Lee v Yi
[2009] WADC 78
•29 MAY 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LEE & ANOR -v- YI & ANOR [2009] WADC 78
CORAM: MARTINO DCJ
HEARD: 16-20 MARCH 2009
DELIVERED : 29 MAY 2009
FILE NO/S: CIV 498 of 2007
BETWEEN: SANG YUL LEE
First Plaintiff
YONG SUK LEE
Second PlaintiffAND
WEN RONG YI
First DefendantWAN KI YI
Second Defendant
Catchwords:
Money - By whom moneys were advanced - Whether moneys advanced were gift or a loan
Legislation:
Nil
Result:
Judgment for plaintiffs
Representation:
Counsel:
First Plaintiff : Mr G H Murphy SC
Second Plaintiff : Mr G H Murphy SC
First Defendant : Mr M Barrett-Lennard
Second Defendant : Mr M Barrett-Lennard
Solicitors:
First Plaintiff : Talbot & Olivier
Second Plaintiff : Talbot & Olivier
First Defendant : Barrett-Lennard & Co
Second Defendant : Barrett-Lennard & Co
Case(s) referred to in judgment(s):
De La Espriella‑Velasco v R (2006) 31 WAR 291
Federation Insurance Ltd v Wasson (1987) 163 CLR 303
Plunkett v Bull (1915) 19 CLR 544
Wiedemann v Walpole [1891] 2 QB 534
Young v Tibbots (1912) 14 CLR 114
MARTINO DCJ: The first plaintiff, Mr Lee, and the second plaintiff, Mrs Lee, are husband and wife who reside in Korea. The first defendant, Mrs Yi, is the widow of the second defendant, Mr Yi, who died on 7 November 2005. By an order made in this action on 18 September 2008 Mrs Yi is Mr Yi's representative in the action. Mrs Yi resides in Perth, as did Mr Yi who migrated to Australia from Korea approximately thirty years ago. Mr Yi was the brother of Mrs Lee.
Mr and Mrs Lee claim that between 2000 and 2002 they advanced moneys to Mr and Mrs Yi as loans. They claim that some money was repaid and they seek repayment of the balance plus interest pursuant to s 32 of the Supreme Court Act 1935. Mr and Mrs Yi admit that they have received some moneys, but they deny that the moneys they received were loans and deny that they were received from Mr and Mrs Lee.
The pleadings
In their statement of claim Mr and Mrs Lee claim that they paid a total of $374,816.78 to Mr and Mrs Yi by seven payments:
13 October 2000 $37,648.00
16 October 2000 $37,972.28
21 March 2001 $39,600.00
22 March 2001 $39,600.00
26 September 2001 $20,270.00
5 October 2001 $180,466.50
7 January 2002 $19,260.00
In a schedule to the statement of claim Mr and Mrs Lee provide the following details of the payments that they allege were made:
Date
Account Name
Account No
Amount
13/10/2000
Wen Rong Yi t/as Beijing Soyabean Products
113-0090266
$9,412.00
13/10/2000
Wen Rong Yi t/as Beijing Soyabean Products
113-0090266
$9,412.00
13/10/2000
Wan Ki Yi
5590848
$9,412.00
13/10/2000
Wan Ki Yi
5590848
$9,412.00
16/10/2000
Wan Ki Yi
5590848
$9,493.07
16/10/2000
Wan Ki Yi
5590848
$9,493.07
16/10/2000
Wen Rong Yi t/as Beijing Soyabean Products
113-0090266
$9,493.07
16/10/2000
Wen Rong Yi t/as Beijing Soyabean Products
113-0090266
$9,493.07
21/03/2001
Wen Rong Yi t/as Beijing Soyabean Products
113-0090266
$19,800.00
21/03/01
Wan Ki Yi
5590848
$19,800.00
22/03/01
Wan Ki Yi
5590848
$19,800.00
22/03/01
Wan Ki Yi
5590848
$19,800.00
26/09/01
Wen Rong Yi t/as Beijing Soyabean Products
113-0090266
$20,270.00
5/10/2001
Wen Rong Yi t/as Beijing Soyabean Products
113-0090266
$180,466.50
7/01/2002
Wen Rong Yi t/as Beijing Soyabean Products
113-0090266
$19,260.00
They plead that on 19 February 2002 Mr and Mrs Yi repaid $16,640, by paying that sum to Mr and Mrs Lee's son at Mr and Mrs Lee's request.
In further and better particulars of their statement of claim they plead that there were four oral loan agreements. They plead that each of the four agreements were made in a telephone conversation between Mr Yi, who was in Australia, and Mr and Mrs Lee, who were in Korea. In each agreement Mr Yi is alleged to have requested on his behalf and on behalf of Mrs Yi that Mr and Mrs Lee lend them money for Mr and Mrs Yi's tofu business. They plead it was an implied term of each agreement that the loan was repayable on demand. The payments made on 13 and 16 October 2000 are claimed to have been made pursuant to the first agreement, the payments on 21 and 22 March 2001 pursuant to the second agreement, the payments on 26 September and 5 October 2001 pursuant to the third agreement and the payment made on 7 January 2002 pursuant to the fourth agreement.
By their defence Mr and Mrs Yi admit the payment of the following sums:
DATE AMOUNT PAYEE
16 October 2000 $18,784.00 Mrs Yi
17 October 2000 $18,946.14 Mrs Yi
22 March 2001 $19,780.00 Mrs Yi
22 March 2001 $19,780.00 Mr Yi
23 March 2001 $39,560.00 Mr Yi
28 September 2001 $20,255.00 Mrs Yi
5 October 2001 $180,460.00 Mrs Yi
9 January 2002 $19,260.00 Mr Yi
The payment of $20,255 on 28 September 2001 was admitted by an amendment to the defence made at trial.
Mr and Mrs Yi deny that the payments were loans and do not admit that they payments were made by Mr and Mrs Lee. They plead that the payments were gifts made by the Mr Yi's father pursuant to an oral arrangement made between Mr Yi and his father in a telephone conversation made between them prior to October 2000 in which Mr Lee's father told him that he would make a gift of approximately $350,000 to Mr and Mrs Yi by making transfers of sums of money to them from Korea. Mr and Mrs Yi plead that if any of the payments were made by Mr and Mrs Lee then they were made as agent for Mr Yi's father pursuant to the oral arrangement made between Mr Yi and his father in their telephone conversation prior to October 2000.
Mr and Mrs Yi plead that in addition to the payment of $16,640 to Mr and Mrs Lee's son on 19 February 2002 they also made cash advances to him totalling $3,000 in December 2001 and January 2002. They deny that the payments were repayments of loans.
Mr and Mrs Yi also plead that Mr and Mrs Lee knew of the oral arrangement for a gift made between Mr Yi and his father prior to October 2000, that Mr and Mrs Yi and Mr Yi's father have relied upon the absence of any assertion that the sums paid to Mr and Mrs Yee were loans, that Mr and Mrs Lee have delayed raising any assertion that the sums were loans until after the death of Mr Yi and his parents and that Mr and Mrs Lee are now estopped from asserting the existence of a loan. In his closing submissions counsel for Mr and Mrs Yi, Mr Barrett‑Lennard, informed me that as the estoppel claim is based upon the plea that the moneys were advanced as a gift the plea cannot succeed unless the moneys were advanced as a gift. If the moneys were advanced as a gift then Mr and Mrs Lee's claim fails.
Language
The evidence in chief of witnesses consisted mainly of their affidavits, which were filed and served prior to trial. Witnesses were cross-examined on their evidence when the opposing party required them to be available for that purpose. For none of the witnesses who gave evidence was English the first language.
Mr and Mrs Lee swore affidavits in Korean. English language translations of those affidavits were tendered into evidence. They gave their oral evidence in Korean through an interpreter. Mr Lee gave evidence that he can read and write basic English, that he can speak basic English and understand basic spoken English and that he does not speak Chinese. Mrs Lee gave evidence that she can read and write very basic English and that she finds it hard to speak and to understand spoken English.
Mr and Mrs Lee's son Kyung Je Lee, who is known as Ricky Lee, swore his affidavit in English and gave his oral evidence in English. Mr Ricky Lee was born on 27 September 1973. He moved to Australia to study in January 2000. His evidence was that when he arrived in Australia he barely spoke English and that in the year 2000 he studied an intensive English language course. He also gave evidence that he can speak a few words in Chinese.
Mrs Lee's sister Mrs Moon Sook Kim swore an affidavit in Korean. An English language translation of that affidavit was tendered into evidence. Mrs Kim gave her oral evidence in Korean through an interpreter. She gave evidence that she has resided in Perth since October 1989 and that she can read and write English and can speak and understand basic spoken English.
Mrs Kim's son Kwang Tae Kim, who is known as Matthew Kim, swore his affidavit in English and gave his oral evidence in English. Mr Kim was born on 21 June 1970 and he came to Perth with his family in October 1989. Mr Kim is a civil engineer. He studied engineering at Curtin University.
Mrs Yi swore her affidavit in English. When she gave her oral evidence she did so primarily in English, but from time to time she was assisted by an interpreter in Chinese. Mrs Yi's evidence was that she came to Australia from China in 1988 and studied at a language college in Perth. Mrs Yi also gave evidence that she does not speak Korean, other than a few elementary phrases.
Mrs Yi's evidence was that Mr Yi spoke both Korean and Chinese.
Mr and Mrs Yi's daughter Ms Emma Chen Yi gave evidence in English. She was born in China in 1980 and is in her fourth year of a studying for a law degree. She gave evidence that she came to Australia in 1991 and that she does not speak Korean.
Yoon Cheol Lee was the father of Mrs Lee, Mr Yi and Mrs Moon. Mr Yoon Cheol Lee lived in Korea. He died on 28 June 2002. Mr and Mrs Lee gave evidence that Mr Yoon Cheol Lee did not speak Chinese and that he spoke only a few words of English. Mrs Yi's evidence was that Mr Yoon Cheol Lee could speak some Chinese and some English.
Family structure
Mr Yi, Mrs Lee and Mrs Kim were the children of Mr Yoon Cheol Lee and Mrs Suk Ran Kang. Mrs Kang died on 30 August 2005. Mr Yoon Cheol Lee and Mrs Kang had six children. Mr Yi was the eldest, followed by Mrs Kim, then Mrs Lee and then three younger children.
Mr Yi migrated to Australia approximately thirty years ago. He was an electrician. At the time of his death he was living in Perth with Mrs Yi and Ms Emma Yi.
Mrs Kim migrated to Australia with her husband and children in October 1989. Mrs Kim and her family have lived in Perth since they migrated. Mr and Mrs Kim have two children – Mr Matthew Kim and Ms Yi Jeon Kim, who is known as Grace Kim.
Mr and Mrs Lee have two children – Mr Ricky Lee and a daughter Ms Eun Kyung Lee. In January 2000 Mr Ricky Lee came to Perth to study. When he arrived he lived with Mrs Kim and her family. In approximately mid December 2001 Mr Ricky Lee commenced living with Mr and Mrs Yi. He ceased living with them in approximately mid‑February 2002 following a dispute between Mr Ricky Lee and Ms Emma Yi.
The transfer of money between South Korea and Australia in the mid 1990's
In the mid 1990s Mr Yoon Cheol Lee made a gift of money to Mr and Mrs Yi. Mr and Mrs Yi used the money to assist them in the purchase of a house. Mrs Lee assisted her father to transfer that money from South Korea to Australia. In doing so Mrs Lee needed to comply with South Korean restrictions on the sending of money overseas. Those restrictions limit the amount that a person in South Korea can send to a person outside of South Korea to approximately US$10,000 per year. Where the person outside of Korea is studying the annual limit is US$100,000.
Mrs Lee, Mr Lee and Mrs Lee's church friends sent money to Australia in the mid 1990s to enable Mr and Mrs Yi to receive the gift from Mr Yoon Cheol Lee.
Mrs Yi's Soya Bean Products Business
In the early 1990's Mrs Yi spent approximately six months in Beijing learning the production of tofu.
In December 1995 Mrs Yi registered the business name Beijing Soya Bean Product. In around 1998 Mrs Yi commenced the manufacture of tofu from her home in Kinross. In November 1998 Mrs Yi rented premises in Wangara and operated her business from that address.
On 8 August 2001 Beijing Soya Bean Products Pty Ltd was incorporated. It commenced carrying on the business. Mrs Yi owned the company's single issued share. On 1 August 2005 Mrs Yi transferred the share to Ms Emma Yi. On 24 November 2006 Mrs Emma Yi transferred that share back to Mrs Yi, who transferred it back to Ms Emma Yi on 28 March 2007.
Mrs Yi was director and secretary of the company on its incorporation. She resigned as secretary on 29 August 2001 and as director on 1 December 2005. She was reappointed director on 1 November 2006 and has remained a director. Ms Emma Yi was appointed company secretary on 29 August 2001 and continues to hold that office. She was director of the company from 1 January 2005 until 24 November 2006.
In 2001 Mrs Yi decided to build her own factory.
On 31 December 2001 Beijing Soya Bean Products Pty Ltd acquired vacant land at 10 Lincoln Lane, Joondalup. The purchase price was $142,500. In August 2002 Mr and Mrs Yi borrowed approximately $168,000 and used that money to build a factory on the land at Joondalup from where Beijing Soya Bean Products Pty Ltd has been carrying on the business.
Mr Ricky Lee's dealings with Mr and Mrs Yi and Ms Emma Yi
When Mr Ricky Lee came to Australia in January 2000 Mr and Mrs Kim lived in Winthrop and Mr and Mrs Yi lived in Kinross. By January 2000 Mrs Yi was carrying on her business from premises she rented in Wangara. Mr Ricky Lee visited those premises.
Mr Ricky Lee's evidence was that Mr and Mrs Yi told him that they needed bigger premises and to increase the size of the business. He also gave evidence that one Sunday afternoon in 2000 Ms Emma Yi drove him to Winthrop and cooked for him. After cooking she asked if Mr and Mrs Lee could lend money to Mr and Mrs Yi for their tofu business. He also gave evidence that a little later, at Mr and Mrs Yi's home in Kinross, Mrs Yi and Ms Emma Yi asked him to ask Mr and Mrs Lee to lend money to Mr and Mrs Yi so that they could build a bigger factory for the business and that they asked him to pretend to Mr Yi that the loan was suggested by Mr and Mrs Lee and not by them. Mr Ricky Lee's evidence was that he telephoned his parents and told them of the request from Mrs Yi and Ms Emma Yi. His mother told him that she wanted to help Mr Yi and she asked him to ask Mr Yi to telephone her. Mr Ricky Lee told Mr Yi that Mrs Lee wanted to speak to him.
Ms Emma Yi's evidence was that when she met Mr Ricky Lee in early 2000 it was not possible for her to communicate with Mr Ricky Lee. Her evidence was that Mr Ricky Lee's English was poor. Ms Emma Yi denied that she asked Mr Ricky Lee to request that Mr and Mrs Lee lend money to Mr and Mrs Yi. Ms Emma Yi also denied that she drove Mr Ricky Lee to Winthrop, went into the house in Winthrop and that she cooked for him. Ms Emma Yi also denied that at her home in Kinross, she asked Mr Ricky Lee to ask Mr and Mrs Lee to lend money to Mr and Mrs Yi and that she asked him to pretend to Mr Yi that the loan was suggested by Mr and Mrs Lee and not by Mrs Yi and Ms Emma Yi.
Mrs Yi also denied that she asked Mr Ricky Lee to ask Mr and Mrs Lee to lend money to her and her husband and that she asked him to pretend to Mr Yi that the loan was suggested by Mr and Mrs Lee.
Mr Matthew Kim deposed that Mr Ricky Lee told him that Mrs Yi and Ms Emma Yi asked him to ask his parents to lend money to Mr and Mrs Yi and not to tell Mr Yi about their request. Their was no objection to this evidence, but it is clearly hearsay and I do not regard it as being evidence of the truth of what Mr Ricky Lee said to Mr Matthew Kim.
Telephone conversations between Mr Yi and Mr and Mrs Lee in 2000 and 2001
Mrs Lee's evidence was that Mr Yi telephoned her in 2000, following a telephone conversation with her son in the Korean summer in which she asked her son to ask Mr Yi to do so. Mr and Mrs Lee spoke to Mr Yi on a speaker phone. Her evidence was that Mr Yi said that he could supply tofu to Qantas and to all Woolworth branches in Australia, but that he needed to increase the size of the factory. Mr Yi asked if he and Mrs Yi could borrow money from Mr and Mrs Lee. Mr Yi requested money in Korean won, Mrs Lee could not recall the amount of money that he asked to borrow. Mr Yi said that if necessary he and Mrs Yi would sell their house in Kinross to repay the money lent. Mr and Mrs Lee agreed to lend the money to Mr and Mrs Yi. Due to the South Korean restrictions on the sending of money overseas Mr and Mrs Lee asked Mr Yi to give them two bank account numbers and Mr Yi gave them his bank account number and that of Mrs Yi. Mrs Lee's evidence was that whenever Mr Yi asked for money to be lent to him she transferred the approximate amount that he asked for in Australian dollars.
Mrs Lee gave evidence that in or about early March 2001 Mr Li telephoned and asked to borrow some more money. Mr and Mrs Lee spoke to Mr Yi on a speaker phone. Mrs Lee could not recall the amount that Mr Yi asked to borrow. Mr Yi again said that he and Mrs Yi would sell their house to repay the money if necessary. Mr and Mrs Lee said to Mr Yi that they would lend the money that he asked for to him and to Mrs Yi and that they would transfer the money soon.
Mrs Lee also gave evidence that in or about early September 2001 Mr Yi telephoned and asked whether he and Mrs Yi could borrow some more money. Again Mr and Mrs Lee spoke to him on speaker phone. Again Mrs Lee could not remember the amount that Mr Yi asked for. On this occasion the request was for a much larger amount of money and he said that the loan was for him and Mrs Yi to purchase land to build a new, larger tofu factory. Mr and Mrs Lee told Mr Yi that they would lend to Mr and Mrs Yi the money that he had asked to borrow.
Mr Lee's affidavit on the subject of his conversation with Mr Yi was in the same terms as Mrs Lee's affidavit.
The transfer of moneys to Australia in 2000 and 2001
Mrs Lee's evidence was that on 13 October 2000 she asked her friend Taek Hee Kwoun to help her transfer money to Australia and that Ms Kwoun agreed. Mrs Lee and Ms Kwoun went to a bank and Mrs Lee made two transfers of $9,412 into each of the bank accounts of Mr Yi and of Mrs Yi. Ms Kwoun signed for two of the transfers. Copies of the receipts received by Mrs Lee for the transfers are exhibited to her affidavit sworn on 23 June 2008.
Ms Kwoun deposed in an affidavit that in 2000 Mrs Lee asked for her signature to assist in the transfer of money to a relative in Australia whose name was Wan Ki Yi. Ms Kwoun went to a bank with Mrs Lee and signed forms for the transfer of funds to Mr Yi. Ms Kwoun was not cross-examined on her affidavit.
Mrs Lee also gave evidence that on 16 October 2000 she asked her mother and her cousin, Myoung Sook Kang, to assist her to transfer money to Australia. Mrs Lee, Mrs Kang and Ms Myoung Sook Kang went to a bank. Mrs Lee made two transfers of $9,493 into each of the bank accounts of Mr Yi and of Mrs Yi. Mrs Kang signed for two of the transfers and Ms Myoung Sook Kang signed for the other two transfers. Copies of the receipts received by Mrs Lee for the transfers are exhibited to her affidavit sworn on 23 June 2008.
Ms Myoung Sook Kang deposed in an affidavit that in 2000 Mrs Lee asked for her signature to assist in the transfer of money to Mr and Mrs Yi. Ms Myoung Sook Kang went to a bank with Mrs Lee and signed forms for the transfer of funds to them. Ms Myoung Sook Kang was not cross-examined on her affidavit.
Mrs Lee's evidence was that on 21 March 2001, following the telephone conversation with Mr Yi in or about early March that she gave evidence of, she went to a bank with Mr Lee and withdrew 25,000,000 Korean won from his bank account, they then went to another bank and using the money that they had withdrawn and a small amount of other money that they had Mr and Mrs Lee made two transfers of $19,800, one into Mr Yi's bank account and the other into Mrs Yi's bank account. Copies of the receipts received by Mrs Lee for the transfers are exhibited to her affidavit sworn on 23 June 2008.
Mr Lee also gave evidence that he went with Mrs Lee to a bank and withdrew 25,000,000 Korean won from his bank account, they then went to another bank and using the money that they had withdrawn and a small amount of other money that they had they made two transfers of $19,800, one into Mr Yi's bank account and the other into Mrs Yi's bank account. A copy of a printout of transactions on his bank account and a copy of his band passbook are exhibited to Mr Lee's affidavit sworn on 23 June 2008.
Mrs Lee also gave evidence that on 22 March 2001 she asked her mother and Myoung Sook Kang to assist her to transfer money to Australia. Mrs Lee, Mrs Kang and Ms Myoung Sook Kang went to a bank. Mrs Lee made two transfers of $19,800 into Mr Yi's bank account. Mrs Kang signed for one of the transfers and Ms Myoung Sook Kang signed for the other transfers. Copies of the receipts received by Mrs Lee for the transfers are exhibited to her affidavit sworn on 23 June 2008.
Ms Myoung Sook Kang deposed in her affidavit that in March 2001 Mrs Lee asked for her signature to assist in the transfer of money to Mr and Mrs Yi. Ms Myoung Sook Kang went to a bank with Mrs Lee and signed forms for the transfer of funds to them. As I have mentioned Ms Myoung Sook Kang was not cross-examined on her affidavit.
Mrs Lee gave evidence that on 25 September 2001, following their telephone conversation with Mr Yi in or about early September 2001, they went to a bank in South Korea in which Mr Lee had an account and withdrew 97,000,000 Korean won from Mr Lee's bank account. They then took that money to another bank and exchanged it to $153,869.83 and deposited that money into a special account.
The following day they went back to the bank in which Mr Lee had an account and withdrew a further 20,500,000 Korean won from Mr Lee's bank account. Mrs Lee asked Mr Lee's friend Mr Ja Tae Koo to assist her to transfer money to Australia. Mrs Lee and Mr Koo went to a bank. Mrs Lee made a transfer of $20,270.00 into Mrs Yi's bank account. Mr Koo signed for the transfer. Copies of the receipts received by Mrs Lee for the transfer are exhibited to her affidavit sworn on 23 June 2008.
Mr Koo deposed in an affidavit that in around autumn 2001 Mrs Lee asked him to sign for the remittance of funds because Mr and Mrs Lee were to transfer money to a relative in Australia whose name was Weng Rong (sic). Soon afterwards Mr Koo went to a bank with Mrs Lee and Mr Koo signed a remittance form to transfer money to Wen Rong. Mr Koo was not cross-examined on his affidavit.
Mrs Lee deposed that she then exchanged some more Korean money into Australian dollars and deposited $12,103.46 into the special account that she had deposited $153,869.83 the previous day. She transferred the total of $165,973.29 to Mr Ricky Lee's bank account in Australia. On the following day Mrs Lee went to a bank and transferred $15,620 into Mr Ricky Lee's account. Annexed to her affidavit sworn 23 June 2008 are copies of receipts for the transfers.
Mr and Mrs Lee's visit to Western Australia in October 2001
Mr and Mrs Lee arrived in Perth on 24 October 2001 and returned to South Korea on 21 November 2001. They gave evidence of this visit in their affidavits. Their affidavits did not refer to a conversation on their arrival in Australia. At trial I gave leave for counsel for Mr and Mrs Lee to ask about such a conversation. His evidence was that Mr and Mrs Yi met them at the airport and that they thanked him for lending him money.
Mrs Lee was not asked in her evidence-in-chief about meeting Mr and Mrs Yi at the airport. In cross-examination Mrs Lee gave evidence that at the airport Mrs Yi said something about a loan and that Mr and Mrs Yi thanked Mr and Mrs Lee for lending them money. Mr Yi acted as interpreter. Mrs Yi would say something in English and Mr Yi translated it into Korean. Mrs Lee agreed with counsel for Mr and Mrs Yi that Mrs Yi thanked her for the money. Counsel for Mr and Mrs Yi asked Mrs Lee if Mrs Yi had also thanked her for sending money to her in 1995. Mrs Lee's evidence was that Mrs Yi did not thank her for sending money down then, and she did not expect to be thanked, as all she was doing was doing some errands for her father.
In October 2001 Mr Ricky Lee lived in Perth. He met his parents at the airport when they arrived. His affidavit did not specifically refer to that meeting and he was not asked about it in his evidence in chief. In cross-examination his evidence was that at the airport Mrs Yi said "Thank you for the loan" and "Thank you for the money".
Mrs Yi denied thanking Mr and Mrs Lee for loans at the airport. Her evidence was that she thanked Mr and Mrs Lee for transferring Mr Yoon Cheol Lee's money.
Mr Lee deposed in his affidavit sworn 23 June 2008 that while they were in Western Australia Mr Yi took them to see land in Joondalup upon which the new factory was to be built and that he told Mr and Mrs Lee that they should not worry about getting their money back because Mr and Mrs Yi would sell the tofu business and their home in Kinross if necessary to repay the loans.
Mr and Mrs Lee, Mr Ricky Lee and Mr Yi travelled to Albany and Esperance. Mr Lee deposed that during this trip he asked Mr Yi to draw up a written loan agreement and that Mr Lee said that a written agreement was not needed between family and a written agreement was not drawn up.
In her affidavit sworn 23 June 2008 Mrs Lee described the visit to Joondalup and the trip to Albany and Esperance in the same terms as Mr Lee had used in his affidavit.
Mr Lee also deposed that while he and Mrs Lee were in Perth they went to dinner at the Burswood Hotel with Mr Ricky Lee, Mr and Mrs Yi and Ms Emma Yi. At the dinner Mr and Mrs Yi and Ms Emma Yi all thanked him and Mrs Lee for lending the money. They said that they would give a fifty percent share in the business to Mr and Mrs Lee in the future. Mr and Mrs Lee told them that was not necessary and that the amount of money that they had lent was not that large. They then said that they would give to Mr and Mrs Lee a share in the business equivalent to the size of the loan. They all agreed that Mr and Mrs Yi would draw up a written agreement that Mr and Mrs Lee would have a share in the business equivalent to the loan or that Mr and Mrs Yi would repay the loan. Mrs Lee deposed as to what occurred at this dinner in the same terms as Mr Lee.
Mr Ricky Lee deposed in his affidavit sworn on 12 June 2008 that during his parents' stay in Perth he heard Mr Yi say to them, in the presence of Mrs Yi, that they should not worry about repayment of the loans as Mr and Mrs Yi would, if necessary, sell their home in Kinross and the tofu business to repay the money. His affidavit did not specify where this conversation took place.
Mr Ricky Lee's affidavit did not expressly refer to the dinner at the Burswood Hotel. With leave he was asked about it in his evidence in chief. His evidence was that at the dinner Mr Yi spoke in Korean to Mr and Mrs Lee and that he translated what they said into English for Mrs Yi and Ms Emma Yi. Mr Yi said that he would give a 50 per cent share in the business to Mr and Mrs Lee. Mr and Mrs Lee asked if it was too much. Mr Yi said that they would give Mr and Mrs Lee a share in the business which is worth the same as the amount of money or, instead of giving the share, they could repay the loan. Mr or Mrs Yi would prepare a written agreement and send it to Mr and Mrs Lee. Mrs Yi nodded in agreement with what Mr Yi said and then said "I will make your family rich" and that she and Mr Yi were lucky to have Mr and Mrs Lee to lend them money.
Mrs Yi denied that there was any discussion at the Burswood Hotel about borrowed money, repayments or a share in the company. While she cannot speak Korean she can understand enough to follow simple conversation. The dinner was a pleasant family occasion and not an occasion at which loans or repayments were discussed.
Ms Emma Yi also denied that there was any discussion at the dinner about financial matters. Ms Emma Yi can understand simple words or phrases in Korean. The discussions at the dinner concerned family matters and what family members were doing. Ms Emma Yi's evidence was that Mr Yi translated what Mr and Mrs Lee had said from Korean to Chinese when he translated for Mrs Yi and her.
Mrs Yi also gave evidence that in the car after the dinner at Burswood Mr and Mrs Lee asked Mr and Mrs Yi to help their son to buy a car and that they would send them some money for that purpose. Mrs Lee's evidence was that she could not recall what happened after the dinner. Mr Ricky Lee's evidence was that he could not recall any such conversation and did not think that he travelled in the same car as Mrs Yi to or from the dinner.
In cross-examination Mr Lee was asked about an occasion on this visit to Perth when he had dinner at Mr and Mrs Yi's home. His evidence was that before dinner Mrs Yi thanked Mr and Mrs Lee and hugged Mrs Lee. Mr Ricky Lee was also asked in cross-examination about this occasion. His agreed that Mrs Li said thank you for the money or something similar.
Mrs Yi's evidence was that the dinner was a Chinese meal in which she and Ms Emma Yi and prepared several dishes and took them to the guests as they were sitting at the table. She was busy doing that all evening and did not have time to thank Mr and Mrs Lee for sending money to her and her husband.
Visit to the Joondalup site by Mr and Mrs Kim
Mrs Kim deposed in her affidavit that in 2001 Mr Yi asked her and her husband to look at some land in Joondalup. Mr and Mrs Kim went to look at the land with Mr Li. The land was vacant at the time. Mrs Kim overheard Mr Yi say to Mr Kim that he and Mrs Yi had purchased the land to build a new factory and that the money had come from Mr and Mrs Lee. Mr Yi did not say that the money was a gift. Mr Kim was not called to give evidence about this conversation.
Telephone conversation between Mr Yi and Mr and Mrs Lee and the transfer of money in January 2002
Mrs Lee gave evidence that in or about early January 2002 Mr Yi telephoned and asked whether he and Mrs Yi could borrow some more money. Again Mr and Mrs Lee spoke to him on speaker phone. Again Mrs Lee could not remember the amount that Mr Yi asked for. Mr and Mrs Lee told Mr Yi that they would lend to Mr and Mrs Yi the money that he had asked to borrow.
Mrs Lee gave evidence was that on 7 January 2002, following that telephone conversation with Mr Yi in that month that she gave evidence of, she went to a bank with Mr Lee and withdrew 6,000,000 Korean won from his bank account. Mrs Lee then went to another bank and using the money that they had withdrawn and some other money that she had Mrs Lee transferred $19,260.00 into Mrs Yi's bank account. Copies of the receipts received by Mrs Lee for the transfer are exhibited to her affidavit sworn on 23 June 2008.
The source of the money transferred to Mr and Mrs Yi
In affidavits sworn on 12 January 2009 Mr and Mrs Lee deposed to the source of the moneys that they transferred to Mr and Mrs Lee. In his affidavit Mr Lee deposed that between 1 January 2000 and 31 December 2002 he had two bank accounts, one with Kookmin Bank and the other with Woori Bank. Copies of bank statements from those banks for that period are annexed to his affidavit. He used the account with the Kookmin Bank as his daily bank account and the account with the Woori Bank to receive rental income from a building in which he has an interest.
In his affidavit Mr Lee explained transactions in that account. He also gave evidence of the practice in South Korea of cheques being negotiated like cash and that when a bank issues a cheque at the request of a customer the cheque does not show the details of the customer or the payee. Mr Lee deposed that there were no transactions with Mr Yoon Cheol Lee in the bank accounts in that period.
Mrs Lee deposed that in the period from 1 January 2000 to 31 December 2002 she had two bank accounts. One bank account was the special Australian dollar bank account of which she gave evidence in her first affidavit and the other was an account at Woori Bank. A copy of the bank statement from the Woori bank for that period is annexed to her affidavit. Mrs Lee deposed that she had five transactions with her father from the Woori Bank account. The total of those transactions was less than the equivalent of $30,000. In one transaction Mrs Lee transferred approximately $16,700 to her father. She cannot recall why. There were two transactions on one day from her father to her of a total of approximately $5,000. These were a reimbursement of a bond for an apartment that her parents rented. There were another two transactions on another day from her father to her for a total of approximately $5,800. Mrs Lee cannot recall why this money was transferred to her, but, her evidence was, it was not for her to transfer to Mr or Mrs Yi.
Both Mr and Mrs Lee gave evidence that the money that they transferred to Mr and Mrs Yi were their moneys and they did not come from Mr Yoon Cheol Lee.
The payment of money to Mr Ricky Lee by Mr and Mrs Yi
Mr Lee gave evidence that in early 2002 Mr Ricky Lee asked for his parents' assistance in purchasing a car. Mr Lee deposed that he telephoned Mr Yi and asked if he and Mrs Yi could help their son with the purchase of a car. Mr Lee considered that any money provided to Mr Ricky Lee by Mr and Mrs Yi would constitute part repayment of moneys lent to them, although he did not expressly refer to the loan. Mrs Lee's affidavit evidence as to these conversations was exactly the same as that contained in Mr Lee's affidavit.
Mr Ricky Lee gave evidence that he asked his parents for money to purchase a car and that they told him that they had asked Mr Yi to assist him. Mr Ricky Lee went to a car auction house with Mr Yi and that Mr Yi told him that about $16,000 would be sufficient to purchase a car. Later Mrs Yi told Mr Ricky Lee that she would transfer the money into his account and he gave her account number to her. On 19 February 2002 the sum of $16,640 was credited into Mr Ricky Lee's bank account. His bank has provided to him a deposit slip that shows that the deposit was made by Mrs Yi.
As I have noted Mrs Yi's evidence was that when Mr and Mrs Lee were in Perth that in the car after the dinner at Burswood Mr and Mrs Lee asked Mr and Mrs Yi to help their son to buy a car and that they would send them some money for that purpose. In her affidavit sworn on 23 December 2008 Mrs Yi deposed that in early 2002, after Mr and Mrs Lee had returned to South Korea, Mr Yi told her that they had asked him to help Mr Ricky Lee to purchase a car because at that time Mr Ricky Lee's English was poor. Mr and Mrs Lee transferred money into her account for that purpose. Mr Ricky Lee later asked Mr and Mrs Yi to give him cash and that he did not need their help, so Mrs Yi transferred the money into his account.
Mrs Yi was cross-examined as an affidavit she made on 5 November 2007 in which she deposed that Mr Yi told her that of the $19,240 deposited into her bank account $16,640 was provided by Mr Yoon Cheol Lee for the purpose of assisting Mr Ricky Lee to purchase a car. Mrs Yi's evidence was that she was not sure whether the money came from Mr Yoon Cheol Lee or from Mr and Mrs Lee.
Mrs Yi was also cross-examined as to why Mr and Mrs Lee would send money for Mr Ricky Lee's car to her account rather than directly into his account. Her evidence was that she thought that they may be concerned that Mr Ricky Lee would waste money transferred to him. Counsel for Mr and Mrs Lee submitted that this answer was implausible as Mr and Mrs Lee had previously transferred a large sum of money to Mrs Yi through Mr Ricky Lee's bank account, however I do not attach any significance to this evidence. A person is unable to observe another person's thought processes. Whether or not Mrs Yi can provide an answer as to the reason why Mr and Mrs Lee might do something does not assist me in determining the issues in this case.
Telephone conversation between Mr Yi and Mr and Mrs Lee after the payment of money to Mr Ricky Lee
In his affidavit sworn 23 June 2008 Mr Lee deposed that after Mr Ricky Lee received money following the discussions about Mr Yi assisting Mr Ricky Lee to purchase a car Mr Yi telephoned and spoke to Mr and Mrs Lee on speaker phone. In that conversation Mr Yi asked to borrow some more money. Mrs Lee told him that the amount of money that they had lent to him was large enough and that Mr and Mrs Lee would not lend him any more money. The affidavit of Mrs Lee about this conversation was in the same terms as Mr Lee's affidavit.
Telephone conversation between Mr Yi and Mr and Mrs Lee requesting payment of Mr Ricky Lee's school fees
Mr Lee deposed that in early 2002, shortly after the telephone conversation with Mr Yi in which he and Mrs Lee had refused to lend more money, they had another telephone conversation with Mr Yi in which they requested that Mr and Mrs Yi repay the loans and that they commence doing so by paying Mr Ricky Lee's school fees. Mr Yi said that it would be difficult to repay the loans because the business was in an unstable condition. Mrs Lee's affidavit evidence as to this telephone conversation was in the same terms as Mr Lee's affidavit.
Telephone conversation between Mrs Yi and Mrs Lee
Mrs Lee deposed that shortly after that telephone conversation she received a telephone call from Mrs Yi. Mrs Lee gave the telephone to her daughter Ms Eun Kyung Lee because her daughter's English is better than Mrs Lee's English. Mrs Lee deposed that her daughter told her that Mrs Yi had said that Mr and Mrs Lee should not ask Mr Yi to repay loans as he was stressed and taking medicine. There was no objection to this evidence, but Ms Eun Kyung Lee was not called as a witness. While the evidence of what her daughter said is evidence of that Mrs Lee was told by her daughter I do not regard the evidence as evidence of the truth of what Ms Eun Kyung Lee said that Mrs Yi said to her.
Mrs Yi denied having a telephone conversation with Mrs Lee or Ms Eun Kyung Lee. Her evidence was that she never made any contact with Mrs Lee or her daughter. The language barrier is one reason. The other reason is that Mrs Yi has only met Mrs Lee a couple of times and she hardly knows her.
Mr Yi's apologies
Mrs Lee deposed that following the telephone conversation with Mrs Yi whenever Mr Yi telephoned he would apologise for not having repaid the loans and that Mrs Lee told him that he should not just apologise but that he should sell the home in Kinross or the tofu business or both and repay the loan. Mr Lee's affidavit evidence was in the same terms. Mr Lee deposed that after this incident Mr Yi telephoned less often.
Mr Ricky Lee's demand for repayment
In July 2002 Mr Ricky Lee moved to Melbourne and commenced studying a Bachelor of Arts degree at the Royal Melbourne Institute of Technology. In the Australian summer of 2002/2003 he went to South Korea. His evidence was that following a conversation with his mother while he was in South Korea he decided to meet Mr Yi and demand repayment.
He deposed that in January 2003 he travelled to Perth. In Perth he and Mr Hee Chul Lee, the husband of his cousin Grace, met with Mr Yi. Mr Ricky Lee asked Mr Yi to telephone Mrs Lee. He said that he was not asking as Mr Yi's nephew, but as the son of money lenders. He asked Mr Yi to repay the loan. Mr Yi "strongly insisted that he would sell the tofu business the very next day to repay it". Mr Hee Chul Lee was not called to give evidence as to this conversation.
Mrs Lee deposed that in about January 2003 Mr Yi telephoned her and said that Mr Ricky Lee had met him in Perth and said that he had come not as a nephew but as the son of money lenders requesting him to repay the loans and to telephone Mrs Lee. Mr Yi said that he and Mrs Yi could not repay the loans straight away.
Mr Ricky Lee deposed that after his conversation with Mr Yi Mrs Lee telephoned him and told him that Mr Yi had telephoned her and told her that he could not repay the loan straight away and that he "had said sorry too much". She told Mr Ricky Lee that she was angry with his choice of words to Mr Yi as they did not show the respect that should be shown to an older person.
Letters of demand in 2005
Mr Lee deposed that on 25 May 2005 he wrote a letter of demand and faxed it to Mr Yi. On 16 June 2005 Mrs Yi telephoned twice. Mr Lee could not understand fully what she was saying. He then telephoned Mrs Yi and asked for a fax from Mr Yi explaining what Mrs Yi wanted. He did not receive a fax from Mr Yi.
Mr Lee deposed that on 21 June 2005 he wrote a second letter of demand and faxed it to Mr Yi. Some days later he had a telephone conversation with Mr Yi who said that he had not received any faxes from him. Mr Lee resent by fax the two letters of demand. Mr Lee and Mr Yi had another telephone conversation and Mr Yi said that he had received the two letters. Mr Yi said that he would go to Karratha to work to earn money to repay the loans because it was not easy to sell the business.
On 7 July 2005 Mr Yi telephoned him and said that he was working in Karratha and that he would return to Perth and prepare a loan repayment plan based on selling the land at Joondalup and that he and Mrs Yi would could transfer ownership of that land to Mr and Mrs Lee and continue to run the business and pay rent.
Mr Lee then sent a letter by fax to Mr Yi. A copy of the letter that Mr Lee deposed that he faxed to Mr Yi is annexed to his affidavit sworn 23 June 2008. It commences in English, addressed to Mr Yi and requesting that the letter be transferred to him. It then continues in Korean. A translation of the letter is also annexed to the affidavit. In the letter Mr Lee referred to the telephone conversation with Mr Yi and that Mr Lee understood that Mr Yi would put the factory on the market for sale. Mr Lee also proposed the transfer of the factory to allow Mr Yi to continue the business and they could arrange a rental agreement later on. Mr Lee asked Mr Yi to fax to him his preferred method of repayment and said that Mr Lee preferred faxes to telephone conversations.
Following that letter Mr Lee received a letter from Mrs Yi. The letter was in English. It had been sent by post. In that letter Mrs Yi said that she was writing at the request of Mr Yi, who had gone to Karratha. The letter refers to family matters, Mr Yi's mother's ill health and the importance of family. It does not refer to a loan. In the letter Mrs Yi wrote:
"We live in this world; the most important thing is not the carrier, not the money, is the family. Without family's support and love, we can't achieve success. I also think, even we achieve the aim, if there is no family to share with the success, then you can not say that is the real success."
Later in the letter Mrs Yi wrote:
"[Mr Yi] told me that you have not only give him a lot pressures, but also to mother and your wife. [Mr Yi] are very worry about them. He suffered lot himself too. Since you spoke to him, he can not sleep at night, therefore he has to take sleeping tablets all the time, and I am so worry about him. [Mr Yi] is over 60 years old, for God's seek; he can not carry on any pressure and stress anymore."
Mr Lee deposed that on 27 July 2005 he sent by fax another letter to Mr Yi. A copy of the letter that is annexed to his affidavit sworn 23 June 2008. It is addressed to Mr Yi in English and then continues in Korean. A translation of the letter is also annexed to the affidavit. In the letter Mr Lee referred to the letter from Mrs Yi. He expressed disappointment that the letter was not from Mr Yi and unease that it did not refer to the loan and referred to Mr Yi having been saying sorry for four years. Mr Lee proposed methods for repayment of the loan and requested a response from Mr Yi.
Mrs Yi denied having received any of the letters of demand that Mr Lee gave evidence he faxed from South Korea or having discussed them with Mr Yi and she denied having spoken on the telephone to Mr Lee. Her evidence was that she wrote the letter to Mr Lee in mid 2005 at the request of Mr Yi. Mr Yi had told her that he received a telephone call from his mother Mrs Suk Ran Kang who had told him that Mr Lee argued with Mrs Lee and Mrs Suk Ran Kang all the time. At the time Mrs Suk Ran Kang was very ill and was living with Mr and Mrs Lee. Mr Yi told Mrs Yi that Mr Lee did not want Mrs Suk Ran Kang to live with them and that Mrs Suk Ran Kang had asked Mr Yi to calm Mr Lee down. Mr Yi became quite agitated and stressed after speaking to his mother and he asked Mrs Yi to write to Mr Lee.
The deaths of Mrs Suk Ran Kang and of Mr Li
Mrs Suk Ran Kang died on 30 August 2005. Mr Lee deposed that he telephoned Mr Yi, but spoke only to Ms Emma Yi who told him that Mr Yi was still working in Karratha and could not be contacted. He tried to telephone Mr Yi on several occasions after that but he always got an answering machine.
On 7 November 2005 Mr Yi died of acute cardiac failure at his home in Kinross. Mrs Yi did not tell Mr or Mrs Lee or Mr or Mrs Kim that Mr Li had died.
Mrs Kim deposed that on 18 March 2006 she went with her husband and her daughter to the factory at Joondalup. Mrs Yi spoke to them outside of the factory and would not let them enter it. Mrs Kim's daughter asked where Mr Yi was and Mrs Yi said that he was working in the north‑west. Neither Mr Kim nor Ms Grace Kim was called as a witness. However Mrs Yi agreed did that Mr and Mrs Kim and their daughter visited their factory, spoke to her and expressed a desire to speak to Mr Yi. Mrs Yi did not give evidence that she told them that Mr Yi had died.
Letter of demand in 2006
Mr Lee gave evidence that in March 2006 Mr Lee arranged for his daughter to send an email to Mr Ricky Lee requesting that he translate into English a letter that Mr Lee proposed to send to Mrs Yi. Mr Lee received the translated letter, printed it out, signed it and posted it to Mr Ricky Lee. The letter is dated 26 April 2006. Mr Ricky Lee gave evidence that he gave the letter to his wife Mrs Hyun Joo Lee to send by registered mail. Mrs Hyun Joo Lee deposed that she sent the letter by registered mail. It was addressed to Mrs Yi at her Joondalup address. Mrs Hyun Joo Lee was not cross-examined on her affidavit.
In the letter Mr Lee wrote of Mrs Lee's distress at not having spoken to her brother Mr Yi since the death of their mother. He also referred to having lent Mr and Mrs Yi $384,815.78 in 2001 and to Mrs Yi's letter in 2005 in which she had not referred to the loan. Mr Lee asked Mrs Yi to encourage Mr Yi to contact Mr and Mrs Lee.
Mrs Yi denied having received the letter. She acknowledged that it was her signature on the registered mail confirmation slip dated 15 May 2006, Exhibit 32.
Visits to Mrs Yi in 2006
In December 2006 Mr and Mrs Lee visited Perth. On 26 December 2006 Mr and Mrs Lee, Mrs Kim and Mr Matthew Kim visited Mrs Yi at her home in Kinross. Mrs Yi's evidence was that they told her that Mr Yi had borrowed money from them and that if he went to meet them they would waive the loan. Mrs Yi told them that Mr Yi was not at home and that she had never been told that Mr Yi had borrowed money from them. She told them that Mr Yi did not wish to see them because they had lied to them about Mr Yoon Cheol Lee's inheritance. She then asked them to leave.
Mr Lee's evidence about this meeting was that Mrs Yi told him that because one child gave up his inheritance they did not have to pay back the loan and that he told her that if Mr Yi himself and told Mr Lee to his face then they would not have to pay the money back. Mrs Lee's evidence was that Mr Lee said to Mrs Yi that he would waive the loan if he spoke to Mr Yi.
On 28 December 2006 Mr Lee and Mr Matthew Kim visited Mrs Yi again. Prior to the visit Mr Matthew Kim had translated into English a document that Mr Lee had written in Korean. There was a dispute as to what occurred at the meeting, but it was common ground that the English translation of the document was given to Mrs Yi.
In that document Mr Lee referred to his visit on 26 December and that a message had been left that the loan could be waived and that Mrs Yi had said that she would do her best to make contact with Mr Yi, but had failed. The note also provided that the contact couldn't be made, referred to Mr Yi claiming that the money had been cleared since he had relinquished his inheritance right and that the amount of $384,815.78 had nothing to do with the inheritance, it was Mr Lee's money.
Approach to findings of fact
I have referred earlier in these reasons to the facts that for none of the witnesses was English the first language and that some witnesses gave evidence through interpreters. The cultural background of the witnesses, the fact that for none of the witnesses was English the first language and the fact that some witnesses gave evidence through interpreters mean that there are limitations on the making findings of fact based on the demeanour of witnesses: De La Espriella‑Velasco v R (2006) 31 WAR 291 per Roberts‑Smith JA at 309‑310 [58] to [59].
Mr and Mrs Lee's claims are based in large part on their communications with Mr Yi. Mr Yi died before Mr and Mrs Lee commenced this action. It is appropriate for me to consider uncorroborated evidence of communications with Mr Yi with considerable caution, particularly if Mr and Mrs Lee fail to bring forward corroborative evidence which was or ought to have been available: Plunkett v Bull (1915) 19 CLR 544.
As Mr Kim was not called to corroborate Mrs Kim's evidence of what Mr Yi said to Mr Kim at Joondalup in 2001 I do not accept Mrs Kim's evidence of that conversation.
Mr Hee Chul Lee was not called to corroborate Mr Ricky Lee's evidence of his conversation with Mr Yi in January 2003 in which a demand for repayment was made. I do not accept Mr Ricky Lee's evidence of that conversation.
The affidavits of Mr Lee and of Mrs Lee were in many respects identical or close to identical. They were cross‑examined as to how this occurred. Mr Lee's evidence was that in preparing his affidavits he sometimes spoke to his wife about matters, then he and his wife each wrote their own affidavit. On simple matters they wrote their own versions separately, for complex matters they discussed matters in fine detail. Their affidavits took several days to write. Mr Lee denied that he and Mrs Lee copied each others affidavit.
Mrs Lee's evidence was that they made a draft affidavit first and through Mr Ricky Lee discussed matters with their lawyers. Mr and Mrs Lee discussed things between themselves in fine detail. Mrs Lee denied copying her husband's affidavit.
Counsel for Mr and Mrs Yi submitted that the similarities in the affidavits and Mr and Mrs Lee's evidence as to how they occurred and submitted that I should reject their evidence.
The affidavits of Mr and Mrs Lee were clearly drawn by the same person and in relating conversations they had a formulaic, legal quality to them that is unlikely to accurately reflect the conversations that took place. I find that Mr and Mrs Lee discussed their evidence in detail when their affidavits were prepared. While they denied copying each other's affidavit it is unlikely that their affidavits would be so similar if they had not agreed upon the words to be placed in their affidavits. I conclude that the evidence contained in their affidavits is not their separate recollection but the result of their close discussions with each other. Mr and Mrs Lee have cooperated so closely in preparing their affidavits I do not regard the evidence of one of them as providing corroboration of the evidence of the other because the evidence of each of them is not independent of the evidence of the other. I conclude from Mrs Lee's evidence that Mr Ricky Lee was also involved in the preparation of their affidavits. His evidence is also not independent of Mr and Mrs Lee's evidence and I do not regard it as corroborating their evidence.
I also do not regard Mrs Yi's evidence and Ms Emma Yi's evidence as being independent of each other; they live in the same house, are mother and daughter and are both involved in the tofu business in which moneys forwarded from Korea were used.
Finding as to transfers of money
I accept the evidence of Mrs Lee that she made the following transfers of money to Australia. I accept that evidence because in each case it is supported by copy receipts annexed to her affidavit of 23 June 2008.
Date
Transferee
Amount
13 October 2000
Mrs Yi
$9,412.00
13 October 2000
Mrs Yi
$9,412.00
13 October 2000
Mr Yi
$9,412.00
13 October 2000
Mr Yi
$9,412.00
16 October 2000
Mr Yi
$9,493.07
16 October 200
Mr Yi
$9,493.07
16 October 2000
Mrs Yi
$9,493.07
16 October 2000
Mrs Yi
$9,493.07
21 March 2001
Mrs Yi
$19,800.00
21 March 2001
Mr Yi
$19,800.00
22 March 2001
Mr Yi
$19,800.00
22 March 2001
Mr Yi
$19,800.00
26 September 2001
Mrs Yi
$20,270.00
26 September 2001
Mr Ricky Lee
$165,973.29
27 September 2001
Mr Ricky Lee
$15,620.00
7 January 2002
Mrs Yi
$19,260.00
I accept the evidence of Mr Ricky Lee that on 5 October 2001 he transferred $180,466.50 into Mrs Yi's bank account. I accept that evidence because it is supported by his bank statement and a letter dated 3 January 2007 from the ANZ bank. Copies of those documents are exhibited to Mr Ricky Lee's affidavit sworn 12 June 2008.
Finding as to source and nature of moneys transferred
The evidence contained in the affidavits of Mr and Mrs Lee sworn on 12 January 2009 does not provide a complete explanation of every transaction in their bank accounts or of every transaction with Mr Yoon Cheol Lee, however the detail that has been provided is substantial and it is quite understandable that in view of the length of time since the transactions occurred Mr and Mrs Lee cannot provide more information than is contained in their affidavits. I find that the moneys paid to Mr and Mrs Yi by Mr and Mrs Lee, including the moneys paid to them through Mr Ricky Lee, were the moneys of Mr and Mrs Lee not of Mr Yoon Cheol Lee.
Beijing Soya Bean Products Pty Ltd
I have referred earlier in these reasons to the transfers of the share in Beijing Soya Bean Products Pty Ltd and to the changes of the offices held by Mrs Yi and by Ms Emma Yi. Mrs Yi has deposed that she transferred the share due to her poor health and that Ms Emma Yi was always aware of the activities of the business.
I do not regard the transfers and changes or their timing as supporting the case of Mr and Mrs Lee. They do not lead me to conclude that they were designed to enable Mrs Yi to defeat Mr and Mrs Lee's claims.
The accounts of Beijing Soya Bean Products Pty Ltd show that moneys paid to it were loans. This does not assist me in reaching a conclusion on the matters in issue in this case. The company's accounts had to show that moneys received by it were capital or a loan. There is no suggestion that Mr and Mrs Lee made a loan to the company.
Finding as to written demands for repayment
The Australia Post receipt dated 15 May 2006 signed by Mrs Yi or the same article number as the customer receipt received by Mrs Hyun Joo Lee when she posted the letter. I find that Mrs Yi did receive the envelope containing Mr Lee's letter dated 26 April 2006.
Mrs Yi denied reading the letter. In the letter Mr Lee wrote that in 2001 he and Mrs Lee lent $384,815.78 he referred to Mrs Yi's letter of July 2005 and wrote that he and Mrs Lee were sorry that Mrs Yi did not mention her promise to repay the loan in that letter. He expressed the family's distress at not having heard from Mr Yi and asked for her to contact Mr Lee's family to confirm Mr Yi was well.
Mr Lee deposed that the reference to the sum of $384,815.78 was an error, that the correct amount was $374,816.78 and that he had forgotten to deduct the sum of $16,640 repaid for the purchase of a car Mr Ricky Lee.
Mr Lee's letter of 26 April 2006 does not refer to earlier letters of demand and overstates the amount of the loan but it does state that moneys were lent to Mrs Yi and that she had promised to repay the money. In her affidavit sworn 23 December 2008 Mrs Yi deposed that she had never read the letter, that ordinarily any such mail would be read by her or her daughter, that each of them are clear that they did not read any such letter as their contents would have been extraordinary and would have alarmed them as the letter plainly implies a loan and repayment obligation and that normally there would be a signed a receipt if she had received such mail and production of such receipt would help clarify whether in fact such a letter was ever received. As I have noted the receipt was produced in evidence.
In cross‑examination Mrs Yi's evidence was that she received a lot of letters, she did not always open them straight away, sometimes she read the letter sometimes her daughter read the letters. If her daughter had read the letter she would have shown it to her.
Ms Emma Yi's evidence in cross‑examination was that she checked and read all letters for her mother and that she had never read the letter of 26 April 2006.
I do not accept Mrs Yi's evidence that she did not read the letter dated 26 April 2006. I find it implausible that she should receive and sign for a registered letter addressed to her and not ever open and read the letter. I bear in mind the limitations on findings of fact based on the demeanour of a witness whose first language is not English and whose cultural background is Chinese however even allowing for those limitations I found Mrs Yi's evidence that she did not read the letter unconvincing. Her evidence was that the letter may have been thrown away. When asked if she would have thrown away the letter she said she would not, when asked if her daughter would have thrown the letter away her evidence was that if a letter was not important they would throw it away. The content and manner in which Mrs Yi gave her evidence in cross‑examination on whether or not she read the letter also lead me to conclude that Mrs Yi did read the letter.
Mrs Yi denied receiving the earlier faxed letters of demand to Mr Yi. There is no confirmation of this receipt and I am unable to conclude that they were received.
It is clear that there were some discussions about a loan between Mr Lee and Mrs Yi in December 2006 and that at times those conversations became heated. However, those conversations do not assist me in determining the issues. By then the parties had adopted positions that they adopted at trial and the actions of Mr Lee are consistent with the position that he and Mrs Lee had lent moneys, they had nothing to do with an inheritance from Mr Yoon Cheol Lee and he wanted repayment. Mrs Yi's actions are consistent with her position that she knew nothing of a loan.
Whether the payments were loans
I have found that the moneys were advanced by Mr and Mrs Lee. That finding does not determine whether the payments were loans.
The fact that the moneys paid were Mr and Mrs Lee's moneys is an indication that the moneys were paid as loans and not as gifts. There was no reason for Mr and Mrs Lee to make gifts of such sums to Mr Yi and Mrs Yi or to either of them and Mrs Yi did not suggest that they would have done so.
Mr and Mrs Lee have given evidence that the loans were made at the request of Mr Yi. Something must have precipitated the moneys being transferred. Mr and Mrs Lee's evidence of their conversations with Mr Yi is consistent with the loans being made and is not contradicted by any other evidence. I bear in mind the caution with which I must approach the evidence of Mr and Mrs Lee's conversations with Mr Yi. Having regard to the facts which led me to conclude that loans were made and in the absence of any other evidence as to what precipitated them I am satisfied on the balance of probabilities that by their evidence that Mr Yi made the requests. I conclude therefore that the payments were loans, at least to Mr Yi.
Mrs Yi has denied that she requested the loans or that Mr Li told her of the loans. A piece of evidence that connects Mrs Yi with the loans is Mr Ricky Lee's evidence that they were made following conversations he had in Western Australia in 2000, initially with Ms Emma Yi and then with Mrs Yi in which Mrs Yi asked him to raise with his parents, lending them money for the business.
Ms Emma Yi and Mrs Yi deny that the conversations took place. Their evidence was that at the time Mr Ricky Lee's English was so poor that they could not have had such a conversation with him.
I have Mr Ricky Lee's evidence on one side and the evidence of Mrs Yi and of Ms Emma Yi on the other side. Nothing makes one side's evidence more likely than the other. I am unable to reach a conclusion as to whether the conversations with Ms Emma Yi and Mrs Yi in 2000 of which Mr Ricky Lee gave evidence took place.
Another piece of evidence that connects Mrs Yi with the loans is the evidence of Mr and Mrs Lee and of Mr Ricky Lee of conversations in which Mrs Yi acknowledged the loans when Mr and Mrs Lee arrived in Perth in October 2001 and at a dinner at Burswood in November 2001.
Mrs Yi gave evidence that she did not acknowledge the loans and Ms Emma Yi also denied that the conversations took place in her presence.
Counsel for Mr and Mrs Yi submitted that the plaintiffs' evidence as to conversations was implausible. He submitted that it was unlikely that Mr Yi translated his conversation with Mr and Mrs Yi into English for Mrs Yi and Ms Emma Yi. He also submitted that it would be difficult for him to hear what Mr Yi said. I do not accept those submissions.
In my view it is equally as likely that Mr Yi would have translated into English as he would have translated into Chinese. It is unlikely that noise in the restaurant would have prevented Mr Ricky Lee hearing a conversation at the table.
Nevertheless in relation to the evidence of the acknowledgements I am left with evidence on behalf Mr and Mrs Lee against the evidence on behalf of Mr and Mrs Yi. There is no independent evidence and nothing makes one version more likely than the other. I am unable to reach a conclusion as to whether the acknowledgements were made.
Counsel for Mr and Mrs Lee submitted that Mrs Yi's evidence that she wanted to expand her business and sell her product to Coles and other customers was consistent with Mr and Mrs Lee's evidence that Mr Yi said to them that Mrs Yi wanted to expand her business and had the opportunity to sell tofu to Qantas and Woolworths. While I accept that Mrs Yi's evidence on this point is consistent with Mr and Mrs Yi's evidence as to this conversation, although of course the names of the customers are different, I do not find that Mrs Yi's desire to expand her business and to sell her products to Coles and other customers provides confirmation of Mr and Mrs Lee's evidence. Most persons operating a business such as Mrs Yi's would want to expand that business and to obtain large customers. The fact that Mrs Yi wanted to do so does not make Mr and Mrs Lee's evidence of their conversation with Mr Yi more probable.
The fact that the company borrowed money to develop a factory on the land that it purchased in Joondalup also, in my view, does not assist either party. All that shows is that neither the company nor Mr and Mrs Yi had sufficient funds for the construction of the factory.
Nor does the fact that $19,260, the final amount paid, remained in Mrs Yi's bank account for a lengthy period assists either party.
Nevertheless I have concluded from the combination of the following evidence that I am satisfied on the balance of probabilities that Mrs Yi was aware of the loans and that they were made at her request, notwithstanding her evidence to the contrary.
I have found that Mrs Yi did receive and read Mr Lee's letter of demand of 26 April 2006.
The failure to respond to a letter of demand does not, on its own, constitute an admission: Wiedemann v Walpole [1891] 2 QB 534; Young v Tibbots (1912) 14 CLR 114. The personal nature of the letter dated 26 April 2006, the family relationship that existed and the fact that Mrs Yi had previously written a personal letter to Mr Lee in July 2005 lead me to conclude that Mrs Yi's failure to reply to the letter of 26 April 2006 supports Mr and Mrs Lee's evidence that Mr Yi promised to repay the moneys lent and that he did so with Mrs Yi's knowledge and authority.
The total sum paid into Mrs Yi's bank account, including the sum of $180,466.50 paid by Mr Ricky Lee was $277,606.64. The fact that such a large proportion of the moneys paid by Mr and Mrs Lee was paid into Mrs Yi's bank account as were all the moneys paid by Mr Ricky Lee in Australia, a transfer to which the South Korean foreign exchange limitations did not apply, tend to confirm two aspects of Mr and Mrs Lee's evidence. It tends to confirm that the moneys were paid as loans and not as gifts. It is unlikely that Mr and Mrs Lee would make a gift of such sums to Mrs Yi. It also tends to confirm their evidence that the money was requested by Mr Yi for the purpose of Mrs Yi's business.
As the money was requested by Mr Yi for the purpose of Mrs Yi's business that tends to confirm that he had her authority to make the request to borrow the money on her behalf as does the fact that she received that money.
From the combination of these matters I conclude that Mrs Yi was aware of the loans and that they were made at her request.
Conclusion
I have found that Mr and Mrs Lee lent the moneys that they advanced to Mr and Mrs Yi at the request of Mr Yi. Mr Yi made the requests with Mrs Yi's actual authority. I find therefore that Mrs Yi was a party to each loan.
Mr and Mrs Yi's estoppel defence cannot succeed as it is based upon the moneys advanced having been a gift. I have found that they were not a gift.
As the loans were in discussions between family members there was no discussion about legal issues such as joint or several liability.
The liability of the borrowers is to be determined by determining the intention of the parties by construction of the contract: Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 317‑318.
I conclude that the parties regarded each loan as a loan to both Mr and Mrs Yi and that their liability is joint.
In the absence of any express agreement as to when moneys lent are to be repaid the moneys can be repayable at once or on demand: Chitty or Contract 28th Edition par 38‑230. In this case, a clear demand was made by Mr and Mrs Lee through their solicitor's letter to Mrs Yi dated 28 March 2007.
$16,640 has been repaid by the transfer of that sum to Mr Ricky Lee. There is no evidence of cash advances of $3,000 to Mr Ricky Lee.
There was no agreement to pay interest or demand for interest was made in the solicitor's letter dated 28 March 2007. Interest is payable from that date pursuant to s 32 of the Supreme Court Act.
I find that the amount of $358,176.78 (being the amount advanced less the sum repaid of $16,640) plus interest is jointly owed by Mr and Mrs Yi to Mr and Mrs Lee. Interest calculated at 6 per cent per annum from 28 March 2007 is $46,691. Mr and Mrs Lee are entitled to judgment of $404,867.78.
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