Sihaphone v Baccam

[2021] NSWDC 558

District Court

New South Wales

Medium Neutral Citation:

Sihaphone & Anor v Baccam & Anor [2021] NSWDC 558

Hearing dates:

29, 30 September, 1 October 2021

Date of orders:

18 October 2021

Decision date:

18 October 2021

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 147

Catchwords:

CONTRACTS – money claims – no issue of principle

Legislation Cited:

Evidence Act 1995 (NSW) s 140

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1893) 6 R 67

Morley v ASIC (2010) 247 FLR 140

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451

Strong v Woolworths (2012) 246 CLR 182

Young v Queensland Trustees Ltd (1956) 99 CLR 560

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Ei Sihaphone (first plaintiff)
Kham-Avone Sihaphone (second plaintiff)
Jade Baccam (first defendant)
Lam Chanthapanya (second defendant)

Representation:

Counsel:
Mr D Farrar (solicitor advocate) for the first and second plaintiffs
Ms E Graham for the first and second defendants

Solicitors:
Farrar Lawyers for the first and second plaintiffs
Maradock Lawyers for the first defendant
Andrew Lee Lawyers for the second defendant

File Number(s):

2021/00028716

Judgment

Background

1. This proceeding concerns two money claims between two couples who share a long-standing affiliation with the Laotian community in the Greater Western Sydney region.

2. As to the first money claim, the plaintiffs allege that they advanced to the defendants the sum of $20,000, pursuant to an agreement dated 11 April 2018, which they say has been wholly unpaid. As to the second money claim, the plaintiffs allege that they advanced (by cash) to the defendants the further sum of $46,500, pursuant to another agreement, dated 17 January 2019. They say that only a small sum ($1,800) was repaid.

3. Although the magnitude of the money claims, in terms of the aggregate sum of the principal components, would naturally fall within the jurisdiction of the Local Court, the interest component on the first money claim (calculated on the contractual basis) is such as to elevate the size of the plaintiffs’ claim above the limit of the Local Court’s monetary jurisdiction.

4. The issues to be determined are:

1. as to the first alleged money claim:

1. Whether the second defendant was a party to the agreement entered into on 11 April 2018;

2. Whether the first defendant repaid any, or all, of the cash advance of $20,000 between May 2018 and December 2019.

2. as to the second alleged money claim:

1. Whether the second defendant was a party to an agreement entered into on 17 January 2019;

2. Whether there was any agreement to lend money entered into at all on 17 January 2019;

3. Whether the plaintiffs ever actually advanced the sum of $46,500 under the agreement.

The plaintiffs’ evidence in chief

Ei Sihaphone’s affidavit

5. Ms Ei Sihaphone swore two affidavits, on 24 June 2021 and 27 September 2021, the last being an affidavit in reply. To assist with reading the evidence in sequence, I will refer to the content of that affidavit in reply after reviewing the defendants’ evidence. (I will do the same with the second plaintiff’s affidavit in reply).

6. In her primary affidavit, Ei Sihaphone deposed to running small businesses in Green Valley with the second plaintiff, her husband (Kham-Avone Sihaphone), since the turn of the century. The first was an Asian grocery business. The second was a Lao and Thai restaurant.

7. Ei Sihaphone deposed to knowing the defendants for about 30 years. She deposed to herself and her husband selling their grocery business to the defendants around June 2012. They commenced the Lao and Thai restaurant in 2015.

The April 2018 loan agreement

8. She deposed to a conversation with the first defendant, Ms Jade Baccam and the second defendant, Lam Chanthapanya, on 11 April 2018, when she was purchasing items in the defendants’ grocery store, wherein, she asserted that Jade asked to borrow money. This was because of ‘money problems’ which Jade Baccam had indicated she and her husband were having with the grocery store and their inability to obtain monies from elsewhere. The sum of $20,000 was discussed.

9. I will continue with the narrative shortly, but at this point, it is pertinent to note Ei Sihaphone’s evidence as to how she and/or her husband, as restaurant owners, could be in a position to advance such funds. She deposed to adhering to a cultural practice of families and friends pooling monthly savings together, in what were known as ‘Family Shares’. There was apparently an element of gambling to this; or at least a layer of uncertainty: participants to the pool could ‘sweep it’ by the placement of a bid, which increased a participant’s monthly payment. This pool was administered, or was the responsibility of a ‘host’ of the Family Shares, who collected all payments and ensured that each participant received the monthly pool. Ei Sihaphone deposed to contributing to and benefiting from ‘Family Shares’, since 1992, and to often keeping a large amount ($10,000) of cash in her handbag.

10. Returning to Ei Sihaphone’s narrative account about the conversation she deposed to having with Jade Baccam on 11 April 2018, the former deposed to the latter impressing upon her the desire to obtain $20,000 cash immediately. She also deposed to their agreeing that she would supply $2,000 that she had on hand and would retrieve her handbag (which had been left in the restaurant) to pass on another $8,000. She deposed to returning to the store and supplying that sum. As to the balance of the loan ($10,000), Ei Sihaphone indicated that she needed to go home to retrieve that sum. This, she deposed to doing, then returning to the restaurant and supplying the remaining $10,000 to complete the $20,000 cash advance, all completed on the single day.

11. Ei Sihaphone deposed that Jade Baccam had indicated that she would avail herself of ‘Family Shares’ in order to repay the advance. More specifically, the terms were apparent from the following extract of the affidavit account of the conversation:

I said:   "Here is $10,000. You count it. Now you promise that you will pay me back plus interest when you get your Family Shares."

She said:   "Yes, I will get the Family Shares soon.

I said:     "Sign this to make sure that you pay me back with interest."

She said:   "Thank you sis. I will sign. I will pay you back all the money you have given me and 10% interest each month until I pay you all back when I get the Family Shares."

12. The terms of the agreement were then reproduced in written form (Tab 1 to the affidavit).

13. Ei Sihaphone deposed to never receiving repayment of $20,000. This was despite making multiple oral demands on Jade Baccam.

Cross-examination on the first loan agreement

14. Under cross-examination on the April 2018 loan agreement, the main features of her evidence were as follows. Ms Ei Sihaphone substantially accepted Jade Baccam’s account of how the first loan agreement was reached. I note, however, that it was not put to Ei Sihaphone that her own account of the conversations in April 2018 was wrong, or substantially inconsistent with Jade’s account of it. Cross-examination of Ei Sihaphone generally centred upon the issues of Lam Chanthapanya’s involvement and whether the $20,000 was repaid.

15. As to the second defendant’s involvement, Ei Sihaphone adhered to her evidence about the second plaintiff’s presence in conversations with Jade Baccam about the need for the $20,000 loan. Ms Sihaphone was challenged about the sequence of how she supplied the instalments of the $20,000 loan. It was put, specifically, that the second and third instalments of $8,000 and $10,000, respectively, were supplied later. Ms Sihaphone maintained that instalments were supplied on the same day. It was put that the second defendant was not in the grocery store when these instalments of the advance were made. Ms Sihaphone said that he was.

16. As to the question of repayment of the loan, it was put to Ei Sihaphone that Jade Baccam had started making repayments, in $400 weekly instalments, of the $20,000 advance from as early as May 2018; which continued through to December 2019 for an aggregate sum of approximately $34,800. Ei Sihaphone denied receiving these payments; although she accepted that she started making demands for repayment of this advance from May 2018.

17. It was put to Ei Sihaphone that she arranged to send the second plaintiff, Kham-Avone Sihaphone and her daughter, Jacqueline Sihaphone, to attend the first and second defendants’ grocery store between May and September 2018 to retrieve repayment of the debt. She denied this.

18. It was also put to Ei Sihaphone, but she denied, that repayment of the principal of the loan – the $20,000 – occurred on or around 29 October 2018. Having denied that this was so, Ei Sihaphone was challenged on her evidence (in her affidavit in reply) that the first payment of interest on the April 2018 advance only occurred, one year later, in April 2019. It was also suggested that it would have been absurd for the plaintiffs to agree, in January 2019, to another loan advance to Jade Baccam, in a sum which more than doubled the amount advanced in April 2018, when, on the plaintiffs’ evidence, they had not even received payment of any interest since the advance made in April 2018. Ei did not agree.

The January 2019 agreement

19. She deposed that in September 2018, Jade Baccam approached her again for further borrowing. Asked by Ei why she and her husband needed more monies after the omission to repay the first borrowing of $20,000, Jade explained that she and her husband had used the sum to support her sister through legal proceedings and other debts. Jade pressed her for a further borrowing of $46,500. Ei deposed to telling Jade that she would agree to a further loan (“for the store”) but on terms that Jade pay interest.

20. Ei Sihaphone deposed to discussing this arrangement with her husband. She indicated to him that they would need to take Family Shares in order to provide the $46,500 to the defendants.

21. Over the months of November and December 2018, and January 2019, the plaintiffs were successful with their ‘bids’, obtaining amounts of $19,500 on each occasion.

22. On or about 17 January 2019, Ei and Kham-Avone Sihaphone approached Jade Baccam at her store and Ei deposed to having the following conversation with Jade:

She said:   "Sis, have you got money for me?"

I said:   "Yes. I am lending you this money to solve your problems but you promise that you will pay this to me back with the other $20,000 with interest."

She said:   "Yes, sis. I promise you."

I said:   “I want you to write the terms of this agreement and sign on a piece of paper what I have lent to you [$46,500] and that you will pay me back $100 a day until you pay it all back in 465 days. I will also take a copy of your drivers licence details."

She said:   "Yes, sis. Anything."

23. According to Ei, Jade Baccam then signed a piece of paper recording the last transaction. The document (Tab 2 to the affidavit) was as follows:

“17/1/19

I am Jade Baccam has borrow money ARJ EI $46500 –

and willing to pay back $100. A day until Complete the total amount –

Total of 465 days –

(signature of Jade Baccam inserted)”

24. After Kham-Avone secured a copy of Jade Baccam’s drivers’ licence, he went to the restaurant to copy the document recording the transaction. Meanwhile, Ei Sihaphone handed Jade the $46,500 and the latter promised to pay the plaintiffs back.

Partial repayments of January 2019 agreement

25. Ei Sihaphone deposed to receiving the sum of $1,800 between April and July 2019 (the details being set out at paragraph 20 in her affidavit in reply), but no other monies were received. This was despite making regular demands of the defendants when she attended their store. She annexed to her affidavit (Tab ‘3’) multiple text messages, from May 2019 to December 2019, in which Jade indicated an inability to repay.

26. Under cross-examination, she reiterated that although she received $1,800, this was only a partial repayment of the second advance of $46,500.

Cross-examination on the second loan agreement

27. The main features of cross-examination in relation to the alleged Second loan agreement were as follows. Ei Sihaphone accepted that in September 2018, Jade Baccam had explained that she was refinancing her property and it would take some months to obtain the proceeds as the context for her request for more money. It was suggested to Ei Sihaphone that, accepting as she did, that Ms Baccam was requesting further money urgently in September 2018, it was curious that Ei Sihaphone did not distribute portions of the requested sum of $46,500 in November and December 2018 (from the ‘Family Shares’) as they became available. Ms Sihaphone said that she only wanted to make the cash advance in a lump sum. It was suggested that Ei Sihaphone had, in fact, spent the monies obtained from the Family Shares, but she denied doing so.

28. Ei Sihaphone accepted that she visited the defendants’ grocery store in January 2019 and appeared to dispute demanding payment of money. Her recollection was that Ms Baccam agreed to give money to her that day, not to ask for it. She accepted that she was angry with Ms Baccam around February 2019, but said that if she shouted at all, said that her shouting was in response to Ms Baccam shouting at her. She denied threatening to seize the defendants’ stock and going to the defendants’ shop and seizing items, without paying, valued in the sum of $3,184.10. She said that when she did obtain items from the store, she had paid for them.

29. In re-examination, Ei Sihaphone gave evidence to the effect that the receipts that she received for goods acquired from the grocery store were only those with no handwritten annotations on them (Tab 1 to her affidavit in reply); not those with handwritten annotations (Annexure ‘B’ to Ms Baccam’s affidavit).

30. Ei Sihaphone accepted that she asked Jade to draft a document acknowledging the second advance in January 2019, but denied that she dictated its content. She adhered to her evidence that Jade had requested the advance of $46,500 and that Cham was present in the shop when she did so.

Conversation in February 2021

31. After the plaintiffs commenced this proceeding on 1 February 2021, Ei deposed to a further conversation with Jade Baccam, in the presence of Kham-Avone Sihaphone; the substance of which was to ask for the proceeding to be withdrawn and also including promises by her to repay.

32. Under cross-examination, Ei Sihaphone was referred to the account in her principal affidavit (paragraph 34) of a conversation she said occurred in the presence of her husband, with Jade Baccam, in February 2021 after the proceeding commenced. Ms Baccam’s account of what was said was put to Ei, and the latter disputed most of that account. Ei also said that Jade Baccam addressed her husband. When it was pointed out that there was nothing in the affidavit to suggest any direct conversation between Ms Baccam and her husband, Ei Sihaphone maintained that this had occurred. She was only about a metre away. In her affidavit, she was only recording her recollection of what Ms Baccam said to her.

Kham-Avon Sihaphone

33. Kham-Avon Sihaphone swore affidavits on 25 June 2021 and 27 September 2021 (the last one in reply).

34. The thrust of his primary affidavit was to confirm that his wife Ei Sihaphone had explained to him Jade Baccam’s expressed requests for borrowings. This occurred on 11 April 2018, when Ei had already indicated that she had already lent $10,000 in cash to Jade. She asked Kham-Avon to procure the balance of the $10,000. He deposed to asking Ei whether there had been any agreement about repayment and she responded that Jade had informed her that she was going to get it from the ‘Family Shares’. Thereafter, Kham-Avon deposed to periodically discussing the timing of Jade’s repayment with Ei.

35. Under cross-examination, relating to the April 2018 loan agreement, it was apparent that Mr Sihaphone had little knowledge of the circumstances leading up and entry into the April 2018 loan agreement. He came to learn about it from Ei. He did, however, say that he saw Ei return to the restaurant and understood she went home to retrieve the second ($8,000) and third ($10,000) instalments for the advance. He also saw Jade Baccam sign the document; which he thought occurred after the last instalment had been paid

36. The second main conversation with Ei occurred in September 2018. This also supported Ei’s evidence as to their placing ‘bids’ with Family Shares in order to get the $46,500 for the further advance to Jade and her evidence that they were successful with their bids and obtained three parcels of cash of $19,500.

37. Kham-Avon also corroborated Ei’s evidence of being privy to an exchange occurring at Jade’s store in January 2019 and Ei’s evidence of the delivery of the $46,500 cash. Ei also reported to him her conversation with Jade in February 2021, after the proceeding had been commenced.

38. Under cross-examination relating to the second agreement did not recall any conversation with Jade Baccam himself in September 2018 about a further borrowing, though he understood that Jade had asked Ei for a further borrowing. He was going by what Ei had told him. Other features emerging through his cross-examination were that he:

1. maintained that he spoke to Jade Baccam, in the presence of Ei, in the grocery store on 17 January 2019; but said that she had requested the additional advance from Ei. He described Jade as ‘begging’ or ‘pleading’ for this money, without precisely recalling the words she used. He said he did not know whether the second defendant, Mr Chanthapanya, was in the grocery store for this conversation;

2. said that he, and Ei, had carried the $46,500 (in cash) in a black backpack (photographs of which appeared in Exhibit A) into the grocery store, and both of them had counted out the cash. (Later, he indicated that this amount of cash was put together in 4 bundles of fifty and hundred dollar notes, and a smaller bundle); and that after Jade Baccam had also counted the notes, the latter had stored the cash under the counter at the cashier’s desk of the grocery store;

3. said that he witnessed Jade Baccam sign the document (being Tab 2 to Ei’s affidavit), and recalled that she wrote it herself (that is, without Ei’s dictation);

4. denied that he was angry about Jade’s lack of repayment by March 2019 or, if he was, that this caused him to go into the grocery store and seize items from the store without paying for them. In re-examination, he identified receipts (Tab 1 to Ei’s affidavit of 27 September 2021) in proof that items were purchased.

5. believed that the sum of $1,800 Jade had repaid (as required by the second agreement) was repaid on or about 27 September 2019, having put into an envelope (or small bag(s)) addressed, and provided, to Ei. He said that Ei had counted the money and informed him of the sum (it was put that there was an inconsistency in his evidence as to where this occurred: at the defendants’ grocery shop and the plaintiffs’ restaurant).

39. Under cross-examination, Mr Sihaphone recalled that in February 2021, whilst in his restaurant, and in his presence, Ms Baccam had ‘begged’ the plaintiffs to withdraw this proceeding against her. (It was suggested that this characterisation was different to his affidavit account of what had occurred) He said he was privy to this conversation but did not say anything.

Letter of demand

40. The plaintiffs relied upon a letter of demand from their solicitor advocate, Mr Farrer, who appeared for them at the hearing, dated 15 December 2020 (Exhibit C). The demand was consistent, in its content, with the assertions later made in the statement of claim (filed on 1 February 2021). Simply to repeat assertions previously made one and a half months before does not, however, make the assertions any more probative.

The Defendants’ evidence in response

Jade Baccam’s affidavit

41. Jade Baccam affirmed an affidavit on 6 August 2021. She identified herself as being unemployed.

42. Ms Baccam did not agree to the characterisation of her and her husband being friends of the plaintiffs, but she accepted that they were at least acquaintances and that the plaintiffs had sold their grocery business to the defendants in 2012.

The April 2018 agreement

43. Ms Baccam accepted that, in April 2018, her and her husband’s business was ‘not performing well financially’ and considered that “I” needed to borrow money to meet “my” financial commitments. In cross-examination, she elaborated that she had been experiencing difficulties for at least a couple of months before that; and that she needed money to help her buy stock. She deposed to her belief, based upon what she had heard from other members of the Laotian community, that Ei Sihaphone had acted as a lender, charging high rates of interest.

44. It was put to Ms Baccam that, from April 2018, a cause of her difficulties was her gambling. Ms Baccam was equivocal in her answers about her gambling. After her initial unequivocal statement that she did not gamble (at all), she shifted to the position that she gambled ‘a little bit’ before accepting that she had the experience of drawing from ATMs to withdraw up to $150 or $200 cash (the last answers being given without the assistance of the interpreter on hand). But she denied withdrawing any money for gambling from April to December 2018; and the entirety of the 2019 calendar year.

45. The plaintiffs had earlier (before Ms Baccam gave evidence) tendered a bundle ^[1] of (NAB) bank account statements, in an account in both of the defendants’ names (Exhibit B.1) indicating that from October 2018, and throughout 2019, there were in fact multiple ATM withdrawals from the Rooty Hill (or Illawarra) RSL clubs. There were also withdrawals from the Rooty Hill RSL ATM in October 2020. It was suggested, but denied, that all of references to withdrawals from the Rooty Hill (or other RSL) clubs in the period recorded withdrawals she made for gambling purposes. (Some of the transactions occurring in the very early hours of the morning). She denied that this was so. In reference to some such transactions early in the period, Ms Baccam explained that she had stayed out with friends or withdrew the funds from the RSL for her friends.

    1. In the exhibit, it was not apparent that every statement throughout 2019 was included. Statements numbered 3 & 6 were omitted.

46. The same NAB statements recorded multiple transfers (each of $2,500) from the defendants’ daughter, Tesha, into the account. Tesha lived with the defendants during 2018 to early 2021 and was a worker. This was to finance loan repayments to the Bank.

47. Finally, in relation to the NAB account statements, in May and July 2020, there were two withdrawals (each for $10,000) from the first defendant’s superannuation deposited into the account.

48. Ms Baccam was also referred in her cross-examination to a statement from a St George ‘Freedom’ account in the defendants’ names, which was annexed to her affidavit (Annexure ‘C’), spanning the period 2 August 2018 to 1 February 2020. Ms Baccam denied that the account was ever withdrawn.

49. She denied Ei Sihaphone’s account of conversations in April 2018. She appeared to accept however, that she asked for a $20,000 loan and agreed to pay 10% interest. She deposed to Ei supplying her with $2,000 cash then and there, but it was only a few weeks later, when Ei returned to her grocery store, that she supplied a further $8,000 in cash; and returned a further few weeks later, with the remaining $10,000. She deposed that on none of the occasions when cash was supplied to her was the second defendant, Lam Chanthapanya, present. She acknowledged signing the record of the loan agreement which was Tab 1 to Ei’s affidavit.

50. Under cross-examination, her attention was drawn to her defence (filed 24 February 2021) through which she admitted the allegation (paragraph 3 of the statement of claim) that:

“on or about 11 April 2018, the plaintiffs entered into an agreement with the defendants to lend the sum of $20,000”.

51. She was granted leave to amend to draw the distinction, subsequently reflected in her Amended Defence (19 September 2021) that she – but not the second defendant – entered into such agreement.

Repaying the $20,000 advance

52. Jade Baccam deposed to repaying the $20,000, with the 10% interest. She deposed to preparing a log on 4 May 2018, in which she recorded payments, in the period from 4 May 2018 to 27 December 2019. She prepared the log (Annexure ‘A’ to her affidavit) to keep track of the payments of interest that she says she made. She deposed to making these payments from the cash register in her store, or from ATM withdrawals. She deposed that any of Ei, Kham-Avon, or the plaintiffs’ daughter, Jacqueline, would attend her grocery store on a weekly basis and receive the cash. The log indicated weekly payments in $400 instalments. In response to a question by me, she identified the figure of $400 as being referable to the interest component.

53. She was cross-examined on this log. She said it was her normal practice to record in the log when she paid the plaintiffs, but said that sometimes she “did not do it”. It was put to her, in effect, that the log was a fabrication, prepared only for the purpose of preparing her affidavit and that she did not make any payments. She denied these propositions.

54. She deposed to making these cash repayments when there was sufficient money in the cash register. Sometimes, she acknowledged that there was insufficient money in the register and Ei would become upset, expecting her to make payments; to the point of making threats, that she would come back and “take stock” from the grocery store. Ms Baccam deposed that on such occasions, she did not say anything as she did not know what to do. Annexed to her affidavit (as Annexure ‘B’) was a copy of ‘receipts’ of items which she asserted had been taken by the plaintiffs, without them paying.

55. Ms Baccam deposed to being in the position to repay the $20,000 loan through a refinance, which she asserted had occurred on or about 26 October 2018. She annexed a bank account statement showing that the sum of approximately $150,000 was deposited into her account on that date (Annexure ‘C’) and she had made regular cash withdrawals thereafter. Later she deposed that she had not repaid the loan (with interest) by January 2019.

The duress allegedly perpetrated in January 2019

56. Ms Baccam also denied Ei Sihaphone’s accounts of conversations preceding the second advance from September 2018. Specifically, she denied asking for (or receiving) a second loan from Ei. But she did not deny that a conversation actually occurred in September 2018; and she did not give any narrative account, herself, as to what was said between her and Ei in September 2018.Ms Baccam also denied that the second plaintiff was privy to any conversation she had with Ms Sihaphone.

57. She deposed to Ms Sihaphone coming into the grocery store in January 2019 and demanding repayment of the loan. When Ms Baccam responded by telling her that she would pay her when she could, she deposed to Ei Sihaphone becoming repetitive and aggressive in her tone. This made her become upset.

58. She then deposed that Ms Sihaphone had threatened her, saying words to the effect “I know where you live and where your children live. I will get gangs to get you and our children if you don’t write down I say.” She then deposed to writing down the document which Ms Sihaphone identified as the written part of the agreement for the making of the second advance. Ms Baccam deposed to writing it because she felt ‘afraid, pressured and intimidated’.

59. She gave a substantially similar account of what was said in cross-examination. It was put to her in cross-examination that no threats were made, but she maintained that they were.

Denial of $46,500 advance received in January 2019

60. Unsurprisingly, Ms Baccam was closely cross-examined on the variety of answers, in the differing iterations of her Defence (all verified by an affidavit by her) to the allegation (contained in paragraph 10 of the statement of claim) that:

“On or about 17 January 2019, the plaintiffs entered into a further agreement with the defendants to lend a further sum of $46,500”.

61. Unlike the position in relation to the April 2018 loan agreement, there were no subsequent amendments to Ms Baccam’s defence which distinguished her personal position from that of the second defendant as to whether they had entered into any agreement from January 2019. Fairly read, the amended pleadings suggested only that, by the last iteration of their Defence, both defendants denied entering into any loan agreement in January 2019.

62. However, the position Ms Baccam expressed to the Court, more than once, was that she personally did enter into such agreement, and that her main contention was that that she did not receive the advance which the plaintiffs’ had promised to her, pursuant to such agreement). She initially did not accept that this position was inconsistent with the content of the different iterations of her defence. But ultimately, after indicating her understanding of what she was doing when she was affirming the three affidavits (two of them verifying iterations of her defence), she accepted that they could not all have been consistent.

63. She denied that the plaintiffs ever paid to her the sum of $46,500 on 17 January 2019 or at any other time. As to the text messages annexed to Ms Sihaphone’s affidavit, Ms Baccam deposed that these were referable to the $20,000 advance.

64. She accepted that she spoke to Ei once, in February 2021, after the proceeding had commenced, but not in the terms recalled by Ei.

Lam Chanthapanya’s evidence

65. The second defendant, Mr Chanthapanya, husband of Jade Baccam, affirmed an affidavit dated 6 August 2021.

66. He deposed, simply, that he had never entered into any loan agreement or received money from the plaintiffs.

67. Under cross-examination, he was referred to the initial version of the defence, for the defendants, relevantly verified in an affidavit by him, by which the defendants (including him) admitted the allegations in paragraphs 3 & 10 of the statement of claim, which alleged that the plaintiffs entered into the two loan agreements with the defendants, respectively, on 11 April 2018 and 17 January 2019. It was clear from the cross-examination, that when he verified the affidavits to the versions of his defence, he was doing so at the suggestion of his solicitors, without having any real understanding of that he was doing when providing the verification.

68. Having read Ms Sihaphone’s primary affidavit, he deposed that he was not present, and accordingly was not a witness to any conversations between his wife and Ms Sihaphone.

69. He did, however, corroborate evidence given by Jade Baccam regarding the refinance and the potential use or receipt of proceeds in the order of $150,000 and an ‘internal’ conversation he had with Ms Baccam in or about October 2018 that she had referred to.

70. Under cross-examination, Mr Chanthapanya also indicated that although he had a bank account (with ANZ) in his own name, in respect to the two other accounts jointly owned with the first defendant, he did not have access to them for the purpose of obtaining funds for business expenses.

Browne v Dunn

71. The cross-examination of Ms Baccam Mr Chanthapanya was conducted on the footing, that in light of the accounts of conversations narrated by the plaintiffs in their affidavits, which the defendants had fair opportunity to respond to in his (their) own affidavit(s), no Browne v Dunn ^[2] point could be taken as a result of the solicitor advocate for the plaintiffs not specifically putting the plaintiffs’ accounts of conversations to the defendants when they were each cross-examined.

Plaintiffs’ evidence in reply

2. (1893) 6 R 67

Ei Sihaphone

72. In her affidavit in reply dated 27 September 2021, Ei Sihaphone indicated what was virtually her entire disagreement with Jade Baccam’s affidavit evidence and, to the extent that it corroborated it, Mr Chanthapanya’s affidavit evidence. She also denied, in particular, Mr Chanthapanya’s evidence about his absences from conversations or dealings between herself and Ms Baccam.

73. The substance of her affidavit in reply, relating to specific paragraphs of Ms Baccam’s affidavit, was to:

• indicate that they regarded the defendants as friends before the alleged events giving rise to the dispute;

• indicate her recollection that she spoke to both Jade Baccam and Mr Chanthapanya numerous times;

• reiterate that she and her husband never received any repayment of the first advance of $20,000. She indicated she had not seen Annexure ‘A’ to Jade Baccam’s affidavit, representing the latter’s ‘log’ of repayments of the first advance;

• (at paragraph 20) say that she supplied an itemised breakdown of how the $1,800 was repaid, between 11 April 2019 and 20 July 2019, in no less than 13 ‘white lunch paper bags’;

• deny that either she, her husband or daughter attended the grocery stores as de facto ‘debt collectors’;

• indicate that when she did demand repayment in conversations with Ms Baccam, the latter was wont to say that she had “Lam’s authority”; and, on another occasion, recalled Lam acknowledging an obligation to pay;

• refute that she had ever taken stock from the grocery store; although acknowledged that she and her husband did occasionally purchase goods from the grocery store (in the period from March to April 2019) when offered at prices comparable to their wholesale suppliers;

• “categorically” refute Ms Baccam’s allegation of duress in procuring the latter to admit, in writing, the second advance.

Kham–Avone Sihaphone

74. In this witness’ affidavit in reply, dated 27 September 2021, he deposed to events in materially identical ways as his wife had done. Two matters warrant emphasis. He deposed that when he and his wife did buy goods from the defendants’ grocery store, they had paid for them. Goods were not received as part payment of monies owing under the first advance. Secondly, and in partial elaboration of what he had said about the ‘Family Shares’ utilised to provide the funds for the alleged second advance, this was the only time he and his wife had bid three times in a row.

Jacqueline Sihaphone

75. Jacqueline Sihaphone is the daughter of the plaintiffs. She is also a solicitor. As Counsel for the defendants observed, she had also witnessed affidavits sworn or affirmed by the plaintiffs.

76. The purpose of her affidavit, sworn on 27 September 2021, was to respond to Ms Baccam’s evidence that she, along with her parents, had attended the defendants’ grocery store to buy groceries or act as debt collectors. She deposed to never having had attended the store and to the extent it was suggested that she was implicated in conversations, or demands, or even the taking of the defendants’ stock, she denied all of this.

77. She adhered to her evidence about not attending the defendants’ grocery store under cross-examination. She was not challenged about her denial that she had gone there, on behalf of the plaintiffs, to demand the payment or repayment of monies or to threaten, or the actual taking of stock.

SUBMISSIONS

The defendants’ submissions

78. With reference to the first loan agreement, Counsel for the defendants emphasised that the document recording the transaction had only been signed by the first defendant. The second defendant never received any monies. If there were any other parties to the agreement, they needed to be identified. I should accept the second defendant’s evidence that he had no real understanding as to why he was even involved.

79. Counsel submitted I should accept Ms Baccam’s evidence that she repaid interest payments, in weekly sums of $400, from May 2018 to December 2019. She also drew the Court’s attention to the St George ‘Freedom’ bank account statement, which relevantly indicated that a cash withdrawal was made of $20,000 on 27 October 2018, the day after $150,205.07 had been deposited into the same account following a home refinance; which had been procured to assist the defendants’ business with its money difficulties. This was in the context of a conversation with Ei Sihaphone in September 2018. She invited me to infer that this $20,000 had been paid to the plaintiffs. Further, she submitted that any payments made after this were only the result of demands made upon Ms Baccam by the defendants.

80. With reference to the second alleged loan agreement, as a first point, again that could not have involved the second defendant. Further, it was objectively improbable that such advance would have been made by the plaintiffs. First, I should accept Ms Baccam’s evidence that she was the subject of duress. Secondly, acceptance of the proposition that the loan agreement was entered into made no (commercial) sense: on the plaintiffs’ account, by September 2018, they had already lent the first defendant $20,000 with not a cent repaid and they were offering to make a further advance without security. Thirdly, it was incongruous, in a context where Ms Baccam had emphasised the urgency of more money (pending a refinance), the plaintiffs accumulated the agreed sum of $46,500 over a few months; rather than providing the monies in instalments.

81. In response to my question as to what I might make about Ms Baccam’s apparent admission that she agreed to enter into an agreement to receive $46,500 whilst maintaining that she did not receive the monies, Counsel for the defendants submitted that I should interpret that to mean that she agreed only to make a written agreement (and then only under duress) recording the transaction; and not construe her admission as acceptance that she entered into an agreement at all. She further submitted that the Court might find that the $46,500 might actually represent the amount of interest owing under the April 2018 loan, as at January 2019.

The plaintiffs’ submissions

82. The solicitor advocate for the plaintiffs submitted that the second defendant was a party to the first and second loan agreements. As to the former, there was evidence form Ei Sihaphone about his being present. There was also evidence in the document recording the written agreement (Tab 1 to Ei Sihaphone’s principal affidavit) referring to the second defendant by name.

83. On the issue of repayment of the first loan agreement, the solicitor advocate for the plaintiffs emphasised the contradictory nature of Ms Baccam’s evidence, and strongly challenged her credit generally. He cited the St George and NAB bank account statements which pointed to on-going financial difficulties for the business of the first and second defendants; involving, amongst other things, the rapid dissipation of monies received from the refinance in October 2018; and the serial entries in the NAB bank account statements relating to cash withdrawals from the Rooty Hill (& other) RSL clubs, at strange hours of the day, to feed what, the plaintiffs’ submitted, was Ms Baccam’s gambling problems. The solicitor advocate submitted that no faith could be placed in Ms Baccam’s ‘log’, which was generated only for forensic purposes. Ms Baccam, he submitted, could not, independently of the log, nominate a single date or a single payment other than a desperate reference to the photographs of the paper bags in Ei Sihaphone’s affidavit in reply (Tab 2). Even if the dates and amounts on those bags were compared to entries in the log, they did not correspond. The solicitor advocate also referred the Court to the copies of Ms Baccam’s text messages (Tab 3 to Ei Sihaphone’s first affidavit) which were not consistent with Ms Baccam’s log.

84. In relation to the second loan agreement, the solicitor advocate submitted that the Court should find that the sum of $46,500 was advanced in circumstances where the defendants were (until after the events the subject of this proceeding) long-standing friends of the plaintiffs. They may have had their own reasons for making this advance, but the Court should accept Ei Sihaphone’s evidence, in particular, that the monies were paid and, further, that they were paid in a single lump sum, in January 2019, rather than instalments in the last quarter of 2018. The solicitor advocate for the plaintiffs submitted that the Court could accept the second plaintiff’s evidence about the $46,500 being brought into the defendants’ store in February 2019 in the black backpack.

82. He also submitted that the plaintiffs’ evidence could be accepted when they attributed the $1,800 that they received as being referable to the second loan agreement; and not the first loan agreement. According to Ei Sihaphone’s evidence (paragraph 20 of her affidavit in reply) the payments were made on different occasions throughout a period of just over 3 months and made in instalments of $100 or $200. That was more consistent with the promise made in the (recorded part of the) second loan agreement, which stipulated repayment in $100 instalments, than the first loan agreement, which did not stipulate any particular requirement for repayment of principal (of the $20,000). Further, he submitted that the Court could infer from the absence of complaint, or protestation, by the defendants in a conversation in February 2021, which conversation post-dated the commencement of the proceeding, about the allegations made in the recently served statement of claim, or the letter of demand, as amounting to an implied admission, by conduct, of their veracity.

CONSIDERATION

Credit

Ei Sihaphone

86. A curiosity of this witness’ evidence is that although a Laos-speaking interpreter was available for her, sometimes the witness directly answered questions from the defendants’ Counsel without recourse to the interpreter.

87. I had some reservations about the reliability of this witness. Whether it was a product of a lack of understanding of her role in giving evidence under cross-examination (after having sworn 2 affidavits) or not, she often gave non-responsive answers and attempted to provide explanations to questions which did not call for explanations. Although this might partially be attributable to anxiety, sometimes her evidence bordered on attempting to engage in advocacy. This conduct evinced an apprehension as to how her answers may affect her interests in the litigation. To some extent, there were also some inconsistencies in her evidence, such as whether on January 2019, she was present in the defendants’ store to demand repayment of monies or merely made a new advance that day. I also thought that there was equivocation in her evidence as to whether Jade first asked for the larger advance back in September 2018 or later. Some of her evidence was implausible, when she maintained that Jade had asked her (again) for the second advance between September 2018 and January 2019 when there was no evidence to that effect in her affidavits.

88. I do accept however, that she tried to tell the truth. Nevertheless, I treat her evidence with some caution.

Kham–Avone Sihaphone

89. On the basis of other evidence, I formed the strong impression that the second plaintiff had only peripheral involvement in the dispute, but it seemed to me that through the course of his evidence he was trying to impress upon the Court greater involvement and knowledge of the transactions than he actually had or possessed. This led him, on occasions, into giving evidence in Court which was internally inconsistent or implausible. Even making allowances for his giving evidence through a Lao-speaking interpreter, some of his answers were long-winded and non-responsive.

90. I accept, nonetheless, that he tried to tell the truth; but I do not regard him as being altogether reliable or convincing and treat his evidence with circumspection.

Jacqueline Sihaphone

91. No challenge was made to this witness’ evidence. I accept it as both credible and reliable.

Jade Baccam

92. Ms Baccam gave evidence through an interpreter. In this respect, she was no different to the plaintiffs. It was however, curious, that at one point in the early stages of her cross-examination, she was capable of directly answering (in English) several questions (in English), about her gambling activities without the interpreter’s assistance.

93. Even factoring in potential language issues, I found Ms Baccam to generally be evasive or non-responsive.

94. Moreover, Ms Baccam’s evidence, when explaining the recent amendments to her defence concerning whether the defendants entered into the second loan agreement with the plaintiffs in January 2019 was a moveable feast. Her position, indicated at least twice (and once in a question I asked), was at least that she had entered into such a loan agreement, but that she did not receive the monies the subject of that agreement. This position was not borne out by the final version of her defence (after two separate amendments). So too was her shifts in her position as to her gambling activities in 2018; from outright denial to qualified acceptance. Her evidence about the transactions she engaged in at the Rooty Hill RSL, as recorded in her, bank statements, were inherently implausible.

95. Finally, she made serious accusations about conduct of the plaintiffs (and even their daughter) which I have rejected as being unsubstantiated, for reasons to be elaborated in the substantive section of these reasons. Some of her evidence was reconstructed without any solid evidentiary underpinning; I regarded her raising them as indicative of an air of desperation which also sapped her credibility.

96. In summary, I had no confidence in the veracity of her evidence that was not corroborated, or otherwise consistent with the objective probabilities.

Lam Chanthapanya

97. The second defendant’s evidence did not inspire confidence that he had any real understanding of what was occurring. This extended, even, to the circumstances where he affirmed affidavits verifying the contents of versions of his defence. To some extent, it seemed to me, his evidence was inconsistent with the inherent probabilities. Thus, he said, he did not understand the content of his principal affidavit (6 August 2021) notwithstanding the circumstance, apparent on the face of the affidavit, that its content was translated to him by an interpreter.

98. His evidence was not reliable.

Standard of proof and approach to fact-finding

99. Counsel for the defendants reminded me that the onus of proof of the matters alleged fell upon the plaintiff. It is to be recalled, that the plaintiffs pleaded their case in contract; not in debt. In the latter, there are certain advantages for a claimant; not the least being that where the action is in debt, the onus of proving repayment falls on the debtor^[3] .

    3. Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 569-70

100. On the onus of proof, I remind myself of the hallowed observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, which are applicable to the statutory standard under s 140(1)-(2) of the Evidence Act 1995 (NSW) ^[4] that:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty… Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”

4. Morley v ASIC (2010) 247 FLR 140 at [750]-[753]

101. Nevertheless, the Court may reason to a state of reasonable satisfaction via probabilistic reasoning: Strong v Woolworths (2012) 246 CLR 182 at [34]-[37].

102. It may be seen from the above section on credit that the Court is in the unfortunate position of not having an abundance of confidence in any of the three, or perhaps four, protagonists (I exclude Jacqueline Sihaphone from this grouping) in dispute. This is in a context where, the legal representatives did not seriously disagree, credit issues may have significance in relation to informal dealings between acquaintances (if not friends) involving cash transactions. Nevertheless, I do have a general preference for favouring the evidence of Ei Sihaphone over Jade Baccam, the main protagonists, where there is conflict that cannot be resolved by other matters.

103. I remind myself, as I might direct a jury, that I am not obliged to accept all that a witness might say: I can accept parts of what a witness might say, but not others. [5] More generally, I remind myself that the surest path to fact finding is more in weighing testimonial evidence in the light of contemporaneous circumstances established, objectively, and the inherent probabilities, with reference the logical force of the parties’ submissions in the light of those circumstances. Demeanour plays a diminished role. This last point is perhaps of augmented significance in a context where there were inherent challenges to the hearing being conducted by remotely; where four of the five witnesses, to varying degrees of necessity, required an interpreter in the Lao language.

     5. Danckert v Tonkin [2015] NSWSC 1570 at [152]; Cubillo v Commonwealth (No 2) (2000) 174 ALR 97

WAS THE SECOND DEFENDANT A PARTY TO EITHER ALLEGED AGREEMENTS

104. There was no signature of the second defendant in the documents which the plaintiff propounded as the written parts of the two loan agreements; though his name was handwritten on the first of them. But in the same first loan agreement, it was Jade Baccam who was the “I” referred to on the document, where it was stated “I promise I will pay the total amount …” and it was to Jade Baccam to whom the instalments were agreed to be paid. Further, it was only Jade Baccam’s driver licence that was copied.

105. I am not persuaded that the second defendant was present at the time of Ei Sihaphone’s conversations with Jade Baccam, notwithstanding that the former says he was there. If he was there, at the time that Ei presented the $10,000 as the final instalment of the first loan, it might have been expected that he would also have signed the written part of the first agreement.

106. Kham–Avone Sihaphone did not depose in his principal affidavit to Ei referring to Lam’s presence in conversations with Ms Baccam on 11 April 2018, or in September 2018 when she reported to him about her arrangements with Jade Baccam.

107. Even if Lam Chanthapanya was present before Ms Baccam on each occasion, I do not accept the plaintiffs’ submission that a person can become a party to an arrangement simply on the basis of acquiescing to someone else representing, in his presence, that the arrangement might affect, or even be in the interests of that other party. No authority was cited for that proposition. That is especially so where it is plainly the case that the bargain purported to be recorded in writing and the person suggested as being a party to it has not executed the document.

108. For the plaintiffs’ case to succeed in this regard, they must perforce rely upon Jade Baccam acting as the agent of the second defendant.

109. I place very little weight in Ei Sihaphone’s evidence, in her affidavit in reply, about Jade Baccam speaking about her having the second defendant’s authority. This evidence was not only belated (it should have been given in chief); it was also a statement of conclusion. To be sure, Ms Baccam did also refer in her principal affidavit to “Lam and I” needing the $20,000 advance, but that only begged the question as to the extent that representations she made bound him. The same representation about her and the second defendant needing the money was made in September 2018. However, what counted was a representation of authority to the third party (Ms Baccam) by the principal^[6] (the second defendant); not by the purported agent (the first plaintiff). None was forthcoming from Lam Chanthapanya.

     6. Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [36]

110. There was no evidence about how the defendants managed their business which could support a view that the second defendant either appointed Jade Baccam as his agent, or that she had some office or position from which the authority to bind him could be inferred.

111. I further accept Lam Chanthapanya’s protestation of ignorance of the $20,000 loan (and borrowings generally) until monies had been obtained through the loan refinance, which was not undermined.

112. Finally, in relation to the second loan agreement, the document that the plaintiffs rely upon to prove the advance of $46,500 (Ei Sihaphone’s principal affidavit) refers only to the first defendant. It was only the first defendant who acknowledged the borrowing and undertook to pay back $100 a day, for 465 days.

113. In the absence of any (express or implied) actual authority he conferred upon her, or any holding out by him, it cannot be found that any misrepresentation by Ms Baccam as to her authority to represent her husband could be sheeted home to her husband.

114. I am not satisfied that Lam Chanthapanya was a party to either alleged loan agreement such that he could be jointly liable for breach of the agreements. He is therefore entitled to obtain a judgment in his favour against the plaintiffs.

115. Such loan agreements, as there were, could only have been with Ms Baccam.

WAS THE $20,000 ADVANCE REPAID?

116. Consideration of this question begins from the admitted fact that Ms Baccam did receive $20,000. Further, I prefer the evidence of Ei Sihaphone, over Ms Baccam, that the advance was completed on the same day and not, as Ms Baccam testified, spread over different weeks.

117. I am satisfied that the amount was not repaid. If Ms Baccam’s case is correct, that she only received monies from the plaintiffs under the first loan agreement in April 2018, and not the second loan agreement, then the various text messages that she sent to Ei Sihaphone throughout 2019 could only have contained promises to repay the $20,000 advanced in April 2018. But her Counsel submitted that the repayment of the principal had already been made in October 2018, following the cash withdrawal made on the St George Freedom account on 27 October 2018. There was no need to send text messages promising payments in relation to a loan which had already been repaid.

118. The scenario envisaged by her Counsel, regarding repayment in October 2018, was also internally inconsistent with the evidence in Jade Baccam’s affidavit (paragraph 38) that by January 2019 she had “still not repaid the loan of $20,000 plus interest”. It is implausible in the extreme that she would continue to pay, in weekly instalments, the sum of $400 for the remaining period of November 2018 until December 2019 as interest upon a loan repaid in October 2018.

119. More generally, I find that the ‘log’ was pure reconstruction, developed for forensic purposes and have no confidence in its accuracy. It was not, in truth, a log of payments actually made at all, but a retrospective schedule of what Ms Baccam estimated was the interest payments which she thought she was obliged to pay long after the dates when she said she made them. There was nothing to indicate any reference to bank statements, or other, objective documents, to assist her to prove what payments for interest she made, and when they were paid.

120. I do not accept Counsel for Ms Baccam’s submission that even after receiving payment of the loan (in October 2018), Ei Sihaphone was continuing to press for payment of it, or make other demands (otherwise than referable to the second loan agreement). Such conduct would be patently unlawful; which affects the Court’s consideration as to whether it is likely to have occurred at all (see my earlier reference to Briginshaw and the terms of s 140(2)(c) of the Evidence Act). It also begs the question, about which Ms Baccam was silent, as to why she did not complain to the police that she was, in effect, being extorted for the payment of monies which the person demanding them would have known she was not entitled to receive.

121. To the contrary, I find that Ei Sihaphone’s pressing of reminders for payment, when considered in the light of the evidence as a whole, were consistent with a claim of right, or belief in Jade Baccam’s obligation to repay.

122. I am satisfied that the $20,000 advanced under the first loan agreement was not repaid by Ms Baccam.

DID THE FIRST DEFENDANT AGREE TO BORROW $46,500?

123. I find that Jade Baccam did agree with Ei Sihaphone to borrow this sum. This was the position she admitted to, twice, during her evidence; despite fluctuations in her formally pleaded defence. I reject Counsel for the defendants’ submission that there was any ambiguity in what she admitted to when giving evidence in Court; that is, that she might have thought the question was directed to whether she had agreed to enter only into a written agreement ie execute the document which is at Tab 2 to Ei Sihaphone’s principal affidavit. That was not the subject of re-examination nor was it in accordance with the questions asked of her (one being by myself) which elicited the admission.

124. The effect of this admission was to torpedo the defence, which was in any event pleaded belatedly, that Ei Sihaphone exerted duress in order to get her to sign a written piece of paper recording the agreement. Given that she admitted entering into an agreement, it matters not whether pressure was bought to bear upon her to sign a piece of paper acknowledging as much.

125. In any event, given the absence of any contemporaneous complaint to anyone (even the second defendant, who did not refer to any discussion about the incident in his affidavit) about such ‘duress’ being exerted on her to sign the document, my severe reservations about Ms Baccam’s credit and the gravity of the allegation that Ei Sihaphone was threatening physical harm to her (and her children) if she did not acknowledge the agreement in writing, I would not have accepted the assertion of duress (of the nature alleged) even if it was necessary to decide the question.

126. On this issue, I take into account the defendants’ troubled financial position as betokening a need to borrow. A cursory look at the St George Freedom account indicated that, not coincidentally, on 18 September 2018 – two days before Ei Sihaphone says that Ms Baccam approached her for a further advance – the defendants’ account was in debit and had incurred a dishonour payment fee. Further, even after they obtained $150,000 from a home loan refinancing, cash was dissipated so quickly that from a balance of $150,043.69 on 26 October 2018, the account became overdrawn again on 12 November 2018. During this same period, hundreds of dollars were being spent, on the defendants’ NAB account, on transactions in the Rooty Hill RSL Club.

127. I acknowledge the force of the submission of Counsel for the defendants that it would appear odd to a hypothetical observer, in retrospect, that, in September 2018, Ei Sihaphone (and her husband) would agree to make a further advance, unsecured, of a substantial sum of money to Ms Baccam and, thereafter try to effectuate it in January 2019, when, on their account, they had not been paid in relation to the April 2018 advance (nor had any demonstrably imminent means of repaying it). However, I accept, as plausible, that not only was the loan being paid to friends or acquaintances of the plaintiffs ^[7] , in whom some (albeit diminished) trust could be reposed but also: (a) although there was no security obtained for the loan, the interest rate was commensurately high, relative to any ordinary lending arrangement; and (b) as I understand the ‘Family Shares’ arrangement, the funds obtained from the plaintiffs to make the advance were not entirely those of the plaintiffs, but from others’ contributions as well. Viewed in this way, from the plaintiffs’ perspective, the risk-reward equation, in terms of what the plaintiffs stood to lose of their own monies, and what they stood to gain (from high rate of interest from the borrowers) was conceivably not so out of kilter as to make the arrangement inherently improbable.

     7. In the text messages at Tab 3 to Ei Sihaphone’s principal affidavit, Jade Baccam littered her messages with the familiar “sis”, consistently with Ei’s accounts of how Ms Baccam addressed her

123. Finally, on this issue, I prefer the evidence of Ei Sihaphone regarding her conversation with Ms Baccam in September 2018. Ms Baccam issued (in paragraph 36 of her affidavit) only a bare denial of Ei Sihaphone’s account of the conversation in September 2018, without venturing her own account of what was actually said. Further, Ei Sihaphone’s account of the conversation receives some independent support from the reference she made to Ms Baccam indicating that she was, by that time, expecting loan refinance to occur, but not yet obtained, as a reason for why more money was being requested. This was indicated by the notice the defendants received from the NAB about their ‘refinance’ at that time (Exhibit B.2, p 1). Moreover, Ei Sihaphone’s account of what was said by Ms Baccam in September 2018, regarding the defendants rapidly acquiring extra debt was supported by the bank account statements of the defendants (Annexure C to Ms Baccam’s affidavit).

124. Another notable feature of that account was Ei Sihaphone explaining to Jade Baccam, in September 2018, that she (and her husband) proposed to make the advance in “a few months” as they did not have the money then and there. Further, her evidence that she spoke to the second plaintiff about “sweeping” the ‘Family Shares’ for the next few months was corroborated by the second plaintiff.

WAS THE SUM OF $46,500 EVER ADVANCED TO THE FIRST DEFENDANT

130. It is doubtless, a forensic advantage to the plaintiffs that the starting point for consideration of this question is, in accordance with my earlier finding, that there was an agreement, reached in September 2018, that they would advance $46,500 and that the first defendant (would) agree to pay that sum, on certain terms.

131. But the question remains whether the plaintiffs performed their promise to advance that sum. On this matter, they carry the onus of proof; an onus which the Court must consider in light of the circumstances I alluded to earlier when referring to s 140 of the Evidence Act and the observations of Dixon J in Briginshaw.

132. This requires the Court to be satisfied, on the probabilities, that a promise to pay money in September 2018 was effectuated by the supply of that money in January 2019.

133. Earlier I rejected Ms Baccam’s evidence that her signing of the document (Tab 2 of Ei Sihaphone’s principal affidavit) was procured through duress, in the manner particularised by Ms Baccam. That is not to conclude that no ‘pressure’ was exerted by Ei Sihaphone to sign it. In the circumstances of an unpaid advance from April 2018, continuing promises by Ms Baccam to repay that advance, a lack of security and no means of any obvious capacity to repay, it is not surprising that Ei Sihaphone might at least forcefully indicate her stipulation that Ms Baccam provide to her a written acknowledgment of the second advance after it had been made in January 2019; if only to facilitate proof of it should there be a need to bring a proceeding to enforce the debt. Even if Ms Baccam perceived that this was a pressure tactic, this would fall a long way short of amounting to duress.

134. Accordingly, I find that the document she signed on 17 January 2019 means what it apparently says and that it provides written and contemporaneous proof of her receipt of the sum of $46,500 and, in this way, corroborates the evidence of both plaintiffs about the cash advance being made that day.

135. Having found that there was an agreement to provide a further advance of $46,500, and found that there was a written receipt of the sum, Counsel for the defendants could only really fall back on two further arguments against the proposition that the monies were actually advanced. First, despite the promise in September 2018, the plaintiffs had, in fact, spent the monies that they asserted that they received from the Family Shares in November and December 2018 and January 2019. Secondly, their account about bringing $46,500 into the defendants’ grocery store and handing it over should not be accepted.

136. As to the first of these arguments, nothing was indicated which would contradict the evidence of both plaintiffs that the monies that they had received from ‘Family Shares’ in November and December 2018 and January 2019 had been stored away in the hiding spot in their home, before being conveyed to the first defendant in January. It was not suggested, for example, what if any assets (personal or business) were acquired by the plaintiffs through the use of the monies. As I have indicated, Ei Sihaphone’s storage of the monies in this way had been foreshadowed in her conversation with Ms Baccam in September 2018, and the former’s conversation with the second plaintiff at that time. (The second plaintiff was not challenged on the correctness of his account of what Ei Sihaphone had told him about her conversation with Ms Baccam in September 2018).

137. As to the second argument, Counsel for the defendants accepted, in closing argument, that it was not impossible for the defendants to physically bring the $46,500 into the defendants’ grocery store, using the backpack (photographed in Exhibit A), and for the cash to be counted by each of the plaintiffs and Ms Baccam. It is true that the revelation as to how the cash got into the store was not referred to by Kham-Avone Sihaphone (it had been elicited in response to a question by me), but that was a detail which it is not altogether surprising was omitted from his affidavit. It is also true that the time that it would have taken for all three to count the cash was not insubstantial (at least 45 minutes). But there was no discrete inquiry from Counsel for the defendants made of either of the plaintiffs as to what time of the day they said that the delivery of the cash occurred or the usual periods of time in which the grocery store were busy; with a view to establishing that it would have been inconceivable that cash of that magnitude could have been counted in the period. Moreover, even if it appeared curious to a disinterested observer that Jade could have taken the cash and placed it under the counter, as the plaintiffs’ suggested, that curious circumstance must be viewed in the context of an abundance of other curiosities evident in this case. The simple fact is that both plaintiffs and defendants appeared to adopt a practice in transacting in substantial amounts of money in cash. That may appear unwise from the perspective of conventional money lenders or commercial lawyers, and even suspicious, from the perspective of transparency, but it was the basis upon which the parties dealt with each other.

138. Finally, the defendants did not point to any single, unforeseen event, between the agreement being reached in September 2018 and the advance being made in January 2019 which might suggest a reason for why the plaintiffs would change their mind. The circumstance of continuing non-payment of the February 2018 loan was not such an event: as I have explained, it provided context for and explained the terms of the September 2018 agreement.

139. On the balance of probabilities, I am satisfied that the sum of $46,500 was advanced to Ms Baccam on 17 January 2019.

WHAT WERE THE REPAYMENTS DIRECTED TO?

140. I am also satisfied that the repayments amounting to the sum of $1,800, all of which post-dated entry into the second advance, are referable to that particular advance. I prefer the evidence of Ei Sihaphone, over Jade Baccam, and accept the force of her point that the payments were (generally) made in denominations ($100) consistent with the terms of the second loan agreement.

141. That means that the principal of the debt under the second loan agreement is $44,700.

INTEREST

142. The parties made no submissions on interest; although the plaintiffs in their schedules of damages identified a claim at the contractual rate in respect to the first advance and at the rate prescribed under court rules in relation to the second advance. The defendants provided no counterpart schedule of damages quantifying interest as was to be expected in accordance with the Court’s practice.

143. Noting that there was a contractual provision for interest under the first advance, but not the second, I accept the plaintiffs’ submission as to the appropriate selection of interest rate. Further, I see no reason why, as a matter of discretion, interest under the court rules should not be available on the unpaid portion of the second advance.

144. It follows that I accept the plaintiffs’ methodology, which calculated interest on the first advance from 11 April 2018 and interest on the second advance from 31 July 2019.

145. My calculations are that the interest on the sum of $20,000 at the rate of 10% per month, from 11 April 2018 to 18 October 2021, being 42 months is $84,000.00. The interest on the sum of $44,700 from 31 July 2019 to 18 October 2021 (at the prescribed court rates) is $4,462.16. If the parties differ in their calculations, they may exercise liberty to apply in relation to that matter and on the question of costs.

JUDGMENT SUMS

146. When the interest components are added to the principal components on the damages claims in respect to breach of the two loan agreements, the judgment sum will be $153,162.16.

ORDERS

147. The Court makes the following orders:

1. Judgment for the plaintiffs against the first defendant for the sum of $153,162.16, with the first defendant to pay the plaintiffs’ costs, as agreed or assessed.

2. Judgment for the second defendant against the plaintiffs with the plaintiffs to pay the second defendant’s costs, as agreed or assessed.

3. Any application for variation of the costs orders is to be made by notice of motion, supported by affidavit, filed and served by 25 October 2021.

4. In the event that any application for variation of the costs orders is brought:

1. The plaintiffs are to serve submissions (not exceeding 3 pages) at the time of service of the motion;

2. The defendants are to serve submissions (not exceeding 3 pages, excluding attachments) by 27 October 2021; and

3. The plaintiffs are to serve any submissions in reply (not exceeding one page) by 29 October 2021; and

4. the application will be determined on the papers.

5. Liberty to apply (in relation to interest calculations) on 7 days’ notice.

6. Exhibits to be returned within 28 days.

Endnotes