Joseph Manassa v John Chesher

[2000] NSWSC 252

CITATION:	JOSEPH MANASSA v JOHN CHESHER & ANOR. [2000] NSWSC 252
CURRENT JURISDICTION:	EQUITY
FILE NUMBER(S):	SC 4542/1996
HEARING DATE(S):	20, 21, 22, 23 and 24 MARCH 2000
JUDGMENT DATE:	11 April 2000
PARTIES :	JOSEPH MANASSA (Plaintiff) JOHN CHESHER (First Defendant) TONY SAHYOUN (Second Defendant)
JUDGMENT OF:	Simos J

COUNSEL :	G.P. McNally (Plaintiff) J.E. Armfield (First Defendant) D.H. Murr, SC (Second Defendant)
SOLICITORS:	Hunt Musgrave & Peach (Plaintiff) Gulley Helene Scerri (First Defendant) Maurice Marshan (Second Defendant)
CATCHWORDS:	Contract - Held, the plaintiff failed in his claim to one-third of the proceeds of a winning Lotto ticket alleged by the plaintiff to have been purchased on behalf of an alleged three member syndicate of which the plaintiff was a member.
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298 Van Rassel v Kroon (1952-1953) 87 CLR 298
DECISION:	PROCEEDINGS DISMISSED

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SIMOS J

TUESDAY, 11 APRIL 2000

(NO. 4542/96): JOSEPH MANASSA v JOHN CHESHER & ANOR.

JUDGMENT

The Proceedings

Statement of Claim

1   HIS HONOUR: By statement of claim filed 26 February 1998 Joseph Manassa, the plaintiff, claimed against John Chesher, the first defendant, and Tony Sahyoun, the second defendant, that in or about 1982 and 1983 the plaintiff and the first defendant entered into an express oral agreement arising from a conversation between the plaintiff and the first defendant.

2   The statement of claim alleged that the substance of the conversation "relevantly" was as described in paragraphs 9 and 10 of the affidavit of the plaintiff sworn 5 December 1996 which were in the following terms:-

“9. In or about 1982 to 1983 1 had a conversation to the following effect with Mr. Chesher at the Granny flat:-
He said: 'I am going to buy some Lotto tickets each week. Would you like to contribute half the costs and you could have half the winnings?’
I then said: 'Yes.’
To the best of my recollection, I gave to Mr. Chesher an amount of approximately $5.00 at that time.

10. After, that conversation Mr. Chesher would periodically say words to the following effect to me:-
'We have won $20.00 (or $40.00 or $12.00 as the case may be). I will roll it over.’
I would say in response words to the effect of:-
'Yes, that's okay.’”

3   The agreement alleged to have arisen as the result of this conversation between the plaintiff and the first defendant was alleged in the statement of claim to have contained the following terms:-

"The first defendant was to purchase certain Lotto tickets on a weekly basis on behalf of the first defendant and the plaintiff; the plaintiff was to contribute to one half of the costs of purchasing the Lotto tickets; in the event that winnings were received in respect of the Lotto tickets purchased pursuant to the agreement then those winnings were to be equally distributed between the first defendant and the plaintiff; and minor winnings were to be used by the first defendant as a contribution by the plaintiff and the first defendant to the purchase of further Lotto tickets pursuant to the alleged agreement.

4   The statement of claim further alleged that in about 1990 the agreement was varied, the variation being oral and express and having arisen from a conversation between the plaintiff and the first defendant in or about 1990, the substance of which conversation, "relevantly" was as referred to in paragraph 17 of the said affidavit of the plaintiff. That paragraph was in the following terms:-

"17. In or about earlier 1990 1 had a further conversation with Mr. Chesher to the following effect when I visited him at his new flat:
He said.. 'Your brother-in-law Tony is going to share with us in the Lotto now. Is that all right with you?'
I said.. 'Yes.’
I understood Mr. Chesher to mean my brother-in-law Tony Sahyoun.”

5   The statement of claim alleged that the varied agreement included terms that contributions to the purchase of Lotto tickets were "now to be. made" by the plaintiff, the first defendant and the second defendant and that the plaintiff, first defendant and the second defendant were to share in the winnings of any Lotto tickets purchased pursuant to the (varied) agreement.

6   The statement of claim further alleged that in or about 1993 a Lotto ticket which had been purchased by or on behalf of the first defendant pursuant to the (varied) agreement won a prize in an amount of $1,600,000.00, and that the winning ticket was a ticket the cost of which was the subject of a contribution by the plaintiff.

7   The statement of claim further alleged that in breach of the terms of the (varied) agreement the first defendant and the second defendant had wrongfully failed or refused or neglected to give to the plaintiff his share of the winnings received from the winning ticket and claimed relief accordingly.

Defences

8   By their defences the defendants denied the material allegations in the statement of claim but the first defendant admitted that on or about (Wednesday) 14 April 1993 he purchased a Lotto ticket in the draw which was scheduled to take place on (Thursday) 15 April 1993; that the ticket was purchased on behalf of himself and the second defendant; that the said ticket won a prize in the amount of $1,600,000.00. The first defendant also denied that the winning ticket was purchased pursuant to any agreement with the plaintiff and said that the ticket was purchased by him on behalf of himself and the second defendant and denied that the plaintiff had contributed towards the cost of the ticket. The second defendant's defence to the proceedings was substantially in accordance with that of the first defendant.

The Facts

9   The plaintiff, Joseph Manassa, was born in Lebanon and came to Australia in 1979. He is now an Australian citizen. The plaintiff met his wife, Yola, when he arrived in Australia in 1979 and they married in January 1980. The plaintiff’s mother-in-law, introduced the first defendant, John Chesher, and his wife, Jean Chesher, approximately one month after he (the plaintiff) arrived in Australia.

10   The first defendant and his wife lived for a time with the parents of the plaintiff’s wife at a house in Merrylands. They lived there for about three or four years during which time they paid rent. After they left this house they lived in accommodation at various addresses during which time they saw the plaintiff’s wife and her parents from time to time.

11   The first defendant and his wife attended the plaintiff’s wedding and in about 1981/1982, when the landlord of the first defendant and his wife increased the rent of the premises in which they were living, the first defendant and his wife were invited by the plaintiff’s wife to move into a garage which had been converted into a granny flat at the rear of the plaintiff’s house. They stayed in the granny flat for about five years during which time they paid rent and also contributed to the gas and electricity bills. During the time the first defendant and his wife occupied the granny flat at the plaintiff’s house, and before that time also, they became friendly with the plaintiff and his wife and their children, although it appears that they saw more of the plaintiff’s wife and their children than they did of the plaintiff. The first defendant and his wife sometimes acted as baby sitters for the plaintiff’s children and their cousins, and they saw the plaintiff and his wife at birthday parties of the children. They also attended other social functions together. After the first defendant and his wife moved out of the granny flat they saw the plaintiff and his wife and children less frequently.

12   According to the plaintiff, in or about 1982 or 1983 he agreed with the first defendant, at the request of the first defendant, to contribute half the cost of Lotto tickets which the first defendant would purchase on the basis that they would share in any winnings equally. This was denied by the first defendant who insisted that he was never at any time a member of any Lotto syndicate with the plaintiff.

13   Also according to the plaintiff, in about 1990 or earlier the first defendant informed the plaintiff that Tory Sahyoun, the brother-in-law of the plaintiff, was going to join the Lotto syndicate, to which the plaintiff agreed. This is denied by the first defendant and also by Tony Sahyoun, the plaintiff’s brother-in-law, the second defendant.

14   Prior to Easter 1993, the first defendant purchased a Lotto ticket which was in the following Tuesday's draw only (13 April 1993), and which did not win a prize.

15   According to the plaintiff, on Easter Sunday (the plaintiff later agreed that it was Easter Monday) in 1993 he had a conversation with the first and second defendants in words to the following effect:-

"The Plaintiff.. 'Have. you got the Lotto ticket to be drawn tomorrow?’
First Defendant: 'Yes I've got it but it's going to be drawn on Tuesday and Thursday.’
The Plaintiff. 'Why?’
First Defendant: 'Because of the long weekend.’
The Plaintiff.. 'Here is $20.00 towards the Lotto. It is $5.00 on behalf of each of my children. They have been praying to Our Lady that we will win. I have a feeling that we will win $1.5 million this week.’”

First Defendant: 'Don't worry about it. I have already got the tickets for this week. "'

16   According to the plaintiff, he saw the first defendant put the $20.00 into his shirt pocket and then take it out of his pocket and say to Tony Sahyoun, the second defendant, who was also present, words to the following effect:-

"First Defendant: 'Tony here is the $20.00 from Joe for Lotto.’
Second Defendant: 'Yes, no problem.’”

17   The plaintiff’s version of this conversion might, on one view, have supported a claim based upon an ad hoc agreement between the plaintiff and the first and second defendants to the effect that it was agreed that the plaintiff would be entitled to a share in the proceeds (if any) of the Lotto ticket which had been purchased by the first defendant prior to Easter 1993. As stated above, however, that ticket did not win a prize so that even if the plaintiff’s version of this conversation was accepted it would not entitle the plaintiff to any part of the proceeds of the winning ticket which was purchased after Easter on Wednesday, 14 April 1993 (see later).

18   The claim originally made by and on behalf of the plaintiff was based upon this alleged ad hoc agreement but the basis of the plaintiff’s claim was later changed to a claim based upon an alleged syndicate comprising the plaintiff and the first and second defendants which came into existence in about 1990 or earlier, well before the Easter 1993 conversation.

19   As will appear hereafter this changed on the basis of the plaintiff’s claim to a share in the proceeds of the winning ticket is one of the reasons why I have concluded that the evidence of the plaintiff in material respects is unacceptable and that the evidence of the first and second defendants should be preferred (see later).

20   There allegedly followed certain further conversation as set out in the plaintiff’s affidavit of 5 December 1996, and in cross-examination the plaintiff elaborated further on this conversation.

21   According to the first defendant what the plaintiff said on this occasion was "Here is my $20.00 for my share in the Lotto, to which the first defendant replied "It's too late."
22   Subsequently, according to the first defendant, when he and his wife were walking with the plaintiff’s wife to her car to be driven home by the plaintiff’s wife, the plaintiff "pushed $20.00 into my hand” after which the first defendant turned around and gave the $20.00 to the plaintiff’s son, Alan, saying "I don't want it. Give it back to your father". The first defendant and his wife were then driven away.

23   According to the second defendant, the relevant conversation on Easter Monday 1993 was to the effect that the plaintiff said to the first defendant words to the effect:-

"I've had a dream. I’m feeling lucky. In the dream, I won money in the Lottery (or Lotto). Here's$20.00. Put me in it.”

24   According to the second defendant, the first defendant then said "No, we've already put the Lotto in" after which the first defendant looked at the second defendant and the second defendant said "No". According to the second defendant, the first defendant then handed the $20.00 back to the plaintiff who refused to take it, whereupon the first defendant gave it to the plaintiff’s son, Alan, saying words to the effect "Give it to your Dad”.

25   As stated above, for reasons which will appear hereafter, I prefer the evidence of the first and second defendants to the effect that the $20.00 was returned by the first defendant to the plaintiff’s son, Alan, with a request that it should be returned to the plaintiff.

26   As also stated above, on Wednesday, 14 April 1993, the first defendant purchased, on behalf of himself and the second defendant, another ticket for the draw on the following day, namely, Thursday, 15 April 1993, which was the successful ticket which won approximately $1.6 million.

27   The plaintiff alleged that on Thursday, 15 April 1993 and subsequently there occurred various relevant events and conversations to which he was a party, some of which were referred to in his affidavits, and some of which were either not referred to at all in his affidavits or which were referred to in his affidavits but in less detail than he later gave orally.

28   For the reasons which will appear hereafter, in relation to any such events and conversations which are material, I find the plaintiff’s evidence to be unacceptable, and where that evidence is inconsistent with evidence given by the first and/or second defendants I prefer the evidence of the defendants.

29   It is appropriate, however, to mention here, specifically, (other conversations will be referred to hereafter) the evidence of the plaintiff to the effect that at the expiration of approximately eight months after Easter 1993 the plaintiff’s wife said to him words to the following effect:-

“John Chesher told me he is going to give us $90,000, however, because he has locked up his money for one year he is not able to give it to us until that year is over.”

30   The first defendant gave evidence denying that he had such a conversation with the plaintiff’s wife but stated that he did have a conversation with the plaintiff’s wife about three or four weeks after the winning draw in the course of which the plaintiff’s wife said words to the effect “Joe wants $100,000 now" to which the first defendant replied 'I can't give it to you now. It's all locked up.”

31   This evidence was relied upon on behalf of the plaintiff as supportive of the plaintiff’s present claim. In my opinion, however, this evidence is inconsistent with the plaintiff’s present claim. If the plaintiff and his wife had genuinely believed that the plaintiff was entitled to a one-third share of the winnings, it is in my opinion, more likely that the plaintiff’s wife would have asked for the whole of a one-third share in the relevant winnings (being a sum in excess of $500,000) rather than a sum of $90,000 or $100,000. I also infer that the first defendant replied in the manner in which he did, probably because he did not want to offend the plaintiff’s wife and/or because he had certain moneys deposited at interest for a fixed term. Whether or not that be the case, however, the fact is that, in my opinion, what the first defendant did say, namely, I can't give it to you now, it's all locked up" cannot be construed, in all the relevant circumstances, as an admission by the first defendant that the plaintiff was entitled to a one-third share of the proceeds of the winning Lotto ticket.

32   Approximately three months later the plaintiff and his wife consulted a solicitor but no letter of demand was sent because, according to the plaintiff, the plaintiff’s wife stated that she and the children would leave the plaintiff if the plaintiff commenced proceedings against her brother.

33   Thereafter the plaintiff did not consult a solicitor until he consulted his present solicitors in about August 1996, following an alleged incident allegedly related by the plaintiff’s son, Alan, to the plaintiff, to the effect that when the plaintiff’s son, Alan, had asked his uncle, the second defendant, to give to the plaintiff the plaintiff’s share of the winnings so that he could build a new house for the family, the second defendant smacked the plaintiff’s son. This was denied by the second defendant.

34   The relevant letter of demand in relation to the present proceedings was sent on 13 August 1996 by Mr. Ashley Holland, solicitor, of the firm of solicitors presently acting for the plaintiffs, following which the summons in the present proceedings was filed on 23 December 1996, with a statement of claim being filed on 26 February 1998.

The Relevant Approach

35   In cases such as the present the relevant approach has been expounded by Dixon C.J. in Van Rassel v Kroon (1952-1953) 87 CLR 298 at 302-3-4 as follows:-

"When one man agrees with another that he will obtain a lottery ticket for the latter or for the latter and himself jointly the identification of the lottery ticket he acquires in pursuance of the arrangement is likely to present difficulties. The person in whose name the lottery ticket issues obtains the legal title to what is a chose in action. If he is the applicant he obtains the custody of the ticket and is in a position to exercise whatever rights the ticket confers and deal with it as he chooses. If the application is or must be taken to be for the benefit of another or others or of himself and another or others he has the legal title unless the ticket issues in the names of the person or persons beneficially entitled. Otherwise they have nothing but an equitable interest in the ticket and its proceeds if it wins a prize. In other words he becomes a fiduciary agent or trustee. It is not a trust or a fiduciary agency involving many duties or burdens. It is of the simplest kind and the fiduciary obligations flowing from it are few and for the most part negative, that is to say he must do nothing to impair the rights of the persons for whom he holds the ticket. But one of the duties of a person acquiring any piece of property, whether chose in action or corporeal thing, for the benefit of others as a fiduciary is to distinguish the piece of property he so acquires from other similar things which he may obtain for himself or in which he may be interested. This duty has a particular application to the acquisition of a lottery ticket. For a lottery ticket is a chose in action possessing characteristics making the discharge of the duties specially important. When the ticket is applied for it is one of a series, very large in number, no one of which is distinguishable from the others except by the numerals they bear. Every one of them has the same value, a small uniform value. But when the lottery is drawn the value of some of the tickets will become very great indeed while most of the tickets will become valueless. The fiduciary duty is at perfect liberty before the drawing to acquire for himself beneficially any number of tickets in the same lottery as that in which he holds a ticket on behalf of others or of himself and others. It is evident that before the drawing the identity of the ticket which is held for others or for himself and others ought, if he fulfils his duty, to be ascertained so that it is clearly distinguished from those he holds for himself. If there is any confusion, the burden must be upon him of showing which is his property. It could not be otherwise where the duty rests upon him as a fiduciary not to confuse his own beneficial property with that which is subject to his fiduciary obligations and where at the same time his are the hands in which are placed the means of identifying the property.

A ready means of identifying the lottery ticket as that applied for in the interests of others is furnished by the space in the form of application for the name or title of a syndicate. If it is part of the arrangement between the contributors that a given syndicate name should be used then of course all that need be done by the person to apply for a ticket on their behalf is to use that name in the application. If a claim is made against him on the footing that some winning ticket he has purchased is that which he holds as a fiduciary he will discharge the burden of proof thrown upon him by proving that he used the syndicate name in his application for some other ticket. But in reference to the burden of proof, it is important to distinguish between the terms of the arrangement and the identification of the ticket acquired on behalf of the joint contributors. Where a joint contributor relies upon the terms of the arrangement in support of his title to a share or interest in the winning ticket which he asserts was bought on the joint account, the burden is upon him of establishing the terms in question. That is part of the contract or mandate and it is for the plaintiff to prove what the contract or mandate was insofar as it forms part of the title which he asserts. The duty of the fiduciary not to confuse the property he holds in that character with his own beneficial property gives rise to the consequence that the burden of identifying by proof what is his own property rests on him. If it were not so the task of the beneficiaries would be impossible. By what test are they to ascertain what is their property? Are they to set about proving with what intention the fiduciary acquired this or the other ticket? Is he to be at liberty to await the result of the lottery and to allow the identity of the trust property to depend on his own undisclosed or unrecorded intention?” (at pages 302-304).

Evaluation of the Evidence

36   Although the affidavits filed by the parties are not voluminous they differ, as appears above, in many significant respects and, in particular, the first defendant denies that there was ever any agreement as to a two member syndicate between him and the plaintiff as alleged by the plaintiff, and the first and second defendants deny that there was ever any agreement as to a three member syndicate between them and the plaintiff as alleged by the plaintiff.

37   In reply to paragraph 9 of the affidavit of the plaintiff of 5 December 1996 quoted above, the first defendant denied that he had a conversation with the plaintiff in the terms that the plaintiff alleged and also denied that the plaintiff gave him (the first defendant) any money. The first defendant also denied that he had any conversation with the plaintiff as alleged by the plaintiff in paragraph 10 of his affidavit quoted above, and denied that he ever entered into any arrangement with the plaintiff to purchase Lotto tickets. The first defendant, however, gave evidence that he commenced to buy Lotto tickets with the second defendant in February 1991 to which each of the first and second defendants contributed equally and that if they won any money they used it to purchase tickets.

38   The second defendant gave evidence that he could not recall a single conversation in which either the plaintiff or the first defendant said that they were or had been in a Lotto syndicate together, but agreed that he had an arrangement with the first defendant to purchase Lotto tickets as described by the first defendant, except that the second defendant's recollection was that they started buying Lotto tickets together in mid-1991 rather than in February 1991 as stated by the first defendant.

39   The first defendant gave evidence by affidavit that on Thursday, 8 April 1993 he had purchased a ticket for the second defendant and himself in the Lotto draw which was to be held on Tuesday, 13 April 1993 and that that was a ticket registered in his name and cost $14.80. That ticket did not win any prize. The first defendant also gave evidence, however, that on Wednesday, 14 April 1993 he purchased another Lotto ticket for $14.80 for himself and the second defendant for the Lotto draw to take place on the following day, Thursday, and that that ticket won $1,657,190.00.

The Easter 1993 Conversation

40   As stated above, the plaintiff gave evidence by affidavit and orally, (although not referred to in the statement of claim), that on Easter Sunday in 1993 (the plaintiff later agreed that it was Easter Monday 1993) he had a conversation with the first defendant at his (the plaintiff’s) house at Merrylands to the effect that he inquired of the first defendant whether he had "got the Lotto ticket to be drawn tomorrow", to which the first defendant replied that he had "got it” but that it was going to be drawn on Tuesday and Thursday "because of the long weekend". The plaintiff gave evidence, as stated above, that he then said to the first defendant words to the effect:-

“Here is $20.00 towards the Lotto. It is $5.00 on behalf of each of my children. They have praying to Our Lady that we will win. I have a feeling that we will win $1.5 million this week.”

41   According to the plaintiff the first defendant then said words to the effect:-

"Don't worry about it. I have already got the tickets for this week.”

42   The plaintiff says that he then saw the first defendant put the $20 into his shirt pocket and then took it out of his pocket and said to the second defendant words to the effect "Tony here is the $20.00 from Joe from Lotto", to which the second defendant replied "Yes, no problem." In my opinion, this part, at least, of the conversation is highly improbable.

43   There was certain additional conversation on that occasion, according to the plaintiff, related to an alleged occasion when the plaintiff had been playing poker machines at a local club with the first and second defendant shortly before this time, on which day the second defendant used some of the plaintiff’s money to win money on a poker machine, but did not tell the plaintiff, although someone else did. According to the plaintiff, because of these alleged events, when the second defendant said that there was no problem in relation to the plaintiff’s $20 "for Lotto", the plaintiff said words to the effect "We had better get a tape to tape what Tony just said," to which the second defendant replied in words to the effect "Don't be silly. I'm your brother-in-law."

44   The content of this alleged conversation was denied in material respects by both the first and second defendants and, in my opinion, that part of the alleged conversation relating to the "tape" to tape what the second defendant said also seems quite improbable, even if the facts alleged by the plaintiff in relation to the playing of the poker machine at the local club, and. the alleged conversation relating to those events, is accepted at face value.

45   Be that as it may, the first defendant gave evidence that although the plaintiff had said words to the effect "Here is my twenty dollars for my share in the Lotto," and although the plaintiff did in fact give that $20.00 to the first defendant, the first defendant said words to the effect that it was too late to contribute to the ticket because it had already been purchased, and that when the plaintiff refused to take the $20.00 back from the first defendant, the, first defendant gave the $20.00 to the plaintiff’s son, Alan, and telling Alan to give the $20.00 back to his father.

46   The following passages relevant to this issue appear in the transcript of the cross-examination of the first defendant:-

"Q. When did Joe first say that he was part of that Lotto winning ticket?
A. Well, he said he gave me S20.00 on Easter Monday when I come back with the children. On the Tuesday I told him it's too late, because too late. Was two years with Tony and I started. And he's keeping on pushing and pushing in front of me. And he pushed his - put the $20.00 in my hand. I turned round and give it to Alan and say give that to your father back. I didn't want it. And I didn't take the $20.00 with me out the back door.
Q. What did Joe say when he gave you the $20.00?
A. He said 'This is my share for the Lotto.' I said, 'No’ …
Q. What did you say to Joe?
A. I didn't say anything to him. All he asked me did I put the Lotto in for him and I said 'No' ...
Q. But on the evening of Easter Monday 1993 you say he wanted to give you $20.00for Lotto, don't you?
A. I knocked it back
Q. Yes - but you were aware, weren't you, that he was giving that to you and saying that 'This is for the children'. Do you remember him saying that?
A. He did never mention that …
Q. You tell me exactly what you remember Joe Manassa saying to you as he tried to give you the $20.00.
A. Well, he said, 'John, this is my share of the Lotto.’ I said, 'I am sorry, you- I forget the last word - It's too late, too late', because 'We're in it for two years, Tony and I me wife, and no-one else has ever been with us since then …’
Q. Why didn't you want the money from him?
A. Because I've got enough.
Q. But there would have been nothing wrong with taking his money and sharing any winnings, would there?
A. No way
Q. There was nothing to stop you doing that, was there?
A. Well, I've got a good reason. It's not in my affidavit.
Q. What's the reason?
A. Well, when I first moved in there Yola asked me to cut the lawn. I was cutting the lawn. He came rushing up in his red station wagon, a Holden, rushed out - ‘You can't do that. You don't know how to do it.’ I've been in the Council for eleven or twelve years. I know what to do when I cut a lawn …
Q. So what did you say?
A. I went and told Yola and Yola came out and seen it and told him I used to work with the Council .
Q. What happened then?
A. Then I went back on cutting the lawn and then about a week or two he asked me to clean his station wagon out. I cleaned it out and a week later he asked me to do it again and I said 'No I’m tired'. He said 'If you don't do it, I’ll give you a week's notice’ and that's why I don't want him to be in the Lotto with me ever - never, never. That's the honest to God truth ...
Q. I suggest to you that at some stage after you were given the $20.00 by Joe, you showed it to Tony and said 'Joe's giving me $20.00 for Lotto’?
A. No I did not …
Q. Six times you knocked him back?
A. Yeah.
Q. That's Joe Manassa you knocked back six times from the Lotto partnership; is that right?
A. That was on Easter Monday …
Q. ...You knocked him back six times?
A. Six times. The first time when I put my hand on a glass of soft drink, then he came rushing to me and said 'Here's your $20.00’. I put his hand back. I said 'I don't want it' Then I went and talked to Yola for a while. He comes back again. I said 'I don't want it' I repeat that, the words to him, and then I went to Yola I said 'Can I ring up for the cab?’ Yola said, 'No, I’ll take you home'. That was the fifth time. The sixth time, I was going to go and he rushed up, nearly pushed me over, pushed the $20.00 in my hand. I turned around and I said.. 'Alan, take this to your father, I do not want it.' And that's what - all I said.
Q. What did you do?
A. Well, he gave it to his father and his father said 'I don't want it’ ...
Q. It may not interest you, Mr. Chesher, but what I’m suggesting to you is that you that you gave the $2.,00 that Joe gave you to Alan?
A. Yes, and I told Alan 'Tell your father I don't want that any more’.
Q. I suggest to you that the reason you gave the $20.00 to Alan?
A. Yes, and I told Alan 'Tell your father I don't want that any more’.
Q. I suggest to you that the reason you gave the $20.00 to Alan was because you were feeling generous because of your win at the show that day?
A. No.
Q. I suggest to you that Alan had been asking his father for some special kind of ruler for the school?
A. No, Alan didn't say anything to me.
Q. But you heard him pestering his father …?
A. No.
Q. Just a minute. You heard him pestering his father for some sort of special ruler?
A. I wasn't there when that happened …
Q. And if, on Easter Monday 1993, you thought he needed $20.00 to buy something for school, and you could afford to help him out, you would, wouldn't you?
A. No, I told Alan to give it back to his father, 'I don't want it’.
Q. But, if in fact, Alan had wanted something for school that cost about $20.00 and you had some spare money on that day, you would have given it to him, wouldn't you?
A. No, I told Alan to give it back to his father, 'I don't want it'.
Q. But if, in fact, Alan had wanted something for school that cost about $20.00 and you had some spare money on that day, you would have given it to him, wouldn't you?
A. No.
Q. Why not?
A. Because his father gave me $20.00 and I give it back to him. I never took the $20.00 out of the house.”

47   I accept, generally, the evidence of the first defendant as set out above, and have set that evidence out at some length because in the initial stages of the first defendant giving evidence I had, and expressed, some doubt as to whether the first defendant was in fact competent to give evidence having regard, in particular, to the fact that he said in his affidavit that in 1979 he had been assaulted as he was leaving a hotel at Merrylands as a result of which he "suffered severe brain damage", and still experienced numbness in his face, and had not worked since that time but received some compensation and was in receipt of an invalid pension. Having heard the whole of the oral evidence of the first defendant I am, however, now satisfied, that the first defendant was competent to give evidence although his evidence, like the evidence of any witness, needs to be evaluated and may have suffered, like that of any witness, from imperfections in his recollection of events and conversations which took place so long ago. I do, however, accept the substance and general thrust of his evidence in relation to all material issues, including the conversation on Easter Monday at the plaintiffs house. In that connection, and generally, the first defendant gave consistent evidence without hesitation or prevarication, notwithstanding a rigorous cross-examination. Moreover, his evidence in material respects is corroborated by the evidence of the second defendant.

48   The second defendant gave evidence by affidavit that on this day, which seems fairly clearly to have been Easter Monday rather than Easter Sunday as originally stated by the plaintiff, although the plaintiff said words to the effect "I have had a dream. I am feeling lucky. In the dream, I won money in the Lottery (or Lotto). Here's $20.00. Put me in", the first defendant replied with words to the effect “No, we've already put the Lotto in" and then looked at the second defendant and the second defendant said "No". The second defendant in his affidavit also said that when the plaintiff refused to take the money back from the first defendant, the first defendant gave it to the plaintiff’s son, Alan, and said words to the effect "Give it to your Dad." The second defendant was not relevantly shaken in the course of a rigorous cross-examination and his evidence also was consistent and given without hesitation or prevarication and, as is the case with the first defendant, I also accept, the substance and general thrust of the second defendant's evidence on all material issues. The second defendant's evidence was, of course, corroborated in material respects by the evidence of the first defendant.

49   In this connection I also note that the plaintiff agreed that the first defendant did, in fact, give the $20.00 to his son, Alan, but says that it was for Alan "to buy some school requirements." This reason is, of course, relevantly denied by the defendants whose evidence, as I have said, generally I accept, and I would only add that, in my opinion, the plaintiff’s alleged reason why the first defendant gave $20.00 to the plaintiff’s son is highly improbable in the particular circumstances that existed at that time.

50   I also note that in the affidavit of Samir Sahyoun, who was a distant cousin of the second defendant, and who gave evidence on behalf of the plaintiff, there is no mention of that part of the conversation or events relating to the $20,000 on Easter Monday, although the affidavit does contain evidence that Mr. Samir Sahyoun heard conversation about the alleged incident at the local club. Nor is there any evidence concerning the conversation relating to the $20.00 in the oral evidence of Mr. Samir Sahyoun except that he said that when he arrived he saw Joe "in the position of handling his wallet and talking about Lotto."

51   Accordingly, in relation to the relevant parts of the conversation between various persons which took place on Easter Monday at the house of the plaintiff, I find that, although the plaintiff did make an attempt to give to the first defendant the sum of $20.00 "for a share in the Lotto", and although he said words to the effect that he had a dream and was feeling lucky, and that in the dream he won money in the Lottery or Lotto, the first defendant refused to retain the $20.00 given to him by the plaintiff, and when the plaintiff refused to take the $20.00 back from the first defendant, the first defendant gave the $20.00 to the plaintiff’s son, Alan, and asked him to give it back to his father.

52   It follows on these findings that the plaintiff could not have succeeded in any claim to a share in the proceeds of the winning ticket based on this conversation, yet, as stated above, this was the basis of the claim made by or on behalf of the plaintiff from 1993, in effect, until 26 February 1988, on which day the plaintiff’s statement of claim was filed making a claim on the basis that the winning ticket had been purchased by the first defendant on behalf of a long-standing three member syndicate comprising the plaintiff and the first and second defendants (see later).

The Evidence of the Plaintiff

53   As stated above, I do not accept the evidence of the plaintiff in relation to material issues, including the evidence of the plaintiff as to the existence of a syndicate comprising himself and the first defendant, and as to the existence of a syndicate comprising himself and the first and second defendants.

54   Although the plaintiff gave his evidence calmly, and generally speaking, confidently and without hesitation despite language difficulties, I found many of his answers which were inconsistent and uncorroborated, and in conflict with the evidence of the first and second defendants, to be too facile, and to come too easily, to be accepted, in particular, when the plaintiff was confronted with material that had either not been dealt with in his affidavits at all, or which had not been dealt with in full detail in the affidavits. In that connection, in particular, I found the plaintiff’s lack of hesitation in giving his answers, when one would have expected at least some hesitation as he endeavoured to recollect conversations and events which occurred many years ago, a strong indication of his readiness and capacity to invent answers favourable to his case, which in my opinion, is what he did.

55   Examples of what I have described as facile answers from the plaintiff including such answers relating to conversations and/or events many of which were not referred to at all in the plaintiff’s affidavits or which were referred to in such affidavits but not in detail, include the following:-

A.
"Q. Is it correct to say the first time there was any discussion about purchase of Lotto tickets was in or about 1982?
A. Yes.
Q. And at that time you say in your affidavit that Mr. Chesher told you he was going to buy some Lotto tickets each week?
A. Yes, we have conversation.
Q. Now, you remember that conversation in 1982?
A. Yes .
Q. During that conversation there was no discussion as to the type of ticket that he was going to purchase was there?
A. No. Well just normal. Syndicate. That was why usual normal Lotto.
Q. Was there, I think you are aware there are ordinary tickets and there are systems tickets?
A. Was systems, was ordinary. A few times we go for systems , few times no.”

B.
"Q. How were the numbers which were put on the weekly tickets selected?
A. I usually give him three numbers and he pick up three numbers each square, I fill up half and he fill up half.
Q. What is your best recollection of how long this continued for?
A. Best knowledge?
Q. Yes.
A. Because I been paying my share.
Q. How long?
A. When I went to his property I gave him money, yes.
Q. How long did you continue to use this process of selecting the numbers for the ordinary process of you picking three and him picking three?
A. 1982 we selected ticket before I went to Lebanon, that is the last time ...
Q. But in any event you say that you never kept a record of the numbers for any particular draw?
A. I kept one and it has been stolen.
Q. Is that the only one you kept?
A. Yes, I keep it for today but it has been stolen from my house .”

C.
"Q. I want to find out if there is one book or more than one book?
A. One book.
Q. And the only book which existed, was that the book which the numbers which actually won were entered into?
A. No …
Q. Did that book have only winning numbers, or did it have other numbers as well as winning numbers?
A. Only winning numbers
"Q. I thought that you said earlier that this book contained only winning numbers?
A. Yes, there is only winning numbers, but sometime, yes, we do our system, we write a system for us, yes.
Q. Even if it didn't win?
A. Yes, there is some - yes some papers, yes.
Q. Well, is it in the book or is it in some other paper?
A. No, same book.
Q. Were the numbers of the tickets that you and Mr. Chesher selected put in a different part of the book to the numbers for the winning tickets?
A. Yes, we chose different places, not all in the one book, no.
Q. Not all in the one book?
A. No, there is a book full up and we never used it after.
Q. But you just told his Honour that there were entries relating to winning tickets and also entries relating to tickets that you and Mr. Chesher put in, correct?
A. Yes, your Honour, only few numbers like one page or one half page. There is mix-up, yes, but all the rest, all were winner result numbers.
Q. Were the winner result numbers in a different part of the book to that part where the numbers for you and Mr. Chesher were?
A. Yes, there is mix-up, what is lying in the middle or top or the bottom I can say that, yes. There is a mix-up some time, yes .

D.
"Q. How often did you ask him how much money that he was holding?
A. You know, like, I am not ask him every week. Yes, I do ask him, you know, every five months, six, seven months, eight months, something like that . Yeah, I do ask him, put that question across, yes.

E.
"Q. After 1990 you say that Tony Sahyoun became a member of the syndicate, is that right?
A. Yes, he is becoming a member with us as John asked me he is going to put him on.
Q. And at that time in 1990 you didn't have any conversation with Mr. Sahyoun becoming a member of the syndicate, did you?
A. Yes, there is talk, yes.
Q. With Mr. Sahyoun in 1990?
A. Yes.
Q. What did you say to Mr. Sahyoun in 1990?
A. 1990. I told him the story. John Chesher came over and he told me he is going to put Tony Sahyoun as partner for us to help him. I told him 'Why?’ Because Tony Sahyoun lost his business with his cousin and everybody believed Tony, he lost his business but I found out it is not and John Chesher believed he lost everything and he tried to help him and he asked me. First of all I going to say no, but I couldn't say no, I don't want him. I respect my wife at that time. She say 'Keep the secret.' I say 'Yes' and that's why Tony Sahvoun was asked but there is reason I have got to say 'No' and if you asked me, your Honour, I say ‘Why’ ...
Q. How long after he joined the syndicate did you first have the conversation with him about the syndicate?
A. You know, like, I heard completely he is in it now and that is fine for me and one day at Tony's place John Chesher's he said 'We got, I think $46, and Tony, he said, 'How much?' He told him '$46' and John say, 'You have got, I think, ‘$12.40 or $12.60'. I am not sure and John said, 'What do you want to do about this money?’ I told him to, I say ‘I never took any money' and, as before, I always roll my money over and when Tony has asked me he said, 'Yes, I will roll it over too'."
("Q. You said the winning was $40?'
A. $46 that day.
Q. Well, yeah, because he is going to keep some money in Lotto again so he gave $12 for each one and any more than that we save for the Lotto ticket.')
‘Q. I asked you when was the first conversation?
A. Exactly I can't remember when but you know, probably shortly after, one month or something or a few weeks because every day Tony Sahyoun was at my place nearly.
Q. One month after when?
A. After when John told me he was going to put him in and, yeah, something like that, yes.
Q. What did you say to Mr. Sahyoun on that occasion ?
A. You know, just normal. He asked me 'How you pay?’ I say I pay him so and so each month. He say, 'I fix him up too', something like that. Nothing to argue about, that one. ’ “ …
Q. The first conversation you had with Mr. Sahyoun, how long was that after he had become a member of the syndicate?
A. It is about, I think, one week or one and a half week.
Q. What did you say to him about the syndicate on that occasion?
A. I told him 'John told him’, when asked, 'He is going to put you on to help you?’ And he say, 'Yeah, I know, I have been told’ but I wasn't happy, I wasn't happy with Tony Sahyoun being with us. I wasn't happy and deeply I wasn't happy.’”

F.
"Q. After he joined the syndicate you never made any -you never asked him how much money he was putting in?
A. Yes, I do.
Q. When?
A. Exactly after I come back from holiday from Lebanon with my family.
Q. When was that?
A. 1992.
Q. What did you ask him?
A. John told me’Tony pay on your behalf $10’ while 1 am in Lebanon and I asked Tony 'Is that right?' and he say 'Yes' and I try to give him that $10 and he said, 'I used your van for family trips so don't worry.' That is it, that is the only time 1 asked him .’”

G.
“Q. Which conversation was that that you had with Mr. Sahyoun that you were referring to a moment ago?
A. He come over 4.30 (on Easter Monday 1993) and this was not report in there, your Honour, it is not right there, OK? He come over and we sit down outside and I told him 'It's up to God. If by Friday we going to get this money what you going to do, who you going to help?’ He said, ‘Why? I going to fill up my pocket first?’ I say 'Can you help your brother and your Mum and Dad?’ He said, 'No, I am not helping my brother, the pension help him. I might help Mum and Dad.' He asked 'What about you?’ I said 'I am definitely going to help Mum and Dad because they look after me for school for two years. I got one brother in Lebanon. He very poor man because of things there. I am going to help him and I am going to help my family here as they have been praying’ and that's the last conversation and 'I hope up to God' we say, 'We get the money before Friday'? That's the last conversation.
Q. Now, this conversation that you have just told us about is a conversation which is not in your affidavit, is it?
A. It is not in here, I told his Honour but it is true and I can put my hand on the Bible,
Q. What I want to make sure, the conversation you have just told us about is in none of the affidavits you have sworn?
A. Yes, it is not in here, no, but if you want any more information I am ready no problem .”

H.
“Q. Are you seeking to tell his Honour that you believed you were buying an interest in the ticket on behalf of your children which had already been purchased?
A. Yes, that's correct, 100% yes, that's the one.
Q. You say that you were buying on behalf of your children an interest in the ticket which had already been purchased?
A. That's right.
Q. But you well knew that this ticket was a syndicate ticket between yourself and Tony and Mr. Chesher?
A. Yes.
“Q. Do you agree with me the instructions that you gave (to your solicitor) in August 1996 as to when this conversation took place are different to what you have put in your affidavits in these proceedings by a week?
A. Yes there is a difference, yes .
Q. I suggest to you that it is not the type of mistake that you would be likely to make?
A. Yes I done mistake and I say please Ashley Holland if you can help me to find what you call it in English. that date and that is why I think he put Sunday, Easter. …
Q. Further, there is a difference between the instructions you gave in August 1996 in that you then said this event occurred in 1992. In your affidavit you say 1993?
A. Yes I be report to Ashley Holland and there is a mistake .”

J.
“Q. Yes?
A. OK. It is about 9.30 or something like that. My son, he got to go to sleep. Before he went to bed he come back and say he wants $12 for school to buy special ruler for mathematics. I say 'OK.' I took my wallet. I got $I00 note only. I say 'Anyone got change?' No-one got change. Then my wife took $50. John Chesher give back to my wife say 'Anyone have change to make him shut up', my son stop whinging No-one have change. John Chesher took about $600 gave my son a 9.30 $20 'From me to you.' My wife say ‘Why you give my son the money?' We refuse. He say 'Don't worry, nothing to do with anything except me to him. I won $600 on horses.

K.
“Q. When you had this conversation you knew that a ticket had already been purchased by Mr. Chesher is that right?
A. Yes.
Q. You knew that that particular ticket was going to go into the Tuesday and Thursday draw after the Easter Monday, is that right?
A. Yes.
Q. You were not asking Mr. Chesher to buy another ticket?
A. No.
Q. As far as you were concerned the ticket that you believed that you had a pretty good chance of winning was the one which he had already bought?
A. That is right.
Q. And you are quite clear about all of that?
A. Yes.
“Q. When you saw them (the Cheshers) on that occasion (the day following the successful draw) did you ask them how much that you'd won?
A. Yes.
Q. What did they say?
A. He said: 'Full slice, we got the full slice straight away, the numbers no-one else got, jackpot completely, $1.6 million and something yes.’ ...
Q. Can I suggest to you that nowhere in your affidavit have you made any reference to that conversation?
A. No.”

M.
Q. What did you say?
A. I got telephone call from Tony Sahyoun after he received a letter from Ashley Holland. He threat me to kill me and yes, he threat me to kill me ... He said to me exactly words, 'I'm going to send somebody to kill you, to destroy your life. No-one ever find in all Australia. ' I report to police and I took action against him. I dismiss because I haven't got witness on my mobile phone " (This alleged conversation was denied by the second defendant.)

N.
“Q. Is that all you can remember about the conversation you had with Mr. and Mrs. Chesher on that evening?
A. He said: 'Come in, celebrate with us.’ I said 'No, I don't want - I'm not celebrating now because I don't want to be involved with TV channels or anything else, I don't want myself on T.V. ’ ...
Q. Do you remember swearing in paragraph 22 of your affidavit about this conversation that took place on the Thursday night?
A. Yes.
Q. I suggest to you that you don't make any reference in that paragraph to anything about the press?
A. Yes, I did mention that, yes.
Q. You didn't make any reference to a report in that paragraph?
A. Only I mentioned to John, but not on my report, no.
Q. Indeed, can I suggest to you that I reason you gave as to why you weren't going to come across to see the Cheshers that night is a different reason in your affidavit; namely, that you were going to work early the next morning?
A. Yes. I mention that and I say I am gong to work tomorrow, as normal day for me, and I’ll see you later in the afternoon …
Q. ... It is correct to say that it wasn't because you were going to work the next morning that you didn't go over, it was because you didn't want to meet the reporters?
A. Yes. Very important one is for reporters, but I told him to 'I'm going to work as normal day tomorrow and I see you in the afternoon', you know like, 1 see him in the afternoon, yes
Q. Why didn't you say in your affidavit that you told Mr. Chesher that you weren't going to come across that evening because reporters were there?
A. Sorry, yeah, 1 did mention that one in my report.
Q. I’m asking you why you didn't put it in your affidavit?
A. Because I put my hand on the Bible and I can say true in front of you in front of my charge ...
Q. Would you kindly answer my question. My question is why didn't you put in your affidavit that you told Mr. Chesher that you weren't going to come over to his house because reporters were there?
A. It's no reason to mention this matter on my report.

56   A further reason for my regarding the evidence of the plaintiff as unacceptable and unreliable is, as stated above, the consideration that the case now propounded on behalf of the plaintiff and, which was propounded, in effect, for the first time in the statement of claim filed 26 February 1998, is quite inconsistent with the case originally propounded by or on behalf of the plaintiff prior to that date.

57   The case propounded in the statement of claim, as referred to at the outset of this judgment, is to the effect that there was an initial two member syndicate of which the plaintiff and the first defendant were members, followed later by a three member syndicate in which the plaintiff and the first and second defendants were members, and that the winning ticket was purchased on behalf of the syndicate of which the plaintiff, the first defendant and the second defendant were members. Prior to that date, however, the plaintiff’s case from 1993 until, in effect, 26 February 1998, a period of almost five years, had been squarely based upon the alleged conversation relating to the $20.00 which has been referred to above, upon the basis that that conversation gave rise to an ad hoc agreement that the plaintiff would share in any winnings from the Lotto ticket which had already been purchased, equally with the first and second defendants.

58   That this was so is made clear from the original letter of demand dated 13 August 1996, more than three years after the relevant events, from the solicitors for the plaintiff to the first defendant which was in the following terms:-

“1. We act for Joe Manassa. We are instructed: our client provided to you an amount of $20.00 on the Sunday prior to Easter in 1992 and agreed with you that this sum would represent our client's contribution to a Lotto ticket which had been purchased by you and which had not yet been drawn.
2. It was also agreed that the contribution of $20.00 entitled our client to share in any winnings of that ticket with yourself and a Mr. Tony Sakyoun.
3. The Lotto ticket was successful and winnings were received by you and Mr. Sahyoun in an amount of approximately $1,600, 000. 00.
Our client now claims from yourself and Tony Sahyoun our client's one-third share in the amount of $550, 000. We advise that unless this amount is paid to our client within twenty one (21) days of the date of this letter, we are instructed to commence legal proceedings against you for the recovery of that amount without further notice.” (underlining supplied).

59   On 23 December 1996 a summons was filed seeking the following declaration and consequential orders:-

“1. A declaration that the defendants hold the sum of $1,600,000.00 (plus interest) being proceeds of Lotto winnings received by the Defendants in respect of a Lotto draw which took place on 23 April 1993 on trust for the Plaintiff as to a one third share.”

60   Whilst it is true that the plaintiff’s first affidavit sworn on 5 December 1996 refers to the alleged syndicate between the plaintiff and the first defendant, and also to the alleged syndicate between the plaintiff, the first defendant and the second defendant, the fact remains that the plaintiff’s case was originally propounded, not on the basis that the winning ticket was purchased on behalf of the three member syndicate, but on the basis of an alleged ad hoc agreement said to arise out of the conversation as to the $20.00 on Easter Monday 1993, as appears from the letter dated 13 August 1996 from the plaintiff’s solicitors which has been quoted above, as well as from paragraphs 27 and 28 of the plaintiff’s affidavit of 5 December 1996 which is in the following terms:-

"27. Approximately five to six weeks after the ticket was drawn I saw my brother-in-law, Tony Sahyoun. We had a conversation to the following effect:-
He said.. 'I've received my money from the Lotto office from Burwood. John Chesher has his money also.'
I said.. 'What about my share?'
He said.. 'If you're in it you win it.'
I said.. 'Well I was in it. I paid the $20.00.’
My wife: 'Brother, he paid $20.00 in here.
T S said.. 'I can't remember that.’
I said.. 'Well I will call the witness and get him to come over and tell us what he saw.’
28. 1 then telephoned Mr. Emil Dibb. Both Mr. Dibb and his wife were present on the Easter Sunday when I paid the S20.00. Mr. Dibb then drove to my house and arrived. The conversation continued.
I said.. 'Emil, tell Tony what you saw on Easter Sunday about this Lotto.’
Emil said.. 'I saw you give John Chesher $20.00 on Easter Sunday. I saw John tell Tony and you (Tony) said it was all right. If you've got a brain (he was speaking to Tony then) just pay him.’
Tony's wife (Amel) said.. 'I wasn't there when Joe gave you the money, but as Yola and Mr. Dibb say tonight, Tony you should pay Joe .’
Tony said.. 'It's not your business. It's my money and no-one else's.’
Tony Sahyoun then just walked out of the house. As he was leaving my wife said words to the following effect to him: 'Have a think about it and if you can remember give us a call tomorrow.’”

61   The plaintiff’s version of this conversation is to the effect, inter alia, that the first defendant, with the approval of the second defendant, retained the $20.00 given to him by the plaintiff. In that connection, however, I note that, as was submitted on behalf of the second defendant, if, as the plaintiff claims, he had been a member of a syndicate with the first and second defendants since in or about 1990, there would have been no occasion for the plaintiff to offer $20.00 for Lotto unless the first defendant had asked him for a contribution, which he had not. It follows, in my opinion, that the fact that the plaintiff did, admittedly, offer the first defendant the sum of $20.00 on Easter Monday 1993 without being requested to do so, is, relevantly, inconsistent with the plaintiff believing at that time that he was a member of a Lotto syndicate together with the first and second defendant.

62   I note in passing that the following paragraph of this affidavit indicates that it was not until approximately three months after this conversation that the plaintiff went with his wife to see a solicitor at Strathfield.

63   In my opinion, if the plaintiff had genuinely believed that he was a member of a syndicate comprising himself, the first defendant and the second defendant, the original claim made by him, and on his behalf by his solicitors, would have been propounded on that basis. The fact that the claim was not propounded on that basis, in effect, until the filing of the statement of claim on 26 February 1998, has, together with the other considerations referred to, caused me to conclude that the plaintiff did not genuinely believe that he was a member of a three member syndicate as he alleges, and that his evidence to that effect should be rejected.

64   The inconsistency of the plaintiff’s own position is manifested and compounded by certain other considerations which have been referred to by counsel on behalf of the second defendant. As stated earlier, it is alleged in the statement of claim that the winning ticket "was a ticket the cost of which was the subject of a contribution by the Plaintiff”. This contribution was particularised on behalf of the plaintiff in letters dated 7 April 1998 written by the solicitors for the plaintiff to the solicitors for the first and second defendants respectively, as being a payment of $10.00 said to have been paid on Saturday, 3 April 1993 at the plaintiff’s residence. Evidence was given by affidavit from the plaintiff of this payment, not in his original affidavit which was sworn on 5 December 1996, but in a further affidavit of the plaintiff sworn on 8 August 1997, paragraph 6 which is in the following terms (and which in my opinion does not seem probable).

"6. At the time that John and Jean Chesher arrived, we had a cup of coffee. I gave to John $10 and asked him words to the following effect:
I said.. 'Here's $10f or my share of Lotto.’
I then saw him take his wallet out and put the $10 in his wallet .
I said.. 'Has Tony paid you yet? '
John said.. 'Not yet.’
Tony Sahyoun then arrived.”

65   Even more improbable, in my opinion, is paragraph 8 of that affidavit which is as follows:-

"8. After we arrived at the Guildford League's Club, I observed that John Chesher had been away from the poker machines for a while then walked back from the area of TAB. I said.. 'How did you go John? Did you win or lose?' He said.. 'I lost now, but I'll be back again, don't worry, Lotto's under control.’”

66   The improbability, in my opinion, is the words attributed by the plaintiff to Mr. Chesher "don't worry, Lotto's under control", there being no occasion, in my opinion, for those words to have been volunteered, since even if Mr. Chesher had lost on his own account the moneys allegedly given to him by the plaintiff for Lotto, there would be no doubt that Mr. Chesher could and would have made up any amount so lost from other funds.

67   I also note that in the letter of 7 April 1998 from the solicitors for the plaintiff to the solicitors for the defendants, it is particularised that the first defendant personally would ask the plaintiff personally for funds for the purchase of tickets when the first defendant had run out of funds, and also that "The Plaintiff also recalls occasions when his wife had been approached by the First Defendant, and had paid an appropriate contribution to the First Defendant on behalf of the Plaintiff”, and further that "On a few occasions, the Plaintiff’s wife paid amounts to the First Defendant”. However, the plaintiff’s wife was not called to substantiate these particulars, nor did the plaintiff say he was present on any such occasion.

68   I have also had regard to the failure of the plaintiff to call as witnesses his wife, his son, Alan, and Mr. and/or Mrs. Dibb. In my opinion, it is reasonable to have expected that the plaintiff would call those persons to assist his case, his wife, because, inter alia, she could give evidence of the facts particularised to the effect that on occasions she paid the first defendant moneys on account of the plaintiff for the alleged Lotto syndicate, and also as to the reason why the proceedings were not commenced until 1996. Although in relation to this last mentioned matter one might have expected the plaintiff’s wife to have been a reluctant witness, the fact remains that she could have been subpoenaed. It may be noted, however, that the fact that there is no evidence that the plaintiff’s wife did leave him when proceedings were commenced might suggest that, if she did originally threaten to leave the plaintiff if he commenced proceedings, she might subsequently have changed her mind, and this notwithstanding that the evidence suggests that the parties may not currently be living together and that there is an existing apprehended violence order in favour of the plaintiff’s wife as against the plaintiff. I am also of the opinion that the plaintiff could reasonably be expected to have called his son, Alan, who would now be approximately 19 years of age, to give evidence, more especially in the circumstance that if the plaintiff were to be successful in these proceedings, that success could be expected to enure for the benefit of the plaintiff’s wife and the children as well as the plaintiff himself.

69   So far as concerns Mr. and Mrs. Dibb, I am of the opinion that it could also reasonably have been expected that the plaintiff would have called those persons as witnesses since, on the plaintiff’s evidence, they were in a position to corroborate the plaintiff in relation to the conversations on Easter Monday 1993,.as well as the alleged conversation between the plaintiff, his wife and the second defendant approximately five to six weeks after the ticket was drawn on which occasion, according to the plaintiff, both Mr. and Mrs. Dibb were present after being requested by telephone to come (see above). The effect of the plaintiff’s failure, without explanation, to call such persons as witnesses, means that I am, entitled to infer that their evidence would not have assisted the plaintiffs case if called, with the result that I can more confidently make the findings of fact which I have made against the plaintiff: Jones v Dunkel (1959) 101 CLR 298.

70   I have also had regard, inter alia, to the fact that the plaintiff has given three dates at various times on which the conversation relating to the $20.00 occurred. In the letter dated 13 August 1996 from his solicitors to Mr. Chesher referred to earlier, this conversation was alleged to have occurred "on the Sunday prior to Easter in 1992". In paragraph 21 of the plaintiff’s affidavit of 5 December 1996 the relevant date is stated to be "on Easter Sunday in 1993", whilst the plaintiff was prepared to concede in cross-examination that the conversation probably occurred on Easter Monday of 1993.

71   There is also the consideration that, as stated above, many of the matters deposed to by the plaintiff in the course of cross-examination, including important events and conversations, were completely omitted from his affidavit, the omission of which, in many cases, the plaintiff was unable to explain or justify although asked to do so in the course of cross-examination. There is, in addition, the further consideration that in all material respects where there is conflict between the evidence of the plaintiff and the evidence of the two defendants, the evidence of the plaintiff is uncorroborated, with the exception, in certain respects, of the evidence of Mr. Samir Sahyoun, which, in my opinion, when analysed in detail, does not lend support to the plaintiffs case (see later).

72   I have also taken into account the fact that the plaintiff admitted that he had never asked the first defendant how much money the alleged syndicate had won, nor how much the first defendant was holding on behalf of the alleged syndicate, that for 90% of the time the plaintiff left the task of selecting the numbers to the first plaintiff, that the plaintiff did not know in advance the numbers for the draws, that the plaintiff kept no record of the numbers he had filled out, that he would not know that he had won in any particular week and that the plaintiff never received any money by way of winnings. I accept that these considerations might be explicable on the basis that the plaintiff had complete trust in the first defendant, but, nevertheless, in my opinion, the plaintiff’s apparent disinterest in these matters tends to support the conclusion that there was in fact no such syndicate as alleged by the plaintiff.

73   I have also had regard to the fact that, as submitted on behalf of the first defendant, it is inherently unlikely that the plaintiff would have consented to the second defendant joining the syndicate in circumstances where the plaintiff says that he (the plaintiff) distrusted and disliked the second defendant for various reasons.

74   I have also had regard to the fact that, as was submitted, on behalf of the first defendant, it is unlikely that the first defendant would have been prepared to be in a syndicate with the plaintiff because he disliked the plaintiff as a result of the events concerning the mowing of the plaintiff’s lawn and the cleaning of the plaintiff’s station wagon as referred to earlier.

The Evidence of Mrs. Chesher

75   To the extent to which Mrs. Chesher gave evidence in conflict with that of her husband, I prefer the evidence of Mr. Chesher for the reason that I formed the strong impression that Mrs. Chesher, in giving her evidence, was not appreciating what might have been the full significance of the various questions asked of her, but was rather more concerned to give answers which were friendly and accommodating to the cross-examiner. Having said that, however, I note that Mrs. Chesher was also firm and consistent in her answers to the effect that the plaintiff was not a member of any Lotto syndicate with her husband either alone and/or with the second defendant.

The Evidence of Mr. Samir Sahyoun

76   It remains to consider the evidence of Mr. Samir Sahyoun which was relied upon on behalf of the plaintiff as corroborating the plaintiffs evidence. The relevant and admissible portions of Mr. Samir Sahyoun's affidavit of 5 December 1996 were as follows:-

"4. At least one year prior to Easter Sunday in 1993 and when John and Jean Chesher were still living in the Granny flat at 35 Hilltop Road, Merrylands ... I often heard John Chesher say words to the following effect to Joe Manassa:
'We have won $(a figure) from Lotto. I will buy some more tickets next week for us from that money.”
5. I also heard Joe and John discuss what they might do with the Lotto moneys if they were successful. They talked about new houses or cars, or trips.
6. 1 would see John Chesher and Joe Manassa together at least once a month for at least a year concluding on Easter Sunday 1993.
7. On Easter Sunday 1993 1 was present at Joe Manassa's house at 35 Hilltop Road, Merrylands. I had previously, on the same day, had a disagreement with Joe Manassa when Joe said some things to me. I went around to see Joe to talk with him and to be reconciled.
8. I heard on that day adults who were present at that time talk about a recent incident where Joe and Tony and some other people were playing poker machines at a local club ... I then heard Joe say words to the following effect:
Joe: 'Well I’ll have to go and get a typewriter to type out a contract for Tony to sign for our Lotto.’ I then heard everyone laugh.
Tony Sahyoun said nothing in response to that ... As my wife was very ill at the time and I was not seeing many people socially, I did not find out about the Lotto winnings until approximately four months after the ticket was drawn.
9. Within twelve months of the drawing of the ticket I saw Joe Manassa. He said words to the following effect to me: 'My wife has told me she is going to divorce me if 1 try to take Tony and John to Court to get my share.’
10. 1 saw that Joe was crying and was very upset by this.”
(underlining supplied).

77   In supplementary evidence in chief and in cross-examination the substance of this evidence was cut down very substantially. Thus, the following passages appear in Mr. Sahyoun's supplementary evidence in chief:-

"Q. And on any of those occasions do you recall whether there was any conversation involving Joe Manassa and Mr. Chesher in relation to Lotto?
A. In 35 Hilltop Road?
Q. Yes.
A. Well, the only sure thing I can say is that at one of Joe Manassa's birthdays - children's birthdays I was present and I saw money exchanged hands concerning the Lotto.
Q. Well, you say that, but did you hear a conversation at the time the money exchanged hands?
A. Yes - saying, 'This is the money for Lotto.
Q. Right. Doing the best you can who said what and to whom. In other words did Joe Manassa say something to John Chesher?
A. Well, to be honest- precisely I can't say by word and word, I can’t but I did hear the words 'This is money for Lotto.’
Q. Who said that?
A. Joe was the one who gave the money to John.
Q. Did you hear John say anything as Joe was giving him the money?
A. To be sure I don't remember the words.
Q. Sorry?
A. I don't remember any words. There must have been words said but I’m not too sure what the words were. ...
Q. And do you recall any occasions at Warwick Road on which there was a discussion between John Chesher and Joe Manassa about Lotto?
A. Yes. I used to hear John talking nothing except Lottos because his favourite sport is the TAB and Lotto.
Q. Yes. Did you hear a conversation between John Chesher and Joe Manassa in relation to Lotto?
A. A few occasions.
Q. To the best of your recollection what did John say and what did Joe Manassa say in that conversation?
A. Well, I heard John saying on a few occasions how many numbers they got and how much money they won out of that, and they keeping it, you know, in like sort of a pool to buy the next ticket.
Q. Who was he saying that to?
A. John to Joe. Sorry, do you want me to continue?
Q. Yes please.
A. I beg your pardon. And the other times I heard Joe asking John if he needed any money and has he run short of money for the Lotto.
Q. And what did John say in response to that?
A. Well most of the time he said 'No I've still got money from the last win.
Q. Do you recall whether there was ever any conversation between Joe Manassa and John Chesher as to what they might do with any Lotto winnings?
A. At one occasion, yes.” (underlining supplied).

78   The cross-examination of Mr. Sahyoun included the following:-

"Q. You have given some evidence about conversations which you say occurred at Hilltop Road, Merrylands, where you say that Mr. Manassa asked John if he'd run out of money for Lotto tickets; is that right?
A. On one of his children's birthday occasions
Q. Who spoke first on the question of Lotto?
A. All I observed, I’m sure of, the money being exchanged hands, between Joseph towards John that's all I remember.
Q. You can't recollect whether there was a request for money by either of them?
A. It must have been John requested it.
Q. But you've got no independent recollection now of that is that the position?
A. To my impression about John he always talk about Lotto if he need money or he want money - so it must have been him. He asked for the money.
Q. When you say 'It must have been him' it's correct to say that you have got no independent recollection today of who asked for the money is that right?
A. That's right.
Q. You have got no independent recollection of how much was handed over?
A. The house was full of people and children.
Q. I understand that but my question to you is you have no independent recollection of how much was handed over?
A. No.
0. You can't remember what Joe may have said to John, or John may have said to Joe; is that right?
A. Yes.
Q. By that you mean you just have no recollection; is that correct?
A. How could I? How could any person do that?
Q. You gave some evidence yesterday that you had heard some conversations at Warwick Road - do you remember that - conversations between Mr. Chesher and Mr. Manassa?
A. I heard, yes, more than one occasion. …
Q. Can you recollect on any of these occasions who started the conversation about Lotto?
A. I think I mentioned this before, like yesterday, that because of Mr. Chesher's best interests is TABs and Lottos, it must have been him most of the time.
Q. Is it correct to say that you don't have any independent recollection of that; is that right?
A. How could I? …
Q. ... When conversations which you heard through Joe and John took place ...
A. Through the years, yes.
Q. … You didn't pay much attention to them?
A. It was like any other conversation, I suppose, like any other human being I mean, why should I?
Q. You certainly weren't a member of any syndicate with them?
A. No, definitely not.
Q. And you would have had no interest in what was going on; correct?
A. Yes …
Q. And that belief that Joe and John were part of a syndicate was as a result of these conversations that you'd heard at Warwick Road; is that right?
A. With the time - with the years, yes.
Q. Yes.
A. That's what I concluded …
Q. Can you remember what they said (in the conversations at Warwick Road) on the question of the numbers that they had got?
A. My recollection was maybe.
Q. Do you remember anything at the time?
A. Maybe John mentioned four numbers at one stage, yes. …
Q. I suggest to you that you that you cannot recollect a specific conversation about a syndicate between the two of them (John and Joe) ... is that right?
A. Mentioning a syndicate as partners?
Q. Mentioning a syndicate, yes.
A. What, to hear them saying that 'We are syndicate together'?
Q. Yes.
A. No.” (underlining supplied).

79   It can be seen from above that the answers of Mr. Sahyoun in cross-examination were, to say the least, guarded, and that he agreed more than once that he had no independent recollection of the relevant conversations. It is also the case that Mr. Sahyoun gave evidence that the first defendant "talked nothing except Lottos because his favourite sport is TAB and Lotto", so that it may well be that the first defendant was talking about Lotto independently of any conversation between the plaintiff and the first defendant concerning any syndicate.

80   It is also the case that at least at the time of the Easter 1993 conversation Mr. Sahyoun's wife was terminally ill as to which Mr. Sahyoun gave evidence as follows:-

“My late wife was terminally ill. She was blind, had collapsed kidneys and I was doing dialysis for, at times, seven days a week, three times a day. I have got four children on my hands. I left her there, and I said 'I’m going to say happy Easter to Alfred and his late father. I met Joe there, for some reason we had a big dispute, we almost fisted out. He left, then fifteen minutes later I said 'I better go and console him and see what's wrong with him and I went there and I saw the people there and that's what I heard, that's what 1 observed, that's what I remember about the whole occasion.’”

81   The next question and answer were as follows:-

“Q. ...What I’m putting to you is you do not recollect it was Easter Sunday or Easter Monday; is that correct? I observe you shaking your head, but you will have to give us an oral response.
A. Again, I don't know. I’m not too sure which day. It must be either Sunday or Monday .

82   Moreover, in my opinion, the answers given by Mr. Sahyoun in cross-examination justify an inference that he received information concerning the alleged Lotto syndicate from sources other than what Mr. Sahyoun himself heard the plaintiff and the first and second defendants say. For example, although, of course, there is no direct evidence of it, Mr. Sahyoun may have learned of certain matters from Mr. Holland when he was interviewed by Mr. Holland, the plaintiff’s solicitor. In this connection Mr. Sahyoun gave evidence as follows:-

"WITNESS.. Three years passed before I met Mr. Holland. By talking about the case people do remember things, refresh their memories, and now and again when you talk about certain things something like a human reaction 1 remember a bit of things. That's all my - my response to it ...
Q. You have also said that by talking you refreshed your memory of the case; do you remember saying that?
A. At Mr. Holland's office yes by the questions he put to me.
Q. So questions put to you by Mr. Holland had the effect of refreshing your memory of the case; is that right?
A. Some, some.”

83   Be that as it may, Mr. Sahyoun also indicated that he had talked "about this case" with a cousin who was an uncle to Tony Sahyoun as appears from the following passages in his cross-examination:-

“Q. And on that occasion you said you thought it was Sunday or Monday - Easter Sunday or Monday. Had anyone, before you were asked this question by Mr. McNally, told you that there was a dispute as to whether or not this meeting occurred on Easter Sunday or Easter Monday?
A. Yes.
Q. Who?
A. Prior to that?
Q. Prior to being asked the question?
A. There was a cousin, an uncle to Tony Sahyoun, he's one of the family who I associate with all my life, practically since I came from the old country. I admit we used to talk about the case after especially in the last year because I heard about going to the Court definitely but from those circumstances he must have related from somewhere. …”. (underlining supplied).

84   Mr. Sahyoun also gave evidence of a conversation with the plaintiff a few months after Easter day 1993 when he (Mr. Sahyoun) had been on the road somewhere and had been followed by the plaintiff who was driving behind him and the plaintiff stopped and "he mentioned the case of Lotto, saying that his wife was going to divorce him if he proceeded with the Court proceedings …”:-

"Q. What did he tell you?
A. Exactly what I said just then.
Q.. Did he tell you that he'd been a member of a syndicate?
A. Oh yes, he's been denied his share of the winnings .
Q. Who did he tell you he was a member of the syndicate with?
A. At that day he mentioned that he was one of the syndicate when he stopped me on the road ...
Q. He complained to you that he hadn't been paid some moneys; is that right?
A. His share out of the winnings .
Q. And did he on that occasion specificall y allege to you that he was a member of a syndicate?
A. Definitely.” (underlining supplied).

85   It is plain, therefore, that Mr. Sahyoun obtained information about the claim being made by the plaintiff, at least from the plaintiff himself and from a cousin (being an uncle to the second defendant), and possibly, also, from Mr. Holland, the plaintiff s solicitor.

86   That being so, and although as I have said earlier, I am of the opinion that Mr. Sahyoun gave his evidence honestly and to the best of his ability and recollection, I have concluded that the probability is that Mr. Sahyoun has been unable to separate in his mind what he actually heard himself by way of conversation, and what he had learnt from others, including the plaintiff and Mr. Sahyoun's cousin, more especially since Mr. Sahyoun frankly admitted more than once that he had no independent recollection of what was said in the relevant conversations so that he must of necessity have been engaged, at least to some extent, in reconstructing what he believed he had heard.

87   In all the circumstances the evidence of Mr. Sahyoun has not persuaded me that I should alter my conclusion that the plaintiff has not discharged the onus of proving that he was a member of a syndicate comprising himself, the first defendant and the second defendant when the winning ticket was purchased, nor my conclusion that the evidence of the defendants in material respects is to be preferred to the evidence of the plaintiff.

88   Accordingly, for all of the above reasons, and as stated earlier, I prefer the evidence of the first and second defendants to that of the plaintiff in all material respects, with the result that I find that the plaintiff has not discharged before me his onus of proof to the effect that he was a member of a syndicate comprising himself, the first defendant and the second defendant and that the winning ticket was purchased by the first defendant on behalf of that syndicate. It follows that, in my opinion, the plaintiff’s claim, based as it is on his membership of such a syndicate, must be dismissed.

Order

89   For the foregoing reasons the order of the Court is that the proceedings be dismissed and that the. plaintiff pay the costs of each of the first and second defendants of the proceedings.

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Last Modified: 05/22/2001