Satchithanantham v Multilink Investments Pty Ltd & Ors

[2002] HCATrans 495

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S21 of 2002

B e t w e e n -

THAMBIAPPAH SATCHITHANANTHAM

Applicant

and

MULTILINK INVESTMENTS PTY LIMITED

First Respondent

DEVJANI MOHANTY AS REPRESENTATIVE OF ARVIND MOHANTY

Second Respondent

BYLANDER INTERNATIONAL CONSORTIUM (AUSTRALIA) PTY LIMITED

Third Respondent

HEMALATHASOTHY RANJINI SATCHITHANANTHAM

Fourth Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2002, AT 11.59 AM

Copyright in the High Court of Australia

__________________

MR T. SATCHITHANANTHAM appeared in person.

MR J.A. BUSH:   May it please the Court, I am the solicitor for the first and second respondents.  (instructed by Bush Burke & Company)

HAYNE J:   Thank you, Mr Bush.  Now, may I call you Mr Satchi?

MR SATCHITHANANTHAM:   Yes, your Honour.

HAYNE J:   Yes, Mr Satchi.

MR SATCHITHANANTHAM:   Your Honours, for the convenience of my oral arguments because of the limitation of time, your Honours, I have picked up certain documents to highlight the basis of my submissions and everything, so that while I will go through that ‑ I have already served the documents to the respondent this morning.

HAYNE J:   Yes.  While those are being distributed, I should say that there is a certificate from the Deputy Registrar that she has been informed by the official liquidator for the third respondent that that respondent enters an appearance and submits to the order of the Court save as to costs and that she has been informed by the fourth respondent that that respondent enters an appearance and submits to any order of the Court save as to costs.

Yes.  Now, Mr Satchi, we have these documents.

MR SATCHITHANANTHAM:   Yes, your Honour, because I have been having some difficulty in representing this case because since on the Court of Appeal matter, then I am bring myself.  May I, your Honours, apologise if any discrepancy in my speaking or language, sometime it may not convenient for the language purposes.  So I was sort of the last two days I have ‑ in fact, I was trying to get counsel to appear for me but I am unable to get so I rush back and prepare some documents which I submitted two days ago.  One is applicant’s supplementary argument/submissions which was filed only yesterday to the Court; and also on top of that I have also filed another three supplementary documents.  One is the legal authorities bundle.

HAYNE J:   Yes, we have all those documents.  We now have limited time, Mr Satchi.  What is it that you wish to say in support of your application for special leave?

MR SATCHITHANANTHAM:   Yes, your Honour.  Basically my argument is, your Honour, the respondents in the first place failed their primary obligation of the contract, the form of contract which is highlighted in the submissions yesterday I have put in.  So basically that will give your Honours some kind of idea about today’s the first page I have given the line diagram.  That will view the understanding of what really happened and what supposed to be happen.  So the first page shows that based on the agreement, this is the way it should go for that and what really happened, the second page.  So the main point was, in fact, put into the court below by counsel in the written submission and he has in fact highlighted all the pages, particularly all the relevant information when it come to the law, your Honour.

HAYNE J:   But does that amount, in effect, to a challenge to the findings of fact that were made by the trial judge?

MR SATCHITHANANTHAM:   Yes, one of the grounds, your Honour.

HAYNE J:   Yes.  Why should this Court decide that the Court of Appeal got it wrong?  What is wrong with what the Court of Appeal did?

MR SATCHITHANANTHAM:   His Honours in the Court of Appeal, your Honour, because we have given a number of written submissions and from materials and, in fact, because of a limited time, in fact, they have made a decision based on the primary judge’s findings in the court below and, in fact, they are not look at the differences which was, in fact, highlighted precisely on the written submissions in the page numbers.  So most of that, the written submission in volume 1 – sorry, your Honours, this is volume 2, actually starting on the page No 100 onwards to 165 and that particular evidence has been taken out from the various transcript of the court proceeding.  That has been highlighted in the previous pages for only part of maintaining the submission, your Honour.  So that particular finding, in fact, most of the findings, your Honours, if you can find out that it is a different version of Mohanty is giving and what he has given, there was an affidavit and whatever it is because it involves a few solicitors’ involvement from previous cases, so there was a confusion and everything.  So, in fact, I myself depending on the solicitors who acted for me, so when I go back and check because at this particular time I was able to find new elements in my appeal that this was a primary obligation was not met; and also it was highlighted in the written submission to the court below but it probably on a different basis, that was from page 57 of this particular page, your Honour, 57 until 59.

HAYNE J:   This Court does not sit to retry cases.  There has been a trial.  This Court intervenes if there is an arguable error below.  Usually it will intervene only if that error is a matter of general principle having wide application.  What is it about this case that shows error or shows error on a matter of wide principle?

MR SATCHITHANANTHAM:   Your Honour, the error is matter of law. In fact, the first my submissions for today that the respondent failed to meet their primary obligations of their contractual obligations from day 1.  In fact ‑ I mean, this is based on the respondent’s knowledge and his conduct from day 1, your Honour, and also the respondent knows that there was a high risk involvement and also the respondent did not commence a proceeding after the 30 days period of particular agreement was supposed to be nearly executed.  He has waited for one year and he was waiting for his .....to get back if he is successful; and also the guarantee and so it was a joint and several guarantee for the basis on original agreement and the new agreement does not come into the picture of the agreement at all, your Honour, the second page, and there is no guarantee for that particular arrangement.  The particular evidence will show that particularly, your Honour, that from the main correspondence from the respondents that is, in fact, this is a second agreement he has accepted and he implemented.

So, your Honour, if we can refer back to this volume 1 of my supplementary application book, your Honour, if you can refer to the page No 103.  So that is the first impression of Arvind Mohanty that he confirmed that he acknowledged that there is a second agreement that he is asking for if he:

have received the letter from the bank, please fax to me.

So what was the second agreement that I come back to on page 104, your Honour.  That is the second agreement which talk about totally different amount from what this original amount, $250 million.  This is $110 million.  That fax was faxed to him from myself from Brunei, your Honour, on that next day and he acknowledged on the fax on 4 October on page 105 that:

Thanks for the fax.

Sydney:       $110m

The $110m funds confirmation has been registered.

So that is the basis that he knows at that stage, your Honour, there is no obligation of this particular whole agreement does not have any link with the Brunei party and, in fact, the other correspondence, your Honour, on 5 October – I am sorry, your Honour, I have to get some water – and that particular letter, your Honour, on 5 October, on page 107, that is where they confirm that $110 million coming from Bombay, India.  It is not from Brunei.  So at that stage, your Honour, he knew that it is not according to the original agreement.

Also on the last letter at 108 and he has said that ‑ and that particular money he wanted to register with his Bhicknapahari Trust in Swiss.  So he prepared the draft letter and he faxed to me the one based on 107.  Then I was in Malaysia with Jayabalan at the time, so that particular letter was faxed from Malaysia to confirm that the agreement has been completely changed and what he is indicating that is out of $110 million, he is getting $50 million to the Bhicknapahari Trust going straight to the trust in Swiss, not even coming to Australia, your Honour.

So that basis that the agreement has no ground at all and that the primary condition and consideration was not met and after ‑ and it was very clear, your Honours, from the agreement he was relying on that there was a clause particularly says 30 days and I was not sure why it was not called for that, if he is relying on that particular agreement, why he has not relied on that particular clause.  In fact, the first demand he was made, your Honour, is on 8 January, your Honour, that is on page No 121.  That particular letter, your Honour, you can notice that very clearly that that demand is coming from Multi link Investments and is addressed to Satchi personally.  So it is not going to ‑ as was…..agreement is Bylander International Consortium.  What he has done, your Honours, in that particular fax:

I have faxed two letters.

In fact, he is communicating with me to enclosing the two demand letters to ask me any comments.  So that is the attached letters, 122 and 124, your Honours.  So when you go back to the 122 letter, your Honour, and he is talking about different transactions with Jayabalan and that is he is talking about:

$150,000.00 collected and remitted to Mr. Jayabalan.

So this is what happened, your Honour on 8 January 1998, your Honours, and he has sent this money to Jayabalan so much – I mean, the principal amount is $150,000 and he is asking $738,000, I mean, that is not money he is normally getting in any of these investments, providing…..he can show that because the problem was, your Honours, from the day 1 he has misled me because the reason was that in my original submission that when I met him first time and he has said that in my application book No 1, your Honour – sorry, your Honour, can I get that book because I could not bring the other book in the bag?

HAYNE J:   Yes.

MR SATCHITHANANTHAM:   Your Honours, because this contact was established some time in June/July so when I met him, 9 July, and he in fact he has given me his illustration of the page 1 and 2, so that indicates that the normal interest rate is 6 per cent and the normal amount financed is $15 million and Multi link is being financier so, in fact, when I go back through a lot of correspondence, I found that there is no licence to do that and whatever it is and he is represent the Bhicknapahari Trust and he has included in his page No 3 and also he is represent the Bhicknapahari Trust and in its own address and also he talk in the same language, 6 per cent interest and “US$25 million Maximum” loan.

So, on that basis that I was came here to see my family, your Honour, on that particular date.  I was not able to even see that because it was ‑ the matter I came back to see, I want to see that…..and I able to see this man but he has when I told, he said maybe it is a good deal, if is go through, that what on the basis we going through.  But is went a different way and he has mentioned that he can give me a commission for 1.5 percentage what is based on the proposal he made.  So, in fact, it was going on putting all proposal.  In fact, there was no problem on that, as long as nobody has sort of hurt on that, but I said 29 August 1997, your Honours, he knew that particularly and Brunei will getting $50 million, closing at 30 September.  So he was actually following up when we look at all the correspondence from the day 1, I mean, in fact, he has mentioned in document on page 26 that:

Mean while, I have received the copy of the letter from State Bank of Mysore addressed to Jayabalaji Foundation –

and, your Honours, the reason I am trying to establish here why the trial judge made an error means that when we go back to every point of his answers, is totally different from the transcript and totally different from the documents.  The documents prove that what he says is wrong.  He said in the first day, the primary judge in the court below quoted, that he….. Jayabalan in November 1998.  So, your Honour, you can see that here from the primary face value of this document, he has known this particular dealings from August, in fact July, so, I mean, that is one of the evidence.  There are so many evidence that will prove that if he can ‑ because that is the reason, your Honour, we have put all the documents as an exhibit in the court to prove that there is something wrong, there is something different what is.  So basically, what it was happened that they only taken the period of 26 and 29, what is happened that when whereas his conduct and knowledge, your Honour, before and after it is combined, will give you the whole picture of what really happened.

It is not matter of ‑ because of course I had to rely on what the judges …..to accept but in the face of the document, it speaks for itself, your Honours, what is going on here.  From this 19 September 1999 that is the date and been because my affidavit shows that what I have given here, your Honour, you can clearly compare the version of affidavit what I given here that this only has taken selected portion of the affidavit from my side and his side.  You can see, your Honour, my one I have put precisely the dates what really happened and in his submission he put here “on or about” not specific dates being a bank manager.  I mean, he could have given when he go through back to the cross‑examination, transcript will give the sort of indication, your Honour, what went wrong for this.

That was the reason, your Honours, that we have put the facts of finding was, in fact, not given any consideration of the applicant in my side and when you come to the law, your Honours, then in the court below, in fact, as I mentioned just now, the submission of point of law has been indicated and, in fact, his Honour has mentioned in the judgment in the one I given this morning that he has some doubt about that ‑ ‑ ‑

HAYNE J:   Mr Satchi, your time has expired.  What else do you wish to say to us?

MR SATCHITHANANTHAM:   What I am saying, your Honour, because the authorities what I submitted has given a number of cases dealt with similar situations.

HAYNE J:   Yes, you have had your 20 minutes, Mr Satchi.  There is nothing else, I think.

MR SATCHITHANANTHAM:   Your Honour, I have put it to you all the submission to your Honours.  That is up to your Honours to make a decision.

HAYNE J:   Yes, thank you.  Mr Bush, we need not trouble you.

There is no reason to doubt the decision of the Court of Appeal in this matter.  For that reason, special leave will be refused with costs.

Adjourn the Court until 2.00 pm.

AT 12.21 PM THE MATTER WAS CONCLUDED