Grant v Ram

[2006] NSWSC 947

CITATION:	Grant v Ram [2006] NSWSC 947
HEARING DATE(S):	30 - 31 May 2006
JUDGMENT DATE :	15 September 2006
JUDGMENT OF:	Simpson J
DECISION:	Verdict and judgment in a sum to be ascertained for the plaintiff; defendant to pay the plaintiff's costs.
CATCHWORDS:	dispute whether payment loan or gift - jurisdiction - defendant's assets in New Zealand - competing accounts of transaction
PARTIES:	Francis Peter Grant - Plaintiff Saras Wati Ram - Defendant
FILE NUMBER(S):	SC 12260/05
COUNSEL:	MK Rollinson - Plaintiff H Packer - Defendant
SOLICITORS:	Ramrakha Jenkins - Plaintiff Doherty Partners - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Friday 15 September 2006

12260/05 Francis Peter Grant v Saras Wati Ram

JUDGMENT

1 HER HONOUR: By statement of liquidated claim filed on 30 May 2005, the plaintiff, Francis Peter Grant, claims from the defendant, Saras Ram, the sum of $82,810.88, together with interest accumulating at the rate of $15.12 per day until judgment. The plaintiff claims that, on 6 August 2001, by telegraphic transfer to the defendant’s bank account, he “lent and advanced” to her the sum of AUD61,404.95, or NZD75,000.00; he now requires repayment of that sum together with interest.

2 There is no dispute that the plaintiff did indeed provide (to use a neutral word) that sum for the defendant’s use; but the defendant claims that it was a gift.

3 The proceedings thus call for the determination of a very simple question of fact: did the plaintiff lend the money to the defendant, in circumstances requiring its repayment, or did he give it to her unconditionally?

4 There is, apparently, an explanation for a matter involving a relatively small amount of money, turning on a simple factual issue, being heard in this court. The defendant is resident in and owns assets in New Zealand, but not in this country. I was told that some doubt exists as to the capacity to enforce a judgment of the District Court or Local Court in that jurisdiction. If these doubts are well founded, it is desirable that, so far as it is possible, steps be taken to remedy the situation. Not only is there an unnecessary drain on the resources of this court; other litigants are delayed, and unnecessary costs are incurred in the prosecution of this relatively small and simple claim.

5 The evidence in the proceedings was, in the first instance, given by way of affidavit. Both parties were cross-examined, as was one other witness. It was common ground that both parties are of Fijian Indian origin. Both lived in Fiji, the plaintiff until 23 December 1997, when he migrated to Australia; the defendant until 1995, when she moved to New Zealand. At the time they first knew each other in Fiji each was married to another partner; the defendant’s husband died in 1990, leaving her with a house and a business. She had two sons aged 13 and 10 years. The plaintiff’s marriage failed in January 2000. This was after his migration to Australia.

6 While living in Fiji the two were acquainted. After his migration to Australia, the plaintiff kept in touch with the defendant in Fiji, and this continued after she migrated to New Zealand.

7 Eventually the relationship developed into an intimate one, and the two discussed, and then made plans for, the defendant to move to Australia to live with the plaintiff. Marriage was discussed.

8 The defendant had purchased a house in New Zealand, pursuant to an agreement called (in the evidence) “a rent to buy” arrangement. Precisely what this means is not disclosed, but it is sufficiently plain that the defendant owed money on the property. There are some mysterious features concerning her purchase of the property. She told the plaintiff that the property in fact had been purchased in the name of the husband of a very dear friend, a Mr Singh. This was done, she told the plaintiff, because she was not at the time in employment and did not qualify for a bank loan.

9 As I have indicated, it was common ground that the plaintiff had advanced (again, using a neutral term) money to the defendant, which she used to pay out the loan.

10 However, how that came about is the subject of divergent evidence by the two.

11 In his affidavit the plaintiff deposed that he visited the defendant in New Zealand in either June or July 2001, and stayed with her at her home for two days. It was during this period that they discussed a future together.

12 He claimed that the defendant told him about the house she had purchased, what she had paid, and what she owed, that the house was not in her name and the reason for that. He said that she told him she was selling property in Fiji, which should be sold by Christmas, but that the market in Fiji could be very slow. She said that she would prefer to have the property in New Zealand in her name and was seeking a loan of $75,000 in New Zealand currency. She could then pay off the mortgage, Mr Singh could transfer the property to her, and she could take a mortgage in her own name and pay it off in instalments. When the Fiji house was sold, she expected to pay off the mortgage completely.

13 The plaintiff claims that he said to the defendant:

“I have funds and I can lend you $75,000.”

To this (according to the plaintiff) she replied:

“I am waiting for news from Fiji as to whether my house sells or not. If it sells I will not need to borrow. I will let you know later.”

(In cross examination the plaintiff agreed that, in this evidence, he was mistaken as to the date, but did not otherwise concede error.)

14 The plaintiff said that he then returned to Australia but there were many telephone calls between the two. (Telephone records in evidence establish that this was, if anything, a significant understatement. That does not, however, cast any real light on the only factual issue that calls for determination.) The plaintiff deposed that on or about Friday 3 August 2001 the defendant rang him and said:

“I think I’d better borrow the money from you. The Fiji house has not been sold.”

He said that he replied:

“Yes, I can transfer the funds to your account,”

and that she said:

“I will pay you when I have sold my Fiji property. However, if there is a delay, I will give you a mortgage to protect your loan.”

15 On the same day the plaintiff made a telegraphic transfer of NZD75,000 to the plaintiff’s New Zealand account. He did this, not in his own name, but in the name of Latchmi Maharaj. The telegraphic message contained the following:

“Mrs Ram, your request of last Friday now completed. Thanks for memories. God bless and good bye. Tamardhuj pls …”

“God bless and good bye” was not a farewell, but a “signature sign-off” used by the plaintiff.

16 The plaintiff deposed to a number of other conversations in which it was made plain that the money he had advanced was a loan and not gift, and that this was acknowledged by the defendant.

17 The defendant’s account of the transaction was different. She deposed that she and the plaintiff had a conversation about her property purchase. She denied the assertions made by the plaintiff as to the conversations recounted above. She said that the plaintiff sent her other sums of money, including $1,000 on 14 December 2000, $2,700 on 10 April 2001, and $1,500 on 5 June 2001.

18 She said that she was not expecting the sum of $75,000 in August 2001 and was very surprised when informed by her bank manager that the payment had been made. She said she telephoned the plaintiff to ask why he had sent her that amount, to which he replied:

“Don’t ask. Just take what I give.”

19 She said, in the telephone call the following day, she asked what he wanted her to do with the money to which the plaintiff replied:

“This is nothing compared with what I have given to Veena [the plaintiff’s estranged wife]. I suggest that you pay for your house, go to Fiji to break the good news about our marriage and buy a lovely Indian outfit while you are in Fiji to get married in.”

He also said that, if the relationship between the parties did not work out in Sydney because of the presence of his two former wives, he wanted them to have access to accommodation in New Zealand; and he said:

“This is for all of what you have done for me in our friendship from way back in Fiji and even in New Zealand looking after Junior.”

20 There is one critical passage in the defendant’s affidavit. She deposed to a conversation with the plaintiff by telephone on 27 July 2001. She said that she told the plaintiff that if she were to sell the New Zealand property, that would have to be done by Mr Singh (presumably because it was registered in his name). To this, she said, the plaintiff replied:

“If Mr Singh sells the property, you won’t get any money from the sale. You should refinance and put the house in your name. I will act as your guarantor on any refinancing. I will contact Rosemary [the plaintiff’s personal banker].” (italics added)

21 The reference to “looking after Junior” was a reference to the plaintiff’s son, who was in prison in New Zealand, and who had been visited by the defendant.

22 The defendant left New Zealand in September 2001 to join the plaintiff in Sydney. She lived with him at his residence in Wahroonga and put the New Zealand house on the market. She visited Fiji between February and March 2002 when she sold her Fiji property, although she stated in her affidavit that the sale settled in August 2004.

23 The relationship between the parties foundered, according to the plaintiff finishing in April 2002.

24 Up to a point the plaintiff’s case was supported by the evidence of the only non-party witness, Mr Benjamin Edwards. Mr Edwards is a friend of the plaintiff but has known both parties since all lived there in Fiji. He deposed to a conversation when he entertained the plaintiff and defendant to dinner at his home two days before Christmas 2001, on which occasion he had cooked a duck curry and the defendant cooked Indian bread. He deposed that during that event, the defendant said to him in the absence of and out of the hearing of the defendant (sic – the plaintiff):

“Bubsy [the pet name by which the defendant referred to the plaintiff] is pestering me, and giving me a hard time. He wants me to return the $75,000 he lent me. I can’t do it until I sell my home. Will you talk to him?”

25 He gave an account of a subsequent occasion, this time at the residence then shared by the plaintiff and the defendant in Wahroonga, on which occasion the defendant again said that the plaintiff was:

“… giving me a hard time and pestering me to return the money.”

26 I am confronted with the task of determining which of the two competing accounts is more likely to be correct.

27 There are some objective pointers which persuade me that the plaintiff’s version is to be preferred. One of these is the message contained on the telegraphic transfer, in which the plaintiff referred to the defendant’s “request”. This is a contemporaneous message, that can have no suggestion of retrospective manipulation or reconstruction.

28 It seems to me that it is inherently more likely that the plaintiff advanced the money to the defendant at her request, or, at least, after discussion with her, and that it was always intended that (unless the relationship blossomed) the advance would be treated as a loan. It is likely that, given the relationship that then existed between the parties, the plaintiff overlooked, or chose not to attend to, legal niceties and formalities. This conclusion is supported by that paragraph of the defendant’s affidavit in which she spoke of the plaintiff offering to be a guarantor for her loan.

29 I also rely upon the confirmatory evidence of Mr Edwards, who spoke of conversations with the defendant signifying recognition that the money provided to her by the plaintiff was provided by way of loan rather than gift.

30 I acknowledge that there is some countervailing material. There was a good deal of evidence about telephone calls between the two parties. Telephone records did not entirely support the evidence of the plaintiff as to the timing of crucial telephone calls. Further, the use of the name “Latchmi Maharaj” to transfer the money raises some doubt about the plaintiff’s credibility. He said that this was for tax reasons.

31 Notwithstanding these factors, I have come to the conclusion that, on the balance of probabilities, the account given by the plaintiff is to be preferred. Accordingly, there will be a verdict for the plaintiff. It will be necessary for the plaintiff’s legal representatives to calculate the final judgment sum.

32 The order I make is that there be verdict and judgment, in a sum to be ascertained, for the plaintiff; the defendant is to pay the plaintiff’s costs.

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