Ng v Sevastos BY His Guardian Ad Litem Vanessa Vershaw

[2024] WADC 75

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   NG -v- SEVASTOS BY HIS GUARDIAN AD LITEM VANESSA VERSHAW [2024] WADC 75

CORAM:   CURWOOD DCJ

HEARD:   29 - 31 JANUARY, 1 - 2, 15 FEBRUARY 2024, WRITTEN SUBMISSIONS 29 FEBRUARY 2024

DELIVERED          :   4 SEPTEMBER 2024

FILE NO/S:   CIV 2267 of 2021

BETWEEN:   KIN WING NG

Plaintiff

AND

PETER PARASKEVAS SEVASTOS BY HIS GUARDIAN AD LITEM VANESSA VERSHAW

First Defendant

STEVEN NICHOLAS SEVASTOS

Second Defendant

Catchwords:

Restitution - Whether money paid under failed agreement - Formation of agreement - Where parties dispute making oral agreement - Whether agreement made between plaintiff and first or both defendants - Whether payments made by the plaintiff under an agreement with first or both defendants - Failure of consideration - Whether unconscionable for first defendant to retain payments made by plaintiff

Legislation:

Interpretation Act 1984 (WA), s 8
Property Law Act 1969 (WA), s 34(1)

Result:

Judgment for plaintiff against first defendant in the sum of $160,000

Representation:

Counsel:

Plaintiff	:	Mr J C Yeldon
First Defendant	:	Ms C E Moss
Second Defendant	:	Ms C E Moss

Solicitors:

Plaintiff	:	Pragma Lawyers
First Defendant	:	Norton Rose Fulbright Australia
Second Defendant	:	Norton Rose Fulbright Australia

Case(s) referred to in decision(s):

AWAP SGT 26 Investment Ltd v CN 2000 Holdings Ltd [2020] WASCA 74

Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060

Blacket v Barnett [2017] NSWSC 1032

Bosanac v Commissioner of Taxation [2022] HCA 34; (2022) 275 CLR 37

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Chou v AWAP SGT 26 Investment Ltd [No 3] [2018] WASC 383

Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1

Currie v Hamilton [1984] 1 NSWLR 687

Doherty v Bruce Ronald Sampey as administrator of the estate of Patricia Adele Addison (AKA Sampey) [2023] WASC 10

H v P [2011] WASCA 78

Helton v Allen [1940] HCA 20; (1940) 63 CLR 691

John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451

Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12

King v Adams [2016] NSWSC 1798

Sangha v Baxter [2009] NSWCA 78

Westgyp Pty Ltd v Northline Ceilings Pty Ltd [2018] WASC 244

CURWOOD DCJ:

1. The plaintiff (Mr Terry Ng) and the first defendant (Mr Peter Sevastos) were long‑standing friends.  They met in 1987.  The second defendant (Mr Steven Sevastos) is Peter's nephew and considerably younger than Mr Ng and Peter.[1]

   [1] I will refer to Mr Peter Sevastos as 'Peter' and Mr Steven Sevastos as 'Steven' throughout these reasons so as to avoid any confusion. 

2. The events in dispute in this case occurred between 2018 and 2020. 

3. As at 2018 Mr Ng lived in a residential villa or unit at 119 Swansea Street, East Victoria Park.  In late 2018 Mr Ng commenced renovation works to his unit.  He wanted to sell the unit and was renovating it to maximise its sale price.  After he had sold his unit, he wanted to buy a new residence to live in during his retirement years.  Steven assisted Mr Ng with renovations to the unit by organising trades to carry out the renovation work required.  Mr Ng made payments to Steven from time to time for works at the East Victoria Park unit so Steven could pay contractors or pay for materials.  A building contractor who undertook some work at Mr Ng's East Victoria Park unit was a man named Ali Mahdi Alkanany (Mr Mahdi).

4. As at early 2019 Peter was the registered proprietor of a property at 72 Cowle Street, West Perth.[2]  From March 2019 building works were carried out at the West Perth property.  The primary contractor carrying out those works was Mr Mahdi. 

   [2] In these reasons I sometimes refer to this property as the West Perth property. 

5. Mr Ng contends that on 25 March 2019 he, Peter and Steven discussed renovating the old house located on the West Perth property and subdividing the West Perth property into two lots.  One lot would have the renovated house and the other a new residence constructed on it.  According to Mr Ng, Peter told him that Mr Mahdi would be carrying out the building works, the likely costs for the project would be $780,000, and, if Mr Ng funded the project, he would receive the lot with the new residence to be constructed on it.  

6. Mr Ng says that after his discussions with Peter and Steven on 25 March 2019 he rang his sister in Hong Kong.  After speaking to his sister, he then called Peter to tell him that he would fund the development of the West Perth property in the terms they had discussed earlier that day. 

7. Mr Ng claims that he paid $160,000 towards the development of the West Perth property between March 2019 to July 2019.  Of the money he says he paid, $130,000 was paid to Mr Mahdi and another $30,000 was paid to Steven in July 2019.  Mr Ng's evidence was that he paid the $30,000 as a reimbursement of a payment which Steven had said he had made to Mr Mahdi in June 2019 for work at the West Perth property.  The payments were in cash. 

8. In March 2020 there was a falling out between Peter and Steven on the one hand and Mr Ng on the other.  By then, the COVID-19 pandemic had struck, making direct contact challenging.  Mr Ng ceased having contact with Peter and Steven around 29 March 2020. 

9. On 29 July 2020, Peter transferred the West Perth property to a company associated with Steven, Kronos Holdings Pty Ltd.  At the time of transfer, the property had not been subdivided but subdivision approval had been granted by the Western Australian Planning Commission (WAPC). 

10. On 24 July 2021 Mr Ng commenced proceedings against Peter and Steven seeking repayment of the $160,000 that he claimed that he paid towards works at the West Perth property. 

Summary of the parties' pleaded cases

1. The facts that Mr Ng pleaded in his statement of claim were not always consistent with the evidence that was led at the trial.  In summary Mr Ng's pleaded case was that:

   1.During the period March to July 2019 Mr Mahdi was carrying out building activities at the West Perth property under the direction of Peter and/or Steven.[3] 

   [3] Reamended statement of claim, filed 8 December 2022, par 6 (SOC).

   2.Steven was Peter's attorney being appointed under an enduring power of attorney dated 16 November 2016.[4] 

   [4] SOC, par 4.

   3.In the period 28 March 2019 to May 2019 Mr Ng, at Steven's request, made payments to Mr Mahdi in the sum of $130,000 on behalf of Peter.[5] 

   4.In June and July 2019 Mr Ng at Steven's request made payments to Steven in the sum of $30,000 for and on behalf of Peter as a reimbursement for purported payments made by Steven to Mr Mahdi.[6]

   5.Steven had Peter's authority under the power of attorney to make the request to Mr Ng for payments of money.[7] 

   6.It should be implied from the following facts that Peter and/or Steven undertook to repay the $160,000 paid by Mr Ng:

   (i)there was a history of Mr Ng giving money to/for Peter and Steven and being repaid the money;[8] and

   (ii)the $160,000 paid by Mr Ng was paid for the purpose of a property development by Peter and/or Steven at the West Perth property and before any of the money was advanced the parties had agreed to a development plan for the West Perth property whereby Mr Ng would obtain title over a proposed rear lot in exchange for Mr Ng funding the 'property development'. 

   7.After Mr Ng had advanced the $160,000, Steven altered the development design eliminating the rear lot.[9]

   8.Mr Ng did not receive a rear lot of the West Perth property, Peter and/or Steven retained the money he advanced and in such circumstances Mr Ng's purpose in paying the money had failed and he was entitled to repayment of the sum of $160,000. 

   [5] SOC, pars 8 ‑ 10.

   [6] SOC, par 11.

   [7] SOC, par 7.

   [8] SOC, par 15(a) - particulars to that paragraph state that Mr Ng paid Peter and Steven money between September 2015 and June 2016 in the sum of $194,678 for hotel expenses and refurbishment of Steven's property in Willetton while Peter and Steven were unable to live at the West Perth property and Peter repaid Mr Ng that money. 

   [9] SOC, par 15(e). 

2. In their defence the defendants:

   1.Admitted that Peter, as donor, appointed Steven, as done, under an enduring power of attorney made in November 2016 but denied that at all times Peter acted through Steven as his attorney.[10]

   [10] Amended defence filed 15 February 2023, par 4 (Defence).

   2.Said that Mr Mahdi was carrying out or had carried out or had arranged and supervised building activities at the West Perth property under the direction of Steven between approximately April and June 2019.[11]

   3.Pleaded that from December 2018 Mr Mahdi carried out or arranged and supervised building activities at Mr Ng's East Victoria Park unit. 

   4.Said, with respect to the alleged payments made by Mr Ng:

   (a)a payment of $9,000 was made by Steven to Mr Mahdi on 28 March 2019 without Mr Ng being present;[12]

   (b)the defendants denied Mr Ng's allegations that he made the payments as alleged in the statement of claim and said that if any payments were made to Mr Mahdi, which was not admitted, those payments were in relation to building activities at the East Victoria Park unit and for Mr Ng's own benefit;

   (c)on or around 23 April 2019 Steven paid Mr Mahdi $11,000 in cash for works completed at the West Perth property;[13] and

   (d)denied that Mr Ng paid $30,000 to Steven in June or July 2019.[14]

   5.Denied any meeting took place on 25 March 2019 to discuss an agreement to develop the West Perth property,[15] but that Mr Ng, Peter, Steven and Ms Ogilvie did meet on a social basis in January and March 2020 and the development of the West Perth property was discussed.  Further those discussions were preliminary in nature and no agreement was entered into between the parties in connection with the West Perth property and that any financial arrangement for the development would be in writing.[16]

   [11] Defence par 6(c). 

   [12] Defence par 8. 

   [13] Defence par 9. 

   [14] Defence par 11. 

   [15] Defence par 18. 

   [16] Defence par 19.

What are the issues which must be determined?

1. The principal issues that are raised for the court's determination are:

   1.What agreement, if any, was reached between Mr Ng, Peter and Steven on 25 March 2019 as to the renovation and subdivision of the West Perth property?  Further, if an agreement was made, two further issues must be determined:

   (a)who were the parties to the agreement; and

   (b)what were the terms of the agreement.

   2.Did Mr Ng make any payments to Peter and/or Steven, or at their direction to Mr Mahdi, for renovation or building work at the West Perth property and, if so, how much did he pay?

   3.Did Mr Ng make any of the payments pursuant to an agreement with Peter (or Peter and Steven) for the development of the West Perth property, or were the payments he made wholly or partly for renovation work carried out at his own unit in East Victoria Park?

   4.If Mr Ng made payments pursuant to an agreement with Peter (or Peter and Steven), is the agreement (or arrangement) which was made between Mr Ng and Peter (or Mr Ng, Peter and Steven) enforceable by Mr Ng?

   5.If any agreement (or arrangement) was made between Mr Ng and Peter (or Mr Ng, Peter and Steven) is not enforceable, is Peter (or Peter and Steven) liable to pay Mr Ng $160,000 or any other sum of money?

   6.What final orders should be made?

2. For the following reasons I have concluded that Peter is liable to pay $160,000 to Mr Ng.  

The listing of this case for trial and Peter's inability to give evidence

1. This case was listed for a four-day trial commencing on 14 August 2023.  In advance of those hearing dates, it became apparent that Peter had suffered from a cognitive impairment such that he needed a guardian.  The August 2023 trial dates were vacated as a consequence of Peter's mental condition so that a guardian ad litem could be appointed to represent his interests.  It was common ground that Peter's cognitive impairment meant that he was unable to give evidence in defence of the claims made against him in the proceedings.  A guardian ad litem, Vanessa Vershaw, was appointed by an order of this court made on 6 November 2023 to represent Peter in the proceedings.  Peter and Steven were represented throughout the proceedings by the same firm of solicitors. 

What documentary and oral evidence was led at trial?

1. Four witnesses gave oral evidence during the trial, being Mr Ng, Mr Mahdi, Steven and Ms Deanne Ogilvie, Steven's fiancé.  The evidence of Mr Ng and Steven was vastly different on the key issues in dispute.  It was difficult to reconcile the differences in evidence between Mr Ng and Steven.  They each gave very different versions of events.  Peter was not able to give evidence due to his infirmity. 

2. Numerous documents were referred to at the trial.  For the purposes of the trial, a trial bundle was produced containing the documents the parties intended to tender.  Later, a separate supplementary trial bundle was filed.  At the commencement of the trial, I gave exhibit numbers to the three volumes comprising the trial bundle (Exhibit 2) and the two volumes comprising the supplementary trial bundle (Exhibit 3).  At the end of the trial, the parties agreed which documents should be removed from the trial bundles on the basis that they had not been referred to by any witness.  Where necessary, I will identify documents by exhibit numbers. 

3. In broad terms, the documentary records which were tendered in evidence were:

   (a)an original Westpac envelope which purports to bear notations of cash payments made on specific dates with signatures next to each payment;[17]

   (b)bank statements of Mr Ng which disclose money being transferred between his bank accounts and then being withdrawn in cash;

   (c)emails and SMS messages between Mr Ng and Steven;

   (d)SMS messages between Mr Mahdi and Steven;

   (e)quotations and invoices for work carried out at Mr Ng's East Victoria Park property; and

   (g)subdivision and development applications lodged with the City of Vincent and the WAPC and related documents with respect to the subdivision and development of the West Perth property. 

   [17] A copy of that document was included in Exhibit 2, however, the original was called for by counsel for the plaintiff during opening.  The original envelope was produced by the defendants' legal representatives and became Exhibit 1. 

My approach to fact finding in this case

1. In my approach to fact finding in this case, I have followed the approach and observations made by Allanson J in Doherty v Bruce Ronald Sampey as administrator of the estate of Patricia Adele Addison:[18]

   [18] Doherty v Bruce Ronald Sampey as administrator of the estate of Patricia Adele Addison(AKA Sampey) [2023] WASC 10 [29] - [36] (Sampey).

   (a)First, in determining liability, the plaintiff always bears the onus of proving its case, including any fact relevant to any fact necessary to prove the cause of action on the balance of probabilities.

   (b)Secondly, where facts must be proved in a civil trial on the balance of probabilities, they must be established to the reasonable satisfaction of the court and, the court 'must feel an actual persuasion of [their] occurrence or existence'.  Reasonable satisfaction is not attained or established independently of the nature and consequence of the facts to be proved.  

   (c)The court must recognise the doubts that attend the recollection of conversations many years in the past, but as was observed in Westgyp Pty Ltd v Northline Ceilings Pty Ltd:[19]  

   [It] does not follow that the correct starting point is to simply place little alliance on oral recollection.  Rather, I should access that evidence in light of its inherent probabilities in the context of the objectively established facts.

   (d)Fourthly, the court is not bound to accept or reject a witness' evidence in its entirety.  Some aspects of the evidence of the witness may be unreliable, but that does not mean that all of the evidence of that witness should be rejected:[20] 

   The principles are numerated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest.  After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly.  Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it.

   [19] Westgyp Pty Ltd v Northline Ceilings Pty Ltd [2018] WASC 244 [53] (Vaughan J).

   [20] Sampey [36] (referring to Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1 [118]; Sangha v Baxter [2009] NSWCA 78 [155] ‑ [156]).

2. As Peter was unable to give evidence in defence of the claims made against him, I have approached the evidence of conversations with Peter with careful scrutiny.  I have followed, by analogy, the principles which apply to evidence of conversations involving a person who is deceased (noting of course, that Peter is not deceased).  Those principles were usefully summarised by Hallen J in Blacket v Barnett[21] namely:

   1.It is necessary to bear in mind the need for careful scrutiny to which evidence of conversations involving a person who cannot give evidence should be subjected, and that the person is not available at the hearing to admit or directly deny the specific allegations made by the plaintiff. 

   2.That need for careful scrutiny may even be greater with a person giving evidence of the conversations has a self-interest. 

   3.The court will treat uncorroborated evidence of such communications with considerable caution. 

   [21] Blacket v Barnett [2017] NSWSC 1032 [243] - [250].

Facts which were not in dispute

1. The following factual matters were not in dispute in the trial. 

2. Peter was the registered proprietor of the West Perth property from about 2015.  Peter's mother died in 2015.  It appears that the West Perth property was Peter's mother's house, and he inherited the property from her.  

3. On 29 July 2020 Peter transferred the West Perth property, as a single lot and title, to Kronos Holdings Pty Ltd.  That company is a company associated with Steven. 

4. In 2015 and 2016 Mr Ng advanced money to Peter which was subsequently repaid. 

5. Steven assisted Mr Ng with renovation works to his East Victoria Park unit prior to him selling that unit. 

6. Aside from these matters, the reliability of the evidence of Mr Ng and Steven was very much in issue on the key issues for determination, namely, whether an agreement was made in March 2019 and whether Mr Ng made payments of the sum of $160,000 in accordance with the agreement he contended was made. 

7. I first turn to the issue of whether any agreement was reached between the parties for Mr Ng to advance money for works on the West Perth property.

8. The agreement Mr Ng says he made was an oral agreement.  The agreement, he says, was comprised of discussions he had with Peter and Steven on 25 March 2019 at Steven's Willetton home and finalised in a telephone call he had with Peter later that evening.  As I will shortly detail, Mr Ng says he agreed to fund a building and renovation project of the West Perth property and the $160,000 at issue in this case was paid pursuant to the agreement he said he reached.  Steven's evidence was that no discussions took place between Mr Ng, Peter or Steven about Mr Ng being involved in the renovations and subdivision of the West Perth property.  Before turning to the evidence of those discussions, several matters need to be addressed to place the alleged discussions of 25 March 2019 into context.

The relationship between Mr Ng, Peter and Steven

1. Mr Ng's evidence was that he met Peter in 1987 at Curtin University.  He described his relationship with Peter as a 'long-standing friendship'.  Further, that friendship 'sometimes' became intimate.  Mr Ng attended gatherings of Peter's family on some occasions.  He recalls that he first met Steven when Steven was about 5 years of age. 

2. Mr Ng said that he and Peter never lived together and that they never 'came out as a couple or presented as a couple'.

3. Steven raised an issue about the relationship between Mr Ng and Peter not being one of a friendship but being a long‑term intimate relationship. Further, Steven said that on or around 27 January 2019 Peter became aware that Mr Ng had been unfaithful to him over a number of years.  It was also put to Mr Ng that he was unfaithful to Peter with a Mr Sutton, who he began living with in November 2019.  Mr Ng denied this, stating that Mr Sutton was a friend, however he did admit that that relationship sometimes became intimate. 

4. A submission made by the defendants was that a fracture in the personal relationship between Peter and Mr Ng must cast doubt on the reliability of Mr Ng's case that an agreement was made between him and Peter in the terms Mr Ng alleged.  An obvious difficulty in resolving this contention was that Peter could not give evidence about it.  Beyond a few text messages between Steven and Mr Ng, which I will shortly turn to, and conversations between Mr Ng and Steven, no other evidence was led by the defendants about this issue.  There was no evidence of any text messages or emails (or any written communications for that matter) between Peter and Mr Ng.  Steven did not give evidence about what he knew about the relationship between Peter and Mr Ng, beyond saying the Mr Ng told him on 27 January 2019 that he was gay, that he was in a 'relationship with his uncle, but had been unfaithful to him for the last 10 years'. 

5. With respect to the available evidence that was led, on 27 January 2019 (a Sunday) at 5.48 pm, Mr Ng asked to see Steven at Coles Southlands.  There was seemingly missed calls between the men.  About 20 minutes after the first text, Mr Ng sent a text 'Steven - I need to talk to you'.  There was a further text message on 28 January 2019 at 1.56 am (early the Monday morning) from Mr Ng which said 'Steven, may I stay in your place?  I'm outside'. 

6. In cross‑examination, a proposition was put to Mr Ng that these communications were consistent with him having told Steven that he had been in a long‑term relationship with Peter and that the relationship was breaking down due to him being unfaithful for a long period of time.  Mr Ng denied this.  He also denied discussing with Steven his relationship with Peter. 

7. Steven's evidence was that he told Mr Ng that he was upset by what Mr Ng had told him.  Further, if he had known about him being unfaithful to Peter, he would never have got involved in helping him with the renovations to his residence.  He said that he continued to assist Mr Ng with renovations to his residence because he wanted to preserve the relationship between Mr Ng and his uncle.  Steven also said in evidence that Peter had told him in confidence that he felt threatened by Mr Ng possibly revealing that he was gay and outing him, and that he wanted his private life to remain private. 

8. As I will refer to in greater detail in these reasons, the evidence of Steven and Mr Ng is consistent in that there was ongoing contact between Peter and Mr Ng.  For example, as I will soon turn to, Mr Ng witnessed Peter's signature on an agreement with a surveying company to do work at the West Perth property in May 2019.  I also note that in 2019 and in early 2020, before the pandemic, Mr Ng was a regular visitor at the Willetton property and on occasions met Peter there. 

9. I cannot make any findings about the quality or nature of the relationship between Mr Ng and Peter on the evidence which was led during the trial.  Certainly, Mr Ng's evidence was that the relationship did not reach a level that one would understand a de facto relationship would constitute.  In the absence of more detailed evidence, including documentary evidence, I am not persuaded that Mr Ng and Peter were involved in a long‑term domestic or 'de facto relationship' within the meaning of s 8 of the Interpretation Act 1984 (WA) or recognised as a 'marriage‑like relationship' in cases such as H v P.[22]  On the basis of the evidence that was led at trial, I do not find that there was some overarching domestic relationship which would inform findings as to the making of an agreement between them or their conduct generally.  Further, I do not consider that a presumption of advancement which allows an inference as to intention to be drawn from certain relationships applies in this case.[23]  To the contrary, as I will shortly outline, to the extent that there is evidence that money was advanced or paid by Mr Ng to Peter, Peter repaid the money.  The defence did plead that Mr Ng and Terry were in a relationship and payments were made on occasion from Peter to Mr Ng for his advancement but this issue was not explored in any submissions during the trial.[24] 

   [22] H v P [2011] WASCA 78: see also Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12.

   [23] As to the existence of a presumption of advancement between spouses, see Bosanac v Commissioner of Taxation [2022] HCA 34; (2022) 275 CLR 37.

   [24] Amended Defence, par 16.

10. I also find, on all of the evidence, that the relationship between them had neither become fractured nor ended due to infidelity by either party.  I deal later in my reasons with a submission by the defendants that the events of 27 January 2019 make Mr Ng's version of the agreement he relies upon as being implausible. 

Events preceding March 2021 - Mr Ng advances money to Peter and starts renovating his own residence

1. In about September 2015 there was a fire next door to the West Perth property.  As a result of the fire, Peter moved out of the West Perth property to stay in a hotel.  Steven's evidence was that a fire occurred in or around mid-September.  Mr Ng did not specify the month of the fire, only that it occurred in 2015.  According to Steven, Peter stayed in hotel accommodation from September 2015 until around April or May 2016. 

2. Mr Ng gave evidence that renovations were undertaken to Steven's Willetton property during this time, so Steven also stayed in a hotel.  Mr Ng said he advanced money to Peter to cover hotel bills and expenses.  His evidence was that he had had no financial dealings with Peter until advancing money to cover hotel bills and other expenses. 

3. A spreadsheet was produced in evidence, being an Excel spreadsheet prepared by Mr Ng, entitled 'Payment for Steven and Peter'.[25]  This spreadsheet was purportedly prepared in or around December 2015.  It records various payments for:

   (a)Peter's hotel bills, $65,460.03;

   (b)Steven and Peter for 'West Perth', $16,007.60 (and the dates ranged between December 2015 - 6 April 2016);

   (c)Willetton, $33,474.50 being painting, security, retaining walls and other services;

   (d)Steven's hotel bills of $32,780.62 recording various hotel accommodation at Duxton Hotel, Pan Pacific and Fraser Suites during January - April 2016; and finally

   (e)'Others', $31,328.60, itemised primarily as being cash to 'Michael', legal bills to MDK, cash to Steven and EFT payments to Colleen Divine. 

   [25] Exhibit 2, tab 3. 

4. The total amount of the payments was $179,051.35.  The details of the spreadsheet and the advances made were not explored in any detail in evidence.  What was said in closing on behalf of the defendants is that this form of record keeping by Mr Ng was relevant to an assessment of his credibility of whether he would enter into an undocumented agreement.  Further, the spreadsheet informed the issue of whether his record keeping of the payments he allegedly made under the agreement would be non‑existent or, at best, written on the back of an envelope. 

5. Mr Ng's evidence was that Peter paid to him $200,000 in April 2016, being a repayment of the hotel expenses but out of the $200,000 Steven requested $95,000 to renovate his home in Willetton.  Peter gave Mr Ng two cheques, one for $105,000 and one for $95,000. 

6. Later in Mr Ng's evidence he said that $112,000 was for the hotel stay and the rest of the $200,000 repaid to him was for renovations at Steven's Willetton property.  Mr Ng's evidence in this respect was confusing and contradictory.  Steven was not cross‑examined about receiving a payment of $95,000 (or any other amount) from Mr Ng.  This was one of a number of issues which were not explored in cross‑examination of witnesses at the trial. 

7. Beyond making a finding that Mr Ng made advanced money to Peter and that there were no outstanding issues with respect to the money advanced, I do not consider that the transactions in 2016 are relevant to the resolution of the issues in dispute.  These transactions are not relevant because any money that had been advanced appears to have been repaid.  I do not make any further findings about this issue.  I will, however, address the issue about Mr Ng's record keeping later in my reasons. 

8. Ultimately, no issue was raised about a loan by Mr Ng to Peter (or Steven) by either counsel in closing the case.  The primary issues were, rather, whether an agreement was made in March 2019 and whether Mr Ng had made the payments of $160,000 which he is seeking to recover in this case. 

Peter and Steven's birthday wishes for Terry's birthday in 2018

1. Mr Ng relied upon a birthday card from Peter to Mr Ng of 11 November 2018 to provide some objective evidence as to the relationship between Mr Ng, Peter and Steven as at that date.  The card read:[26] ^& [27]

   To dear Terry

   …

   You are truly part of our family, and we feel privileged to have known you and been part of our lives.  Best wishes for the coming year and always!

   Steven and Peter

   xxx

   [26] Exhibit 2, tab 16.

   [27] Mr Ng's evidence was that the handwriting on the card was Peter's.

Renovations of Mr Ng's unit in East Victoria Park

1. During 2018 Mr Ng told Peter and Steven that he intended to sell his East Victoria Park unit and buy another apartment in good condition.  However, before he could sell his unit, he needed to do some renovation work.  A roof restoration was required and there were also problems with the gutter along the carport. 

2. Mr Ng carried out renovations to his unit from about December 2018 until about September 2019.  Upon completion of the renovations he sold the unit.  Settlement of that sale occurred in November 2019.  From the proceeds of sale, Mr Ng received approximately $401,000. 

3. It was common ground that Steven assisted Mr Ng in the renovations of his unit.  Mr Ng said that Steven volunteered to manage the work and that he never asked him to do it.  Steven said Mr Ng asked him to help.  Whether Steven volunteered to manage the renovation work to the East Victoria Park unit or not, is not an issue I need to decide to resolve the key issues in dispute. 

4. The defendants pleaded in their defence that Mr Mahdi carried out building work at the East Victoria Park unit.[28]  Further, any payments Mr Ng made to Mr Mahdi were for building works at his East Victoria Park unit and not for the West Perth property.[29]  Numerous documentary exhibits were tendered and referred to with respect to payments being made by Mr Ng to Steven, ostensibly on the basis that Steven was organising the renovation works to the unit. 

   [28] Defence, par 6. 

   [29] Defence, par 9. 

5. The extent (and cost) of the renovations to Mr Ng's East Victoria Park unit, and Steven's involvement in the work, was the subject of extensive evidence during the trial.  This issue occupied much of the trial time. 

6. Steven's evidence was that he arranged for the renovation works that were required to the unit.  He said Mr Ng mostly paid the contractors directly, although on some occasions he paid some contractors and Mr Ng reimbursed him when that occurred.

Mr Ng's first meeting of Mr Mahdi

1. Around 23 January 2019, part of an asbestos dividing fence in the complex of units in which Mr Ng's unit was situated, had fallen down and was in need of replacement.  Mr Ng obtained a quote from a company to remove and dispose the asbestos fence.  Mr Ng said that this company was not engaged because Steven said to him that he knew someone who could do the job a lot cheaper.  This person happened to be Mr Mahdi. 

2. Steven also gave evidence that he had arranged for Mr Mahdi to replace the broken fence and do some paving work at the unit.  In this respect, Mr Mahdi sent a text message to Steven on 22 February 2019.[30]  From the text messages exchanged, a price for works was agreed.  The text messages sent on 22 February 2019 show the following: 

   Steven:No worries so 3,150 includes the paving as well?

   Ali:No brother with paving pressure clean $3,400

   Steven:Ah no worries.  See you tomorrow at 8am

   Ali:Ok

   Steven:I'm happy to get everything included for $3,400 including limestone.  Thanks

   Ali:See you tomorrow 8am

   [30] Exhibit 2, tab 67.

3. When Mr Mahdi was working at the East Victoria Park unit, Steven introduced Mr Ng to him.  In evidence, which I will shortly turn to in greater detail, Mr Mahdi recalled his first meeting with Mr Ng.  He said that he remembered meeting an 'Asian man'[31] at the Victoria Park unit property.  When asked what work he did at the East Victoria Park unit, Mr Mahdi said recalled doing a bit of paving and a small fence.  He said that he did not deal with Mr Ng but only dealt with Steven.

   [31] These were the words used by the witness.

4. No evidence was led that Mr Mahdi did other work at the East Victoria Park unit beyond the replacement of the fence and some paving.  I find that Mr Mahdi carried out the works to replace the fence and associated paving on or shortly after 23 February 2019.  I also find that Mr Ng paid Mr Mahdi for that work, being $3,400.  He did so by depositing money to Steven's bank account to enable Steven to make the payment to Mr Mahdi.

Other renovation works at the East Victoria Park unit

1. As a significant amount of time at the trial was spent considering documentary records and payments with respect to renovations at the East Victoria Park unit, I set out in the next paragraphs the extent of those renovations and the costs of those renovations.

2. I find that work continued at the East Victoria Park unit until around September 2019.  The full extent of the works carried out was as follows:

   1.installation of a colorbond fence;

   2.fitting of a limestone boundary fence;

   3.landscaping;

   4.reticulation;

   5.installation of insulation and ceiling repairs;

   6.roof repairs;

   7.rubbish removal which required skip bin;

   8.replacement of gutters and downpipes;

   9.replacement of front door with new locks;

   10.installation of smart water meter;

   11.internal painting;

   12.minor renovations to bathrooms including new tap fittings and new exhaust fan;

   13.removal of asbestos fence;

   14.installation of led lighting; and

   15.electrical works. 

3. Mr Ng was asked in cross‑examination whether the total cost of the work done to renovate his unit was $137,000.  He denied that.  Mr Ng made reference of 72 eft transactions of payments that he made to Steven and contractors over the period 14 March 2019 ‑ 6 September 2019.  The total amount of those payments was said to be around $78,000.  No party prepared a schedule of the payments.  Doing the best I could, I went through those transactions and calculated payments which totalled $74,865.38.  The payments were made from Mr Ng's bank account to Steven, Nelson Roofing ($4,300), Daniel Parlongo ($475) (with a bank entry 'Garden Shed'), Just Garden Sheds ($795) and Just Garden Sheds ($1,545).

4. The entries in the bank accounts for payments to Steven had descriptions of what the payments were for.  I will not set out the descriptions in any degree of detail save to say they included such things as 'removal of electrical Vic Park', 'Swansea Electrical', 'Furniture Swansea', 'Locks Swansea' and 'Painting Swansea'.

Meeting between Peter, Mr Ng and Steven on 25 March 2019

1. Mr Ng says that on 25 March 2019 Steven rang him and told him that Peter wanted to talk to him about a project development plan for the West Perth property.  Mr Ng said that he went to Steven's Willetton house later that day and met with Steven and Peter.  In the next paragraphs I set out Mr Ng's version of the meeting he says occurred on 25 March 2019.

2. Mr Ng's evidence was that Peter told him that he wanted to develop the West Perth property.  Peter said the property would be subdivided into two lots and his existing house would be modified from a single level to a three‑storey house.  The rear lot would have a new three‑storey house.  Peter said they had a quotation from Mr Mahdi for $780,000 to do the work.  Peter said he would keep the front lot with the existing house modified into a three-storey home.  Mr Ng would have a new three‑storey building on the rear lot if he paid the $780,000 for the completion of the project. 

3. Mr Ng said to Peter during this meeting that he had some concerns about the proposal.  He said he was approaching retirement and did not have the money.  Second, he was not a family member, and he would like Peter to discuss the plan with his younger brothers, George and Nick.[32]  According to Mr Ng, Steven said during the meeting that if his uncle George and father (Nick) found out, then Peter and Steven would abandon the project.

   [32] Nick is Steven's father.

4. Mr Ng said that the meeting ended on the basis that he said to Peter:

   Ok, … I need to talk to my sister at home (Hong Kong) because at the moment I don't have the money and what I can do is when I sell this house [a reference to his East Victoria Park unit] and I reach 60 I can withdraw part of super to finance the project.[33]

   [33] ts 111.

5. Steven denies there was any meeting or discussion on 25 March 2019 as Mr Ng alleges.  His position is that no such meeting occurred. 

6. Mr Ng said that later that day he spoke to his sister.  After he spoke to his sister, he called Peter during the evening of 25 March 2019 and told him he was 'committed' to the project. 

7. Mr Ng was extensively cross‑examined on his version of the meeting.  It was put to him that no such meeting occurred and that his version of events was fanciful or incredible.  Specifically, it was inconceivable that he would commit himself to funding $780,000 without obtaining any copies of plans for the construction of the development, without ensuring there was council approval and without seeing a quote from Mr Mahdi or a builder.  For the reasons which follow, I accept Mr Ng's evidence of his discussions with Peter and Steven on 25 March 2019.

What happened in the days after 25 March 2019?

1. Mr Ng said his sister transferred $50,000 to his Westpac 'Life' bank account two days' later on 27 March 2019.  During Mr Ng's evidence, counsel for the defendants called for Mr Ng to produce statements for this bank account.  Those statements were produced and became Exhibit 4.  Mr Ng's 'Life' bank statement confirmed that he received in his account $50,000 on 27 March 2019, as he had said in his oral evidence.

2. Mr Ng said he next heard from Steven on 28 March 2019 when Steven rang him.  Steven told him during a telephone call that Mr Mahdi needed an urgent cash payment of $10,000 that afternoon.  Mr Ng told Steven he was working, and it was difficult for him to get the $10,000.  He said he would transfer $5,000 from his account to Steven's account so that Steven could withdraw $5,000 in cash.  Further, he would withdraw $5,000 from the Joondalup branch of Westpac and then meet Steven at his house in Willetton so they could go together to pay Mr Mahdi.

1. Mr Ng said when withdrawing $5,000 in cash at the Westpac Joondalup branch, a bank teller gave him the cash in a Westpac envelope.  As I return to later in these reasons, the envelope is an important exhibit in the context of the claims advanced at trial.

2. Mr Ng's evidence was that on 28 March 2019 he drove from Joondalup to Steven's house in Willetton.  Steven and Mr Ng then drove to the West Perth property.  Steven gave Mr Ng $4,000, saying he could only withdraw that amount (and not $5,000) because he had a low balance.  At the West Perth property Mr Ng said that, in Steven's absence (Steven walked away), he (Mr Ng) gave Mr Mahdi $9,000 in cash.  Mr Mahdi counted the cash and once he had finished counting, he signed the envelope as a receipt for the payment.  Mr Ng's evidence is that he wrote on the envelope 'total $9,000' and Mr Mahdi signed next to that entry.

3. As I refer to later in these reasons at [178] - [180], Steven spoke to Mr Mahdi before Mr Ng gave Mr Mahdi the $9,000.  Steven recorded on his mobile phone his conversation with Mr Mahdi, and it was played at trial.  In the recorded conversation, Steven referred to only having $9,000 and his friend was coming.  As I explain in further detail, I find that Steven spoke to Mr Mahdi and then walked off.  After Steven walked off, Mr Ng gave Mr Mahdi $9,000 in cash and Mr Mahdi signed the envelope as receipt for the payment.

4. Next, Mr Ng says that on 3 April 2019 he went to the West Perth property to pay Mr Mahdi $20,000 in cash.  Mr Ng's evidence was that, on this occasion, Mr Mahdi told him that for Peter's existing house to be modified into a three-storey home, he expected that could be done by September 2019.  Further, a new house on the rear block could be done sometime around Christmas.

5. In a later part of these reasons, I deal separately with the payments totalling $160,000 that Mr Ng says he made to Steven and Mr Mahdi.

What, when and how was work was performed at the West Perth property?  What was the role of Mr Mahdi?

1. Mr Mahdi gave evidence at the trial.  Mr Ng's lawyers served a subpoena on Mr Mahdi.  He attended court in compliance with the subpoena.

2. Mr Mahdi is originally from Iraq.  English is his second language. He described himself as a plasterer who does other building works.  My observation of Mr Mahdi's evidence was that whilst he was guarded on some issues, specifically the amount of money he was paid in cash for work that he did, he gave his evidence honestly and in a forthright and open way and to the best of his recollection.  Understandably, his recollection on certain matters was not detailed.  He did not appear to have reviewed any records in advance of giving his evidence, nor did it appear that he had consulted with any of the legal representatives involved in the case before giving his evidence.

3. Mr Mahdi (and men who worked with him) carried out works at the West Perth property for about three months starting from March 2019.

4. The commencement date of Mr Mahdi working at the West Perth property is unclear, but it seems to have been around 26 March 2019.  During the night of 25 March 2019 Mr Mahdi sent a text message to Steven saying 'I'm starting tomorrow 7 am'.

5. On 27 March 2019 a skip bin was delivered to the West Perth property.[34]  Mr Mahdi was working at the West Perth property when the skip bin was delivered.

   [34] TB tab 152, page 514.

6. At 12.32 pm on 27 March 2019 Mr Mahdi texted Steven.  His text message said 'I want some money tomorrow'.[35]  Mr Mahdi also sent a text asking for furniture to be removed from the West Perth property because he could not work around it.

   [35] Exhibit 2, tab 152, page 154.

7. Payments of money to Mr Mahdi followed over the next six weeks.  The works at the West Perth property were substantial and had an obvious expense attached to them.  A source of funding was required for those works to be carried out.

8. Mr Mahdi said 'they' (which I understood to be he and his workers) were on site at the West Perth property for three months 'but not every day' and that they were trying to renovate the house.  He described the work performed as 'we moved everything like kitchens, tiles, bathroom and he's (Steven) trying to renovate it'.  He said that Steven 'wanted to subdivide' (the West Perth property) 'but the Council they say no because the old house you can't build on top of that'.[36]  He also said, of the work he and his workers performed, they did 'rendering' and 'brick walls'.  Steven said that he recalled Mr Mahdi's work at the West Perth property also involved the removal of asbestos.[37]

   [36] ts 285.

   [37] ts 466.

9. Both counsel questioned Mr Mahdi about the envelope which Mr Ng said evidenced cash payments.  With respect to the signatures, his evidence was that those signatures 'looked like my signature, yeah'.  He said he could not remember writing on the envelope but said that it looked like his signature on it.

10. When Mr Mahdi was asked about the context of the payments, he said that he was dealing with Steven, but he recalled that there was an 'Asian man'[38] who came with Steven.  Mr Mahdi said that whenever he needed money for the works he was performing, Steven gave him money, but there may have been one or two times the 'Asian man' gave him money.  When Mr Mahdi asked Steven about the 'Asian man', Steven said to him 'he's working with me'.[39]  Mr Mahdi was unable to identify the man he referred to as the 'Asian man' in his evidence by name.  I infer he was referring to Mr Ng.

    [38] Those were the words used by the witness.

    [39] ts 294.

What about documentary records?

1. I now turn to the documentary records which were tendered and relied upon by the parties during the trial.  I consider that documentary records, especially those that are contemporaneous to disputed events, are of assistance in determining parties' versions of events and may or may not provide corroboration of oral evidence.  Further, regard may be had to both pre‑contractual and post‑contractual conduct to determine whether an agreement has come into existence.

2. On 26 March 2019 trust and loan agreements associated with Mr Ng were completed and signed.  Specifically, the following documents, which bear the date 26 March 2019, were referred to during the course of the trial:

   1.A trust deed for the creation of the Ng Family Trust between Ana Jokic as settlor and Ng Nominees Co Pty Ltd as trustee.[40]  The document is described as a 'bloodline trust deed' with Mr Ng, Win Kuen, Sarah Ng and Win Ying Bernice Ng each described as principal beneficiaries and thereby primary beneficiaries of the discretionary trust.  Other primary beneficiaries being the children, grandchildren, great‑grandchildren and parents of any of the three principal beneficiaries.  The document was executed by Mr Ng and Steven on behalf of the trustee Ng Nominees Co Pty Ltd.  Steven is seemingly a director of this company although no ASIC search of Ng Nominees Co Pty Ltd was tendered during the trial.  In evidence, it seemed to be accepted that Steven was a director of Ng Nominees Co Pty Ltd. 

   2.A loan agreement between Ng Nominees Co Pty Ltd as trustee for the Ng Family Trust and Mr Ng.[41]  The document recites that Ng Nominees Co Pty Ltd as trustee for the Ng Family Trust having made, or may in the future from time to time make, advances to Mr Ng in the amount of $475,000.

   3.A security deed between Mr Ng as grantor, and Ng Nominees Co Pty Ltd as trustee for the Ng Family Trust as the 'secured party'.[42]  The document refers in item 1 of sch 2 to a sum of $10,000 as money secured and defines that sum and all monies owing on any account by Mr Ng to the trustee company under the 'facility agreement' or otherwise.  The term 'facility agreement' is defined in the schedule as being a loan by the secured party (the trustee company) to the grantor (Mr Ng) which is presumably the loan agreement document I have referred to above and an additional documenting being an 'agreement to assign' dated 26 March 2019 which was not the subject of any evidence.

   [40] Exhibit 2, tab 95. 

   [41] Exhibit 2, tab 94. 

   [42] Exhibit 2, tab 96.

3. Mr Ng said the idea of the trust was 'to save my asset for the benefit of my two sisters in Hong Kong'.  Mr Ng said Steven was a director of the trustee company, Ng Nominees Pty Ltd, because they got on well together and he treated Steven as his nephew and that he was also the executor of his will.  Steven said that Mr Ng requested him to facilitate 'the creation of a bloodline trust for the purposes of asset protection'.

4. Whilst the documents bear the date 26 March 2019 there was no oral evidence, beyond what I have described, about the purpose of the documents or when they were created.  There was little evidence about the substance and contents of the documents I have identified.

5. In all the circumstances I do not place any real weight on the trust and loan documents as corroborating the existence or terms of any agreement between Mr Ng on the one hand and Peter (or Peter and Steven) on the other.

6. For the reasons I explain below in [177] ‑ [183] I find that cash payments of $49,000 were made to Mr Mahdi between 27 March 2019 and 20 April 2019, being, a $9,000 payment on 28 March 2019, and two $20,000 payments made by Mr Ng to Mr Mahdi on 5 April and 20 April 2019 respectively.  These findings inform the terms of text messages and emails which I refer to in the next paragraphs.

SMS messages and emails were exchanged between Steven and Mr Ng

1. As I have mentioned, many SMS messages and emails were exchanged between Steven and Mr Ng in the first six months of 2019.  Steven and Mr Ng were taken to many of those in cross‑examination.  One of the emails was sent by Mr Ng to Steven on 22 April 2019.[43] 

   [43] Exhibit 2, tab 106. 

2. This email which Mr Ng sent on 22 April 2019 to Steven read as follows:

   Steven

   780 is not a small amount

   I think we need to have more information about the 'mixed services' houses. 

   In each 'house' details of its building plans number of storeys (3 levels?) number of rooms kitchens/bathrooms/toilets … adequacy of parking sites particularly for the commercial renting/leasing purpose.  Maybe any potential impacts on the next block of land/developer as well

   We also need to discuss HOW to arrange payments to the builders, the time frame of the completion of the house.  And the next issue is how to arrange finances for this business plan - this will require an arrangement of financing through my equity being held in the trust.  To be honest, I don't have any more money

   Sure, we will need to have more discussion

   Cheers Terry

3. As I explain below (in [184] - [186]) on 23 April 2019 Steven made an $11,000 cash payment to Mr Mahdi.  Mr Ng gave to Steven the $11,000 which enabled him to make that payment. 

4. A week or so later on Monday 29 April 2019 at 7.28 pm Mr Ng sent this email to Steven:

   Steven, let Ali know that we will pay him 20 this Friday, and another 20 next Tuesday (07/05/19). 

   Also, after this 40, only 20 is available - I don't have anymore.  We need to speed up Peter's and my trust issue.  Otherwise, we can't pay Ali anymore. 

   Cheers Terry

5. As I explain further in [188] below Mr Ng made $20,000 payments to Mr Mahdi at the West Perth property on each 3 May and 7 May 2019.

6. The email of 22 April 2019 and the further email of 29 April 2019 informs and corroborates the payments that were made at that time.  I also find that the reference in the email of 22 April 2019 to '780 is not a small amount', is a reference to the $780,000 that Mr Ng says was discussed with Peter (and Steven) on 25 March 2019.  This email corroborates Mr Ng's version that a figure of $780,000 required to be paid to complete the project being mentioned in the meeting that I find took place on 25 March 2019.  The reference in the email of 29 April 2019 is also consistent with Mr Ng's version of events that he was committing to pay money for the works and he was concerned to see how that money was being spent. 

7. On 10 May 2019, a document was signed by Peter, Mr Mahdi and Kronos Holdings Pty Ltd appointing a company Zenith Surveying Pty Ltd to undertake project management services at the West Perth property.  Peter's signature on that document was witnessed by Mr Ng.  Mr Mahdi was identified on the document as both the client and 'builder'.

8. The document referred to a subdivision of the West Perth property.  It details planning and survey processes and works to be undertaken by Zenith up to WAPC conditional approval which was described as stage 1 and subdivision into two lots which was described as stage 2.  Mr Mahdi's signature on the document is purported to be in the capacity as 'builder'.[44]

   [44] Exhibit 2, tab 121.

9. This document was not put to Mr Mahdi in evidence-in-chief or cross‑examination.  The parties did not refer to the document in any detail, but I consider the reference in that document to Mr Mahdi's capacity as 'builder' to be important in the context of the earlier discussions on 25 March 2019.  The importance is not whether Mr Mahdi was a registered builder.  Clearly, he was not.  I consider the mention of Mr Mahdi as a builder for the project the subject of the work Zenith would perform informs what Mr Ng said was discussed at his meeting on 25 March 2019 with Peter and Steven. 

10. On 5 June 2019 the Department of Planning, Lands and Heritage provided to the City of Vincent 'short track referral system' documentation.  This documentation included an application for approval of freehold or survey strata subdivisions pertaining to the West Perth property.  It appears from this record that an application for a subdivision of the West Perth property was made on 29 May 2019.[45] 

    [45] Exhibit 3, tab 3.

11. That document stated that one lot would be 234 sqm and the other 319 sqm. 

12. From the 10 May 2019 document appointing Zenith Surveying Pty Ltd as project manager and from the short‑track referral system documentation, I find that, by 29 May 2019, a subdivision application with respect to the West Perth property had been prepared and submitted.

13. Almost four months later, an application for development approval was filed with the City of Vincent on 17 September 2019.  That application referred to the owner of the property as being Peter and the applicant being Kronos Holdings Pty Ltd.[46]  Attached to the document was a Metropolitan Regional Scheme Form 1 Application for Planning Approval submitted to the WAPC.  Amongst the documents lodged with the WAPC was a survey strata subdivision.  The survey strata plan recorded the original lot as being 447 sqm and the proposed plan for lot 1, being the proposed 25 sqm lot, included a sketch of a three‑storey building.  Lot 2 also had a sketch of a three‑storey building.  I consider that these documents corroborate there being an earlier discussion about the subdivision of the West Perth property which would include two three‑storey buildings which were discussed at that time as being residential buildings. 

    [46] Exhibit 3, tab 10.

14. Little evidence was given about Kronos Holdings Pty Ltd.  Steven's evidence was that Kronos Holdings Pty Ltd is a company that was used as a special purpose vehicle for the West Perth property created in or around May 2019 and that he is the sole director and shareholder of the company. 

Events in 2020

1. Around 6 January 2020, Mr Ng attended dinner with Peter, Steven and Deanne Ogilvie at Bella Rosa Restaurant in Carlisle.  An accountant, Mr Sillars, also attended.  Mr Sillars was not called to give evidence during the trial.  Mr Ng's evidence was that during the dinner Ms Ogilvie and Steven mentioned that they were due to go for a meeting with City of Vincent later that week regarding the West Perth property development.  Ms Ogilvie said in evidence that she could not recall precisely what the dinner discussion entailed but she did recall that Steven had mentioned something to do with the West Perth property and Mr Ng had asked questions relating to the progress of the West Perth property. 

2. More than a month later, on 15 February 2020, Mr Ng sent a text message to Steven which said: 

   I'll be in Willetton tomorrow for a meal with Peter around 6 pm.  I know that Peter got an argument with you about the project in WP.  I disagree with him - nobody will buy his land (full of unresolved issues including any demolition work).  So can we talk about it more tomorrow evening?

3. Based upon that text it appears that Mr Ng went for dinner with Peter that following evening.

4. On 10 March 2020 Mr Ng and Steven exchanged text messages to Steven and Steven's reply was as follows:

   Mr Ng: I'm please [sic] to know that the WP project attracts a lot of interest.  I'm happy whatever option/way to complete it as long as its in the best interest for Peter and Sevastos family to get the maximum profit/gain from it.  Because it's the Sevastos treasure and only Peter and you are entitled to it.  (08:59)

   Whatever option it will be, I'm committed to help Peter in this project.  (09:00)

   Steven: Sorry your message only just came through.  Thanks for support much appreciated.  (13:15).

5. Mr Ng sent a further text message to Steven on 16 March 2020 which said:

   In Willetton now - will have a meal with Peter.  Can stay until 8 pm this evening and we can discuss about the WP project.

6. The last communication between Steven and Mr Ng that evidence was led about in the trial was a text message that Steven sent to Mr Ng on 29 March 2020 which read as follows:

   Dear Terry,

   With the all the measures that are being introduced in terms of social distancing coupled with the new announcements today regarding (COVID-19) which have increased the level of restrictions - it would be in everyones interests (including Peters) for you to refrain from visiting.  As you are aware given his advances age and comorbidity the consequences if he were to contract this would be life threatening and on that basis irresponsible not to protect him from this.

   Cheers,

   Steve.

7. On 29 July 2020, Peter transferred the West Perth property to a company associated with Steven, Kronos Holdings Pty Ltd.  The transfer recorded a consideration payable of $620,000.

8. Mr Ng's evidence was that he stopped communicating with Steven and Peter entirely following emails to him from Ms Ogilvie sent on 19 October 2020.  Ms Ogilvie, who is seemingly a legal practitioner, sent two emails to Mr Ng from her work email address[47] which said this:

   [47] Exhibit 2, vol 3, tab 165.

   From: Ogilvie, Deanne
   Sent: Monday, 19 October 2020 10:55 AM
   To: '[email protected]' <[email protected]>; '[email protected]' <[email protected]>; '[email protected]' <[email protected]>

   Subject: Communications

   Terry

   I have spoken to both Steven and Peter and in light of the current circumstances, including but not limited to Peter's health, they have asked me to personally reach out to you for the purpose of advising you of the following.

   1.They do not agree to attend any meeting or have any further discussions with yourself either separately, together or in the company of others.  I understand that you had requested a meeting today or on Wednesday, neither of these requests are agreed and as such you should not attempt to force a meeting by physically turning up at their home.

   2.Both Peter and Steven have requested that going forward you do not contact them and all communication, if any, is now to come through me.  Should you try to contact either Peter or Steven directly whether it be in person, by phone or any other electronic means they will not respond to you.  Any communication from you that come through me will only be responded to the extent that it is the wish of Steven or Peter that I respond to you.  I note that any lack of response on the part of myself, Peter or Steven whether in the past or going forward is not to be taken as agreement of or conceding any matter which may have been raised in any communication from yourself.

   I am advised that Peter and Steven have both repeatedly made their positions clear to you and despite their requests they have informed me that you are disregarding their wishes.

   Accordingly they see no utility in further discussing any matters with you at this time and as such have asked that I now become involved.

   Regards

   Deanne

   From: Ogilvie, Deanne <[email protected]>
   Sent: Monday, 19 October 2020 2:19 PM
   To: [email protected]

   Subject: RE: Communications

   Terry

   I refer to my earlier email below and have been advised by Peter and Steven that notwithstanding you were advised that they did noy agree to meet with you, you arrived at their home today around 11.30am today (Perth time) and have been calling, messaging and parked out the front of their home either on the street or in the driveway since then.  There is surveillance footage which has captured this on camera as well.

   I have spoken to Peter and he has asked me to relay the following:

   1.you need to leave the property immediately and stop trying to contact him and Steven;

   2.you do not have permission to be on the property and your actions are both harassing and preventing both Steven and Peter going about their daily lives; and

   3.if you do not leave the property as requested, action will be taken to have you removed from the property, including, if necessary, by calling the police.

   It is hoped that you will respect the wishes of Peter and Steven, leave their property and stop trying to contact them without the need for this to escalate further.

   Regards

   Deanne

1. I find that there was a failure of consideration.  The agreement which I found was made between Peter and Mr Ng was not carried into effect.  It was not specifically enforceable by Mr Ng because it was not in writing.  Having said that, Mr Ng did not attempt to enforce the contract rather he sought a refund of the money that he paid. 

2. In AWAP SGT 26 Investment Ltd v CN 2000 Holdings Ltd,[78] the Court of Appeal noted the following:

   The common law recognises a restitutionary right to the return of money paid for a consideration which is to be performed after the payment, if the consideration wholly fails making it unjust or unconscionable for the defendant to retain the benefit.  For this purpose, the consideration is not the defendant's promise itself, but rather is the performance of the promise.  The receipt and retention by the plaintiff of any part of the bargained-for benefit will preclude recovery, unless the contract otherwise provides or the circumstances give rise to a fresh contract.  Failure of consideration for a payment means that the state of affairs contemplated as the basis or reason for the payment has failed to materialise or, if it did exist, has disappeared or failed to sustain itself.

   (footnotes omitted)

   [78] AWAP SGT 26 Investment Ltd v CN 2000 Holdings Ltd [2020] WASCA 74 [177].

3. In the present case, the promise for which payment was made was the subdivision of the property by Peter, the construction of a three‑storey residential unit on one subdivided lot and the renovation of the existing residence on the other.  Further, in return for the payment of the construction costs Peter would give to Mr Ng one subdivided lot with a new residence.  The property was not subdivided before Peter transferred the certificate of title to Kronos Holdings Pty Ltd. 

4. There was a complete failure by Peter to perform the promise under the terms of the agreement he made with Mr Ng and for which Mr Ng had paid $160,000. 

5. There was nothing in the discussions from which a contractual term could be inferred or implied that Peter would be entitled to retain the money Mr Ng paid if Mr Ng did not receive a subdivided lot. 

6. In my opinion, there was a total failure of consideration and, as a consequence of that failure of consideration, it would be unjust or unconscionable for Peter to retain the $160,000 paid by Mr Ng.  Mr Ng is entitled to recover the $160,000 as money paid to and received by Peter for a consideration that has failed. 

7. I will hear from the parties as to the appropriate final orders to be made, including as to interest and costs. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

LM

Associate to Judge Curwood

4 SEPTEMBER 2024