Lee v Chai
[2013] QSC 136
•3 May 2013
SUPREME COURT OF QUEENSLAND
CITATION:
Lee v Chai [2013] QSC 136
PARTIES:
JONATHAN LEE
(plaintiff)
v
ANGELA CHAI
(defendant)
FILE NO/S:
BS126/04
DIVISION:
Trial
PROCEEDING:
Civil Trial
DELIVERED ON:
3 May 2013
DELIVERED AT:
Brisbane
HEARING DATE:
5–9, 12 November 2012
JUDGE:
Peter Lyons J
ORDER:
1. Judgment for the Defendant on the Plaintiff’s claim.
2. The Plaintiff pay the Defendant’s costs of and incidental to the claim:
a. on the standard basis until and including 24 May 2009;
b. on the indemnity basis from 25 May 2009
3. Judgment in the sum of $110,000 together with interest in the sum of $101,221.10, a sum of $211,221.10, on the Defendant’s Counterclaim against the Defendants by Counterclaim.
4. The Defendants by Counterclaim pay the Plaintiff by Counterclaim’s costs of and incidental to the Counterclaim on the indemnity basis.
5. Caveat number 707065799 in respect of the property described as Lot 104 on SP100001 County of Stanley, Parish of South Brisbane, Title Reference 50291020 being Unit 108, 242–260 Vulture Street, South Brisbane in the State of Queensland be removed.
6. Upon the receipt by the Defendant of the amount owing under paragraph 3 above, the Defendant do all such things and execute all such documents as are reasonably required by the Plaintiff to transfer title in and the registration of the Porsche motor vehicle the subject of these proceedings to the Plaintiff or his nominee.
7. Subject to paragraph 6, the Defendants by Counterclaim be enjoined from dealing with the Porsche motor vehicle the subject of these proceedings until the receipt by the Defendant of the amounts owing under these orders or further order.
CATCHWORDS:
EVIDENCE – WITNESSES – CROSS-EXAMINATION – AS TO CREDIT – ON FORMER STATEMENTS – TENDERING OR CALLING EVIDENCE AS TO FORMER INCONSISTENT STATEMENT – where witness was cross–examined on a prior affidavit – where it was sought to tender the prior affidavit in re–examination – whether the prior affidavit was admissible as evidence
EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – RESULTING TRUSTS – REBUTTAL OF IMPLICATION – where property was purchased in the name of the defendant – where the plaintiff provided the purchase money for the property – where the plaintiff and the defendant were in a sexual relationship – where there was evidence the plaintiff intended the property to be a gift – whether the presumption of a resulting trust was rebutted
EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – PRESUMPTION OF UNDUE INFLUENCE FROM RELATIONSHIP OF PARTIES – OTHER RELATIONSHIPS – where property was purchased in the name of the defendant – where the plaintiff provided the purchase money for the property – where the plaintiff and the defendant were in a sexual relationship – whether the relationship gave rise to a presumption of undue influence
EQUITY – GENERAL PRINCIPLES – UNCONSCIONABILITY, UNCONSCIONABLE DEALINGS AND OTHER FORMS OF EQUITABLE FRAUD – SPECIAL DISABILITY – where property was purchased in the name of the defendant – where the plaintiff provided the purchase money for the property – where the plaintiff suffered from a personality disorder – where the plaintiff suffered from cognitive dysfunction – where the plaintiff suffered from alcohol dependence – where his condition did not have any serious impact on the plaintiff’s ability to make a judgment as to his own best interests –whether the plaintiff was at a special disadvantage
EQUITY – GENERAL PRINCIPLES – UNCONSCIONABILITY, UNCONSCIONABLE DEALINGS AND OTHER FORMS OF EQUITABLE FRAUD – KNOWLEDGE – where property was purchased in the name of the defendant – where the plaintiff provided the purchase money for the property – where the plaintiff suffered from a personality disorder – where the plaintiff suffered from cognitive dysfunction – where the plaintiff suffered from alcohol dependence – where medical evidence was that a person without medical training would have been aware of the presence of a “grandiose and entitled affect” – whether the defendant had knowledge of any special disadvantage of the plaintiffEvidence Act 1977 (Qld), s19
Black Uhlans Incorporated v New South Wales Crime Commission & Ors [2002] NSWSC 1060
Brusewitz v Brown [1923] NZLR 1106
Calverley v Green (1984) 155 CLR 242
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Fowkes v Pascoe (1875) 10 Ch App 343
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
Goldsworthy v Brickell [1987] 1 Ch 378
Johnson v Buttress (1936) 56 CLR 113
Louth v Diprose (1992) 175 CLR 621
Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549
Martin v Martin (1959) 110 CLR 297
Meredith v Innes (1930) 31 SR(NSW) 104
Muschinski v Dodds (1985) 160 CLR 583
Nelson v Nelson (1995) 184 CLR 538
Queen’s Case(1820) Brod & Bing 284; 129 ER 976
Paroz v Paroz [2010] QCA 362
R v McGregor [1984] 1 Qd R 256
Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773
Trustees of Cummins v Cummins (2006) 227 CLR 278
Tulloch(Dec’d)v Braybon (No 2) [2010] NSWSC 650
Union Fidelity Co Ltd v Gibson [1971] VR 573
Yerkey v Jones (1940) 63 CLR 649
COUNSEL:
J Bell QC with J O’Regan for the plaintiff.
D Savage SC for the defendant.
SOLICITORS:
Hopgood Ganim for the plaintiff.
McKays Solicitors for the defendant.
Peter Lyons J: In 2000, a unit at South Bank in Brisbane was purchased in the name of the defendant (Ms Chai). In 2001, a Porsche motor vehicle was purchased and registered in Ms Chai’s name. The plaintiff (Mr Lee) claims both items of property, on the basis that he provided the purchase monies, and they are held under a resulting trust by Ms Chai on his behalf. Ms Chai contends in each case that the property was a gift to her. In that event, Mr Lee alleges that the gifts should be set aside, relying on the doctrines of undue influence and unconscionable conduct. Ms Chai has made a counterclaim against Mr Lee and his wife for the conversion of the Porsche. A counter claim for the conversion of other property has been discontinued.
Background
Mr Lee was born in Taiwan on 23 February 1958. In 1978 he married his present wife, Lillian (to whom I shall refer as Mrs Lee). Their children, mentioned in these proceedings, are a daughter, Heidi, a son, Kevin, and another daughter, Julia, now adults.
Mr Lee’s family in Taiwan conducted a business which involved property development and building construction. At times relevant to these proceedings, both Mr Lee’s father and his brother were active in the business. Mrs Lee gave evidence that she had an interest in the construction company[1]; and that at times she worked in an accounting business of Mr Lee’s father[2]. She also managed a company, Lee-Bai Property Management Pty Ltd (Lee-Bai), which itself managed properties in Taiwan[3].
[1]T 4-8/40; 4-11/20 to 4-12/30.
[2]T 4-10/55; 4-12/40.
[3]T 2-51/45; 2-52/35.
In March 1993, Mr Lee migrated to Australia. He did so as a business migrant. He purchased a house at 52 Ingluna Circuit, Eight Mile Plains, in Brisbane. In due course his wife and children came to live with him there. Mr Lee soon became friendly with Mr and Mrs Samaratunga, who lived across the road, in Ingluna Circuit. Both Mr and Mrs Samaratunga are psychiatric nurses.
While in Australia, Mr Lee, together with some other Taiwanese businessmen, invested money in land at Willawong. The land was developed as a golf driving range.
In addition to his involvement in business, the evidence indicates that Mr Lee had an excellent knowledge of Chinese literature and was skilled at writing and editing in the Chinese language[4].
[4]CFI 102 para 5 (documents on the Court File will be identified by their Court File Index number – CFI).
Ms Chai was born on 3 October 1961. She married in 1983, there being three children of this marriage. She migrated from Taiwan to Australia with her family in April 1990. She gave evidence that in about late 1994 or early 1995 the relationship between her husband and herself broke down to the point where they lived separately, though they remained in the same house for the benefit of their children. Ms Chai’s husband maintained a business in Taiwan and frequently travelled there.
Ms Chai was very active in the Taiwan Friendship Association in Queensland (TFAQ). In 1999 she became the vice president of this association; and was its president for a year from 1 July 2000. Ms Chai had an interest in a Traveland Travel Agency. This business operated between 1999 and 2002, but was not financially successful. Ms Chai worked in the business.
Both Mr Lee and Ms Chai gave evidence that they met not long after Mr Lee migrated to Australia, when Mr Lee came to dinner at Ms Chai’s home[5]. Thereafter they had virtually no contact for several years.
[5]CFI 107 para 27; CFI 106 para 7. Where an affidavit is a translator’s affidavit, exhibiting a translation of an affidavit of another witness, references are to paragraphs in the translated affidavit.
About the end of 1999, Mrs Lee returned to live in Taiwan with Julia, the youngest daughter of the family, so that Julia could continue her education in a Chinese-speaking school. Mrs Lee’s return to Taiwan was also associated with a request from her father-in-law that she “look after the company” (presumably, the construction company), because he was ill.
Early in 2000, Mr Lee and Ms Chai on occasion came into contact with each other. In March 2000, Mr Lee and Ms Chai were each in Taiwan. They both identify the commencement of their relationship by reference to an event when occurred at that time. They spent the evening in a karaoke bar with a group of people including Mrs Lee. When they left the karaoke bar, they went to the lift. The rest of the group entered the lift, and, as it was full, Mr Lee and Ms Chai remained behind. They then engaged in a passionate kiss and embrace.
Each of them returned to Australia shortly afterwards. They commenced going out together frequently. On one occasion, they went to the Hyatt Hotel at Sanctuary Cove. This was the first occasion they had sexual intercourse.
Thereafter, they dated nearly every day, frequently having sexual intercourse. This occurred in various places, sometimes in a hotel, sometimes in more public locations. They at some point had discussions about finding a place where they could conduct their affair with greater ease and discretion.
After some searching, Ms Chai identified a unit at South Bank. The selling agent was Ms Diane Kruse. Mr Lee introduced Ms Chai to Ms Kruse as his wife. Mr Lee and Ms Chai then inspected the unit, and a decision was made to buy it.
Mr Lee subsequently gave Ms Chai a bank cheque for $50,000, which she deposited into her Westpac account. They went to the real estate agent’s office, where a contract was signed. The contract was dated 5 May 2000. It identified Ms Chai as the buyer of the unit. Her nominated solicitor was Barry & Nilsson, the particular solicitor being a Ms Chiang. The purchase price under the contract was $615,000 with a deposit of $61,500 payable on 8 May 2000. The settlement date was 31 May 2000. A signature, apparently that of Ms Kruse, appears on the contract on behalf of the real estate agency, as deposit holder.
Of the deposit, $50,000 came from Ms Chai’s bank account, and $11,500 was paid by way of bank cheque arranged by Mr Lee from the International Commercial Bank of China (ICBC).
At some point, Mr Lee arranged for Ms Chai to see Ms Chiang. Ms Chiang was a Taiwanese solicitor, known to Mr Lee. Mr Lee did not tell Ms Chiang when he spoke to her that he was providing the purchase money, or that the unit was being purchased for him. Mr Lee did not accompany Ms Chai when she saw Ms Chiang.
Shortly after the deposit was paid, Mr Lee returned to Taiwan, to arrange for the rest of the purchase money. His evidence was that he did this by selling some shares, and borrowing money from his brother in Taiwan.
While Mr Lee was in Taiwan, during a telephone conversation, he told Ms Chai that he had found a photo studio where he had made an appointment to have their “wedding photos” taken. Accordingly, on 15 May 2000, Ms Chai went to Taiwan. The day after she arrived in Taiwan, Mr Lee took her to the photo studio to confirm the appointment, and to choose the clothes to be worn in the photographs. While they were there, Mr Lee told the owner of the studio that he and Ms Chai had been married and living in Australia for a number of years, but had come back to have a holiday in Taiwan, and to have their wedding photos taken at the same time. In due course the photographs were taken. Mr Lee also introduced Ms Chai to his parents shortly before 20 May 2000, though he did not tell them of the relationship[6].
[6]T 3-45/20 to 46/12.
Ms Chai returned to Australia on about 26 May 2000. At some point she provided Ms Chiang with a cheque for $1,054 drawn on her Suncorp Metway bank account, for the registration of the title to the unit in her name. She also paid, by cheque drawn on her Westpac bank account, the sum of $1,143.30 for legal fees.
Mr Lee provided bank cheques for the settlement, totalling $574,133.90.
Settlement occurred on 31 May 2000. At about this time, Mr Lee gave Ms Chai a further sum of $100,000 to buy furniture, electrical appliances “and anything else you need for the unit”[7]. Ms Chai then set about purchasing furniture and other items for the unit, sometimes accompanied by Mr Lee. She commenced living in the unit when it was substantially furnished, moving her clothing, personal effects, photos, documents, cosmetics and jewellery there. She would nevertheless frequently stay overnight at her former family home at 28 Kardella Street, Stretton, to maintain contact with her children[8]. This home was sold in about February 2002[9].
[7]Ms Chai’s evidence to this effect was not disputed by Mr Lee: CFI 106 para 53, with CFI 132 para 10 (q).
[8]CFI 106 paras 55 and 56; with CFI 132 para 10 (s).
[9]Affidavit of Zhang sworn 6 November 2012, exhibiting translation of affidavit of Ms Chai sworn the same day (2 Chai) para 8, and exhibits AC 1 and AC 2.
Ms Chai placed in evidence documents demonstrating that she paid rates and body corporate levies for the unit[10]. This evidence was not challenged by Mr Lee. The documents cover most, though not all, of the period of the relationship.
[10]CFI 106, Ex AC55, AC56.
After the purchase of the unit, Mr Lee spent a substantial amount of his time in Taiwan. When he was in Australia, if Mrs Lee was also in Australia, Mr Lee would stay at the family home at Eight Mile Plains. If Mrs Lee was not in Australia, Mr Lee would spend some of his nights with his children at the home at Eight Mile Plains, and some of his time at the unit with Ms Chai. Ms Chai estimates that over the subsequent three years, Mr Lee spent a total of about six months at the unit[11]. Although Mr Lee commented in some detail on Ms Chai’s affidavit evidence, he did not disagree with this estimate.
[11]CFI 106 para 57.
Because of his language skills, Mr Lee assisted Ms Chai with the publication of the TFAQ newsletter. Ms Wu was a friend of Mr Lee’s son. She also provided tutoring services to Ms Chai’s son, then a high school student. She met Mr Lee when she was helping Ms Chai to produce the newsletter of the TFAQ. He subsequently took charge of editing and compiling the newsletter. Ms Wu said that Mr Lee was very good at writing and editing. When Ms Chai became the President of the TFAQ in July 2000, Mr Lee drafted a speech for her. According to Ms Wu, whose evidence was not challenged, Mr Lee drafted a number of other speeches for Ms Chai.
In November 2000, Mr Lee gave Ms Chai the sum of $38,000 to assist her in carrying out her duties as the President of the TFAQ.
Mr Lee gave evidence (denied by Ms Chai) that, at some point, he gave her about $100,000 in relation to her travel agency business. Mr Lee’s evidence was that this occurred in 2000, at some time after the purchase of the unit. However, he also associates it with the closure of the business[12]. No documentary evidence was identified in support of Mr Lee’s evidence, which, in view of the amount, is a little surprising. He also gave evidence that, in 2002 when he won a lottery, he gave Ms Chai about $40,000.
[12]CFI 107 para 120.
When Mr Lee was in Brisbane, he and Ms Chai would go out regularly, generally with friends of Mr Lee[13]. Mr Lee was a regular patron of the Sunshine Chinese Restaurant (where Ms Wu worked[14]), which Mr Lee and Ms Chai sometimes attended every few days, sometimes every few weeks[15], usually with a group of people. At some time after they started to attend the Sunshine Chinese Restaurant together, it became obvious to the proprietor, Mr Hwang, that they were “a couple and having an affair”; and that “they were very much in love with each other”[16].
[13]CFI 106 para 80.
[14]CFI 102 para 10.
[15]CFI 104 para 6.
[16]CFI 104 para 9 and 10.
Mr Lee and Ms Chai also entertained people at the unit. The wedding photos were on display there.
Mr Lee also bought gifts, including jewellery, for Ms Chai. One was a diamond ring inscribed “J & A”[17]. He also gave her some other jewellery.
[17]See CFI 106 para 91.
Early in 2001, there was discussion about the purchase of a motor vehicle. Ms Chai initially considered the purchase of a Mercedes[18]. Mr Lee at about this time had purchased his daughter a Mercedes SLK320.
[18]CFI 106 para 62.
Mr Lee gave evidence that he had been lending his Pajero motor vehicle to Ms Chai, but felt that this was not suitable, because she had been previously been driving a better vehicle[19]. Mr Lee proposed the purchase of a Porsche 911. Mr Lee and Ms Chai went to a Porsche dealership on the Gold Coast. There is some evidence that they were accompanied by Mr Samaratunga, but that evidence is contested by Ms Chai. At the dealership, Mr Lee suggested that Ms Chai test drive some cars. Ms Chai did so, and was impressed by one of them[20]. A car was then purchased in Ms Chai’s name. Mr Lee gave evidence that Ms Chai “was going to be the one who mainly drove the car”[21]. Ms Chai gave evidence that the car was initially delivered to the unit. Mr Lee said he arranged for this to happen[22]. It seems, however, that shortly after the delivery, the car was taken to the home of Mr and Mrs Samaratunga for a week, and they were permitted to use it[23].
[19]CFI 107 para 106.
[20]CFI 106 paras 63-65.
[21]CF I07 para 114.
[22]CFI 132 para 10(v).
[23]CFI 107 para 117, not contested by Ms Chai.
At some point, Mrs Lee learned of the relationship between Mr Lee and Ms Chai. Ms Chai gave evidence that this occurred about the middle of 2001[24]. Mr Lee’s evidence was that Mrs Lee was “aware that something was going on between Ms Chai and me for probably the last year and a half of the relationship”[25]; which would mean Mrs Lee knew of the relationship from about early 2002. Not surprisingly, Mrs Lee thereafter displayed some hostility both to Mr Lee and Ms Chai.
[24]This evidence was not contested by Mr Lee; in fact, there is some support for it in his evidence; CFI 107 para 122.
[25]CFI 107 para 122.
About the end of 2001, Ms Chai lost contact with Mr Lee. Early in 2002 she learnt that he had been admitted to hospital. He was in fact in hospital in Taiwan. Ms Chai discussed with Mr Samarantunga the drugs that might be administered to Mr Lee, which resulted in her sending an email on 5 February 2002 to a friend of Mr Lee’s, warning of the effects of taking alcohol with one medication, the potential adverse effects of others, and recommending vitamin B 12[26].
[26]CFI 106 ex AC 7.
From early 2002, Mr Lee spent most of his time in Taiwan. He told Ms Chai that that was because his uncle had started a construction project on which Mr Lee was to work. Initially they had regular contact by telephone, or over the internet. Mr Lee invited Ms Chai to come to Taiwan to see him, which she did several times.
According to Ms Chai, the affair came to an end early in 2003, when she learned that he was involved with another woman (denied by Mr Lee). According to Mr Lee, the relationship came to an end some time after July 2003.
In September 2003 Mr Lee telephoned Ms Chai. She told him that she was about to leave for a holiday in Asia. A couple of days later, Mr Lee came back to Australia. He, accompanied by Mr Samaratunga, attempted to enter the unit, but his key did not work. He told the manager of the apartment block that he and Ms Chai “were back together again” and that he had nowhere else to stay. The manager agreed to change the locks and to give Mr Lee a key to the unit.
Mr Lee then hired a removal company to remove the contents of the unit. All of the contents (other than fittings, including curtains) were removed from the unit. Mr Lee gave evidence that Mr Samarantunga and Mrs Lee were present at this time[27] (he also gave evidence that it was about this time that Mrs Lee first learnt of the existence of the unit[28]). In a later affidavit, Mr Lee said that Mrs Lee was present and assisted in the removal of the contents of the unit, but did not refer to the presence of Mr Samaratunga[29]. Mr Lee also took the Porsche from the unit complex. Some of the property taken from the unit was stored in a storage facility leased in Mrs Lee’s name[30].
[27]CFI 107 para 130.
[28]T 3-44/40.
[29]CFI 132 paras 12 and 13.
[30]CFI 107 paras 131, 132; CFI 132 paras 12-15; CFI 106 para 132 and ex AC 54.
On about 1 October 2003, Mr Lee lodged documents to transfer the Porsche’s registration from Ms Chai to himself. He forged Ms Chai’s signature on the transfer document. Shortly prior to this, Mr Samaratunga had obtained a roadworthiness certificate for the Porsche[31], undoubtedly to facilitate its transfer.
[31]CFI 107 paras 138, 139.
Mr Lee also attempted to sell the unit, signing documents stating that he was its owner, and authorising real estate agents to act on his behalf. He also saw Ms Chiang at about this time. He gave her three documents on which he had forged Ms Chai’s signature, including a transfer of the unit.
Mr Lee also approached the ICBC on about 1 October. The ICBC held a mortgage over the unit. Mr Lee stated that he had made an arrangement with Ms Chai to transfer the property into his name; and that he wanted to take out a new mortgage for the same amount.
Ms Chai learned of these things while she was on her holiday. She returned, and made a complaint to the Dutton Park CIB. Subsequently, Mr Lee was convicted of criminal offences.
In 2005, after his conviction, Mr Lee made a complaint in Taiwan alleging that Ms Chai had stolen certain of his belongings. In the same year, Mrs Lee made a criminal complaint of adultery against Ms Chai. However, at about that time adultery ceased to be a criminal offence under the law in Taiwan. The theft complaint is outstanding. It is based on an allegation that Ms Chai stole “all the things from my home…”[32]; elsewhere described as the curtains and “all the proper items in … our apartment”[33]. Mr Lee appears to have some involvement in the adultery complaint, as he received a notice from the court about the change in the law[34]. He stated that his purpose was to make Ms Chai face the law in Taiwan, as he had been made to face the law in Australia[35].
[32]T 2-10/25.
[33]T2-37/55.
[34]T2-35/55.
[35]T2-37/30.
The history which has been set out thus far is generally based on matters which are generally not in dispute. In some cases, it is based on parts of Ms Chai’s evidence which has been the subject of detailed comment by Mr Lee, where Mr Lee has not challenged those parts. As will become apparent, on a number of important factual matters there are major divergences in the evidence called on behalf of the parties, with the credit of most of the witnesses very much in issue.
Credit issues arise in a number of contexts. It is therefore convenient to make some preliminary observations about the credit of some of the witnesses.
I also note that some difficulty arises because of the number of years which have intervened between relevant events, and the time when the witnesses gave evidence. For some of the witnesses evidence was given through a translator, adding further difficulty to the assessment of credit.
Mr Lee: some credit issues
A major factor, adverse to Mr Lee’s credit, is his conduct in September 2003. He then returned to Australia, knowing Ms Chai was in Asia on a holiday. He lied to the manager of the apartment block, to gain entry to the unit. He then removed the contents of the unit, including items in which, on no view, could he claim any interest. He also took the Porsche from the unit complex. In light of this conduct, Mr Lee’s lie to the unit manager was particularly brazen.
Shortly afterwards, Mr Lee forged Ms Chai’s signature on a document intended to effect a transfer of the Porsche to himself. He also forged Ms Chai’s signature on three documents, for the purpose of effecting a transfer of the unit to himself, including a transfer form. He gave these documents to Ms Chiang, no doubt for the purpose of having the transfer registered. He also lied to the ICBC, by stating that he had made an arrangement with Ms Chai to transfer the unit to his name.
Mr Lee gave evidence he arranged for some of the property which was taken from the unit, including jewellery, to be transported to Ms Chai’s house at Stretton under the direction of Mr Samaratunga[36]. His evidence was that the removalists drove off with Mr Samaratunga, and did not return to Ingluna Circuit[37].
[36]CFI 107 paras 132, 135; and CFI 132 paras 12, 13, 14.
[37]CFI 132 para 14.
Mr Lee knew that Ms Chai did not then live in Stretton, but had been living at the unit; and that at that time she was in Asia on holiday. He also knew by September 2003, that Ms Chai’s husband and daughter lived at 390 Benhiam Road, Calamvale, having himself gone there a short time previously[38]. There is no satisfactory evidence about what ultimately became of the property said to have been dealt with in this fashion; nor is there independent evidence to corroborate Mr Lee’s evidence. Although supported by the evidence of Mr Samaratunga, I consider Mr Lee’s evidence that he arrange for the delivery of property to Ms Chai’s house to be a concoction.
[38]See CFI 106 para 119, with CFI 132 para 10(ff).
There are also some difficulties in Mr Lee’s evidence relating to his financial position and financial transactions.
In the years when he was a resident in Australia, most of the money to which Mr Lee had access in this country was held in bank accounts which were in the name of either his father or his brother. For that reason, on Mr Lee’s evidence, only ten percent of the interest earned was required to be withheld for the payment of tax. Mr Lee was cross-examined about these accounts, it being suggested that all of the money in them was his; and that the accounts were in the names of his father and brother so that he could dishonestly avoid paying the tax which would otherwise be payable.
One of Mr Lee’s explanations for his conduct was that his money was in Taiwan, being managed by his father and his brother. That explanation did not directly address the allegation being put to him.
Mr Lee’s second explanation was that “the people who work in the bank” recommended this course, in relation to his father, and accordingly he asked his father to give him authority to take it. That explanation appears to accept that the money in the account in his father’s name was in fact Mr Lee’s money. Elsewhere, of these accounts, he said that the money was “not all my money”; again accepting that at least some was his[39]. The evidence leads me to the conclusion that Mr Lee engaged in dishonest conduct, to avoid a tax-related liability. It also has the consequence that I do not accept his evidence that he acted on the recommendation of bank staff.
[39]See T2-18 to 2-20.
Mr Lee was somewhat evasive when cross-examined about his financial position in 2000 and 2001. For example, he was reluctant to answer the question whether he was then a wealthy man[40]. He was similarly evasive when cross-examined as to whether he was then a successful businessman[41]. This evidence was contrasted, in my view effectively, by Mr Savage SC who appeared for Ms Chai, with the evidence that Mr Lee gave (through his solicitor) when opposing an application for security for costs[42]. Mr Lee there said that he owned many properties in Taiwan. He identified three, each with a value of over US$5 million; and they secured a debt of US$2.5 million[43]. He also gave evidence that he was the sole director and shareholder of Lee-Bai, which managed around 1,500 apartment and studio properties in Taiwan. He also gave evidence that he had transferred properties to his children, including 52 Ingluna Circuit, Eight Mile Plains.
[40]T1-48/30-40.
[41]T2-27/35-50.
[42]CFI 155, Ex 7.
[43]Ex 7 para 4 (q), (r); see also T 3-12/8-11.
In his oral evidence Mr Lee stated the number of units and apartments was approximately 1,000. He said he was not the sole shareholder nor the sole director of Lee-Bai[44]. Of the three properties which were identified in his solicitor’s affidavit, Mr Lee gave evidence that one had been sold, for which he received 12,000,000 Taiwanese dollars (approximately A$4 million). Since he gave evidence in the trial less than three weeks after the solicitor swore his affidavit, it seems unlikely, notwithstanding his explanation, that Mr Lee was unaware of the sale when he gave instructions to his solicitor. Difficulties associated with communicating through an interpreter are not likely to explain the differences in Mr Lee’s evidence. Indeed, one reason given by Mr Lee for his instructions to his solicitor was that his son was acting as interpreter, and Mr Lee could not explain to his son that Mrs Lee conducted the business of Lee-Bai; although, on Mr Lee’s oral evidence, his son was a director and shareholder of the company[45]. It might be observed that, in the security for costs application, an explanation given for Mr Lee’s residing primarily in Taiwan in the last three years was that Lee-Bai has required more and more of Mr Lee’s attention for it to run properly[46]
[44]See T1-49 to 1-50.
[45]T 3-8/40 to 3-9/25.
[46]CFI 155 para 4 (m)-(o).
Mr Lee’s conduct in the years when he lived in Brisbane strongly suggested that he was a man of considerable wealth. He appears to have had much leisure time, in years when his children were being educated. The evidence indicates that he ate, with a group of people, at restaurants on a frequent basis; and almost always paid the bill for the group. He had little difficulty in obtaining the funds to pay for the unit at Southbank in a short period of time; and the same would appear to have been true in respect of the purchase of the Porsche. His evidence indicates that he had monies in Taiwan which were being managed by his father and his brother; and that his father was managing a building project in which Mr Lee had invested approximately A$3 million[47]. He also appears to have invested in a construction and real estate business conducted by an uncle[48]. He had made money which was being managed by his father; and he had assets left to him by his grandfather[49]; and a deceased brother[50]. Of the investments which were being managed by his father (and, he said, his brother), these were “not big so will not cause suspicious-suspect of my families”[51]. For that reason, most of his assets were “in the form of properties and land instead of cash”[52]. He also gave evidence that, as a wedding present, he gave one of his brothers a unit worth approximately A$100,000[53]; and he said that he gave his father “some millions of dollars”[54].
[47]CFI 107 para 16; T 2-46.
[48]T1-47/40-60; see also T 3-46/10-30.
[49]T2-45/40-60.
[50]T 1-46/10.
[51]T2-45/12.
[52]T2-45/20.
[53]T 2-47/25.
[54]T 2-46/55 to 47/10.
Mr Lee gave evidence that if he wanted to get in excess of $100,000 from his father, he would have to lie to him. He gave evidence, in this context, that he lied to his father and his wife, while his wife was in Taiwan[55]. It seems likely that Mr Lee was here referring to at least some of the funds used for the purchase of the unit and the Porsche.
[55]T2-45/30-35.
It was submitted on behalf of Ms Chai that it was likely that Mr Lee told lies to his family to conceal his relationship with Ms Chai. I accept that submission. Mr Lee was asked questions directed to showing that the children living with him in the house at Ingluna Crescent were aware of his affair with Ms Chai. Of his son, he said that he was at boarding school. Of his daughter, he said that she would inquire about the fact he would not come home at nights. He said that she was suspicious, which could only be the case if he were not telling her the truth. In due course, she found out the truth; but was not allowed to tell her mother, which resulted in an attempted suicide[56]. The daughter was obviously made an unwilling party to his deception of Mrs Lee.
[56]T 2-43/15-40.
In his affidavit, Mr Lee stated that when they were looking for a unit to purchase, he told Ms Chai that he did not want his wife or family to find out about their affair, and that he therefore did not want the unit to be in his name[57]. He also said that he told Ms Chai that he decided to purchase the Porsche and register it in her name “to distance myself from it”[58]. In his Reply and Answer, in respect of each purchase, he had pleaded that he caused the unit to be registered in Ms Chai’s name, and the Porsche to be registered in her name, inter alia, because he did not want the general Taiwanese community or his family to learn of the relationship between him and Ms Chai[59].
[57]CFI 107 para 54.
[58]CFI 107 para 110.
[59]CFI 133, para 7(f)(i) and para 9(d)(i).
The evidence demonstrated that before the purchase of the unit in March 2000, the affair between Mr Lee and Ms Chai was conducted in public. After the purchase of the unit, they dined frequently in restaurants, conduct not designed to hide from the Taiwanese community the fact that they were having an affair[60]. They would also go to a casino together, with Ms Chai driving Mr Lee home[61]. As the affidavit of Ms Wu shows, on one occasion Mr Lee entertained at his home people with whom he did not have a close connection; in circumstances where it was apparent that Ms Chai had an unusual familiarity with his home. In my view, the pleaded explanation previously referred to for the purchase of the unit and Porsche in Ms Chai’s name is highly improbable, and not to be accepted. Nor do I accept Mr Lee’s evidence about the reason for purchasing the unit in Ms Chai’s name. On occasion, they entertained other people at the unit, with the wedding photos on display. Nor do I accept the explanation given in evidence by Mr Lee for the purchase of the Porsche in Ms Chai’s name. By this time, they had been conducting their affair for approximately 12 months. Moreover, by then Mr Lee had been lending his Pajero to Ms Chai.
[60]See CFI 104 (particularly paras 6, 8, 9, 10, 11, 18); CFI 103; and CFI 102.
[61]T 2-43/50.
It was submitted that Mr Lee, when giving evidence, exaggerated his mental illness, no doubt in support of his claim to have gifts set aside. When asked a series of questions about whether his recollection was sufficiently reliable to enable him to say whether events occurred in the year 2000 as distinct from the year 2002, he said that he used to live in a psychiatric hospital[62]. Elsewhere he gave evidence that he was in hospital for more than 13 days[63] . His evidence was contrasted with exhibit 4, which records that he was in a hospital in Taiwan early in 2002 for a period of 13 days. In my view, there was some degree of exaggeration in Mr Lee’s evidence on this point.
[62]T1-61/10-35.
[63]T2-21/30-40.
It was submitted that Mr Lee made a false allegation that Ms Chai stole property of his in Taiwan. The allegation was said to be demonstrably false, and to have been made solely for the purpose of discrediting and humiliating Ms Chai.
Mr Lee’s evidence of the theft has been referred to earlier in these reasons. The theft was said to have occasioned a telephone call which Mr Lee said he made to Ms Chai just prior to his returning to Australia on 5 July 2003[64]. Mr Lee, in this context, said that he was sure he saw Ms Chai in Taiwan in May 2003[65]. As mentioned, it was in 2005 that Mr Lee made a formal complaint to police in Taiwan about the theft.
[64]T 2-10/20-30, and CFI 107 para 125.
[65]CFI 107 para 124.
Records of Ms Chai’s overseas travel, which I accept as correct, show that she returned to Australia on 7 April 2003, and did not again depart until 21 September 2003[66]. The physical difficulties in removing all of the items from a home, and the fact that there is no suggestion that Ms Chai had a place in Taiwan for which any of the property might be useful, indicates a degree of improbability about the allegation. It is to some extent, however, a mirror of Mr Lee’s own conduct in September 2003. Moreover, the fact that no complaint was made until 2005 (the same year that Mrs Lee lodged a complaint about Ms Chai’s adultery), adds to the doubt surrounding this allegation.
[66]CFI 106 Ex AC 10.
Mr Lee gave evidence that in the six month period prior to his return to Australia on 5 July 2003, he saw Ms Chai in Taiwan on many occasions, and that the sexual relationship between them was maintained throughout that period. He also gave evidence that after May 2003, he and Ms Chai continued to speak on the phone, though on occasion she refused to answer his calls, or treated some as a joke.[67] He also gave evidence that the sexual relationship continued over some days when he returned to Australia in July 2003[68]. This evidence would make the allegation of theft seem highly improbable. However, Mr Lee’s evidence that he saw Ms Chai in Taiwan in May 2003 is demonstrably wrong; and, in light of Mr Lee’s conduct in September 2003, the evidence that the relationship continued as described by Mr Lee through to July 2003 seems unlikely.
[67]CFI 107 paras 123, 124.
[68]T 2-6/55; 2-11/28.
A consideration of Mr Lee’s evidence about the theft, together with his evidence of his relationship with Ms Chai in 2003, leaves me in a position where I am not prepared to accept his evidence on either matter. It also provides a further basis for concern about Mr Lee’s credit generally.
The defendant’s submissions referred to conduct by Mr Lee which, in my view, demonstrated that Mr Lee has had for a substantial number of years shown a degree of hostility to Ms Chai. They included the fact that he has insisted on relying on photographs of Ms Chai of little or no relevance to the case, but which she would find embarrassing and humiliating. It is not uncommon in litigation between people who where formerly in a relationship, that one shows a substantial degree of hostility to the other. This seems to me to be a less significant consideration than some of the other matters relied upon in the defendant’s submissions.
It was submitted that Mr Lee had, in the pleadings, falsely denied having Ms Chai’s jewellery, taken from the unit in September 2003. For Mr Lee, it was submitted that the pleadings do not contain such a denial.
In her counter-claim dated 7 June 2004, Ms Chai alleged that Mr and Mrs Lee converted her property by taking it from the unit. Particulars of the property included a number of items of jewellery. Amended particulars of the counter-claim, in a pleading dated 15 July 2005, more fully identified the jewellery. In an answer to the counter-claim dated 20 December 2005, Mr Lee alleged that the property taken was his, not Ms Chai’s. The jewellery was further particularised in an amended defence and counter-claim dated 8 August 2007, with values. In his amended answer dated 10 April 2008, Mr Lee did not admit that all of the items particularised in the counter-claim had been taken from the unit; and alleged that the contents of the unit were his property. However on 24 July 2008, a number of items of jewellery, identified by reference to the particulars of the counter-claim, were delivered by Mr Lee’s solicitors to Ms Chai’s solicitors[69]. On one view of the answers, it might be said that Mr Lee denied taking the items which he subsequently returned. The alternative view is that he was asserting that the jewellery which he later returned was his. The basis for this is not apparent, and the assertion is wrong. Neither view reflects well on Mr Lee’s credit.
[69]CFI 107, ex JL1-11.
A number of other matters were relied upon by Mr Savage, in respect of Mr Lee’s credit. I do not accept that Mr Lee was unwilling to acknowledge that he had been the editor of the TFAQ newsletter[70]. Nor does the submission that at the time of the transfer of the Stretton house to Kevin, gift tax was higher than inheritance tax in Taiwan, accurately reflect Mr Lee’s evidence[71]. With regard to other matters, I consider the evidence not to be sufficient to enable me to make findings which assist me in relation to Mr Lee’s credit.
[70]See T 2-28/25.
[71]T 3-15/30-60.
For the plaintiff, it was submitted that it was apparent that Mr Lee gave an honest account of his recollections. I did not form that impression of Mr Lee. The plaintiff’s submissions also relied on corroboration that came principally from the evidence of Mrs Lee, Mr Samaratunga and Mrs Samaratunga. I shall discuss separately the credit of these witnesses.
It was also submitted that discrepancies between the evidence given in respect of the application for security for costs, and other evidence relating to Mr Lee’s financial position, was explicable by reason of the fact that the evidence was given in a three way telephone conversation, with Mr Lee’s son acting as an interpreter; and by the use in that conversation of words which have technical meanings. As previously indicated, it seems to me unlikely that these matters substantially explain the difficulties relating to this evidence.
Overall it seems to me that I should approach Mr Lee’s evidence with considerable caution, particularly in respect of matters central to the determination of the case.
Mrs Lee: some credit issues
Submissions were made on behalf of Ms Chai, attacking the credit of Mrs Lee. It was submitted that Mrs Lee was an evasive witness, who gave dissembling evidence in relation to the financial position of herself, Mr Lee and Mr Lee’s family in Taiwan. In my view, the evidence of Mrs Lee on these matters was evasive. I note that her involvement in the business affairs of Mr Lee’s family makes it likely that she was well placed to know Mr Lee’s financial position.
Mrs Lee gave evidence that from “in about 1999” she had a close relationship with Ms Chai, and that she and Ms Chai were together often. According to Mrs Lee, Ms Chai was concerned about Mr Lee’s consumption of alcohol, and she would come to the Lee home to get Mr Lee and Mrs Lee to walk in the park. The latter evidence is not supported by any other witness, and in my view is unlikely. Mr Lee gave evidence that he and Ms Chai had little contact prior to 2000. Ms Chai’s evidence is to similar effect. Mrs Lee’s evidence about her relationship with Ms Chai is unlikely, and I do not accept it. It appears to be designed to bolster Mr Lee’s alternative case.
Mrs Lee gave evidence that Ms Chai was “incredibly friendly” to her, was generous to the Lee family, and would spend money on them “without blinking an eye”. However, Mrs Lee also gave evidence that Ms Chai said, when she started up the travel agency, that she did so because her husband never gave her money; and that Ms Chai was subject to significant financial constraints imposed by her husband, who had reduced the monthly amount he gave her from $5,000 to $2,000[72]. This latter evidence should be compared with Ms Chai’s bank statements[73], which show substantial deposits which, on Ms Chai’s unchallenged evidence[74], seem likely to have come from her husband. For a time they might be said to reflect monthly payments of $5,000, around the end of 1999, and up to 3 May 2000, after the affair commenced. After that, and some time after Mrs Lee had moved back to Taiwan, the payments discontinued for some time. As mentioned, Mrs Chai’s travel agency was not successful financially. It is unlikely that Mrs Lee and Ms Chai had discussions about Ms Chai’s personal financial situation in 1999, when the travel agency commenced; and in any event Ms Chai’s bank records support her evidence that her husband was making payments to her at this time. In my view, Mrs Lee’s evidence of Ms Chai’s generosity to the Lee family while Mrs Lee was still living in Australia is unlikely to be true, and I generally do not accept it; though there is evidence that on one occasion Ms Chai made a gift to Mrs Lee’s daughter[75]. Ms Chai’s acknowledgment that she was generous[76], is likely to refer to generosity to the Taiwanese community. I do not accept that Ms Chai told Mrs Lee that her husband had reduced his payments to her. The evidence seems intended to bolster Mrs Lee’s evidence of unusual interest shown by Ms Chai in the Lee family before Mrs Lee returned to Taiwan, evidence which I do not accept.
[72]CFI 108 paras 12, 19, 20.
[73]CFI 106 Ex AC 3.
[74]CFI 106 para 8.
[75]T 6-19/20.
[76]CFI 106 para 144.5.
Mrs Lee also gave evidence that, by the end of 1999, Mr Lee’s mental health was poor; that it had been deteriorating; and that she was constantly concerned about his inappropriate behaviour and his reliance on drugs[77]. This evidence was related to Mrs Lee’s evidence that, whenever they met, she discussed Mr Lee’s severe depression and other psychological problems with Ms Chai, before Mrs Lee returned to live in Taiwan[78].
[77]CFI 108 para 14.
[78]CFI 108 paras 13, 14,
There is no medical evidence to support the evidence of Mrs Lee that Mr Lee’s health had been deteriorating and that he had severe depression at this time. The medical experts agreed that Mr Lee’s depressive disorder was not present during the period between March 2000 and March 2001, because of consistent and appropriate treatment, evidenced by his list of medications, with prescriptions on a near-monthly basis[79]. The same list records prescriptions on a similar basis from September 1999. Moreover, in her oral evidence Mrs Lee said that Mr Lee would not be happy if she told other people he suffered from a mental illness[80]. Even if it were to be accepted that Mrs Lee had regular contact with Ms Chai before Mrs Lee returned to Taiwan about the end of 1999, it is improbable that Mrs Lee would have discussed Mr Lee’s mental condition with Ms Chai. Again, the evidence seems to be designed to support Mr Lee’s alternative case.
[79]Ex 1 Tab 2 p 1 para 1; and Table B 2.
[80]T4-16/50 to 4-17/25.
Mrs Lee had obvious reason to be hostile to Ms Chai. That was reflected in her demeanour in the witness box.
There are, in my view, substantial reasons to treat Mrs Lee’s evidence, where it is adverse to Ms Chai, with considerable caution.
Mr Samaratunga: some credit issues
Mr Samaratunga lives at Ingluna Circuit, across the road from the Lee residence. He became friendly with Mr Lee, shortly after Mr Lee purchased the house at 52 Ingluna Circuit. Mr Samaratunga gave evidence in an affidavit that, as the friendship developed, Mr Lee would invite him and his wife out to dinner with Mr Lee and his Taiwanese friends. Mr Lee always paid for dinner on these occasions[81]. In his oral evidence, Mr Samaratunga said that when Mr Lee was in Australia, Mr and Ms Samaratunga went out to dinner with Mr Lee quite regularly, sometimes once a week and sometimes twice a week[82]. It appeared from Mr Samaratunga’s evidence that when Mr Lee was absent from Australia, Mr Samaratunga would collect Mr Lee’s mail, and pay Mr Lee’s bills, from money which he left with Mr Samaratunga[83].
[81]CFI 96 paras 8, 10 and 11.
[82]T5-30/30.
[83]T 5-45/5 to 15.
Mr Samaratunga gave evidence that, when he met Ms Chai, she was introduced as the President of the TFAQ[84]. That was an office she came to hold about 1 July 2000. Given Mr Lee’s evidence that he and Ms Chai did not socialise until early 2000, and the fact that the affair commenced in March of that year, that evidence seems likely to be correct; and that Mr Samaratunga did not meet Ms Chai until after June 2000.
[84]CFI 96 para 19.
Mr Samaratunga gave evidence that after the commencement of the relationship between Mr Lee and Ms Chai, Mr Lee’s mental illness seemed to get worse[85]. This evidence is inconsistent with that of the medical experts, discussed later, and I do not accept it. I would view this evidence less critically, were it not for the fact that Mr Samaratunga is a psychiatric nurse.
[85]CFI 96 para 31.
Mr Samaratunga also gave evidence that he and his wife went out several times with Mr Lee, Mrs Lee and Ms Chai[86]. By this time, Mrs Lee had returned to live in Taiwan, though she came out to Australia in the middle and at the end of year, during holiday periods. By the time that Mr Samaratunga had been introduced to Ms Chai, the affair between her and Mr Lee was well underway. In my view, this evidence of Mr Samaratunga is improbable, and I do not accept it.
[86]CFI 96 para 22.
Mr Samaratunga gave evidence that Ms Chai invited him and his wife to her house on five occasions, the last of which they accepted[87]. These events can only have occurred after 30 June 2000. Given the state of the relationship between Mr Lee and Ms Chai at this time, and the fact that Ms Chai was by then living at the unit and not her former family home, I consider this evidence improbable, and do not accept it.
[87]CFI 96 para 21.
Mr Samaratunga gave evidence that Mr Lee “numerous times” offered to let Mr and Mrs Samaratunga have their guests stay in the unit at Southbank. These offers were made after the first occasion on which Mr & Mrs Samaratunga dined at the unit. Mr Samaratunga identifies this as occurring around the middle of 2001[88]. By this time, Ms Chai had been living in the unit for a period well in excess of 12 months; and it was used by Mr Lee and Ms Chai to conduct their affair. Again, this evidence seems to me to be highly improbable, and I do not accept it. It seems to me that it demonstrates a desire by Mr Samaratunga to support Mr Lee’s case.
[88]CFI 96 para 23.
Mr Samaratunga gave evidence that he realised Mr Lee and Ms Chai were having an affair when he went to the unit at Southbank about the middle of 2001[89]. However, he had earlier given evidence[90] that, when Mr Lee introduced Ms Chai to him (after 1 July 2000), Ms Chai was behaving in a flirtatious manner towards Mr Lee. He also gave evidence that, after Mrs Lee returned to Taiwan (about the end of 1999), Ms Chai “was present most the time”[91]. In his affidavit, after referring to the introduction, he said that he started to see that Ms Chai was frequently coming to Mr Lee’s house[92]. In the circumstances, and bearing in mind the relationship between Mr Lee and Mr Samaratunga, I do not accept Mr Samaratunga’s evidence that he did not know of the relationship until after the middle of 2001. Given his relationship with Mr Lee, including Mr Lee’s confidence in him, and his observations of the presence of Ms Chai at Mr Lee’s house, I consider it highly likely that he was aware of the affair from shortly after 1 July 2000.
[89]CFI 96 paras 23 and 24
[90]CFI 96 para 19.
[91]T5-24/50.
[92]CFI 96 para 20.
Mr Samaratunga also gave evidence of an occasion on which Mrs Samaratunga contacted a medial practitioner by telephone to obtain a prescription for medication for Mr Lee. Ms Chai was said to have been present. There was no suggestion that the medical practitioner had on any occasion seen Mr Lee. I consider this evidence to be improbable, and do not accept it.
Mr Samaratunga gave evidence that in September 2003, at Mr Lee’s request, he accompanied Mr Lee to the unit at Southbank where they spoke to the manager. He said they departed, the manager having promised to arrange a new key to the unit, for Mr Lee[93]. He also said that the first he knew about goods being taken from the unit was when a removalist’s truck came to Ingluna Circuit, and Mr Lee asked him to direct it to Ms Chai’s house[94]. He did so, driving his car in front of the removalist’s truck to Ms Chai’s home at Stretton, where he opened the gate for the removalist[95].
[93]CFI 96 para 46-47.
[94]T5-41/20-45.
[95]CFI 124 para 8.
Mr Lee’s evidence was that in September 2003, he and Mr Samaratunga went to Southbank and spoke with the manager of the apartment block. They told the manager that Ms Chai and Mr Lee were “back together again”, and that Mr Lee had nowhere else to stay. That resulted in the manager promising to change the locks and give Mr Lee a new key. Mr Lee then said that Mr Samaratunga and he came back later in the day, and obtained the key. Subsequently, arrangements were made for removalists to come to the unit. He and Mr Samaratunga, and Mrs Lee, were present when they came to remove the contents of the unit[96]. In my view, Mr Lee’s evidence on this point is likely to be true. It is likely that Mr Samaratunga was present when the false explanation was given to the manager as to why Mr Lee needed a key to the unit. Mr Lee seems to have relied upon Mr Samaratunga for some assistance in communicating in English[97]. It is also likely that Mr Samaratunga was present when the removalists came. He was conscious that a criminal complaint had been made about the removal of the contents from the unit, as the police had come to his home shortly after this event. I do not accept Mr Samaratunga’s evidence about his role in relation to the changing of the locks and the obtaining of a new key for the unit: nor in relation to the removal of the contents of the unit.
[96]CFI 107 para 129-130 ; see also T 2-14/30-40.
[97]T 2-14/36.
In his affidavit in which he said he guided the removalists to Ms Chai’s house at Stretton, he explained his actions by saying that he knew how to get from Ingluna Circuit to Ms Chai’s home; but he did not know the street name or house number[98]. When cross-examined about this event, he said that he guided the removalists to Ms Chai’s house at Benhiam Street, Calamvale; that he remembered the name of the street because there were only a few houses there; that Ms Chai was residing there, and that he knew this because he had arranged for a friend of his to tutor Ms Chai’s daughter there. He also explained his affidavit by saying that there had been a mistake, and someone (unidentified) had put Stretton in the affidavit, instead of Benhiam Street, Calamvale[99]. In my view, Mr Samaratunga’s evidence in cross-examination was not a genuine correction of an honest mistake in otherwise truthful evidence. Its most likely explanation is as a clumsy attempt to patch up evidence which was demonstrably wrong. I do not accept any of Mr Samaratunga’s evidence on this topic. As stated earlier, I consider the evidence about an attempt to deliver to Ms Chai nay property taken from the unit to be a concoction.
[98]CFI 124 para 8.
[99]T 5-41/15 to 5-43/30.
Mr Samaratunga gave evidence that when he first saw Mr Lee and Ms Chai together, he considered them to be close friends. On almost all the occasions when he was with them, he discussed Mr Lee’s health, stressing that it was important not to mix alcohol with psychiatric medication[100]. These occasions included dinners at various restaurants. The evidence is improbable, both because it seems to me unlikely the matter was discussed on almost every occasion that Mr Samaratunga was with Mr Lee and Ms Chai; and in light of Mrs Lee’s evidence, discussed earlier about Mr Lee’s likely reaction to a discussion of his health. I also consider it unlikely that Mr Samaratunga discussed Mr Lee’s health, and his medication with Ms Chai, before he became aware that they were having an affair.
[100]T5-23/40 to 5-24/10.
Mr Samaratunga gave evidence that he did not know that the Porsche was registered in Ms Chai’s name, until he took it to a mechanic to get a roadworthy certificate[101]. He also gave evidence that he was present when the deposit was paid[102]. The receipt for the deposit issued in Ms Chai’s name; and there was no suggestion from Mr Lee of any discussion to the effect that the Porsche would be purchased in the name of anyone but Ms Chai. On Ms Chai’s uncontested evidence, insurance on the car was effected at Mr Samaratunga’s house, shortly after the purchase. Like Mr Samaratunga’s evidence about his role in relation to the removal of property from the unit, I do not accept his evidence that he did not know the Porsche was registered in Ms Chai’s name until after it was taken from the unit. I consider this evidence to be motivated by a desire to minimise his apparent involvement in the removal of property from the unit, some of which was plainly Ms Chai’s; and also to minimise his apparent involvement in an attempt to transfer the Porsche out of Ms Chai’s name.
[101]CFI 96 para 51.
[102]CFI 96 para 42.
In giving evidence, Mr Samaratunga did not create the impression of a person attempting to give careful and objective evidence.
In my view, there are substantial reasons to approach Mr Samaratunga’s evidence with considerable caution.
Tender of affidavit of Ms Samaratunga
Ms Samaratunga swore an affidavit dated 15 May 2009[103]. However, her evidence in chief was given orally, and not by means of this affidavit. In the course of cross-examination, her attention was drawn to the fact that in the affidavit, she made a number of statements relating to the occasion on which she first met Ms Chai, which were inconsistent with her oral evidence. In re-examination, Mr Bell QC who appeared for Mr Lee, sought to tender the affidavit. An objection was taken, which was not ruled on at the time, on the basis that the parties would make subsequent submissions in relation to it.
[103]CFI 97.
In support of the tender, reference was made to a passage from a text on evidence[104], which deals with s 19 of the Evidence Act 1977 (Qld); and to a number of cases.
[104]Forbes, JRS Evidence Law in Queensland (7th ed) Thomson Lawbook Co.
Section 19 is the current Queensland provision which modifies the operation of the rule in Queen’s Case[105]. That case is usually accepted as authority for the proposition that a witness can not be cross-examined about the contents of a document unless the document is both shown to the witness, and put in evidence by the cross-examiner as part of the cross-examiner’s case[106]. Section 19 provides that a witness may be cross-examined as to a previous statement made in writing by the witness, without the witness being shown the writing. Such cross-examination does not have the consequence that the cross-examiner must tender the document[107]. However, the document may be tendered in re-examination.
[105](1820) Brod & Bing 284; 129 ER 976.
[106]M H McHugh QC, Cross-Examination `on Documents (1985) 1 Aust Bar Rev 51; Forbes at [19.5].
[107]Forbes at [19.16].
One of the cases relied upon in support of the tender is Meredith v Innes[108]. A deposition had been taken from a person who had been seriously injured in a motor vehicle collision. Subsequently that person sued the owner of a motor vehicle involved in the collision for damages. He was cross-examined about some of the statements made to the magistrate, and recorded in the deposition. In re-examination, the deposition was successfully tendered. On appeal, the admission of the whole of the document was held to be erroneous. The right to tender was limited to the parts which had been the subject of cross-examination, together with other parts of the document which might explain or qualify what was already before the court[109]. The decision was applied in Wentworth v Rogers (No 10)[110], another authority referred to in support of the tender.
[108](1930) 31 SR(NSW) 104.
[109]See Meredith especially at 112-113.
[110](1987) 8 NSWLR 399, 409.
Reliance was also placed, in support of the tender, on R v McGregor[111]. There, a witness had used a document to refresh his memory in relation to a telephone number. The cross-examiner inspected the document, and cross-examined on other parts of it. It was held that this made the whole of the document admissible. The decision reflects a qualification of the rule that, if a party calls for and inspects a document held by the other party, the inspecting party is bound to put the document in evidence, if required to do so[112]. The qualification is that it does not apply, if the document has been used by a witness to refresh the witness’s memory; unless cross-examination on the document extends beyond those parts used by the witness for that purpose. Since Ms Samaratunga’s affidavit was not a document called for by the cross-examiner, and no question of Ms Samaratunga’s having used the document to refresh her memory arose, neither the rule nor the case is of present relevance.
[111][1984] 1 Qd R 256.
[112]Cross on Evidence at [17240].
It might first be observed that the submissions for Mr Lee rely upon the fact that Mr Lee’s alcohol abuse and dependence would have been likely to have been obvious to her. It may be accepted that, at least at some time after the commencement of the relationship, his abuse of, and perhaps his dependence on, alcohol would have been obvious to her. Her own evidence would indicate this. However, there is no suggestion that any relevant decision of Mr Lee was made while he was intoxicated; or indeed was somehow the product of alcohol dependence. Mr Lee’s alcohol abuse and dependence are described by the medical experts as episodic.
The submissions made on Mr Lee’s behalf also rely upon the view of the medical experts that a person without medical training, but in a personal and familiar relationship with Mr Lee, would have been aware of the presence of “a grandiose and entitled affect”. One matter relied upon in the evidence, apparently as displaying such an affect, was that, on occasion, Mr Lee was said to dress bizarrely in traditional Chinese dress. Mr Chuan (whose evidence I accept) gave evidence that he “caught up with Mr Lee on average every six months”[294]; and that he would wear traditional Chinese robes[295]. Mr Samaratunga gave evidence of two occasions on which Mr Lee dressed in “opulent traditional Chinese dress, like a Chinese Emperor”[296]; for one of which, he said Ms Chai was present[297]. The submissions for Mr Lee do not identify anything else said to demonstrate the presence of a grandiose and entitled affect. This evidence provides at best a very flimsy basis for concluding that by March 2001, Ms Chai should have been aware of the presence in Mr Lee of a grandiose and entitled affect. Nevertheless, the medical experts considered that in that period, a presence of such an affect is something of which a person in a personal or familiar relationship with Mr Lee would have been aware[298].
[294]CFI 103 para 4.
[295]CFI 103 para 11.
[296]CFI 96 para 13.
[297]T5-25/15-35. His oral evidence suggested that he dressed in that fashion at restaurants on more than one occasion.
[298]Ex 1, tab 2, p 2, para 3; p 4, para 10.
The grandiose and entitled affect appears to have been a symptom of Mr Lee’s personality disorder[299]. There is no positive evidence that such an affect was one that would have made it sufficiently evident to Ms Chai that Mr Lee was subject to a “special disadvantage”. The most that is said by the medical experts is that it is unlikely that a person in such relationship with Mr Lee would have had “a sophisticated understanding of the nature of a Personality Disorder”[300]. It seems to me that the evidence is not sufficient to satisfy the test formulated by Mason J in Amadio, referred to previously.
[299]Ex 1, tab 2, para 2(a) and (b); p 2, para 3; p 4, para 10.
[300]Ex 1, tab 2, p 2, para 3; p 4, para 10.
I have previously rejected Ms Chai’s evidence that she did not know prior to 2002, that Mr Lee was taking medication. However, I am not prepared to find that she knew this prior to the purchase of the unit. The affair appears to have commenced late in March 2000. Prior to that, such contact as had occurred between Mr Lee and Ms Chai was unlikely to have occurred in circumstance when Mr Lee was obviously taking medication.
Between the time when the affair commenced, and the completion of the contract for the purchase of the unit, there were periods when Mr Lee was in Taiwan and Ms Chai was not. They did not live together in this period. However, there was at least one occasion in this period when they spent a night together. I would not be prepared to make a positive finding, on this basis, that by the time the purchase of the unit was completed, Ms Chai knew that Mr Lee was taking medication. Mr Lee gives evidence to the contrary; but for reasons previously given, I am not prepared to act on this evidence.
However I accept that, by the time of the purchase of the Porsche, Ms Chai knew that Mr Lee was on medication. By this time, Ms Chai had been living in the unit for a period of about nine months, and for a substantial part of the time Mr Lee had stayed there with her. It seems to me inherently probable that she knew that the medication was for a mental condition. There is, however, no evidence to show that she then knew that the condition would seriously affect Mr Lee’s ability to make a judgment as to his own best interest.
The question remains whether her knowledge Mr Lee was being treated for a mental condition meant that she was aware of the possibility that his condition might seriously affect his ability to make a judgment as to his own best interests; or that the fact that she knew he was taking medication for a mental condition would raise that possibility in the mind of any reasonable person.
On these findings, Ms Chai knew that Mr Lee was being treated for a mental condition. She was therefore not in the position of knowing that he had a mental condition, which was not being treated. The evidence does not indicate that the treatment was ineffective or inadequate; rather the contrary. There was no evidence to show that Ms Chai knew, or had reason to suspect, that Mr Lee suffered additionally from a personality disorder, not subject to treatment, and which affected his ability to make a judgment in his own best interest. No fact has been identified which might be said to have raised that possibility in the mind of any reasonable person. The surrounding circumstances, as demonstrated by the evidence, do not seem to support it. Mr Lee was in this period, engaged in a development project. Although he was generous to Ms Chai, he had also been generous to his daughter. An analysis by reference to the position of a reasonable person does not lead to a different result.
I would not, therefore, be prepared to find that, if Mr Lee were subject to a special disadvantage, that was sufficiently evident to Ms Chai to make it unconscientious for her to retain the Porsche.
Conclusion
I would dismiss the Plaintiff’s claim. To the extent necessary, I would give judgment for the defendant on the counter-claim. I shall hear submissions on the orders to be made, and on costs (orders were made after further submissions).
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