Nagamuthu v Shanmugarajah

[2019] NSWCA 288

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Nagamuthu v Shanmugarajah [2019] NSWCA 288
Hearing dates:	6 November 2019
Date of orders:	28 November 2019
Decision date:	28 November 2019
Before:	Bell ACJ at [1]; Meagher JA at [70]; Barrett AJA at [71]
Decision:	Appeal dismissed with costs
Catchwords:	APPEAL – corroborative evidence – whether evidence relied upon by primary judge corroborated evidence of the plaintiff which primary judge was not prepared to accept absent corroboration – meaning of corroborative evidence – corroboration by circumstantial evidence   UNJUST ENRICHMENT – monies admitted to be owing arising from participation in a “seetu” – admission that at least $100,000 owing – organiser of seetu refusing to pay – claim for monies had and received – restitution properly ordered
Legislation Cited:	Unlawful Gambling Act 1998 (NSW)
Cases Cited:	Doney v R (1990) 171 CLR 207; [1990] HCA 51 DPP v Kilbourne [1973] AC 729 Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 Peacock v R (1911) 13 CLR 619; [1911] HCA 66 Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516; [2001] HCA 68
Texts Cited:	J D Heydon, Cross on Evidence (10th ed, 2015, LexisNexis Australia) J Edelman and E Bant, Unjust Enrichment (2nd ed, 2016, Hart Publishing)
Category:	Principal judgment
Parties:	Nagendran Nagamuthu (Appellant) Charles Rajaratnam Shanmugarajah (Respondent)
Representation:	Counsel: P Doyle Gray with J Cook (Appellant) A Kaufmann (Respondent)   Solicitors: CB Jai Lawyers (Appellant) Oxbridge Associates (Respondent)
File Number(s):	2019/00173467
Publication restriction:	N/A
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 08 May 2019 Before: Norton SC DCJ File Number(s): 2017/230124

Headnote

[This headnote is not to be read as part of the judgment]

In proceedings brought in the District Court of New South Wales, Mr Charles Shanmugarajah succeeded in a claim for monies had and received. The primary judge held that there was at least $100,000 owing to him by Mr Nagendran Nagamuthu, the Appellant, and ordered restitution in this amount.

The claim of indebtedness arose from the participation of the parties in a series of what are known as “seetus”, a form of financing arrangement popular in the Sri Lankan Tamil community.

The Respondent’s participation in the seetus which were organised by the Appellant was not the subject of any formal documentation. The primary judge required corroboration of the Respondent’s claim, but found such corroboration in the form of certain post-it notes which were in the possession of the Respondent upon which the Appellant had written a series of figures and calculations, and a translated transcript of two recorded conversations between the Appellant and the Respondent during which various seetus and amounts owing under them by various participants, including the Appellant, were discussed.

On appeal, the Appellant challenged the primary judge’s reliance upon the corroborating evidence.

The Court held (Bell ACJ, Meagher JA and Barrett AJA agreeing), dismissing the appeal with costs:

1. The evidence relied upon by the primary judge corroborated the Respondent’s account of the circumstances that gave rise to the Appellant’s indebtedness to the Respondent: [33], [54] (Bell ACJ); [70] (Meagher JA); [71] (Barrett AJA).

2. As such, and in the circumstances, it was appropriate for the primary judge to order restitution by the Appellant of the amount owed to the Respondent: [66] (Bell ACJ); [70] (Meagher JA); [71] (Barrett AJA).

Judgment

1. BELL ACJ: After a trial in the District Court of New South Wales, Norton SC DCJ (the primary judge) entered a verdict and judgment in the sum of $100,000 together with costs in favour of the plaintiff, Mr Charles Rajaratnam Shanmugarajah, whom I shall hereafter refer to as the Respondent.

2. The Respondent succeeded on a claim made as a common money count for monies had and received, with the primary judge finding that there was at least $100,000 owing to the Respondent by Mr Nagendran Nagamuthu, the Defendant in the proceedings below and whom I shall hereafter refer to as the Appellant. Her Honour held, using the language of, albeit not referring to, the decision in Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516; [2001] HCA 68 at [83]-[89] (Roxborough) and the cases there cited, that it would be unjust for the Appellant to retain the $100,000 and that it should be repaid to the Respondent. At [83] of her judgment, the primary judge had identified the basis of the action as “in restitution or unjust enrichment”.

3. A number of other claims made by the Respondent were rejected. There is no cross appeal in respect of those claims.

4. Central to the outcome at first instance and the appeal to this Court was her Honour’s finding that at least $100,000 was owed by the Appellant to the Respondent. Although the Respondent had given affidavit evidence setting out the basis for his claim, the primary judge indicated that she was not prepared to accept his evidence as accurate, “unless it [was] corroborated by some other evidence”. Again, no challenge was made to that aspect of her Honour’s reasoning.

5. Parenthetically it may be noted that the primary judge was not prepared to find that the Appellant’s evidence was accurate or reliable, describing him as “one of the most evasive witnesses” she had ever heard give evidence and some of his explanations in the witness box as “extraordinary”. She described the Respondent as being “less evasive” in his evidence than the Appellant.

6. Plainly enough, the primary judge ultimately found that the Respondent’s claim to be owed at least $100,000 by the Appellant was corroborated by other evidence, hence the verdict and judgment in his favour.

7. The gravamen of the Appellant’s case on appeal is that what the primary judge relied upon as the corroborating evidence was not, in fact, corroborative.

8. To consider the strength of that attack, and the nature and quality of the corroborative evidence relied upon by the primary judge, it is first essential to set out the context in which the claim of indebtedness was said to arise.

Seetus

9. Both the Appellant and the Respondent who were of Sri Lankan Tamil ethnicity were participants in a series of what are known as “seetus”. The primary judge noted that it was accepted by both parties that seetus are relatively common amongst Sri Lankan people, both in Australia and in Sri Lanka. At [12], her Honour described a seetu as involving:

“… a group of people meeting and agreeing to pay a fixed amount of money at regular intervals, usually monthly, and at each meeting the participants bid to obtain the funds. There are the same number of bidding rounds as there are members of the seetu. Each member can only have one successful bid, and every member has a successful bid. The successful bidder receives the combined amount of the money paid by all members, less the amount of his or her bid. The amount of the bid is decided equally between the other participants. As a result of the bidding process not every member is guaranteed the same amount.”

10. The Respondent gave the following description of a seetu in his principal affidavit:

“Seetu is a Tamil tradition whereby a group of people gather and invest money into a pool which is taken first by someone who needs it at that time and then by everyone in turn. The persons who take the seetu at the end of the seetu make the most money. Tamils living in Sydney also are involved in Seetu and the rules of the seetu are that each person invests a sum of money each month for a period of months. If there are 15 people who join a seetu then the contributions are for fifteen months. When someone joins a Seetu it is for a certain number of months and the obligation is to continue to invest a fixed sum each month until the seetu is finished. Each month persons can bid for the amount of money raised. If for example it is a $15,000 seetu then fifteen people will each invest $1,000 each for 15 months so that their obligation to the seetu is $15,000. At the end of each month a person can bid for the $15,000 raised. If for example the bidder bids $4,000 for the $15,000 he will receive $11,000 and the bid of $4,000 is returned equally to all of the fifteen participants so that they would each receive $266.66. A member of a seetu is only entitled to bid for the money raised once during the seetu.”

11. The Respondent also said in his evidence that participation in a seetu was “a very good way to save money and make it grow if you do not need the money at the time.”

12. The following illustration of a $10,000 seetu was provided by the Appellant:

“I will give an example of [a] hypothetical Seetu. This Seetu is said to be 'for $10,000', however, generally only the first and the last player will receive $10,000. The $10,000 is in fact the 'maximum' amount a person can bet for in any one round.

Imagine in this betting game you have 10 people then there will be 10 rounds. Each person will receive money in one of ten betting rounds, and only once in ten rounds. As a rule, the first person to participate will receive $10,000 in the first round. The chance of receiving $10,000 is 100%, though no other participant has a 100% chance of receiving $10,000 except the last player. This will generally be the person who put everyone in touch with one another in the first place.

In round two, the next 9 people will be allowed to bet. The first bet can be for

$10,000, but normally another person will reduce that bet to $9,500, and so on until the final bet of say $8000. It could be lower than $8000, or higher, but no higher than $10,000. Once the hypothetical $8000 bet has been finalised, the share of each player is calculated, which is $800/player and every one of the 10 players then must pay the winning player $8000. This is done either directly, or through another person, such as the initial organiser or another participant.

In round three, the first two people cannot participate in the bidding, as they have already been paid out. However, they must still contribute their share of the winning bid. The amount of their payment is based purely on the actions of other players, out of their control, though constrained by the maximum bid rule.

By the time the final betting round has come, the only person allowed to bet is the one person who has not been paid. That person will obviously ask for the maximum bet, which is $10,000. (As is obvious, the probability of receiving closer to $10,000 increases, the later in the game that one bids but this is affected by a number of items that are out of the participant's control e.g. the motives of the other players (do they want a payout quickly or after a long time, do they want a big profit or a quick payday, the number of other players, the strategy of the other players, when and how the other players choose to bet.)

However, the last person, will not have paid $10,000 in order to receive $10,000, because, as you can see above, many rounds of betting finish for less than $10,000. Therefore, the last person (as with the first person) gets more than they contributed.”

13. The institution of a seetu may thus be considered in one sense to be a form of microfinance involving a periodic, usually monthly, pooling of capital contributions over the life of a seetu, with the extent of the capital contributions capped by the nominated value of the seetu divided by the number of participants in it. Participation in a seetu may variously serve the purposes of a form of saving, a source of emergency funds or an investment.

14. The question of whether or not this institution falls within the definition of a managed investment scheme or other financial product requiring a licence and compliance with regulatory requirements was not raised defensively in the pleadings, nor in argument. An argument that it was illegal under the Unlawful Gambling Act 1998 (NSW) was made at first instance but did not succeed and was not pursued on appeal. Had it been, questions involving illegality and Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 may have arisen.

15. It was common ground that the Respondent participated in a series of seetus organised by the Appellant. The primary judge noted, however, that there were no written records of the formation of the seetus in which the Respondent participated, nor of members’ bids or payments. Her Honour further noted that there were no written seetu agreements, loan agreements or actual receipts in evidence or relied upon.

16. The only contemporaneous documents tendered in evidence, and referred to and accepted by the primary judge as corroborative evidence, were:

1. three post-it notes (one of which had writing on both sides) in the possession of the Respondent and upon which the Appellant accepted (with the possible exception of one date) that he had written a series of figures and calculations; and

2. a translation and transcript of two recorded conversations between the Appellant and the Respondent during which various seetus and amounts owing under them by various participants, including the Appellant, were discussed.

Monies owing – the Respondent’s claim

17. In essence, the Respondent’s claim for monies had and received and, in particular, the debt claimed to be owing to him, arose out of his participation in a $120,000 seetu of which, as was accepted by his counsel, the Appellant was the organiser. As will be seen below, according to the Respondent’s evidence, the debt claimed took into account adjustments for amounts owing by the Respondent to the Appellant under another seetu or other seetus.

18. In his affidavit, the Respondent stated that, from April 2012 until October 2014, he had paid around $95,000 towards a $120,000 seetu and that, as far as he was aware, that seetu ended in November 2014. Evidently, the Respondent was the final participant in that seetu, not having previously bid and, as such, would stand to gain $120,000, being the unreduced total of the pool in the last month or round of the seetu.

19. The difference of $25,000 between his net contributions to the pool in previous rounds of $95,000, and the amount owed to him in the final round, represented the return from his participation in the seetu over the course of its life.

20. As noted in [4] above, the primary judge indicated that she was not prepared to accept the Respondent’s evidence as accurate “unless it [was] corroborated by some other evidence”.

21. In Doney v R (1990) 171 CLR 207 at 211; [1990] HCA 51 (Doney), the High Court outlined the essence of corroborative evidence as that which "'confirms', 'supports' or 'strengthens' other evidence in the sense that it 'renders [that] other evidence more probable'". The Court continued:

“It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it ‘shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused’: R. v. Baskerville (1916) 2 KB 658, at p 667.

It is well settled that corroboration may be in the form of circumstantial evidence: Baskerville, at p 667: see also Reg. v. Tripodi (1961) VR 186, at pp 190-191; Reg. v. May (1962) Qd R 456, per Gibbs J. at p 459; Reg. v. Lindsay (1977) 18 SASR 103, per Zelling and Wells JJ. at p 117; Medcraft v. The Queen (1982) WAR 33, at p 40. Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded: see Hodge's Case (1838) 2 Lewin 227 (168 ER 1136); Peacock v. The King (1911) 13 CLR 619, at pp 634, 651-652, 661; Martin v. Osborne (1936) 55 CLR 367, at pp 375, 381; Thomas v. The Queen (1960) 102 CLR 584, at pp 605-606; Plomp v. The Queen (1963) 110 CLR 234, at p 252; Barca v. The Queen (1975) 133 CLR 82, at pp 104, 109. But, if some lesser standard will suffice, the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved: see Peacock, at p 638, where Griffith C.J. noted the different considerations applicable to circumstantial evidence in civil and criminal cases.”

22. In Peacock v R (1911) 13 CLR 619 at 638; [1911] HCA 66, Griffith CJ observed:

“If in a narrative of facts part of a story is corroborated, that may be sufficient to give credence to the whole. But the corroboration must be of the evidence as to the fact to be proved, not of the general credibility of the witness.”

23. It is necessary to set out paras 27 and 28 of the Respondent’s principal affidavit, as this is relevantly the “other evidence” rendered more “probable” by the corroborative evidence, to use the language of Doney:

“At or about the end of November 2014, I telephoned Nagendra[n] and had [a] conversation to the following effect:

I said:      Nagendran when would you pay me $120,000.00[?]

He said:  I owe you only $105,770 after several payments of your contribution to other Seetus.

I said:      [W]hen I can collect this amount[?]

He said:  [A]llow me couple of weeks.

In or about November 2014 I went to Nagendra[n]'s house to collect my money. I remember having a conversation to the following effect:

He said:  Anna (brother), please help me. [T]here is a land for sale in Girraween which I want to buy and make a child care [centre]. I will give the money which I owe you with interest in two months.

I said:     See, I have been paying this Seetu with difficulties. I have borrowed $35,000 [d]ollars from Bama and I am paying interest to her.

He said: I will pay you interest 3% per month.

I said:     I have credit card debts and [a] private loan from Bama pay me interest monthly for me to repay my debts.

He said: [D]on't worry I will pay you every month $3,173.00 [instalment] till your $105,773.00 [is] paid in full with interest”.

The corroborating evidence

24. At [85] of her judgment, the primary judge said:

“I find that that on the balance of probabilities the sum of $105,770 belonging to the Plaintiff was received by the Defendant either from the Plaintiff or from funds that should have been paid to the Plaintiff by the Defendant. This finding is made primarily on the basis of what is contained in the 'post-it' note which the Defendant admits is in his writing and the acknowledgments of indebtedness made by the Defendant in the recorded conversations.”

Interpolating there, it is important to note that the primary judge found corroboration in the combination of the writing on one of the post-it notes and passages from the recorded conversations. Returning to the judgment, at [86] her Honour continued:

“I find the note was written by the Defendant and was a record of what the Defendant owed the Plaintiff at that time. I find it is the ‘record’ referred to in the first recorded conversation. The Defendant acknowledged indebtedness to the Plaintiff in that conversation. I find the 'post-it' note is in effect an IOU.”

It should be noted that the Appellant pointed out that the transcript of the first recorded conversation does not in fact use the word “record” as is implied by the primary judge’s reference to that term in inverted commas. It will be necessary to return to this criticism in due course.

25. Copies of two of the three post-it notes which were in the Respondent’s possession but created by the Appellant, the first copy being of side B of the two-sided note, are reproduced below.

26. The Respondent submitted that the date (28/10/14) on the first of these post-it notes was around the time the $120,000 seetu ended. This emerges from the Respondent’s affidavit evidence (see [23] above). The second post-it note shows a starting figure of “$120,000”, which is consistent with it being referable to the $120,000 seetu.

26. When viewed in conjunction with extracts from the transcript considered below, the Respondent submitted that the primary judge was correct to find that the first post-it note was “in effect an IOU”, in the sense that it was a contemporaneous documentary admission of the Appellant’s indebtedness to the Respondent in relation to the $120,000 seetu.

27. The “recorded conversations” referred to by the primary judge in the passage set out at [24] above were between the Appellant and the Respondent and were translated from Tamil and transcribed. The first such conversation lasted for over 40 minutes. I consider key aspects of it in the following section of this judgment.

28. Completing the identification of the corroborating evidence relied upon by the primary judge, her Honour also noted at [86] that:

“There is some corroboration that the Defendant owed the Plaintiff a considerable amount of money in the evidence of Ms Rajaratnam.”

30. The relevant evidence of Ms Rajaratnam, the Respondent’s wife, to which the primary judge referred, appears to have been para 23 of her affidavit, as it was this paragraph that the primary judge extracted in [33] of her judgment. Paragraph 23 of Ms Rajaratnam’s affidavit was in the following terms:

“[Respondent]    ‘Nagendran accepts that he owes him $105,000 but he wishes to borrow from me to purchase a property or business for only 2 months.’

Ms Rajaratnam   I said don't lent him.

                         He then said: Nagendran promised to pay 3% per month interest as he is paying to others.

                         I said 'I don't trust him'.

                         He said He is from our community he won't run away with my money."

31. It is to be noted that the Respondent’s wife also said at para 27 of her affidavit that she visited the Appellant’s house twice with her husband “to discuss repayment of our money but [the Appellant] always promised to pay soon with interest.”

Analysis

32. As I have noted at [7] above, the thrust of the Appellant’s attack on the judgment is that what her Honour considered to be corroborating evidence either did not have that character at all, or else was not sufficiently corroborative to justify the acceptance of the Respondent’s evidence.

33. In my opinion, the post-it notes and the translated transcript of the recorded conversations, albeit disjointed and at times difficult to follow (as the primary judge observed), nevertheless provided powerful corroboration of the Respondent’s claim to be owed at least $100,000 by the Appellant as a result of his participation in seetus organised by the Appellant.

34. The transcript is not the easiest document to follow, given that it contains gaps where the recording was either insufficiently audible, or the words spoken insufficiently decipherable by the translator and transcriber. It was not in issue, however, that the recording was of the Appellant and the Respondent, and the words attributed to each of them respectively in the transcript were correctly so attributed.

35. In his written submission, counsel for the Appellant was critical of the primary judge extracting small portions of the conversation to sustain her conclusions. The transcript of the conversations runs for almost 50 pages and it is difficult, otherwise than by reading it as a whole in the context of an understanding of the operation of seetus, to point to pellucidly clear passages. For that reason, it has been necessary to set out below fairly significant tranches of the transcribed conversations, followed by an explanation of what I have gleaned from them.

36. The first point to emerge from the transcript of the principal and longer conversation, not put in issue by the Appellant, was that the Respondent was a participant in a series of seetus organised by the Appellant.

37. In the opening phase of their discussion, the Appellant referred to monies evidently owing to him by third parties from their participation in seetus. In respect of one such participant, the Appellant said:

“H[e] did not even leave one thousand Rupees for the next Seetu. I will say it openly. It will be clear when you look at these accounts. After taking the big Seetu ... and deducting all the money he has to give me ... twenty thousand ... ten thousand and fifteen thousand .... He kept on obtaining and all his problems .... he solved all his problems. Are they paying for the Seetu here? As of today they are standing at fifty two thousand in total. Until now they have not paid even five cents. What will they say when I ring? We· are going to get from someone ... from there ... from here. That [is] what they have been saying. Never mind! I need this if they say this!”

38. A little later in the conversation, the Appellant said that he was “the one who [was] suffering” and that “[i]t will become tight”. From this and other references, it is evident that the Appellant was experiencing cash flow tightness and that participants in seetus organised by him were either not honouring, or were delaying in honouring their payment obligations under the seetus. He went on to tell the Respondent, however, that “[i]n about two months there will be a solution to all [of] the problems …”.

39. Approximately 20 minutes into the conversation, the Appellant said:

“But how many days can the cheating go on? In any event it will be necessary to give one lakh Rupees. I will write and give. How much?”

The Respondent confirmed “One Lakh” to which the Appellant replied “It will be necessary to give!”. The evidence was that a lakh is a unit of 100,000.

40. The conversation then continued, with the Appellant doing most of the talking and continuing to speak of various people whom he said owed him money in connection with various seetus. In respect of one such person, the Respondent observed “[h]e was your trustworthy person!”.

41. It is also clear from various statements in the transcript that the Appellant was showing the Respondent entries in certain books or records in the Appellant’s possession. Thus, for example, he said: “I will show the month before that. Have a look”. There are also entries where the Respondent is telling the Appellant to “look”, “look here” and is evidently pointing to figures in those records. Another part of the transcript records the Appellant saying: “Look here. Have a look how many people are on the account!... Have a look here! … Have you seen who are the people that are on the account?”. This last question seems to have been directed to the Respondent, with a view to impressing him as to the Appellant’s “book”.

42. About 35 minutes into the conversation, after discussing the status of a particular creditor called “Samy” who was evidently a shop owner or was at least running a shop, the following exchange occurred:

“[Appellant]         Someone else ran it and then he ran away and now Samy is running it.

[Respondent]      … unclear …

[Appellant]          That is how it is! Yours … we did write it down … you kept it … didn’t you?

[Respondent]      Yes.

[Appellant]           Get it to have a look!

[Respondent]      You have it written down.

[Appellant]           It is here [I will have to go to Temple] … unclear …. is it one thousand seven hundred and ninety eight? Is it night eight? Must be given, isn’t it?

[Respondent]      Yes … mmm … now the second …

[Appellant]           This month’s one … second month … third month has to be given.

[Respondent]      Yes.

[Appellant]           Fourth month has to be given, isn’t it?

[Respondent]      Yes.

[Appellant]           There is big money still waiting, isn’t it! How much interest has come on to?

[Respondent]      That is for the second month.

[Appellant]           How many … unclear [How many] lakhs for you? Your one is one, isn’t it?

[Respondent]      Yes, the Seetu is for one … one lakh and five thousand and something or six thousand something.

[Appellant]           … unclear … have put as … unclear … seventy three,          isn’t it?

[Respondent]      Yes.

[Appellant]           I have [put] two, isn’t it? We will see. I will give …             leaving this Tuesday … next Tuesday.

[Respondent]      Mm?

[Appellant]           I will give about fifty.

[Respondent]      If you give that will be a great help.

[Appellant]           Is it fifty?

[Respondent]      Moneys.

[Appellant]           … unclear … fifty.

[Respondent]      Yes …

[Appellant]           I will give fifty.

[Respondent]      The rest when will you give?

[Appellant]           I will give little by little. Mm? Somehow it will come [Mm]. It will have to come out.

[Respondent]      What can be done with the fifty?”

43. A number of observations may be made about this passage of the conversation.

44. First, it is apparent how broken or incomplete the transcription is.

45. Secondly, and notwithstanding the first point, it is clear that the Appellant acknowledges that he and the Respondent had written something down – identified only in the transcript as “Yours” – and that the Respondent had kept that which was written down. Further, the statement “Get it to have a look” implies that the Respondent did not have “it” with him at the time of the conversation. The next portion of the exchange really involves the Respondent asking the Appellant if he had what was referred to as “it” - namely the information the Appellant had told him to get in order to have a look at – “written down”. The Appellant responded using the words “It is here”, evidently identifying an entry in the books or records that he had referred to and which he had invited the Respondent to “look at” earlier in the conversation.

46. Thirdly, the conversation turns to what is evidently a discussion of monthly interest. Discussion of and reference to monthly interest only makes sense if a principal amount is outstanding.

47. Fourthly, the question “how many lakhs for you?” asked by the Appellant to the Respondent makes it clear that a large amount (also referred to as “big money”) was owed to the Respondent. The Respondent sought to recall the amount as being one lakh, (which is 100,000 units, as has been seen) and “five thousand and something or six thousand something”. The Appellant then filled in the “something” as “seventy three”. Pausing here, it may be noted that a figure of 105,773 appears on one of the post-it notes (see [25] above).

48. Fifthly, and returning to the excerpt from the transcript of the conversation set out above, the Appellant then says, immediately after the discussion of amounts of money and interest, “I will give … leaving this Tuesday … next Tuesday … I will give about fifty.” In context, and given that a lakh represents 100,000 units, the figure of 50 must be taken to be 50,000.

49. The Respondent’s response – “If you give that will be a great help” – makes it clear that the Appellant was speaking in this conversation of giving the fifty to the Respondent. The context of the conversation, moreover, is clearly a discussion of amounts owing to the Respondent under a seetu and the reference to “a great help” is a reference to the Respondent’s desire to put down a deposit for a house in Sydney. The reference to “fifty” in this context was plainly to $50,000.

50. The next part of the exchange, where the Respondent asks – “The rest when will you give?” – reinforces the preceding exchange, making it clear that the “fifty” was only part of the total sum that the Appellant was to give to the Respondent. The Appellant’s response “little by little” contains an acknowledgement of indebtedness and an indication as to how he proposed to meet the debt.

51. Some 40 minutes into the conversation, there is another significant entry. The Appellant stated – “[t]he interest to be given to you three thousand one hundred and seventy three. Is it?” – which the Respondent confirmed as the correct amount. The amount $3,173 is 3% of $105,766 and is the closest dollar figure to $105,773 which, as I have already noted, was a figure which appeared on one of the post-it notes and which can also be related to the broken figure mentioned earlier in the conversation between the Appellant and the Respondent to which I have referred at [42] above. The figure of 3% interest was also mentioned by the Respondent in [28] of his affidavit, extracted at [23] above.

52. Later still in the conversation, at about the 48 minute mark, the Appellant said to the Respondent, “All your money is standing in here”, apparently referring to an incomplete seetu. The appellant then said, “[i]f it was pumped, I would have called you then and given you fifty, sixty …”. Again one sees an acknowledgement of debt and cash flow issues confronting the Appellant.

53. The transcript of another much shorter conversation was also in evidence which records the Respondent, in increasingly desperate tones and threatening a hunger strike, pleading for his money. The Appellant’s response is telling – not that he was not indebted but asking the Respondent “do you believe that I will not give?”

54. As I have indicated above, and as a review of the transcript and post-it notes shows, the material relied upon by the primary judge and which I have considered above was corroborative of the Respondent’s affidavit evidence. It was admissible evidence, implicating the Appellant in relation to a matter in respect of which the primary judge had indicated she required corroboration. Such evidence “need not replicate the evidence to be corroborated, but it must tend to connect the person against whom it is given with the alleged act”: J D Heydon, Cross on Evidence, (10th ed, 2015, LexisNexis Australia) at [15165].

55. In the course of argument, counsel for the Appellant submitted, by reference to Doney, that the corroborative evidence must not only be consistent with what was required to be corroborated (and he accepted that much of the evidence relied upon by the Respondent had that character) but that the corroborative evidence also had to “connect” the Appellant with an indebtedness to the Respondent. So much may be accepted, and, in my opinion, such a connection was clearly established even though Doney suggests that a “tendency” to connect would be sufficient.

56. In DPP v Kilbourne [1973] AC 729 at 750 (Kilbourne), Lord Reid said:

“There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or less extent by the other statements or circumstances with which it fits in.”

57. At one point in his argument, counsel for the Appellant submitted that evidence could not be corroborative unless that evidence would itself prove the fact in issue. That submission must be rejected. It borders on a contradiction in terms and is inconsistent with both Doney and the passage from Kilbourne cited above. As was said in Doney at 211:

“It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice.”

58. It should also be remembered, as was also confirmed in Doney at 211 in the passage cited at [21] above, that corroboration may be in the form of circumstantial evidence. Moreover, there may be a number of pieces of corroborative evidence (as in the present case) which, when pieced together, provide powerful confirmation, support or strength for the evidence needing to be corroborated. It is a mistake simply to analyse each piece of corroborating evidence individually and independently, as the Appellant tended to do in submissions.

59. In the present case, for example, the nature and provenance of the post-it notes was revealed by the transcript of the conversations. Those conversations linked, through their reference to interest payments in the sum of $3,173, to the sum of $105,773 written on the back of one of the post-it notes which, as I have explained at [51] above, was approximately 3% of this figure.

60. Additionally, the very fact that the Respondent had in his possession and produced to the Court the post-it notes in the writing of the Appellant, which included as a starting figure a sum of 120,000 (coinciding with the seetu under or in respect of which the debt was said to arise), contributed powerfully to a state of satisfaction, on the balance of probabilities, that an amount of at least $100,000 was owing by the Appellant to the Respondent.

61. Insofar as an attack was made on the primary judge’s reliance on the evidence of the Respondent’s wife (see [29]-[31] above), it is plain that the primary judge relied principally on the post-it notes and the transcript to supply the necessary corroboration. The evidence of the Respondent’s wife was not decisive.

62. In relation to the wife’s evidence referred to at [30] above, the Appellant’s complaint was that this was second-hand hearsay, derived from the Respondent himself, whom the primary judge found to be an unreliable historian absent corroboration. It was therefore put that this aspect of the evidence of the Respondent’s wife was not corroborative. There is some force to that argument and that portion of her evidence was of little weight. That part of the wife’s evidence referred to at [31] above, however, carried more weight, as it did not derive directly from the Respondent, but was evidently based upon the wife’s own observations. Although it was expressed in a rolled up form, it was evidently admitted without objection and provided some limited corroboration of the Respondent’s account.

63. For these reasons, this aspect of the Appellant’s appeal should not succeed.

Second ground of appeal

64. In addition to the attack on what the primary judge held to be corroborative evidence, the Appellant complained that “[t]he trial judge failed to distinguish between a contract which was unenforceable and a contract which was not proved.”

65. At para 51 of his written submissions, the Appellant put that:

“The trial judge rejected the contention [that] seetus were unenforceable contracts. Instead, she held seetus to be a system of enforced saving and lending of money to those who participate notwithstanding it is not likely that each member will receive exactly the same amount. Each member receives the money at a different time and makes a decision when to bid and what to bid. Her Honour did not identify why an amount paid by a member to the conductor or the organiser of the seetu in justice belonged to the member”.

66. The short answer to this complaint, in my opinion, arises from what I am satisfied was, and what the primary judge held to be, the Appellant’s admissions of indebtedness to the Respondent. That is the source of the obligation to make restitution, as the cases referred to by Gummow J in Roxborough make plain.

Further argument

67. It should be noted that there was a faint attempt by counsel for the Appellant in his reply submissions to raise questions as to the capacity in which his client operated and conducted the seetus and, in particular, whether the Appellant was in truth simply a ministerial agent for collection of monies (see J Edelman and E Bant, Unjust Enrichment (2nd ed, 2016, Hart Publishing) at 381-385) and had not assumed obligations of a kind that could be enforced through an action for restitution.

68. This argument did not fall within the terms of the Notice of Appeal, was not explored at trial and, in my opinion, based upon my review of the transcribed conversations between the parties analysed above, was wholly lacking in merit.

Orders

69. For the foregoing reasons the appeal should be dismissed with costs.

70. MEAGHER JA: I agree with Bell ACJ.

71. BARRETT AJA: I agree with Bell ACJ.

**********

Decision last updated: 28 November 2019