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…