State of Victoria v Li
[2016] VCC 1168
•15 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-07-02338
| State of Victoria | Plaintiff |
| v | |
| Jennifer Mai Li | Defendant |
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JUDGE: | Judicial Registrar Tran | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2016 | |
DATE OF RULING: | 15 August 2016 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2016] VCC 1168 | |
REASONS FOR DECISION
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Subject: Garnishee Summons
Catchwords: Practice and Procedure –Garnishee summons – Money held in bank account in name of Judgment Debtor – Allegedly held on trust for Judgment Debtor’s husband – Discretion to make garnishee order absolute - Standard of proof
Legislation Cited: County Court Civil Procedure Rules 2008 (Vic) - Confiscation Act 1997 (Vic), s.74(2)
Cases Cited:Heydon v The Perpetual Executors Trustee and Agency Company (W.A.) Ltd (1930) 45 CLR 111; Steiner v Strang [2016] NSWSC 395; Voce v Deloraine [2012] NSWSC 1187; Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd (No1&2) [1990] 1 AC 295; Roberts v Death (1881) 8 QBD 319; Plunkett v Barclays Bank Ltd [1936] 2 KB 107; Nguyen v Phan (No 2) [2015] VSC 634 at [237]; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365-6; Davies v The National Trustees Executors and Agency Co of Australasia Limited [1912] VLR 397 at 403-4; Herdegen v FCT (1988) 84 ALR 271, 276.9; Wilkins v Wilkins [2007] VSC 100; Damberg v Damberg [2001] NSWCA 87.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms E. Nikou | Maddocks |
| For the Defendant | Mr T. D. Best | SDR Law |
JUDICIAL REGISTRAR:
Jennifer Mai Li (“Jennifer”) owes the State of Victoria over $550,000. She owes this money because in 2008 she was convicted of seven counts of obtaining a financial advantage by deception, and a pecuniary penalty order (“PPO”) was made against her in the sum of $553,626.72. Under s.74(2) of the Confiscation Act 1997 (Vic), ä PPO is taken to be a judgment debt and may be enforced as if it were an order made by the Court in civil proceedings.
Jennifer currently has more than $150,000 (“the NetBank Saver money”) standing to her credit in an account she holds with the Commonwealth Bank of Australia (“the CBA”). She has another account with the CBA containing over $3,000 (“the Smart Access Account money”). She says that the NetBank Saver money ought not be paid to the State of Victoria to reduce her debt under the PPO. She claims that the NetBank Saver money belongs to her husband, Jaymin Locke (“Jaymin”), not to herself.
The State of Victoria served a garnishee summons on the CBA on 4 March 2016. It says the garnishee order should now be made absolute.
Issues to be determined
It was common ground between the parties at the hearing of the garnishee summons that if I was satisfied that there was a reasonable suspicion that the NetBank Saver money was held on trust for Jaymin, then I should not make the garnishee order sought. Jennifer’s Counsel characterised the alleged trust as a resulting trust, which arose because the presumption of advancement had been rebutted in the circumstances of the case.
After the conclusion of the hearing and consideration of the cases referred to, I invited additional submissions on the following three issues, not argued at the hearing:
a) whether, in Australia, any presumption of resulting trust arises from a payment of money (see Heydon v The Perpetual Executors Trustee and Agency Company (W.A.) Ltd (1930) 45 CLR 111, applied in Steiner v Strang [2016] NSWSC 395 at [113]-[116] and Voce v Deloraine [2012] NSWSC 1187 at [12]);
b) whether the Court has a discretion to grant the application if it is just in all the circumstances, even if there is a reasonable suspicion that the money is held on trust (see Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd (No1&2) [1990] 1 AC 295); and
c) whether, if the Court refuses to make the garnishee order absolute on the ground of a reasonable suspicion that the money is held on trust, it may or should order the money paid into court pending trial of the question of whether the money is in fact held on trust (Roberts v Death (1881) 8 QBD 319).
The parties then filed detailed written submissions on these issues on 29 July 2016 (Jennifer) and 18 July 2016 (the State). Counsel for Jennifer now contended that the money was held on a bare trust (as opposed to a resulting trust) for Jaymin and that any presumption of gift[1] had been rebutted by the evidence given at the hearing. He contended that if I concluded there was a reasonable suspicion that the money was held on trust for Jaymin I ought not, in the exercise of my discretion, make the garnishee order as it would “enrich” the Crown to the detriment of a third party (Jaymin). He also contended that the orders of the Court should bring this garnishee proceeding to an end and it would not be appropriate in the circumstances to order a further trial of the question of Jaymin’s interest in the NetBank Saver money.
[1]As to which see Heydon v The Perpetual Executors Trustee and Agency Company (W.A.) Ltd (1930) 45 CLR 111, applied in Steiner v Strang [2016] NSWSC 395 at [113]-[116] and Voce v Deloraine [2012] NSWSC 1187 at [12]
Counsel for the State of Victoria contended that the “overwhelming weight of the evidence” suggested that both the loan repayment (discussed further below) and the claimed intention not to gift the money were a complete fabrication and a recent invention designed to frustrate enforcement action in respect of Jennifer’s obligation to pay her PPO. She accepted that my decision ought to put an end to the proceeding and there ought not be any further trial of the question of Jaymin’s interest in the NetBank Saver money. However, she sought to withdraw her previous submissions that the test applied was one of “reasonable suspicion” and to contend that the onus was upon Jaymin to establish on the “balance of probabilities” that the NetBank Saver money was held on trust for him.
The issues I need to determine are:
a) whether Jennifer needs to establish the existence of a trust on the balance of probabilities or whether a “reasonable suspicion” suffices;
b) whether the Jaymin loaned Jennifer’s brother Luan Vo (“Luan”) $165,000 in about February 2013;
c) whether Luan repaid this loan in October 2014 by providing Jaymin with a bank cheque for $220,000 made payable to Jennifer; and
d) if so, whether this money was held on trust for Jaymin once it was paid into Jennifer’s Smart Access Account and ultimately transferred into the NetBank Saver Account.
Smart Access Account money
As at 24 February 2016, there was $3,670.88 held in Jennifer’s Smart Access Account. There is no evidence that this was anything other than Jennifer’s money. Accordingly, the garnishee order ought to be made absolute with respect to the money held in this account.
Jennifer’s credibility
The seven counts of obtaining a financial advantage by deception which led to the PPO being made against Jennifer were not Jennifer’s first crimes of dishonesty. On 10 February 2000, she was sentenced on 14 charges of obtaining property by deception in relation to false loan applications to the ANZ. Then, on 18 January 2006, she was convicted of making a false statement supporting a claim under the Social Security Act 1991 (Cth) and a charge of obtaining property by deception, two charges of obtaining a payment that was not payable and three charges of obtaining a financial advantage by deception.
In sentencing Jennifer for the 7 counts of obtaining a financial advantage, Judge Nixon said:
“Your dishonest conduct was calculated and premeditated”
“You personally obtained $761,000 by way of a financial advantage”
“You, Ms Li, have committed serious crimes of dishonesty at a time from at the latest December 2005 you knew you had been charged with the offences which were heard and determined on 18 January 2006. The crimes which you committed well merit the description of devious and dishonest and in addition they are the result of meticulous planning on your part.
You left no stone unturned in your endeavour to cover your tracks and dishonesty became second nature to you.”
“You lied in many instances of your record of interview”
“I believe you are far more sorry for the position in which you find yourself rather than expressing genuine remorse”
Jennifer was sentenced to a total effective sentence of four years and three months’ imprisonment with a non-parole period of two years and three months’ imprisonment.
Jennifer admits that she has lied to police, a bank, Commonwealth Authorities and business associates. But she portrays Judge Nixon’s sentencing remarks as a “gift” which made her wake up to herself:
“All I can say is Judge Nixon was basically helping me waking up to myself and to my circumstances at the time…in my opinion at the time, based on my circumstances, I made a huge mistake and what Judge Nixon said and sentenced me, in my belief is like a gift to me” (T41:2-6)
In April 2011 she lodged an application for an extension of time to appeal from this “gift”.
In cross-examination before me:
a) she denied any knowledge of the PPO until after she was released from prison; and
b) she denied that she committed two further offences whilst on bail,
despite these both being significant aspects Judge Nixon’s sentencing remarks.
Her characterisation of Judge Nixon’s remarks as a “gift” to her, with the implication that as a result she had mended her ways and could now be trusted to tell the truth, was itself a lie. Jennifer appeared to me in Court to be a charming but dishonest witness, prepared to mould and shift her evidence in a self-serving manner and to say whatever she viewed as most convenient at the time, regardless of the truth. Her characterization of Judge Nixon’s sentencing remarks as a “gift” is but one example of this. In response to a question as to whether she was diligent she volunteered “I came to Australia as a refugee…Growing up in a family of single mother” (T42:16-19). This may have been the truth but it was irrelevant and contrived. She told Neil Gregoor, an Investigator from Asset Confiscation Operations that the Heatherton Property at which she resided was her “mother’s home” (T56:16). Under cross-examination she initially said “it’s my brother home”. When asked why she had a caveat over the property in her own name, her story changed to “I list the caveat to protect my husband’s interest” and “It is his [Jaymin’s] property…Because he paid for it…This is back in 2006 I recall”. Even if this final version were the truth, it demonstrates a preparedness by her to sign and submit an application for a Caveat in her own name claiming a proprietary interest which she did not hold.
Another example is her meeting with Neil Gregoor on 25 February 2015. On the day she met with Mr Gregoor she had (according to her evidence) just the day before, finished 8 weeks’ full time work for her brother, being paid $2,788.46 per week. She did not tell Mr Gregoor of this employment (or disclose the income she had received from it) but instead told him she was doing unpaid work with a psychiatrist in Kew. Under cross-examination she claimed this was not a lie and she finished working for her brother and then did the placement. However, either her claim to have worked full time for her brother or her claim to have been doing unpaid work with a psychiatrist must be untrue, given her employment with her brother did not cease until 24 February 2015, the day before her meeting with Mr Gregoor.
Counsel for Jennifer valiantly submitted that it cannot be the case that, because of her previous criminal convictions, each and every transaction that she does from here to the day she dies is going to be a dishonest act. That may well be the case. However, her evidence before me was self-serving and dishonest on critical matters. In such circumstances, I would be very reluctant to accept any of her evidence as truthful in the absence of corroboration and certainly not where it is contradicted by another witness (such as Mr Gregoor) whose credibility was not challenged via cross-examination.
Standard to be applied
At the first return date of the Garnishee Summons on 6 June 2016, the parties agreed that the test to be applied was whether there was a “reasonable suspicion” that the money was held on trust and that the burden of proof of establishing this reasonable suspicion lay upon Jennifer. It was agreed that if a reasonable suspicion was established, I should dismiss the application made in the garnishee summons. At that hearing it was submitted for the State that in view of the fact that:
a) the evidence for the existence of the alleged trust was based almost entirely on the evidence of Jennifer, Luan and Jaymin and related to facts almost entirely within their knowledge; and
b) the concerns in relation to the credibility of these witnesses and the credibility of Jennifer in particular,
I ought to grant leave to cross-examine Jennifer, Luan and Jaymin. I granted this leave and the further hearing of the Summons was adjourned to 21 June 2016 in order to permit this cross-examination to take place.
The “reasonable suspicion” standard of proof propounded by Counsel for both Jennifer and the State appeared to have been based on commentary[2] to the effect that “An order may be refused if there is reasonable suspicion that the debt sought to be attached does not belong to the judgment debtor but is trust money.” Considerable effort was expended by Counsel making submissions as to the meaning of a “reasonable suspicion”.
[2]Civil Procedure Victoria [I71.09.5]
However, if one goes to the first case referred to in that commentary, Roberts v Death (1881) 8 QBD 319, one does not anywhere find the words “reasonable suspicion”. In that case, Mr Castle owed a judgment debt to Mr Death and Mr Death owed a judgment debt to Mr Roberts. Mr Roberts applied for and was granted a garnishee order requiring Mr Castle to pay the amount of his judgment debt to Mr Roberts. Mr Death held the judgment debt owed to him by Mr Castle as trustee for Mrs Wells. Mr Death and Mr and Mrs Wells filed a summons seeking to set aside the garnishee order and direct that the money be paid instead into Court pending determination of the question of ownership of the debt. Brett LJ, with whom Cotton LJ agreed, held that it was appropriate that where there was reasonable “colour” or “reasonable grounds” for a statement that money was trust money it was appropriate that it be paid into Court. Cotton LJ referred to the existence of “any reasonable ground” and a “prima facie case” leading to an order that the money be brought into Court. Lindley LJ referred to there having been “notice” that it was not Death’s money and that it should be ordered paid into court to “abide the event of an inquiry whether it is trust money or not.” The case does not, therefore, stand for the proposition that a garnishee application ought to be dismissed merely because there is a reasonable suspicion (or “reasonable grounds”) that the money is trust money. Rather, the procedure adopted in that case was that the money should be brought into Court pending determination (on the usual civil standard of proof) whether the money was trust money.
The second case referred to in that commentary is Deutsche Schachtbau-und Tiefbohrgesellschaft mbH v Shell International Petroleum Co Ltd (No1&2) [1990] 1 AC 295. The majority of the House of Lords held that the question to be determined was whether it was inequitable in the circumstances to make the garnishee order absolute. In the facts of that case, this ultimately turned on whether there was a “real risk” that the garnishee would be made to pay the debt a second time. That is not an issue in the present case – the garnishee bank will clearly be discharged from its obligations if it complies with the garnishee order. A subsidiary issue was whether the Court lacked jurisdiction to make a garnishee order absolute if it is established that a debt is held beneficially for another person. Lord Goff (with whom Lord Keith and Lord Brandon agreed) said at p. 351:
“It appears however that the procedure under this rule applies where the garnishee suggests not that the debt is due to a third person, but that the debt is payable to the judgment debtor as trustee. If that was found to be so under the procedure laid down by the rule, or indeed otherwise, the court would be bound to take that matter into account in exercising its discretion under rule 1: no doubt it would normally not make a garnishee order absolute…, but in my opinion it would not be deprived of jurisdiction to make such an order if in the circumstances it was just to do so.” [Emphasis added]
In the third case referred to in the commentary, Plunkett v Barclays Bank Ltd [1936] 2 KB 107, the Court held that a garnishee bank was bound by a garnishee summons even if it knew that the money in the bank account was held on trust. This finding does not support the proposition that a garnishee summons ought to be dismissed on the basis of a reasonable suspicion of a trust alone.
Contrary to the submissions made by both parties at the hearing, these cases establish that the question which I must determine is whether, in the exercise of my discretion, it is inequitable in all the circumstances to make the garnishee order absolute. That discretion is not fettered by any requirement to dismiss the application merely because a “reasonable suspicion” of a trust exists.[3]
[3]See further Rule 71.11, which provides that:
“Where it appears to the Court that any person other than the judgment debtor may be entitled to the debt attached or to a charge or lien upon it, the Court may order that notice of the application be given to that person and then determine the entitlement or give directions for its determination.” [Emphasis added]
It may be that, in some circumstances, a determination that there is a reasonable suspicion of a trust will be sufficient to render it inequitable in all the circumstances that the garnishee order be made absolute - for example where the sum in question is low and permitting cross-examination would be disproportionate to the sum in dispute. In other cases, it will be appropriate that there be a full trial of the question of whether the claimed trust exists and that the standard of balance of probabilities be applied.
In the present case, all parties were agreed at the hearing that the test to be applied was one of reasonable suspicion, rather than balance of probabilities. All parties are now agreed that they want the application determined once and for all now and do not want the application referred for a further hearing or a trial. However, the State wishes to retract its earlier acceptance of the reasonable suspicion test and to contend that the standard of proof which I ought to apply is one of balance of probabilities.
In my view it would not be equitable in the circumstances for the State to retract its earlier agreement as to the test to be applied and to require Jennifer to satisfy a standard of proof higher than that which she believed she had to meet at the hearing. The hearing was conducted on the basis that the test was “reasonable suspicion”. It was conducted without the benefit of interlocutory steps such as pleadings and discovery, and the additional time to prepare, which might have been available had the matter been referred to trial.
However, some emphasis must be placed on the word “reasonable”. A reasonable person would understand that the circumstances of the alleged loan and trust were peculiarly within the knowledge of Jennifer and Jaymin. A reasonable person would expect that Jennifer and Jaymin would put forward any documents, corroborating evidence and explanations that supported their claim and would assume that if such supporting evidence was not put forward it was not available.
Was the bank cheque for $220,000 the repayment of a loan by Luan to Jaymin?
In about November 2012, Jaymin received an inheritance from his late father’s estate of nearly $400,000. On 21 February 2013, $165,000 of this inheritance money was paid to Jennifer’s brother Luan by way of a solicitor’s cheque. Jaymin, Jennifer and Luan claim that this was a loan by Jaymin to Luan to assist in a fruit juice business run through the company J J Food Enterprises Pty Ltd. Luan said that they:
“did not discuss any terms of the loan, except that I acknowledged in my conversation with Jay that day, that as family, I would look after him in terms of repaying the money with interest.”
In mid-January 2014, Jaymin and Jennifer were married. A week later, Jaymin suffered a spinal injury at work and has not worked since. This is claimed to have resulted in significant financial stress for Jaymin and Jennifer (although not so significant as to prevent Jaymin purchasing a brand new jaguar approximately 12 months ago).
On 1 October 2014, Jennifer banked a bank cheque for $220,000 into her CBA Smart Access account. She says she was handed this cheque by her husband, Jaymin, who had that day picked up the cheque from Luan. Luan says that the bank cheque was purchased with funds from an account held by “his”[4] company, Tristar Brands Pty Ltd. Jaymin, Jennifer and Luan gave evidence that this cheque was a repayment of the loan of $165,000, with interest.
[4]Luan insisted throughout his evidence that both J J Food Enterprises Pty Ltd and Tristar Brands Pty Ltd were “his” companies. However the ASIC historical company extracts for these companies showed a number of changes of directorship and shareholding amongst Luan, Jennifer, Jaymin and others which were never adequately explained.
Other than the fact of two cheques, there was no documentary evidence to support this claim nor any explanation proffered for the absence of such evidence. Indeed, Luan admitted that the loan was not shown in the accounts of J J Food Enterprises Pty Ltd or Tristar Brands Pty Ltd and that the interest said to be paid (some $55,000 or 33% over 19 months) was not shown in the company accounts or claimed in any tax return. No explanation was given as to how it came to be that Tristar Brands Pty Ltd was the entity which repaid the loan (rather than Luan personally or J J Food Enterprises Pty Ltd).
However, whilst Jaymin and Luan were at times evasive and unconvincing in their testimony,[5] they were not shaken in their evidence that Jaymin loaned Luan the sum of $165,000 and that the $220,000 was (at least principally)[6] a repayment of this sum.
[5]Particularly in relation to the directorship and shareholding of Tristar Brands Pty Ltd and JJ Food Enterprises Pty Ltd and payments of money from Tristar to Jaymin and Jennifer.
[6]I say principally, because Jennifer and Luan both gave evidence that some part of the $220,000 was paid to help both Jaymin and Jennifer given their changed circumstances.
It does seem on its face extraordinary that a loan of $165,000 would be made with no discussion of terms of repayment, time for repayment or interest rate and no documentary evidence of the loan. However, Jaymin summed up his approach to such matters in his oral evidence: “If you cannot rely on family there is nobody else…”. Jaymin, seemed to me to be a witness who (whilst generally unconvincing, particularly in relation to financial details), on occasion spoke the truth passionately and succinctly. He was clearly a person who would go to great lengths to help family, and it is at least reasonable to suspect that this help might encompass a loan of $165,000 without documentation or discussion of interest rate.
It may be that, with the benefit of discovery and a trial, the State would have been able to point to an alternative hypothesis to explain the movement of money which occurred. But the State could not point to any positive alternative hypothesis at the hearing and it does not want a trial. On the current evidence, it is at least reasonable to suspect that the bank cheque for $220,000 which was paid into Jennifer’s Smart Access account was a repayment of a loan owed to Jaymin.
Was the $220,000 held on trust for Jaymin once paid into Jennifer’s Smart Access Account
On 1 October 2015, $217,000 of the money then in the CBA Smart Access account was transferred into the Netbank Saver Account. Jennifer contended that this $217,000 was what remained of the $220,000 bank cheque and that she held it on trust for Jaymin. Over the ensuing months the amount in the Netbank Saver Account was reduced. As at 24 February 2016, the amount in the Netbank Saver Account was $150,593.49. No issue was taken by the State with tracing the money into the Netbank Saver Account, if a trust was established over that money.
It was accepted that Jennifer bore the onus of establishing that Jaymin intended to create a trust over the $220,000 when he handed her the bank cheque.[7] In Nguyen v Phan,[8] Elliott J said:
“In order to find an express trust was created, it is not necessary for the plaintiffs to prove the parties specifically and formally turned their minds to the fact that a trust was being created; no special or technical language needs to be used; it is sufficient if the intention to create a trust may be ascertained from what the parties actually agreed or said. The intention is imputed when manifest in what is expressly agreed or declared. That intention must be clear from the language used, as objectively understood in the relevant circumstances of the case, including the relationship of the parties. More than once, Gummow J has observed that the precision that might be expected in arms-length commercial transactions is not to be expected in private family dealings.”
[7]Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111.
[8]Nguyen v Phan (No 2) [2015] VSC 634 at [237]
The intention that the Court is concerned with is the intention of Jaymin
(as settlor) at the time of the alleged creation of the trust. Subsequent declarations of intention are generally viewed as inadmissible to prove a prior intention to create a trust and there are only limited circumstances in which subsequent evidence of conduct may be so admitted:[9]
“Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase (in this case before or at the time of the acquisition of the shares by allotment) or so immediately thereafter as to constitute a part of the transaction. If that evidence is insufficient to rebut the presumption the beneficial gift, absolute or subject only to qualifications imposed upon it at the time, is complete and no subsequent changes of mind or dealings with the property inconsistent with the trust by the donor can as between himself and the donees alter the beneficial interest.”[10]
[9]Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365-6; Davies v The National Trustees Executors and Agency Co of Australasia Limited [1912] VLR 397 at 403-4; Herdegen v FCT (1988) 84 ALR 271, 276.9; Wilkins v Wilkins [2007] VSC 100 and cases referred to therein.
[10]Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365-6
In Damberg v Damberg,[11] Heydon JA (with whom Spigleman CJ and Sheller JA agreed) noted that the prohibition on subsequent declarations of intention does not exclude testimony of previous intention in Court proceedings[12]. In that case, Heydon JA also noted that where no objection has been made to the admission into evidence of subsequent conduct, it may provide some support for the existence of a trust.[13]
[11][2001] NSWCA 87
[12][2001] NSWCA 87 at [45],
[13]Damberg v Damberg [2001] NSWCA 87 at [91]
Jaymin asserted in his affidavit evidence that:
“in depositing $220,000 of my money into Jennifer’s CBA Smart Access Account, I never intended to gift the money to her. My intention was that the money would remain under my control.”
Jennifer’s evidence was as follows:
“Jay and I discussed what to do with the money he would receive from Luan. Earlier Jay had discussed with me using his inheritance as a deposit for buying our own home. He now again brought up the possibility of using the money as a deposit on a house, on the basis that it would be his contribution to the purchase price. Jay said that he preferred to have the money deposited into one of my accounts so that he would be less likely to be tempted to use the money for any other purpose than buying the property for us.”
After the cheque for $220,000 was banked, both Jennifer and Jaymin had access to and control over transactions on the Smart Access and Netbank Saver accounts. Jennifer said she could spend up to $1,000 dollars without talking to Jaymin. Jaymin said Jennifer could pay small amounts without his authority. “But if there’s anything more serious than that, then she needs to discuss it – we need to discuss it together”.
No objection was made to the admission of Jaymin’s evidence of his intention in providing the bank cheque to Jennifer for banking into her account. Nor was any objection made to the admission of Jaymin and Jennifer’s evidence as to access and control of the Smart Access and Netbank Saver Accounts. Whilst the probative value of this self-serving evidence is limited, it does provide some support for the claimed trust.
Jaymin was not an impressive witness and his evidence was at times inconsistent, evasive or lacking credibility (particularly in relation to money received from Tristar Brands Pty Ltd, the changes in directorship and shareholding of JJ Food Enterprises Pty Ltd and Tristar Pty Ltd). However, he was unshaken in his testimony that the Netbank Saver money was his money: “If I lose my father’s money, or my money today, then I will be in a lot of trouble, yeah.”…“I made the ultimate decision on that and like I said, if the money wasn’t coming back to me I wouldn’t have paid it”.
I have previously noted that, despite his general lack of credibility as a witness, there were times when Jaymin did appear to passionately speak the truth. His evidence of his reluctant consent to some of “his” money being loaned to Jennifer’s mother, apparently after sustained nagging from his wife, was one of those times. He did not come across as a witness who would have the sophistication to consider inventing evidence of conflict with his wife to support his case. But this evidence implicitly demonstrated his deeply held and ongoing belief that this money belonged to him and it was his decision as to whether it should be loaned to Jennifer’s mother.
Other evidence as to the conduct of Jennifer and Jaymin in relation to the Netbank Saver money was more equivocal. It was said that the money was paid into Jennifer’s account so that Jaymin would be less tempted to use it. This explanation was not credible, given Jaymin apparently had complete access to Jennifer’s accounts. Even if there is an element of truth to it, I doubt it is the whole explanation for the reason for depositing the money into Jennifer’s account.
The evidence in relation to the need to “discuss…serious” expenditures, or expenditures over $1,000, might also be consistent with the normal discussions one would expect between husband and wife who pooled their financial resources and were equally concerned with the family’s future financial security.
There was also no corroborating documentary evidence of the trust tendered by Jennifer. It is reasonable to assume no such evidence exists.
Nevertheless, in the absence of any direct evidence to the contrary, the uncontradicted evidence of Jaymin as to his intentions provides sufficient basis to found a reasonable suspicion that such a trust existed.
Accordingly, the garnishee order should not be made absolute with respect to the NetBank Saver money.
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I certify that these 14 pages are a true copy of the reasons for decision of Judicial Registrar Tran delivered on 15 August 2016.
Dated: 15 August 2016
Simon Bobko
Associate to Judicial Registrar Tran
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