Pham v The State of Western Australia - [2024] WASC 29

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PHAM -v- THE STATE OF WESTERN AUSTRALIA [2024] WASC 29
CORAM:   LEMONIS J
HEARD:   12 DECEMBER 2023
DELIVERED          :   9 FEBRUARY 2024
FILE NO/S:   CPCA 19 of 2021
BETWEEN:   NHUNG THI MY PHAM
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
GIANG THANH TIET
Second Defendant

Catchwords:

Drug trafficker declaration made in respect of second defendant - Assertion by plaintiff that she has an equitable lien in respect of real property owned by the second defendant - Plaintiff seeks declaration to that effect - Adequacy of evidence to support making of declaration

Legislation:

Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Supreme Court Act 1935 (WA)

Result:

Decline to make declaration as sought by the plaintiff

Category: B

Representation:

Counsel:

Plaintiff	:	E Greaves
First Defendant	:	T Staples
Second Defendant	:	E Greaves

Solicitors:

Plaintiff	:	Tudori Hager Grubb
First Defendant	:	Director of Public Prosecutions (WA)
Second Defendant	:	Tudori Hager Grubb

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

Calabretta v Huyen VI Buddhist Enlightenment and Charity Association Inc [2023] VSC 405
Coad v Wellness Pursuit Pty Ltd (in liq) [2009] WASCA 68; (2009) 40 WAR 53
Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450
Hewett v Court [1983] HCA 7; (1983) 149 CLR 639
Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572
Ibeneweka v Egbuna [1964] 1 WLR 219
Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392
Mainieri v Cirillo [2014] VSCA 227; (2014) 47 VR 127
Morris v Morris [1982] 1 NSWLR 61
Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171
Porter v Bonarrigo [2009] VSC 500
Re Mas Food Industries (Australia) Pty Ltd (in liq); Ex parte Nilant [2000] WASC 155
Stewart v Atco Controls Pty Ltd (in Liquidation) [2014] HCA 15; (2014) 252 CLR 307
Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85
Walthamstow Pty Ltd v Caratti [No 2] [2023] WASC 36

LEMONIS J:

These proceedings concern the application of the Criminal Property Confiscation Act 2000 (WA) (the Act).
The plaintiff (Ms Pham) seeks amongst other orders a declaration that she has an equitable lien over the land commonly known as 37 Losino Boulevard, Henley Brook, Western Australia (the property).[1] The second defendant (Mr Tiet) is the registered proprietor of the property.
[1] The full description of the property is Lot 2886 on Deposited Plan 24957 being the whole of the land comprising Certificate of Title Volume 2205 Folio 358.
On 9 September 2021, a judge of the District Court made an order declaring Mr Tiet to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA) (the MDA).
In broad compass, Ms Pham contends that she lent $200,000 to Mr Tiet to assist in the purchase of the property and she asserts that she has an equitable lien over the property to secure repayment of those monies.
The proceedings are before me only for the purposes of determining whether or not Ms Pham has an equitable lien over the property.
It is useful at this point to explain the background to the matter and also the basis upon which the matter is before me.

Background

Mr Tiet became the registered proprietor of the property on 4 October 2017 and remains the registered proprietor. He says he acquired the property from his brother Mr Trung Thanh Tiet, who had a mortgage over the property that had to be discharged to enable the transfer of the title to Mr Tiet.
On 15 March 2018, a mortgage in favour of Westpac Banking Corporation was registered on the title for the property.
On or about 1 February 2021, Mr Tiet was charged with the criminal offence of being in possession of a prohibited drug, namely heroin, with intent to sell or supply it to another. This is an offence under s 6(1)(a) of the MDA, for which the maximum penalty is a term of imprisonment of 25 years and/or a fine of $100,000.
The total weight of the heroin was 1,368 grams. The necessary weight which engages the drug trafficker declaration provisions provided for by s 32A(1)(b) of the MDA is not less than 28 grams.[2]
[2] Section 32A(1)(b)(i) and sch 7, div 1, item 6BC of the MDA.
Upon the application of a police officer, on 7 May 2021 a justice of the peace issued a freezing notice under the Act in respect of the property (amongst other items). The basis for the freezing notice was that Mr Tiet had been charged with an offence and he could be declared to be a drug trafficker under s 32A(1) of the MDA if convicted of that offence.
The property was specifically identified in schedule 2B of the freezing notice. The other items set out in schedule 2B were a Rolex watch with an estimated value of $14,000 and a bank loan account in the name of Mr Tiet which was in debit in the sum of $214,379.40.
On 11 May 2021, a memorial of the issue of the freezing notice was registered with the Registrar of Titles. Upon that date the freezing notice came into force in respect of the property.[3]
[3] Section 38(1) of the Act.
On 8 June 2021, Ms Pham made a statutory declaration in which she stated that she had reason to believe that she may have a legal and/or equitable interest in some or all of the property described in schedule 2B of the freezing notice. The other persons she identified who may have such an interest were Mr Tiet and his wife's mother, Ms Tran. The statutory declaration is in the English language. As I will come to explain, Ms Pham's first language is Vietnamese and she is not fluent in the English language.
On 24 June 2021, Ms Pham commenced these proceedings objecting to the freezing notice and any confiscation of the property under the freezing notice. The respondent to the proceedings is the State of Western Australia, which is the correct respondent in accordance with s 80 of the Act. The State accepts that the proceedings were brought within the required timeframe prescribed by s 79 of the Act.
The proceedings then sat dormant.
On 9 September 2021 Mr Tiet pleaded guilty in the District Court to the charged offence under the MDA (the heroin offence). A judgment of conviction was entered. The learned sentencing judge, Sharp DCJ, made a drug trafficker declaration under s 32A(1) of the MDA consequent upon the conviction.
Against that background, the pertinent provisions of the Act are as follows.
The glossary to the Act defines 'property' as meaning:
(a)real or personal property of any description, wherever situated, whether tangible or intangible; or
(b)a legal or equitable interest in any property referred to in paragraph (a); …
Section 141(1)(a) provides that a 'confiscation offence' means 'an offence against a law in force anywhere in Australia that is punishable by imprisonment for 2 years or more'. Thus, the heroin offence is a confiscation offence.
Pursuant to s 8(1)(a) of the Act, by reason of Mr Tiet being declared to be a drug trafficker under s 32A (1) of the MDA as a result of the heroin offence, all property that Mr Tiet owned or effectively controlled at the time the declaration was made was confiscated. Thus, the property was confiscated.
Furthermore, registerable real property that is confiscated under s 8 vests absolutely in the State when the court declares under s 30 that the property has been confiscated and a memorial of the making of such declaration is registered under s 113(1) of the Act: s 9 of the Act. The State has not yet applied for a declaration of confiscation under s 30 of the Act.
Given the property has now been confiscated by reason of the operation of s 8 of the Act, it would seem that the freezing notice has no further relevance to these proceedings.
On 28 November 2023, Ms Pham's solicitors filed an amended originating summons which relevantly seeks the following relief:
1.Pursuant to s 25(6) of the Supreme Court Act 1935, or under the Court's inherent jurisdiction, it is declared that the plaintiff has an equitable lien over the land at Lot 2886 on Deposited Plan 24957 in Certificate of Title Volume 2205 Folio 358, commonly known as 37 Losino Boulevard, Henley Brook, Western Australia, registered in the name of the second defendant to the extent of $200,000 only, and that the lien ranks behind registered mortgage N851767 in favour of Westpac Banking Corporation.
2.Further or alternatively, pursuant to s 84(2) of the Criminal Property Confiscation Act 2000, Freezing Notice WAPFN210065 is set aside only to the extent that it freezes the plaintiff's said equitable lien, on the ground that the equitable lien is not property which is owned or effectively controlled by the second defendant.
3.Further or alternatively, pursuant to s 25(6) of the Supreme Court Act 1935, or under the Court's inherent jurisdiction, it is declared that the plaintiff's said equitable lien has not been confiscated by operation of s8(1) of the Criminal Property Confiscation Act 2000 upon the declaration of Giang Thanh Tiet as a drug trafficker on 9 September 2021 in District Court of Western Australia proceedings IND 563 of 2021.
The matter came on for hearing before me on 12 December 2023 for the purposes of deciding only whether Ms Pham was entitled to the relief sought at par 1 of the amended summons. In effect, the issue raised by par 1 is to be determined as a preliminary issue. The parties agreed that the matter should proceed in this way. I was content to do so. The relief sought at pars 2 and 3 of the amended summons is consequential upon a finding in Ms Pham's favour in respect of par 1. It is not necessary to determine the consequential relief at the same time as determining whether or not to make the declaration sought. Section 25(6) of the Supreme Court Act 1935 (WA) provides that it is lawful for the Court to make binding declarations of right without granting consequential relief. Further, pars 2 and 3 do not appear to require any additional factual findings to be made that might contradict the factual findings necessary to decide Ms Pham's claim for declaratory relief under par 1.

General observations regarding the making of a declaration

The principles applicable to the granting of declaratory relief are conveniently set out in Lexis Nexis, Civil Procedure Western Australia, vol 1 [18.16.1] and [18.16.2].
Factors which might ordinarily operate against the court making a declaration include the following: the declaration sought is interlocutory and thus not finally determinative, there is no controversy regarding the issue raised by the declaration, the issue is hypothetical, all necessary parties are not before the court or there is no proper contradictor.
The form of declaration sought is not in the form of an interlocutory declaration. Rather it is a final declaration as to the existence of the asserted equitable lien. There is a relevant controversy between Ms Pham and the State regarding the existence of the lien. The parties accept that controversy affects the rights which the State has concerning the property. In that respect, pursuant to s 8(1)(a) of the Act, the property that is confiscated is all the property that Mr Tiet owns or effectively controls at the time the drug trafficker declaration is made. The State accepts that his rights of ownership are subject to any equitable lien that Ms Pham has over the property.
Furthermore, the question the subject of the proposed declaration is not a hypothetical one. It goes directly to the extent of Mr Tiet's interest in the property, which is relevant to an assessment of what has been confiscated by reason of the operation of the Act.
The necessary parties for the purposes of agitating whether a declaration ought be made are before the court, namely Ms Pham, Mr Tiet and the State. Mr Tiet has filed a notice of intention to abide the decision save as to costs. The declaration sought provides that the asserted lien ranks after the Westpac mortgage. Thus, Westpac's rights will not be affected by the making of the declaration.
The State opposes the making of the declaration and took part in the hearing. There is therefore a proper contradictor.
Accordingly, I am satisfied it is appropriate to consider whether or not the claim for a declaration is made out. However, that being said, I am cognisant that 'the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making'.[4]
[4] Ibeneweka v Egbuna [1964] 1 WLR 219, 225.
I turn now to the applicable legal principles.

Equitable lien

As I have explained, Ms Pham's claim is that she has an equitable lien over the property.
In Coad v Wellness Pursuit Pty Ltd (in liq),[5] Buss JA (as his Honour then was), with whom the other members of the court agreed, set out the following principles in respect of an equitable lien:
[5] Coad v Wellness Pursuit Pty Ltd (in liq) [2009] WASCA 68; (2009) 40 WAR 53 [41] ‑ [45].
41An equitable lien is a form of equitable charge over property which arises automatically, by implication of equity, to secure the discharge of an actual or potential indebtedness. See Hewett v Court [1983] HCA 7; (1983) 149 CLR 639, 663 (Deane J).
42It arises 'as part of a scheme of equitable adjustment of mutual rights and obligations': Davies v Littlejohn [1923] HCA 64; (1923) 34 CLR 174, 185 (Isaacs J). Those observations of Isaacs J in Davies were made in the context of the lien of an unpaid vendor of real property, but, as Gibbs CJ noted in Hewett (645), they are of general application. See also Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 [110] (Gaudron, Gummow and Kirby JJ).
43The creation and subsistence of an equitable lien do not depend upon possession. It may be enforced by an order for sale made by the court or, in the case of a lien over a fund, by a court order for payment from the fund. The implication of an equitable lien may, in a particular case, be precluded or qualified by the agreement (express or implied) of the parties. See Hewett, 663 (Deane J).
44In Hewett, Gibbs CJ and Deane J noted that it would be difficult, if not impossible, to state, in the form of a general principle, the necessary or sufficient circumstances for the implication of an equitable lien in any and all cases (Gibbs CJ, 645, Deane J, 668). Deane J set out the circumstances which are sufficient (rather than what is essential) for the implication, independently of agreement, of an equitable lien between parties in a contractual relationship:
They are: (i) that there be an actual or potential indebtedness on the part of the party who is the owner of the property to the other party arising from a payment or promise of payment either of consideration in relation to the acquisition of the property or of an expense incurred in relation to it (see Middleton v. Magnay (1864) 2 H. & M., at p. 237 [71 E.R., at p. 453]; Whitbread & Co. Ltd. v. Watt [1901] 1 Ch. 911; Combe v. Lord Swaythling [1947] Ch. 625); (ii) that that property (or arguably property including that property: see Pollock, loc. cit.) be specifically identified and appropriated to the performance of the contract (see per Lord Hanworth M.R., Inre Wait [1927] 1 Ch., at pp. 622-625); and (iii) that the relationship between the actual or potential indebtedness and the identified and appropriated property be such that the owner would be acting unconscientiously or unfairly if he were to dispose of the property (or, if it be appropriate, more than a particular portion thereof) to a stranger without the consent of the other party or without the actual or potential liability having been discharged. It may be that the above circumstances or tests, particularly (i), would be unduly restrictive if propounded as a statement of exclusion. As has been said however, they are formulated as a statement of what is sufficient rather than of what is essential (668).
45The class of relationships or the particular circumstances in which equity may imply a lien are not closed. As Gibbs CJ said in Hewett:
The rules of equity are not so rigid and inflexible that it is necessary to discover precise authority in favour of the existence of a lien before one can be held to have been created. I do not of course intend to suggest that the courts may proceed on general notions of justice without regard to settled principles (649).
In Hewett v Court, Deane J also observed that:[6]
Generally speaking, the established examples of equitable lien are between parties in a contractual or quasi-contractual relationship.
[6] Hewett v Court [1983] HCA 7; (1983) 149 CLR 639, 663.
This presumably is because the equitable lien arises automatically by implication of equity and such implication ordinarily requires that a relationship existed between the parties.
In Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd,[7] Newnes JA, with whom Pullin JA agreed, stated as follows:
54In Hewett v Court (1983) 149 CLR 639, Deane J described an equitable lien as 'a right against property which arises automatically by implication of equity to secure the discharge of an actual or potential indebtedness' (663). His Honour set out the circumstances which are sufficient (albeit, not necessarily essential) for the implication, independently of agreement, of an equitable lien between the parties in a contractual relationship. Those circumstances are (668):
(a)there be a potential or actual indebtedness on the part of the party who is the owner of the property to the other party arising from the payment or promise of payment either of consideration in relation to the acquisition of the property or an expense incurred in relation to it;
(b)that property (or arguably property including that property) be specifically identified and appropriated to the performance of the contract; and
(c)that the relationship between the actual or potential indebtedness and the identified or appropriate[d] property be such that the owner would be acting unconscientiously or unfairly if it were to dispose of the property to a stranger without the consent of the other party or without the actual or potential liability having been discharged.
[7] Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 [54].
In Re Mas Food Industries (Australia) Pty Ltd (in liq); Ex parte Nilant,[8] Anderson J made the following observations regarding equitable liens:
11The nature of equitable liens was authoritatively discussed by the High Court in Hewett v Court (1983) 149 CLR 639. In that case, Deane J at 663 described an equitable lien as 'a right against property which arises automatically by implication of equity to secure the discharge of an actual or potential indebtedness'. That is, equitable liens arise by implication of law; they cannot be created by agreement or by statute. As Deane J pointed out, they differ from common law liens in that they do not rely on possession. They are a pure hypothecation. Once found to exist, equitable liens are indistinguishable from equitable charges. As in the case of the equitable charge, the holder of an equitable lien has a proprietary interest in the property the subject of the lien and, by court order, access to the remedies of sale and the appointment of a receiver: see per Deane J (loc cit). They are also a secured creditor within bankruptcy and winding up proceedings: R&H Tresize v Bilato Nominees Pty Ltd (1986) 83 FLR 44 at 46.
12The situations in which an equitable lien will arise are not circumscribed, however, there are certain classes of equitable liens that are commonly acknowledged. These are summarised in Sykes & Walker, The Law of Securities, 5th ed at 199 - 206. There are those that arise purely due to the legal relationship between the parties. The solicitor's lien over his/her client's file until all fees are paid is an example. There are those that arise in a contractual context. That is, purchaser's and vendor's liens. Generally speaking, a purchaser has an equitable lien with respect to the deposit until the sale transaction is completed. Vendors also have a lien over property sold by them to the extent of any outstanding purchase money: see Hewett v Court (supra) for a discussion of both of these liens. In other situations equitable liens have been said to arise through estoppel (see Jackson v Crosby per Cox J (1979) 21 SASR 280 at 306-307) and subrogation (Hewett v Court per Gibbs CJ at 645-646). It seems that the only feature linking these types of equitable liens is that they can be said to be 'a right which may be said to be invented for the purpose of doing justice': Whitebread & Co Ltd v Watt [1902] 1 Ch 835 at 838.
[8] Re Mas Food Industries (Australia) Pty Ltd (in liq); Ex parte Nilant [2000] WASC 155 [11] ‑ [12].

As can be seen from these passages, an equitable lien is a form of equitable charge over property. It arises automatically, by implication of equity, to secure the discharge of an actual or potential indebtedness. Furthermore, the existence of the lien is not dependent upon the grant by a court of equitable relief. In some cases, such as this one, it may be necessary to obtain declaratory relief to confirm the existence of the asserted equitable lien. However, that is to confirm that a lien already exists. The orders sought by Ms Pham do not seek equitable relief by way of imposing a lien over the property.
The circumstances which are sufficient (although not essential) for the implication, independently of agreement, of an equitable lien between the parties in a contractual relationship are that:
1.there be a potential or actual indebtedness on the part of the party who is the owner of the property to the other party arising from the payment or promise of payment either of consideration in relation to the acquisition of the property or an expense incurred in relation to it;
2.that property (or arguably property including that property) be specifically identified and appropriated to the performance of the contract; and
3.that the relationship between the actual or potential indebtedness and the identified or appropriated property be such that the owner would be acting unconscientiously or unfairly if they were to dispose of the property to a stranger without the consent of the other party or without the actual or potential liability having been discharged.
These circumstances apply where the parties are in a contractual relationship.[9] In considering whether they are established, it is not necessary that the property owner is in fact taking steps to sell the property. Rather, the relevant inquiry is whether the relationship between the actual or potential indebtedness and the identified or appropriated property is such that the property owner would be acting unconscientiously or unfairly if they were to dispose of the property without seeking the consent of the other party, or without paying back the actual or potential indebtedness. Therefore, it is not necessary in this case for Mr Tiet to be seeking to sell the property. Self-evidently, given his drug trafficker declaration and the operation of the Act, he cannot do so.
[9] See Calabretta v Huyen VI Buddhist Enlightenment and Charity Association Inc [2023] VSC 405 [44] - 46].
I do not read the authorities as limiting the existence of an equitable lien to only contractual relationships or quasi-contractual relationships. To do so would be inconsistent with Deane J's observations in Hewett v Court that generally speaking the established examples of equitable lien are between parties in a contractual or quasi-contractual relationship. It also would be inconsistent with the observations of Anderson J in Re Mas Food Industries as to the circumstances in which an equitable lien has been found to exist. In any event, Ms Pham's case depends upon a loan agreement being made between her and Mr Tiet. Thus, her case asserts there is a contractual relationship.

Evidence

I turn now to the evidence.
Ms Pham gave evidence. She also called evidence from Mr Tiet, Mr Tiet's wife (Ms Y Nhi Le) and Ms Pham's former partner (Mr Binh Van Tiet). They each respectively had sworn an affidavit setting out their evidence. Orders were made on 12 September 2023 that the affidavits stand as the deponent's evidence in chief and granted the State leave to cross-examine.
The State called evidence from Ms Brooke Pamela Munro, a paralegal in the Office of the Director of Public Prosecutions for Western Australia. Ms Munro had sworn an affidavit in the proceedings, which was later redacted. The redacted version stood as her evidence in chief and she was not required to attend the hearing.[10] Ms Munro's affidavit annexed documentary material relevant to the matter.
[10] See orders 1 and 2 of the orders made 9 November 2023.
The State cross‑examined Ms Pham and Mr Tiet. Ms Pham's counsel did not seek to cross-examine Ms Munro.
The affidavits of Ms Pham, Mr Binh Tiet and Ms Le each state in the concluding paragraph that:
I have had this my Affidavit read to me in Vietnamese and I confirm the contents are true and correct. Attached hereto and marked … is a true copy of this affidavit translated into Vietnamese and which I have read.
Each affidavit then annexes a further affidavit in the Vietnamese language. The Vietnamese language affidavits have a certification at the foot of each page from a translator, Thanh Thuy Pham. The certification states that the document is a true and accurate translation from the English language to the best of Thanh Thuy Pham's knowledge. She swore an affidavit on 7 December 2023 confirming that she translated the affidavits from English to Vietnamese and the translations are true and accurate translations.
Self-evidently, the primary evidence is that recorded in the Vietnamese language affidavits as that is the primary language which the relevant deponent speaks. At a directions hearing held on 22 November 2023, I raised with counsel my concern that there is no certification that the English language affidavits were true and accurate translations of the Vietnamese language affidavits. Subsequent to the directions hearing a number of further affidavits were filed addressing this concern. An affidavit of Diep Lam sworn 7 December 2023 was filed. He is fluent in both English and Vietnamese and had been assisting Ms Pham in respect of the matter. He said that Ms Le informed him and he verily believed that she read both the Vietnamese and English versions of her affidavit and told him that she understood what she had read and agreed it was true. Mr Lam said he read out Mr Binh Tiet's Vietnamese language affidavit to Mr Binh Tiet, who said words to the effect that he understood what had been read out and agreed it was true.
A further affidavit of Ms Pham in the Vietnamese language dated 1 December 2023 was also filed. At the commencement of her examination in chief, she said she had read through that affidavit and its contents were true and correct. The parties accept that a true and accurate translation of that Vietnamese affidavit is Ms Pham's affidavit sworn 16 March 2022. It is not clear on the evidence how instructions were taken from Ms Pham for the purposes of preparing the affidavits she has sworn. This was not explored in evidence and the State did not raise any objection to her affidavits being received into evidence.
Having regard to the matters I have set out at [48] to [51], I proceed on the basis that the English version affidavits of Mr Binh Tiet, Ms Le and Ms Pham accurately set out their evidence.

Ms Pham

I will start by summarising Ms Pham's evidence as it appears in her English language affidavit.
Ms Pham was born on 16 September 1960 in Vietnam. She moved to Australia from Vietnam in about 1989. She has been on a disability pension since about 2013. Ms Pham does not speak very much English and prefers to communicate in Vietnamese where possible.
Ms Pham receives approximately $1,110.30 per fortnight inclusive of rental assistance. Ms Pham's only source of substantive wealth is playing poker at the Burswood Casino, although she describes herself as not being a professional gambler. Ms Pham says she has two bank accounts, one with NAB into which she places her gambling winnings, and the other with the Commonwealth Bank where she receives her disability pension.
Ms Pham said that on occasions she has won large amounts of money while gambling. She recounted two specific instances, which she says occurred prior to the alleged loan the subject of her claim in these proceedings. Ms Pham says that she recalls she won $275,000 in 2016, receiving a cheque from Burswood for $250,000 and the rest in casino chips. She also said she recalls winning an amount of $110,000 from Burswood in approximately 2014 or 2015. While Ms Pham's affidavit does not expressly say that she deposited the cheque for $250,000 into her NAB bank account, I am satisfied that the affidavit taken as a whole implies that is what happened. In that respect, Ms Pham also says in the affidavit that the NAB account is where she keeps her gambling winnings. To be clear, in saying that the affidavit implies that, I am not saying I accept that evidence.
Ms Pham has not put into evidence any bank statements that record her depositing the cheque in the sum of $250,000 that she says she won in 2016, or depositing the sum of $110,000 that she says she won in approximately 2014 or 2015. There is no explanation as to why those bank statements are not in evidence.
Ms Pham also says that she won another $100,000 from Burswood in March 2020 which she deposited into her NAB account. Ms Pham has put into evidence a bank statement that records the deposit of the sum of $100,000 into her NAB account, with the relevant descriptor being 'Cash and/or Cheques Deposit'. It would seem from the bank statement that deposit occurred on 23 March 2020.
In respect of the alleged loan to Mr Tiet, Ms Pham says that Mr Tiet asked to borrow some money to buy the property in about July or August 2017. On or about 14 September 2017, she agreed to loan Mr Tiet the sum of $200,000 to assist with the purchase of the property. The relevant conversation took place in the family room of the property, which is next to the kitchen. She says that Ms Le and Mr Binh Tiet were also there.
Ms Pham agreed straight away to a loan of $200,000 to assist with the purchase of the property, but said that if she ever got into financial trouble then Mr Tiet would have to refinance and pay the loan back immediately upon her demand. Mr Tiet agreed to this and also said that when his wife started working they would be able to start making repayments off the loan amount. There was no agreed term for the loan to be repaid, but Mr Tiet said if he ever sold the property then he would pay the loan back in full. Payment of interest was never a term of the agreement.
Ms Pham arranged for a bank cheque in the amount of $200,000 to issue from her NAB account on 14 September 2017. She has annexed to her affidavit a copy of her NAB account statement which contains an entry on 14 September 2017 reflecting a withdrawal of $200,000 and a bank cheque issue fee of $12.00.
The bank statement in evidence has had redacted from it the particulars of all other transactions that occurred in the period the subject of the statement which is 19 August 2017 to 20 October 2017. There is no explanation as to why this was done. The bank statement says that the opening balance was a credit of $200,265.17, which reflects the balance as at 19 August 2017.
Ms Pham's affidavit does not say to whom the bank cheque for $200,000 was made; there is also no documentary evidence in that respect.
Ms Pham says that when she learned of the freezing notice in respect of the property, she verbally demanded that Mr Tiet repay the loan.

Cross-examination

In respect of Ms Pham's cross‑examination, she gave evidence via a sworn and accredited interpreter. There are limitations on the assessment of a witness' evidence when the witness does not speak English as a first language or at all and their evidence is heard via an interpreter. The process itself is protracted. The interpreter must listen to and understand the question, interpret it into Vietnamese, listen to Ms Pham's answer and then interpret the answer into English. This makes it more difficult to readily gain an impression of Ms Pham while she gave evidence. It limits my ability to assess whether she gave her evidence in a straightforward manner, or whether her answers were evasive or due to a possible misunderstanding. I take account of these limitations in assessing her evidence.
Overall, Ms Pham was somewhat hesitant when giving evidence as to the terms of the asserted loan agreement made with Mr Tiet. However, that hesitation may well have been from an unfamiliarity with speaking through an interpreter in a court setting. That being said, Ms Pham did not impress as someone who was able to give a detailed explanation of her financial arrangements, or of the workings of the loan arrangement said to have been reached with Mr Tiet.
She was asked where the funds in the NAB account came from. She answered 'I won a jackpot in casino'.[11] Ms Pham's affidavit she said she played poker at the Burswood Casino and on two occasions prior to 2017 had won large sums of money. In cross-examination, she made no mention of playing poker, nor did she make any mention of twice winning significant amounts of money prior to 2017. She was not re-examined as to the source of the funds in the NAB account.
[11] ts 49.
The following exchange occurred in respect of the alleged loan:[12]
Ms Pham, did you regard the loan to Giang as a loan to him only, or a loan to him and his wife?---Just my son.
So to your son - the loan was from - from you to him?---(Direct) Yeah (Through interpreter) Yeah.
Yes. In your affidavit, you mention that Giang had said that when his wife started working, they would be able to make - they would be able to start making loan repayments?---Yeah. I - when I gave him a loan, I did say that, 'If I need it back, can you please take care of me, because I'm old, I cannot have any source [of] income'.
Was it contemplated at the time that both Giang and his wife would be repaying the loan?---Yeah. I just want to try to help him to get the house because got only one income. So, of course, until his wife's working, then they pay me back.
(emphasis added)
[12] ts 49.
The following further exchange took place:[13]
Ms Pham, in your affidavit, you've said that if you ever got into financial trouble, Giang would have to re-finance his mortgage and pay you back immediately; is that statement correct?---(Through interpreter) Yes, correct.
So Giang had to repay the loan if you demanded it?---Yeah.
…
So repayment of the loan did not necessarily depend on Giang selling the property?---(Through interpreter) Yeah. I just got the money and lend to him so - with condition that, 'If I need that money, you try to repay me', that's all. Never say, 'You have to sell the house to get the money to pay me back'.
In your affidavit, you have said that: Giang told me that if he ever sold the Henley Brook property, he would repay the loan in full.
Is that statement correct?---Yes, correct.
(emphasis added)
[13] ts 51 - ts 53.
In relation to the bank cheque, Ms Pham said she bought a bank cheque from the bank and gave it to Mr Tiet.[14]
[14] ts 50.
She said Mr Tiet has not repaid any part of the loan to her, nor has anyone else.[15] Ms Pham says she pays $500 a week in rent to her son Trung, who owns the house where she lives.[16]
[15] ts 53.
[16] ts 53.
The underlined parts of Ms Pham's evidence set out at [68] and [69] do not convey that Mr Tiet was legally obliged to pay the money back on demand. Rather, they reflect an expectation on Ms Pham's part that he would accommodate her interests to the extent he could. However, how he would go about doing that was uncertain. The underlined parts also directly contradict Ms Pham's affidavit evidence which stated that Ms Pham said to Mr Tiet that if she ever got into financial trouble then he would have to refinance and pay the loan back immediately upon her demand and that Mr Tiet agreed to this.[17] She was not re-examined on these contradictions.

Mr Tiet

[17] Ms Pham's affidavit, par 26.

Starting with Mr Tiet's evidence given by affidavit, he said he agreed with his brother Trung to purchase the property from him for $530,000.
Mr Tiet said he was approved for a loan from ANZ for approximately $300,000, but required approximately $200,000 more in order to be able to buy the property. This prompted multiple discussions in about July or August 2017 with his family and his wife's family. These relevantly included face to face discussions between himself, his wife Ms Le, his brother Trung and his father Binh Tiet.
After Ms Le informed him that her mother would provide $100,000 to help buy the property, Mr Tiet asked his mother Ms Pham if he could borrow $200,000 from her to purchase the property. This was in around July or August 2017 and Ms Le, Binh Tiet and perhaps Trung were present when he asked. He cannot recall the exact words spoken, but remembers that Ms Pham agreed to loan him $200,000. She did so on the basis that if the property was ever sold he would repay that amount from the sale, and that if the mortgage was paid off he was to either refinance or draw down on the equity of the property to repay the money.
He remembers that Ms Pham said she wanted to help him as he had been in jail for a long time and had recently had a baby, although he doesn't remember the exact words she used. No other deadline or requirement for repayment were specified by Ms Pham. However, if she had desperately needed money, then he would have arranged to refinance the property to pay her back when requested. Payment of interest was never discussed and in Vietnamese culture people do not believe in charging interest on a loan to a family member.
In approximately August or September 2017, Ms Pham came over to the property for a family dinner and gave him a NAB cheque for $200,000. Ms Le, their daughter and most likely Binh Tiet were also present. Mr Tiet deposited the cheque into a general banking ANZ account registered in his name and used the $200,000 to purchase the property in about September or October 2017.
He said that Ms Le had discussions with her mother who lived in Vietnam regarding her providing money for the purchase of the property. He was not a party to these conversations. He said that Ms Le told him in or about mid-2017 that her mother would provide Ms Le with $100,000 to help buy the property. He does not describe how that money was provided by Ms Le's mother.
He said that a settlement agent acted for both him and his brother Trung and that the sum of $200,000 was transferred from him to Trung during the settlement process.
Since the property has been frozen, Ms Pham has told him she wants the $200,000 returned.

Cross-examination

Mr Tiet said the discussions with Ms Pham regarding the loan were in the Vietnamese language.
Mr Tiet said that he agreed to repay the loan if Ms Pham got into financial difficulties and that he also agreed to repay her if he paid the mortgage in full or if he sold the property. He also said the loan was repayable to Ms Pham if she demanded repayment. He expanded on this, saying repayment 'would be made if I sold the property, or I can get another loan to repay her back her money'.[18]
[18] ts 59.
He said that his mother-in-law, Ms Tran, agreed to lend him and his wife $100,000 to purchase the property. He said that Ms Tran gave him this money in cash. He said it was a loan that had to be repaid. He was asked in what circumstances the loan had to be repaid and said:[19]
Me and my partner work. We slowly pay it back. Or we have a business or something that gave us a wealth income. Then we pay it back. Or we sell the property and pay everyone back.
[19] ts 61.
He said the amount of the loan from ANZ was about $200,000 roughly.

Re-examination

In re-examination, Mr Tiet said that he and his brother Trung signed a contract for Mr Tiet to buy the property and also signed a transfer of land form.
He said he went into an ANZ branch to apply for a loan, the maximum the bank would lend him was $300,000 and he ended up borrowing $200,000 and something.
In relation to the bank cheque he says Ms Pham had given him, he said he deposited it into his own bank account. He did not explain how it was that he transferred the money to the settlement agent, however when asked whether it was before or after he became the owner, he said 'Before, I guess'.[20]
[20] ts 68.

Mr Tiet was asked how he would repay Ms Pham if she said to him 'I need to be repaid'. He said he would either refinance against the property or if he couldn't do that, loan the money from his mother-in-law.
He was taken to his evidence in cross-examination that if he repaid the mortgage in full he would repay his mother. He was asked in re‑examination how he would do that. He said he would probably refinance the property again.
Mr Tiet did not put into evidence any documents regarding the purchase of the property, for example the sale agreement, the transfer, how the purchase monies were paid or his communications with the settlement agent. He also did not put into evidence any bank statements which recorded the deposit of the bank cheque for $200,000 which he says Ms Pham gave him.

Ms Le

Ms Le's evidence was comprised in her affidavit and she did not attend court to give further evidence.
She married Mr Tiet on 25 November 2016 and they have a daughter together, who was born on 24 July 2017.
She lived at the property with Mr Tiet. Mr Tiet was renting the property from Trung prior to buying it. Mr Binh Tiet also lived there.
After she gave birth to their daughter, she says that their family needed a house. She said that in her experience it is not uncommon in Vietnamese culture for families to lend money to their children for the purchase of a house.
Ms Le said her mother gave her $100,000 to help them buy the property.
Mr Tiet asked to borrow $200,000 from Ms Pham to buy the property. She doesn't recall the exact date, but thinks this was after July 2017, as this was when their daughter was born and Mr Tiet asked when Ms Pham came over for dinner to see the baby.
The conversation took place at the property, she thinks in the living room, and Mr Binh Tiet was present. Ms Pham said yes immediately. Ms Pham also said the couple would have to give the money back at some point, as Ms Pham's youngest son An Tiet was still living at home with her and she needed money to look after him. Mr Tiet agreed to this.

Mr Binh Van Tiet

Mr Binh Tiet's evidence was comprised in his affidavit and he did not attend court to give further evidence.
Mr Binh Tiet lived at the property with Mr Tiet from about 2015. Ms Le moved into the property in about 2017, when she and Mr Tiet were married. He recalls Mr Tiet and Ms Pham having a discussion about Ms Pham lending Mr Tiet money to purchase the property sometime after Ms Le moved in, but doesn't recall exactly when this discussion took place.
He thinks it was about 5 or 6 years before the date of his affidavit sworn 16 March 2022. He does recall that the conversation was in the afternoon in the dining area of the property. Mr Binh Tiet didn't say anything during this conversation, he was just listening. Ms Le was also present.
Ms Pham agreed to lend Mr Tiet money to purchase the property. As best he can recall the loan was for $200,000. He says nothing about the terms for repayment.

Ms Pham's asserted entitlement to declaratory relief

Ms Pham's case asserts that the equitable lien against the property is implied by equity. Ms Pham asserts that she lent $200,000 to Mr Tiet to purchase the property, he had an obligation to repay it and thus an indebtedness arose, the property was specifically identified and appropriated to the performance of the loan and the relationship between the indebtedness and the property is such that Mr Tiet would be acting unconscientiously or unfairly if he were to dispose of the property to a stranger without her consent or without the loan being repaid. Thus, Ms Pham asserts that the three sufficient but non‑essential circumstances that give rise to an equitable lien are made out.
Ms Pham does not seek equitable relief by way of the court now imposing an equitable lien on the property in order to satisfy her equity in it. She also does not rely on undue influence or estoppel. Nor does she assert that the loan transaction came about by reason of unconscionable conduct on the part of Mr Tiet[21] or that Mr Tiet misled her as to his purpose for the money.
[21] As illustrated in Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 [122] - [124] and Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 [38].
Ms Pham's counsel predominantly relied on the decisions of Coad and Perron Investments and the Victorian Supreme Court decision of Porter v Bonarrigo,[22] which considered the application of the criteria set out by Deane J in Hewett v Court to the circumstances of that case. Mr Pham's counsel also pointed out that the class of relationships or the particular circumstances in which equity may imply a lien are not closed. However, as Gibbs CJ observed in Hewett v Court, this does not mean that the courts may proceed on general notions of justice without regard to settled principles.[23]
[22] Porter v Bonarrigo [2009] VSC 500 [93] - [101].
[23] See also Stewart v Atco Controls Pty Ltd (in Liquidation) [2014] HCA 15; (2014) 252 CLR 307[31].
The parties did not draw to my attention any case authority where an equitable lien was found to exist in circumstances similar to this case.
In respect of the proposition that the particular circumstances in which equity may imply a lien are not closed, Ms Pham's counsel placed much emphasis on the NSW Supreme Court decision of Morris v Morris[24] and the decision of the Victorian Court of Appeal in Mainieri v Cirillo,[25] which applied Morris.
[24] Morris v Morris [1982] 1 NSWLR 61.
[25] Mainieri v Cirillo [2014] VSCA 227; (2014) 47 VR 127 [30] - [33].
The facts of Morris were summarised in Mainieri as follows:[26]
A widower entered into an arrangement with his son and daughter-in-law to sell his home and apply the proceeds in extending their home to provide an apartment for him. After the apartment was constructed, the widower moved in but, a short time later, there was a breakdown in the marriage and the son and subsequently the widower had to depart.
[26] Mainieri [30].
The widower brought proceedings against his son and former daughter-in-law. McLelland J found that it was not open to infer that any of the parties intended that a trust of the property, or any share in it, was to be created in favour of the plaintiff, who was the widower.[27] However, his Honour also found that:[28]
The plaintiff spent money on the defendants' property in the expectation, induced or encouraged by the defendants that he would be able to live there indefinitely as a member of their family. This expectation has been defeated by the occurrence of events which were not in contemplation when the money was spent and as a result of which any subsisting right of residence by the plaintiff in the property is now of no practical consequence. In my opinion, on the facts of this case, it would be unconscionable and inequitable that the defendants should now retain the benefit of the expenditure by the plaintiff of his money on their property free of any obligation of recoupment to him. Consequently an equity arises in favour of the plaintiff and the court must determine how in all the circumstances justice requires that that equity be satisfied. What a plaintiff in such a case as this should in justice receive will not necessarily correspond with what, when the relevant expenditure was made, he expected to receive.
[27] Morris 63 F-G.
[28] Morris 63 G - 64 A.
Ultimately, his Honour found that the widower's equity would be satisfied by having an equitable charge over the subject property for the amount of his expenditure together with interest from the date of commencement of the proceedings.[29]
[29] Morris 64 F-G.
The facts and findings in Morris differ significantly from this case. In this case, the declaration that Ms Pham seeks is that she has an equitable lien over the property. That equitable lien is said to arise automatically from the circumstances of the loan arrangement which she asserts she made with her son, Mr Tiet. In Morris¸ the equitable charge did not arise automatically from the circumstances in which the widower paid for the extension to the home. Rather, it was the remedy which the court imposed to satisfy the equity that had arisen by the change in circumstances, specifically that the widower had to subsequently depart the property in which he had expected to live indefinitely. Accordingly, Morris does not assist Ms Pham.
In relation to Mainieri, the facts were as follows:[30]
… the first appellant ('Mr Mainieri') and the second appellant ('Ms Comande') lived together as man and wife. The respondent ('Mrs Cirillo') is Mr Mainieri's mother. In order to assist Mr Mainieri and Ms Comande ('the appellants') with a pressing debt secured by mortgage over their home, Mrs Cirillo sold her home and contributed $240,000 of the proceeds of sale to the appellants to be applied in reduction of their mortgage. In turn, they undertook to permit Mrs Cirillo to live with them indefinitely in their home and that they would take care of her. After Mrs Cirillo sold her home, the proceeds had been applied in reduction of the appellants' mortgage, and she had moved in with the appellants, the relationship broke down irretrievably and continued cohabitation became impracticable. But, when Mrs Cirillo asked for her money back, the appellants refused. They claimed that it was an out and out gift and that they were not obliged to repay it.
[30] Mainieri [2].
The Court in a joint judgment explained that the equitable principle which applied was 'calculated to guard against the unconscionability of a defendant departing from an assumption encouraged by the defendant on the faith of which a plaintiff has changed his or her position to their detriment'.[31]
[31] Mainieri [28].
The Court explained the reasoning in Morris as follows:[32]
As McLelland J explained in Morris v Morris, [the principle] is a broad conception of equity which is sufficiently flexible to apply in a great variety of situations, including where a plaintiff has laid out money on the property of another on the faith of an assurance that the plaintiff will be accorded an indefinite right of residence in the property. As McLelland J said, in the latter context the assurance of an indefinite right of residence is the operative equivalent of an assurance or promise to make over part of a defendant's land. (footnotes omitted)
[32] Ibid.
The Court also explained that the range of remedies to which the principle gives rise is broad and flexible, stating:[33]
The range of remedies to which the principle gives rise is equally broad and flexible. Depending on the circumstances, it may appear that nothing less than the imposition of a remedial constructive trust will suffice to satisfy the demands of justice and good conscience. In other cases, as was observed in Chalmers v Pardoe, a plaintiff who has expended money on the faith of such an assurance or understanding may instead be granted an equitable charge or lien for the amount so expended. It depends on the circumstances of what was promised or represented and on the plaintiff's change in position in reliance on the assumption thus created. It may also be affected by the interests of third parties. (footnotes omitted)
[33] Mainieri [29].
The Court held that having regard to what was promised to Mrs Cirillo, and the nature of the change in her position in reliance on the assumption thus created, she derived an equity which could best be satisfied by an equitable lien or charge over the property to secure the amount which she had paid together with interest.[34]
[34] Mainieri [32], [40].
Similarly to what I have said in relation to Morris, the facts and findings in Mainieri differ significantly from this case. In Mainieri, by reason of a change in position, Mrs Cirillo derived an equity which the court held could best be satisfied by an equitable lien or charge to secure repayment of her monies with interest. The equitable lien did not arise automatically by implication. Rather, it was the remedy which best satisfied Mrs Cirillo's equity.
Accordingly, Mainieri also does not assist Ms Pham.
Ms Pham's counsel accepts that Ms Pham must prove the existence of the equitable lien over the property on the balance of probabilities. As was observed in Ho v Powell:[35]
[I]n deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision….
In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so…
[35] Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 [14] - [15] (Hodgson JA, with whom Beazley JA agreed). See also Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 [80] ‑ [81]; Walthamstow Pty Ltd v Caratti [No 2] [2023] WASC 363 [93] ‑ [94].
In the State counsel's written submissions and cross-examination, State counsel did not directly challenge the existence of the loan as asserted by Ms Pham. The primary focus of State counsel's written submissions was that the evidence did not establish that the property was appropriated to the performance of the loan arrangement, which position was maintained in oral closing.
Further, in closing submissions, State counsel submitted there was insufficient evidence regarding the flow of monies said to be used to purchase the property, submitting:[36]
… there's insufficient evidence to show that the $200,000 from Ms Pham was, in fact, applied to the purchase of the property. The evidence is really only at the level of assertion only. There's no documentary evidence such as bank statements showing where the moneys came from, where the moneys were, in fact, paid to. All there is, is some redacted bank statements which show the figure of $200,000 from a cheque. It's largely unexplained, and the State submits that your Honour should not uncritically accept that evidence. It really raises more questions than it answers.

Analysis

[36] ts 102 - ts 103.

The foundational basis for Ms Pham's claim to a declaration is the loan agreement Ms Pham said she made with Mr Tiet. Irrespective of the position taken by the State, I need to be satisfied that the evidence provides an appropriate basis on which to make a reasonable decision.
The evidence regarding the asserted transaction said to have been made between Ms Pham and Mr Tiet, and its implementation, is unsatisfactory in five respects.
First, Ms Pham in her affidavit says that the source of the monies lent to Mr Tiet was from her winnings from playing poker at the casino, which included her receiving a cheque from the Burswood Casino for $250,000. She does not put into evidence any documents, principally bank statements, that record the deposit of the relevant asserted winnings into her NAB account. No explanation has been provided as to why she did not do so. In cross-examination, Ms Pham said the source of the monies was a jackpot which she won at the casino. She was not re-examined on this. On its face, winning money via a jackpot differs from winning it via playing poker. I raised my concerns regarding the state of the evidence at the conclusion of Ms Pham's evidence and her counsel did not seek to adduce further evidence.[37] Ms Pham's source of the monies for the bank cheque said to have been given to Mr Tiet is significant. It informs Ms Pham's approach to providing the monies to Mr Tiet and when and if she might require those monies to be returned. It also is an important aspect affecting the credibility of her evidence.
[37] ts 56 - ts 57.
Second, the sources of the balance of the money to purchase the property were said to be Ms Le's mother and a loan that Mr Tiet says he took out from the ANZ bank. There is no documentary evidence that supports the assertion that Ms Le's mother provided $100,000 to assist with the purchase of the property. Further, Ms Le says her mother gave her this money, her mother living in Vietnam. Mr Tiet says that Ms Le's mother gave him the money in cash. There is also no documentary evidence that supports the assertion that Mr Tiet obtained a loan from ANZ. The certificate of title for the property which is in evidence does not record any mortgage to ANZ. It records a registered mortgage in favour of Westpac registered 15 March 2018, Mr Tiet having become the registered proprietor on 4 October 2017. The mortgage in favour of Westpac has not been explained.
Third, the circumstances in which Ms Pham says the asserted loan was to be repaid differ significantly between her affidavit, her evidence in court and the evidence of the other witnesses that she called. In her affidavit, she said that if she ever got into financial trouble, Mr Tiet would have to refinance and pay the loan back immediately.[38] She also said that Mr Tiet said that if he ever sold the property, he would pay her back.[39]
[38] Ms Pham's affidavit, par 26.
[39] Ms Pham's affidavit, par 27.
In Ms Pham's evidence under cross-examination, she said that she said to Mr Tiet:[40]
'If I need it back, can you please take care of me, because I'm old, I cannot have any source [of] income'.
…
'If I need that money, you try to repay me', that's all. Never say, 'You have to sell the house to get the money to pay me back'.
[40] ts 49, ts 52.
This evidence does not impose an absolute obligation to repay, and also does not link repayment to the property. This was not explored in re-examination. Further Ms Le's evidence does not support the evidence in Ms Pham's affidavit, Ms Le's evidence being that Ms Pham told Mr Tiet he would have to give the money back at some point as she needed money to look after her youngest son, to which Mr Tiet agreed.[41] Mr Binh Tiet's affidavit in his recounting of the relevant conversation makes no reference to repayment.[42] Mr Tiet's affidavit says that the obligation to repay arose on him either selling the house, or paying off the mortgage.[43] He also says that if Ms Pham was in desperate need of money, he would have arranged to refinance the property to pay her back when she requested.[44] In cross-examination, he said that he agreed to repay the loan if Ms Pham got into financial difficulties and that he also agreed to repay her if he paid the mortgage in full or if he sold the property.[45] He also said the loan was repayable to Ms Pham if she demanded repayment, also saying repayment 'would be made if I sold the property, or I can get another loan to repay her back her money.'[46]
[41] Ms Le's affidavit, par 20.
[42] Mr Binh Tiet's affidavit, pars 18 - 20.
[43] Mr Tiet's affidavit, par 16.
[44] Mr Tiet's affidavit, par 20.
[45] ts 59.
[46] ts 59.
Fourth, there is no documentary evidence regarding Mr Tiet's purchase of the property. In particular, the contract of sale, the transfer of land and settlement statement are not in evidence. No explanation was provided as to why these documents were not put into evidence.
Fifth, there is no documentary evidence regarding the flow of monies, both from Ms Pham to Mr Tiet and in respect of the purchase of the property. While Ms Pham has put into evidence a bank statement that shows that a bank cheque in the sum of $200,000 was issued from her NAB account on 14 September 2017, there is no documentary evidence as to where that cheque was banked. While Mr Tiet says that he banked it into his bank account, his account statements are not in evidence. No explanation was provided as to why the documents set out in this paragraph were not put into evidence.
The documents to which I have referred at [128] and [129] are critical to both an understanding of Mr Tiet's evidence and also the ability to properly assess it. In that respect, he is the only witness other than Ms Pham who gives evidence as to the repayment of the loan being connected in any way to the property. Further, Ms Pham relies on Mr Tiet's evidence as being evidence of the truth of what occurred.

Further, to the extent that the documents I have referred to at [123] to [129] relate to Mr Tiet's activities, he has given evidence in support of Ms Pham's claim and the same solicitors act for him and Ms Pham. There is no suggestion that those documents could not have been obtained either via Mr Tiet or through the issue of subpoenas to the relevant banking organisations, and to the settlement agent said to have carried out the settlement of the purchase of the property.
Ms Pham's counsel frankly accepted that the affidavit evidence was lacking in detail.[47] He however submitted that there was sufficient evidence having regard to the manner in which the State conducted its case for me to be satisfied on the balance of probabilities that a loan arrangement was made between Ms Pham and Mr Tiet that linked repayment to the property.
[47] ts 75.
I disagree. In my view, the limited evidence put forward by Ms Pham is not an appropriate basis on which to reach a reasonable decision as to the nature of any arrangement made by her with Mr Tiet and its implementation. The five factors that I have outlined are critical to an understanding and assessment of the arrangement said to have been reached, and how that arrangement was to be implemented. Accordingly, for that principal reason, I decline to grant the declaratory relief sought.
Furthermore, even if I was satisfied that the evidence enables a reasonable decision to be made, in my view having regard to the whole of the evidence, I could only be satisfied on the balance of probabilities that the arrangement was such that if Ms Pham required all or some of the money back, Mr Tiet would use his best endeavours to pay her back from the sources of money available to him at the time. The vastly different evidence led as to the asserted loan arrangement, the family type nature of the arrangement and the paucity of the documentary evidence is such that I could not be satisfied on the balance of probabilities that the arrangement extended beyond that broad understanding regarding repayment.
Ms Pham's counsel submits that there were only three ways which Mr Tiet could pay her back, being selling the property, refinancing the property, or drawing down on an existing facility secured against the property.[48] However, as State counsel points out, in cross-examination Mr Tiet said that if Ms Pham wanted the money back, one option was to seek it from Ms Le's mother. Mr Tiet also pointed out in his evidence that he and his wife would have funds to make repayments from future employment. Ultimately, how Mr Tiet might come up with the money depended on how much Ms Pham asked to be paid back and Mr Tiet's circumstances at the time she did so.
[48] ts 88.
Furthermore, that the means available to Mr Tiet to repay the loan included utilising his equity in the property does not mean that the loan arrangement linked repayment to the property itself.
Therefore, on the characterisation of the loan arrangement which I have outlined at [134], the property was not appropriated to the performance of that loan arrangement and the criteria identified in Hewett v Court are not met. Further, as I have already explained, the reliance on Morris v Morris and Mainieri is misplaced and does not assist Ms Pham.
For these reasons, I decline to make a declaration in terms of par 1 of the Amended Originating Summons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Honourable Justice Lemonis
9 FEBRUARY 2024