Jade Holdings Pty Ltd v Allison

[2014] TASSC 12

[2014] TASSC 12

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Jade Holdings Pty Ltd v Allison [2014] TASSC 12

PARTIES:  JADE HOLDINGS PTY LTD
  v
  ALLISON, Paul Francis

FILE NO:  444/2013
DELIVERED ON:  12 March 2014
DELIVERED AT:  Hobart
HEARING DATE/S:  18 – 20 February 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Evidence – General – Other general matters – Findings of fact – Dispute as to whether payments were by way of loan.

Aust Dig Evidence [15]

REPRESENTATION:

Counsel:
             Plaintiff:  D J Gunson SC
             Defendant:  J P Murphy
Solicitors:
             Plaintiff:  Gunson Williams
             Defendant:  No solicitor

Judgment Number:  [2014] TASSC 12
Number of paragraphs:  34

Serial No 12/2014

File No 444/2013

JADE HOLDINGS PTY LTD v PAUL FRANCIS ALLISON

REASONS FOR JUDGMENT  BLOW CJ

12 March 2014

1. In late 2012 the plaintiff company, Jade Holdings Pty Ltd, made four payments, totalling $50,000, to the defendant, Paul Francis Allison.  The plaintiff contends that all four payments were loans to the defendant, but he denies that.  The plaintiff demanded repayment of all the money, but the defendant refused to pay any of it, contending that he had no obligation to do so.  This is an action for the recovery of the alleged loan debts, together with interest.

2. The dates and amounts of the four payments were as follows:

   18 August 2012  $12,000

   12 October 2012  $8,000

   3 December 2012  $20,000

   6 December 2012  $10,000.

3. The defendant contends that the first two payments were made to him for his labour, and expenses he incurred, in respect of obtaining council approval for a land development project at Lenah Valley.  He contends that the last two payments were made in return for him releasing any claim that he had to a piece of land at 132 Melville Street, Hobart.

4. The principal witness for the plaintiff company was one of its directors, Eddie Ng. His evidence was taken on 21 January 2014 before another judge pursuant to the Supreme Court Rules 2000, r476, because he had a terminal illness and was not expected to be able to give evidence at or after the time of the trial. I therefore do not have the advantage of having seen and heard him give his evidence.

5. His evidence as to the four payments was essentially as follows.  At the time of the payments he had known the defendant for about three to four years.  He was introduced to him by an old friend named Rodney Berry (a witness for the plaintiff at the trial), who had a shop at Glenorchy.  In August 2012 at that shop, the defendant told him that he needed $20,000 urgently to settle an account for his son, who owed the money to a man named Christopher Hill (another of the plaintiff's witnesses).  He was not told what the defendant's son owed the money for.  He did not have $20,000 of his own available at that time, but was able to obtain that amount from the plaintiff company, which he managed, in two instalments.  The company borrowed the money from its bank.  The defendant agreed to pay interest at the rate charged by the bank. 

6. Mr Ng's evidence as to the last two payments was essentially as follows.  The defendant approached him in early December 2012 for a second loan of $30,000.  He approached him several times, both on the phone and in person.  He said that the money was needed to finalise a bill between his son and Chris Hill, but did not say what the bill was for.  One of the conversations leading up to the loan was at the Shamrock Hotel in Harrington Street when a friend of the defendant, Hazel Welsh, was present.  The defendant told him that a house in Melville Street was on the market, and that he would pay him the first $20,000 once it was sold.  He said that if the $30,000 was not paid within a month, he would pay interest again, from the date of the loan.  Mr Ng discussed the request for a loan of $30,000 with his wife, who was a co-director of the plaintiff company. They decided that the plaintiff company would lend the money.  It was paid by way of internet transfers. There had to be two transfers on different days because of a limit on the amount that could be transferred in a single transaction.

7. The defendant contends that the first two payments, totalling $20,000, related to a property at Athlene Avenue in Lenah Valley. The evidence establishes the following sequence of events in relation to that property:

   ·     In the beginning that property was owned by a Mr Patrick Graham, who gave evidence for the defendant as the result of service of a subpoena.  The property was unencumbered. 

   ·     As a result of negotiations between Mr Graham and a man named Peter Johnson, a written contract was made on 14 October 2010 for the sale of the property by Mr Graham to Peter Johnson Earth Moving Pty Ltd "and or nominees" for $500,000, payable 120 days after subdivision approval by the Hobart City Council. 

   ·     Mr Johnson had great difficulty arranging finance for that purchase. 

   ·     A proposal was developed for a syndicate to purchase the property.  The syndicate was to comprise Mr Johnson, a company named Forest Gardens Estate Pty Ltd, and Rodney Berry.  The purchase price of $500,000 was to be advanced as a loan by the Jade Super Fund, whose trustees were the plaintiff, his wife, and his sons David and Julian.  The lender was to take the title to the property on completion of the purchase.  The land was to be subdivided and sold.  The profits were to be divided equally between Mr Johnson, Forest Gardens, and Mr Berry.  Mr Berry was to give a percentage of his profit to Mr Ng.  Mr Ng was also to receive a commission of $10,000 for arranging the finance.  The syndicate members were to make monthly payments of interest since the Jade Super Fund would be borrowing the $500,000 from its bank.  The Jade Super Fund was to have the right to register caveats on the properties of the syndicate members to secure their commitments to pay interest.

   ·     These arrangements were set out in a form of loan agreement prepared by Mr Ng.  In that loan agreement the Jade Super Fund was misdescribed as "Jade Superannuation Funds" and Forest Gardens Estate Pty Ltd was misdescribed as "Forest Garden Pty Ltd".

   ·     The proposed arrangement was not implemented because Mr Johnson was not able to arrange security for the purposes of the proposed agreement.

   ·     Mr Ng entered into negotiations with Mr Graham, the owner of the land.  He persuaded him that his contract with Mr Johnson's company was of no effect because finance could not be arranged.  In truth, that contract remained on foot.  However Mr Graham entered into a second contract on 28 April 2011 for the sale of the property to the plaintiff company for $375,000.  At that time the plaintiff company paid Mr Graham a deposit of $150,000, and he gave Mr Ng the certificate of title.  Mr Graham agreed to that arrangement because he wanted to sell the property in order to generate funds for another development.

   ·     Mr Johnson subsequently insisted on performance of the first contract.  Mr Graham sought legal advice. 

   ·     At that stage Mr Ng drove a hard bargain.  He agreed to return the certificate of title to Mr Graham and abandon the second contract on the basis that (a) Mr Graham would pay the plaintiff company $375,000, and (b) the plaintiff company would refund to Mr Graham the sum of $115,000 in the form of a post-dated cheque.  Mr Graham agreed to those terms in order to bring the matter to a rapid conclusion and avoid litigation.

   ·     Those arrangements were implemented.  The post-dated cheque was subsequently cashed.  The result was that the plaintiff company had made a profit of $110,000 from its dealings with Mr Graham. 

   ·     Mr Johnson took advantage of the provision in the first contract relating to nominees.  The purchase was completed by companies named Torino Trading Pty Ltd and Tradit Pty Ltd.  It seems that neither of those companies had any connection with any of the members of the proposed syndicate, except perhaps Mr Johnson.

8. The result of all this was that neither Forest Gardens Estate Pty Ltd nor the defendant made any money out of the Lenah Valley property, whereas the plaintiff company profited by $110,000.

9. There is evidence that the defendant had some sort of interest in Forest Gardens Estate Pty Ltd.  The evidence as to his interest in that company, and what became of it, is essentially as follows:

   ·     The company was first registered on 8 October 2007.  According to an ASIC search, its original directors were the defendant and Christopher Hill, and the original shareholders were the defendant and C K Hill Pty Ltd, each of them holding one share.

   ·     On 30 June 2008 Mr Hill signed a "Change to company details" form, which was subsequently registered with ASIC.  It showed that the defendant had ceased to be a director of the company, and that C K Hill Pty Ltd had acquired his share.  The defendant gave evidence to the effect that these changes were made dishonestly and without his knowledge.  Mr Hill gave evidence to the effect that the solicitors who registered the company made a mistake; that the defendant was never meant to be a director or a shareholder; and that that was because he preferred to remain in the background.

   ·     Both Mr Hill and the defendant gave evidence that they operated a partnership business through Forest Gardens Estate Pty Ltd.  Mr Hill said they were equal partners.

   ·     Mr Hill also gave evidence, which was neither challenged nor contradicted, that that company was the trustee of a trust named the Forest Gardens Trust.

   ·     The form of loan agreement prepared by Mr Ng and dated 16 April 2011 was worded as if the defendant and Mr Hill had equal interests in the company.  At one point in it they were referred to as "Paul Francis Allison and Christopher Keith Hill of Forrest [sic] Garden Pty Ltd".  They were also named as guarantors of the company.  They both signed the agreement, though other parties did not.

   ·     On 13 November 2012 Mr Ng became a director of the company.

   ·     On 20 May 2013 Mr Hill ceased to be a director of the company, Mr Ng replaced him as the company secretary, and Mr Ng became the owner of the two issued shares in the company.

10. Prior to the collapse of the proposed syndicate arrangements, the defendant had an incentive to work towards the obtaining of subdivision approval for the Lenah Valley property because of an expectation that he or a related entity would receive a share of any profit from the venture through Forest Gardens Estate Pty Ltd, even if his arrangements in relation to that company were informal and irregular.  However the evidence as to what he did in relation to the obtaining of subdivision approval is very thin.  It can be summarised as follows:

    ·     In his evidence-in-chief, when asked whether he had done "the work necessary to obtain subdivisional approval for the land at Lenah Valley", he said, "Yes."  He also said he has spent about $12,000 of his own money seeking that approval.

    ·     Under cross-examination, when asked what work he had done, he replied, "I went to the council.  I submitted an application.  I paid for the council to start proceedings to have it drawn up as a development."

    ·     He gave evidence that he dealt with a town planner named Evan Broadman, and that he took him to the property. 

    ·     He also gave evidence that he made arrangements for Mr Graham to authorise the application to the council.

11. As the arrangements in relation to the proposed syndicate were never formalised, and no contract was ever entered into between the syndicate members, the plaintiff company could not possibly have had any legal obligation to pay the defendant for any work that he did, nor any expense that he incurred, in relation to the Lenah Valley land.  The evidence establishes that Mr Ng was a hard headed and experienced businessman.  I infer that he understood very well that the defendant had no entitlement to payment by him, the plaintiff company, or any related entity.  It is simply implausible that Mr Ng would have arranged for the plaintiff company to pay the defendant for the time that he wasted in relation to the subdivision application, or to reimburse him for any expenditure.

12. Apart from the assertion of a payment of an unspecified amount to the council, there was no evidence as to what the alleged expenditure of about $12,000 related to.  No invoices or receipts were tendered.  I am not satisfied that the defendant in fact spent anything like that amount.  He may have spent some money in relation to the project, but I am not in a position to make a finding as to how much money he spent on it, if any.

13. The evidence as to the land in Melville Street, and as to the defendant's assertion that he had a claim to an interest in that land, can be summarised as follows:

    ·     In the beginning, Forest Gardens Estate Pty Ltd, in its capacity as trustee of the Forest Gardens Trust, acquired some land in Melville Street.  There were three houses on that land, as well as some vacant land.

    ·     The vacant land was used as a car park.  Members of the public rented car spaces on it. 

    ·     Two of the houses were sold, leaving the company with title to a house at 132 Melville Street and the vacant land.  Approval had been obtained from the Hobart City Council for the construction of three townhouses on the vacant land. 

    ·     Mr Hill's company, C K Hill Pty Ltd, had been constructing some units at New Norfolk. That project was financed by a loan or loans that Mr Hill had arranged with Mr Ng.  According to Mr Ng, the plaintiff was the lender.  Mr Hill said he thought that the money was borrowed from both the Jade Super Fund and the plaintiff.  There came a time when the amount owed by C K Hill Pty Ltd was $420,000, and that company was in default in relation to the loan payments. 

    ·     According to Mr Hill, he and the defendant agreed at that time to terminate their "partnership".  He said it was agreed that he would take the vacant land; that that land was taken to be worth $420,000; and that the defendant would take the remaining house.

    ·     According to Mr Ng, it was also agreed that, if the defendant could sell the vacant land for more than $450,000, he would be entitled to receive any proceeds of sale above that figure.

    ·     According to evidence given by Mr Ng, he agreed with Mr Hill that he would take over the vacant land on the basis that it was worth $420,000, in satisfaction of the $420,000 loan debt owed by C K Hill Pty Ltd.  It was agreed that this would be effected by giving Mr Ng control of Forest Gardens Estate Pty Ltd, which was the registered proprietor of the land.

    ·     According to Mr Hill's evidence, that land is still his land in accordance with the agreement he made with Mr Ng, and he has instructed Mr Ng to put it on the market and sell it.

    ·     As I have said, there is evidence that Mr Ng became a director of Forest Gardens Estate Pty Ltd on 13 November 2012, and subsequently became its sole director, its secretary, and its sole shareholder.

    ·     In 2013 the house at 132 Melville Street was sold to a company named Homes Property Investments Pty Ltd.  The sale was completed on 7 May 2013.  The sale price was $420,000.  From the proceeds of sale, $263,195.58 was paid to discharge a mortgage to an entity referred to as MKM Capital, $92,000 was paid to the defendant, and the net proceeds of $40,285.77 were paid to Forest Gardens Estate Pty Ltd.

    ·     According to the defendant, he had invested $92,000 in the Forest Gardens Trust.  He said that that money had been the proceeds of a fire insurance claim in respect of his son's home.  Mr Hill also gave evidence that the defendant had invested $92,000 in the Forest Gardens Trust. 

    ·     On 29 August 2012, before the sale of the house, the defendant registered a caveat against the Melville Street land.  He subsequently withdrew that caveat.  The withdrawal was registered on 13 December 2012.  The defendant gave evidence that he thought Mr Ng wanted the caveat withdrawn so that the house could be sold.  Mr Hill gave evidence that the defendant got the $92,000 from the sale of the house in return for withdrawing caveats.

    ·     The defendant registered a second caveat on 20 March 2013.  An application was made for the cancellation of that caveat.  The Recorder of Titles has the power to cancel a caveat under the Land Titles Act 1980, s136A. That caveat was cancelled on 23 May 2013, after the settlement of the sale of the house.

    ·     Forest Gardens Estate Pty Ltd remains the registered proprietor of the vacant land. 

    ·     Copies of the defendant's caveats were not tendered in evidence.  I have no evidence as to what sort of estate or interest he thereby claimed in the Melville Street land. 

14. On the basis of that evidence it is difficult to deduce what claim, if any, the defendant might have been asserting in respect of the Melville Street land at the time of the payments in December 2012.  He did not give any evidence as to the nature or size of his claim.  His counsel made no attempt to explain to me the nature or size of his claim.

15. During the cross-examination of Mr Hill, there were three occasions when counsel for the plaintiff objected to questions on the basis of irrelevance, and I received the evidence provisionally, reserving my decision as to whether the evidence was relevant or not.  The three pieces of evidence, and my conclusions as to their relevance, are as follows:

    ·     Mr Hill gave evidence to the effect that he gave security for the debt of $420,000, both over his company's New Norfolk property and over another property.  Now that I understand the context of that evidence, I do not consider it to be relevant.  It does not tend to prove anything in relation to the purpose of any of the payments allegedly amounting to loans to the defendant.

    ·     Mr Hill was asked whether Mr Ng threatened to bankrupt him.  He replied, "I don't recall it being put forward that way."  Evidence that Mr Ng did not threaten bankruptcy is of no relevance at all.

    · Mr Hill was asked whether he still owed money to Mr Ng or one of his companies. He said that he did, and that the amount was somewhere in the order of $50,000. I think that piece of evidence could substantially affect the credibility of Mr Hill as a witness, and that the evidence is therefore admissible, falling within the exception to the credibility rule created by s103(1) of the Evidence Act 2001. It is a piece of evidence that should be taken into account in assessing Mr Hill's credibility.

16. I am therefore admitting the third of those pieces of evidence, but not the first two.

17. On 27 December 2012, three weeks after the last of the four payments that this action relates to, the defendant sent Mr Ng a fax headed "OFFICIAL RECEIPT" and "ON BEHALF of the Family Trust".  (The defendant gave evidence that he is the trustee of a family trust named The Russell Red Fanny Trust.)  The fax read as follows:

    "Dear Eddie –

    Simplicity is the Key.

    Deal j ^$20,000           SquareÖ

    Lenah Vally [sic]

    Deal k ^$30,000 Car Park

    SquareÖ

    As Previous Agreed.

    I Will Now Put the House Back on the Market for ^$485,000

    I Will Take over the Responseability [sic] of that Property.

    I Will Keep the Deal Alive For you – IF You Decide You want the House OR Finance.

    Yours Sincerley [sic] P J Allison."

18. The words "$30,000 Car Park Square" obviously referred to the vacant land at Melville Street.  Those words are inconsistent with what the defendant has pleaded in par4(d)(ii) of his defence, which reads as follows:

    "The amounts of $20,000 and $10,000 were paid under an oral agreement between the Defendant and the Plaintiff (or, alternatively, its principal, Mr Ng) whereby the Defendant would be paid $30,000 cash as part payment for the release of any claim that he had to land at 132 Melville Street, New Town [sic]."

19. On 27 December 2012 the defendant wrote that he and Mr Ng were "square" as a result of the $30,000 paid to him, but now he has pleaded that that was only a part payment.

20. When cross-examined about the purpose of the payments totalling $30,000, and whether he was saying it was for work done, the defendant said:

    "Well when I say the work done, your Honour, it took me three or four years to have all that organised and all of a sudden Eddie [Mr Ng] comes in and grabs the lot.  He paid me the thirty thousand dollars for getting a bargain."

1. In re-examination, the defendant asserted that he had been swindled out of his interest in Forest Gardens Estate Pty Ltd by Mr Ng.  I accept that he is aggrieved by the fact that Mr Ng took control of that company, and thus of the Forest Gardens Trust.

2. The plaintiff adduced a number of pieces of evidence which, at least in part, tend to corroborate Mr Ng's assertions that the four payments were all by way of loans, as follows:

   ·     Mr Hill gave evidence that the defendant told him that he had borrowed $30,000 from Jade Holdings to pay off his son's debt.  He said that in answer to a leading question, not objected to, after counsel for the plaintiff had had difficulty leading that evidence from him.  He said he did not remember where the conversation took place, but that it was most likely over the phone. 

   ·     Mrs Welsh gave evidence that she was present at a meeting between Mr Ng and the defendant at the Shamrock Hotel in December 2012; that Mr Ng told her before the meeting that the defendant had asked him for some money; and that she heard the defendant say that he needed the money urgently when they were standing outside the hotel and about to leave.  She did not assert that she heard anything said about the money constituting a loan, or about interest.  She said that Mr Ng said that he would see what he could do.

   ·     Mr Berry gave evidence that he had a conversation with the defendant in March 2013 during which the defendant said, "Eddie gave me a loan".  However he gave that evidence only after he had first given a different version, and I had granted leave under the Evidence Act, s38, for him to be questioned about a prior inconsistent statement, made in a proof of evidence.

   ·     Mr Berry gave evidence as to the second of the four payments – the payment of $8,000 made on 12 October 2012 – to the following effect.  Mr Ng telephoned him, possibly from a bar, and asked him if he could get some money.  He would have said $10,000.  He said, "I need some cash.  I'm short." Mr Berry asked a business partner of his named Joe Goc if he could provide the money.  Some days later, Mr Goc gave him $8,000 in cash.  Mr Berry paid the money into the bank account of his business, Creative Chickens and Meat.  He drew a cheque, did not fill in the payee's name on the cheque, and gave the cheque to the defendant. 

3. Attachment F to Mr Ng's deposition is a cheque butt dated 10 October 2012 recording a payment of $8,000 to "Jade Holdings".  In re-examination, Mr Ng gave evidence that that cheque butt represented money that went to the defendant, which the plaintiff got from Joe Goc and on-lent to the defendant.  I infer that it must be one of Creative Chicken and Meat's cheque butts.

4. When the defendant was served with the writ in this action, he entered an appearance, but failed to file and serve a defence within the required time, and a default judgment was entered against him.  On 22 July 2013 he filed an interlocutory application, without a lawyer, seeking the setting aside of the judgment and a stay of execution on it.  Subsequently a legal practitioner named John Walker began acting for him.  Mr Walker gave evidence at the trial.  It appears that the following sequence of events occurred:

   ·     The interlocutory application was listed for a hearing on 28 August 2013 before Estcourt J, but only in relation to the stay of execution sought by the defendant, not in relation to the setting aside of the judgment.

   ·     Mr Walker prepared an affidavit of the defendant for the purpose of seeking a stay of execution.

   ·     On 29 July 2013 Mr Walker filed a document entitled "Further Defence".  The filing of that document was irregular, since a defence may be filed only when an action is pending, and not when a default judgment is in place.  A copy of that defence was tendered at the trial.  It contains assertions that the payments of $20,000 and $10,000 in December 2012 were "for work undertaken for the Plaintiff between January and August 2012".  Those assertions are inconsistent with what is now pleaded, and with the defendant's evidence at the trial.

   ·     On 28 August 2013 Estcourt J ordered that execution on the default judgment be stayed.

   ·     On 11 September 2013 the defendant went to see Mr Walker, and instructed him to negotiate with Mr Ng about arrangements to pay the judgment debt in full.  He proposed an arrangement whereby he would pay the $50,000 within six months, pay the plaintiff's solicitors' costs, sell the vacant land in Melville Street, and, if the sale price was above a certain figure, retain the amount received over and above that figure.  Mr Walker made contact with Mr Ng by telephone, and discussed that proposal with him using a speaker phone. 

   ·     Later that day Mr Ng sent Mr Walker a fax advising that the plaintiff company would accept the principal sum, interest up to 11 September, and its legal costs, provided the whole lot was paid within six months.  However nothing was agreed as to what was to become of the application for the setting aside of the judgment, which was listed for the coming Friday, 13 September.

   ·     Later that day Mr Walker responded with a fax to Mr Ng.  In that fax he said that he noted that the matter was to be withdrawn from the Supreme Court list on the Friday.  He faxed a copy of that letter to the Court's list clerk.

   ·     The next day, 12 September, Mr Ng responded with a fax to Mr Walker.  He took the point that he had never agreed to the matter being removed from the list for 13 September.  He indicated that he had decided to "rescind" the agreement to give the defendant six months to pay.

5. Mr Walker's involvement in the matter appears to have ended at about that time.  In my view it is significant that, during the weeks that he was acting in relation to this matter, the defendant's focus was on negotiations for the payment of the judgment debt, rather than on trying to get the judgment set aside.  That tends to suggest that the defendant believed he had no defence to the plaintiff company's claims, even in part.

6. In my view the defendant's contentions as to the purposes of the payments to him are simply not credible, for a number of reasons.  The evidence does not suggest that he spent very much time trying to arrange subdivision approval for the Lenah Valley land.  There is no reliable evidence that he incurred any significant expenditure in relation to that land.  The evidence does not suggest that Mr Ng would have had any reason to cause the plaintiff company to pay him any significant amount in relation to that land after it passed into the hands of Torino Trading Pty Ltd and Tradit Pty Ltd.  So far as the final $30,000 is concerned, the defendant has said at different times that that money was for work done, that it was a part payment for an interest in the Lenah Valley land, and that it was full payment for an interest in the Lenah Valley land.  The nature of the asserted interest has never been explained.  There is no evidence that he ever invested more than $92,000 in the Lenah Valley project, and there is evidence that he got that money back.  There is no evidence that the Lenah Valley project was a profitable one.  The defendant's attitude to the default judgment during the weeks that Mr Walker was acting for him suggests that he did not consider that he had a good defence to any part of the plaintiff company's claim.  For all of those reasons, I reject his assertions as to the purposes of the payments made to him.

7. That is not necessarily the end of the matter.  I need to consider whether I am satisfied on the balance of probabilities that each of the four payments was made by way of loan.  In the light of some of the evidence concerning Mr Ng's business arrangements, I think I should treat his evidence with great caution.  In relation to the first payment of $12,000, the defendant gave credible evidence that he used that money to pay some stamp duty and to make a payment of costs to Mr Walker.  That is somewhat inconsistent with Mr Ng's evidence that the defendant said he needed the money to pay a debt owing by his son to Mr Hill.  It is plausible that the defendant might have lied to Mr Ng about his reason for requesting a loan, or that he might have changed his mind about what to do with the money after he received it. 

8. So far as the $8,000 is concerned, there is credible evidence that the defendant received that amount by way of a post-dated cheque from Mr Berry, and that he did not cash the cheque for several months.  That too is inconsistent with Mr Ng's evidence that the defendant said he wanted the money urgently in order to pay his son's debt to Mr Hill.  And the evidence that the $8,000 came from Mr Goc via Mr Berry is inconsistent with Mr Ng's evidence that the plaintiff's bank was the source of both the $12,000 payment and the $8,000 payment. 

9. However there is no evidence that tends to cast doubt on Mr Ng's evidence that the defendant said that the final $30,000 was needed to finalise a bill between his son and Mr Hill.

10. It would be extraordinary if any of the four payments was made either by way of loan, or for the purpose asserted by the defendant, but for some third purpose that has not been mentioned in these proceedings.  Loans aside, all of the transactions arranged by Mr Ng and the defendant appear to have related to business ventures.  If any of the payments in question were made for business purposes, they would probably have been tax deductable, whereas loans made in the circumstances asserted by Mr Ng would not have resulted in any tax deductions being available. There was evidence that the transactions were treated as loans in the records of the plaintiff company.  The corroborative evidence summarised in par[22] above, such as it is, also weighs in the plaintiff's favour. In all the circumstances, I am satisfied on the balance of probabilities that each of the payments was a payment by way of loan.

11. There is every reason to think that Mr Ng would have charged interest, at the rate that his company was having to pay interest. I accept that the first loan was on the basis that the defendant would pay the rate of interest charged by the plaintiff's bank.  I accept that Mr Ng and the defendant agreed that interest would be payable on the final $30,000, and that they meant by that that interest would be payable at the rate charged by the plaintiff's bank.

12. Interest at the rate of 8.67% per annum was claimed in the statement of claim.  Mr Ng's evidence was that the interest rate was about 8.5%.  However the plaintiff company's bank statement for December 2012 is in evidence, and it shows that the applicable interest rate as from 10 December 2012 was 8.47% per annum.  The plaintiff should therefore recover interest at that rate on each sum advanced, from the date of payment until judgment.  The plaintiff's bank probably charged compound interest, but only simple interest has been claimed in the statement of claim.

13. On that basis, I calculate that the plaintiff is entitled to recover simple interest at the rate of 8.47% as follows:

18.08.12 – 11.10.12	54 days on $12,000	$150.37
12.10.12 – 02.12.12	52 days on $20,000	241.34
02.12.12 – 05.12.12	3 days on $40,000	27.85
06.12.12 – 12.03.14	462 days on $50,000	5,360.47
$5,780.03

1. There will be judgment for the plaintiff against the defendant for $55,780.03.