased a motor vehicle for her for a cost of $52,000.
She was examined about various accounts with the ANZ Bank and the Commonwealth Bank. The first account opened in her name was by her father-in-law in 2009 and was a Progress Saver account, but this was on trust for her son. The first account in her name solely was in 2010.
She explained that she had later opened various accounts and made many deposits and withdrawals.
She was asked about an Advantage cheque account opened in her name on 26 May 2010.[72] She said that a deposit of $10,000 was paid by her husband.
[72] T. p 187.
This had not been put to Mr D. Dang although he had denied, in a general sense having given her money.
She initially said that she had withdrawn $3,000 from that account on 13 October 2010 to ‘pay the rent and I pay something for my house’.[73] However when she was reminded that she was still residing at her parents-in-law’s house at that time, she said ‘I withdraw it so I can buy a bracelet’.
[73] T. p 187.
She was unable to explain many transactions including payments of $15,000 and $31,000 in a Progress Saver account. She did however assert that in March 2012 she withdrew $50,000 to give to her husband in cash.[74]
[74] T. p 191.
She deposed that when she left the marriage she had about $50,000 left. I will refer shortly in some detail to the various accounts.
In respect of the transfers of money overseas she said that she would attend with her driver’s licence, and had to pay cash. I will also refer in detail to those payments. She said that Karen Phu approached her after the separation and told her that her husband may buy her a house on condition that his family keep the children.[75]
[75] T. p 201.
She explained that all of the jewellery in the security deposit box had belonged to her.[76] She could not recall how much she had paid for the jewellery. She denied having previously asserted that the value of her jewellery was $500.
[76] T. p 203 - 207.
She said that she had collected the foreign currency found in that box.[77]
[77] T. p 207.
When cross-examined she said that she could not remember how much she had earnt in Vietnam, but then admitted that she had not been paid for her work. She repeated that she had obtained the $40,000 from success in three Hui clubs and from her parents, and family members.[78]
[78] T. p 213 - 216.
She said that she carried some of the $40,000 on her body with some in a suitcase when she travelled to Australia.[79] She said that she had exactly $40,000 in Australian currency.
[79] T. p 219.
She said that she had only used the Hai Ha and the Kim-Son money transfer organisations. She denied having used the Cat Tuong International organisation to transfer money to her relatives.
She did not know that she had $167,183.38 in her various accounts, as at 12 October 2011.
She said that she did not know that she had $118,000 in her account as at July 2012.[80]
[80] T. p 225, Exhibit P1, pp 76, 83, 98 - 99 and 135.
She said that she had kept cash in her room and that she would use it when banking.[81]
[81] T. p 245.
The documentary evidence of cash transactions
·The money transfers to Vietnam.
Documents subpoenaed from various money transfer businesses disclosed the following:
·Hai Ha Money Transfer:[82]
[82] Exhibit P1, p 156.

Transaction Date
Transaction
# Remitter Beneficiary Remittance Amount
AUD

20/03/2007 124057 Dang, Thi Quan Dang, Trung Hau
5,500

6/05/2007 131474
Dang, Thi Quan

Dang, Trung Hau

2,000

9/08/2007 150664
Dang, Thi Quan

Dang, Trung Hau

5,000

2/11/2007 172306 Dang, Thi Quan Dang, Trung Hien 2,000

22/07/2010 499313
Dang, Thi Quan
Nguyen
Thi Minh Y
1,500

14/12/2010 568620
Dang, Thi Quan
Le, Thanh Nien
5,000

4/06/2012 1023519
Dang, Thi Quan
Nguyen Thi Thu
500

30/07/2012 1058422
Dang, Thi Quan
Nguyen Thi Thu
500

·Kim Son Money Transfer:[83]
[83] Exhibit P1, p 157.

Date
Beneficiary’s
name Beneficiary’s address Amount
AUD

3/10/2005
Dang thi Nuong
LongXuyen, AnGiang
1,000

15/01/2006
Dang van Hang
101 ap PhuHoa, xa TanHoi, huyenTanHiep, KienGiang
800

15/01/2006
Dang thi Nuong
LongXuyen, An Giang
200

21/05/2006
Dang van Hang
101 ap PhuHoa, xa TanHoi, huyenTanHiep, KienGiang
3,000

10/10/2006
Dang trung Hau
101/6 ap LongThuan, xa LongPhuoc, h.LongHo, VinhLong
10,000

12/11/2006 Dang thi Nuong LongXuyen AnGiang
200

17/05/2007 Dang trung Hau 101/6 ap LongThuan, xa LongPhuoc, h.LongHo, VinhLong
10,000

8/02/2011 Dang thi Nuong apHoaLong, thi tran AnChau, ChauThanh AnGiang
5,000

·Cat Tuong International:[84]
[84] Exhibit P6.

Date

Remitter

Beneficiary

Amount

20/4/2009 Dang, thi Quan Nguyen thi Chon 5,000

20/4/2009 Dang, thi Quan Nguyen thi Bong 500

24/9/2010 Dang, thi Quan Tran thi anh Thu 1,000

29/11/2011 Dang, thi Quan Dang, Thi Ut 500

9/1/2012 Dang, thi Quan Dang, Thi Ut 2,000

20/4/2012 Dang, thi Quan Dang, Thi Ut 2,000

10/2/2015 Dang, thi Quan Dang, Thi Ut 2,000

4/3/2015 Dang, thi Quan Nguyen, Thi Tiep 400
The defendant’s evidence as to the transfers

The defendant conceded that she had sent some monies to family members in Vietnam. To do so she had to produce cash, and use her driver’s licence.[85] As to the Hai Ha Schedule, she deposed that she did not send five of the alleged eight payments. She said that the recipient of the first four payments on that schedule totalling $17,500 was Trung Hau Dang who was the nephew of her father-in-law. She said that he was not one of her family members and that she did not send them to him. She had understood that her husband had sponsored him to come to Australia. These payments were made before she had a driver’s licence. She assumed that her father-in-law, who had driven her there, had paid them.
[85] T. p 193.
I repeat that the plaintiff did not call the defendant’s father-in-law as to these four payments. I cannot be satisfied that the defendant did pay those sums in the circumstances. I accept that it is probable that her father-in-law did make those payments.
She denied sending $5,000 to Tan Lien Li in December 2010. She knew no one of that name and did not send the money to him.[86] She agreed having sent a total of $2,500 being the sums sent to her relatives on the Hai Ha Schedule, 22 July 2012; 4 June 2012 and 30 July 2012.
[86] T. p 194 - 195.
As I will shortly explain, I do not accept the evidence of the defendant if it is inconsistent with other reliable evidence. There was no suggestion that Tan Lien Li was in any way connected to her father-in-law nor to her husband. In my opinion the document speaks for itself. I accept that she paid $7,500 of the Hai Ha money transfers.
As to the Kim Son schedule, she conceded that she had sent the first sum of $1,000 to her sister. That however pre-dated the plaintiff’s claim covering 2007 to 2010 the next three transactions including one for $3,000 to her brother Dang Van Hang. She deposed that her husband had given her the money.[87] Again this was not put to Mr D. Dang. She denied however sending the two sums of $10,000 each to Dang Trung Hau, the abovenamed person who had been sponsored by her husband.[88]
[87] T. p 197.
[88] T. p 198.
Again in the absence of evidence from her father-in-law, I am satisfied that the defendant did not pay that $20,000. I do however accept that she relevantly had paid the total of $9,200, through this agency.
As to the Cat Tuong International Pty Ltd transactions, the defendant conceded that the receivers of money included her aunty; her cousin, her younger sister and her mother.[89]
[89] T. p 227.
However she denied that she had sent any of the moneys. Indeed she denied having done so on any of those three occasions.[90]
[90] T. p 228.
I do not accept her evidence in that respect. It is plain that she did send all of the Cat Tuong International Pty Ltd payments to her family members, relevantly to 24 April 2012 in the sum of $11,000.
Deposits to defendant’s bank accounts
The defendant had opened a significant number of bank accounts. The various discovered statements in respect of the relevant accounts are set out in items 5, 7, 8, 9, 11, 12, 13, 17, 17, 18, 20, 21, 22 and 23 of Exhibit P1. There is no utility in detailing all of the numerous transactions in respect of those accounts with the respective ANZ and CBA branches.
It is common ground that the defendant did not have a driver’s licence until 2009. She deposed that when she arrived in Australia in 2002 her husband had taken her to the ANZ Bank to open a joint account. At some time in 2009 an account was opened in her name on trust for her son Justin. It was a Progress Saver Account.
Karen Phu prepared a list of accounts containing deposits which she could not source. She explained that she had prepared that list after the defendant separated from Mr D. Dang. She was given the ANZ Bank Statements and the CBA Bank Statements by Ms T. Dang and was asked to reconcile them. They involved six accounts with the ANZ Bank and three with the CBA in the name of the defendant. The list does not give a complete picture of the money in each account. It is limited to those deposits which cannot be traced to other accounts.[91]
[91] T. p 254 -255.
The list has some shortcomings. The deposit of $42,400 in ANZ account No 95849, inferentially came from a trust account for her son. I was not satisfied that it was of the same nature as the other accounts.[92]
[92] T. p 252.
While that list has various shortcomings, it is convenient to set it out in full:[93]
[93] Exhibit P1, pp 8 - 9.

Date
Account Number Amount Total Deposit

22/7/2010 ANZ 26824 $30,000

11/4/2011 ANZ 79139 $20,000

26/5/2010 ANZ 16705 $1,000

22/7/2010 ANZ 16705 $9,000

08/02/2011 ANZ 16705 $2,000

22/07/2011 ANZ 16705 $2.000

02/07/2012 ANZ 16705 $3,000

26/11/2012 ANZ 16705 $1,590

25/01/2013 ANZ 16705 $500

28/03/2013 ANZ 16705 $500

11/4/2011 ANZ 2761-95849 $5,000

17/6/2011 ANZ 2761-95849 $42,400

22/7/2011 ANZ 2761-95849 $15,000

22/1/2013 ANZ 2761-95849 $3,000

09/01/2013 ANZ 2079-26898 $6,000

08/02/2011 ANZ 2483-46451 $22,000

11/10/2012 CBA 065139 10534072 $55,816.70

28/12/2013 CBA 065139 10540915 $6,000

28/12/2013 CBA 065139 10540923 $6,000

$230,806.70

The list does not indicate what happened to those monies. In respect of ANZ 16705 the sum of $5,000 was withdrawn on 13/10/2010. In respect of ANZ 95849, the balance as at 6 January 2012 was $95,177.42. On 12/1/12 the sum of $40,000 was withdrawn, while $50,000 was withdrawn on 22/3/12.
On 11/1/12 the sum of $20,956.82 was withdrawn from ANZ 79139 and deposited in ANZ 95634 which account was opened in her name on trust for her son.
However there followed five withdrawals of $3,000 each on 16/5/12; 25/6/12; 10/7/12; 18/7/12; and 12/9/12. There was a subsequent deposit of $31,758.00 on 22/10/12, before withdrawals totalling $28,000 in December 2012 and January 2013.
A term deposit of $51,758.90 in ANZ 30379 was paid off by bank cheque on 22/10/12.
The joint account of the defendant and Mr D, Dang being ANZ 61719 also had a significant number of transactions including withdrawals of $50,000 on 17/6/10; $9,000 between 30/6/10 and 30/9/10; $25,002.50 between 20/12/10 and 30/3/11; and $17,802.94 between 30/6/11 and 15/8/11.
She was asked about having withdrawn $40,000 from the Rundle Mall Branch on 12 January 2012. She could not recall what she had done with it. She thought that she may have spent some of it.
At page 246 she was asked:[94]
[94] T. p 246 - 247, and Exhibit P1, p 136.
QYou will see that on 22 March 2012 $50,000 is withdrawn. That was in a savings account. Then go to p 83 (of Exhibit P1) you see then that $50,000 on the same day is paid into a term deposit account, do you see that.
AI am not sure I have it or not. I go home and check it
…
QWhere did you keep that cash before you took it to the bank.
AI put it in my bag and I keep it in my room.
QHow much did you keep in your room at any one time.
AI keep all my savings in my room.
QHow much was that in 2011.
AI don’t remember but in 2010 I ask my husband and he told me to put the money into that account, same account.
It was put to her that rather than give her husband $50,000 in cash on 22 March 2012 she had placed it into a term deposit account on the same day.[95]
QWhat did you do with $51,758.98 that you took out [from the account] on 22 October 2012.
AI don’t remember either but I think regarding the amount of money, $50,000, some of it I gave to my ex-husband.
QBut you can’t point to anywhere in the book of documents where that happened …
ANo, I don’t remember all of them, I just transfer one account to another account.
[95] T. p 246.
The defendant could not explain the various deposits set out in the list.
I observed her giving her evidence. I was conscious of her difficulties with English and the fact that so many bank accounts were being put to her for her comment over a short period. Notwithstanding those difficulties I am satisfied that she understood what she was being asked, and was simply unable to explain the obvious, namely that the deposits on that list could not all have been sourced from her own funds.
I do not accept that her husband had made any of the deposits apart from those to the joint account. However as to the quantum of deposits to the various accounts on the list, I have reservations about the sum of $42,400 which reservations I expressed during the trial. Further I do not accept that the deposits post 2012 were the proceeds of misappropriations made between 2007 and 2010. This reduces the list to a total of $166,406.70. Coincidentally this is comparable to the sum of $167,183.38 in the accounts as at 12 October 2011.
The jewellery

On 1 October 2013 the plaintiff’s solicitor recorded the contents of the defendant’s security deposit box at the Commonwealth Bank. Those contents included various pieces of jewellery; Mr D Deng’s gold watch; a bundle of foreign currency; various cards in the defendant’s name; other papers including her children’s birth certificates; a copy of the Certificate of Title to the Athol Park Pharmacy and other sundry items.[96]
[96] T. p 70. Exhibit P1, pp 149 - 151.
Both the defendant and Ms T. Dang claimed ownership of the jewellery.
·Ms T. Dang
She referred to a bundle of receipts for jewellery purchased by her between 29 September 2003 and 24 December 2005.[97] She also produced matching items still in her possession.[98] She had not seen the jewellery in the box. She relied upon the accuracy of the descriptions by her solicitor. It was finally produced by the police towards the completion of evidence in the trial. She identified as hers:
[97] Exhibit P1, pp 149 - 151.
[98] T. p 77, Exhibit P2.
Item 1 – a two strand chain gold necklace as having been obtained by her in Thailand in 2003/2005.
Item 2 – a gold chain necklace with red rubies which she obtained in Thailand.
Item 3 – two gold chain necklaces – each with a gold cross – purchased from Kim-Son Jewellers.
Item 4 – one gold chain necklace with four gold chains – from Thailand.
Item 5 – one gold bracelet with eight high set diamonds and seven lower set diamonds from Thailand and Adelaide.
Item 6 – a pair of gold earrings with four small diamonds.
Item 7 – a pair of gold earrings with three diamonds and one ruby from Gem Gallery.
Item 8 – a chain bracelet with five high set diamonds.
Item 9 – one heart shaped gold pendant made for her by her mother.
Items 10 and 11 – engagement style gold rings purchased in Thailand.
Item 12 - a white gold platinum bracelet with a large diamond, from Thailand.
Items 13 and 14 – gold coins given to her by her brother.
Item 15 – her brother’s gold watch.
Item 16 – a silver chain for her daughter.
Items 17 and 18 – gold stud earrings bought for her daughter.
When cross-examined, she conceded that she did not engrave anything on her jewellery. As to item 16 she conceded that the silver chain was a common piece of jewellery, but deposed that she had such a chain in her box along with the specific jewellery identified by her.
·The defendant
She asserted that the jewellery belonged to her, and explained:
Item 1 – she purchased it in Vietnam.
Item 2 – it was hers before her marriage but could not recall the cost.
Item 3 – she explained that they belonged to her two boys – bought for them by her husband’s father-in-law.
Item 4 – this belonged to her son purchased by her husband in Thailand.[99]
Item 5 – this was purchased for her by her husband from Kim-Son.
Items 6 and 7 – also purchased for her by her husband from Kim-Son.
Item 8 – was a gift from my husband at the wedding.
Item 9 – another gift from my husband.
Items 10 and 11 – wedding rings bought by my husband.
Item 12 - she bought the bracelet from her savings.
Items 13 and 14 – gifts to my children from relatives.
Item 15 – belongs to her husband.
[99] T. p 204.
As to the gold watch she explained that she did not steal it. She said that her husband left it at the house and she simply kept it.[100]
[100] T. p 207.
It is not appropriate for me to make any declaration as to ownership. Ms T. Dang is not a party to the proceedings. I do accept that some of the items may well belong to the defendant’s sons as she deposed. All of those with an interest in the jewellery ought be permitted to address the Court, if necessary, on an interpleader summons. As to the majority of the items however I have no doubt that as between the defendant and Ms T. Dang, they are the property of Ms T. Dang.
The submissions of counsel
·The plaintiff’s submissions
Mr Riggall, counsel for the plaintiff, very properly conceded the need for the plaintiff to satisfy the onus in Briginshaw’s case,[101] namely such that this Court ‘must feel an actual persuasion of its occurrence or existence before ‘a fact’ can be found.’
[101] (1938) 60 CLR 336 at 361 -362; see also Neat Holdings Pty Ltd v Karajan Pty Ltd (1992) HCA 66.
He concentrated upon the subpoenaed documents to establish the amounts of cash monies which the defendant had amassed in her various bank accounts.
These sums together with overseas transfer documents, he submitted, established to the requisite degree, that the defendant had misappropriated no less than $296,506.70 of the plaintiff’s money. Given that she was reliant entirely for any funds upon her husband, he submitted that the only inference open to the Court was that the defendant had misappropriated those monies from the plaintiff.
He invited the Court to find that the defendant did not, as she had asserted, bring the sum of $40,000 to Australia in 2002. He submitted that it not only contrary to law that she could have brought it into the country, but any suggestion that she had preserved it in full for 10 years, and had never disclosed it to her husband during that time, defied common sense.
He referred to her evidence as to how she had managed to save $40,000 while living in Vietnam.[102] She had deposed to obtaining that money in consequence of her contributions and those of her parents in Vietnamese Hui Clubs; and from gifts at her wedding. She had deposed to changing it into Australian currency. He submitted that the Court should conclude that this was fanciful.
[102] T. pp 213 - 216.
He reminded the Court that:
·Between 3 October 2005 and March 2014 the defendant had transferred a total of $57,300 to Vietnam through the respective Hai Hai Overseas Money Transfer; the Kim Son Overseas Money Transfer; and Cat Tuong International.
·On 11 April 2011 the defendant had opened a term deposit with the ANZ bank No 9683-79139 with a $20,000 deposit. On the same day she had opened another account with the ANZ No 2761-95849 with a $5,000 deposit. Within 3 months a further deposit of $42,000 was made on 17 June 2011.
Mr Riggall submitted that the Court ought to reject the evidence of the defendant except where it was supported by her bank records, her money transfer documents or the evidence of the plaintiff’s witnesses.
He submitted that the defendant also did not have a credible explanation for the monies sent to Vietnam, nor for the monies deposited to her accounts. He submitted that the Court ought to reflect poorly of the defendant for attempting to distance herself from the payments through Cat Tuong International, when the recipients of some of the monies were her mother and her sister.
He identified that at its highest on 21 October 2011, the defendant’s accounts held a total of $167,183.38. By 1 July 2012, the total had fallen to $118,000.
He submitted that the Court ought not accept that a transfer of $50,000 on 22 March 2012 was made to Mr D. Dang by her. That was not put to Mr D. Dang and I do not accept her evidence in that respect.
He invited the Court to conclude that jewellery located in the defendant’s safety deposit box was stolen by her from Ms T. Dang’s jewellery box. He also invited the Court to make findings as to ownership of each specific piece of jewellery, so as to ‘save a lot of duplication’.[103]
[103] T. p 263.
Mr Riggall did not accept that the Progress Saver account which had contained $6,000 had been held on trust for her sons.[104] He submitted that it was simply a named account which the defendant controlled and into which moneys stolen from the plaintiff were placed. In any event I do not need to resolve that issue. He was critical of the fact that the defendant’s case was not properly put to either Ms T. Dang, nor Mr D. Dang.[105]
·The defendant’s submissions
[104] T. p 264.
[105] T. p 161.
Mr Alevizos, counsel for the defendant, submitted that the plaintiff had failed to satisfy the Briginshaw test.
He was critical of the evidence of Ms T. Dang, particularly with respect to her assertion that alleged discrepancies of about $600,000 were brought to her attention by 2009, but she had done nothing. This was the best evidence that no real losses of cash had been established.
He stressed that the facts of the subject case were most unusual. This was not a case of someone stealing cheques or other identified monies.
This was a case involving family members, and apparently unexplained deposits to bank accounts.
He referred to moneys in the joint bank account between the defendant and her husband, being ANZ Bank account no. 61719. That account had recorded deposits and withdrawals totalling almost $120,000 between June 2010 and August 2011, including one withdrawal of $50,000 on 17 June 2010.
He submitted that the plaintiff had failed to distinguish between the plaintiff’s alleged cash, and that of the defendant’s ex-husband Mr D. Dang. The latter sums could not be recoverable by the plaintiff. The Court could not be satisfied that the money’s in the various accounts had come from the cash money in the drawer, as opposed from the joint account or from her husband.
He submitted that the initial allegation that the defendant had stolen money from a cash register at the Pharmacy was patently false. All witnesses concurred that she had little access to the register, and that no one could readily access money, let alone the large sums alleged by the plaintiff.
He invited the Court to conclude that the defendant had no involvement in the counting of the Pharmacy’s cash at the family home.
The court ought also conclude that the defendant had indeed brought with her, cash in the sum of $40,000 in 2002.
He submitted that the Court ought to accept that the defendant was paid an allowance of at least $300 per week, and that it was open to the Court to find that she had saved about $50,000 by the time of the separation.
He submitted that the Court could not be satisfied that Mr D. Dang had not carried out the numerous transactions, noted in the bank statements. He referred to the decision of the Police to decline to charge the defendant with any offence. I have already addressed the relevance of that last submission.
As to the money transfers to Vietnam the plaintiff had not excluded that many of the transactions were made by the defendant’s father-in-law, who had accompanied her until she got her driver’s licence in 2009. I have already referred to that issue in these reasons.
He submitted that the Court ought dismiss the plaintiff’s claim.
Discussion
Before discussing the merits of the plaintiff’s claim against the defendant it is proper that I briefly refer to the principles in Browne v Dunn;[106] those in Jones v Dunkel;[107] and the finality rule on collateral issues.[108] Each of the principles was mentioned, albeit obliquely, by counsel.
·Browne v Dunn
[106] (1829) 57 ER 909.
[107] (1959) 101 CLR 298.
[108] See Kurgiel v Mitsubishi Motors (1990) 54 SASR 125.
The rule in Browne v Dunn is an important rule of practice. It is essentially one of fairness, and was explained in allied Pastoral Holdings Pty Ltd v Commissioner of Taxation.[109] It requires a party to properly put its case to the witnesses for the other party.
[109] [1983] 1 NSWLR 1
In the subject case both counsel were somewhat hamstrung by the late response to subpoenas. In at least one case the documents arrived after the completion of the evidence of two of the plaintiff’s witnesses. Thus some of the documents were not put to some witnesses, and cross-examination was accordingly somewhat restricted.
Neither counsel made a submission that an alleged failure to comply with the rule in Browne v Dunn by not putting their case to the respective witnesses, ought have any consequences. I have done my best to resolve the disputes without reference to the rule in Browne v Dunn. I had assumed that Mr D. Dang would deny having made any payments to or on behalf of the defendant. I have no doubt that the way the case proceeded both counsel did their best to accommodate the difficulties in respect of the documentary evidence and that there was no unfairness to either party.
·Jones v Dunkel
In the subject case the plaintiff did not call as witnesses either of the defendant’s father-in-law or mother-in-law. The defendant had asserted that she did not count or handle any of the cash bought home from the Pharmacy, but had observed her mother-in-law counting it with her husband Mr D. Dang.
She had also asserted that her father-in-law had done the banking for the Pharmacy; that he had caused the significant money transfers to be made to his nephew in Vietnam, and had driven the defendant to the bank and to the money transfer organisations.
I have already referred to some of the payments in the Hai Ha Schedule of payments, which the defendant had ascribed to her father-in-law.
This raises the question whether I ought draw an inference adverse to the plaintiff’s case having regard to its failure to call those witnesses.
The relevant principles were recently set out by the Court of Appeal (WA) in Fazio v Fazio,[110]
[110] [2012] WASCA 72 at [132]-[136].
[132] …. the appellant referred to the principles in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969, 970, and Jones v Dunkel (308), (312), (321), and in particular their application to a failure by a party to give evidence on an issue in the case. The appellant referred to the observations of Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [63]:
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. (footnotes omitted)
…
[135] The observations of the majority in RPS v R [2000] HCA 3; (2000) 199 CLR 620 [25]–[26] should also be noted:
It is necessary to keep at the forefront of consideration that the mode of reasoning which is described proceeds from the premise that the person who has not given evidence not only could shed light on the subject but also would ordinarily be expected to do so. …
In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case and that:
where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. (emphasis in original) (footnotes omitted)
[136] Further, as the learned author in Heydon JD, Cross on Evidence (8th Aust ed, 2011) [1215] said with reference to a consideration of Jones v Dunkel:
The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. Nor does the rule prevent any inference favourable to the party who has failed to call the witness from being drawn: other evidence may justify the drawing of the inference.
Thirdly, the rule only applies where a party is “required to explain or contradict” something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts “requiring an answer”. (footnotes omitted)
In Manly Council v Byrne,[111] the Court of Appeal (NSW) approved the following dicta:
The rule does not operate to require a party to give merely cumulative evidence. If five people attended a relevant meeting and some are called, no Jones v Dunkel inference can normally arise in respect of those who are not: the rule does not compel time to be wasted by calling unnecessary witnesses.
·Conclusion on this topic
[111] (2004) NSWCA 123.
The defendant’s counsel ultimately did not submit that an inference ought be drawn against the plaintiff’s case, for the failure to call the defendant’s father-in-law. In my opinion he was correct in not making that submission.
I do not draw any inference adverse to the plaintiff for failing to call the respective parents-in-law.
As explained in Bell Group (In Liq) v Westpac Banking Corporation (No 9):[112]
The rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict depends on the issues in the case as shown in the pleadings and by the course of the evidence in the case.
[112] [2008] asc 239, [1012].
I have accepted the evidence of the defendant with respect to the payments made to Trung Hau Dang, without the need to draw any adverse inference.
Save for the money transfers the only matters upon which the respective parents-in-law could have given evidence were limited to issues of credibility. They could not have given evidence as to what had occurred in the upstairs bedroom with respect to the cash which had been counted. The plaintiff’s case depends principally upon the documentary evidence, and in particular the defendant’s bank accounts since 2009.
Having considered all of the evidence I do not draw any inference adverse to the plaintiff in consequence of its decision not to call the respective parents-in-law.
·The finality rule
As I have already noted, the plaintiff sought to lead the evidence as to the finding of jewellery in the defendant’s security deposit box as evidence of the defendant’s tendency or propensity to misappropriate the property of the family members, and thus relevant to a fact in issue in the trial, namely whether she had misappropriated the plaintiff’s cash money.
In Kurgiel v Mitsubishi Motors Australia,[113] Cox J said:
As a general rule a witness may not be contradicted on matters whose only relationship to the action between the parties is that they may cast some light on the witness’s credit.
It is not that such collateral matters are not relevant or important and therefore in one sense entirely relevant – but that the exhaustive pursuit of collateral issues in a trial will tend to be time consuming and expensive and distracting, so that it is better as a matter of curial policy that it not be embarked upon at all. If the witness’s credit, in the sense of his credibility, is a matter material to the acceptance of his evidence, he may be cross-examined on topics that could have a bearing on his credit even though they are quite remote in subject matter from the dispute that is raised by the pleadings, but the evidence that the witness gives on collateral topics will be binding on the cross-examiner. If he does not get he answers he wants he cannot lead evidence to contradict the witness.
[113] (1990) 54 SASR 125, 128. See also R v Musolino (2003) 86 SASR 37, 53.
In Sheldon v Sun Alliance,[114] evidence of previous fires and insurance claims was admitted as tendency evidence because there were ‘too many misfortunes for there to be an innocent explanation”.
[114] (1988 50 SASR 236, (1989) 53 SASR 97.

In Grivas v Brooker,[115] Doyle CJ, when considering the relevance of evidence of other persons who had been prosecuted by the defendant in a case of malicious prosecution said:
This may be stretching the notion of a “fraudulent system” somewhat, but I acknowledge that, as a matter of logic and experience, proof that on a number of occasions, the defendant deliberately avoided bringing an allegation of a breach … to the attention of the alleged offender … could be regarded as relevant by a decider of fact in the present case.
[115] (1997) 69 SASR 532, 535.
I readily accept that in some circumstances a later theft of some items could be relevant to a decider of fact on the question of earlier alleged thefts. But in the present case there are some marked differences. The claim by the plaintiff is that the defendant, prior to 2010 had stolen significant sums of cash from the plaintiff.
There are many differences between that allegation, and one of taking a jewellery box which included items said to be gifts to her children.
In Palmer v The Queen,[116] McHugh J said that:
The rigid distinction between credit and facts in issue and the rules predicted on that distinction should be minimised by the adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts in issue. Evidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness. There is no distinction, so far as relevance is concerned, between the credibility of the witness and the facts to which he or she deposes.
The credibility of evidence is locked to the credibility of its deponent. The truth of that proposition is in reality recognised by the rule that a witness can be cross-examined as to matters of credit.
[116] (1998) 193 CLR 1, [56].
In the subject case it is the credibility of the witnesses as to the jewellery which is the significant issue.
There were difficulties with the late production of the jewellery. I do not accept that it ought be admitted as tendency evidence. It remains relevant to the question of credibility.
The assessment of the principal witnesses
I have previously referred to the standard of proof as expressed by the High Court of Australia in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, supra. I also respectfully adopt the dicta of the Court of Appeal (Vic) in Chong v C C Containers Pty Ltd, supra, that in civil cases involving fraud there is no requirement for the plaintiff to exclude ‘every rational inference inconsistent with the requisite state of mind’.
I repeat that, in the subject case, however there was no defence of a claim of right to the money. The sole issue was whether the plaintiff had proved that the defendant had taken it. If it did prove that she had taken the money, there could be no doubt as to her intention to misappropriate it.
As I have explained, the breakdown in the marriage between the defendant and Mr D. Dang cast a shadow over the evidence given by the three principal witnesses Ms T. Dang, Mr D. Dang and the defendant.
At times the antagonism by Ms T. Dang and Mr D. Dang towards the defendant was obvious. This may well have coloured some of their respective evidence. That is hardly surprising. Both felt betrayed by what they perceived to be the criminal conduct of the defendant, and the consequential affect upon their extended family. I have no doubt this drove the plaintiff to maintain its claim in the sum of $600,000, rather than a lesser sum.
Save for her obvious antipathy towards the defendant, I find that Ms T. Dang was both a credible and reliable witness as to the issues in this case. In particular I accept her evidence wherever it conflicts with that of the defendant. I have no doubt that she did become alarmed by the discrepancies in the pharmacy’s accounts between 2007 and 2009.
I have no doubt that she observed the defendant handling the cash money at home, and that she subsequently confronted the defendant. I conclude that she did direct that the counting of money at home must cease in 2009, and did so because she had a reservation that the defendant was taking some of it. I also accept that her evidence as to the jewellery was both credible and reliable, and ought be preferred to that of the defendant on that topic.
I accept that Mr D. Dang was generally a credible witness. I am cautious however about the reliability of some of his evidence. I accept his evidence that the defendant did not bring with her cash in the sum of $40,000 as she had deposed. That does not mean that she brought no money with her. Whatever she had would have been dissipated shortly after her arrival. I accept his evidence as to how the plaintiff’s cash takings were counted by him and the defendant, and left in a drawer at his parents’ home until it was banked.
I have no doubt that he was shocked to find the suitcase containing cash in the bedroom.
I am also cautious about some of his other evidence. I do not understand why he did not raise the finding of that cash with the defendant immediately, nor why he did not inform his sister about it until after the separation. He seems to have been oblivious to the defendant’s conduct including the opening of numerous bank accounts. In the end I have come to the conclusion that he turned a ‘blind eye’ to her conduct because he wished to preserve the marriage.
I do not accept that he only gave money to the defendant ‘if he had spare cash’. I have no doubt that he would have given her an allowance on a weekly basis. I infer it was generally about $300 per week. I remind myself that he does not dispute purchasing a motor vehicle for her in the sum of $52,000. There were, I repeat, significant deposits to, and withdrawals from the joint account.
I see no reason why the defendant would not have given her some money to send to her family in Vietnam in or about 2005. I do not accept that he denied her any cash for that purpose.
He was trying his best to maintain the marriage until the separation. I do not however accept that he had paid any of the deposits to the various accounts in the defendant’s sole name.
I turn to the defendant. I regret that I must conclude that she was neither a credible nor reliable witness in respect of the principal issues in the trial. Her evidence as to the $40,000 and the payment by Mr D. Dang of the deposits after the question was raised by his sister of irregularities is frankly fanciful. I have reached that conclusion somewhat reluctantly because I have no doubt that she genuinely believes that she was treated badly by her extended family. She believed that unless something occurred she would be forced to reside in her parents-in-law’s home forever. I have no doubt that she succumbed to the temptation of the cash money in the house so that she could eventually purchase a house and leave the parents in laws’ home.
I do not accept that she brought the sum of $40,000 in Australian currency with her nor any substantial sum when she arrived in Australia in 2002.
I have no doubt that she invented the version that she had brought that cash into Australia and had kept it for 7 years, so as to explain the opening by her of the various accounts.
I have no doubt that she removed Ms T. Dang’s jewellery box, and that some of the items found in her security deposit box in October 2013 were from that box. I repeat that I do not treat that finding as evidence of a propensity to steal property.
I do however find that the defendant did between 2007 and 2009 take cash moneys which had been brought home from the Pharmacy. I cannot on the evidence quantify the total sum which had been taken. I do however accept that it accords with the list, as amended by me, of the deposits for which there is no other source.
Conclusion
Despite my findings as to credit, it does not automatically follow that the plaintiff is entitled to the sums identified by the plaintiff.
I am conscious of the submissions by counsel for the defendant that there may be other sources of money for those deposits including Mr D. Dang, and any savings made by the defendant from the allowances that she received from him.
If there were other sources to explain the deposits on the Phu list then that would be fatal to the plaintiff’s claim.
It is not all or nothing. I repeat that I cannot exclude that Mr D. Dang did give her a weekly allowance. I accept that she probably did save some money from that allowance by about 2009. However once the alleged $40,000 is excluded as I have found, then the possible quantum of retained allowances, payments by Mr D. Dang to the overseas relatives, and any money properly taken from the joint account are in total, relatively small.
By reference to the plaintiff’s recalculations I have already found that the unexplained deposits total $166,406.70.
I have found that the money transfers:
·In respect of Hai Ha to 30 June 2012 total $7,000.
·In respect of Kim Son total $9,200.
·In respect of Cat Tuong International total $11,000.
I do not accept that the defendant misappropriated any other money from Mr D. Dang or from the joint account. It would have defeated the purpose for her to have done so.
Accordingly and contrary to Mr Alevizos’s submissions, I find that she had no other source of funds other than the sums misappropriated from the plaintiff, and her own savings.
Despite my finding as to her want of credibility I cannot exclude that some of these moneys for the deposits came from her savings, and that some of the money transmitted to relatives before 2009 were provided by Mr D. Dang.
There can be no certainty as to the quantum misappropriated.
I have found this question of quantum to be an extremely difficult exercise given the standard of proof upon the plaintiff.
Doing the best that I can with the evidence I conclude that the sum of $170,000 is the sum misappropriated by the defendant from the plaintiff to 2010. There was no further misappropriation after 2010.
I will hear the parties as to costs and interest. I will also hear the parties as to other ancillary orders.
Orders
1. That the plaintiff will be entitled to judgment against the defendant in the sum of $170,000, in addition to interest thereon.
2. That the Court will hear the parties on any ancillary orders, including costs and the quantum of interest.
Addendum as at 13 September 2016
Following the delivery to the parties of the above Reasons on 26 August 2016, the Court adjourned the question of the ancillary orders for argument on 13 September 2016. What follows are my ex tempore Reasons delivered in respect of each issue raised by the parties on the ancillary matters.
·Publication of the Reasons for Judgment
The question as to whether these Reasons ought be published at large was mentioned in passing, particularly as to the identities of the victim of the misappropriation and its directors.
It is plain that suppression orders may be made in the proper administration of justice. Suppression orders have indeed been made in cases such as blackmail and in matters involving other breaches of confidence.[117] It is clear that the categories are not closed.
Recently in Gersbach v Gersbach (No 2)[118], Button J considered the question of suppression of the Reasons in a matter involving allegations of sexual assault. Although his Honour was considering the matter, in light of the specific legislation in NSW[119], the Court said:
Although the allegations made by the plaintiff about the defendant are of great gravity, allegations of even greater seriousness are commonly made against persons in the case of criminal litigation. And although there are various statutory protections that apply to alleged victims, it is rare indeed for there to be non-publication of allegations of [criminal conduct] against accused persons, or the use of pseudonyms to protect their identities … that openness is countenanced by our system of justice even where the guilt or otherwise of an accused person will be determined by members of the community who may have been exposed to such publicity, by way of a trial by jury.
In Hogan v Hinch supra, French CJ said:
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a [court’s] implied powers.
This may be done where it is necessary to secure the proper administration of justice … Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer the name of a blackmailer’s victim … may be suppressed … The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open – court principle.
[117] Russell v Russell (1976) 134 CLR 495; Hogan v Hinch [2011] HCA 4.
[118] [2016] NSWSC 762.
[119] Court Suppression and Non Publication Orders Act, 2010, (NSW).
Counsel for the plaintiff very properly acknowledged that the principles of open justice and public hearings point to publication at large for judgments of the Court in its civil jurisdiction,[120] but sought the removal of some minor matters from the published judgment.
[120] See District Court Act 1991 (SA) s 54(1).
The parties, consistent with above principles, ultimately agreed that the residential address of the defendant’s parents in law, and the specific identification of the addresses of the two pharmacies ought be removed from the Reasons. The removal of those matters will not adversely affect the public right of open justice. I concur with the approach proposed by counsel. The original Reasons, as amended herein, can now be published.
·Interest on the judgment sum
The plaintiff initially sought interest from a date in 2009.
In the ordinary course of events I would have allowed interest calculated pursuant to s 39(2) of the District Court Act, 1991 (SA).
The relevant pre-judgment rates in accordance with the subsection are detailed in the footnote 261.7 to Rule 6 DCR 261 in Lunn: Civil Procedure in South Australia, Vol 1.
I explained to the parties that in light of the findings as to some ‘unusual background matters’ in the Reasons for Judgment, I had considered fixing a lump sum of interest pursuant to s 39(3) of the Act.
There were difficulties in fixing with any certainty when the moneys were misappropriated. A Freezing Order was made in this case.
I did not understand either party to oppose that approach, nor indeed that the relevant period for interest be that from late 2010 to the date hereof. I have fixed the quantum as $73,000 for that period. The lump sum was fixed by generally following the interest scales detailed in footnote 261.7, supra. Neither party ultimately opposed that lump sum.
I order that the defendant pay to the plaintiff interest in the sum of $73,000 on the judgment sum of $170,000. Accordingly the plaintiff is entitled to judgment in the total sum of $243,000 as at the date hereof.
·Costs
The plaintiff sought an order for costs on a solicitor/client, or alternatively on an indemnity basis. Counsel for the plaintiff Mr Riggall, submitted that this was a case of misappropriation by the defendant, who had strenuously denied the inevitable findings against her. Her intransigence had led to the plaintiff’s directors being forced to give evidence on embarrassing family matters.
He submitted that on the authorities the usual practice is to award solicitor/client costs against the defaulting party. He referred to the respective cases of Helou v Nguyen [2014] NSWSC 22, and Artcraft v Dickson [2014] SASC 108.
While there is no usual practice, there is a great deal of force in that submission. It remains a matter of discretion, which must be exercised judicially.
The Rules of Court provide for the awarding of costs as follows:
Rule 6 DCR 264 provides:
(1) The Court may in the exercise of its discretion as to costs, award costs on any basis the Court considers appropriate.
(2) As a general rule, however, costs are awarded as between party and party (that is on the basis that the party entitled to the costs will be reimbursed for costs reasonably incurred by the party in the conduct of the litigation to an extent determined by reference to the scale of costs in force, under these rules or the old rules, when the costs were incurred.
The Court clearly has a wide discretion to award costs on a solicitor/client basis, or on an indemnity basis pursuant to Rule 6 DCR 264(5).
I have found the exercise of the discretion difficult in the circumstances of this case.
The defendant’s counsel submitted that the plaintiff had claimed the excessive sum of $600,000 on the somewhat limited accounting advice of Ms Phu.
It was only late in the trial that the plaintiff’s claim was refined and substantially reduced in quantum. He inferentially submitted that this had impeded any chance of settlement. In my opinion neither party acted improperly in the conduct of the trial, notwithstanding discovery and subpoena delays.
I am satisfied that neither party would have engaged in meaningful settlement negotiations in this case, irrespective of the quantum.
Neither party filed any Notice of Offer. The fact remains that despite the plaintiff being a separate entity, this was essentially a family dispute. The defendant’s husband was at all times a director of the plaintiff. He was aware in 2010 about the defendant’s possession of unexplained cash but chose to keep that information from his sister, the principal director of the plaintiff. I will not repeat the other unusual factors of this case as outlined in the Reasons for Judgment.
Ultimately I have concluded that the plaintiff should receive an order that the defendant pay the plaintiff’s costs of the action on a party/party basis to be agreed or taxed.
·Application by the plaintiff’s director Ms T. Dang
The plaintiff’s director Ms T. Dang purported to file, on 13 September 2016, an application for certain orders, together with an accompanying affidavit.
The application was clearly prepared by Ms T. Dang and was not disclosed to her solicitors on the record. I do not intend to detail the orders which were sought, as there is no utility in doing so. It suffices to say that the documents raised scandalous matters in that Ms Dang was critical of the defendant and her advisors.
The plaintiff has its solicitors on the record. I intimated that I would not in the circumstances give leave for Ms T. Dang to act for the company, even if that was her intention, pursuant to Rule 6 DCR 27.
In any event, I repeat that the documents contained some scandalous and, indeed irrelevant matters. Accordingly I intimated that I would direct the Registrar to refuse to accept the documents pursuant to Rule 6 DCR 53. Having taken instructions from Ms T. Dang, counsel for the plaintiff did not oppose that order. I accordingly made that order.
·Exhibit P5
This exhibit contains jewellery and cash located in the defendant’s bank deposit box. The exhibit was subpoenaed from the police, and remains for the time being in the custody of the Court.
As I explained in the Reasons for Judgment I was unable to determine the respective party’s entitlement to those items, as that issue was not joined in the proceedings.
In the ordinary course of events the exhibit would be returned to the police custody and the parties would be required to issue interpleader proceedings to separately determine the respective rights to possession.
That would be a very expensive course for either party to adopt.
I repeat that the Family Court proceedings remain on foot. I do not know whether the defendant has listed the items in Ex P5 as part of her assets in any property proceedings.
Even if a Court were to find that any of the items did belong to the defendant, then they would be subject to any execution proceedings issued by the plaintiff upon the judgment sum.

The plaintiff has suggested that the appropriate parties be joined and that they file points of claim and points of defence to enable this Court to resolve this matter without further litigation.
The defendant has opposed that course. I remind the parties of the dicta of the Court of Appeal (NSW) in Evans v Evans, supra. This issue should be resolved quickly and with minimal cost. It is in the interests of both parties that it be resolved.
I directed the parties to consider their respective positions. If the issue is not resolved within 14 days, either party has liberty to bring an application for the resolution of this issue before me.
·Contempt
Counsel for the plaintiff raised the issue of an alleged contempt by the defendant of a Freezing Order made by another Judge of this Court. This was not a matter directly raised on the trial of the action before me. Should the plaintiff wish to pursue that matter, an appropriate application ought be made by it.
Orders
For the above reasons I order:
(1)     That there be judgment for the plaintiff against the defendant in the          sum of $243,000 (inclusive of interest to the date hereof of $73,000).
(2)     That the defendant pay to the plaintiff the costs of action on a         party/party basis to be taxed or agreed.
(3)     Liberty to either party to apply in respect of the question of    proprietary right to the items in Exhibit P5 on short notice to the other     party.

Transaction Date	Transaction #	Remitter	Beneficiary	Remittance Amount AUD
20/03/2007	124057	Dang, Thi Quan	Dang, Trung Hau	5,500
6/05/2007	131474	Dang, Thi Quan	Dang, Trung Hau	2,000
9/08/2007	150664	Dang, Thi Quan	Dang, Trung Hau	5,000
2/11/2007	172306	Dang, Thi Quan	Dang, Trung Hien	2,000
22/07/2010	499313	Dang, Thi Quan	Nguyen Thi Minh Y	1,500
14/12/2010	568620	Dang, Thi Quan	Le, Thanh Nien	5,000
4/06/2012	1023519	Dang, Thi Quan	Nguyen Thi Thu	500
30/07/2012	1058422	Dang, Thi Quan	Nguyen Thi Thu	500

3/10/2005	Dang thi Nuong	LongXuyen, AnGiang	1,000
15/01/2006	Dang van Hang	101 ap PhuHoa, xa TanHoi, huyenTanHiep, KienGiang	800
15/01/2006	Dang thi Nuong	LongXuyen, An Giang	200
21/05/2006	Dang van Hang	101 ap PhuHoa, xa TanHoi, huyenTanHiep, KienGiang	3,000
10/10/2006	Dang trung Hau	101/6 ap LongThuan, xa LongPhuoc, h.LongHo, VinhLong	10,000
12/11/2006	Dang thi Nuong	LongXuyen AnGiang	200
17/05/2007	Dang trung Hau	101/6 ap LongThuan, xa LongPhuoc, h.LongHo, VinhLong	10,000
8/02/2011	Dang thi Nuong	apHoaLong, thi tran AnChau, ChauThanh AnGiang	5,000

Date	Remitter	Beneficiary	Amount
20/4/2009	Dang, thi Quan	Nguyen thi Chon	5,000
20/4/2009	Dang, thi Quan	Nguyen thi Bong	500
24/9/2010	Dang, thi Quan	Tran thi anh Thu	1,000
29/11/2011	Dang, thi Quan	Dang, Thi Ut	500
9/1/2012	Dang, thi Quan	Dang, Thi Ut	2,000
20/4/2012	Dang, thi Quan	Dang, Thi Ut	2,000
10/2/2015	Dang, thi Quan	Dang, Thi Ut	2,000
4/3/2015	Dang, thi Quan	Nguyen, Thi Tiep	400

Date	Account Number	Amount	Total Deposit
22/7/2010	ANZ 26824	$30,000
11/4/2011	ANZ 79139	$20,000
26/5/2010	ANZ 16705	$1,000
22/7/2010	ANZ 16705	$9,000
08/02/2011	ANZ 16705	$2,000
22/07/2011	ANZ 16705	$2.000
02/07/2012	ANZ 16705	$3,000
26/11/2012	ANZ 16705	$1,590
25/01/2013	ANZ 16705	$500
28/03/2013	ANZ 16705	$500
11/4/2011	ANZ 2761-95849	$5,000
17/6/2011	ANZ 2761-95849	$42,400
22/7/2011	ANZ 2761-95849	$15,000
22/1/2013	ANZ 2761-95849	$3,000
09/01/2013	ANZ 2079-26898	$6,000
08/02/2011	ANZ 2483-46451	$22,000
11/10/2012	CBA 065139 10534072	$55,816.70
28/12/2013	CBA 065139 10540915	$6,000
28/12/2013	CBA 065139 10540923	$6,000
$230,806.70