Nguyen v Shah
[2018] VCC 1340
•29 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-04568
| THINH NGUYEN | Plaintiff |
| v | |
| HITESH SHAH | Defendant |
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JUDGE: | HER HONOUR JUDGE MARKS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 – 26 July and 3 August 2018 | |
DATE OF JUDGMENT: | 29 August 2018 | |
CASE MAY BE CITED AS: | Nguyen v Shah | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1340 | |
REASONS FOR JUDGMENT
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CONTRACT – Written loan agreement – Whether sham – Whether any money advanced under loan agreement.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Magowan | PLC Lawyers |
| For the Defendant | Mr D Joshi (solicitor-advocate) | Joshi Lawyers |
HER HONOUR:
Thinh Nguyen sued Hitesh Shah for $100,000, and interest, relying on a loan agreement signed by both of them dated 29 August 2016. Shah agrees he signed the loan agreement, but defends the claim on the basis that it was a sham agreement. He says he does not owe any money to Nguyen.
The loan agreement is a typed document which Nguyen prepared, signed by both Nguyen and Shah. It provides:
Loan Agreement
This loan agreement is made and will be effective on 29/08/2016
BETWEEN
Hitesh Shah of [address, date of birth and licence number included[1]]
[1] I have not set out the addresses and other identifying details of the parties – it is unnecessary for these to be included in these reasons.
AND
Thinh Nguyen of [address, date of birth and licence number included]
Terms and Conditions:
Promise to Pay:
Within 12 months from today, Borrower promises to pay the Lender one hundred thousand dollars ($100,000.00).
Liability:
The undersigned understands that they are liable for paying back the full amount.
Details of Loan: Agreed Between Borrower and Lender:
Amount of Loan: $100,000.00 (balance from the purchase of the business)
Business Price - $950,000.00 (Four bank cheques were issued as shown
1. 3TC Co Pty Ltd $769,802.35
2. Simon Jaques & Co Trust Account $60,000.00
3. Wollermann & Associates $16,500.00
4. Simon Jaques & Co $3697.65
Repayment of Loan:
Borrower will pay back in the following manner: Borrower will repay the amount of as note from below formula* monthly installments (sic) on the 30th day of each month preliminary on the 30th Sep 2016.
*Tatts Monthly Commission - Business Loan Interest - Staff Wages - Outgoings = Monthly Repayment
*Staff wages based on minimum retail wages
Late Charges:
Any payment not remunerated within ten (10) days of its due date shall be subject to a belatedly charge of 5% of the payment.
Failure to pay:
If for any reason Borrower not succeeds to make any payment on time, Borrower shall be in default. The Lender can then order instant payment of the entire remaining unpaid balance of this loan, without giving anyone further notices. If Borrower has not paid the full amount of the loan when the final payment is due, the Lender will charge Borrower interest on the unpaid balance at 10 percent(%) per year.
Borrower and Lender both agree to follow above mentioned terms and conditions.
The promise made in the loan agreement was :
Within 12 months from today Borrower promises to pay the Lender $100,000.
The loan is described as being ‘balance from purchase of business’.
The background to that description is as follows.
3TC Co Pty Ltd owned a Tattslotto business known as Werribee Plaza Lotto. Nguyen was the director and shareholder of 3TC.
On 18 July 2016, 3TC agreed to sell the business to Radha Krushna Associates Pty Ltd. Shah was the director and shareholder of Radha.
The companies executed a business sale agreement.
Shah guaranteed Radha’s obligations under the business sale agreement.
The purchase price was $950,000.
At settlement, on 29 August 2016, $849,700.13 of the $950,000 purchase price was paid by Radha by four bank cheques. Details of those payments are set out in the loan agreement.
There is a difference of approximately $100,000 between the $950,000 sale price and the amount paid at settlement.
The central dispute in this case is whether the loan agreement between Shah and Nguyen was entered into on the day of settlement of the business sale agreement because that money was still outstanding and they wanted to make arrangements between themselves for its payment - or whether it was a sham because the missing $100,000 had already been paid at time of settlement by cash payments made by Shah to Nguyen (on behalf of their companies).
Nguyen says that Radha did not have the funds to pay the extra money due under the business sale agreement at the time of settlement.
Nguyen gave evidence that in order to let the sale go ahead, because he was desperate to sell the business as his wife was sick, he entered into the loan agreement with Shah. By it, he says that Shah agreed, personally, to pay him the $100,000.
He submits that the effect of the loan agreement was that he lent Shah $100,000, which Shah gave to Radha and enabled Radha to pay the money due under the business sale agreement.
This meant there was no longer anything owing between the two companies. Instead Shah now had a personal liability to pay Nguyen $100,000 within a year.
On the other hand, Shah denies anything was owing on settlement date - 29 August 2016 - by Radha to 3TC. The defence he filed sets out that prior to settlement he had paid $100,000 in cash to Nguyen (his payments being made on behalf of Radha, to Nguyen on behalf of 3TC)[2].
[2] Initially paragraph 6 of the defence had a second sentence: ‘The defendant in the alternative states if the court finds that the Loan Agreement was valid, then the Loan Agreement was in fact between the Vendor and the Purchaser and plaintiff has no claim against the defendant’
This second sentence of paragraph 6 was deleted by amendment after the trial commenced. On day three of the trial, the solicitor for Shah sought leave to amend paragraph 6 of the defence to allege that the loan agreement was entered into by mutual mistake of the parties and each intended to enter for their corporate entities. He said that this is what had been meant by the second sentence of paragraph 6. Counsel for Nguyen objected to this amendment, and said he had not understood the second sentence to have had that meaning. That application to amend was not proceeded with after it became apparent the corporate entities might then be joined to the proceeding, as might guarantors, and additional costs and consequences, including an adjournment, might follow. Instead, the second sentence of paragraph 6 of the defence was deleted.
In his defence he said:
…during the negotiation process of the Business [July 2016] the plaintiff being the sole director of Vendor agreed to sell the business to the Purchaser only on the condition that from the total Price, $100,000 must be paid in cash so that the Vendor would save paying some capital gains tax. It was further discussed that the arrangement would not be disclosed to any third parties including the parties' legal representative.
And:
On or around 29 August 2017 settlement of the business was completed and the business was handed over to the Purchaser. At the time of handover the plaintiff requested the defendant to sign the Loan Agreement on the pretext that if ATO enquired about the shortfall paid at settlement, the Vendor would be able to produce the Loan Agreement to show that the payment of $100,000 was outstanding.
Nguyen and Shah gave completely different versions of how the loan agreement came in to being, of the background to it, and of key conversations.
They also gave different versions of the truth of what was contained in two key documents: the loan agreement itself, and a letter Nguyen sent on 17 August 2016 ‘to whom it may concern’ acknowledging that Shah had paid a $50,000 deposit. (I deal further with this $50,000 acknowledgement letter later in these reasons).
Each of Shah and Nguyen says that he signed a key document knowing it to be untrue.
Nguyen’s case depends on me accepting that $100,000 was owing by Shah’s company, Radha, to Nguyen’s company, 3TC, at the time of the loan agreement of 29 August 2016 between Nguyen and Shah.
In support of this, Nguyen relies on the signed loan agreement, saying I should give primacy to this because it is a contemporaneous document entered into by the parties.
However, he says that the $50,000 acknowledgment letter – where he said he had received $50,000 deposit from Shah - was untrue, and he knew it to be untrue when he signed it. He said he wrote that letter because of a request by Shah, because he wanted to help Shah get finance for the purpose of Radha buying the business.
On the other hand, Shah relies on the $50,000 acknowledgment letter as showing $50,000 of the $100,000 he said he paid in cash had been paid. But he says the loan agreement he signed is a sham.
Nguyen’s evidence about relevant events was confusing, and at times incomprehensible. This was contributed to in part by his tendency to speak very quickly and by the fact English is not his first language.
Shah’s evidence about the relevant events was also confusing and at times incomprehensible. In giving evidence, Shah said that he could not remember much about the relevant events. He burst into tears a few times in evidence and I left the bench whilst he was given an opportunity to compose himself. He could not remember important aspects of his case. He said that his memory was good before he bought the business from Nguyen. He said Nguyen called him hundreds of times and ‘this business’ had ruined his life.
Shah emigrated from India. He did not speak English fluently but did not seek to give evidence through a translator. He was inclined to answer ‘yes’, with an upwards inflection, to questions put to him under cross-examination whilst looking at Counsel for Nguyen with a questioning look. I am not satisfied that on each occasion where he answered yes to a question put that meant he was agreeing to it.
It was put that his understanding of English was better than he let on. He had signed agreements with banks to borrow money. He is now a permanent resident of Australia. He has an engineering degree. From observing him, I am satisfied that he did not understand some of the complex questions put to him, but that he did understand sufficiently to answer questions generally and put his version of events.
A court looks at written contemporary documents in preference to oral evidence given in court, as the contemporaneous documents are more likely to reflect what actually occurred than people’s recollections further down the track.
As McClelland CJ observed in Watson v Foxman (1995) 49 NSWLR 315 at 319:
… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the process of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
I agree with the opinion of Leggatt J of the English Queen’s Bench Division of the High Court of Justice in Blue v Ashley (No 2) [2017] EWHC 1928 (Comm), where Leggatt J said, at [67]:
… the best approach for a judge to adopt in the trial of a commercial case is to place little if any reliance on witnesses’ recollection of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
In making my findings, I have put primary emphasis on the objective facts surrounding what occurred, including the contemporaneous documents, and the inherent commercial probabilities of the circumstances in which the document relied on by Nguyen as a loan agreement was created: see Bullhead Pty Ltd v Brickmakers Place & Ors [2017] VSC 206 at [241] per Sifris J:
Where there is conflicting evidence, the court will place ‘primary emphasis on the objective factual surrounding material and the inherent commercial probabilities’ together with documentation tendered in evidence.’
I now turn to the relevant evidence.
3TC purchased the Tattslotto business on 29 June 2015 for $880,000.
On 3 March 2016, 3TC and Shah executed heads of agreement for Shah (or nominee) to buy the Tattslotto business for $1.2 million, subject to finance.
Shah approached his bank, but could not get finance for that amount. Negotiations continued between Nguyen (for 3TC) and Shah.
In the course of the negotiations, Nguyen offered to drop the price of the business. Various draft agreements, including one for $900,000 were sent. Nothing turns on the $900,000 draft: the parties agree that the price agreed was that set out in the business sale agreement.
The parties exchanged many SMS messages and some emails. The ‘Robert’ referred to in some of these exchanges – extracted below - is Robert Dale, the business broker representing 3TC.
On 14 June 2016, Nguyen messaged Shah:
Since you mentioned that the loan have been approved you will need to make a deposit to either myself or Robert
On 16 June, Shah messaged Nguyen saying:
hi Tim. I will come and see you sometime today.
On 21 June, Nguyen asked:
did you have any luck with ANZ? If not, we will cancel the sale.
On 29 June, Nguyen said:
if you have given the ANZ guy and (sic) okay to resubmit for the loan, ask him to proceed with the paperwork to have your home loan move to anz as well….
Shah responded: ‘Ok’.
Nguyen then asked, on 4 July:
How and when will u be pauing (sic) the difference?
On 5 July, Shah messaged at 9.06am:
Difference I will pay cash.
I will come and see you sometime today.
At 6.30 pm, Nguyen messaged:
Ive (sic) instructed my solicitors to prepare the sale contract, should only take a day or two.
Could you ask ANZ for the following – 1. Confirmation of the loan approval. 2 when will they think the funds be made available for settlement.
-Also let me know if you ok to change the head of agreement to 900K rather that (sic) 950K
On 6 July, Nguyen messaged:
Let me know if you are happy with 900K on paper or 950K on paper as my solicitor will need a new head of agreement for the contract.
Updated heads of agreement for $950,000 were emailed that day.
On 13 July, Shah sent an SMS:
With the deposit unless I get the money from the bank. I don’t trust those bank guys. You already know that he can lock my loan account, then we cant do anything. We cant trust those guys. We will wait for the money to come first.
On 18 July 2016, Radha and 3TC entered the business sale agreement. It provided for a purchase price of $950,000 with a deposit of $50,000 ‘payable on or before signing hereof to the sellers agent’s trust account’ with a residue of $900,000. The agreement was not subject to finance.
On 20 July 2016, 3TC’s solicitor emailed Radha’s solicitor:
I posted the signed contract to you last night by Express Post.
The selling broker, Robert Dale of Wollermanns, advised me today that the deposit has not yet been paid.
Could you ask your client to contact Robert to arrange payment.
Settlement did not take place on 25 July because Radha had not obtained finance in order to be able to pay the sum due.
On 28 July 2016, Nguyen sent a message saying:
Will ANZ and CBA be able to settle today ?
Shah sent a message back:
I will come and see you evening
Nguyen then asked:
is it possible for you to talk to your friends today during the day….
Shah responded:
No Tim Because everyone doing different things in different timings.
Nguyen then sent a series of messages over the next few days asking if Shah was working, how the snow was and whether there were any updates on the business plan.
On 1 August, Shah said:
sorry Tim.
We just came this afternoon. What time you’re closing. I will come and see you.
Nguyen responded:
Ohh…see u at 6.
Nguyen then suggested ‘Food court…ok’, and Shah agreed.
On 3rd August, Nguyen asked:
any update from your friend ?
Shah responded:
no not yet.
Nguyen said:
Any other friend can let u borrow the money urgently.
At 18.06 that day, Nguyen messaged:
if prices are problem I’m happy to do more discount so we can progress …
At 18.46, Nguyen said:
Plan B….just in case.
Can you borrow $100k from your friend so u can do settlement (CBA and ANZ). Once done we will work through the long term solution.
On 7 August, Nguyen messaged:
Tell the guy if he can get the money and give you by Tuesday…I will give him $1,000 cash…this will ensure that ANZ and CBA can settle on Wednesday
On 8 August, Nguyen messaged:
any luck with your friends regards to $80K…
…or try to get him to get the 50K by tomorrow
On 15 August, Nguyen messaged:
Is the money being deposited into your account from your friend and the other guy
On 17 August, Nguyen sent the $50,000 acknowledgement letter (which I referred to earlier). It stated:
17/8/16
To whom it may concern
This letter to confirm that I, Thinh Nguyen…have received $50,000 from Hitesh for the purchase of the Werribee Plaze (sic) Lotto Kiosk
Regards
Thinh Nguyen
Director
Werribee Plaza Lotto Kiosk
The same day he sent an SMS message to Shah saying:
Done letter in your email
Nguyen’s explanation for sending the $50,000 acknowledgment letter was that it had been five months now and he was desperate to look after his family and have the transaction complete. He said that Shah rang him, and asked him to send a letter to the bank to confirm he had received $50,000, so Shah could give it to his banker. Although it had not been paid he gave the letter because he wanted Shah to get finance. Of the $950,000 contract of sale, $50,000 was the deposit. He said Shah rang and asked for it saying ‘do me a favour’. At the time, Nguyen says he ‘did not think.’
In oral submissions at the end of the trial, Shah’s solicitor, Mr Joshi, said that the request Shah made for the letter was as a result of his bank, the ANZ, requiring the document. However, he said that by then ‘to the defendant’s understanding, by 17 August, they had paid the entire $100,000’. When I asked why the letter did not confirm $100,000 had been paid, Mr Joshi said that it was because Shah did not want it for his own purposes but only because the bank wanted it.
I am satisfied on the balance of probabilities that the letter was sent by Nguyen as a result of Shah telling him Shah’s bank required evidence that $50,000 had already been paid under the business sale agreement. I am not satisfied on the basis of the letter that $50,000 had in fact been paid.
On 19 August, Nguyen messaged:
Anz will be able to process and releasr (sic) the money by Monday morning..? Tell anz that if they don’t do it..u will not be able to settle and lose all your deposit.
Let me know once settlement is done…and just confirming…$950k – (payment on Monday) = balance to be pay in installment (sic) (3k per week).
Nguyen says that the first part of this message was him suggesting Shah lie to his bank – about the possibility of losing the deposit when he had not in fact paid it – in order to put pressure on them to approve finance.
On 24 August 2017, Shah messaged:
Funds cleared in the account. But they took lots of charges around ten thousand.
Nguyen asked ‘so how much is cleared’.
Shah responded ‘875’.
On 26 August, 3TC’s solicitor wrote to Radha’s solicitor saying:
I am advised that your client has his funds in hand for settlement of this matter on Monday (29 August 2016)
At 4.23 pm, Radha’s solicitor wrote to 3TC’s solicitor.
We have been informed that our respective clients have made some alternative arrangement for the payment of $100,000 from the sale proceedings post settlement.
The email contains a breakdown of payments to be made at settlement totalling $849,700.13.
Settlement was on 29 August. An email was sent by 3TC’s solicitor confirming this in the afternoon at 2:56 pm. Robert Dale gave evidence that he was at the settlement as were the solicitors for Radha and 3TC.
Nguyen and Shah were not there. They signed the loan agreement that same day at the business premises.
Nguyen says that the loan agreement arose because of Radha’s inability to raise all of the funds for the purchase of the business. He says he prepared it on the weekend before settlement and it was executed after his solicitor called him and said the settlement was complete. He said it was executed the same day. He said he did not ask his lawyer to prepare it because he was desperate to complete the sale.
Shah says he had not seen it before the day he was asked to sign it by Nguyen. He said Nguyen first said ‘let’s do the agreement’ after the $875,000 was cleared by his bank as funds available to him, which was on 24 August.
The day of the loan agreement, and the day after, Shah’s brother made two payments totalling $6,971 to Nguyen’s account.
The reason for those payments is disputed by the parties. Shah said Nguyen told him just before settlement that was the balance due under the business sale agreement, and the settlement would not proceed without it being paid, so he asked his brother to pay it. I do not accept this evidence. The second of the two payments did not even reach Nguyen’s bank account until two days after the settlement occurred.
I accept Nguyen’s evidence that he in fact did not know about the payments being made because he did not review that bank account carefully at the time. He had a lot else going on: he had just sold his business and was managing that transition and he had a sick wife. Once it was drawn to his attention that those payments had been made he reduced the amount of his claim.
On 8 September, Nguyen messaged Shah about an offer to buy the business:
Peter just called me… he said that his offer of $1.05M is max due to bank loan.
If you are not interested to sell, you will need to get staff in urgently as my wife could like to go to QLD for a week or two during school holidays.
Nguyen said Shah wanted to sell because he could not pay the $100,000 and he was trying to help him by passing on details of another purchaser.
On 31 October 2016, Nguyen messaged:
Can you organise for some payment for the last 2 months, I will need some to repay the bank, can I pick up on Wednesday or Thursday.
Shah responded:
Sorry not at the moment Tim. I will give after selling the business. Should be within a year. I will definitely give to you.
On 6 March 2017, Nguyen messaged:
Its 6 months now, i will need the money to repay the bank, at the same time I have incurred $6K in interest for the last 6 months. When will you start paying installment [sic] or lump sum?
On 6 March at 12:40, Shah messaged:
Hi Tim, Firstly you need to clear all my amount about $40,000.00 which was missing from the tilt. (sic) And all the amount which you took from the customers for the tickets.
At 14:59, Nguyen responded
I got nothing from the tilt (sic) are you accusing me of stealing?
Shah wrote back:
I don’t know how you took the cash. But when your are (sic) here I told you around $30000 to $40000 cash is missing if you remember.
Nguyen said:
I take nothing from you… it is upto [sic] you how you managed you cash flow.
On 7 March 2017 at 14:40, Nguyen said:
You pay me the $60K first and we will sort out the $40K.
Counsel for Nguyen said this was a reference to the $60,000 not in dispute – the difference between the $100,000 owing under the loan agreement and the up to $40,000 Shah alleged had been taken from the till. Nguyen was not asked why he referred to ‘$60K’.
On 11 March, Nguyen wrote:
Hi Hitesh
Since you are ignoring me and not co-operating with the loan repayment, if you don't pay in the next 7 days, I will take the following actions at the same time.
1. Debt recovery agency will act on my behalf to collect outstanding loan & interest
2. Engage ANZ to investigate your application due to fraudulent (I have spoken to ANZ about fraudulent and how I can report so they can investigate and take actions)
3. Travis Hall (Tatts General Manager) & Tatts Area Manager will be advised of your ANZ loan fraudulent and pre printed tickets
4. Rose Lawson (Pacific Werribee) will be advised of your ANZ loan fraudulent,
The consequences are very severe if you prefer me to take the above actions. ANZ take bribery/fraudulent very seriously, the ANZ banker will definitely lose his job and face criminal charges, I'm not sure what will happens to your house and brother house as it's secure loan.
Tatts may cancel the franchise and Pacific Werribee may cancel the lease of not renew the lease (who knows).....
Please find attached loan agreement and some of the "SMS" communication that show fraud/bribery are in place between you and ANZ.
My banking details ….
On 13 March 2017, Shah emailed:
Mr. Tim.
I will get back to you soon. I will send another email soon with all your list of making my life from heaven to hell. And I will prove it that you are the one responsible for my death. And what ever (sic) you have ripped to the Australian Taxation department. Just wait for my next email.
On 13 March, Nguyen responded:
Just for your information I haven't done any fraud to anyone as your are describing and I can prove it. Don't worry Mr. Tim. I got more proof to prove that I haven't done anything wrong. And I got lots of proof what you have done wrong things.
Just wait I will send in another email with what you did.
Shah messaged on 19 March:
Mr. Tim,
Please do whatever you want,which you have sent me the email that I am doing something wrong or fraud whatever you are you are generating by your self-inform to tatts,bank,plaza and whereever you want.
I will be lodging a report on how you harassed me to buy your business,lied to me saying your wife is on bed because of sickness,but she was working with you in your tatts business.you have stealed around $40,000.00 from the shop after selling to me while you said you are helping me to settle down in the business and took lots of payments from customers for lotto tickets and now you threatened to kill me.please if you want to kill me come and just kill me.but don't harass me.Please.
You sent me in high depression and mental harassment before buying your tatts business and after buying your business.
I was keeping quite because i don't like to give any trouble to anyone,even if any one causing me serious problems, and now you started harassing me again.if you keep harassing me,then i will take very serious legal actions on you.so, please stop harassing me and threatening me.
There are a lot of other legal actions i can lodge. Please don't cause me troubles. (sic)
Nguyen sent a letter of demand on 15 September 2017.
I am satisfied on the balance of probabilities that the loan agreement is genuine, and records a loan of $100,000 because of four principal matters.
First, the evidence of Shah that he had paid $100,000 in cash to Nguyen prior to signing the loan agreement (so that there was in fact nothing owing) was entirely unsatisfactory. Over time, his claims of when he paid, the amounts he paid, and what he said was the source of those payments kept changing.
Second, Shah did not call key witnesses – his brother, father in law and Kamlesh Patek - who could have backed up his claims that he had borrowed money from them, and as to why $6,971 was paid on or just after 29 August 2016. His brother was also a director of Radha and was copied into emails at settlement time. No sufficient explanation was given for their absence. I draw the inference that their evidence would not have assisted him: Jones v Dunkel (1959) 101 CLR 298.
Third, the private SMS communications between Shah and Nguyen before the loan agreement was entered do not contain any evidence that any money was paid to Nguyen in cash. On the contrary, on 13 July 2016, Shah sent a message to Nguyen by SMS:
With the deposit unless I get the money from the bank. I don’t trust those bank guys. You already know that he can lock my loan account, then we cant do anything. We cant trust those guys. We will wait for the money to come first.
In other words, he did not want to pay the deposit until after he obtained funding from the bank. He did not obtain the funding until 24 August, and there is no evidence he paid the deposit after that.
Fourth, when Nguyen demanded payment under the loan agreement some months later, Shah’s SMS responses do not state that there was nothing owing, and that the loan agreement was a sham. Rather, they give other reasons for not paying Nguyen the money claimed.
On the balance of probabilities, I am satisfied that the loan agreement was genuine. I find that it was entered into in circumstances where just over $100,000 was then owing under the business sale agreement, and Nguyen and Shah agreed that Shah would be personally liable to Shah for that amount and would repay it over the course of the next year.
I will give judgment for Nguyen.
$6,971 of the $100,000 has been repaid.
I will order that Shah pay Nguyen $93,029, together with interest.
I direct the parties to consider the orders that should be made as a result of these reasons and provide proposed consent orders by 4 pm on Tuesday 4 September. If the parties cannot agree, submissions as to the proposed orders should be filed by the parties by 4 pm. on Friday 7 September. If a hearing is required on these matters, it will then be listed.
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Certificate
I certify that these 19 pages are a true copy of the reasons for decision of her Honour Judge Marks, delivered on 29 August 2018.
Dated: 29 August 2018
Zeinab Ali
Associate to Her Honour Judge Marks
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