Le v Nguyen No. DCCIV-02-431

Le v Nguyen
[2003] SADC 125
Judge Herriman
Civil
INTRODUCTION

In this action, the plaintiff (“Le”) seeks declarations that he was, in 2001, in partnership with the defendant (“Tuan”) in a business known as Para Hills Bakery (“PHB”) and that that partnership was dissolved on 8 November 2001. Further, he seeks consequential relief in terms of the appointment of a receiver, the preparation of accounts and equal distribution of the partnership equity.
It is common ground that the business of PHB commenced in September 2001, that its establishment costs totalled $97,000 and that it closed its doors on 8 November 2001. Le says he contributed $47,671.50 towards those costs.
Tuan denies that there was ever any such partnership, saying that the business was his and Le was his employee. Further, he contends, Le contributed nothing towards its establishment costs and that they were all contributed by him (Tuan) or on his behalf. By his counterclaim, he seeks a declaration to that effect.
The business of PHB, in so far as either of the parties was interested in it, lasted for a very short time. It was registered on 31 July 2001, commenced operations on 22 September 2001 and ceased business on 8 November 2001. Those matters were not in contest and, indeed, there was much other common ground:
(1)On or before 26 July 2001, Le and Tuan entered into a Memorandum of Lease with the owner of Shop 9 at the Para Hills Shopping Centre whereby they agreed to lease the premises and operate them as a bakery for an initial term of five years, with a right of renewal (“the lease”).
(2)The business name was registered with the Office of Consumer and Business Affairs in the joint names of Le and Tuan on 31 July 2001 (Ex. P6).
(3)In conjunction with the lease, Le and Tuan were required to provide to the lessor a bank guarantee equivalent to three months’ rental, an amount of $5,751, and they did so through a Portfolio Cash Management Account arranged with Bank SA, Account No. 84064740 (Ex. P3 and P26).
(4)Otherwise, Le and Tuan established in their joint names a trading account with that bank, being Account No. 84063940 (see Ex. P4, P26 and P30).
(5)The outlay for plant and equipment required to establish the bakery was $97,000 and it related to the purchase of plant and equipment and some opening stock.
(6)A substantial proportion of those moneys was paid over to various suppliers in the form of cash. The remaining purchases were by means of cheques drawn on the business account and, even then, that account was supported by cash deposits. The origins of a number of those cash deposits were, however, disputed.
(7)Most, but not all, of the plant purchases were negotiated and paid for in cash by Le, albeit Tuan contended that he or his family supplied the cash.
(8)Following the opening of the bakery, each of the parties worked very substantial hours in it. At trial, there was some slight contention about whether Le worked more hours than Tuan, but this was not of itself a significant issue. Further, it was common ground that Le’s wife and Tuan’s parents worked in the bakery for varying and lengthy daily periods.
(9)Le had previous experience as a baker and in establishing bakeries, whereas Tuan had no knowledge or skill in either of those areas and, indeed, had claimed no experience in running any form of business.
(10)Tuan was to be the person primarily responsible for keeping business records and attending to payment of accounts.
(11)At or soon after the commencement of the business, it was agreed each of Le and Tuan would receive $300 per week by way of wages, Tuan’s parents would together receive $300 per week and Le’s wife would be paid for her work at an hourly rate of $8. The circumstances in which that agreement was reached were, however, disputed. On Le’s account, the $300 was to be a provisional wage “until the business was running profitably” (paragraph 7 of the Statement of Claim). By his Defence, Tuan denied that.
(12)There was no dispute as to the takings of the bakery over the period it operated and these were, indeed, recorded in what was called the “yellow book” (Ex. D10 and D10A).
(13)On 22 October 2001, Tuan withdrew from the business account some $3,000 and did not pay the same amount to Le.
(14)On about 23 October 2001, Tuan withdrew from the business $1,794, which sum was used in part‑repayment of a loan he had obtained from St George Bank. No similar or other capital amount was paid to Le at that time.
(15)In about late October 2001, there was a dispute between the parties. On Le’s account, it related to Tuan’s withdrawal of the said sums from the business. On Tuan’s account, it arose out of Le demanding $40,000 for his services in establishing the business. At all events, by agreement between the parties, the bakery was closed on 8 November and it was later sold.
(16)There is a dispute as to whether Le consented to what happened, but, at all events, the business was sold on 24 December 2001 for $110,000 plus GST and, ultimately, whether under protest or howsoever, Le joined in executing the sale documents.
(17)The proceeds of sale have, by agreement, in part been used to defray certain tax liabilities and, as of 1 November 2002, there was and there has remained in the trust account of Tuan’s solicitors a balance of $97,393.
THE DISPUTE AND THE EVIDENCE
In essence, the dispute at trial concerned two things:
(1)whether or not there was, as Le contended, a partnership formed with Tuan, for the purpose of setting up and conducting PHB.
For Le’s part, he contended that Tuan and he orally agreed to enter an equal partnership, albeit that they did not at that time spell out all its terms. No part of their alleged agreement was reduced to writing.
For his part, Tuan denied that, saying that the business was his and that he had employed Le to set it up and help operate it.
That, at least, was as far as his pleadings went, but as his case was presented at trial, two other issues emerged, namely, the suggestion that his parents had an interest in the business and, further, concessions by his parents that Le had been promised that, when all debts were cleared, he would share in the profits of the business.
I will return to discuss those matters in some detail;
(2)whether Le advanced any, and what, moneys towards the establishment of the business.
For his part, Le said he contributed $47,671.50 by various cash contributions, further saying that these were his equity contributions as a partner.
Tuan’s response was that Le made no financial contributions to the business whatsoever and that most of the capital was in fact contributed by or through his parents, although he put in some of it - once again, all of those contributions being by way of cash.
In the absence of a written partnership agreement and against an acknowledged background of cash advances and purchases, it can readily be appreciated that the determination of those disputes came to be largely decided on the basis of findings as to credit. Even so, such findings were made difficult by:
(1)the absence, in many instances, of corroborating material;
(2)my inability to closely observe the content and the nature of the responses made by witnesses - all but one of them used the services of Vietnamese/English interpreters;
(3)the fact that, at the last minute, Le found himself unrepresented at trial, hence he, too, used an interpreter for the purposes of presenting his case. I have had to do my best to make allowances for that.
I will attempt to summarise the evidence before making findings as to credit and as to facts generally, and reaching my conclusions.
THE PLAINTIFF’S WITNESSES
Trieu Le
Le was born in 1969 in Vietnam and came to Australia in 1986. He was educated to Year 11. He became a baker in 1989 and continued with that trade, in Adelaide, until 1995, when he went to Brisbane to conduct it. He stayed there for five years.
Whilst in Brisbane, he also bought and sold bakery equipment for profit or commission and then became involved in setting up a number of Vietnamese bakery businesses, for which he was paid commissions.
He left Brisbane with his family in April or May 2001 and returned to Adelaide.
Upon returning to Adelaide, he set up a bakery known as the “First Choice Nina Bakery” for his father‑in‑law’s partner, Mrs Lam (“Mrs Lam”). In doing that, he purchased all necessary equipment, arranged and renovated premises, taught staff and worked alongside them for over a month whilst they learned the trade. In return for his services, in July 2001 Mrs Lam paid him a commission of $10,000. It was paid in cash. He produced a document written in Vietnamese (Ex. P1), which was dated 7 July 2001 and which constituted some form of invoice to Mrs Lam for the $10,000 payment.
He then explained his relationship with Tuan and his family.
It had come about through his marriage to his wife Trinh (“Trinh”), which, on other evidence, had been some twelve years or so ago. He had been a member of the Vietnamese Catholic community and Trinh had been a Buddhist. She had wished to convert to Catholicism but needed a godparent. Through a nun in the Catholic community, she had been introduced to Mrs Hon Nguyen (“Hon”), who was married to Mr Van Din Nguyen (“Son”), a leader in that community.
At all events, Hon became Trinh’s godmother. On Le’s account, Hon’s acceptance of that responsibility cast quite limited obligations upon her in terms of Trinh’s welfare, but Hon had a different view about that.
In consequence of that connection, Le and his wife had been well‑acquainted with the Nguyen family for several years.
Hon and Son had a son, Tuan, and he and Le became acquainted over the years. Tuan was a process worker in a factory and owned premises at 6 New Hampshire Drive, Parafield, which he shared with his parents. For their part, Hon and Son had a farming property at Virginia, which they worked each day.
On Le’s account, in about mid‑2001 Tuan suggested they get together and set up a bakery. Tuan was aware that Le knew about baking, whereas Tuan knew nothing. Le said their discussions progressed along the lines that he, Le, would bring expertise and labour to the venture and Tuan would provide labour and attend to the paperwork. He told Tuan that setting up a bakery would cost about $100,000 and that he could, himself, access about $50,000 of that. Tuan said that he, in turn, could borrow the other $50,000. At that point, said Le, they talked only about setting up a bakery, but not about wages or profits.
He then knew of suitable vacant premises at Para Hills Shopping Centre and spoke to a representative of the landlord about it.
At that time, said Le, he had in his possession cash of $25,000 or $26,000, comprising the commission of $10,000 received from Mrs Lam and $15,000 or more in savings retained from his business of buying and selling bakery equipment and establishing bakeries.
He said that, because he and Tuan trusted each other, they each advanced cash towards the purchase of equipment for the business. The larger items were purchased directly with cash contributed by one or the other of them and the smaller items were paid for with moneys drawn from the bank account, which they augmented with cash contributions. As this was done, he said, he kept a record of his advances in a small notebook. He said at trial that he had left that book at home, but he then produced an extract from it, which he had prepared for his solicitor.
He described how, in July 2001, the two of them went to Bank SA and opened in their names a business account for PHB. They later opened another account there in their joint names to support the bank guarantee required by the lessor of the premises and $5,751 was paid into it, representing the required amount of three months’ rental.
He tendered various statements from Bank SA and cheque and pay‑in books relating to those two accounts.
As well, on 31 July 2001, they registered in their joint names with the Office of Consumer and Business Affairs, the name of Para Hills Bakery (Ex. P6).
On Le’s account, one week after the bakery opened, he asked for each of them to be paid $300 a week “(A)nd after that, whenever we conclude the - about every month, whenever we concluded, then we would divide the money” (p.59). He said that Tuan agreed to these weekly payments.
They did not specifically discuss what would happen if the business made a profit, “but everybody knew that, if there was a profit, it should be divided by two” (p.61) and the same would happen were there a loss.
He again referred to the notebook left at home, saying it recorded only the cash he had put into the business, not what Tuan had put in. Because they then trusted each other, he had had no agreement prepared concerning their respective contributions. Tuan began looking after the business accounts from the start, but he (Le) knew in a general sense what had been expended on its establishment, because he had been the one who attended to most of the purchases.
There was then produced a folder of documents and receipts relating to equipment purchases for the bakery and he said he would identify from it who had paid for what.
He said he had then expected that once the business was running profitably, “(W)e would work out and divide the profit into two” (p.64). Otherwise, from the beginning, he had taken responsibility for the baking and Tuan had worked as his assistant and had kept the business records.
The business began trading on 22 September and he and Tuan worked together for about four weeks before there was an argument. In that four‑week period, he was working 15 to 18 hours a day and Tuan, about 10 to 12 hours.
Going back in time then, he said Tuan had usually been with him when they had purchased equipment for the bakery and had helped him as they prepared the shop for opening. They had also gone together to Melbourne to buy equipment and he described his role thus: “I conducted and did everything. Tuan was only a helper because Tuan did not know anything” (p.66).
On the second day of trial, Le produced notebook pages which he said contained his original record of payments made by him towards equipment purchases. He had completed an entry in it every time he paid for something. That document became Exhibit P7 and he also produced a receipt (P8) from the landlord’s agent, saying it was a receipt for the rental deposit made by him on the shop premises.
He then went through the document P7, identifying each and every of the payments or deposits made by him. The payments were generally for equipment purchases and the deposits went into the bank account to ensure it had liquid funds so further purchases could be made.
For present purposes, I do not intend to discuss each of Le’s claimed payments in detail, but it is enough to say that, on his account, they totalled $47,671.50. There was in respect of most, but not all of them, a receipt identifying the payment and on many occasions he was shown as the payer, but, plainly, such documents were not conclusive as to the origin of the cash moneys used.
He then went on to explain how he had acquired the moneys needed to make his own contributions:
(1) He had received the $10,000 commission from Mrs Lam, referred to above.
(2)He had borrowed $5,000 from his brother, Tuan Ba Le, on 10 July 2001, when, according to the confirmatory document (Ex. P19), his address had been 169 Shepherdson Road, Parafield Gardens, telephone 8285 1509. That loan was to be repayable in one year.
(3)He had received funds from three Vietnamese money clubs, comprising two amounts of $6,912 and one amount of $6,990 - a total of $20,814.
Some time was occupied at trial explaining the operations of these and similar money clubs and, indeed, several witnesses were called relating to moneys allegedly received, variously, by Le or members of the Nguyen family from these clubs.
In consequence, it becomes necessary to understand something of the workings of those clubs, known as “Huis”, and, indeed, there was agreed evidence as to their general method of operating.
Each Hui is run by an organiser or “convenor”, who enrols in it a group of usually about 40 people, each of whom acquires one or more than one share in the Hui.
Dates are then set for as many meetings as there are members. Meetings usually occur at the same place, approximately monthly. It is a requirement that all Hui members attend them and bring along with them, usually in cash, a prescribed monthly contribution. That amount is generally $200 or $300 per membership. These contributions are then put into a pot and those present at the meeting bid for the pot then available. Generally, the bid will be for an amount less than its total value and will be expressed as the discounted amount of the monthly individual figure e.g. in a $200 Hui, “$25” is a bid for a pot of $175 times the number of members. The bidding is conducted in ballot form and the highest bidder (or smallest discounted figure) becomes the winner and is usually then paid the pot in cash.
In the life of the Hui, each member can have only one successful bid, but each must attend all meetings, or arrange for attendance, and must pay the regular contribution, whether or not he or she has previously been a winner.
The successful bidder receives not a loan, but a capital sum on which no interest is payable and no repayment is required.
The convenor of the Hui must stand as a guarantor for members who die or cease to attend, but in turn generally gets the benefit of obtaining the first full pool without putting it to a bid.
I return then to Le. On his account, the first two sums, of $6,912, were bids won by him on 15 August 2001 and the third one, on 30 August.
There were produced and tendered by consent, three documents (Ex. P20) relating to those Huis.
(4)Le said that he had also received a commission of $2,796 from selling a set of shop counters for his father‑in‑law, who had a bakery, and he produced Exhibit P24 relating to that.
(5)Finally, he said that he had savings from his business of buying and selling bakery equipment and he identified an amount of $14,700 as the proceeds of one particular transaction. He could not remember all the details of it, but it had occurred in Queensland in November/December of 2000 and he had retained the money in cash as a float. He produced ANZ bank documents (Ex. P25 and Ex. P33) of November 2000, showing a deposit of $15,000 and a withdrawal of $14,700. He said the $15,000 sum constituted the gross proceeds, but he had withdrawn $14,700 in cash and kept it at home. The $300 balance had been required for a car loan repayment.
He then referred to another (National Bank) transaction of 18 December 2000 (Ex. P25), where he had deposited $21,500 and withdrawn $21,420. He said the $21,420 had also been kept in cash as a float for his business of buying and selling equipment.
From all these transactions, he received or had retained cash proceeds so that by July 2001, he had had access to the $46,000 he had then expended.
He went on to discuss the events of 23 and 24 October 2001, the dispute which ended the relationship. At that time, he said, he was shown by Hon the yellow notebook (D10/10A). He had later copied it to study.
He had then noticed two entries in it:
(1)a payment from the business account of $3,000, which was to fund contributions made by Tuan or his family to four Hui memberships between 5 and 13 October 2001. He had not previously known about that payment and considered it improper, as the moneys were partnership funds and he had never agreed to the payment;
(2)it was likewise with a payment of $1,794 from the business account to Tuan. He had not previously known of it and when he challenged Tuan about it, he was told it had been used to pay his mortgage. He (Le) had not consented to that.

He had not seen the yellow book before it had been then shown to him by Hon, nor been aware of these payments. Accordingly, on the evening of 24 October, he went to the Nguyen house. Tuan and his parents were there. He told them he was not happy about the situation. He asked Tuan to pay the moneys back into the business account.
Not much more happened that night, he said, but on the next day he saw Tuan at work and they argued a lot. Hon also argued with Trinh. He said that he told Tuan that if they wanted to continue to operate the bakery, only the two of them should work there and all the money should be put in the bank. Tuan disagreed.
He said that Tuan’s solicitor then arrived and told him to find his own solicitor. Subsequently, there were meetings between solicitors, but nothing was agreed and the bakery was closed. That was on 8 November 2001.
With respect to the pleading in the Defence asserting that, in late October, he (Le) had demanded $50,000 for advice given in the establishment of the business, he denied it, saying, however, that he had then demanded such a sum be repaid to him because it represented the capital he had contributed to the business.
At that point in his examination, the defence applied to amend its pleadings to allege that the demand then made by Le was for $40,000 and not $50,000. I permitted that amendment, albeit that Le contended that it was not “in accordance with the truth” (p.134).
During the course of his evidence, Le referred to the fact that he and his wife Trinh were separated, albeit that she had worked in the bakery over the relevant time.
With respect to paragraph 12 of the Defence, Le said that he did not hear anything said by Tuan, at a meeting of all parties and their solicitors, to the effect that there had never been a partnership and all he remembered was that Tuan’s side had said that the business had to be closed down.
I was then referred to correspondence between solicitors for the parties, which became Exhibit D5. In that correspondence, it appeared that Tuan had denied the existence of a partnership, but had gone on to say, with a reservation of rights, that he called for a dissolution and, if necessary, the appointment of a receiver.
At that point, I queried with the parties the purpose of the proceedings, given that the margin between the moneys advanced to establish the business ($97,000) and its ultimate sale price ($110,000) was a relatively small amount and bearing in mind that the only relief sought in the action was a winding up order.
It then emerged that both parties also wished to have determined, in the action, the question of who contributed each of the payments totalling $97,000 to set up the business. I expressed some reservations about making findings on that issue, given the state of the pleadings. In the event, Tuan then sought to amend his Defence to add a counterclaim seeking a determination of that question. I permitted the amendment, but was still not persuaded that the pleadings would necessarily lead to a determination of that kind. Nevertheless, as the trial had, by then, proceeded for some time and as the partnership issue remained a live one, the hearing proceeded.
I return then to the solicitors’ correspondence. Le said that the position was that Tuan wanted the business sold and he (Le) wanted to buy it, but he could not readily find the money. Ultimately, Tuan went on and sold it unilaterally and Le was told by his solicitor that he would be obliged to join in the sale. He did so, apparently under protest.
Le was then given a substantial adjournment to have translated to him that solicitors’ correspondence. At the conclusion of the adjournment, he had this to say:
“I put my money into the business and the other side also put money into the business. I looked after the technique of baking and the other side, Mr Nguyen, looked after accountancy and paper work regarding the business, and as far as these documents are concerned, these documents are exchanged between my lawyer and Mr Tuan’s lawyer and these documents only came into existence after the incident and in relation to our business” (p.157).
He went on to say that there were allegations in the correspondence which were not true.
That concluded his evidence‑in‑chief.
In cross‑examination, Le agreed that he had been married in about 1990. He said he had not met Hon and Son simply through Hon agreeing to become Trinh’s godmother. They had all been members of the same church community, anyway. He agreed that he and Trinh had called Hon and Son “Mum and Dad” and said that was because the Nguyens had asked them to. Normally, in their culture, godparents were called “Grandmother and Grandfather”. It was customary, however, because his wife adopted the other mode of address, for him to follow it.
He agreed that he had helped set up three bakeries in Queensland, but had not become involved in dealings over the acquisition of their premises. As part of his services, he had advised them on necessary plant and equipment purchases and had often purchased them, usually obtaining a commission on each transaction.
He was referred to the transaction for $15,000 on 27 November 2001 and said that that was one in which he had sold goods owned by him, hence all the proceeds had belonged to him. On other occasions, when he himself did not have the equipment, he would simply arrange to sell it on behalf of the supplier and receive a commission for doing that. The $15,000 transaction was not the biggest one in his bank account, as he had subsequently been involved in one for $21,500, but it had been the biggest one up till then.
He was referred to the bank statement relating to the 27 November transaction and which referred to a “cash cheque” in the sum of $14,700 being given to him. His response was that he did not understand what the bank had done, but he was sure he had withdrawn the money in cash and not in the form of a cheque. It was put to him that it was in fact a transaction involving a payment in and a payment out and a $300 commission for him. He denied that. The $300 was left there, he said, to repay his car loan.
After receiving the $14,700 proceeds, he had had cash savings totalling $26,000 or $27,000.
He was then asked about two credit cards in his name, an ANZ Telstra Visa card and an AGC card. He said he had had four cards altogether.
With respect to the ANZ Telstra Visa card, he said its ordinary credit limit was $2,000, but it had gradually increased to $3,000. He said that by November of 2000, there were times when he had needed money and he had used the card to obtain it. As to fluctuations in the amounts owing on that card between July and December of 2000, he could not remember them because, at times, he gave the card to his wife and he did not know what use she made of it. He knew she went to casinos and agreed he, himself, went “(E)very now and then” (p.169).
It was then put to him that the ANZ Telstra Visa card had remained at its credit limit for the last six months of the year 2000, and he was then shown a bundle of bank and Visa card statements (Ex. D6) and references in them to withdrawals of money at the Adelaide Casino. He said those withdrawals had been made by his wife: “Most of the times my wife would keep my credit cards. It was not a long time later when I detected that my wife went to the casino, then I took them back” (p.170).
He agreed that from July through to December 2000, the card account had been at its limit and that most of the entries had related to casino withdrawals. He was challenged as to why, if the card account had been continuously in debt, he had kept $25,000 in cash at home. He said the money he had had at home was his own money and that he had given the credit cards to his wife. He had not seen the statements as they came in and expected that she had received and dealt with them. He did not know that as of December 2000, the Visa card was over its limit.
He had kept the $25,000‑odd in cash under the cupboard at home, albeit he had used some of it for everyday expenses.
The December 2000 transaction relating to $21,500 did not relate to proceeds which he had retained fully. He had bought an oven for $19,000 and sold it for $21,500. The margin, only, had been added to his savings.
He said he knew nothing about a credit of $3,000 in the AGC MasterCard account dated 19 December 2000 because, once again, that card had been in his wife’s possession. The withdrawals on it from the casino were likely to have been made by his wife.
He had not known in late 2000 that such debts had arisen and that these amounts were owing on his credit cards.
He had used his own moneys to pay for family expenses and commented:
“... this is my own business, but I now have to tell him, it is because of this: I had to separate from my wife. I only knew that my wife went to the casino to gamble. So, I only gave her the cards and every now and then I would give her some money and that was it.” (p.179).
He said that perhaps on a few occasions he had withdrawn money at the casino for his wife, but that was all. Whether he went with her to the casino depended upon how busy he was, but if he went, he would simply drink there.
He was asked about coming to Adelaide with his family in time for Easter 2001. He was vague about when he came here and whether he came first with his family, but on being referred to his ANZ Simplicity Account, agreed that there were withdrawals at a casino in Brisbane in March 2001 and then a card entry at Woodville North in South Australia on 20 April. He said he recalled coming to Adelaide alone at about that time, his wife and children remaining in Brisbane. He had withdrawn $300 at the Adelaide Casino on 20 April to lend it to somebody. At that time he had had substantial savings in cash hidden under the furniture in Brisbane, but nobody knew about it, including his wife.
On the next morning of the hearing, he was able to inform the court that he had come to Adelaide before his child’s birthday in 2001, so it must have been before April.
He went on to say, without objection from the defence, that the ANZ Bank had informed him that when cash moneys were withdrawn from an account, there was often a reference in terms such as “cash/cheque”.
He was then referred back to an ANZ Bank Simplicity Account and agreed that between January and April 2001, he had only ever had moneys in excess of $315 in it on two occasions. He said, however, that it was a card used by his wife and that the withdrawals and deposits in it were hers.
He was asked about being at a party for Hon in Adelaide on 25 February 2001 and he recalled that. He further agreed that by Easter‑time in that year, he and his family had moved back to Adelaide.
When they had arrived here, his wife and children had stayed with her father, Mr Cuong, and his wife, Mrs Lam, at 24 Torrens Crescent, Pennington. He had stayed with his eldest sister at 22 Le Hunte Street, Kilburn, albeit that every now and then he had stayed at Mr Cuong’s house, to play with his children.
He agreed that in May 2001, he had participated in a marriage guidance course with his wife.
He was then referred back to the ANZ Simplicity Account and agreed that between April and July 2001, the credit level in it had never exceeded $316.42. He said that the purpose of the account was merely to receive a weekly contribution of $300, so that weekly car repayments of that amount could be made directly from the account.
He was challenged that both his Visa and AGC MasterCard lines of credit were fully drawn for the period January to June 2001, in one case to $3,000 and, in the other, to $7,000. He did not dispute that and said that his wife was operating those accounts and he did not know anything about them.
He was then tested on the $10,000 commission paid by Mrs Lam. He said it was for teaching her the baking trade and working with her over four weeks when the bakery had commenced. He thought he had actually worked on for another week and had been paid at the end of that period. He did not receive that sum in November 2001, as was suggested to him. He was asked where he was and who was present when he received the $10,000 payment from Mrs Lam, but he could not recall.
He said that ultimately, when the business fell apart, it was not he, but his friend Hoang Phi Long, who became interested in buying the bakery and that same friend had loaned him money to spend on legal fees.
He was tested on where he was living whilst he worked with the First Choice Nina Bakery. He thought he had only stayed with his in‑laws for a number of days or perhaps a week.
It was put to him that in mid‑June 2001, when he was still working at that bakery, he had telephoned Hon and told her that his wife had been asked to leave Mr Cuong’s house. He denied such a thing happened.
It was put to him that Hon invited him, his wife and children to stay at their house, but he denied that and denied accepting any such offer.
It was suggested to him that from mid to late June, he and his family stayed with the Nguyen family for about three weeks. He denied such a thing had happened.
It was suggested to him that during that period, he told the Nguyen family that he had been dismissed from the First Choice Nina Bakery, was out of work and had no money. He denied that.
Further, he denied Hon and Son then said they did not want Le and his family to return to Queensland and be away from their families and relatives. He said that there was not so strong a relationship between his family and Trinh’s godparents as had been described. It was not the same as natural parenting, he said, they had just helped somebody being converted to the Catholic faith.
It was put to him that Tuan and his parents had then said they would raise money to enable a bakery business to be set up. His response was:
“Well, such a thing occurred when Tuan and myself discussed about opening a bakery and we would be in partnership with each other in such a business ...” (p.199)
It was suggested to him that the Nguyens told him they could borrow from friends and Huis and that Tuan could mortgage his house to raise moneys for a bakery. He said he did not know about that, it might have been a matter discussed between Tuan and his parents, but he added: “As far as the business is concerned, I was in partnership with Tuan in that business” (p.199).
It was put to him that he had been told, by Hon, that he would be paid $300 a week as a head baker. He denied that. The $300 weekly payments were his decision, he said, taken a week after the bakery opened. As Tuan’s parents were then helping out at the bakery, they were also paid $300. He denied such a payment had ever been discussed before the bakery opened.
He denied that he, his wife and children lived with the Nguyens for a period of three weeks, whether in June or July 2001.
It was suggested that the Nguyens had helped him find the house at 169 Shepherdson Road, Para Hills. He said there was some truth in that because the Nguyens had heard of it through a friend and took him there to inspect it: “My wife was the main tenant of that rental property, and it was just a property for us to rent to live” (p.201).
It was put to him that at the time of the loan from his brother identified in the document P19, he was not yet living at Shepherdson Road (as the document inferred), but with the Nguyens. He denied that.
He was then taken to a number of phone calls made from Tuan’s home telephone to various interstate numbers. He agreed he had made the calls. They had been in connection with the purchase of equipment for the bakery. They had been made as a result of his visiting Tuan’s house to discuss the purchase of equipment. He commented:
“I do not remember that I was staying there. I don’t think that I was staying there. I did stay overnight there for one or two days but I’m sure that it was not on this date.” (p.204)
Later, he said that he stayed there for two or three days (p.205).
He was tested on the trip that they both took to Melbourne. He said it was to buy bakery equipment and they had stayed with Tuan’s uncle. At that time, he (Le) was already living at 169 Shepherdson Road, Para Hills.
He was then taken to the ANZ Simplicity Account and commented that in the latter part of 2001 there were payments into it each month of $300 to meet the car repayments. As of 22 September, when the bakery was opened, he had spent all his savings and had only about $100 left.
He was then asked about a deposit of $10,000 into that account on 16 November 2001. He said:
“I don’t know. I don’t know ... It could be the case that I deposited the money that I had borrowed with my wife from the friend, but this is my wife’s money. She might have deposited it. I did not do the deposit. I did not do anything like this.” (p.208)
He denied that it was the commission moneys paid by Mrs Lam.
He was then referred to the $5,000 deposit to that account on 19 November 2001 and asked whether it was the money his brother had loaned him. He denied that and said he had no idea what it was.
He knew nothing about the various withdrawals at the Adelaide Casino.
As to the ANZ Telstra Visa account, it went from a mid‑year debit of $3,000 to a credit by 27 November 2001. He was unable to explain that, saying it could have related to his wife’s winnings at the casino. He could not answer it.
He was tested on the AGC MasterCard, which was continuously drawn to near its limit between June and November of 2001, but which had then received various cash injections, albeit that two substantial amounts were then withdrawn on 29 November. He had no knowledge of any of it, he said. He was not then looking for money to buy the bakery because it was his friend who was in fact wanting to buy it (although he had not disclosed this to the Nguyens).
He considered the bakery had been a profitable enterprise, albeit that it ceased to be valuable once it closed. The plant and equipment, bought for $100,000, would probably have fetched only $40,000 on resale.
He rejected any suggestion he had not contributed to the purchase of the bakery and said that he had set it up, put money into it and spent his time in it. He denied he had wanted it all for himself and that he had forced an argument with the Nguyens over it. The argument had arisen, he said, because they had used the business’ moneys for their private purposes and because he had wanted takings banked, but Tuan would not agree to that.
A series of matters relating to the defence case was put to him and he generally denied them, but he admitted that he had demanded a $40,000 commission from the Nguyen family to reflect his own contribution to the bakery. He thought that if the bakery were to be sold for a low price, he would not get all his money back, so he had wanted to buy it to protect his money. He had been unable to raise the money, however, and it was then his friend who had wanted to buy it.
Cross‑examination then returned to alleged discussions at the commencement of the business. It was put to Le that in those discussions, he had told Hon of his intention to return to Queensland because he had lost his job at the First Choice Nina Bakery, and that he had asked Hon for a loan of $5,000 for this purpose. It was put that her reply was that she would make enquiries. He denied such a conversation.
It was then put to him that a few nights later, Hon spoke to him and his wife, saying she would lend them the $5,000, but, if they wanted to stay in Adelaide, her family would help them and raise the money needed to set up a bakery so that he and Trinh could work there. Tuan could also work there if he was prepared to leave his job. He denied any such thing had been said by Hon.
It was put to him that on the following day, Hon told Le and Trinh that she had not yet been able to obtain a $5,000 loan, but that her family would help if Le and Trinh were prepared to stay in Adelaide. Tuan would leave his job to help out, so would Son, and they could set up a bakery, but they would need his advice to do it. It was further put that he (Le) had said in reply that he would not leave Adelaide if he were given such an opportunity. He denied any such conversation, saying he had discussed all business matters with Tuan only and Tuan had then discussed them separately with his parents.

On one or two occasions there had been general discussions involving the parents, but these were not specific. On those occasions, the parents had said words to the effect that they would assist Tuan. He said, however, that Tuan and he were the only ones who held most of the discussions. Other people voiced their opinions, but did not have a “significant participation” in the matter (p.231).
He denied telling the family that they needed about $50,000 for plant and about $10,000 for opening stock. He said a bakery could never have been set up for less than $100,000. He agreed, however, that he had mentioned that his father‑in‑law, Mr Cuong, had some unused bakery equipment. He denied mentioning any value, however, and said that, in any event, the Nguyens were not interested in it.
He was tested at length on the two transactions conducted with Mr Cuong in late 2000. One related to an oven which he had purchased for $19,000 and sold to Mr Cuong for $21,500, soon afterwards withdrawing $21,420 from his bank account. The second was the sale of a shop counter, in which he had acted as an agent for the vendor, Geddes, and had received a commission of $2,796.
It was suggested to him that the two transactions were in fact single transactions whereby he purchased an item for $14,700 and sold it for $15,000 and purchased an item for $21,420 and sold it for $21,500. He denied that.
He was again challenged that Hon and Son had played a dominant part in discussions about the opening of the bakery, but he denied that, saying that neither they, nor Trinh, were the main participants. The discussions were between him and Tuan. The employment of Hon and Son in the bakery had not originally been planned and had only occurred after it opened. It had always been intended that Trinh would work there, however, because she knew the trade. He said the role of Hon and Son was that they assisted financially, thus enabling Tuan to put in his half of the cost. He had put in the other half of it. He denied that Tuan had made the initial approach to the letting agent and that it had failed because of Tuan’s bad English.
It was put to him that Hon had told him that they would put his name on the lease because that would be good for his family and give more confidence to the letting agent, as he was the experienced baker and could speak better English. He rejected that. It was put to him that Hon said it would also be good for him because it would give him the opportunity to go to the bank to show that he was involved with leasing a bakery and that would give him a credit rating. He denied she had said anything like that, either with respect to that or with respect to the registration of the business name.
He agreed that the Nguyens had looked after their children when he, Trinh and Tuan had gone to Melbourne to buy plant. He had rented the Shepherdson Road property even before they had gone on that trip and recalled driving his children from there to the Nguyens’ place to be cared for. He could not remember whether they had made actual purchases in Melbourne at that time, but they had looked at items. He denied there were later discussions between the two families, including Hon and Son, about purchasing items they had seen there.
He was tested at length over those purchases or deposits which he claimed to have made towards the establishment of the business. It was suggested in each case that whether or not he had participated in the actual transaction or payment, the source of the cash moneys had always been Tuan or Hon. He denied that, saying they were his own moneys. He was aware that Tuan was then entering a record of these expenses on his computer and he saw the screen from time to time, but he was not particularly familiar with computers, nor did he see any entry on it about whose money was being used.
He was asked general questions about their working hours. He agreed that Tuan would pick him up at 1 a.m. and they would go to the shop. He agreed that Son would come to the shop, but he did not know whether it was at 2 a.m. and thought it was at different hours extending between 2.00 and 4 a.m. Son came to assist Tuan. He agreed that Trinh would pick up Hon and they would come to the bakery at about 6.30 a.m. and then Trinh would leave at about 8 a.m. to get the children prepared and off to school at 9 a.m.
Son did not always leave the bakery early and sometimes stayed till 12 noon or even into the afternoon to assist his son. Le denied that Tuan would take him home at about 1.00 or 3 p.m. It might have happened occasionally, but generally he had his own car available and could go home with his wife or by himself. He denied that he and Tuan worked the same hours, saying Tuan left earlier because he could not stay up late at night. He agreed that Trinh and Hon would sometimes stay until closing time at 7 p.m., but their departure times varied. At the end of each day, the money was counted and Trinh was assigned to attend to money generally. If Hon counted, Trinh would be with her. He thought that he generally left the bakery at about the time it was due to close. Hon took the takings home, except for the cash float, but he did not see her yellow book until about 23 or 24 October. Before then, daily takings had been noted on a piece of paper, along with expenditures made from takings.
It was put to him that Hon told him that if he were to write out cheques, she should be told so she could ensure that the bank could cover them. He denied that, saying that he only discussed such a matter with Tuan when a dishonour notice was received from the bank.
It was suggested to him that there was a meeting of the two families at Tuan’s home a week after the bakery opened. He denied such a thing happened. It was put to him that in the meeting, Hon said that the bakery was going satisfactorily, that “‘We can afford to pay wages. We will pay you, Mr Le, $300 a week. We will pay Tuan $300 a week. Myself’, Mrs Nguyen, ‘and my husband will share $300 a week and Trinh we will pay an hourly rate, depending on how many hours she works’” (p.307).
He said he did not know of any such conversation, nor of Hon saying that those wages would be maintained until they could pay back the money that they had put into the bakery. He said it was the first time this had ever been suggested to him. He said he had taken $300 per week for the first four weeks in the bakery and it had been his decision to pay that amount to himself, Tuan and Tuan’s parents. Likewise, it had been his decision to pay Trinh $8 per hour and in the weeks she worked there, she earned about $600 or $700 a week.
It was put to him that at the time he was first shown the yellow book, Hon told him that they were going to take $3,000 out of the business to cover their Hui commitment and Tuan would take $1,794 to repay some of his borrowings. He denied any such thing had happened. He was given the book late at night and he did not then have time to read it. He said that he had had an argument with Tuan about the two payments (not at the time they were made because he knew nothing about them then) on the day or days following the day he was given the yellow book and after he had had a chance to look at it.
It was suggested to him that on the same day he was shown the yellow book, he was also shown a document by Tuan relating to his personal borrowings. He said he recalled a conversation with Tuan about those borrowings, but not being shown any such document. Even so, that conversation had not occurred until after he had had a look at the contents of the yellow book. When he had been first shown the book, Hon had not wanted to give it to him, so he had asked Tuan to bring it to work the next day so he could photocopy it. Tuan had agreed. Before then, there had been no arguments between anybody, save for what he called “ordinary” arguments.
It was put to him that after he received the copy of the yellow book, he told Hon to go back to the farm and that Trinh would control the till. He denied that. He further denied he was critical of Son and Tuan and their work in the bakery.
He agreed that he had said to the Nguyens that the families could not work together, although he was less sure when that occurred.
It was put to him that, in the course of these arguments, he said to Son and Tuan, “‘You can have the bakery if you pay me $40,000’” (p.317). He said that did not occur then, but it did later.
He was then asked about a tape recording of a telephone conversation he had had with Son about this time. He agreed they had had a conversation, although he could not remember the precise time of it. He agreed he had made some remark, in the course of it, to the effect that he suspected the conversation was being recorded.
I delayed further cross‑examination of him on that topic whilst he had the opportunity to listen to an audio‑tape, read a purported transcript and translation of it, and take advice about it. That was ultimately done and he then agreed the tape faithfully recorded some of that conversation, albeit some parts were missing or unintelligible. The transcription and translation then came in as Exhibits D19 and D19A.
There was some cross‑examination involving the origins of the exhibit D12 and its connection with the original document Le said he had prepared relating to his expenditure, namely, P7. D12 had come from his lawyer and he was asked why he had not given P7 to his lawyer. He said that his lawyer had never asked for the original and that, in response to his lawyer’s requests for details of expenditure, he had simply prepared D12 as a summary in more readable form. It was put to him that P7 had been created after the commencement of the trial, but he denied that. He had thought that the documents required for discovery purposes were not so much his own notes and records as the receipts and invoices he had obtained for those expenses and given to Tuan. He had been having difficulty obtaining copies of these.
He was asked why certain of the entries on P7 were crossed out. He was unable to recall, but thought it might have been because they were written out of date order. At all events, he did not regard the crossings‑out as significant. It was something he had done about the time the entries were made.
As to the totals on the back of P7, he said they appeared to be in his separated wife’s handwriting. He pointed to differences between the entries in P7 and the entries in the yellow book.
Cross‑examination then returned to the telephone call. Le agreed that he had spoken to both Tuan and Son in the conversation and that he had raised the question of it being recorded, saying he did not mind, that it did not matter, albeit that he said he did not then know whether it was in fact being recorded. He said he had also asked Son if anybody else was listening and had been told that Tuan and Hon were.
Various parts of the conversation were put to him. He disagreed that he conceded in it that the Nguyen family had contributed $100,000 to the bakery. Having read lines 224 to 229 of the transcript, it did not appear to me to be clear that such a concession had been made.
He denied that, in any part of that conversation, he conceded he had put no money into the bakery.
He denied that on 28 October, he told Son that he required to be paid $40,000 for the work and effort he had put into setting up the bakery, nor had he said it on the morning of 29 October. He agreed that in a phone conversation Son had said he wanted $110,000 for the bakery, including $10,000 to reflect his own contributions, but that was all said in argument.
In re‑examination, Le confirmed that he had put money and effort into the bakery and said that the recorded telephone conversation with Son was an argument and not a discussion. It was incomplete, anyway.
Ba Tuan Le
The plaintiff called his brother, Ba Tuan Le, who said he had loaned Le $5,000 on 10 July 2001 and referred to Exhibit P19 and their two signatures on it.
In cross‑examination, Ba Tuan Le said he had not been repaid that money. At the time of the loan, his brother was living at 169 Shepherdson Road, Parafield Gardens, but the money had been handed over at the witness’ own house at Main North Road, Pooraka. The document was prepared and signed at the time the advance was made and it was not made in November 2001.
Phi Long Hoang
Mr Hoang was called. His evidence related to an advance of $20,000 he made to Le in November 2001. It was made in two amounts of $10,000 in that month. Mr Hoang went on to say that he was himself quite keen on purchasing the bakery.
In cross‑examination, he said the advances were in cash and Le had told him he wished to borrow for possibly buying the bakery or paying his lawyer’s fees.
Thi Han Lam
Mrs Lam was called by Le. She identified document P1 and said that it was Le’s handwriting. It had been prepared when she paid him $10,000. She said she had paid the money to Le after he had finished working for her in July 2001. He had worked for approximately four weeks, although he had stayed on for another week afterwards to help out.
As to P20, she identified it as a Hui record and said she was the convenor of that particular Hui. Mr Le had been a member of three Huis she was running in 2001, although he had had only one membership in each.
She could not remember the dates when Le had won bids in the three Huis, but they were all in August 2001. She had paid him the respective pots in cash and each had been in the vicinity of $6,800. He had told her he wanted the money to open a bakery.
In cross‑examination, she said she was the “step‑wife” of Mr Cuong, the father of Trinh.
Apart from her own copy of the Hui document (Ex. P20), she did not customarily retain any other records of winners. All participants simply trusted each other. When a Hui was ended, she discarded the record relating to it.
She was asked about where Le was living in January 2000. She said he had lived at her place for some time, then lived somewhere else, then he had come back to live there for some further time.
She agreed that whilst Le was in Queensland, he had not attended many of the Hui draws during the 2000 year, but Trinh’s father had put in his contributions in consideration of Trinh financially assisting her two siblings, who were then also living in Brisbane.
Le and Trinh came to Adelaide in about mid‑2001 and began themselves contributing to the Huis. This was about the time she opened her bakery. She said she was still owed money in respect of some of the Huis, including by Le himself.
She was cross‑examined about the First Choice Nina Bakery. She could not remember the exact date of its opening, but the contract had been signed on 30 June 2001 and she thought she had then been in the shop for one week or ten days. She thought Le had worked in the shop for another week after that - this was generally consistent with her claim that the work he had done for her was of a preparatory kind. She said he assisted her for four weeks and she paid him the $10,000 as soon as he finished, but asked him to help her for another week, which he did. She did not pay him from the business account, but from her own money because it was only a commission. She had not claimed it as a business expense because she did not know she could.
She was then referred to P1, which was an invoice of 7 July 2001, and she said she paid Le on that day.
She said that when Le and Trinh came down from Queensland, they lived with her and Mr Cuong, but she could not remember for how long, because many people had come to stay with them at different times. She could not say when they left in relation to the timing of the payment of $10,000.
In re‑examination, she was shown some dockets relating to purchases for the bakery and she identified them as having been made on 8 June by Le himself.
Trinh Huong Thi Le
Le’s wife Trinh was then called.
She said she was Le’s separated wife and they had been separated for two years, or a bit longer.
She had used her husband’s ANZ Telstra Visa card in 2000 and 2001 and all the withdrawals on it were made by her, except that every now and then she had asked him to withdraw cash for her. She was there speaking about a period between July 2000 and November 2001.
It was the same with respect to the AGC MasterCard. That card, too, belonged to her husband, but she was allowed to use it and had done so between December 2000 and January 2002. The withdrawals referring to various casinos in Brisbane, on the Gold Coast and in Adelaide were made by her so she could gamble at those places.
As to the ANZ Simplicity Account, the two deposits of $10,000 and $5,000 on 16 and 19 November 2001 were made by her from moneys loaned by a friend.
Upon their return from Brisbane in 2001, she and the children had stayed with her father, Mr Cuong, at his place in Pennington. She did not know where Le had then stayed. Sometimes he would come to Pennington to visit the children. She did not know what he then did for a living, nor did she know very much about Mrs Lam’s business.
She recalled working in PHB for four weeks in 2001 and being paid $8 an hour by her husband. She was aware there were some arguments in there, but did not have any specific recollection of arguments between her husband and any of the Nguyen family leading to the closure of the bakery.
In cross‑examination, she affirmed they had been separated for “a bit longer than two years” (p.426). She was then asked about the infant child she had brought into the witness box with her. She was reluctant to answer the question until directed, but she then said it was hers and Le’s child and was one month old. She said she and Le had separated after he found out about her gambling. He had left the house and she had had to seek out social security.
She was asked whether she was still receiving social security. She first queried what relevance that had to the hearing, but later agreed she was still receiving it.
Her husband did not like her gambling, but he had allowed her to retain his credit cards after their separation.
She denied she had continued living in the same house as her husband until June 2001, nor that they had lived with the Nguyens for three weeks in mid to late‑June 2001.
She denied that her husband approached the Nguyens at about that time, in her presence, asking for a loan of $5,000 so they could return to Queensland. She said that such a thing would never have been consistent with the nature of her relationship with her godmother. She denied that her godmother suggested to her and her husband, that the Nguyen family would set up a bakery and that it would provide Le with work so they could stay in Adelaide. She denied the Nguyens helped her find a house to rent at Shepherdson Road.
She had worked long hours in PHB, but Hon had not worked as many.
She went on to say that she actually had three of her husband’s bankcards, which she had used to access funds for gambling. He had left them with her to assist in her care of the children, but it was “my choice to sneak out and to discretely (sic) gamble” (p.431).
The two receipts totalling $15,000 that she had mentioned earlier, had been loaned to her by Hoang Phi Long. They were close friends. She was unable to shed much light on cash withdrawals from the various accounts made at about that time, other than to say that every now and then, Le would withdraw moneys for her if she was gambling.
Deposits made into the Telstra Visa card in October and November 2001 were made by her from her own money. She sometimes won moneys gambling. Her husband had not known the extent of her gambling.
She was unable to shed light on a deposit in the AGC MasterCard of $8,700 on 30 November 2001, other than to say she did not think it was a Hui win, nor did she know that at about that time, her husband was trying to raise money to buy the bakery.

Arising out of some earlier evidence, she was asked whether she had separated from her husband on more than one occasion and there followed this passage:
“A.There was only one separation that occurred at that time. There have been reconciliation, and he keeps visiting his children, and every time when he visits his children, there is reconciliation.
Q. How often does he visit his children.
A.Depending upon how busy he is, he could come five days per week, or six days per week.” (p.438)
In re‑examination, she said that whilst gambling she had only once won close to $10,000, but had won amounts of $5,000 or $6,000 on several occasions.
THE DEFENDANT’S WITNESSES
Tuan Anh Nguyen
Tuan was the first defence witness. He was 33 years of age and had come to Australia in 1983 with his family. He had been educated to tertiary level, but had not completed his degree yet and since 1995 had worked as a process worker at Gerard Industries. He owned the premises at 6 New Hampshire Drive, Parafield, albeit subject to a mortgage, and his parents were living with him at the beginning of 2001, along with his younger sister. His parents owned a property at Virginia, where they produced vegetables.
He recalled his mother’s birthday in February 2001, when Le came to their house. He considered Le a brother because Trinh was his “younger god sister” (p.447).
In about mid‑June 2001, Le telephoned him at home and asked to speak to his mother. As a result of that call, his mother said that Le wished to come and stay with them for two or three days. There was another call later that night. He was then asked by his mother whether Le and Trinh could come to stay for a couple of days. He agreed. Le then came with his wife and two children and in fact they stayed on for two or three weeks. He did not know then what Le was then doing for work.
He was told at about this time, by his mother, that Le had lost his job with the First Choice Nina Bakery and was seeking a loan of $5,000 so he and his family could return to Brisbane. He did not himself later discuss these matters with Le.
Later, he had discussions with his mother, who proposed that they set up a bakery with Le. Le had the knowledge and they could raise moneys from Huis and by extending Tuan’s mortgage. Such an arrangement would allow Le and his family to stay in Adelaide, but it would mean he (Tuan) would be needed to help and he would have to get time off work.
In consequence of those discussions, he approached his employer and was able to secure a period of leave, finishing work there on 24 August 2001.
He said that after Le and his wife left his house, they moved to 169 Shepherdson Road, Parafield Gardens. In attempting to pinpoint when that was, he was able to say, by reference to Exhibit D7, that when Le made phone calls from his house to Queensland on 11, 12 and 13 July 2001, he was still living there.
He, Le and his parents were all involved in finding premises for the bakery, but it was Le who found the Para Hills site. In consequence of their visit there, he first spoke to the letting agent and later Le and his parents followed the matter up.
He identified D11, saying it was his own handwritten summary of moneys he spent in setting up the bakery. It was a contemporaneous record.
He spoke of the first trip to Melbourne with Le and Trinh in Le’s car. At that time, Le and Trinh were living at Shepherdson Road and had been there about a week after leaving his house. That trip took place between 18 and 22 July 2001 (he had at first said August, but then corrected himself). His document did not actually record those dates against the Melbourne expenditures because he had forgotten to write them into his note.
(The defence at various times focussed on the date of Le’s move to Shepherdson Road because of its challenge to the authenticity of the document P19, wherein Le’s address was described as being there as of 10 July 2001.)
There was then tendered Exhibit D16, which was Tuan’s handwritten document, partly in English and partly in Vietnamese, recording what he spent for various goods, details of GST, invoices and the like. That was his original record and he had also entered that information into his computer up to 20 August 2001. The printout prepared on that date was supplemented with handwritten notes of later transactions. He was asked whose purchases they were and responded:
“My parents purchased things, I purchased things at times. Trieu purchased things then he would bring back receipts and then my mother would repay money to Trieu, and she would give me paperwork in order to enter information into this sheet.” (p.460)
The partly‑typed and partly‑handwritten document containing that information, dated 20 August, became Exhibit D16A. It was augmented by a further version, updated in the same manner, D16B.
In D11, he had recorded purchase expenses, in particular those relating to his first and second trips to Melbourne. These were made within a short time of the expense being incurred.
He then explained how he used original invoices and receipts to enter the information in the documents D11 and D16, 16A and 16B.
With respect to the shop lease, he had signed it with Le and the agent, and had seen Le hand a bank cheque to the agent. He had had nothing to do with purchasing that cheque (p.468).
He was then taken through a series of entries and answered that all the moneys, howsoever they were used in making those purchases, had come from or through his mother, save and except for a number of items which he identified and with respect to which he could not speak from his own knowledge. I will not repeat that list here, but there were approximately 20 transactions involving expenses of about $30,000. Tuan had put Le’s name against some of them and this, he said, was to recognise that it was Le who undertook the transaction and paid the money. He was unable, however, to speak of the source of that money.
Apart from those transactions, he was able to say the remaining purchases were made with moneys advanced by his mother or moneys advanced on the mortgage he took out over his house for $30,150.
He and Le had worked about the same hours in the bakery and he would pick up Le at 1 a.m. to go there. His father would come in at 2.00 or 2.30 in the morning and would stay until about 7 a.m. His mother would arrive at 6.30 a.m. with Trinh and would finish at 7.00 or 7.30 p.m. in the evening.
He then spoke of a meeting at his house one week after the bakery opened. Present were his parents, Le, Trinh and himself. Nobody was in charge of the meeting or dominant in it, but he said his mother said words to the effect:
“‘For the time being, $300 is to be paid to each person because in November a loan of $20,000 has to be repaid, and apart from that, there are also Huis contributions to be paid.’ By each person I would mean I would get $300; Trieu would get $300; my parents would get $300.” (p.483)
There was also some talk of his younger sister being paid at $7 per hour.
He did not know who controlled the till at the bakery whilst it was operating, as he worked mainly in the rear area helping Le. He said there was later a discussion at his house involving his parents, Le and himself. At that meeting, he produced his document D11 and said they were the moneys he had expended, that he had also paid over moneys to obtain his bank loan and he wanted these to be refunded. His mother then suggested that of the total sum of $3,794 claimed by him, he should take $1,794 now and the rest later. Le was there and said nothing about that. He later received the $1,794 from his mother.
At that same meeting, his mother also said that she had to repay $3,000 to Huis. Le was present when she said this, but did not disagree or say anything.
In cross‑examination, it was put to him that before the bakery had been opened, he had met and talked directly with Le about the business, but he denied that and said he did not know how they had come together to “do the business of the bakery” (p.488). He had spoken to Le only after the letting agent had queried his capacity to run a bakery.
He said that before then, there were no discussions only between them about opening a bakery, the discussions had involved his parents and Le: “Trieu and my mother discussed a lot or more than I. I only accompanied” (p.489). By “accompanied”, he meant he had gone with Le to sign the lease for the shop, to buy items and make necessary arrangements.
Those discussions had been begun on the footing that Le would then remain in Adelaide. His mother had said that Le knew the baking trade and it was she who had suggested a bakery be opened. Le had then said he knew where there was an available shop. Later, they contacted the letting agent, but even before then, his parents “had agreed to put money in, and if it was not sufficient I would have to approach the bank to obtain a bank loan, and apart from that Huis moneys would also be obtained, to be able to open a bakery” (p.490).
He did not remember much of their discussions with the letting agent after the initial meeting.
Le put to him that he (Le) had “decided everything” when the bakery was set up. Tuan denied that and said that his mother’s proposal was for the business to be opened in his (Tuan’s) name only, but then, because of her love for Le and his family, she proposed to put Le’s name on the documents so that he could obtain some standing with the bank.
With respect to equipment purchases, he said that Le would first inspect each item and then confer with his parents about it. They would rely upon his knowledge and advice and would then make the decision to buy it, either directly themselves or by giving cash to Le for that purpose.
He agreed that the lease had been in their joint names and that if he had not paid the rent, Le would have had to.
With respect to the bank accounts being in both names, he said that that had been his decision and it had been done so that Le could go out and buy things directly.
The business name registration was then put to him and he was asked why Le’s name was on it and, as well, on the bank and business documents. He repeated the previous explanation: that it was because of his parents’ love for Le and Trinh and to assist them with any bank dealings in the future. He was asked how that explanation would benefit Le if the business were to fail and he said his parents would then assume responsibility for everything because Le and Trinh were children of the family.
He agreed Le was living at 169 Shepherdson Road, Parafield Gardens when they went to Melbourne on 18 July and that he had been there for about a week beforehand, give or take some days (that evidence really put paid to the several challenges to Le’s evidence on whether his address could have been at Shepherdson Road as of 10 July 2001).
He thought that he had commenced making his record of expenditure on about 27 July.
He was asked whether he remembered the date when they discussed the opening of the bakery and he said it was about July 2001. He said he and Le had agreed upon nothing when the business opened.
He was then asked who was present when the business registration papers were signed and he said his parents were. It was done at his house. The lease was signed by him and Le in the presence of the letting agent.
He agreed Le had made decisions about equipment because he knew what was good for the business, but Le had always to ask his parents for funds. He was tested on where the moneys came from. He said $30,000 of it was his own money, $20,000 came from his parents and the balance from four money clubs, one of which was his membership and was about $19,000. The $20,000 loan his parents obtained was from Vinh Tam, but he had had to sign it, too, just in case his parents died. Apart from that document, he had not signed any documents relating to his parents’ borrowings.
He did not know the daily takings or expenses of the bakery during the time it was operating because it was his mother who normally kept and spent the money. His job was to keep the accounts, but not collect the money. He only kept the paperwork. He said Le would go out and buy items and would give him or his mother receipts for the purchases. He would record these. His mother would then repay Le for moneys thus spent.
He was present when Le paid the bank guarantee money by cash and other deposits, as well, but he identified some of the funds as having come from his mother. With respect to other payments, he could not say whence the moneys had come.
He was asked whether an argument occurred after Hon had given Le the yellow book. Somewhat surprisingly, he said he did not remember, nor did he remember whether they had any argument at all before the bakery closed. He was not sure. He did not think there had been any argument about the $3,000 repaid to the Huis and $1,794 paid for his loan fee. He had not been involved in bringing the solicitor in, but had been there when his mother had rung the solicitor. He said the arguments after the solicitor came were between the solicitor and Le and he was sitting by the window “paying no particular attention to anything at all” (p.550). His “mind was travelling everywhere” (p.551). It was put to him that that lawyer had suggested, in Le’s presence, that they should work different shifts after then. He did not remember that. He thought she had also said that the takings should be put in the bank, but he could not clearly remember, he was sitting by the window and was not concentrating.
He was asked about Le’s pleading that there were arguments because Le was asserting he was in partnership with Tuan and saying he had put money into the business. He responded in curious ways to these matters, saying it “seemed” not, he did not remember. He did not remember discussions in the solicitor’s presence about the cheque book. He was sitting by the window and did not know anything. He “did not have any particular focus with my mind” (p.553). He was then shown D10 and said he had only seen that book after the calculations had been done. His mother kept the everyday takings and he did not know what was deposited in the bank because his mother handled those matters.
He accepted that the bank had sent dishonour notices, but he had no recollection of arguing with Le about the matter, notwithstanding there had been six notices. Sometimes when Le told him about dishonoured cheques, he would tell his mother to put money into the bank. That may have happened six times, but they did not argue about it.
After the business opened, Le did not speak to him about the payment of salaries. He denied there was a meeting about this, between him and Le, within weeks of opening, but said there was one involving his parents.
It was suggested to him that that meeting did not occur, but he rejected this.
He denied there was ever any agreement between him and Le to divide the profits.
He was asked whether Le was to receive $300 per week and no more. He responded:
“Well, temporarily $300 was paid to each person, and in there, at a later stage, when repayments to the money club and to the loan, and to my bank loan, then it would be calculated another way.” (p.565)
He remembered taking his mother to bid for him at the Hui on the day he won it. He stood aside as she did it.
The cross‑examination returned to the original deposit made to the letting agent by bank cheque and his response was that if Le had bought the bank cheque, then the money must have been Le’s because he himself did not buy it.
Le then put his case to Tuan that he had approached him on a weekend in July and they had discussed the opening of a bakery. Tuan denied such occurred, but said there was a meeting between his parents and the two of them. His parents had said that they would worry about the money and that Le knew about being a baker. Le had then said to his father that he would go ahead with the business and would teach Tuan to bake bread, all they (the Nguyens) had to do was to raise the money. He thought somebody had asked Le about how much was needed to open a bakery, but it had not been him. Le had said it would cost about $100,000. Le did not then say he could borrow $50,000, nor that two people could do the work, nor did he (Tuan) agree to any such proposition. Le had said something about a shop at Para Hills, however, and there was discussion about buying things, but it was his mother who was to fund the purchases.
It was suggested to him that he and Le were, indeed, in business together in partnership because of the lease, the business registration, the bank accounts and the guarantee, but he repeated his previous answer that the reason Le’s name had been included in the documents was to assist him in any future dealings with the bank. Le then asked him whether, at the time calculations were done in the yellow book, anything had been said about profit‑sharing. He said he did not hear anything, nor did Le say anything about sharing the profits.
Later, Tuan was recalled to give evidence about the telephone conversation of 29 October. He said he had answered it, Le asked to speak to his father and he had given the phone to his father.
He had then gone to his own room and commenced taping the conversation. He saw his actions as being just for fun, but thought that in the future it might possibly be evidence. He had forgotten about having or using it, however, and it had only been in recent weeks that he had found it in his cupboard whilst looking for other things. He had not told his lawyer about it before then. He rejected Le’s challenge that Le first asked him what he had decided or that he should first talk to his father before making a decision. He agreed he had not first warned Le that the call would be recorded.
Thi Hon Nguyen
Hon was called and described how they came to Australia as refugees in 1983 and how she and Son ran a market garden at Virginia. She spoke of their involvement in the Vietnamese Catholic community and how Son has been president for many years.
She described how Trinh proposed to convert to Catholicism and how she (Hon) was then approached by a nun to act as Trinh’s godmother, a request she accepted. She was very happy about it and felt responsible for Trinh as her own child and, indeed, for Le as well.
In Easter 2001, Le and his family attended a party at her place. He told her that he was then down from Brisbane living with Trinh’s parents. He said he was opening a bakery for Mr Cuong.
She said how, in June 2001, Le contacted her by phone and told her Trinh’s father had kicked them out after an argument he had had with Trinh. Le asked if they could come and stay with her. She advised against that and said that they should return to Mr Cuong’s home, but some time later there was a second call and he again asked if they could come and stay for two days. She consulted her husband and after some hesitation agreed, because Le and Trinh had nowhere else to stay and because of her love for them. About an hour later, they arrived with their two children, but they then stayed for two or three weeks. Eventually, she was able to find a place for them to live, but even so, they came back for a week after that and had meals with her family.
At the time Le came to stay, he was working in Mrs Lam’s bakery and he remained there for a week or so, but she said he then told her he was dismissed from that position. He also said that he had no work in Adelaide and wanted to borrow $5,000 from her to return to Brisbane. She did not think that was a particularly good thing for them to do and suggested that because Le had a trade, he should attempt to stay in Adelaide and they would try to help him in establishing a bakery. Tuan would have to stop working and help, but he had a house and could get a bank loan, they could access some Hui moneys and everybody could work together. She told him the choice was up to him, “‘but if you wish to stay we would open a bakery’” (p.679). That was said in the presence of her husband and Trinh. Le replied that he would be silly not to accept an offer like that.

I have considered the above passages in the context of the entire conversation. I am satisfied that Le was at all times taking the position that he was a partner in the business and that because he had contributed to it substantially (in an unexpressed mix of cash and kind), he was entitled to seek to negotiate a purchase of it from the Nguyen family. On the other hand, whilst not arguing there was never a partnership with Le, Son was contending that his family had put up all the capital to establish the business, that it had liabilities to repay borrowed moneys and that it wished to recover all of its advances plus an amount for labour.
Whilst no consensus was thus reached, it does not appear to me that either party was contesting either of these negotiating positions:
(1)that Le was entitled to negotiate in the matter as he was a partner in the business; and
(2)that Son and his family had provided the bulk, if not all, of the capital to establish the business.
Those remarks bring me to a consideration of the competing arguments as to the existence of a partnership.
- evidence touching upon the partnership issue
At the outset, Le’s position was that he and Tuan agreed to establish and operate the bakery business together in partnership, he bringing in money and expertise and Tuan bringing in money and labour and doing the paperwork. He contended they each agreed to borrow $50,000 and contribute it to the business. Their discussions might have taken place in the presence of other members of the Nguyen family, he said, but these persons did not participate significantly in them, they merely expressed opinions (p.231 and p.245). He did not purport to say that there was any written agreement, nor, indeed, any detailed oral agreement at that time about how the business would be operated and what would happen to profits, save that profits would be equally divided (p.64). They simply trusted each other (p.61) and these were a matter for later discussion, albeit that they soon afterwards agreed upon provisional “wage” payments.
He can be criticised, too, for his lack of consistency in explaining, in any sensible way, the role to be undertaken in the business by Son and Hon. On his own account, they were largely passive observers in the dealings he had with Tuan, yet plainly, on all the evidence, they played a substantial role in the formation, the operation and the closure of the business. Le’s evidence on the formation of a partnership was otherwise limited, but I will comment upon this later.
I am satisfied and find that it was Hon’s suggestion that her family establish the business so that Le and Trinh might remain in Adelaide. I am further satisfied and find that Hon and Son took an active role in the purchases of certain items of equipment and advanced substantial funds towards such purchases. It was common ground they both put a great deal of time into the business once it began and it is significant that when things turned sour, dealings were between Le and them - indeed, it would appear that, at this point, Tuan retreated altogether from discussions on the matter. To the extent the evidence of the parties as to these matters is in conflict, I generally prefer that of the Nguyen family over that of Le.
Having noted that, there are then these undeniable facts that:
(1)the business was registered in the joint names of Le and Tuan;
(2)the lease for the premises was taken out in their joint names;
(3)the guarantee associated with the lease was entered into in their joint names, by means of a bank facility;
(4)the business bank account was opened in their joint names, with both authorised to sign;
(5)ultimately, when the business was sold, sale documents were required to be executed by both of them.
I turn then to the evidence that the parents jointly, and then Tuan and Le, were each paid a provisional wage of $300. There can be no doubt that Le brought to the establishment and operation of the business not only an extraordinary amount of labour, but an expertise in its establishment and operation which none of the others had. For his own part, Tuan proffered no suggestion as to why Le might do this for a paltry wage of $300 per week, apart from suggesting that his parents wanted to help Le out by getting his name on the business and bank documents so that he would have a credit rating. Whoever it was who made or instigated the decision to pay the $300 amounts, there can be no doubt, from a consideration of all the evidence, that it was intended as an interim payment only and that the amounts ultimately to be paid, to Le and Tuan in particular, would be determined at a later date.
There is then the frank acknowledgment, by both Son and Hon, that once debts were paid, the profits of the business would be shared between the three groups of them (i.e. the two parents, Le and Tuan) equally. That evidence came out unexpectedly, it had never been advanced as part of Le’s case, Tuan had said nothing about it and, indeed, Le had not even been cross‑examined about it.
It was common ground that during the course of the operation of the business, the daily takings were counted by Hon and, even on her evidence, checked by Trinh. I have wondered why that would have occurred, given Trinh’s status as a mere employee and the assertion that Le had no more than an employee interest in the business.
The same remark can be made about the circumstances in which the calculations in the yellow book (D10) were made and discussed in Le’s presence. Why, if he had no interest in the business, was that done? Why did Hon show him the yellow book? Why did he seek to take it home and, ultimately, ask for and receive a copy of it?
On Le’s account, it was immediately after he had received and considered the entries in the yellow book that he complained about moneys being diverted from the business to pay the personal liabilities of Tuan and/or his family, and it was this issue which led to the closure of the business. There would seem to be only two reasons for him to have made such a complaint: either that he was attempting to establish a claim to something to which he was not entitled or that he was surprised at what he perceived to be an act contrary to his perceived interest in the business.
Hon and Son gave a somewhat different account of the circumstances leading to the fallout, contending that it arose because Le sought to employ other family members of his and a non‑Vietnamese person in the business and pointing to tensions caused by this. That evidence is not consistent with Tuan’s own document of the taped conversation (P19A) in which Le himself expresses concerns about the employment of outsiders and, in any event, it appears to me to offer a poor and unconvincing explanation for their separation.
I am satisfied on all the evidence that the parties fell out soon after the yellow book was provided to Le and in consequence of his complaints about the repayment of personal debts from business moneys. That is consistent, too, with Son’s own evidence that Le changed after he was given the yellow book (p.847).
I have already referred to the facts that in the course of the telephone conversation, Le made a number of remarks about “our business”, about sharing half and half, and in a similar vein, and that these were not the subject of objection or comment by Son.
There were then sundry remarks made by defence witnesses which I will deal with one by one:
.at p.681, Hon said:
“We were discussing and we said Trieu knew the trade of bread bakering, Tuan can obtain a bank loan, we can borrow money from personal loans and from the money clubs, so we can all put our efforts together to open the business of a bakery.” (my emphasis)
.        at p.782, in Hon’s evidence:
“Q.Can you please explain to me why did you need to show that to me? (referring to the yellow book).
A.Because Trieu wanted to have a look at the book because he demanded that the book be shown to him. It seemed as if he did not trust me so he wanted to have a look at the book.”
I query why Hon should need her employee’s “trust” in such a matter.
.At p.790, in the evidence of Hon:
“A.    I was the person who took total responsibility as far as money was concerned. Tuan was also having responsibility in that regard. Now, as far as purchasing of items was concerned, my husband and I, and Trieu, went out buying different items and everybody was putting a hand in the job of purchasing items or preparing for the bakery. It was a common enterprise.” (my emphasis)
HIS HONOUR
Q.When you say ‘everybody’, does that include Mr Le.
A.Yes.”
.Then at page 817, in Hon’s evidence, Le continued:
“‘Either Dad would take over the bakery or I would take over it. If I don’t have the answer, then I would order that the bakery be closed the next day and I will advertise bankruptcy of the business.’ I answered to Trieu, I said ‘Trieu, you do not have the permission to do such a thing. You don’t have the right to do so. In this shop there are other parts; namely, my part; your Dad’s part and Tuan’s part as well.’” (my emphasis)
.        At page 838, Son said:
“Trieu said to my wife, ‘Now Trinh should be paid wages’, and then I and my wife said we would organise a meeting where we would sit down together; namely, Trieu, Tuan, I myself and my wife would be there to discuss that and Trinh as well’.”
Later in that same passage, Son goes on to talk about debts being cleared and the profit being divided between Le and Tuan in two equal parts and his wife and himself in the third part.
Plainly, on all the evidence, there was to be a distinction between the rewards provided by the business to Trinh as an employee and those to be provided to Le, Tuan and his parents.
LEGAL ISSUES
Neither Le’s Statement of Claim nor the Defence and Counterclaim dealt with the provisions of the Partnership Act 1891, nor indeed, was it the focus of attention at trial, yet, plainly, in the absence of any written evidence as to the nature of their relationship, its terms are important.
I remind myself of the following provisions:
Sections 1 & 2
“Definition of partnership
1.(1)Partnership is the relation which subsists between persons carrying on a business in common with a view of profit ...
“Rules for determining existence of partnership
2.In determining whether a partnership does or does not exist, regard must be had to the following rules:
(a)joint tenancy, tenancy in common, joint property, common property, or part ownership does not of itself create a partnership as to anything so held or owned, whether the tenants or owners do or do not share any profits made by the use of the property so held;
(b)the sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or do not have a joint or common right or interest in any property from which or from the use of which the returns are derived;
(c)the receipt by a person of a share of the profits of a business is prima facie evidence that the person is a partner in the business; but the receipt of such a share, or of a payment contingent on or varying with the profits of a business, does not of itself make the person a partner in the business; and, in particular -
(i)the receipt by a person of a debt or other liquidated amount, by instalments or otherwise, out of the accruing profits of a business, does not of itself make the person a partner in the business or liable as such;
(ii)a contract for the remuneration of a servant or agent of a person engaged in a business, by a share of the profits of the business, does not of itself make the servant or agent a partner in the business or liable as such;
(iii)...
(iv)the advance of money by way of loan to a person engaged or about to engage in any business, on a contract with that person that the lender will receive a rate of interest varying with the profits, or will receive a share of the profits arising from carrying on the business, does not of itself make the lender a partner with the person or persons carrying on the business or liable as such if the contract is in writing and is signed by or on behalf of all the parties to the contract;
(v)...”
Section 24
“Rules as to interests and duties of partners subject to special agreement
24.The interests of partners in the partnership property and their rights and duties in relation to the partnership will be determined, subject to any agreement, express or implied, between the partners, by the following rules:
(a)all the partners are entitled to share equally in the capital and profits of the business, and must contribute equally towards the losses, whether of capital or otherwise, sustained by the firm;
...”
Section 32
“Dissolution by expiration or notice
32.Subject to any agreement between the partners, a partnership is dissolved -
(a)...
(b)...
(c)if entered into for an undefined time, by any partner giving notice to the other or others of the partner’s intention to dissolve the partnership”
In the last‑mentioned case the partnership is dissolved as from the date mentioned in the notice as the date of dissolution, or, if no date is so mentioned, as from the date of the communication of the notice.”
Section 39
“Rights of partners as to application of partnership property
39.On the dissolution of a partnership every partner is entitled, as against the other partners in the firm, and all persons claiming through them in respect of their interests as partners, to have the property of the partnership applied in payment of the debts and liabilities of the firm, and to have the surplus assets after such payment applied in payment of what may be due to the partners respectively after deducting what may be due from them as partners to the firm; and for that purpose any partner or his or her representatives may on the termination of the partnership apply to the Court to wind up the business and affairs of the firm.”
Section 44
“Rule for distribution of assets on final settlement of accounts
44.In settling accounts between the partners after a dissolution of partnership, the following rules must, subject to any agreement, be observed:
(a)...
(b)the assets of the firm including the sums, if any, contributed by the partners to make up losses or deficiencies of capital, will be applied in the following manner and order:
(i)in paying the debts and liabilities of the firm to persons who are not partners of the firm;
(ii)in paying to each partner ratably what is due from the firm to the partner for advances, as distinguished from capital;
(iii)in paying to each partner ratably what is due from the firm to the partner in respect of capital;
(iv)the ultimate residue, if any, will be divided amount the partners in the proportion in which profits are divisible.”
I was not addressed on the law by Le, but the defence referred me to Higgins and Fletcher, The Law of Partnership in Australia and New Zealand (8^th ed.), pages 21 and following, and to a number of passages which comment upon the provisions or equivalent provisions of the Act and then interpretation in the case law. I have considered them.
FINDINGS
Le’s primary claim is for a declaration of partnership and orders as to dissolution, the appointment of a receiver and the taking of accounts. Necessarily, it presupposes the existence of a partnership, a matter which was strongly disputed by Tuan, who, by counterclaim, seeks orders vesting in him the net funds remaining after the sale of the business, on the footings either:
(1)that there was no partnership and that the business was always his; or
(2)that if there was a partnership, the sale proceeds should first be applied in payment of moneys advanced by him to the partnership, which advances exceed the amount of the net sum held.
There is, then, a potential difficulty with the relief sought by Tuan. If I find against Le’s claim that there was a partnership, then Tuan should be paid the whole of the net fund. If, however, I am satisfied that there was a partnership between Le and Tuan, I would not necessarily see it as my task to make findings as to the amounts contributed respectively by the partners to the business and whether the same were paid as loans or as partnership equity. In the ordinary course, such a determination would likely be a matter upon which a receiver, once appointed, might seek a resolution.
In this instance, however, it has become necessary for me to resolve substantial issues of credit and one of them centres upon the very question of contributions, so I have found it appropriate and, indeed, desirable to make findings on that issue.
Financial Contributions to the Business
There can be no doubt on all the evidence, including that of Le, that the Nguyen family contributed at least $50,000 to the capital of the business. On Le’s account, however, they paid no more than that.
His own claimed contributions are summarised in his document Exhibit P7. In respect of some of them, receipts or invoices for capital purchases were made out in his name, concerning others there was no documentation at all and there was then a third class of payments where, on his account, his moneys were paid over for various purchases by other parties, including his wife and Hon. The position is similar with respect to the undisputed Nguyen family payments.
In the absence of other documentation corroborating the movements of cash moneys used for capital purchases, I find I am not much assisted (in identifying the true payer) by documentation which merely names one or other of the parties or their associates as the person conducting the dealing. The question always remains, from what source did the cash moneys emanate?
Tuan and his witnesses presented a very clear and largely unchallenged account of sourcing moneys to a total in excess of $98,000 in a series of borrowings that corresponded very closely in time and amount with progressive business expenditures. They produced documents to corroborate these receipts.
Le’s evidence as to his accumulation of moneys totalling about $47,000 was in stark contrast to this. Nearly $20,000 of it was said by him to have been saved over a period of eight months prior to July 2001 and then hidden in his house until it was needed. The balance came from loans from his brother, his “stepmother-in-law” and some money clubs. All of those claimed sources were challenged by Tuan. Whilst Mrs Lam and Le’s brother supported his account both as to the timing and amount of borrowings, I had reservations about the reliability of their evidence in the face of other evidence relating to credits in Le’s bank account of 16 and 19 November 2001, corresponding as they did in amount with the sums said to have been advanced to him by each of those parties. Whilst neither of those persons was openly discredited in cross‑examination, I am far from satisfied, in the face of Le’s own records, that I can rely upon what they said as to the timing of their advances.
That observation is then compounded by the grave doubts I have about the reliability of Le’s explanation as to the use of his three credit cards and their respective debt levels over the relevant period, mixed, as it was, with his account of his relationship with his wife.
He sought to distance himself from knowledge of or involvement in any of those credit card transactions, saying that his “separated wife” in effect deceived him by using his cards to gamble away those moneys and not telling him.
I was most unimpressed by that aspect of his evidence. On the basis of what each of them said, I do not accept that he and his wife are, or were at any relevant time, separated in any meaningful sense and I think that his evidence on this was, at the least, a convenient way of distancing himself and his claimed cash savings from the very substantial gambling debts he had on his credit cards. Even on his own account, he had become aware at one point of her use of his credit cards and that, he said, had led to their separation, yet, extraordinarily, if his account is to be accepted, he had allowed her to continue to use them, at least until the end of 2001 and, indeed, probably for longer, whilst still using the Simplicity Account himself. All in all, the evidence of Le and Trinh as to the use of those accounts, as to who was involved in the gambling and as to their own relationship was unconvincing and unreliable, and I reject it. Obviously, substantial moneys were gambled away, but I am not persuaded that this was all the result of Trinh’s own conduct.

These conclusions colour the view I take of Le’s claims not to have understood or remembered the origin or purpose of the two payments into his ANZ Simplicity Account on 16 and 19 November 2001. On his case, he was at that very time looking for moneys to support a purchase of the business, yet the account appears to show that, within a few short days of the moneys being paid in, they were gambled away. On Tuan’s case, they were likely to be the proceeds of the moneys received from Mrs Lam and Le’s brother. They happen to match those sums in amount and, indeed, I am persuaded they are those proceeds.
For the above reasons, I had little confidence in Le’s evidence generally and I am, indeed, satisfied that at all relevant times, his financial position was, to his own knowledge, a parlous one.
I am not satisfied on all the evidence that he contributed any capital sums towards the establishment of the business and I am, indeed, satisfied that Tuan, whether directly or through his parents, contributed the whole establishment cost of $97,000.
That is not to say that I unhesitatingly accept the evidence of Tuan and his witnesses as to all matters. Indeed, I do not.
Was there a partnership?
On the topic of whether or not there was a partnership involving Le, I have already observed that Le’s evidence was sparse and I attribute this to two factors:
(1)I am satisfied that prior to its commencement, there was very limited discussion, anyway, between the parties as to the terms upon which the business would be operated. I do not find this surprising. On all the evidence, the parties were intent upon setting up the business fairly quickly and, having established a business name, lease and bank accounts, they went about it that way. Even on Tuan’s case, there was no discussion at first about how Le would be rewarded; and
(2)the fact that Le was not represented at trial and, plainly, limited in his ability to direct the court’s attention to those indicia relevant to the issue.
Even so, I am satisfied that there was ample evidence from his mouth, from Tuan and his witnesses, and from objective sources, supporting the existence of a partnership involving Le.
I have already recounted it.
I have considered the relevant terms of the Partnership Act and I am satisfied and find that on or prior to 26 July 2001, Le and Tuan orally agreed to establish and carry on the business of PHB, in common and with a view to profit, and that in furtherance of that agreement, a business name was registered by them jointly, a joint lease was entered into, joint bank accounts were established and the bakery was set up and operated by both of them. Further, they worked roughly equivalent hours and later agreed to draw equal weekly amounts for their labour.
Although sharing of profits was not spoken of at that time, I am satisfied that it can be implied in their agreement, both from the circumstances surrounding the formation of the business and their later agreement to take the same share of profits, that the net profits of the business would be shared equally between them. There was no contrary agreement (s.24(a) Partnership Act).
It was further agreed, as I find, that Le would provide the expertise and services necessary to establish and operate the bakery and shop and that, for his part, Tuan would provide his labour and clerical skills for those tasks and procure the necessary funds for the establishment and operation of the business and then advance them to the business.
In making those findings, I note that pursuant to section 2(c) of the Partnership Act, the receipt of a profit share is prima facie evidence of the existence of a partnership, but is not of itself conclusive. Here, however, there is more than that:
(1)The joint ownership of Le and Tuan in the business name, the lease and the bank accounts is strong evidence and I reject the defence explanation for that as facile and self‑serving. It offends common sense that Le would effectively expose himself to very substantial liabilities in terms of the lease on the premises, the accompanying guarantee and the potential liability (along with Tuan) to repay loan funds to Tuan or his family totalling some $97,000 - for the simple benefit of gaining some status with a banker.
(2)It is equally offensive to consider that Le would likely spend two months setting up the business, providing his labour and expertise for that purpose, and then be prepared to work something like 16 or 17 hours a day for a wage of $300 per week, all until a partnership debt of $97,000 was repaid (whenever that might have eventuated), whereupon he would be paid one‑third of the profits as a wage - yet that was the proposition advanced by the defence.
(3)Tuan’s case as pleaded asserts he was the sole owner of the business, yet, as it proceeded, he appeared to back away from almost all participation in dealings with Le in favour of his mother. Conversely, his parents, and particularly his mother, emerged as not merely the major financiers (as, indeed, I am satisfied they were), but as the parties principally involved in dealings with Le. I will discuss their status in a moment, but it is of some significance that Tuan did not anywhere seek to say precisely what he personally agreed with Le, yet he was (on his account) the sole business proprietor.
(4)The defence sought to rely upon the fact that Hon always took the takings home, but against that, I regard it as highly significant that before this was done, they were counted in Trinh’s presence.
(5)It is also significant that whereas the Nguyens and Le were to be paid $300 per week at the outset, Trinh was paid on an hourly rate and one somewhat more commensurate with her effort. Why else would such a distinction be made?
(6)The defence contended that Le at first accepted Hon’s proposition to repay two loan debts from business funds and only later contested it. On all the evidence, I am satisfied Le was likely told of this plan (it was, in itself, no necessary denial of partnership rights and may simply have been regarded as a pressing partnership debt), that he at first did not say anything by way of objection, but that, after inspecting the yellow book, he very soon did. If anything, this sequence of events supports his claim as to the partnership.
(7)There are then the references in the recorded telephone conversation which I have already discussed. They are overall, as I find, consistent with partners arguing not about the existence of a partnership, but about what it owes each of them.
(8)Finally, there was the curious absence of any question being put to Le about the ultimate profit‑sharing arrangement, the failure of Tuan to say anything about it and then the claims of Hon and Son about it. This caused me serious misgivings about Tuan’s credibility on this issue.
Having then found that Le entered into a partnership with Tuan, the question arises as to the status of Hon and Son in that enterprise. This issue was not pleaded, but it arises from the evidence of all the Nguyen family about Hon and Son’s substantial contributions to the business by way of loan funds and labour, the evidence of all parties that they, too, were being paid provisional wages on the same basis as Le and Tuan, and their own evidence that they expected to receive one‑third of the net profits once all partnership loans were paid. As well, I have considered their asserted roles, particularly that of Hon, in dealings with Le.
Neither Hon nor Son was registered as a proprietor of the business, nor as a lessee, nor as an operator of the business bank facility, but those factors are not conclusive. I am satisfied and find, however, that they advanced most of the loan moneys to the business, that between them they worked substantial hours in it and that it was agreed between Le, Tuan and them that ultimately they would receive one‑third of its net profits. That finding does not conflict with my finding that Le was an equal partner with Tuan - it simply means that it was agreed that the net profit, for partnership purposes, would only be derived after one‑third of business profits was paid to Hon and Son.
Whilst the conflicts as to the partnership question that I have spoken about served to undermine my confidence in the reliability of the Nguyen family generally, they also obliged me to consider whether there was, in fact, a three‑way partnership involving the parents on the one part and each of Le and Tuan on the other two. Such a relationship had a measure of symmetry against a background wherein Le was bringing expertise to the business, Tuan some capital and his labour, and the parents a substantial amount of capital and some labour, and wherein each camp was to receive one‑third of the profits.
Against such a reading is the absence of Hon and Son in the business documents, and Le’s evidence that he and Tuan were the only partners and that Hon and Son did not actively participate in partnership discussions. Further, they have not, in the proceedings, asserted an interest as partners, albeit that in their solicitor’s letter of 12 November 2001 (D5), they appear to have claimed an interest, if, indeed, there was any partnership, which they otherwise denied.
All in all, I am not persuaded that Hon and Son were partners in the business. Their role, as I find it, was to be the major providers of finance for Tuan to advance to the business and to assist both partners, Le and Tuan, in its operations - in return for which they were to be paid a wage and a share of the profits.
Finally, I am satisfied and find that the partnership was dissolved by mutual agreement, after prior oral notice was given by Le, on 8 November 2001 (Section 32 Partnership Act).
SUMMARY AND CONCLUSION
I have thus found that Le and Tuan did, indeed, enter into a partnership to operate Para Hills Bakery on about 31 July 2001 and that that partnership was dissolved by mutual agreement on 8 November 2001.
I have further found that each had an equal interest in the partnership.
Further, I have found that the whole of the partnership capital was contributed by Tuan.
In the absence of any agreement as to the rights of the parties upon dissolution, it appears to me that sections 39 and 44 of the Partnership Act would apply.
It is not for me, in these proceedings, to establish what are the proper debts and liabilities of the business, nor to make orders as to the appropriate distribution of funds. That is a matter for a court‑appointed receiver and, subject to the necessary documentation being submitted, I am disposed to appoint a receiver for that purpose.
I will hear the parties as to that matter and as to any consequential orders.

[2003] SADC 125

21 August 2003