Huynh v Dang
[2025] WADC 4
•18 FEBRUARY 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HUYNH -v- DANG [2025] WADC 4
CORAM: CURWOOD DCJ
HEARD: 10-11 FEBRUARY 2025
DELIVERED : 18 FEBRUARY 2025
FILE NO/S: CIV 1624 of 2022
BETWEEN: RICHARD LE MINH HUYNH
Plaintiff
AND
THI TUYET DANG
Defendant
Catchwords:
Claim by plaintiff for money paid to bank account of defendant in Vietnam in Vietnamese Dong - Agreement for currency swap and for defendant to deposit equivalent value of Vietnamese Dong in Australian dollars in plaintiff's bank account - Whether agreement made between plaintiff and defendant in the terms alleged by the plaintiff - Extent of payments made by defendant to the plaintiff in reduction of any liability to plaintiff - Failure of defendant to attend trial - Whether the court should exercise its discretion to proceed with the trial in the absence of the defendant - Claim by defendant that dispute should be resolved in Vietnam - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 34 r 2
Result:
Judgment for plaintiff against defendant in the sum of $111,134
Representation:
Counsel:
| Plaintiff | : | Ms J Moore |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Legal Care Australia |
| Defendant | : | Not applicable (Tan & Tan Lawyers ceased acting in June 2024) |
Case(s) referred to in decision(s):
Broadway Pty Ltd v Lewis [2012] WASC 373
Doherty v Bruce Ronald Sampey as administrator of the estate of Patricia Adele Addison (AKA Sampey) [2023] WASC 10
Kvist v GippsAero Pty Ltd (2023) 72 VR 226
Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217
Sullivan v Department of Transport (1978) 20 ALR 323
CURWOOD DCJ:
Introduction
This action arises from a dispute between the plaintiff and the defendant concerning a currency swap between them. The plaintiff claims he made an agreement with the defendant whereby he would deposit Vietnamese Dong (VND) into her bank account in Vietnam, and, in return, she would pay him the equivalent amount in Australian dollars (AUD$) into his bank account in Australia. The plaintiff's case is that the objective was to avoid bank fees for the currency swap and transfer of funds.
The transactions in issue occurred in April and May 2019. The plaintiff's case is that he arranged through a friend in Vietnam, Ms Diem Ho, to deposit VND 6.5 billion to the defendant's Vietnamese bank account in two deposits, VND 3.5 billion on 19 April 2019 and VND 3 billion on 20 May 2019. Further, at the time of each deposit the parties had agreed a 'swap value' in AUD$.[1] The plaintiff's case is that the defendant was obliged to pay him $397,535, she only paid $286,401 and, accordingly, the defendant owes him $111,134.
[1] VND 16,500 for AUD$1 for the first deposit and VND 16,180 for AUD$1 for the second deposit.
The defendant did not attend the trial. In these reasons, I refer to the defendant's apparent view of the case based on her amended defence. I decided that the trial should proceed notwithstanding the defendant's failure to appear at the trial. I have set out my reasons for that decision below.
For the reasons that follow, the plaintiff has proved his pleaded case on the balance of probabilities and is entitled to judgment against the defendant for the claimed amount of $111,134.
These reasons deal with:
1.the plaintiff's case;
2.the matters pleaded in the defendant's amended defence;
3.the defendant's non-attendance at the trial;
4.the evidence led by the plaintiff at the trial; and
5.the appropriate relief and orders which should be made on the basis of the evidence led at the trial.
The plaintiff's case
The plaintiff's statement of claim pleads:
1.On 19 April 2019 the plaintiff and the defendant entered into an oral agreement for the exchange of currency (April agreement).
2.There were express terms of the April agreement to the effect that:
(a)The plaintiff would deposit to the defendant's nominated bank account in Vietnam the amount of VND 3.5 billion.
(b)The defendant, within two days of receiving the payment would repay to the plaintiff in Australia the equivalent value of VND 3.5 billion VND in AUD$.
(c)The exchange rate applicable for the deposit was AUD$1 = VND 16,500, accordingly a sum of $212,121.
(d)Pursuant to the agreement the plaintiff caused VND 3.5 billion to be transferred to the defendant's nominated bank account in Vietnam.
3.On or about 20 May 2019 the parties entered into a further oral agreement for the exchange of currency (May agreement). Express terms of the May agreement were that:
(a)The plaintiff would deposit to the defendant's nominated bank account in Vietnam VND 3 billion.
(b)The defendant would, within two days of receiving the payment of VND 3 billion, pay the plaintiff the equivalent value of that sum in AUD$.
(c)The exchange rate applicable for the deposit was AUD$1 = VND 16,180, accordingly a sum of $185,414.
4.Pursuant to the agreement on 20 May 2019 the plaintiff caused VND 3 billion to be transferred to the defendant's nominated account in Vietnam.
5.In reduction of the amounts she was obliged to pay the defendant, she has paid the plaintiff $286,401.
6.In breach of the May agreement the defendant has failed to pay the plaintiff $111,134 being the balance owing under that agreement.
7.On 5 May 2021 the plaintiff demanded repayment of $111,000 pursuant to the May agreement and despite that demand the defendant failed to comply by making payment of the sum owing or any amount.
8.A prayer for relief seeking $111,134 and interest on that sum at the rate of 6% per annum pursuant to s 32 of the Supreme Court Act 1935 (WA) from 5 May 2021.
The defendant's position
The defendant is originally from Vietnam. She speaks limited, if any, English. Since June 2024 the defendant has been self‑represented. I will shortly describe in some detail the procedural history of the proceedings and the defendant's participation in the proceedings. She was originally represented by solicitors. On 7 November 2023 those solicitors filed an amended defence on her behalf.
In substance, by the amended defence the defendant:
(a)pleads there was never an agreement between the plaintiff and the defendant to exchange currency at any time;[2]
(b)admits that VND 6.5 billion was transferred to her bank account in Vietnam by two instalments in April and May 2019 but denies that 'that sum of money originated from or belonged to the plaintiff';
(c)pleads the amount VND 6.5 billion was transferred to her by a third party, Ho Thi My Diem (Ms Ho) for a separate business transaction;
(d)admits paying the plaintiff $286,401, but claims it was for a separate loan given in March 2019, for which the plaintiff was repaid in full;[3] and
(e)pleads that Vietnam has exclusive jurisdiction over the dispute.
[2] Amended defence, par 1.
[3] Amended defence, par 4.
Accordingly, the following issues seem to arise on the pleadings:
1.Was there any agreement between the parties for the April and May remittances?
2.If so, what were the terms of that agreement (or agreements)?
3.Who deposited the sum of VND 6.5 billion into the defendant's bank account? If it was Ms Ho, did she act as the plaintiff's agent in making the deposit?
4.Were the payments totalling $286,401 made by the defendant to the plaintiff made to reduce the amount owing under a loan agreement as claimed by the plaintiff, or were they intended for another purpose or in accordance with a different arrangement between the plaintiff and the defendant?
Defendant's non-attendance at trial
The defendant did not appear at the trial of this matter. Counsel for the plaintiff sought to proceed in her absence. I determined that the trial should proceed notwithstanding the defendant's absence. As I will explain, the primary reasons why I permitted the trial to proceed were because I was satisfied that the defendant had been provided with notice of the dates of the trial. Further, trial dates had been vacated on a previous occasion owing to the failure of the defendant to attend court.
Secondly, I also took into account the plaintiff's position, the position of Ms Ho as non-party witness scheduled to appear at the trial and case management objectives all of which led to the exercise of my discretion against an adjournment of the trial for what would have been the second time.
Procedural history of the case
The plaintiff commenced this case on 21 April 2022. The defendant filed a memorandum of appearance on 6 May 2022 by a solicitor.
The plaintiff filed a statement of claim on 24 May 2022. No further steps were taken after the principal registrar of this court on 30 September 2022 made orders for the parties to file discovery.
Consequently, the case was admitted to the inactive cases list on 23 November 2022. The case was subsequently removed from the inactive cases list and the case reinstated. On 16 August 2023 the defendant filed a defence. Both parties filed affidavits of discovery (the plaintiff in July 2023 and the defendant in September 2023).
The plaintiff belatedly applied for summary judgment on 16 August 2023. That application was dismissed by the deputy registrar on 27 October 2023.
On 8 November 2023 the defendant filed an amended defence.
A pre-trial conference occurred on 12 April 2024. The dispute did not settle at the pre-trial conference and was adjourned to a listing conference on 17 June 2024.
On 17 June 2024 the defendant filed a notice of change of representation providing an address for service with an email address. The notes to the Form 5AA notice of change of representation made clear that if an email address is provided on the form, that email address may be used for the service of documents.
On 17 June 2024 the case was adjourned to a further listing conference on 24 June 2024. The extracted orders of the listing conference on 24 June 2024 before a registrar of this court recorded that the defendant appeared in person. The orders reflect that the trial was listed for three days commencing on 18 November 2024.
A directions hearing was heard before Staude DCJ on 8 August 2024 where his Honour made a number of programming orders for the trial.
On 7 October 2024 a further directions hearing was held before me. On that occasion the defendant appeared with her daughter, Ms Tu Ha. The defendant's lack of fluency in English was evident at the directions hearing. Notwithstanding the objections of counsel for the plaintiff, I permitted Ms Ha to sit with her mother at the bar table and to interpret for her and to speak on her behalf. I told the defendant (and Ms Ha purported to interpret for her mother) that she needed to book an interpreter for the trial which was due to commence on 19 November 2024. I also explained that she was required to book an independent interpreter for the trial, not a family member.
At the conclusion of the directions hearing, I made an order directing the defendant to book an interpreter for the trial. I listed the matter for further directions on 18 October 2024. The transcript of the directions hearing was provided to the defendant.
The defendant complied with the order made on 7 October 2024 and formally requested the booking of a Vietnamese interpreter for the trial in compliance with the court's practice direction.[4] As the defendant had requested the booking of an interpreter to attend the trial, the directions hearing listed for 18 October 2024 was vacated.
[4] The booking request was made by the defendant to District Court Services by email on 11 October 2024 which was in compliance with Consolidated Practice Direction 9.13.
A few days before the trial was due to commence, the defendant's daughter, Ms Ha sent a number of emails to the plaintiff's solicitors requesting an adjournment. In those emails she referred to some medical conditions of her mother. Specifically, in an email sent 13 November 2024 at 12.06 pm the reasons given for the request for an adjournment of the trial was stated to be as follows:
My mother is currently undergoing medical treatment due to a long‑standing neurological disorder and she is not in sufficient health to travel to Australia this week to attend the trial.
Additionally, I am currently in Vietnam for personal matters and will remain here until the end of January next year. In light of these circumstances, I kindly request that the court and the legal care team consider rescheduling the trial to February next year.
The plaintiff's solicitors responded to that email by advising that the plaintiff would object to any adjournment application.
Ms Ha sent a further email to the plaintiff's solicitors on Friday, 15 November 2024 which said, in part, as follows:
To respond to your email
On October 7 2024 the court asked whether my mother would be able to attend the trail in November. My mother responded that she might be able to, but it would depend on her health condition. She is currently undergoing treatment based on a special medical regime prescribed by her doctor including acupuncture and regular check-ups. Additionally, she has multiple health conditions such as hypotension (low blood pressure), frequent fainting, trigeminal neuralgia and vestibular disorder which affect her central nervous system. Given her current health condition she is unable to fly to Australia to attend the trial next week. Medical records and related documents are available on request.
As an aside, I note that the plaintiff has not provided any medical records to the court at any time in these proceedings.
On the morning of the scheduled commencement of the trial, Ms Ha, on behalf of her mother, sent an email to the court requesting an adjournment of the trial. That email, which was stated to be from the defendant said as follows:
I am writing to respectfully request an adjournment of my upcoming trial scheduled on 18th, 19th and 20th November 2024.
Unfortunately, I am current suffering from an illness that has significantly impacted my ability to flight [sic] to Australia and attend court and adequately prepare for the trial. Medical certificate and confirming condition and recommended rest from my doctor can be provided upon request.
Under these circumstances, I kindly request that the trial date be rescheduled to a later date to allow me sufficient time to recover and property prepare for the proceedings. I assure the court that I am committed to attending the rescheduled trial date and will make every effort to ensure that there are no further delays.
When the case was called on 18 November 2024, the plaintiff sought to proceed with the hearing of the matter in the defendant's absence.
After hearing submissions and considering the matter his Honour vacated the trial dates and listed the matter for a three-day trial commencing on 10 February 2025.[5]
[5] His Honour made additional orders including listing the matter for mediation, which would be dispensed with if the defendant did not provide unavailable dates for mediation and an order allowing the plaintiff to call Ms Ho to give evidence by video link from Vietnam.
During the hearing on 18 November 2024, his Honour said:
Madam Associate or the Registry will be in contact with the defendant and/or her daughter about the orders that have been made today.
And at that time, Madam Associate will cause for a registrar to provide a copy of this transcript. And this transcript will reflect that in the event that there is a non-compliance with the orders, or importantly, if Ms Dang fails to attend at the hearing of the trial, then I would fully anticipate that the trial judge who is seised of the matter would not provide any further indulgence of the court and that the matter would proceed in her absence.
A review of the court record shows that the orders made by Judge Egan were extracted on the day they were made, 18 November, 2024 and sent to the parties at their respective email addresses as their addresses for service. From the court record, the email addressed to the defendant was received by the defendant on 18 November 2024 at 3.55 pm.
It is not clear from my review of the court's records as to whether the transcript of the hearing on 18 November 2024 was sent to the defendant, but it is clear that the orders which recorded the dates of the adjourned trial were provided.
On 4 February 2025 the civil listings officer of the court sent an email to the parties as a follow up to a standard letter from the court, issued on 24 January 2025 about arrangements for the trial, including contact details of trial counsel and the like. On 4 February 2025 in an email follow up the listings officer said:
I refer to the trial listed for three days commencing 10 Feb 2025 can parties please confirm that the trial is proceeding.
Approximately 30 minutes later at 9.26 am the defendant's daughter, Ms Ha, replying from the defendant's email address for service said:
Good morning
I will arrive to Perth my end of this week and my mom fight [sic] will be 27th of Feb.
Can we reschedule the trial date after 27th Feb please
The listing officer replied less than one hour later to advise:
The trial was set down by a Judge on the last occasion. You will need to liaise with the other party if you wish to change the trial dates and bring an application to adjourn the trial before the court to be heard prior to the trial dates. Please seek some legal advice.
Over the weekend, on 8 February 2025, a further letter was submitted to the court on the eCourts Portal on behalf of the defendant.[6] A handwritten letter in Vietnamese was submitted with a typed translation by Ms Ha, the defendant's daughter which said:
[6] Folio document 76.
In 2019, I was introduced by an acquaintance to Mr. Minh Huynh, who was said to have several cafés for sale. At that time, I was looking to buy a shop. After Mr. Minh Huynh came to my house and took me to see some of his shops, and after listening to what he said, I found it reasonable and wanted to buy. I then sent my daughter, Ha Thi Cam Tu, too to work at Mr. Minh's shop for over two months without a salary. At that time, I intended to buy the shop, so I paid a deposit and gave him some money, and we also borrowed and lent money between each other.
However, during that time, the COVID-19 pandemic unexpectedly occurred, and I returned to Vietnam, where I had to stay for more than two years. When I returned to Australia, I received a court notice from the Australian court. Mr.Minh Huynh had sued me for not repaying him money, which shocked and worried me. As a result, my child and I sought a lawyer to protect my rights because I do not speak English and do not understand Australian law.
My lawyer requested Mr. Minh to provide reasons and concrete evidence regarding my alleged debt to him. However, to this day, there has never been any agreement between Mr. Minh Huynh and me regarding any outstanding debt. In fact, as evidence, on 14 December 2020 and 08 January 2021, Mr. Minh even asked to borrow money from me.
Later, Mr. Minh Huynh claimed that a Ms. Diem from Vietnam had sent money to me. In reality, I have never known who Ms. Diem is. If Ms. Diem had transferred money to me in Vietnam, I request that she meet and work with me in Vietnam. Why didn't they meet me to resolve the issue but instead took me to court in Australia? Additionally, I am a Vietnamese citizen, I do not speak English, I do not understand Australian law, and I have never encountered such legal matters before, which puts me at a severe disadvantage.
This situation has greatly affected my health and mental well‑being. Since this case, according to Mr. Minh Huynh's claim, is related to Ms. Diem in Vietnam, I have repeatedly requested the court transfer this case to Vietnam for resolution.
I do now know English and do not have the financial means to hire a lawyer anymore, which means I cannot defend myself in court. I sincerely ask the court to understand and consider my request.
Once again, I respectfully ask the court to allow me to negotiate and resolve this case in Vietnam.
Currently, my health is poor, and I'm unable to appear in court.
This is my petition requesting permission to have this matter resolved in Vietnam.
I respectfully request that the court approve and facilitate this request.
Respectfully,
Thi Tuyet Dang
From the court's records and the emails from the defendant's email address which I have referred to, I am comfortably satisfied the defendant has received notice of the trial dates and she was not prevented from attending by circumstances beyond her control. Although the defendant's communications make mention of health issues, no medical or other evidence has been provided to the court or the plaintiff. The email from Ms Ha to the court's listing officer states that the defendant is flying from Vietnam to Australia this month, on 27 February 2025.
With respect to the various requests about transfer of the case to Vietnam, this court's jurisdiction, as I will explain in further detail below, has been regularly invoked.
At the commencement of the trial of this matter I reached the view that that the letters and communications from the defendant and her daughter, to the extent that they gave rise to a request for an adjournment of the case, should be refused, and the trial should proceed. I stated that I would give written reasons for refusing the adjournment when I ultimately deliver reasons in this case. At the time of deciding that the trial should proceed, I gave oral reasons for my decision to proceed with the hearing of the case at the trial in terms of [10] - [39] above and [41] ‑ [43] below. I have edited the contents of those paragraphs from the transcript.
Decision to proceed with the trial notwithstanding defendant's failure to attend
Order 34 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC) provides that:
If, when a trial is called on, one party does not appear the judge may proceed with the trial of the action or of any counterclaim in the absence of that party.
A similar situation occurred in the case of Broadway Pty v Lewis.[7] In that case Justice Pritchard proceeded to hear a trial in the absence of a defendant who failed to attend. Her Honour set out a number of considerations leading to that decision which I summarise as follows:[8]
1.The court has a discretion as to whether to proceed with or adjourn a trial.
2.Fundamental considerations govern the exercise at the court's discretion. The first is that natural justice must be afforded to a party to litigation. The second and related consideration is that the paramount objective of litigation is the just resolution of disputes.
3.With respect to the fundamental objective of the just resolution of disputes the position of one party who fails to appear at the trial cannot be the sole consideration. That is clear from the fact that O 34 r 2 of the RSC permits the trial to proceed in the absence of a party to the proceedings. Further, the position of the plaintiff as a litigant and the position of third parties (that is witnesses one of whom is to be called from Vietnam) and more general considerations relating to the modern approach to case management are also relevant to the decision whether to proceed with a trial.
[7] Broadway Pty Ltd v Lewis [2012] WASC 373 (Broadway).
[8] See Broadway [43] - [53]
In the present case, I determined that I should exercise my discretion to proceed with the trial in the context that:
1.I had previously told the defendant at a directions hearing on 7 October 2024 of the existence the trial and the need to attend in person otherwise the case could be dealt with in her absence.
2.The trial had been previously adjourned by Judge Egan in November 2024.
3.The defendant was aware of the dates allocated for the trial based upon the orders having been sent to her and the communications sent to the court from the defendant's email address.
4.Any further adjournment of the trial would not only cause wasted costs and inconvenience to the plaintiff, but also the witness Ms Ho, who had arranged to be available to give evidence from Vietnam.
5.A further adjournment of the trial is not consistent with the objects of the positive system of caseload management which applies in the District Court and the need to promote the just determination of litigation, disposing efficiently of the business of the court and maximising the efficient use of available judicial and administrative resources (necessarily a finite and scarce public resource and facilitating the timely disposal of business amongst other matters).
6.The issues in dispute are relatively narrow and a further adjournment of the matter does not facilitate the timely disposal of the litigation.
7.The defendant has been given an opportunity to present her case and when one considers the issues of natural justice and procedural fairness, there lies some responsibility on the parties to take up opportunities of procedural fairness and natural justice and to attend court to present cases when they are given the opportunity to do so.[9]
[9] Procedural fairness requires only that a party be given a reasonable opportunity to present his case, and, as was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323, 344 it is not the function of a court to ensure that the party takes the best advantage of that opportunity (see also Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 [138]).
For all of the reasons set out in [10] - [43] inclusive, I determined that it was appropriate for the plaintiff to proceed with the trial of this matter and the prosecution of his claim in the absence of the defendant. As I will detail in the next paragraphs, the plaintiff called evidence and tendered documents in support of his claim.
Before turning to the evidence that was led at trial, my approach to fact finding in this case follows the approach of (and observations made by) Allanson J in Doherty v Bruce Ronald Sampey as administrator of the estate of Patricia Adele Addison:[10]
1.First, in determining liability, the plaintiff always bears the onus of proving its case, including any fact relevant to any fact necessary to prove the cause of action on the balance of probabilities.
2.Secondly, where facts must be proved in a civil trial on the balance of probabilities, they must be established to the reasonable satisfaction of the court and, the court 'must feel an actual persuasion of [their] occurrence or existence'. Reasonable satisfaction is not attained or established independently of the nature and consequence of the facts to be proved.
3.Thirdly, though the court must recognise the doubts that attend the recollection of conversations many years in the past, it does not follow that the correct starting point is to place little reliance on oral recollection. Rather, oral evidence should be assessed in light of its inherent probabilities in the context of the objectively established facts.
4.Fourthly, the court is not bound to accept or reject a witness' evidence in its entirety. Some aspects of the evidence of a witness may be unreliable, but that does not mean that all of the evidence of that witness should be rejected.
[10] Doherty v Bruce Ronald Sampey as administrator of the estate of Patricia Adele Addison(AKA Sampey) [2023] WASC 10 [29] - [36] (Allanson J).
I now turn to the evidence that was called in the case.
Evidence led at trial by the plaintiff
Two witnesses gave oral evidence during the trial, the plaintiff and Ms Ho. The plaintiff also tendered various documentary records, being:
1.Payment orders from a bank in Vietnam, BIDV, evidencing the payments that were made to the bank account of the defendant;[11]
2.Extracts of bank statements of companies called Annam Pty Ltd and Avant Garde Capital, where the plaintiff directed the defendant to make repayments;[12]
3.SMS messages between the plaintiff and the defendant (who was identified in the telephone messages by the name Ms Tuyet Anh).[13] The SMS messages between the plaintiff and the defendant were in Vietnamese. The SMS messages that were tendered into evidence were translated by a certified Vietnamese translator.
4.SMS messages between the plaintiff and the daughter of the defendant, Ms Ha who is referred to in the text messages as 'Cam Tu', with Tu being her Christian name.[14] The SMS messages between Ms Ha were in the Vietnamese language and the messages were translated by a certified Vietnamese translator.
5.A letter of demand sent by a lawyer on behalf of the plaintiff to the defendant dated 5 May 2021 demanding the payment of the sum of $111,000.
[11] Exhibits 1 and 2. Exhibits 1, 2, 4, 5 and 6 were contained within a trial bundle. Although a trial bundle was prepared, filed and served, each of the exhibits were tendered and numbered separately. For convenience, in these reasons I will identify relevant parts of some of the exhibits by reference to the pages in which they appeared in the trial bundle.
[12] Exhibits 4 and 5.
[13] Exhibit 6. The plaintiff gave evidence that the name Ms Tuyet Anh was another name by which he referred to the defendant being her first and middle name: ts 60 - ts 61.
[14] Exhibit 3.
The plaintiff's evidence
The plaintiff gave oral evidence that he is a certified practising accountant. He said that he first met the defendant in 2017 when he was introduced to her by a friend who was a lawyer. He said that they became friends.
The plaintiff said that in early 2019 he needed to transfer money from Vietnam to Australia. He was looking for somebody who had a need to transfer money from Australia to Vietnam so that they could swap currency and avoid bank fees and charges which would otherwise apply to a transfer of money from Vietnam to Australia (and vice versa).
The plaintiff had discussions with the defendant in early 2019 about swapping cash whereby he would pay money into her bank account in Vietnam and she would repay him the Australia dollar equivalent in his Australian bank account. According to the plaintiff, the defendant told him she had 'money available in Australia that she wanted to transfer back to Vietnam as well, so she could do that with me'.[15]
[15] ts 61.
The plaintiff said he met the defendant to discuss a currency swap at a café in the Harrisdale Shopping Centre. The plaintiff said that he and the defendant did some small transactions of $10,000 and 'it was done smoothly'. He said on each occasion they would calculate the exchange rates between AUD and VND published by a Vietnamese bank called Vietcombank and agree on the exchange rate published by the bank on the date they agreed to make the currency swap.[16]
[16] The plaintiff's oral evidence in this respect is corroborated by text messages from the defendant's daughter Ms Ha in February and March 2020 as contained in Exhibit 3.
In April 2019 they had discussions whereby the plaintiff said to the defendant that he would have a total amount of VND 3 ‑ 4 billion to transfer. The plaintiff said in his evidence that on 18 April 2019 he called the defendant to say that he would arrange the transfer of VND 3.5 billion to her account in Vietnam.[17] Further, they agreed upon an exchange rate of VND 16,500 for AUD$1 for the swap. Consequently, the amount that the defendant was obliged to pay to the plaintiff for the VND 3.5 billion was $212,121.
[17] ts 63.
As to the payment terms, the plaintiff said in his evidence that:[18]
[T]he agreement between us … was immediate payment, immediate exchange. … [O]nce she received the money … in Vietnam, she would immediately pay or transfer me the money in Australia.
[18] ts 68.
The plaintiff's evidence was that a friend of his, Ms Ho, who lived in Vietnam had agreed to lend money to him and he instructed her to transfer money on his behalf to the defendant's account in Vietnam. He sent Ms Ho the defendant's bank details by a WhatsApp message.
With respect to the second deposit made about a month later on 19 May 2019, the plaintiff said he had a telephone conversation with the defendant and asked if she could do another transfer of VND 3 billion, she agreed to do so, and they agreed an exchange rate of VND 16,100 to AUD$1.
At the time of the transfer the defendant had only paid $150,000 of the sum advanced on 19 April 2019. The plaintiff said that when he 'requested her to do the second batch' on 18 May 2019 he thought the delay in payment by the defendant 'was only a technical thing that she was transferring slowly' and that he never suspected 'anything other than that the money was going to be paid' to him.[19]
[19] ts 68.
Similarly to the first transaction, VND 3 billion was transferred by Ms Ho to the bank account of the defendant and a payment order evidencing the payment was generated and tendered in evidence.[20]
[20] Exhibit 2.
Ms Ho's evidence with respect to the Vietnamese Dong deposits to the defendant in Vietnam
Ms Ho gave evidence by video link from Ho Chi Minh City, Vietnam.
Ms Ho said she confirmed to the plaintiff once she had made the transfer and she sent him a receipt for the transfer. This document was tendered in evidence[21] being a payment order from a Vietnamese bank called BIDV. The payment order records a transfer to a bank account in the name of the defendant bearing a specific account number at a bank called Sacombank. The payment order had a remark to the effect that 'Mr Minh had transferred'. The plaintiff said that he gave that instruction to Ms Ho to notify the money was from him.
[21] Exhibit 1.
Ms Ho said in her evidence:
1.She had known the plaintiff since approximately 1994 or 1995 when they worked together at Price Waterhouse Coopers.
2.In April 2019 the plaintiff asked to borrow some money from her and she agreed to lend him up to VND 10 billion. Their arrangements were formalised in a loan agreement.
3.On 19 April 2019 after the plaintiff had asked her to transfer VND 3.5 billion to the defendant, she went to a branch of the bank BIDV, and arranged the transfer of the money to the bank account of the defendant that the plaintiff had provided to her. The bank issued a payment order confirming and evidencing the transaction.[22]
4.The VND 3.5 billion transferred on 19 April was deducted from her bank account in Vietnam.
5.The second loan amount on 20 May 2019 was VND 3 billion and she followed the same procedure to transfer that sum from her bank account to the bank account of the defendant.[23] Ms Ho explained how the payment order records were prepared and that she requested each payment order contain a remark that 'Mr Minh has transferred', being a reference to the plaintiff.
6.The VND 5 billion she transferred to the defendant was required to be paid back by the plaintiff to Ms Ho pursuant to the loan agreement she had with the plaintiff.
7.Ms Ho has never met the defendant and did not know anything about her except for her name and bank account details which the plaintiff provided to her.
[22] Exhibit 1. The payment order in Vietnamese language was tendered with a certified translation.
[23] Exhibit 2. The payment order for 3 billion VND dated 20 May 2019 in Vietnamese language was also tendered with a certified translation.
In her amended defence the defendant admitted receipt of VND 6.5 billion in her Vietnamese bank account as a consequence of the payments made by Ms Ho.[24]
[24] Amended defence, pars 2 and 4.
Payments made by the defendant to the plaintiff
As I have noted in [8(d)] above, the defendant, in her amended defence, admits that she paid amounts totalling $286,401 to the plaintiff.
Although the defendant admitted paying amounts of money to the plaintiff, the plaintiff led evidence at the trial of those payments and the surrounding circumstances of those payments. In all of the circumstances that was an appropriate course because the surrounding communications informed the circumstances in which the defendant was making those payments. Combined with the evidence of the plaintiff's later requests (and demands) to the defendant for the repayment of money, that evidence informed the making of the currency swap agreement as alleged and the defendant's repayment of the advances that were made. I set this out in further detail in the paragraphs that follow.
As I have noted, the plaintiff communicated with the defendant and on occasions her daughter, Ms Ha, by SMS messages. Some of these messages were sent on an app called Zalo and others were sent as ordinary phone SMS messages.
To place the payments made by the defendant to the plaintiff during 2019 and 2020 into context, the plaintiff sent a number of SMS messages with a photograph of a handwritten note (and later an Excel spreadsheet), setting out the advances he says were made and the repayments the defendant made in reduction of those advances. For example, on 23 September 2020 the plaintiff sent an SMS message to the defendant in the following terms.[25]
[25] Exhibit 6, page 26.
13:55, 23/09/2020
3.5 billion @ 16,500 212,121
3 billion @ 16,180 185,414
397,355
19/05/2029 [sic] 150,000
21/05/2019 40,000
30/05/2029 [sic] 20,000
26/06/2019 20,000
29/06/2019 10,000
21/07/2019 10,000
21/07/2019 10,000
31/08/2029 [sic] 2,000
11/09/2019 3,000
01/10/2029 [sic] 5,000
28/11/2019 2,000
23/12/2019 100Mvnd@16124 6,202
22/01/2020 100Mvnd@16131 6,199
2703/2020 5,000
22/09/2020 5,000
284,401
Balance 113,134The plaintiff sent the defendant other SMS messages after 23 September 2020 which recorded the last and final payment of $2,000 and the balance which remained outstanding at the time of the commencement of these proceedings, $111,134. There is a consistency to the amount of the advances and the defendant's repayments in the plaintiff's contemporaneous SMS messages.
The payments listed as payment summaries in the SMS messages may each be traced to other SMS messages which evidence the payments made by the defendant. The parties' affairs were far from simple. Payments were made by the defendant to the plaintiff in cash (which payments were collected by members of the plaintiff's staff or his friends) and, at the direction of the plaintiff, by bank transfers made by the defendant to other people associated with the plaintiff.
Having reviewed all of the evidence, as the plaintiff was led by counsel through many SMS messages he exchanged with the defendant and her daughter, I am satisfied that the total amount paid to him by the defendant was the amount alleged in the statement of claim (and admitted by the amended defence), a total of $286,401.
As I have noted, the SMS messages between the plaintiff and the defendant record the defendant's name as being 'Ms Tuyet Anh'. The plaintiff gave evidence that the defendant was known by him by the name Tuyet Anh being her first and middle name (see fn13 above).
Between around 21 April 2019 and 15 May 2019 I find that the defendant made payments totalling $150,000 to the plaintiff. Those payments were not all made directly to the plaintiff, some were made at the plaintiff's direction to other people or entities. The payments totalling $150,000 were primarily dealt with by the defendant's daughter, Ms Ha and are evidenced by the SMS messages between her and the plaintiff in April and May 2019 forming part of Exhibit 3.
I make the following findings:
1.On or around 21 April 2019 $50,000 in cash was made to the plaintiff. The plaintiff said that that the $50,000 was paid in two or three separate cash amounts but added up to $50,000.[26]
2.On or around 25 April 2019, $20,000 in cash was paid by the defendant's daughter to the plaintiff.
3.The defendant arranged bank transfers to a friend of the plaintiff's known as Hoang Anh Kien (who was commonly referred to in the SMS messages as HAK) of $45,000,[27] such payments being made from late April until early May 2019.
4.On 6 May 2019 the defendant made a bank transfer at the direction of the plaintiff to the bank account of a company or organisation called Avant Garde Capital.[28]
5.On 15 May 2019 the defendant transferred to the bank account of Annan Capital Pty Ltd (National Australia Bank account) $20,000, which contained the details 'Minh Huynh'.[29]
[26] ts 91.
[27] ts 85.
[28] Exhibit 5 and Exhibit 3, page 17.
[29] Exhibit 4 and Exhibit 3, page 17.
With respect to payments made after 15 May 2019 I find that the defendant made payments totalling $136,401 as follows:
1.On 21 May 2019 a payment of $40,000 in cash was made by the defendant to a person named Ms Quynh who was friend the plaintiff.
2.On 30 May 2019 a further sum of $20,000 was directly deposited to the bank account of Annan Capital Pty Ltd with the reference Min Huynh for $20,000, being the same reference as the payment made on 15 May 2019.[30]
[30] Exhibit 4.
3.On 26 June 2019 a SMS messages between the defendant and the plaintiff record that the defendant asked the plaintiff for someone to come and collect $20,000 from her. A message later that day from the defendant confirmed 'Quynh just drop by and collect the 20k'.[31]
[31] Exhibit 6, page 38.
4.On 29 June 2019 a further sum of $10,000 was collected in cash by one of the plaintiff's employees from the plaintiff. In this respect there was a text message from the defendant to the plaintiff on the morning of 29 June 2019 which said:
Yesterday they paid me back 10,000 AU.
Could you get someone to come to pick it up this afternoon. I'll complete all the transfer by next week.
In his oral evidence, the plaintiff confirmed one of his employees went that day to collect the $10,000 in cash.
5.On 21 July 2019 a further sum of $10,000 was collected by the plaintiff's friend, Ms Quynh, on behalf of the plaintiff from the defendant. In this respect there were text messages exchanged between the defendant and the plaintiff confirming that arrangement and a confirmation by the plaintiff saying 'Quynh said she already came and collected it. Thank‑you sis'.[32]
6.On 23 August 2019 one of the plaintiff's staff members named 'Luan' collected a further sum of $2,000 in cash from the defendant. That collection was confirmed by the plaintiff in his evidence and is corroborated by text messages exchanged between the plaintiff and the defendant on 23 August 2019.[33]
7.On 11 September 2019 a staff member of the plaintiff's, Ms Doan, collected $3,000 in cash from the defendant. The plaintiff confirmed that fact in his evidence. The collection of the cash is also confirmed in text messages between the plaintiff and the defendant on 11 September 2019.
8.On 1 October 2019 a further sum of $5,000 was collected by Ms Doan. Similarly to the other cash transactions, the plaintiff confirmed the receipt of the cash and the arrangement for handing over the $5,000 in his oral evidence when he was taken through the SMS messages, and, those SMS messages corroborated and confirmed the collection of that sum.[34]
9.On 28 November 2019 $2,000 in cash was collected by Ms Doan. That arrangement was confirmed by the plaintiff in his evidence and corroborated in the text messages exchanged between him and the defendant on that date.[35]
[32] Exhibit 6, page 11.
[33] Exhibit 6, page 13.
[34] Exhibit 6, pages 15 - 16.
[35] Exhibit 6, page 20.
Acknowledgements by the defendant to the plaintiff
As I have mentioned, the plaintiff and the defendant exchanged numerous SMS messages regarding payments of money. The plaintiff relied upon many of those messages as showing, in effect, an acknowledgment by the defendant of her indebtedness to the plaintiff. Some examples are:
1.On 11 March 2020, the defendant wrote to the plaintiff:[36]
[36] Exhibit 6, page 87.
I'm telling you the truth that I have a lot of respect for you but in the same time I am ashamed because I failed to return the money to you, so I didn't dare to pick up the phone, not that I'm trying to avoid you. I got problems because I trust people, and it cost me almost 100 thousand AUD for lawyers and still not resolved, very difficult, that really it was a year of disaster. Let me try my best to get it by Tuesday, if not a lot then there will be something for you, I sincerely apologise to you
…
2.On 18 March 2020, after the defendant texted the plaintiff in Vietnam to show a photograph of her in her house during COVID-19 lockdown, the plaintiff responded with this text:[37]
[37] Exhibit 6, page 91.
You cannot treat me that way. During the last month I ask you for the 100 million and you promised it day by day up until now. I just cannot accept this further. I made an effort but I can no longer accept this. You promised day by day to the point where I no longer believed and felt that you do not want to repay me back. Whatever it was it is quite difficult to understand that you cannot find 100 million after all these days. And the money you owed me is not a very big amount and you had it for almost a year. You need to call me and talk it over.
3.In messages exchanged several days later on 21 March 2020, the plaintiff asked the defendant to call him. When she seemingly did not do so the plaintiff sent this message:
…
Why is it so???????
Why you make me so miserable like that????
Why you said it in a way that I believe it's true and I fooled everyone of our team and then you kept silent for another week?????
I just couldn't believe this
2:39
The defendant responded:[38]
…
I did not fool you. I got unintended problems, when I finish transfer the money to you, I'll tell you the whole story
I'm trying to send you the money at all costs, money I earned
…
[38] Exhibit 6, page 94.
Factual findings
Based upon the plaintiff's oral evidence, the oral evidence of Ms Ho and the documentary records tendered at the trial, I make the following findings:
1.In early 2019, the plaintiff and the defendant had discussions and agreed that they would swap VND for AUD by the plaintiff first depositing VND to the defendant's bank account in Vietnam and the defendant paying the plaintiff in Australia an equivalent value of the VND in AUD.
2.Unrelated to the claims in these proceedings, the plaintiff made some transfers of VND to the defendant in early 2019 which were repaid by the defendant in AUD in Australia.[39]
[39] The plaintiff's oral evidence in this respect is corroborated by text messages from the defendant's daughter Ms Thi in February and March 2020 contained in Exhibit 3.
3.On or shortly before 19 April 2019, the plaintiff and the defendant agreed that the plaintiff would arrange a deposit of VND 3.5 billion to the defendant's bank account and the defendant would repay an equivalent sum to the plaintiff in Australia at an exchange rate of VND 16,500 to AUD$1. In this respect:
(a)I accept the plaintiff's oral evidence that this discussion occurred;
(b)the plaintiff's oral evidence is corroborated by later SMS messages (one of which I have set out at [65] above) which evidence the rate of VND 16,500 at $212,121. Further in various SMS messages which followed the SMS messages detailed in [65] above, the defendant never disputed the amount transferred or the rate applicable. Rather, later SMS messages related to the repayment of the amount set out as owing in the plaintiff's SMS messages.
4.On 19 April 2019, Ms Ho deposited VND 3.5 billion to the defendant's bank account in Vietnam. In this respect I accept:
(a)Ms Ho's oral evidence of this fact; and
(b)that the transfer is evidenced by Exhibit 1.
5.I also accept Ms Ho's evidence that she had no pre-existing relationship with the defendant. Ms Ho said clearly that she was lending the plaintiff the money that was advanced to the defendant. I accept her evidence that the payment was made by the plaintiff to the defendant and that Ms Ho has no claim against the defendant for the money she advanced to the defendant, rather, the plaintiff was liable to repay her that money. In those circumstances, the money advanced to the defendant was beneficially the plaintiff's.
6.On, or shortly before, 20 May 2019, the plaintiff and the defendant agreed that the plaintiff would deposit VND 3 billion to the defendant's bank account and that the exchange rate applicable to that advance would be VND 16,180 to AUD$1, thereby creating a liability for the defendant to pay the plaintiff $185,414 upon receipt of the VND 3 billion in her bank account. In this respect:
(a)I accept the plaintiff's oral evidence that this discussion occurred; and
(b)the plaintiff's oral evidence is corroborated by later SMS messages which I have identified at [74.3] above.
7.On 20 May 2019, Ms Ho transferred VND 3 billion to the defendant's bank account such payment being a payment by the plaintiff to the defendant. I accept:
(a)Ms Ho's oral evidence of this fact;
(b)that the transfer is evidenced by Exhibit 2; and
(c)Ms Ho's evidence that I have outlined at [74.5] above.
8.Between 21 April 2019 and 9 February 2021 the defendant paid the plaintiff $286,401 in Australia. Further, those payments were pursuant to the agreements reached between the plaintiff and the defendant for the currency swap and in reduction of the amount of money that the defendant owed to the plaintiff. Namely, there was no other arrangement between them but relevantly the arrangement or agreement between them was for the currency swap the subject of the proceedings. In this respect:
(a)I accept the plaintiff's oral evidence of these matters.
(b)A fair reading of the SMS messages in Exhibits 3 and 6 does not indicate any other business agreements or transactions between the plaintiff and the defendant from which it could be inferred that the payments related to some other purpose. Rather, the only purpose disclosed, on taking all of the evidence as a whole, was that the payments that the defendant made were in reduction of the liability she had to the plaintiff with respect to the deposits of VND 6.5 billion to the defendant's Vietnamese bank account.
Based upon those findings, the plaintiff's claim is made out.
I do not consider that the amount owing by the defendant to the plaintiff was payable on a demand. The money owing from time to time was payable without demand. In any event, I find that a law firm engaged by the plaintiff, Horizon Legal, sent a demand letter on behalf of the plaintiff to the defendant on 5 May 2021. To the extent that any demand was required, numerous demands were made by the plaintiff in his SMS messages with the defendant.
The defendant's pleaded position that Vietnam has exclusive jurisdiction over the dispute
For completeness I will briefly deal with the pleaded case of the defendant that Vietnam has exclusive jurisdiction over the dispute and her various assertions that the case should be resolved in Vietnam and not Western Australia.
This involves a brief overview of the legal principles concerning the doctrine of forum non conveniens[40] which is an international private law doctrine that provides that an Australian court may decline to exercise its jurisdiction where it is satisfied that, having regard to the circumstances of the particular case, it is a clearly inappropriate forum for the determination of the proceeding.
[40] Literally, the forum is not convenient.
The relevant legal principles of the doctrine of forum non conveniens were comprehensively summarised by John Dixon J in Kvist v GippsAero Pty Ltd.[41] In summary:
1.A plaintiff who has regularly invoked the jurisdiction of the court has a right to insist on its exercise.
2.The power to stay proceedings on the basis of forum non conveniens is discretionary.
3.The power should only be exercised in a clear case and the onus lies on the defendant to satisfy the court that it is so inappropriate a forum that it would be oppressive and vexatious to continue. The onus is discharged where the defendant persuades the court, having regard to the circumstances of that case, and the availability of a foreign tribunal, it is clearly inappropriate to continue in that court.
4.The court's task is not to 'strike a balance between competing considerations', or to 'weigh all the factors'. Instead, it must focus 'on the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum'. The forum will be inappropriate if it would be oppressive, ie it is seriously and unfairly burdensome, prejudicial or damaging to the defendant; or vexatious, meaning it is productive of serious and unjustified trouble and harassment to the defendant.[42]
[41] Kvist v GippsAero Pty Ltd (2023) 72 VR 226 [42] ‑ [45].
[42] References and citations omitted.
The defendant filed an unconditional appearance in this case. Although a plea was made in her amended defence that Vietnam was the appropriate jurisdiction to deal with the dispute, no application was ever made to stay the proceedings in this court.
The agreement between the parties which was in dispute was made in Western Australia. The appropriate law to apply is the law of Western Australia. The obligation on the defendant to repay money arose in Western Australia. There is no basis to conclude that Western Australia is clearly an inappropriate forum for the adjudication of the dispute.
Conclusion and the orders that should be made
Based upon my findings of fact which I have set out in [74] above, by reference to the issues I have identified in [9], my conclusions are as follows:
1.Agreements were made between the plaintiff and the defendant for the deposits of VND made in Vietnam in April and May 2019.
2.The terms of the agreements made were that in exchange for:
(a)VND 3.5 billion which was paid to her on 19 April 2019, the defendant was obliged to pay the plaintiff $212,121 in Australia.
(b)VND 3 billion which was paid to her on 20 May 2019 the defendant was obliged to pay the plaintiff $185,404 in Australia.
3.Ms Ho deposited the sum of VND 6.5 billion into the defendant's bank account by the two instalments as alleged by the plaintiff on 19 April 2019 and 20 May 2019. Ms Ho made those payments as the plaintiff's agent.
4.The defendant made payments of $286,401 to the plaintiff in reduction of the amounts claimed under the loan agreements as claimed by the plaintiff and not for any other purpose.
The plaintiff is entitled to judgment against the defendant in the sum of $111,134. The plaintiff claimed interest at the statutory rate of 6% per annum pursuant to s 32 of the RSC from 5 May 2021. I will order interest from the date claimed by the plaintiff. Arguably, interest could have been claimed from an earlier date, but I will make orders on the basis of the claim made by the plaintiff.
At the conclusion of the hearing before me I asked counsel for the plaintiff, in the event that the plaintiff's claim succeeded, whether the plaintiff would seek any order for costs other than a normal order that the defendant pay the plaintiff's costs to be taxed if not agreed.[43] Counsel said that in the event that the plaintiff's claim was made out, that would be an appropriate costs order and the order that the plaintiff would seek. I agree with the submission that costs should follow the event. Accordingly, I will also order the defendant to pay the plaintiff's costs of the proceedings, including reserved costs, to be taxed if not agreed.
[43] Namely, that costs should follow the event.
Contemporaneously with the publication of these reasons I will make the orders I have outlined at [83] - [84].
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LP
Associate to His Honour Judge Curwood
18 FEBRUARY 2025
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