Pham v Tran
[2013] VCC 1212
•20 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-11-05844
| BATAM PHAM | Plaintiff |
| V | |
| NGOC ANH TRAN (also known as ROSY TRAN) | Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2-6 September 2013 | |
DATE OF JUDGMENT: | 20 December 2013 | |
CASE MAY BE CITED AS: | Pham v Tran | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1212 | |
REASONS FOR JUDGMENT
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Subject: CONTRACT
Catchwords: Loan of moneys – verbal agreement – whether loan to one or two persons jointly.
Cases Cited: Dickinson v Minister of Pensions [1953] 1 QB 228.
Judgment: Judgment for the defendant against the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W Stark | Blaak and Associates |
| For the Defendant | Mr R Harris | Lennon Mazzeo |
HIS HONOUR:
Introduction
1 Batam Pham (“Pham”), a pensioner and retired Buddhist monk, owned a shop at 313 Barkly Street, Footscray (the “Footscray property”). Batam had a nephew, Tuan Pham (“Tuan”), who was the eldest child of his brother, Ba Tuan Pham (“Ba”). Between about June 2008 and March 2010, the nephew had a girlfriend, Ngoc Anh Tran (also known as Rosy Tran), the defendant (“Tran”).
2 In about June 2009, Pham mortgaged the property as security for a loan from Equity-One Pty Ltd (“Equity-One”). The terms of the loan required Pham to repay in August 2011 the loan amount of $150,000 together with two years interest totalling $40,000.
3 In about August 2008, Tran bought a house at 63 Manton Road, Clayton, for $450,000 (the “Clayton property”).
4 In his Statement of Claim, Pham alleged that he lent Tran the money he borrowed from Equity-One so that she could purchase and renovate the Clayton property and that, accordingly, she was obliged to repay him. Tran denied she borrowed any money from Pham. She says Pham lent the money to his nephew who used the money partly for living expenses, partly for repaying debts and partly for purchasing an interest in the Clayton property. Tran said that, at worst, she could only be jointly liable with Tuan for the loan and she has made such a claim against him.
5 The critical issue in the case is whether Pham lent the $190,000 to Tuan only or to Tuan and Tran jointly.
6 Although the proceeding ultimately involved one main issue, it was a difficult trial to conduct and was unusual in several respects. First, the protagonists were all Vietnamese. Substantial evidence was given in Vietnamese and an interpreter was necessary. Where evidence was given in English, it was on occasion difficult to follow parts of it due to the uncommon pronunciation or syntax. Second, the proceedings were also somewhat volatile. Witnesses made gratuitous comments about actual or alleged criminality by others involved in the case. People sitting in the body of the court reacted to evidence sometimes with noisy gesticulation and shouting. On occasion, exchanges took place between the person giving evidence and one or more of the persons sitting in the court. Third, there was considerable hostility between the parties. This arose in part from the usual stresses and strains common to litigation involving family members, plus the disappointment and upset which can arise from a failed relationship. There was also the fact of the non-payment of the $190,000 and the consequences for Pham and other members of his extended family.
7 Those giving evidence for the plaintiff were Pham, his nephew, Tuan, his brother, Ba Tuan, his sister-in-law, Nho Doan (“Nho”), and his niece, Thi Thu Phong Pham (“Thi Thu”). For the defence, Tran gave evidence, together with Brian Minh Dut Luong (“Luong”), a solicitor.
8 Before considering the evidence of particular witnesses, there are some general observations I wish to make about the plaintiff’s case.
9 First, there was notable confusion and lack of consistency between Pham’s claim and the supporting evidence. For example, the Statement of Claim, which is commendably concise, alleges an agreement between Pham and Tran pursuant to which Pham agreed to lend, and Tran agreed to borrow, $190,000 for a period ending on 1 August 2011. The purpose of the loan was to enable Tran to purchase and redevelop the Clayton property. It was said that Tran was to pay the interest each month on the loan, to repay the loan on or before 1 August 2011 and, if unable to do so, was to sell the property and use the proceeds of sale for that purpose.
10 In contrast, counsel for Pham opened the case on the basis that:
· Tuan and Tran asked Pham to lend them money;
· Tuan and Tran would borrow the loan monies from Pham to purchase and renovate the Clayton property which they would then resell at a profit within six months;
· Tuan and Tran would use the profit from the property development to repay the loan to Pham;
· the agreement to use the Footscray property as security for the loan and the use and repayment of the loan funds was an agreement between the plaintiff, Tuan and Tran.
11 As is apparent from other parts of the judgment, the confusion did not stop there because the evidence oscillated between ascribing exclusive responsibility in respect of the loan funds to Tran and having Tuan and Tran jointly responsible for the loan and its repayment. Such a conflict makes it difficult for the plaintiff to advance a coherent case when there is such a disconformity between the pleaded case and the evidence. The need for the plaintiff to put forward a coherent case is all the more important in light of the legal burden of proof that rests with the plaintiff in proving its claim against the defendant. It has been held that:
“It is … axiomatic in the administration of our law that, if a person thinks he has a claim against another person … the duty is on him to establish that claim.”[1]
[1]Dickinson v Minister of Pensions [1953] 1 QB 228 at 232
12 Second, there was evidence that:
(a) the plaintiff and all of the witnesses giving evidence on his behalf attended a conference in counsel’s chambers regarding the case. According to Ba, the meeting was about the court process and he did not discuss with either the solicitor or counsel representing the plaintiff the evidence he was intending to give in court;
(b) Pham and Ba discussed the evidence which they proposed to give in court. However, Ba stated that the last discussion that he had with his brother on the topic was in March 2010.
13 It is always a matter of concern when witnesses discuss the proposed evidence or otherwise discuss the issues in a case and their likely response to those issues. There remains a risk, at worst of collusion or, more benignly, subtle influence which could affect the recollection of a witness and the independence of the witness’s evidence. For this reason, lawyers have long been encouraged to confer separately with intended witnesses before a hearing.
14 Third, several of the plaintiff’s witnesses were too often prone not to answer the question asked, but to give non-responsive answers or to give answers which were responsive to a degree but included some gratuitous criticism or comment. Pham, Ba, Nho and Tuan were keen to criticise Tran as a liar or schemer who was cruel and exploited the simple generosity of Pham. Further, Ba and Tuan were also needlessly aggressive sometimes in their attitude to counsel and Tran.
15 The fact that witnesses ignored warnings from the Bench to the effect that the witness should simply attend to the question asked and answer that question without adding other gratuitous comments or arguing with counsel, was a matter of some concern.
16 I should also note the context in which the case was heard. Tuan had a separate proceeding against Tran, which was to be heard at the same time as this proceeding. In that proceeding, Tuan alleged that:
(a) Tuan and Tran resided together in a domestic relationship from in or about February 2009 to in or about February 2010;
(b) in March 2009, Tran represented that she was experienced in dealing with real property; she and Tuan should form a joint venture to buy and develop properties for profit, which they would then divide equally between them;
(c) Tran and Pham formed a joint venture for that purpose;
(d) on 26 May 2009, Tuan entered a contract by the Clayton property for $450,000; on 9 June 2009, Tuan nominated Tran as the sole proprietor of the property; they obtained a loan from Pham to assist Tran in settling the purchase and such loan was to be repaid by 1 August 2011;
(e) Tuan said that he paid $103,063.26 as his contribution to the acquisition of the Clayton property;
(f) Tran now refused to acknowledge Tuan’s interest in the property; she refused to repay the loan to Pham; she refused to share the profit from the development or to account to Tuan for his contribution;
(g) Tuan said that Tran accordingly held the property on a resulting trust as to a 50 per cent holding for Tuan, and it was unconscionable for Tran to retain the whole benefit.
17 Tuan sought an order that the Clayton property be sold and the net proceeds of sale be first used to repay the loan to Pham together with interest, and then any surplus be divided equally between himself and Tran.
18 For her part, Tran made a counterclaim for an order that the Registrar of Titles remove the caveat over the Clayton property lodged by Tuan.
19 This proceeding settled on the first day of trial. Tuan accepted $20,000 in full satisfaction of his claim. Also, upon receipt of the $20,000, he agreed to remove the caveat. The terms of settlement did not make express reference to the claim alleged by Pham or any obligation to repay the loan which he provided.
The agreement to lend
20 Having regard to the critical issue in the case, it is necessary to focus on the evidence regarding the alleged agreement pursuant to which the plaintiff made available the loan funds he obtained from Equity-One.
(a) Pham
21 The plaintiff said that his nephew and Tran met with him three times at his house in Fitzroy to discuss the question of borrowing money from him in order that they could buy a property to renovate and resell. He said that because his nephew was involved, he wanted to help. He thought that Tuan and Tran were genuine with each other and were to be married so he decided to help them. He had already allowed Tuan and Tran to operate their business from the front of the Footscray property well prior to them borrowing the money.
22 According to Pham, at the third meeting at Fitzroy, Tran did most of the talking. Pham said he would provide a loan and if they borrowed from him, they would have to repay the loan as he did not have any money to do so. The agreement was that Tuan and Tran would buy a property, renovate it and resell the property at a profit within six months. They would use the profits to repay the money to Pham.
23 Pham was emphatic that the loan was to both Tuan and Tran and that they were both responsible for the repayment of the borrowings. Pham said the two of them borrowed the money to buy the house at Clayton, so they were both responsible to repay the money to him.
24 Pham acknowledged that the money which he borrowed from Equity-One in order to provide the loan went into a new account at the Commonwealth Bank of Australia which was opened for him. From there, the sum of $138,664.05 went into his nephew’s account. Pham gave Tuan the authority to access funds in his account.
(b) Ba
25 Ba said that Tran asked him to accompany her to Pham’s house in order to ask for help by borrowing money from Pham. This was around June 2009. Tran said that she wanted Pham to lend her some money so that she could buy a house, fix it up and then sell it to make some money. At the meeting at Fitzroy, Ba said that he spoke to his brother about helping Tuan and Tran and told him that if he did so, Tuan and Tran had the responsibility to repay the loan. Ba said that he told his brother, Pham, that if possible, he should try and help Tuan and Tran by lending them money.
(c) Tuan
26 Tuan says that at the meeting Tran referred to “us” as the borrowers because Tuan was the nephew and without him, the uncle would not have agreed to lend any money. He agreed with Pham that there were several meetings before Pham agreed to make the loan. He said this was because Pham knew he could not afford the loan or even possibly get one because he was a pensioner. Tuan said there were conversations both at Pham’s house and also at the Footscray property. At the meeting where the agreement was made, Tran did most of the talking and spoke of the pair of them trying to buy a property. At the meeting when Tuan’s father referred to the need for the money to be paid, Tran said that she would take care of it.
27 Tuan also agreed that after the cheque was collected from Equity-One in 2009, the money went into an account opened for Pham. Thereafter, Tuan had control of the money.
(d) Tran
28 Tran denied having any discussion with Pham in the presence of Tuan and his father which concerned her borrowing money from him, Pham lending money to both Tuan and Tran, or attending any meeting of the four of them where such matters regarding a loan were discussed.
Assessment of credit
29 My determination of the case is largely governed by my assessment of the credibility of the witnesses. Although each party produced a two volume court book, the documents were of little utility. They were not especially helpful in establishing an objective context against which the actions of the main protagonists could be assessed. Accordingly, I was required to pay close attention to the conduct and demeanour of witnesses as they gave their evidence in order to gather as much information as I could to assist in making relevant findings in the case. I also had to assess the inherent likelihood of each witness’s evidence and how that fitted within the known context.
(a) Pham
30 Pham presented largely as a genial and smiling gentleman whom one could imagine to be an ex-monk (as he claimed to be). He lives in a housing commission flat in Napier Street, Fitzroy. He cannot speak or read English and, although only about 59, is a pensioner. His main activity in life seemed to be selling books and CDs regarding Buddhism from the Footscray property. Also at the weekend, followers attended at the rear of the property to worship, hear Pham preach and enjoy a vegetarian meal.
31 There are particular comments I wish to make about the evidence of the primary witnesses to the agreement relied upon by the plaintiff.
32 I have referred above in paragraphs 9 and 10 to the discrepancy between the opening and the case alleged in the Statement of Claim. Further, Pham’s evidence to the effect that Tuan introduced Tran to everyone, including family members, as his “wife” was not supported by other witnesses. Ba, Tuan’s father, gave evidence that Tuan introduced the defendant as his girlfriend. He said that at no time did Tuan introduce the defendant as his wife. I note that Tuan gave no evidence on the matter and that the issue was not addressed with Tran in cross-examination.
33 Pham differed from Brian Luong in his recollection of the meeting at Luong’s offices where Luong signed a solicitor’s certificate in relation to the loan made by Equity-One to Pham. Pham said that Tran took him to Luong’s offices in St Albans, that she spoke to Luong and remained present all the time that Pham was in the office signing documents. Pham said that this was all done without him receiving any, or any detailed, explanation from the solicitor about the nature of the documents he was signing.
34 Luong was the only independent witness at the hearing. He said that he explained the finance documentation to Pham in Vietnamese. More importantly, he said that he did not see Tran that day and that she was not in the room or at his offices while the consultation with Pham took place.
35 On this topic, I am more inclined to accept the evidence of Luong. He is a solicitor with duties to the court and has no obvious reason to misrepresent the facts to the court. He faces potentially significant sanctions if he misleads the court. Not only would he face the applicable penalty for perjury, he would possibly also lose his right to practise law. His evidence was given in a forthright manner and he duly conceded that on this occasion, he had failed to keep a file note of the meeting as he usually did. I accept also that Luong identified Ba and not Pham as the person who came to his office. In this context, I take account of the fact that this was the only meeting between the parties, that it occurred several years ago, and that, at the time, Pham was not bald but had hair.
36 Pham had no satisfactory explanation as to why in December 2009, when the loan money was not repaid, he failed to take any effective action to pursue Tuan or Tran. This was in a situation where Pham said that the initial loan was for a period of six months and that the loan monies could then be re-borrowed after the initial repayment.
37 When questioned about this failure to pursue the repayment, Pham alleged that he instructed his solicitor to make demand on Tran, telling her to sell the Clayton property and repay the money. Notwithstanding the request for production, Pham never produced to the court a copy of any solicitor’s letter. The plaintiff’s counsel made reference to a letter dated 17 March 2010 from Tuan to Tran. However, this letter seems to me to be irrelevant because it concerned the dispute between Tran and Tuan, not Tran and Pham.
38 Pham’s evidence about Tran going into hiding in December 2009 to avoid demands for the repayment of the loan from him is inconsistent with Pham’s evidence that Tuan and Tran lived together until March 2010 at the Footscray property. If that were true, then Pham should not have had any difficulty locating Tran and demanding repayment of the loan from her.
39 Further, I consider it unlikely in circumstances where Pham did not have to repay the loan until August 2011, that he insisted the loan had to be repaid initially within six months, and then the money could be redrawn if required. My view, as is affected by the evidence of Tran and Thi Thu (and my own opinion), is that it is unlikely that a person could buy, renovate and sell a property profitably in six months.
(b) Ba
40 Ba’s evidence was unsatisfactory in a number of respects.
41 First, Ba said that Tuan had lived with him since he was born and had never moved out of home. Given Tuan’s apparent age, this seemed unlikely to be correct. Such an impression was confirmed both by Tuan, his sister and Tran. Tuan admitted to a series of offences including possessing drugs and drugs of dependence, driving whilst suspended, obtaining a financial advantage by deception, making a false document to the prejudice of another, failing to answer bail, theft from a shop, burglary and theft from a motor vehicle. It seems that one or more of these convictions resulted in a custodial sentence. According to Tran, Tuan told her that he had been “locked away for eight years in Sydney” and then had been transferred to Melbourne. Tuan also told Tran that he was locked up for two weeks around April or May 2012 and that was why he had not contacted her during that time.
42 Tuan also said that he had been married previously and had an 18 year old son. He said that when he was married, he owned a house in Doncaster. While he did not say so explicitly, from the context, the inference appears open that he lived at the Doncaster property with his wife and child. Finally, Tuan’s sister gave evidence that during the period he was married, he lived at some point in a rented property in North Melbourne.
43 It seems odd that Ba would have given incorrect evidence about such a simple matter as the place where his son lived. If that evidence were wrong, it created concern about what other aspects of Ba’s evidence were incorrect.
44 Second, Ba gave evidence about a conversation he had with Tuan and Tran at the Footscray property in early 2010. The meeting took place when the relationship between Tuan and Tran had broken up. According to Ba, he said that he did not want things dragging on. He wanted the Clayton property to be sold in order to get the money to pay Equity-One, so there would not be any trouble. Ba alleged that Tran said that she wanted to keep the house and that she would pay the debt. Tran allegedly said that, as soon as the renovation was finished, she would pay back the money. Ba said that during the evening of the same day, Tran rang him three times by phone between approximately 8pm and 10pm to confirm that she wanted to keep the house and she would repay the money.
45 This evidence regarding the multiple phone calls was of a striking nature. However, this allegation regarding the multiple phone calls and the acceptance by Tran of responsibility was not put to her when she was cross-examined. There was no explanation for this failure.
46 Thirdly, in Ba’s evidence, there were various occasions upon which he was evasive and non-responsive to the questions put to him. He was particularly prone to adopt an aggressive manner.
(c) Tuan
47 The evidence given by Tuan provoked concern in a number of areas. First, at one point in his evidence, Tuan denied that he had borrowed money from his uncle and said that it was Tran who did so. In expanding that answer, he said that Tran told her uncle that the borrowing was a joint venture and both Tran and Tuan wanted to borrow the money. This was markedly different from other evidence Tuan gave where he said that his uncle gave him the money and he transferred the funds to Tran’s account. On one view, this later comment was at least consistent with other evidence Tuan gave where he said that he let Tran take full control of his company, including all the accounts and the money. His evidence about making the money available to Tran was also supported by Tuan’s mother, who said that her son was a very stupid person who borrowed the money from Pham and then handed it to Tran.
48 Second, according to Tuan, there were discussions on a few occasions between himself, Pham, his father and Tran regarding the loan from Pham. The discussions took place both at Pham’s residence at Fitzroy and at the Footscray property. None of the other participants in the conversations said that such discussions took place at the property. Also at one time, Tuan said his father was always present at such discussions and at another time, he said his father was not always present.
49 Third, it appears from Tran’s evidence that Tuan purported to sign in place of his uncle the offer for finance from Equity-One. Tuan also appeared happy to sign a lease document between his company and his uncle in respect of the property. This occurred notwithstanding that Tuan confirmed that he never entered into any lease with his uncle in respect of the property, nor did he pay any rent in respect of the property. Tuan’s apparently casual attitude towards the law was also reflected in his evidence that at no time did he file a tax return in relation to his business.
(d) Nho
50 Pham’s sister-in-law, Nho Doan, was not party to any of the relevant discussions at the time that Pham entered into any loan agreement with his nephew and/or Tran. To that extent, her evidence related to more peripheral issues.
51 Nho’s evidence supported that of her husband insofar as she said that there was no talk of marriage between Tuan and Tran in July 2009 around the time that she first met Tran. Nho was aware before meeting Tran that her son had a girlfriend. From what her son had told her, she believed that he had known Tran for about one year by July 2009.
52 In one respect, the mother’s evidence was similar to that of her daughter, Thi Thu. Nho said that she knew that her son did not have the money to buy a house, and that in order to do so, he would have had to borrow. She said that she thought he could do this because he had a business.
53 The most significant aspect of Nho’s evidence was, arguably, her comment to the effect that her son was very stupid in borrowing the money from his uncle and then handing it to the defendant. Given that the mother had no personal involvement in the discussions regarding the loan, I assume that her son was the source of knowledge for that observation insofar as it concerned him being the borrower. Other potential sources of that comment would have been Pham and her husband. In some respects, the son appeared happy to confide in his mother. According to her, the son told her about the existence of his girlfriend sometime before the mother met her. Further, the son told his mother about the proposed severing of the business and personal relationship between himself and Tran.
(e) Thi Thu
54 As noted above, Thi Thu said she had never heard Tran referred to as her brother’s present or future wife. Rather, she said that her brother introduced Tran as his girlfriend.
55 Like her mother, Thi Thu was not party to any of the discussions regarding the loan by Pham. Also like her mother, she said at one point she knew her brother had no money but believed he could borrow because he had a business and a job. This was made as a bald statement without any reference to the nature of the business or the amount of income which her brother derived from the business. She subsequently retreated from her initial position and said she did not know whether her brother had any money or not because she did not interfere in his personal or business affairs. Given the brother’s criminal history and his incarceration, and also given the fact that he lived in the same house as Thi Thu, one could readily imagine that the sister might have had a reasonable understanding of her brother’s financial position. To that extent, her initial comments about his lack of money were highly likely to be correct (unless perhaps the sister’s reservations came about because she thought he might have retained money or assets gained through his criminal activity). It was odd that she should have changed her evidence.
56 There were other aspects of Thi Thu’s evidence which I found surprising. First, she insisted that the defendant had said to her that one could buy and sell property profitably in six months in the way that the defendant was proposing to do with the Clayton property. Thi Thu herself, albeit without any apparent property development experience, did not think such a plan was feasible. In her evidence, Tran said the same. Given what has to be done, including settling the initial purchase, having plans for the renovation drawn up and then approved by council, undertaking and completing the renovation before preparing the property for sale and selling it, six months was an extraordinarily short time frame for such a significant undertaking. One could readily accept that such a program could not be successfully undertaken within a period of six months. Also, given the need to allow for capital gains tax, a project would be unlikely to achieve a profitable turnaround in such a time period.
57 In ascribing that “six month” comment to Tran, Thi Thu appeared to me to intend to make Tran look ill-informed or stupid. My impression of Tran in the witness box was that she was anything but stupid. In the courtroom, she came across as someone who was intelligent and focussed intently upon the improvement of her financial position.
58 Second, Thi Thu denied disliking Tran. She said she had a neutral view about her. I regard this attitude as unlikely in circumstances where Thi Thu has been forced to repay Pham’s loan to Equity-One and Pham, her father, Ba, and herself are now responsible for paying the interest on the loan.
59 The third concern was the alleged lack of communication between Thi Thu and her brother, Tuan. I have referred to a telephone conversation between Thi Thu and Tran in which Thi Thu said that Tran spoke to her about profitably buying and selling property in a six month period. Although Thi Thu thought this was not realistic, she said nothing to her brother querying why he was involved with someone who had such silly ideas.
60 Similarly, shortly after the Vietnamese New Year in March 2010, the mother told Thi Thu about a conversation which she allegedly had with Tran in which Tran disclosed to Nho for the first time the existence of the loan from the uncle. According to Thi Thu, she did not raise this matter with her brother or her father after she was told of it. Nor, after her brother said that he had brought the Clayton property, did she query him about his source of funds.
61 Further, she asked him no questions about the purchase in circumstances where, according to Thi Thu, Tran said that she bought the property for Tuan. It seems to me that there is an inconsistency between Tran claiming to have bought the property for Tuan and Tuan saying that he had bought the property.
62 For Thi Thu to claim the reason she did not speak to her brother was due to the long hours she was working and the fact that their paths did not cross seems an exaggeration. Thi Thu said that some days she worked at the pharmacy from 8am until 3.30pm (although she quite often stayed on for an hour or two), while other days she worked from approximately 3pm until late.
63 Generally, the plaintiff and the witnesses giving in evidence in support of his case were keen to be critical of Tran and cast her in a bad light. I had little confidence in much of their evidence due to the inconsistencies, the confusion and likely collusion. Plainly, it was in the best interests of the plaintiff, his brother, and his brother’s immediate family if the whole responsibility for the repayment of the loan could be shifted from Tuan to Tran. No longer would the debt burden Pham, Ba and Thi Thu as it currently does while they make monthly interest payments to cover the loan which Thi Thu took to repay Equity-One.
(f) Tran
64 Tran presented at court as a fairly forthright witness. Her evidence seemed consistent with someone who was anxious to accrue material wealth and the security which accompanies it. She seemed an opportunistic character who was keen to improve her financial position and focused on pursuing this goal.
65 Tran was a hard worker. She had worked in real estate for a time before later studying for qualifications in finance and obtaining an MFA licence. She worked as a finance broker and, for a short time, had an office in St Albans and another in Springvale. As her children grew older, she did some work with one of her sisters and, more recently, provided assistance from time-to-time at her present husband’s video shop in Springvale.
66 There were several main areas in which the evidence differed between the plaintiffs and Tran.
(i) The initial agreement meeting
67 As noted earlier in paragraph 24, Tran denied ever attending a meeting with Pham, Tuan and Ba, which discussed Pham lending money to Tuan and/or Tran. I accept Tran’s evidence on this issue. The plaintiff’s evidence on the point is unsatisfactory. Not only is there the issue of potential collusion between the plaintiff’s witnesses, but for reasons which were not explained, only Ba was asked about the family meeting with counsel before trial. Given the lack of credibility which affected Ba’s evidence, I would be reluctant to, and do not, accept his statement that there was no family discussion of the evidence.
68 Further, the plaintiff’s witnesses did not give a consistent account of the meeting or its background or, indeed, even agree upon its timing. Pham said that he first met Tran in about mid-March when she brought a gift of food from Vietnam. The meeting with Tran, Tuan and Ba was in, he said, April or May 2009. Ba said that he first met Tran at Pham’s house in Fitzroy in about June, at which time Tran gave Pham a gift of dried food from Vietnam.
69 For his part, Tuan said that he first introduced Tran to Pham in late 2008. He said there were several meetings between himself, Tran and Pham before an agreement was reached, and those meetings took place both in Fitzroy and at the Footscray property.
(ii) The attendance at Luong’s office in St Albans
70 Pham says that Tran took him to the office of Western Lawyers and was present when he signed documents there. Tuan said he did not go to St Albans but he did say that Tran took Pham for a few trips “to St Albans, on the city” and that Tuan stayed at the office at those times. Tuan said that Tran took Pham from Footscray to St Albans to sign the paperwork. However, Tuan also said in his evidence that what he saw included “he took my uncle to St Albans”. This answer was not the object of further questioning nor was it said that there was an error in the transcript. However, the defendant suggested in final submissions that Tuan might have been making a reference to his father, Ba. That possibility was not raised with any of the three men and I make no such finding. As noted, Tran denied driving Pham to St Albans but she agreed she phoned Luong to make the appointment.
71 I regard Luong’s evidence as decisive on the point and reject the plaintiff’s version of events that Tran took him to St Albans and remained in the room while the documents were explained and Pham signed relevant documents.
(iii) The March 2010 conversation
72 Ba gave evidence as set out in paragraph 12 about a discussion which took place at the Footscray property in March 2010. When he gave evidence, Tuan said nothing about the meeting. Also, although the comment attributed to Tran was a potentially damaging admission on her part, the substance of the comment was not raised with her in cross-examination. There was no explanation given for this failure.
(iv) The conversation with Nho
73 Nho gave evidence that Tran told her, in a phone conversation shortly after the Vietnamese New Year in February 2010, that the money to purchase the Clayton property was the money lent by Pham and that the defendant said that she would repay the loan to Pham.
74 In her evidence, Tran agreed that she had a conversation with Tuan’s mother in which she told her that Tuan had borrowed about $190,000 from Pham and that Tuan had used the money partly to invest in the Clayton property, partly to pay his own debts, and partly the uncle’s debts. She did not agree that she said she accepted liability to repay the loan to Pham.
75 When challenged in cross-examination, Tran said it was Tuan who borrowed from Pham, not her and Tuan together.
76 While the plaintiff sought, mainly through Tuan, to argue that the money borrowed from Pham was used directly or indirectly for the purpose of the Clayton property, I do not accept that this was the case. The evidence produced by Tran showed that she financed the bulk of the acquisition herself. Tran borrowed more than $406,000 of the purchase price (which was about $450,000) from the Commonwealth Bank of Australia. In addition, she used part of the net proceeds of sale from the unit she had at Parramatta Crescent, Noble Park. After taking possession of the Clayton property, Tran spent over $100,000 in renovations to the property, as evidenced in some photos which were tendered during the trial.
77 While Tuan certainly contributed some money to the property, for example, the repayment of the deposit monies which were advanced by Tran’s sister, in proportionate terms, his contribution was not significant. In any event, by reason of the terms of settlement entered into in respect of his proceeding against Tran, it appears that Tuan himself has accepted a low valuation regarding the value of his contribution to that project.
Conclusion
78 Due to the unsatisfactory nature of the evidence led by the plaintiff, I dismiss the claim and give judgment for the defendant. This is very much a reflection on the inadequacies of the evidence led by and on behalf of the plaintiff. The evidence was inconsistent, lacking in cohesion and credibility. The evidence simply failed to satisfy the minimum requirements of the onus of proof.
79 This is not to say that the plaintiff’s evidence was necessarily incorrect, and the defendant’s correct, on all issues. Tran was certainly not above reproach. For example, she seemed relatively unconcerned about her husband’s alleged counterfeiting activities and the raid by the Australian Federal Police upon his video shop. However, on the critical points in this proceeding, I preferred her evidence to that of the plaintiff’s witnesses.
80 It seemed to me that Tran’s explanation of events was more credible and consistent with the rest of the evidence. She said that Tuan wanted to make money and was excited by the prospect of buying and redeveloping property at a profit. Once he became friendly with Tran, Tuan was keen to take advantage of her greater experience and knowledge so he could participate in a project with her. Tran planned to get another property after disposing of the Noble Park unit and she was willing to allow Tuan to participate in the new project. Because Tuan was without funds, he had to borrow. That was why he approached his uncle to borrow against the equity in the Footscray property. The uncle made the loan to Tuan to enable him to invest in the Clayton property. As it turned out, Tuan used the borrowed money for several purposes, and did not make a large investment in the Clayton property. This was consistent with the relatively small sum for which Tuan settled the other proceeding against Tran.
81 Subject to hearing from counsel as to the final form of orders, I propose to order that:
(a) There be judgment for the defendant against the plaintiff.
(b) The plaintiff pay the defendant’s costs of the proceeding, to be taxed in default of agreement.
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