He v Kure

[2023] NSWCA 179

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

He v Kure [2023] NSWCA 179

Hearing dates:

03 May 2023

Date of orders:

04 August 2023

Decision date:

04 August 2023

Before:

Meagher JA at [1];
Kirk JA at [94];
Griffiths AJA at [95]

Decision:

(1) Appeal allowed.

(2) Set aside orders 3, 4, and 5 of the primary judge made on 7 October 2022.

(3) In lieu thereof, order that the respondent’s Further Amended Statement of Claim be dismissed with costs.

(4) Respondent pay the appellant’s costs of the appeal.

Catchwords:

CONTRACTS – Action for recovery of debts due under loan agreements – whether loans repaid in circumstances where debtor authorised to open and operate term deposits in creditor’s name and term deposits in creditor’s name opened by debtor in the amount of debt

LIMITATIONS OF ACTIONS – Debt – whether loans repayable when demanded and on two months’ notice

Legislation Cited:

Corporations Act 2001 (Cth), s 601AH

Limitation Act 1969 (NSW), s 14

Cases Cited:

In the matter of Italasia Pty Ltd [2017] NSWSC 811

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Queensland v Masson [2020] HCA 28; (2020) 318 ALR 560

Category:

Principal judgment

Parties:

Xin Mei He (Appellant)
Hiromichi Kure (Respondent)

Representation:

Counsel:
NJ Kidd SC (Appellant)
M Young SC (Respondent)

Solicitors:
Lawside Lawyers (Appellant)
Dixon Holmes Lawyers (Respondent)

File Number(s):

2022/326111

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2022] NSWSC 1240

Date of Decision:

15 September 2022

Before:

Lindsay J

File Number(s):

2017/83339

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was authorised by the respondent, her longstanding family friend and former neighbour in Shanghai, to open and operate bank accounts in the respondent’s name in Australia. Those arrangements were in place for over three years, during which the respondent also made three advances to the appellant.

The respondent claimed the amount of the three advances as moneys due under three loan agreements. The primary judge upheld these claims and entered a money judgment against the appellant. In doing so, his Honour found that none of the loans had been repaid and that each was repayable “only if and when demanded” and on two months’ notice.

The appellant challenges this judgment in respect of each loan. As to the first advance, she contends that it was not made by way of loan. Even if it were a loan, she contends that it was repaid by her opening two term deposits in the respondent’s name and depositing sums into those accounts in the exact sum advanced. She also argues that, in any case, the limitation period for any action for recovery has expired. As to the second and third advances, while the appellant accepts that each was made pursuant to a loan agreement, she contends that each was repaid and that the recovery of each was also statute-barred.

The two principal issues in the appeal are:

(i) whether the first loan was repaid;

(ii) whether the claims to recover under the three loan agreements were statute-barred because they were repayable on demand rather than “only if and when demanded” and “on two months’ notice”.

The Court (Meagher JA, Kirk JA and Griffiths AJA agreeing) allowed the appeal, holding:

As to issue (i):

(1) It was sufficient to constitute repayment of the first loan that the respondent “actually received” the proceeds of the two term deposits opened by the appellant in the respondent’s name. Before the primary judge, this was the dispositive issue as argued by the parties. The respondent’s evidence was that his arrangement with the appellant permitted her to make and notionally receive repayments of loan and to “manage” such moneys when repaid by placing them on term deposit: Meagher JA at [57]; Kirk JA at [94]; Griffiths AJA at [95].

(2) The respondent “actually received” the proceeds of the two term deposits. The evidence established that the respondent closed the accounts operated by the appellant in his name, including the two term deposits; that the funds in those accounts were transferred to one of two new accounts opened by the appellant, which only he was authorised to operate; and that, upon receipt of the respondent’s instructions that those new accounts be closed and a statement from the appellant disclaiming any interest in the respondent’s accounts or funds, the credit balances in those two new accounts were transferred at the respondent’s direction to his parents’ account. Accordingly, and contrary to the primary judge’s finding, the respondent did “actually receive” the proceeds of the term deposits, either after those proceeds were paid into an account opened and controlled by the respondent or when those proceeds were received by him and paid away at his direction: Meagher JA at [34]-[58]; Kirk JA at [94]; Griffiths AJA at [95].

As to issue (ii):

(3) The evidence does not support an affirmative finding that the first loan was repayable “only if and when demanded” and on two months’ notice rather than on demand. There is no contemporaneous document describing or referring to this loan, and the former repayment term is only attested in the respondent’s affidavit and oral evidence in circumstances where this Court’s findings with respect to the repayment of the first loan provide good reason to question the credibility and reliability of that evidence. The respondent originally pleaded that this loan was repayable on demand, though he amended his pleadings and gave affidavit evidence supporting the more complex repayment term after an earlier judgment of the Supreme Court drew attention to the fact the claim as originally pleaded would be statute-barred. Further, the relationship between the parties and the circumstances in which the loan was made make it unlikely a specific notice period for repayment was agreed: Meagher JA at [63]-[87]; Kirk JA at [94]; Griffiths AJA at [95].

Queensland v Masson [2020] HCA 28; (2020) 318 ALR 560, referred to.

(4) The claims to recover under the three loan agreements were statute-barred. The repayment terms of the second and third loans were said to be the same as those of the first. In light of the finding that the first loan was not agreed to be repayable two months after demand, it follows that the second and third loans were also not subject to any such repayment term. The causes of action for repayment therefore accrued upon the making of each loan, with the limitation period expiring six years thereafter: Meagher JA at [70], [87]-[89]; Kirk JA at [94]; Griffiths AJA at [95].

JUDGMENT

1. MEAGHER JA: The appellant, Ms He, appeals against a money judgment in favour of the respondent, Mr Kure, in respect of three loans. That judgment was for $1,105,513.04 plus interest (Kure v He [2022] NSWSC 1240). The first loan, of $633,774.57, was alleged to have been made in early May 2008. The second, of $312,000, was made on about 25 March 2009, and the third, of $159,738.47, was made on about 1 May 2009. The appellant challenges the judgment in respect of each loan. As to the first, it is contended that it was not made, that if made it was repaid in March 2011, and that the claim brought in March 2017 to recover it is statute-barred. As to the second and third loans, it is contended that each was repaid and that the claim to recover each is also statute-barred.

Overview

2. The appellant and Mr Kure grew up together in Shanghai, China, where their families lived as neighbours. According to Mr Kure’s recollection, the two families “knew each other very well and maintained a long-term close relationship”. Before January 2008, Mr Kure was known as Kuandao Wu. At that time, he changed his name to Hiromichi Matsuzawa and, sometime later, to Hiromichi Kure. Mr Kure moved from China to Japan in 1988, and in early 2007 was living in Japan. By that time, the appellant was living in Sydney, where she was engaged in an embroidery business undertaken in partnership with an Italian family. This business was conducted through Italasia Pty Ltd (Italasia), a company that the appellant eventually controlled (J[22]). The factory premises occupied by the business appear to have been owned by Italasia.

3. In January 2007, following an earlier suggestion by the appellant that she might manage Mr Kure’s funds in Australia, he agreed that she should do so and authorised her to operate bank accounts conducted in one of his names with Citibank and the Commonwealth Bank of Australia. That authority permitted the appellant to make and roll over term deposits on his behalf, and to receive bank statements and other communications with respect to those accounts and deposits.

4. As to the three alleged loans, the appellant denies that the first was a loan, and contends that, even if it were a loan, it was repaid when she deposited the exact sum advanced into two term deposit accounts which she had opened in Mr Kure’s name. In relation to the second and third advances, which the appellant accepts were loans, there were loan notes (as translated, the description given to them by Mr Kure is “borrowing notes”) produced by the appellant and in Chinese characters. The English translation of the note for the second loan, which was on Italasia letterhead, included:

$312,000 is hereby borrowed from Kuandao Wu, and has been transferred into the mortgage account for ITALASIA P/L for the mortgage over its factory. The company shall pay the interests according to the floating interest rates (current bank loan interest rate at 4.9%) by transferring the interest amount to Commonwealth Bank. This loan notice is kept by Kuandao Wu as a receipt.

Borrower: XIN MEI HE

5. The English translation of the loan note for the third loan, again on Italasia letterhead, was as follows:

Today $159,738.47AD is borrowed from Kuandao Wu, by transfer of cash through Commonwealth Bank. Italasia P/L shall use the money to pay interests for the mortgage over the factory (current interest rate is 4.9%).

This loan notice is issued as receipt for Kuandao Wu.

With compliment

Person who borrows the money temporarily

XIN MEI HE

6. These loans were made in the context of the parties’ wider relationship in which the appellant was managing and operating multiple bank accounts, in Mr Kure’s names, with Citibank and the Commonwealth Bank. The evidence showed that, in the course of her doing so over the period from 2007, from time to time money was transferred from one of those savings or term deposit accounts and paid into an account of the appellant. That money was later withdrawn or transferred from the appellant’s account, sometimes to a destination which was not identified in the evidence. There were also payments made into those accounts of the appellant where the source of payment could not be traced to Mr Kure or one of his accounts.

7. In the underlying proceedings, in addition to claiming moneys due under the three loan agreements, Mr Kure claimed equitable compensation for $698,604.80 alleged to have been misappropriated by the appellant over the period of the parties’ relationship. That claim concerned six payments. Three, totalling $248,652.11, were alleged to have been deposited into an account of the appellant from an unidentified account of Mr Kure between 1 September and 11 December 2008. A further three payments, totalling $449,952.69, were alleged to have been withdrawn from one of Mr Kure’s accounts without his knowledge between 26 June 2008 and 10 August 2009 (J[1(b)]).

8. Applying a six-year limitation period by analogy, the primary judge dismissed these claims to equitable compensation, there being no “fraudulent concealment” by or other conduct of the appellant giving rise to an equity precluding the appellant from taking advantage of Mr Kure’s failure to bring these claims within that period (J[259], [266], [267]).

9. The commercial relationship between the parties ended in early 2011. Before the second half of 2010, Mr Kure did not have internet access from Japan to the various accounts being conducted and managed by the appellant on his behalf. With respect to the Citibank accounts, Mr Kure had regular telephone communications with his relationship manager at that bank from the time they were opened. In relation to the Commonwealth bank accounts, before mid-2008 Mr Kure relied principally on telephone communications with the appellant and on her forwarding to him any banking and other records (J[125]).

10. The appellant’s authority in relation to the Citibank accounts and term deposits was terminated on 25 January 2011 (J[63]). Mr Kure’s evidence was that on about 25 March 2011 he discovered that $385,633 had been transferred out of Commonwealth Bank account ending 6665 in the name of Kuandao Wu. Having spoken to the appellant, he flew from Japan to Sydney, arriving on the morning of 28 March 2011. His intention was to close the Commonwealth Bank accounts and repatriate his funds to Japan or China. Between 28 and 30 March 2011, Mr Kure made arrangements to close the Commonwealth Bank accounts conducted and managed by the appellant; and to transfer the “remaining funds in [his] bank accounts to [his] parents’ account in China”.

11. A significant issue in the appeal is whether those repatriated funds included the proceeds of the two term deposits totalling the amount of the first loan, and if so whether Mr Kure’s receipt of those funds discharged any liability of the appellant with respect to that loan.

Delay in commencing proceedings and different versions of pleaded claim

12. The underlying proceedings were commenced on 17 March 2017 against the appellant as first defendant and Italasia as second defendant. By that time, Italasia had been deregistered and the relief sought included the reinstatement of its registration pursuant to Corporations Act 2001 (Cth), s 601AH. The three loans were alleged to have been made “jointly and severally” to those defendants and to have been repayable on Mr Kure’s demand. The application for reinstatement was dismissed by Brereton J on 2 June 2017 on the basis that each of the loans was statute-barred, the cause of action for recovery of a loan repayable on demand accruing on the date of the advance without the need for any demand, and the limitation period therefore expiring six years after that date (In the matter of Italasia Pty Ltd [2017] NSWSC 811). That decision was followed by the filing of an Amended Statement of Claim on 1 April 2019. That claim was made only in respect of the second and third loans and only against the appellant, alleging that each of those loans was repayable “only if and when demanded” by Mr Kure. In a Further Amended Statement of Claim filed on 25 February 2020, the claim in respect of the first loan was reinstated as against the appellant. That pleading alleged that all three loans were repayable “only if and when demanded” and that repayment was only due in the case of the first “two months after receipt of that demand” (see J[23]-[26]).

Grounds of appeal

13. There are nine grounds of appeal. Grounds 1, 2, 3 and 4 relate to the first loan, grounds 5 and 6 to the second, and grounds 7 and 8 concern the third loan. Ground 9 challenges the primary judge’s costs order.

14. In relation to the first loan, the issues are whether a loan was made (ground 3), and, if so, whether that loan was repaid by Mr Kure’s receipt of the proceeds of two term deposits (ground 1). My determination of ground 1 makes it unnecessary to address ground 2, which raises a question as to onus with respect to proof of repayment. Whether the claim in respect of this loan was statute-barred is raised by ground 4, which turns on the correctness of his Honour’s finding as to the term for repayment agreed between the parties.

15. Grounds 5 and 7 concern the second and third loans respectively and raise issues as to whether each loan was repaid by the appellant funding term deposits from her moneys in Mr Kure’s name at the Commonwealth Bank. The issue is whether it was sufficient to constitute repayment that term deposits were made and the proceeds of those deposits ultimately received by Mr Kure. The remaining issue with respect to these loans and raised by grounds 6 and 8 is whether the term for their repayment was “only if and when demanded” (as pleaded) or, in common with the first alleged loan, “if and when demanded” and on two months’ notice (as found at J[237], [246]).

16. Making some allowance for the appellant’s success in having the equitable compensation claim dismissed, the primary judge ordered that she pay 60% of Mr Kure’s costs of the underlying proceedings. Ground 9 challenges that order, contending that in exercising the costs discretion his Honour failed to take into account a material consideration. The error is said to be that his Honour did not make sufficient allowance for the appellant’s success with respect to that equitable claim.

First loan (Grounds 1, 2, 3 and 4)

Findings and reasoning of the primary judge

17. The primary judge did not accept much of the appellant’s evidence, noting that the “competing narratives” of the two principal witnesses, Mr Kure and Ms He, differed in material respects. Ultimately, his Honour concluded that the appellant’s evidence could not “lightly be accepted unless and to the extent it is corroborated”, and that generally he “[preferred] the evidence of [Mr Kure] to that of [Ms He], but not without exception” (J[90]). In the conduct of the appeal, the appellant’s counsel did not rely on her evidence.

18. There remains a question as to the extent to which the primary judge’s factual findings are likely to have been affected by impressions about the credibility and reliability of Mr Kure formed as a result of seeing and hearing him give evidence (Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]). His Honour made no express observation to that effect, and that was not surprising in circumstances where Mr Kure gave evidence through an interpreter and via an audio-visual link which was from time to time interrupted by interference and vision freezing. His Honour described Mr Kure as having “presented as an honest witness”, but then acknowledged that his evidence as to conversations “long ago” required “caution in its assessment” (J[69]) and that he had legitimate doubts about the reliability of his evidence as to the “terms” of the loans (J[79]).

19. The first loan was made using the proceeds of a matured term deposit with Citibank, which were initially credited to a Citibank Linked Savings account in the name of Kuandao Wu. On 6 May 2008, that credit was transferred to a Citibank Personal Account in the same name. A bank cheque for $633,774.57, payable to Italasia, was purchased on the same day and, according to Mr Kure’s evidence, handed to the appellant. On 7 May 2008, the proceeds of that cheque were credited to Italasia’s account with the National Australia Bank. On 14 May 2008, Italasia drew a cheque on that account in the same amount and in favour of Kuandao Wu. That cheque transaction was reversed on 19 May 2008 by the crediting of that account. On that day a second cheque was drawn in favour of Kuandao Wu in the same amount.

20. The proceeds of that cheque were collected by the Commonwealth Bank and placed on two term deposits, each in the name of Kuandao Wu – one for $300,000, being term deposit account ending 8789, and the other for $333,774.57, being term deposit account ending 8797. The evidence of Mr Vella, the expert retained on behalf of Mr Kure, shows that two term deposit accounts were created on 14 May 2008. Those accounts were then closed and further accounts were opened on 19 May 2008, being the identified accounts. Notwithstanding that the Commonwealth Bank records showed a “date account opened” of 19 May 2008 for each account, the commencement date of each term deposit remained 14 May 2008 (J[147]). The term deposits were then rolled over on multiple occasions during the period from 14 May 2008 to 28 March 2011. On the latter date each was ‘broken’ and closed. At that time, the credit balances including accrued interest were $334,589.97 (account ending 8789) and $372,257.82 (account ending 8797) (cf J[190]).

17. The pleadings in relation to this loan are very brief. The Further Amended Statement of Claim alleges it was made on about 6 May 2008 and that the appellant failed to repay it. No allegation is made about any non-payment of interest. In response, the appellant denies the making of the loan and denies any failure to repay it. The appellant makes no affirmative allegation that repayment was made by the deposit of her moneys into a term deposit in the name of Mr Kure without the need to prove that the term deposit was known to him or that the proceeds of the deposit were eventually received by him (cf J[54]).

18. The primary judge did not accept the appellant’s evidence as to how the amount of $633,774.57 became deposited into Italasia’s account (J[185]-[187], [200]-[201]). His Honour accepted Mr Kure’s evidence as to his agreeing to lend an amount of “about $640,000” to the appellant so that when the Italian family caused Italasia to “[sell] the factory [she could] secure equipment and factory premises to continue the company’s business” (J[218]-[220], [226]-[227]). His Honour’s finding at J[229] that this agreement included that the loans were repayable “if and when demanded” is dealt with below when considering ground 4. It followed from the acceptance of Mr Kure’s version of events that the appellant’s evidence that she was acting in accordance with his instruction in depositing the proceeds of the bank cheque in term deposits was rejected. That the appellant’s purpose for seeking the loan was to acquire premises and equipment for the embroidery business in the event the Italian partners retired led the primary judge to infer (at J[216]) “that it may have suited the [appellant] to retain [Mr Kure’s] $633,774.57 in term deposits in his name, but under her control, in case she needed funds for her evolving business purposes”.

19. The remaining issue was whether this loan had been repaid. The appellant’s case as opened was that the “creation [in May 2008] of two Commonwealth Bank term deposits in the name of [Mr Kure] in the very same amount to the very last cent” constituted repayment. Mr Kure’s position was that the “mere fact that moneys were put in a term deposit” did not mean that “the moneys [had] found their way to [him]” so as to constitute repayment. The same point was made by counsel in closing argument. It was submitted the appellant must show that the moneys were paid “into an actual account of [Mr Kure], not merely an account that he didn’t know anything about that was in his name that was opened by [the appellant]”. In other words, Mr Kure must show that the appellant repaid the money into an account which was “really and truly” his account. The term deposit accounts were said not to answer that description whilst she controlled their operation. The same point was made in Mr Kure’s closing written submissions:

… [the term deposit accounts] were, in fact, accounts of Ms He falsely maintained in Mr Kure’s name, without his knowledge or approval. In the circumstances, payment into those accounts does not constitute any repayment to Mr Kure.

… Ms He has not demonstrated that Mr Kure was repaid the money at a later time, whether through the creation of subsequent term deposits that were truly Mr Kure’s term deposits (rather than term deposits merely in Mr Kure’s name but undisclosed to him) or otherwise. The evidence shows that the money placed into the original term deposits was re-invested in further term deposits in Mr Kure’s name… but not that those accounts were true accounts genuinely maintained by Mr Kure… (Emphasis added.)

24. That the appellant’s authority extended to investing funds representing repayments of loan made by her was not contradicted by Mr Kure’s evidence. Although he was not directly questioned as to this subject, Mr Kure said of that authority:

Normally, she will need to tell me when, or tell me the date that she made the repayment, and ask me for the receipt of it. That’s the normal procedure for loan and repayment. Also, she manages my accounts, manages the money in and out. If she doesn’t tell me, then there’s no way for me to know about it.

25. Maintaining that Mr Kure bore the onus of proving non-repayment, the appellant’s closing written submissions contended that onus was not discharged. Whilst taking that position, the appellant’s counsel also submitted that if the $633,774.57 paid in May 2008 was a loan, the evidence showed that it was “repaid” on 28 or 29 March 2011. By that time, the term deposit accounts had allegedly been closed and their proceeds paid into one of two accounts ending 6935 or 6951, which Mr Kure had opened on 28 March 2011. And on 29 March 2011, the appellant had to Mr Kure’s knowledge signed a statement addressed to the Commonwealth Bank confirming that she did not hold any interest in any of Mr Kure’s accounts and that the funds in those accounts belonged to him.

26. Some weeks after reserving judgment, the primary judge sought further submissions on the question whether it was open to the appellant to rely upon the creation of term deposits with her funds as constituting repayment of any of the three loans. The appellant’s written submissions made following that hearing included that: (1) it was not open to Mr Kure to contend that the funds payable upon the closure of the two term deposits which had been created using the proceeds of the first loan were misappropriated by the appellant; and (2) in any event the evidence showed that those term deposits remained in Mr Kure’s name on 28 March 2011, when the proceeds of those accounts were transferred into a new account in his name, which he subsequently closed. In his written submissions in response, Mr Kure agreed that the appellant was not prevented by the pleadings from alleging that she had repaid Mr Kure by placing funds into term deposits. However, he contended it was not sufficient merely that she show sums of money were paid into bank accounts in Mr Kure’s name. The appellant had “not pleaded in the alternative that the monies were actually paid back at some later stage when those term deposits were closed, and so that is not a case the plaintiff needs to deal with (and even if it was, the defendant has not shown that the money was even then paid into accounts actually, rather than merely nominally, held by [Mr Kure])”.

27. The primary judge accurately recorded the respective positions of the parties at J[54]:

… The defendant contends that it is sufficient if she proves that she deposited money into a bank term deposit in the name of the plaintiff without a need to prove that the term deposit was known to the plaintiff or that the proceeds of the term deposit were actually received by him. For his part, he contends that proof of a term deposit established by the defendant in his name falls short of proof of repayment to him if unaccompanied by evidence that the proceeds of the term deposit were paid to, or received by, him. (Emphasis added.)

28. His Honour then noted that the appellant had “declined an opportunity to adduce further evidence to demonstrate that the proceeds of term deposits were paid to, or received by, [Mr Kure]” (J[59]). Thus, as the Court also noted, both “parties were content to abide a determination by the Court as to the correctness or otherwise of their respective positions” on the existing evidence (J[59]). Notwithstanding that she had declined to adduce any further evidence, the appellant’s final submission was that in March 2011 Mr Kure “in fact received the proceeds of term deposits created by her, in his name, as a means of her repayment of any money due to him” (J[60]).

29. The primary judge’s consideration of this essentially factual question commences at J[140]. Having recited most of the relevant facts, his Honour noted the respective arguments of the parties. The appellant contended that Mr Kure “recovered the proceeds of the deposits” and that, in consequence, the loan was repaid (J[155]-[156]). Mr Kure contended that the appellant herself “recovered the proceeds of those term deposits on 28 March 2011 before she signed the statement dated 29 March 2011” (J[157]). Alternatively, Mr Kure submitted that the appellant had not discharged the onus of proving repayment simply by proving that the term deposits in his name were funded by her and that he was aware that they corresponded precisely with the amount of the loan (J[158]).

30. At J[188]-[189], the primary judge recorded Mr Vella’s evidence that the term deposit accounts ending 8789 and 8797 were closed on 28 March 2011. It appears that statement was made on the basis of a “term deposit closed account notice” referred to by Mr Vella, but not attached to his report or in evidence.

31. The primary judge’s conclusion in relation to the question of repayment is at J[226]:

… it is more probable than not that [Ms He] did not repay the loan to [Mr Kure] or allow him to receive the proceeds of the term deposits when closed on 28 March 2011. In any event, I am not satisfied that [Ms He] has satisfied any onus she has to prove the fact of repayment.

32. His Honour’s reasoning supporting this conclusion is set out at J[204]-[217]:

[204] In her affidavit evidence the defendant [Ms He] contended that she had repaid the sum of $633,774.57 to the plaintiff [Mr Kure] by the two term deposits (for $300,000 and $333,774.57) opened by her on 19 May 2008 with a commencement date of 14 May 2008.

[205] That evidence does not, of itself, establish any form of repayment of the $633,774.57 to the plaintiff. The term deposits remained in situ until they were “closed” on 28 March 2011. An inference available from the letter dated 29 March 2011 written by the plaintiff’s solicitor to the Commonwealth Bank is that it was not the plaintiff who “closed” the term deposits on 28 March 2011.

[206] The only person other than the plaintiff who had authority to “close” the term deposits was the defendant. Up until the time the term deposits were “closed” she was, as she admitted in cross-examination, an authorised signatory with power to transfer all of the money in the plaintiff’s accounts to herself should she wish to do so.

[207] On her evidence (but not that of the plaintiff) she had forewarning of the plaintiff’s intention to visit the Campsie Branch of the Commonwealth Bank on 28 March 2011. Whether or not she took an opportunity on that date to “close” the term deposit accounts and to appropriate the proceeds of the deposits for her own purposes, she appears to have had an opportunity to do so and the means of doing so.

[208] Albeit in a different context (relating to a sum of $385,633.10 transferred by the defendant to an account of the plaintiff on 25 March 2011), paragraph 9H of the defendant’s defence records that she transferred funds of the plaintiff (from an account of hers at the Commonwealth Bank) on 28 March 2011. This is consistent with the plaintiff’s evidence that he met the defendant at the Campsie Branch of the Commonwealth Bank on 28 March 2011 when, in cross-examination, she said she visited that branch of the Bank because the plaintiff “needed to transfer money … back to China” so she went there to help him.

[209] The terms of her written statement dated 29 March 2011 provided to the Campsie Branch of the Commonwealth Bank are open to different constructions. However, they are consistent with the defendant having “closed” the term deposit accounts on 28 March 2011 before the plaintiff had an opportunity to retain the solicitor who wrote the letters dated 29 and 30 March 2011 to the Bank. Those letters are consistent with a finding that the plaintiff was not, in a practical sense, in a position to close any of his accounts with the Bank until 30 March 2011.

[210] The absence of any evidence of a response by the Bank to the solicitor’s letters is notable, but consistent with the plaintiff’s evidence that he and his solicitor attended the Campsie Branch of the Bank on 30 March 2011, at which time he closed all his accounts with the Bank.

[211] The available bank records are apparently silent as to the date upon which the plaintiff’s accounts other than the two term deposits totalling $633,774.57 were closed.

[212] The absence of any evidence from a bank officer who dealt with the plaintiff’s accounts in March 2011 or from the plaintiff’s solicitor is notable, and unexplained, but no submission was expressly made by the defendant by reference to Jones v Dunkel.

[213] The circumstances in which the $633,774.57 was provided to the defendant by the plaintiff on or about 6 May 2008 may throw light upon subsequent events.

[214] It is common ground that in May 2008 the defendant was, and the plaintiff was not, engaged in the commercial partnership conducted through Italasia Pty Ltd.

[215] I accept that the defendant told the plaintiff at about that time that her Italian partners were looking to retire from the business and that she wanted to position herself to acquire equipment of the business in aid of her continuing embroidery business.

[216] I infer from this that it may have suited the defendant to retain the plaintiff’s $633,774.57 in term deposits in his name, but under her control, in case she needed funds for her evolving business purposes.

[217] The defendant’s placement of the plaintiff’s $633,774.57 in term deposits in May 2008 might be thought to be consistent with an intention on her part, and that of the plaintiff, that the funds would be retained for more than a little time.

Appeal ground 1

33. Ground of appeal 1 challenges the finding at J[226]. It does so on two bases, namely that it was not open to the primary judge to find that the appellant did not allow Mr Kure to “receive the proceeds of the term deposits when closed on 28 March 2011” in circumstances where an allegation that the appellant had misappropriated the proceeds of those two term deposits was not made and expressly disavowed. More substantively, it is said that the proper and correct inference available on the evidence was that Mr Kure had received the proceeds of the term deposits that were closed on 28 March 2011, including those for accounts ending 8789 and 8797.

Disposition of ground 1

34. The relevant evidence is that in Mr Kure’s two affidavits and otherwise consists of contemporaneous records and communications. The narrative in Mr Kure’s affidavits is significantly assisted by the existence of those records and communications. No reliance is made by the appellant on her affidavit or oral evidence. Nevertheless, it is important to note that in cross-examination the appellant denied that the loans were subject to repayment on two months’ notice.

35. In the morning of 28 March 2011, Mr Kure arrived in Sydney and attended the Campsie branch of the Commonwealth Bank. One of the staff members of that bank was fluent in Mandarin. Mr Kure asked the bank to close all of his accounts. There was reference to “several bank accounts” and “a lot of term deposit accounts”. He asked that they all be closed, and that the balance be transferred “out” (J[140], cf J[205], [209]).

36. Whilst Mr Kure was at the bank, the appellant arrived (according to him, unexpectedly; according to her, because Mr Kure had requested her assistance). There is other contemporaneous and incontrovertible evidence as to what happened on 28 March 2011. First, two new accounts naming Hiromichi Kure as customer (accounts ending 6935 and 6951) were opened upon the application of Mr Kure, who signed the relevant forms. Secondly, the “Complete Access” account ending 6665 in the name of Kuandao Wu was closed, and the credit balance in that account of $386,002 was transferred to new account ending 6935. In addition, “Streamline e-Access” account ending 0392 was closed on 28 March 2011 with a nil balance. That these were two of the eleven existing accounts in the name of Kuandao Wu, Hiromichi Matsuzawa or Hiromichi Kure as at 28 March 2011 is established by Mr Kure’s solicitor’s first letter of 29 March 2011 referred to below.

37. After leaving the Campsie branch on 28 March 2011, Mr Kure retained a solicitor, Mr Alan Yeung, to assist him to secure his funds at the bank. In the morning of 29 March, Mr Yeung wrote his first of three letters to the Commonwealth Bank. The primary judge extracts part of that letter at J[144]. It referred to the eleven existing cheque or savings or term deposit accounts. In addition to accounts ending 6665 and 0392, they included term deposits ending 8789 and 8797 in the name of Kuandao Wu. That letter also refers to the two new accounts (ending 6935 and 6951) opened in the name of Hiromichi Kure. Thus, it might safely be inferred that on the previous day Mr Kure identified the eleven accounts in one or other of his names, opened those two new accounts, and gave instructions that the eleven accounts be closed and the proceeds of those accounts be transferred to one or other of the new accounts.

38. In terms, the first letter of 29 March 2011 provided:

… Our client has held various accounts with you including the following:

[Details of the eleven accounts, six in the name Kuandao Wu and five in the name Hiromichi Kure, are set out]

It has been made known to our client that a certain HE XING MEI has been attempting to transfer moneys out of our client’s accounts to her own account, without authority of our client.

We would like to confirm that to safeguard our client’s position, all of the above accounts have been closed and all proceeds transferred to a new account:

[Details of accounts ending 6935 and 6951, opened on 28 March 2011, are set out]

We note that [the appellant] has no authority whatsoever in relation to the new account.

Please let us know as a matter of urgency if the above does not accord with your understanding of the situation.

39. The plain purpose of this letter was to seek the bank’s confirmation that the events Mr Kure had described to Mr Yeung as having happened on 28 March had in fact occurred.

40. There is no suggestion in the evidence that the bank responded by saying that it had already closed the two term deposit accounts (being accounts ending 8789 and 8797) and paid the proceeds of those accounts to the appellant. The absence of any evidence of a written response is recorded by the primary judge at J[153].

41. According to Mr Kure’s first affidavit, dated 24 June 2019, he returned to the Campsie branch of the bank “on or about 30 March 2011… to explain the situation” to the branch staff, who then called the appellant, who attended the branch “soon afterwards on the same day”. The following evidence makes clear that these events actually happened on 29 March 2011. According to Mr Kure’s evidence, following a request of the appellant, a branch staff member typed a statement which the appellant then signed. That staff member is said to have had a conversation with the appellant in Mandarin in Mr Kure’s presence, in which the staff member said in relation to the proposed statement “we will have a record of what happened here today and your acknowledgement that you make no claim to the funds in these bank accounts”.

42. The appellant’s statement, in the form of a letter addressed to the manager of the Campsie bank branch, included (J[148]):

I… do not or intend to hold any interest in [Mr Kure’s] accounts or savings with the Commonwealth Bank. All funds in his name belong to [him] and I only acted as an authority to operate on his past accounts. I have no legal interest in his financials and have no further interest to do so.

43. The copy of that statement in evidence is dated 29 March 2019 and includes a stamp of the Campsie branch of the Commonwealth Bank certifying that it is a “true and correct copy of the original sighted 29 March 2011”. That date is written in hand and initialled over the stamp. The primary judge held that the original of this letter or statement was signed by the appellant on 29 March 2011 (J[148]).

44. Later on 29 March 2011, Mr Yeung wrote a second letter to the bank in relation to new accounts ending 6935 and 6951 as follows:

Further to our letter of today’s date, we confirm that our client directs you to close the following accounts [being accounts 6935 and 6951].

…

Please draw a bank cheque to our client for the proceeds including interest.

45. On the same day, Mr Kure swore a statutory declaration prepared by Mr Yeung confirming that he was known by the name Kuandao Wu as well as Hiromichi Kure.

46. With the benefit of Mr Kure’s statutory declaration and the appellant’s letter, the bank was in a position to act on the instructions contained in Mr Yeung’s second letter of 29 March 2011.

47. On 30 March 2011, Mr Yeung wrote a further letter to the Commonwealth Bank:

Further to our letters of 29 March 2011, we understand that our client has not been able to resolve this matter by him closing his accounts with proceeds of his accounts to be given to him.

We understand that He Xin Mei may have contacted you in relation to her alleged rights.

Please forward by return facsimile a copy of the authority from our client to He Xing Mei.

There is no information in our knowledge which would preclude you from acting on our client’s instructions and having his funds returned to him.

Please let us know immediately if you consider this to be not the case.

48. As extracted by the primary judge, the opening words of this letter appear as “our letters [sic] of 29 March 2011” (J[150]). Yet the evidence makes clear that there were two letters of that date, although there is no reference to the second and shorter letter in his Honour’s reasons. This suggests that the primary judge was mistakenly under the impression that there had been only one letter of 29 March 2011. When the letter of 30 March is read alongside the second letter of 29 March, it is plain that the reference in the former to Mr Kure “closing his accounts with proceeds of his accounts to be given to him” is to the closing of the two new accounts ending 6935 and 6951 and not to the closing of the eleven accounts.

49. Returning to Mr Kure’s 24 June 2019 affidavit as to what occurred on or about 30 March 2011, he says that after the appellant had made her statement of 29 March 2011 she left the branch, and the bank staff “then lifted the freeze of [his] bank accounts and [he] successfully transferred the remaining funds in [his] bank accounts to [his] parents’ account in China and closed the bank accounts”. Taking account of the contemporaneous documents, this statement describes events which occurred on 29 and 30 March, including after the third of the solicitor’s letters was sent.

50. There is no evidence from Mr Kure or Mr Yeung concerning the actual amounts received from the Commonwealth Bank and transferred to Mr Kure’s “parents’ account in China” (J[154]). Nor is there any evidence to suggest that, in the closing of the eleven accounts and the opening and then closing of the two new accounts, it became apparent to them that the two original accounts ending 8789 and 8797 had been closed and the proceeds of those accounts paid to the appellant. If that had occurred, it would have contradicted her statement of 29 March 2011 and would have been known to the bank officers who secured the making of that statement, mostly likely before it had been signed.

51. Although Mr Kure gave evidence that at some stage on 28 March the bank suspended his accounts until the question of ownership was addressed, that is not consistent with what the bank records indicate happened on 28 March. They show that on that day the two new accounts were opened, that at least two of the eleven accounts were closed, and that the credit balance in one of those accounts was transferred to one of the new accounts. Nor is Mr Kure’s account of what happened consistent with Mr Yeung’s two letters of 29 March or his letter of 30 March. Those letters indicate that Mr Yeung was instructed or otherwise knew that the eleven accounts had been identified and closed and that the proceeds of those accounts had been transferred to one or other of the two accounts which had been opened. All of that had occurred by the time the first letter of 29 March was written. The second letter of 29 March then requested that the two new accounts be closed. Consistently with Mr Yeung’s urgings in his letter of 30 March, and Mr Kure’s evidence, that occurred on 30 March 2011.

52. Returning then to the primary judge’s analysis of these events, the primary judge construes Mr Yeung’s letter of 30 March 2011 in its reference to “closing his accounts with proceeds of his accounts to be given to him” as referring to the eleven accounts. In doing so, the primary judge does not take into account the second letter, which confirmed Mr Kure’s instructions to close the two new accounts. This emerges from his Honour’s reasoning at J[149]-[151], which does not recognise or accommodate the two steps in the process of Mr Kure withdrawing his funds from the bank, each of which involved the closing of accounts.

53. Proceeding on that (in my view wrong) reading of Mr Yeung’s letter of 30 March 2011, the primary judge addresses Mr Kure’s submission that the appellant “recovered the proceeds of [the two] term deposits on 28 March 2011 before she signed the statement dated 29 March 2011” (J[157]).

54. The primary judge’s analysis commences at J[205], where his Honour says that an available inference is that “it was not [Mr Kure] who ‘closed’ the term deposits on 28 March 2011”. At J[207], his Honour then indicates that the appellant “appears to have had an opportunity [to close those accounts] and the means of doing so” on that date. His Honour then observes at J[209] that the terms of the appellant’s statement signed on 29 March 2011 were “consistent” with her having closed the term deposit accounts the day before Mr Kure had the opportunity to retain a solicitor. Had that occurred, however, it would have been known to the bank officer or officers who were dealing with Mr Kure and obtaining the appellant’s statement that she made no claim to moneys in any of the accounts. The solicitor’s first letter of 29 March and the letter of 30 March are then said to support a finding that Mr Kure “was not, in a practical sense, in a position to close any of his accounts… until 30 March 2011”. That statement proceeds from a misreading of the letter of 30 March, and is inconsistent with the opening of the two new accounts by Mr Kure as sole signatory and the closing of at least two of the eleven accounts with effect on 28 March 2011. The fact that there is no suggestion of any written or oral response from the bank to Mr Yeung’s first letter of 29 March is cogent evidence that what that letter sought by way of confirmation had in fact happened. In this context, the primary judge’s observation that there were no bank records suggesting when any of the eleven accounts other than the two term deposits were closed (J[211]) is not correct.

55. For these reasons, my review of the evidence indicates that his Honour should have made the following findings with respect to whether Mr Kure received the proceeds of term deposit accounts ending 8789 and 8797 on about 30 March 2011. Mr Kure attended the bank on 28 March and requested that each of the accounts be closed and the balances transferred to him. In order to hold that position in circumstances where there was a question as to whether the appellant claimed any interest in those funds, two new accounts in the name of Hiromichi Kure, which only he had authority to operate, were opened. By the time Mr Kure left the bank on 28 March, he understood that all of the eleven accounts had been closed and that the proceeds of those accounts had been transferred to one or other of the two new accounts. He also understood that the appellant had no authority in relation to the operation of those new accounts. Mr Kure conveyed that understanding to Mr Yeung, who sought to confirm that was the position by his first letter of 29 March 2011. Mr Yeung then received instructions to close the two new accounts and to obtain the moneys held in those accounts. From the bank’s perspective, that required a statement from the appellant that she had no interest in those funds. That statement was obtained on 29 March 2011. The reference in the solicitor’s second letter of 29 March confirms that Mr Kure had at some earlier point on that day directed the bank to close the new accounts. The solicitor’s 30 March letter suggests that did not happen immediately. In that letter, the reference to Mr Kure “closing his accounts” is to the closing of the two new accounts. According to Mr Kure’s affidavit evidence, he was successful in transferring the funds from those two new accounts sometime on 30 March 2011.

56. It follows that the challenge to the primary judge’s finding at J[226] that the appellant did not allow Mr Kure to receive the proceeds of the term deposits when closed on 28 March 2011 should be upheld. The evidence, principally contemporaneous bank records and correspondence, established on the balance of probabilities that: (1) all of the eleven bank accounts, including the two term deposit accounts, were closed on 28 March 2011; (2) the funds in those accounts were transferred to one or other of the two new accounts opened by Mr Kure on 28 March 2011; and (3) upon receipt of Mr Kure’s instructions that those two accounts be closed and of the appellant’s statement that she claimed no interest in any of the eleven accounts, the credit balances in the two new accounts were transferred at Mr Kure’s direction to an account of his parents in China.

57. Mr Kure accepted that the “normal procedure” between him and the appellant permitted her to make repayments of loan and to “manage” such moneys when repaid by placing them on term deposit. Ultimately, the issue between the parties with respect to repayment of the moneys placed into term deposit accounts ending 8789 and 8797 was whether the proceeds of those term deposits were “actually received by” Mr Kure (see [27]-[29] above). The evidence established that the funds placed into those term deposits were those earlier advanced by Mr Kure to the appellant (see [19]-[20] above and J[202]). Although the appellant had not pleaded that those loan moneys were paid to and received by Mr Kure when the two term deposits were closed, that was the appellant’s case as finally made. That case was addressed by the primary judge and the subject of his Honour’s, albeit erroneous, conclusion at J[226]. For the reasons given above, however, Mr Kure did actually receive the proceeds of those two term deposits. That occurred either after the two new accounts had been opened and when the proceeds of the two term deposits were credited to one of those accounts; or after the appellant had disclaimed any interest in the funds in the eleven accounts and the proceeds of the two new accounts were paid away at Mr Kure’s direction on 30 March 2011.

58. It was sufficient to constitute repayment that the proceeds of the two term deposits were in fact paid into an account opened and controlled by Mr Kure or received by him and paid away at his direction following the closure of that account. Ground 1 should be upheld.

59. This conclusion is also relevant to an assessment of the reliability of Mr Kure’s evidence about the repayment terms of the three loans. It follows from the findings above that, notwithstanding that Mr Kure received, and must have known that he had received, the proceeds of the two term deposits, his case remained that he had not done so and that those accounts had been closed by the appellant on 28 March 2011 and their proceeds paid to her.

Appeal grounds 2, 3 and 4

60. Ground 2 raises a question of onus which it is not necessary to consider. The appellant has established on the balance of probabilities that $663,774.57 (and accrued interest on that amount) was paid to Mr Kure on 29 or 30 March 2011.

61. In view of that outcome, it is also not necessary to consider ground 3, which turned on the acceptance of the appellant’s evidence as to the circumstances in which the bank cheque in favour of Italasia was drawn. That evidence was rejected by the primary judge (J[108], [186]-[187]).

62. Notwithstanding that ground 1 is upheld, it remains necessary to address ground 4, which challenges the holding that Mr Kure’s claim in respect of the first loan was not barred by s 14 of the Limitation Act 1969 (NSW). That issue turns on whether it was agreed that the first loan was repayable “if and when demanded” and on two months’ notice. Mr Kure’s evidence (as opposed to his pleadings – see [12] above) as to the payment terms of the second and third loans was that they were agreed to be the same as for the first loan. The primary judge accepted that evidence (J[237], [245]-[246]). For that reason, the challenges made by grounds 5 and 7 require that the subject matter of those findings of the primary judge concerning the second and third loans be addressed.

Disposition of ground 4

63. In its terms, ground 4 is directed to the primary judge’s finding at J[229] that the first loan would be “repayable ‘if and when demanded’ and on two months’ notice”. The facts in relation to the payment and receipt of the moneys constituting this loan are set out at [17]ff above.

64. There is no contemporaneous note or other document describing or referring to this loan, which as alleged was the subject of an oral agreement made on 5 May 2008 between the appellant and Mr Kure.

65. Mr Kure’s apparently first recorded account of that conversation is given in his affidavit of 24 June 2019, eleven years after the event. That account is in the form of a lengthy conversation between Mr Kure and the appellant said to have occurred on that day. Because it is given as direct speech, although qualified by the usual, but not helpful, formula “words to the following effect [were said]”, it remains unclear whether the use of any of those words was actually recalled and, if not, to what extent any part of them is said to be evidence of the substance or gist of the conversation as Mr Kure recalled it.

66. An additional difficulty is that the exchanges between the appellant and Ms He were in Mandarin and the nuances of the Mandarin spoken even if recalled may not be captured in the translated exchanges. Another difficulty for evidence of conversations given in affidavit or statement form, such as in this case, is referred to by Nettle and Gordon JJ in Queensland v Masson [2020] HCA 28 at [112]; (2020) 318 ALR 560:

The oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey – and the danger that, when such changes are later subjected to a curial analysis of the kind undertaken in this matter, they are found to be productive of a different meaning from that which the witness intended, means that the approach of basing decisions on the ipsissima verba [the very words] of civil litigation lay witness statements is highly problematic. It is the oral evidence of the witness, and usually, therefore, the trial judge's assessment of it, that is of paramount importance. (Citations omitted.)

67. That concern is somewhat heightened in the present case because of the earlier decision of Brereton J in relation to whether the loans were to be treated as repayable on demand (see [12] above). As the primary judge acknowledged at J[228], the “possibility [was] that [Mr Kure’s] evidence was tailored to meet the observations of Brereton J”.

68. That decision of Brereton J was followed by the filing of the Amended Statement of Claim on 1 April 2019. That pleading abandoned the claim in respect of the first loan, and pleaded that the remaining two loans were repayable “only if and when demanded” by Mr Kure. As the primary judge observed at J[31], that is an unusual expression, and Mr Kure’s first affidavit does not suggest that it was used in relation to any of the loans.

69. Mr Kure’s affidavit evidence in relation to the first loan was that the appellant said that she needed “plenty of notice [as to] when you require me to pay you back” and that he responded: “How about I give you no less than two months’ notice when I require you to pay me back the money”. In a further exchange, he said: “You need not worry about repaying it unless and until I give you notice… I will give you at least 2 months’ prior notice”.

70. In relation to the second loan, his affidavit evidence was that the appellant said in response to his question as to “how long” she required the money: “could I suggest the same as last time? Just give me 2 months’ prior notice when you require me to pay the money back. I will provide you with a note acknowledging the loan”. The loan note contains no reference to when the loan was to be repaid. Mr Kure’s affidavit evidence concerning the third loan was that, in response to his request of the appellant as to how much was needed and for how long, she said: “I will provide you with the exact figure later when I prepare the borrowing note. Everything else would be the same as last time. The figure will be roughly $160,000”, to which Mr Kure said “Okay… The same conditions for the loan as before”.

71. When cross-examined about the absence of any reference to repayment with two months’ prior notice in the loan note for the second loan, Mr Kure maintained that this was “discussed”. He added in answer to a question as to his having “no actual recollection” of any such conversation: “we have talked over the phone, and the money is required – is needed, and I lend her the money on goodwill. Of course, there will be a condition for repayment, the - like the two months’ notice”.

72. In the Further Amended Statement of Claim filed in February 2020 and after Mr Kure’s first affidavit, whereas the first loan was reinstated and pleaded to be repayable “two months after receipt” of demand, it was alleged that the second and third were repayable “only if and when demanded”.

73. When asked in cross-examination to give his “best recollection of the whole of the conversation” on 5 May 2008, Mr Kure responded shortly: “I agreed to lend her money, and to give her the money with a bank cheque”. The primary judge then invited Mr Kure “doing the best you can” to say what the appellant said and what he said. Mr Kure responded:

Okay. The conversation started from the later stage of 2007. It was just I didn’t agree immediately. I said I would think about it. Then, on 5 May 2008, before I come to Australia, she mentioned it once again. On the way - when she picked me up from the airport, she talked to me about it, and I decided to lend her the money at that time.   

74. When asked whether he had finished his answer, Mr Kure continued:

That’s all of my major answers, but if I should say something else about this conversation. I will say that she introduced the factory to me and about the cash flow difficulties of the factory as well and I was asked if I can help her with it. Considering the case of family relationship history between both - between our two families, I agreed to help her solving the factory cash flow problem. This is based on my trust upon her. The decision was made based on my trust upon her and I have considered the amount of the loan is big but I have seen her factory and I have seen where she lives, the house that she owned, so based on all of this I decided to help her with the money. I remember she [had] me [over to] two of her houses and I have seen her factory in Marrickville…

75. The cross-examination then turned to whether there was any agreement with respect to the payment of interest. In his first affidavit, Mr Kure’s evidence was that the appellant said that she “won’t be able to pay interest”, to which Mr Kure replied: “That’s alright, the money would not earn any interest in Japan… Besides I do not need it at the moment”. When it was pointed out that in his second affidavit of 4 June 2020 Mr Kure claimed that the appellant had agreed to pay interest on the “loans I borrow from you” at 4.9%, Mr Kure said it was “not right” that it was agreed interest would not be payable. It was suggested that the evidence in his second affidavit was given to support his claim to a judgment which included interest on the second loan. In response, Mr Kure said:

No, that’s not correct. So, when I lent Ms He the money, I was not meant to get interest, but I didn’t know how long she will use the money, or need the money for, and out of politeness, and also because this is the first loan, I didn’t ask her to draft a loan note, or any other conditions of the loan, and in the Chinese culture, it’s also not polite to ask for a loan note, or such things, so we didn’t make the condition so clear at that time, but as a business man, all the money that comes and goes will come with a cost.

76. That answer is instructive. First, Mr Kure says that at the time he made the first loan, he did not know for how long the appellant would use or need the money. These were matters relevant to when and how the loan might be repaid, and Mr Kure’s answer suggests that nothing specific was said, let alone agreed, as to those matters. Secondly, Mr Kure explained that because this was the first loan he did not ask the appellant for a loan note “or any other conditions of the loan”, it not being polite to do so, with the result that they “didn’t make the conditions so clear at that time”. This explains why there is no loan note for this loan. It is also consistent with there being no agreement as to the duration of the loan and when it might be repayable.

77. The primary judge noted at J[32] that Mr Kure bore the onus of establishing that the loans were repayable, either two months after demand or “only if and when demanded”. His Honour also observed that there was no evidence to suggest that a loan on the latter terms might be any less unusual when made between parties with a Chinese cultural background.

78. At J[79], his Honour recorded that he had “legitimate doubts” about the reliability of Mr Kure’s evidence as to the loan repayment terms in circumstances where he had “similar doubts about the reliability of [Mr Kure’s] evidence in support of his allegations of misappropriation”. That assessment of the primary judge did not include any doubt arising from a finding that Mr Kure had received the proceeds of the two term deposits, together with interest. It follows from that finding that throughout the proceedings Mr Kure had maintained a case that he had not received the proceeds of the two term deposits despite knowing that was not the true position.

79. With respect to Mr Kure’s oral evidence, his Honour observed at J[73]:

When challenged in cross-examination, he omitted from his narrative account of the parties’ conversations any stipulation that the loans were repayable on two months’ notice. An assessment of the significance, if any, of that omission requires that allowance be made for the fact that the plaintiff of necessity gave evidence through an interpreter, by video link, and was unfamiliar with the Court’s processes. Although he omitted to refer to the alleged agreement for repayments on two months’ notice when giving evidence of a conversation with the defendant he did, more than once when specifically challenged, adhere to his evidence that there was a two months’ notice stipulation discussed with the defendant in relation to the alleged loans.

80. It is correct that, when challenged in cross-examination, Mr Kure adhered to his affidavit evidence that the first loan was repayable on two months’ notice. However, on the first and most of the subsequent occasions that Mr Kure adhered to his affidavit evidence, the reference to the two months’ notice was included in the question rather than volunteered by the answer.

81. The primary judge concluded that he was “comfortably satisfied” as to the correctness of Mr Kure’s evidence concerning the time for repayment of each of the loans (J[225]), reasoning as follows (J[227]):

Despite impediments in the way of accepting the reliability of the plaintiff’s account of his conversation with the defendant on 5 May 2018… - principally the lack of any contemporaneous documentation, the passage of time between the conversation and the affidavit and the course of the plaintiff’s pleadings - I accept that evidence [being par 17 of Mr Kure’s first affidavit] as substantially correct, including the plaintiff’s account as to the parties’ agreement that the plaintiff’s advance of $633,744.57 would be repayable upon two months’ notice. The requirement of two months’ notice, proffered by the defendant herself, is consistent with the subsequent course of events, including the almost immediate investment of the funds in term deposits that were subsequently rolled over. I am comfortably satisfied that the evidence of the plaintiff about the circumstances in which the $633,744.57 transaction came about is correct.

82. That reference to the “subsequent course of events” could only be to the fact that the funds were deposited for terms of at least six months with a bank. A six-month term deposit could be “consistent” with a requirement for two months’ notice if the term deposit could be broken before maturity without significant withdrawal or prepayment costs. The evidence did not address that question. More significantly, there is also Mr Kure’s affidavit evidence that the first loan was only to be applied for the purchase of “factory premises and equipment”. How the loan might have been repaid with two months’ notice in that event was not straightforward, especially if premises had to be sold or the loan refinanced to do so. According to Mr Kure, the appellant did suggest that if necessary she may have to sell one of her properties to pay him back. If Mr Kure’s oral evidence is to be accepted, matters of this kind were not discussed or made “clear”, this being the first loan and they not having addressed or resolved any other conditions of the loan.

83. Accepting that there is good reason to doubt the credibility and reliability of Mr Kure’s evidence on an issue which he must have known to be critical to the success of at least one of his claims, it could not be concluded on the balance of probabilities that it was expressly agreed that the first loan was to be repayable on two months’ notice. The only contemporaneous documents are the notes for the second and third loans. They make no reference to any such agreement. The reason why there was no loan note for the first loan is explained in Mr Kure’s oral evidence. That same evidence suggests that such matters were not discussed at that time, in part because of the close family relationship between him and the appellant and because in “the Chinese culture” it was not “polite” to do so.

84. There is left Mr Kure’s affidavit evidence, which bears the hallmarks of having been drafted and settled by a lawyer or lawyers, and prepared in circumstances requiring attention, if the claim to repayment of the loan was not to be statute-barred, to whether there was express agreement that the loan be repayable upon the making of a demand.

85. Mr Kure’s oral evidence suggests that the loan was discussed over a period of time rather than on one occasion. That seems far more plausible than the lengthy conversation which, according to his affidavit, occurred on 5 May 2008. In “[saying] something else about this conversation”, Mr Kure also emphasised the importance of the close family relationship and the fact that he was helping the appellant solve “the factory cash flow problem” based on his “trust upon her”. In those circumstances, he said in effect that they did not attend to matters of detail. This narrative and context make it unlikely that there was any agreement to the loan being repayable after a notice period of two months or more. The fact that the proceedings were commenced without alleging any such notice period is consistent with that being the position.

86. For these reasons, the evidence does not support an affirmative finding that such a term was agreed. In summary: first, there is good reason to question the credibility and reliability of Mr Kure’s affidavit evidence as to the repayment term of the first loan, and in circumstances where the decision of Brereton J drew attention to a need to address that subject. Secondly, aspects of Mr Kure’s oral evidence are at least not consistent with such a term having been agreed. Thirdly, the relationship between the parties and the circumstances in which the loan was made make it unlikely that a specific notice period for repayment was agreed, and that conclusion also is supported by Mr Kure’s oral evidence. Fourthly, the contemporaneous notes in relation to the second and third loans do not refer to such a term, and the absence of a note for the first loan is consistent with the absence of any such agreement. Furthermore, the primary judge’s finding was made without taking into account a finding adverse to Mr Kure concerning repayment of the proceeds of the two term deposits; and the only matter which the primary judge considered to be consistent with a requirement for two months’ notice was at best equivocal.

87. In the result, ground 4 should be upheld. There was no such term of the first loan agreement and the claim to recover that loan is statute-barred. This ground provides a separate basis for the dismissal of the claim in respect of the first loan.

Second and third loans (Ground 5, 6, 7 and 8)

Disposition of grounds 6 and 8

88. These grounds challenge the primary judge’s findings that these loans were repayable on the same terms as the first loan, being on two months’ notice. Mr Kure’s evidence in support of those findings is summarised at [70] above and was that these loans were made on the same terms as the first.

89. For the reasons given above, I am not satisfied that it was agreed that the first loan was repayable on two months’ notice. It follows that no such requirement for repayment was incorporated expressly or otherwise in the terms of the second and third loan agreements. Accordingly, the loans also were repayable on demand, such that the cause of action for repayment accrued upon the making of each loan and, pursuant to s 16 of the Limitation Act, expired six years after that date. Grounds 6 and 8 should be upheld.

90. This conclusion makes it unnecessary to consider grounds 5 and 7.

Challenge to the costs order (ground 9)

91. Ground 9 challenges the primary judge’s exercise of the costs discretion. As the appeal is to be allowed and the judgment and orders of the primary judge set aside, including the order as to costs, ground 9 does not arise.

Conclusion

92. In the result, the appeal should be allowed with costs.

93. The following orders should be made:

1. Appeal allowed.

2. Set aside orders 3, 4, and 5 of the primary judge made on 7 October 2022.

3. In lieu thereof, order that the respondent’s Further Amended Statement of Claim be dismissed with costs.

4. Respondent pay the appellant’s costs of the appeal.

94. KIRK JA: I agree with Meagher JA.

95. GRIFFITHS AJA: I agree with Meagher JA.

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Decision last updated: 04 August 2023