Zeng v Hu & Anor (Civil Dispute) - [2023] ACAT 76

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ZENG v HU & ANOR (Civil Dispute) [2023] ACAT 76

XD 932/2022
Catchwords: CIVIL DISPUTE – debt application – whether respondent incurred a debt or acted as an agent to facilitate a currency exchange – whether third party liable to repay the debt or indemnify the respondent – whether respondent was pressured into describing the agreement as a debt – whether translation fees can be recovered.
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 21

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Rules s 114

Cases cited:Brar v Singh Bal [2018] ACAT 66
Briginshaw v Briginshaw (1938) 60 CLR 336
Chen v State of New South Wales (No 2) [2016] NSWCA 292

CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81

Tribunal:Senior Member D Stewart

Date of Orders:  5 December 2023
Date of Reasons for Decision:      5 December 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 932/2022

BETWEEN:

KELIANG ZENG
Applicant

AND:

KEQING HU
Respondent

HONGLI ZHANG
Third Party

TRIBUNAL:Senior Member D Stewart

DATE:5 December 2023

ORDER

The Tribunal orders that:

Within 14 days of the date of this order, the respondent pay the applicant:
(a)the sum of $20,000 plus interest from 16 September 2022 to the date of these orders, as calculated in accordance with the ACT Civil and Administrative Tribunal Procedures Rules 2020 and the Court Procedures Rules 2006 schedule 2, part 2.1, totalling $1,689.78; and
(b)the applicant’s filing fee of $612.
……….…………

Senior Member D Stewart

REASONS FOR DECISION

Introduction

Mr Zeng (the applicant) claims that he loaned Ms Hu (the respondent) $20,000 on condition that the money be repaid three days later. As the respondent has not repaid the loan, the applicant seeks orders for payment of the $20,000 along with interest and filing and translation fees.
The respondent denies that she was given the money as a loan. She claims that the applicant asked her to exchange his Australian Dollars (AUD) for Chinese Renminbi (RMB) and that he later pressured her to sign a document stating that the money was a loan. The respondent was acting on behalf of the applicant when she gave the applicant $20,000, along with $15,000 of her own money, to a person known as Zoe to be exchanged for RMB. Zoe failed to transfer any money to the respondent. The respondent claims that the applicant knows Zoe, failed to take reasonable steps in assisting the applicant in securing a return of the money from Zoe, and may have been acting with her to defraud the respondent.
Zoe, identified in police records as Ms Zhang, has been joined to these proceedings as a third party but has not filed any material and did not appear at the hearing. The respondent has sought orders that the amount of $20,000 be paid to the applicant by Ms Zhang. Due to the way the evidence was presented and the uncertainty that continues to surround Ms Zhang’s identity and role in these proceedings, I will refer to ‘Zoe’ when describing the evidence of the parties and Ms Zhang, when discussing the third party joined in these proceedings.
Many of the issues in this matter involve contested questions of fact. There are inconsistent versions of what was said and done. Neither party was able to present a comprehensive version of what happened. There were various matters raised by the parties that were not the subject of direct evidence at the hearing, exacerbated by the absence of Zoe as one of the participants. My conclusions, therefore, rest on findings of fact based on the balance of probabilities and the nature of the allegations raised.
I have found that the respondent does owe the applicant the amount alleged. While the evidence supports the fact that the money provided by the applicant to the respondent was then given to Ms Zhang, that is not sufficient to establish an obligation on Ms Zhang to repay the loan or otherwise indemnify the applicant. Any further action that the respondent may be able to take against Ms Zhang is properly the subject of separate proceedings.

Procedural background

The applicant lodged an application to recover a debt on 13 October 2022. The respondent lodged her response on 9 January 2023. On 10 February 2023, orders were made for the applicant to provide contact details for Zoe to be used for the purposes of these proceedings. A subpoena was issued on 17 May 2023, requesting material from the Australian Federal Police relevant to this matter. Orders were made for a redacted version of that material to be made available to the respondent on 20 June 2023.
The respondent’s application to lodge and issue a Third Party Notice to the person known as Zoe (and identified in subpoenaed material as Ms Zhang) was granted on 21 June 2023. The Third Party Notice sought that Ms Zhang repay $15,000 the respondent gave to her on 10 September 2023 and indemnify the respondent against all claims made by the applicant in these proceedings. A copy of the Third Party Notice was served by the Registry on 22 June 2023, by text message sent to a phone number identified in subpoenaed material as having been provided by Ms Zhang to the police on 10 September 2022.
The hearing in this matter was held on 3 July 2023. Both parties were represented by solicitors able to speak Mandarin. A Mandarin interpreter was also available. Both the applicant and respondent provided oral evidence at the hearing, primarily through English but with occasional assistance of the interpreter.

Facts

Applicant's evidence

The applicant gave his evidence in chief at the hearing rather than provide a witness statement. Some of that evidence was presented through the assistance of an interpreter. The applicant had the tendency to describe his impressions of why events occurred and the effects of his actions rather than the events in question. He sometimes struggled to recall events or describe the events in detail.
The applicant gave evidence that he had known the respondent for approximately six months before the incidents in question. He had been introduced to the respondent by Ms Wang, who the applicant described in cross-examination as a very close friend, and who had worked for the respondent.
On 8 September 2022, the applicant drove to Sydney to exchange RMB for AUD in cash with a person called ‘Joy’. Joy had been recommended to the applicant by the respondent. The applicant's evidence was that he needed AUD for a deposit on a property he had to pay by the 17 September 2022. The applicant initially suggested that he had collected two or three thousand dollars of his own money from Joy, but this was later corrected to be between AUD$20,000 and AUD$30,000. The respondent asked the applicant to also collect AUD$20,000 in cash from Joy for her and bring it to Canberra.
On the morning of the 10 September 2022, the applicant received two text messages from the respondent asking him to pick up her dog from the airport. The applicant responded to these texts at approximately midday, replying that he could be a back-up if needed. During the course of this conversation, the respondent asked if the applicant had any money, to which the applicant replied he had $20,000. Later that day the respondent called again and asked if she could borrow that money from the applicant. The applicant agreed and they arranged to meet later that day behind the Tesla dealership in Canberra.
At approximately 4:30pm that afternoon, the applicant met the respondent and gave her AUD$20,000. He asked the respondent to sign a loan agreement, but she refused, saying that she wanted to count the money first and that she didn't have a pen or paper. Instead, the respondent offered to transfer the equivalent amount in RMB to the applicant's Chinese bank account as security. The respondent indicated that she would get the money next week to be able to pay back the applicant.
The respondent then left to count the money. She texted at 4:54pm to ask for the applicant’s bank account details and how much. He responded with his bank account details and the following messages:
9.14
Can I exchange back with you next week when your Australian currency are deposited into the account.
The respondent responded with an okay emoji, to which the applicant responded with a “fingers crossed”. The respondent then sent a text saying “your phone canot be reached. Transfering.”
The applicant could not recall the meaning of “9.14”, but suggested that it probably referred to RMB91,400, being slightly less than the market rate for AUD$20,000 at the time.
The applicant had left to meet his Air BnB guest in Belconnen at 5:00pm. When he returned to the city centre at approx 6:30pm he saw the respondent and her friend talking to two people in a parked car, including one person who he recognised as Zoe. It appeared that there had been some misunderstanding between the respondent and Zoe. Although he could not hear everything that was being said, Zoe and the respondent seemed to be discussing going to the police station, so he offered to drive the respondent.
At 7:05pm the respondent sent a text message to the applicant saying, “Still owe you 20,000 Australian Dollars”. The respondent gave evidence that she sent this message to the applicant while next to him in his car.
The applicant had to park some distance from the police station at the Australian National University (ANU). The respondent did not accompany the applicant to the police station, saying she had to do something else. After arriving at the police station, the applicant phoned the respondent to ask where she was. She replied she was attempting to find and photograph Zoe’s car.
The respondent arrived at the police station some time shortly after 8:00pm, having been joined by her friend, and talked with the police officer on duty.
Later at approx 11:00pm, upon leaving the police station, the applicant asked for a loan agreement from the respondent. The respondent’s friend provided some cardboard from a small box and looked up appropriate wording on her phone. The respondent then wrote out the following wording and imprinted a fingerprint and signed:
I, Keqing HU, owe Keliang ZENG AUD $20,000 in cash as of 10 Spetember 2022 and will be paid back before 13 September 2022 by mutual agreement. This IOU is hereby written.
The respondent and her friend asked the applicant to join them for dinner, but he declined. The next day the respondent called the applicant to ask him to transport her and her dog.
On 13 September 2022, the applicant texted and then called the respondent asking about repayment of his money. The respondent replied by asking him to come to the police station.
On the way to the police station the applicant received a phone call from an unknown male caller. The caller started threatening the applicant. A friend of the applicant who was in the car with him made two recordings (translated from Chinese):
As for Zoe, I suggest you talk to her. Let her know that if they want to escalate things, I can pay them a visit. However, I want you to handle this matter and I don't want to get involved. I don't have time to get involved in your affairs, these childish antics of yours. But i didn't say anything about borrowing money. I won't borrow money from anyone. This is our gang's money. You guys have been playing with me here, and I don't have time to play with you.
I didn't say anything about taking any responsibility for this matter. Firstly this money belongs to the gang, and you're trying to deceive me. No one can outsmart me, whether its you, Nina, or Zoe. The three of you have been conning me for over thirty thousand, and its meaningless. The money came from our side, but I don't want to know the details. It's pointless for you to manipulate things with me. [Applicant is speaking: okay, so the main problem lies in] And I suggest - I haven't discussed this matter with Zoe because she's a woman, and we also adhere to ethical principles in our organization. We wouldn't threaten a woman. That's why, as men, I'm making it clear. Stop manipulating this money continuously; its meaningless and manipulating tens of thousands of Australian dollars makes me look bad.
The applicant gave evidence that the parts of the conversation which were not recorded included a number of threats to the applicant's safety. During cross-examination, the applicant suggested that he had said that he lent the $20,000 to the respondent, but the male voice had responded that all the money belongs to him, so do not bother asking for his money back from the respondent.[1]
[1] Transcript of proceedings dated 3 July 2023, page 78
After arriving at the police station, the applicant reported the phone call to the police. The respondent was not there at the time.
Later that evening, the applicant and respondent had the following text exchange:
[Applicant]: Excuse me madam, what's going on here? I was trying to help but why you found someone to threaten me? You have kept dragging me around since that day, you promised to transfer RMB funds to me but you didn't, and you promised to transfer AUD funds but you also failed to do so, even though I confirmed multiple times that you could transfer AUD funds to me today. I urgently need to use the funds, but since you needed it very urgently, so I was kind enough to lend it to you for considering you as a friend. I was intending to give you a 3-day turnaround, nut now you're creating a drama like this. The police have taken up this matter between you and the other party, although I am friends with you all, but there is only this much I can do. I have done all I should do. I have also offered whatever help I could offer, the rest part you'll need the police to resolve. I cannot be involved. What do you think about our side?
[Respondent]: They all suspect that you and Zoe are working together to scam me, the police have said to me NOT to give anyone any more money. No one was asked by me to threaten you, I have reported to the police station today and I have Restriction Orders. I will continue to report to the police tomorrow. Zoe said half and half and you know what to do. the police have taken evidence and are waiting for the results. You said you'd guarantee she wouldn't leave, and no in fact she's gone.
[Applicant]: How could I possibly scam you if I gave you the money? I received a threatening phone call today. The Police have taken up your matter and the rest will be dealt by them. If she is found guilty, she cannot walk away from it. I don't have any superior power than the Police so won't get involved in the matter between you two. Now that I lent you money but you failed to return it, do I still need to report that with you to the Police Station?
[Respondent]: You know her and she promised to pay half, so you could ask her for funds back. You said she wouldn't leave but it turns out she still left. Or do you need me to call the Police and ask them to approach you directly?
[Applicant]: I know her and I also know you. I brought you money (if I want to scam you I would have brought you $20,000? And lend you $20,000 later), I've dealt with her too, and its all been fine until then, I'm sure you wouldn't want to ruin your reputation over a few thousand dollars. I had no knowledge of what she promised you or what you promised her. I was trying to help you guys chase the scammer. It was useless for me to approach her and she wouldn't give the money to me, there was no third party involved between you and me.
On cross-examination, the applicant said he had borrowed the $20,000 he loaned to the respondent from Ms Wang, who he described as his very close friend. The applicant did not give evidence on whether there was any relationship between the money the applicant gave the respondent and the money the applicant had exchanged with Joy in Sydney two days earlier.
The applicant stated that he was not aware of what the respondent and Zoe were arguing about until they were driving to park at the ANU. Even then, though there was a discussion about Zoe not exchanging money, the applicant claimed he was unsure whether the dispute with Zoe involved the money he had given to the respondent a few hours earlier. Later, he offered to help Zoe by putting her in contact with his friend who might be able to provide some advice. He then heard Zoe talking to someone who he believed was a Chinese police officer.
It was only after 13 September 2022, when the respondent refused to pay back the money because it had been taken by Zoe, that the applicant realised his money was involved. He talked to Zoe, and she said that whatever had happened was between her and the respondent — it had nothing to do with him. Zoe was willing to sit down with the respondent to talk it through.
The applicant had borrowed Zoe’s car on 16 September 2022. He texted the respondent saying:
Madam, how do you want to deal with this matter now?
I trusted you at the time so I lent you the money first. You told me you needed the cash urgently and I gave it to you without saying a word after triple confirming that you really needed it urgently. I also made it clear that I also needed the money urgently and I could only lend it to you until the 13th of September at the most, you also assured me that there was no problem (until the evening of the 10th you assured me that you would return it to me on the 13th), but to my surprise you used it to exchange money with other people to make money, from which I did not get any profit, and now you asked me to solve the problem when it occured.
I have also asked Zoe and she is willing to have an open dialogue with you, her car is with me now so she can't leave, but I have no reason to withhold her asset (which is due back next week.) As your mutual friend I can call you out for mediation but the dispute between you two needs to be dealt and resolved by yourselves. I can help contact the Police and they have already taken the matter, if you can't mediate privately then it should be handed over to the Police, they have the power to help you recover it, I have also asked the police, they have kept tracking and investigating it, so it doesn't need any more actions from me.
Now I don't want third parties to get involved into the issues between you and me, after all, my funds are given to you, thinking that you may not have the funds and need time to deal with it now, I have borrowed money urgently from friends to fill the gap in teh past two days, and I can't keep owing money to my friends without paying them back, by next week if we can't settle between us I will have to hand over to the Police and lawyers to deal with it, and then the extra costs will have to be borne by your side.
I hope I can still trust you to try to settle this properly.
The respondent replied, “I'll report to the Police. Zoe said “half”, you should go ask her.”
At the time of the text, the applicant had borrowed Zoe’s car while his was in the garage. The applicant admitted that he had known Zoe for over a year. They both used to use the same study room in the apartment building the applicant lives in. When he was asked to provide contact details for Zoe, he was unaware of where she lived. He only found out that Zoe lived in the same building after he saw the police report where she provided her address . There was no apartment or room number listed on the police report, however. He has only seen Zoe’s car in the public car parking spaces. He had borrowed it a few times before but did not remember the registration number. He recalled continuing to see Zoe from time to time up until January this year.
Respondent's evidence
The respondent provides a different account of the events of 10 September 2022. In her witness statement, the respondent claims that the applicant called her on the morning of 10 September 2022, suggesting that he needed to change AUD into RMB for his friend. The respondent replied that she was also wanting to change AUD to RMB, in her case for a present for her maternal grandmother.

At around midday on that day, the respondent was contacted on WeChat by someone whose profile name was ‘Zoe’ who proposed an exchange of RMB for AUD. The respondent states that it is not unusual for unsolicited contacts to be made in this way. The respondent contacted the applicant to tell him that “There’s someone who can help us swap Australian dollars for RMB, do you want to meet with them with me?”. The applicant agreed.
When the applicant and the respondent met at the Tesla dealership at approximately 4:30pm, the respondent said to the applicant “I will facilitate the transfer of funds between you and Zoe, I will take your $20,000, give it to Zoe and upon her transfer of RMB to my Chinese bank account, I will then transfer you your share.”
When Zoe arrived, the respondent provided her with $35,000 in cash. Once that was counted, Zoe said to the respondent “I've transferred you the RMB already”. The respondent replied, “I have not received any funds”. The applicant then suggested that they all go to the police station.
At the police station, the applicant, respondent and Zoe talked to the police officer together. Zoe said that she had already transferred RMB to the respondent. She showed the respondent the bank account details to which she had transferred the funds, but this was not the respondent's bank account. When the respondent showed Zoe the WeChat record of her conversation with Zoe, Zoe said, “This is not me, we have both been tricked. We should each bear half of the losses, you should lose $17,500 and I should lose $17,500.”
After Zoe and the applicant made a phone call outside the police station, the applicant said to the respondent that “Zoe’s reported this to the Chinese police. She won't run away or disappear.”
When they left the police station, the applicant said to the respondent “Sign this first otherwise I'm not letting you leave.” The applicant ripped a piece of paper and told the respondent what to write and to put her fingerprint on it. The applicant followed the instructions, worried about the time of night and not being able to leave unless she signed something.
The next day, the respondent told her friend Joy what had happened. Her friend advised her that the Chinese account might be frozen, and the money was returned to Zoe in a few months.
On 13 September 2022, the respondent attended the ACT police station and reported, that the applicant was demanding the $20,000 he paid by her. The police advised that the respondent may have been subject to fraud by the applicant and Zoe.
During the hearing, the respondent gave evidence that on the afternoon of 10 September 2022, after the applicant had given her $20,000, she had left to meet Zoe around the other side of the Tesla dealership. The respondent was not sure if the applicant also left or was waiting for her to return. The applicant found her later after she had provided money to Zoe. The respondent recalls that the applicant offered to speak to Zoe given that he knew her and would find out what is going on. After speaking to Zoe, the applicant suggested they all go to the police station to try to resolve this situation.
The respondent had been unable to find Zoe’s car later that night while walking from where the applicant had parked at the ANU and the police station. The respondent also believed that the applicant had heard her discussion with Zoe where Zoe suggested they each bear half of the losses. The respondent had replied to Zoe’s offer by saying, “I don’t need you pay me half, you can give that half money to [the applicant].”
In response to the applicant’s insistence that the respondent sign a document of some sort, the respondent's friend had found a template on the internet, showed it to the applicant, and the applicant had said, “Yes, it's ok.”
During cross-examination, the respondent suggested that she only found out the person she was exchanging money with was called “Zoe” when the applicant had said that was her name. The earlier WeChat contact was just with a phone number. When they met, the respondent had provided Zoe with both her and the respondent’s bank account details. However, during re-examination, the respondent was unable to recollect what she had said to the applicant about her intention to facilitate the transfer of funds between the applicant and Zoe. She was unsure whether she knew Zoe’s name from the WeChat contact.
The respondent also agreed during cross-examination with the proposition that the applicant did not know what had happened between the respondent and Zoe when he joined them on the afternoon of the 10 September 2023, and he only found out after he had talked to them both.
The respondent gave evidence that she understood that Joy could only change from RMB to AUD, and not the other way around, so that if the applicant wanted RMB he wouldn’t have been able to get that from Joy.
When the respondent had sent a text message to the applicant saying that she owed him $20,000, the applicant was sitting beside her having asked her to send the message. She felt pressured to send the message, concerned the applicant knew where she lived.
During re-examination, the respondent suggested that Zoe had initially contacted her to say that she could exchange AUD for RMB, but only if the amount was close to $40,000. It was only after the respondent had talked to the applicant that afternoon that she was able to put his $20,000 together with her $15,000 to have enough for Zoe to agree to transfer the funds.

Subpoenaed material

The incident report obtained from the AFP describes the respondent as the complainant and possible victim of fraud. The respondent is reported as messaging someone on WeChat asking to convert $35,000 into Yen. She was told to go to a location and give it to a person who would then transfer the yen into the respondent’s Chinese account. The respondent did as instructed but is yet to receive the money.
Ms Zhang is described as the second party. An address and mobile number are provided. The parties in this matter agree the address is not complete as it refers to a large apartment building without listing the apartment number. Ms Zhang reported that she messaged someone she did not know on WeChat to have Yen converted to AUD. The person told her to transfer Yen from her Chinese bank account to their Chinese bank account and someone would meet me in person to give her the AUD equivalent of $35,000. She attended the location with her friend, was given the money by the respondent, and counted it.
A “Party 3” is also listed in the incident report as unknown with a phone number provided. Ms Zhang is described as having messaged Party 3 after transferring him the equivalent of AUD $35,000. The respondent then provided Ms Zhang with $35,000, completing the transaction from Ms Zhang’s perspective. However, the respondent stated that the third party did not transfer any Yen to her Chinese account. Ms Zhang is reported to have claimed the respondent had received the transfer, but this was not able to be verified by the police. The report states that both the respondent and Ms Zhang were in contact with Chinese police.
The report concludes by confirming that Ms Zhang had transferred the equivalent of $35,000 from one Chinese bank account to another, but as two of the three transactions were completed through WeChat via Chinese bank transfers, they were unable to substantiate that the respondent was a victim.
The subpoenaed material also reports that the respondent attended the city police station on 13 September 2023, to report that the applicant was demanding the return of $20,000 that had been stolen during the fraud incident and that she feared for her safety. The applicant and Ms Wang are reported to have attended the police station at 5:00pm to report that the respondent had not repaid money owed to the applicant and that the applicant and Ms Wang feared for their safety.
Both parties referred to elements of the subpoenaed material in their evidence and during cross-examination. The reports were referenced as verification of their claims to have reported various incidents to the police. Neither party suggested that the reports should be taken as evidence of the facts claimed. The applicants pointed to the absence of any reference to the applicant in the initial report of the incident as an indication that the respondent had claimed the $35,000 as her money. The respondents claimed that the police had told her that the applicant and Zoe may have been working together and to not to give the applicant any money, but the applicant pointed to the absence of this suggestion in the subpoenaed material.

Submissions

Applicant's submissions

Following the hearing, both parties submitted written submissions. The applicant's submissions included various examples of what were characterised as differences between the applicant's and the respondent's evidence. These included versions of exchanges between the applicant and the respondent which were different from those described by the applicant in his evidence at the hearing. It is not clear whether the differences are intended to be matters of translation or detail or additions added on the basis of further reflection. In any event, I have not accepted these descriptions of the exchanges as evidence in these proceedings.
The applicant submits that what is termed the ‘deed of arrangement’ (deed) signed by the respondent on 10 September 2022 sets out the agreement between the parties. That deed acknowledges in writing the debt owed by the respondent to the applicant. That debt remains unpaid.
The applicant denies that there is any evidence to suggest that the applicant applied pressure to induce the respondent to enter the deed. Even if there was duress, the appropriate remedy in such a case is recission of the parties to their original states. In this case this would require the respondent return the $20,000 provided to her by the applicant. Similarly, there is no evidence to support any allegation that the applicant worked with Zoe to defraud the respondent.
The respondent's claim that she agreed to transfer AUD into RMB for the applicant is inconsistent with the deed and text sent by the respondent at 7:05 on the 10 September 2023. It is also inconsistent with other texts sent between the applicant and the respondent, as well as the applicant's stated need for AUD as part of a deposit on a property. There are also several inconsistencies in the respondent's witness statement and oral evidence that undermines the credibility of the respondent's position.
To the extent that the deed does not reflect the differing intentions of the parties when they entered into the agreement, then it either corrected that intention or was entered into by mistake. To the extent the respondent was acting as a fiduciary in facilitating an exchange between the applicant and Zoe, the respondent has breached her fiduciary duties. In any case, the applicant submitted, the money should be restored to the applicant.
The applicant also denies that he were under any obligation to take further steps to recover money from Zoe or any other third party. The applicant had a choice whether to accept any repudiation of the agreement or to affirm the deed.
Respondent’s submissions
The respondent submitted that the agreement between the applicant and herself was to convert AUD$20,000 into RMB through the use of a third party. It was the third party who was to pay the applicant the equivalent of AUD$20,000 in RMB. The respondent had done everything she could to recover the money, including insisting the third party attend the police station and taking steps to identify the third party.
The respondent submits that there are several elements of the applicant's version of events that are inconsistent or not credible, including his failure to disclose the circumstances in which he knew Zoe.
The respondent also submitted that the applicant had not established that there was a debt between the applicant and the respondent. The recording had referenced the applicant owing the male person money; the condition of security was not mentioned in either the deed or text which were relied upon by the applicant as establishing that the money was a loan; and the text between the parties at 4:54pm, after the applicant had given the money to the respondent, was the first reference to wanting to have the money exchanged back into AUD.
While there may not be direct evidence of collusion between the third party and the applicant, there is sufficient evidence to give rise to serious concerns about the applicant's credibility.
The respondent claimed that she acted as the applicant's agent when asking the third party to exchange the applicant's AUD$20,000 for RMB. The respondent, on the applicant's behalf, directed that the equivalent of AUD$20,000 in RMB be paid to the Applicant's Chinese bank account. It is not known whether funds were actually transferred.
The respondent also submitted, in the event that it is not established that the third party owes a debt to the applicant, that the tribunal could make an order in equity to place each party in the position if they had not engaged in the transactions on 10 September 2022. The applicant’s submissions that it would be difficult for the applicant to enforce orders against the third party, where the applicant had admitted to knowing Zoe and having been able to contact Zoe and borrow her car, should give rise to further concerns about his credibility.
As a further alternative, the respondent submitted that in light of the conflicting evidence of the parties and lack of proper documentation, the Tribunal could not be satisfied on the balance of probabilities of either parties’ version of events. In that case, the Tribunal should elect to dismiss both parties’ claims.

Jurisdictional limits

At the commencement of the hearing the solicitor for the respondent acknowledged that, in the absence of the applicant's consent, jurisdictional limitations prevented her client from also claiming $15,000 of her own money that she provided to Zoe on the 10 September 2023. In those circumstances, the respondent was only seeking orders that deal with the $20,000 claimed by the applicant and that the respondent would pursue any further action against the third party in a subsequent application.
I note that section 21 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) allows a civil dispute application of more than $25,000 to be heard by the Tribunal where:
(b) the parties agree to the application being decided by the tribunal; and
(c) the tribunal is satisfied that the parties understand that the amount of the claim in excess of $25 000 is not being abandoned.
Where the third party has been joined as a third party, it is a matter of whether all the parties’ consent to any increase in the jurisdictional limit. In this case, under the terms of the order made on 21 June 2023, the Third Party Notice was served on Ms Zhang by text message. Under section 114 of the ACT Civil and Administrative Tribunal Rules, a third party is joined, relevantly, by lodging the approved form within certain time limits or as ordered. Once the Third Party Notice has been served, a third party is a party to the proceeding for the purpose of the Act and these rules. As a party to this proceeding, Ms Zhang would also have to agree to extend the jurisdictional limit of the tribunal.
In any event, the respondent agreed to limit her claim to the $20,000 provided to her by the applicant. She does not press any claim to the additional $15,000 she provided to Zoe. I take the respondent's claim to be limited to seeking orders against Ms Zhang for any liability Ms Zhang has to the applicant or so as to indemnify the respondent against the claims made by the applicant. There is no suggestion that the respondent seeks to independently claim against the third party or to limit any claim she may have against Ms Zhang in this proceeding to come within the jurisdictional limits of the tribunal.

Consideration

The relevant standard of proof

This is a civil matter to be determined on the balance of probabilities. However, “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.”[2]
[2] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2]
As set out in Briginshaw v Briginshaw (1938) 60 CLR 336:
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.[3]
[3] Briginshaw v Briginshaw (1938) 60 CLR 336, 362
These principles present difficulties for any allegation that the respondent might make that the applicant and Ms Zhang acted together in some way to defraud the respondent. In her written submissions provided after the conclusion of the hearing, the respondent seemed to resile from this allegation and limit her claim to the applicant's conduct in relation to Ms Zhang going to his credibility.
The respondent concedes that there is no direct evidence which suggests actual collusion between Zoe and the applicant to defraud the respondent.[4] However, the respondent points to the fact that the applicant indicated he knew Zoe after he encountered the respondent and Zoe at the Tesla dealership. The applicant and Zoe talked together while at the police station. A week later the applicant emailed to say that he had Zoe’s car but had no basis to not return it. Despite requests from the respondent, the applicant was only able to provide a WeChat number for Zoe and did not indicate that he knew her from attending a study room in his apartment building. The applicant in cross-examination admitted that he had seen Zoe since the incidents in question, with the latest being in January this year. However, it was not until police records were subpoenaed that the respondent learnt that Ms Zhang resided in the same apartment building as the applicant.
[4] Respondent’s written submissions at [10]
The evidence available is not sufficient for me to be satisfied that the applicant and Ms Zhang have acted together to attempt to defraud the respondent, either by collaborating prior to providing the respondent with the $20,000 in issue in these proceedings or subsequently. The evidence is also not sufficient for me to be satisfied that the applicant knew that Ms Zhang resided in his apartment building, knows any further details of her address, or has otherwise withheld information from the respondent that may have affected her being able to recover money owed to her by Ms Zhang.
The respondent pointed to Brar v Singh Bal [2018] ACAT 66 (Brar) as an example of where the Tribunal was confronted with conflicting claims as to the existence of a debt. The Tribunal in that case held:
I must bring this matter back to simple principle that this is a civil application, brought by the applicant against the respondent. As with all civil matters, the onus of proof lies on the applicant, and the standard of proof is the balance of probabilities. To find for the applicant, I must be actually persuaded that she loaned the money to the applicant, that he was indebted to her as a consequence, that he was required to repay the money and that he has not done so as required. In light of the conflicting evidence of the parties and their witnesses, and the lack of basic documentation, I simply cannot be so persuaded.[5]
[5] Brar v Singh Bal [2018] ACAT 66 at [45] (citations omitted)
There are significant differences between this matter and the facts in Brar. Here the amount and fact of indebtedness was set out in at least two documents. There is no dispute about the amount and that the applicant provided that amount to the respondent. Any uncertainty comes from the claim that the documentation should be discounted due to the respondent's version of the agreement between the parties. Brar involved evidence from each party which was completely contradictory, and evidence which may have supported one or other party was not provided to the Tribunal.

As in Brar, however, neither version of events in this matter is entirely convincing. Brar serves as a reminder that the question before the Tribunal in cases such as this is not which of two versions of events is to be preferred, but whether the applicant has established the elements of their action so as to be entitled to the orders sought.
Credibility of the applicant's version of events
There were several aspects of the applicant's evidence that were unclear and undermined the credibility of his version of events. I note that, particularly given the difficulties with language and involvement of the translator, that I placed no weight on the applicant's demeaner while giving evidence. I looked instead to the consistency, coherence and reasonableness of the version of events he presents, including in the context of the documentary evidence and evidence uncontested by the respondent.
The applicant gave evidence that he had collected over $20,000 from Joy in Sydney on the 8 September 2022. However, the $20,000 that he gave to the respondent on the 10 September 2022 was borrowed from a friend. The need for the money to be repaid by the respondent within three days was in order to put a deposit on a property. Despite being asked in cross-examination, the applicant did not make clear whether he had borrowed money from his friend in RMB intending to use it to pay the deposit which was converted into Australian dollars by Joy in Sydney and then given to the respondent, or alternatively that he had borrowed additional money to provide to the respondent.
It was also not clear on the evidence provided whether, despite the impending deadline to pay the deposit faced by the applicant, the requirement to repay the money within three days was agreed to before providing the money. The text message from the applicant to the respondent at 4:54pm, in which the applicant provided his bank account details so the respondent could deposit what he says was security for the loan, asks if he can exchange the RMB back next week when the respondent's Australian currency is deposited into the account. This text suggests that the applicant thought the respondent would have Australian dollars available to her in the next week, but they had not agreed that the respondent would pay back the applicant in that timeframe.
Similarly, responding with a fingers-crossed emoji, while by no means unambiguous, suggests that there was an element of chance in either obtaining the exchange rate of 9.14 requested by the applicant, or the respondent achieving her objective in borrowing the money from the applicant. However, the applicant denied knowing, at least at that point, what purpose the respondent had for borrowing money from him, suggesting it might have been to buy a car. It was only later, in his text to the respondent on 15 September 2022, that he refers to knowing that the applicant was going to use the $20,000 he had given to her to make a profit on exchange.
The applicant also denied knowing what the respondent and Zoe were discussing when he returned to the Tesla dealership on the afternoon of 10 September 2022, and remaining unsure for some days whether the money he had provided to the respondent was caught up in the dispute with Zoe. It was not until a few days later on 13 September 2023 when he spoke to the respondent that he claims he was told that his money had been given to Zoe. The respondent, in her submissions, suggests that this is implausible given he was present during part at least of the conversation between the respondent and Zoe before and after going to the police station on 10 September 2023.
The respondent also alleged that the conduct of the applicant in not taking reasonable steps to obtain and pass on Zoe’s contact details or assist in securing return of the money from Zoe gives rise to concerns over his credibility. This included a failure to disclose, after repeated requests from the respondent and ribunal order, that the applicant knew Zoe lived in the same apartment complex as him. However, I accept the applicant’s evidence that while he knew Zoe having met her in study rooms within his apartment complex, he did not know whether she lived in that same apartment building or neighbouring buildings. He also did not know and reasonably had no pressing reason to ask for her apartment number or contact details other than the WeChat details he had provided to the respondent.
In the absence of sufficient evidence to establish that the applicant and Zoe were colluding to defraud the respondent, I also do not find that the applicant's conduct suggests that he was being dishonest with the respondent or was inconsistent with the applicant’s version of the debt he believes he is owed by the respondent. The conduct of the applicant in his admitted dealings with Ms Zhang does not, in my view, provide a basis to question the credibility of the applicant for the purpose of these proceedings.
Credibility of the respondent’s version of events.
There were also several aspects of the evidence that were unclear and undermined the credibility of the respondent's version of events.
In her witness statement, the respondent claims that she wanted to exchange AUD into RMB for a present for her maternal grandmother. Two days earlier, the respondent had asked the respondent to bring AUD$20,000 from Sydney from her friend Joy. She was “changing money with my friend for RMB”[6]. AUD$15,000 of that money was provided by the respondent to Zoe. The respondent doesn't suggest why she wanted to change AUD$15,000 back into RMB as little as two days after changing RMB to AUD. There is also no evidence as to why the respondent offered to conduct the exchange with Zoe rather than pass on Zoe’s details to the applicant.
[6] Witness written statement dated 26 June 2023 at [20]
There was no direct evidence of what information if any the respondent provided to the person she thought was Zoe. In her witness statement, the respondent states that someone with the profile name of Zoe added the respondent on WeChat and proposed an exchange of RMB for AUD. At the hearing, the respondent was unclear whether she knew the person was named Zoe based on the initial WeChat contact or she only learnt her name afterwards. Similarly, it is not clear whether the Respondent was using the same WeChat account details that were later provided by the applicant for Zoe. Other than the respondent’s statement that Zoe had agreed to exchange funds provided it was at least AUD$35,000, there was no direct evidence of what had been communicated with Zoe, including what account details or other information was provided to Zoe prior to the meeting with her on 10 September 2022.
I accept the respondent’s submission that no adverse inference should be drawn against the respondent for not providing evidence that might have been provided by Zoe, given Ms Zhang was joined but chose not to participate in the proceedings. But while I do not place significant weight on the fact of the respondent’s failure to provide evidence which could have supported important elements of her version of events, the remaining gaps lessen the respondent’s credibility.
The respondent also did not suggest why, if on her version events the applicant had provided AUD for the sole purpose of having them exchanged to RMB, the exchange rate and bank account details for the exchange was only included in a text over twenty minutes after the money had been provided.
There were also some elements of the respondents witness statement that were inconsistent with the evidence presented at the hearing. For example, the respondent’s statement suggests that the applicant was with her when she first met Zoe, and that they all arrived at the police station together. While I accept that these may have been questions of detail rather than necessarily inconsistencies, they suggested that the respondent’s recollection of the events had shifted slightly over time.
The respondent gave evidence that she was concerned about going to the police station without Zoe, yet she agreed to them both going to the police station separately without obtaining any contact details or taking a photo of Zoe’s car. Similarly, while at the police station the respondent was informed by Zoe that she was not the person the respondent had been communicating with using WeChat, but the respondent did not ask for other contact details. It was also not clear what occurred in the three days following the incident on 10 September 2022 before she returned to the police station other than the applicant asking her to repay the money he had given her.
The respondent’s evidence was that when they spoke to the police Zoe had suggested to her that they had both been tricked, and they should each bear half of the losses. It is not clear what the respondent understood this suggestion to mean or how the losses would be shared in circumstances where Zoe at that point was in possession of AUD$35,000. In her evidence at the hearing the respondent suggested that she responded to Zoe’s offer by saying “I don't need you pay me half, you can give that half money to [the respondent]”.[7] In text messages on 13 September 2022, the respondent suggested to the applicant that Zoe had promised to pay half, so he should ask her for his money back. However, it was not clear whether this was in addition to returning half of the money back to the respondent. There was also no clear evidence of how the involvement of Chinese police would assist in the return of the money.
[7] Transcript of proceedings p 96
Whilst these aspects are not sufficient to exclude the respondent's version of events, I consider them sufficient to reduce the credibility of the respondent’s version of events.[8]
The phone call
[8] See, for example, Chen v State of New South Wales (No 2) [2016] NSWCA 292 at [34]
The applicant presented evidence of the phone call he received on the way to the police station on 13 September 2022 as evidence that someone linked with the respondent was trying to pressure him to not pursue recovery of the alleged debt. After questioning on cross-examination, the applicant conceded that not all of the conversation, including what was said by the applicant, was recorded. The transcript of what was recorded was clearly inconsistent with both the applicant's and respondent's version of events. I also accept the respondent's evidence that she does not recognise the voice and did not ask for or suggest that anyone contact the applicant.
I, therefore, do not accept that the phone call represents an attempt by the respondent to pressure the respondent in some way. I also do not accept that the phone call represents evidence of the nature of the agreement between the applicant and the respondent or the involvement or otherwise of Zoe as a third party to the agreement. To the extent that it is inconsistent with both the applicant's and respondent's evidence I do not place any weight on that evidence or the affect it might have on the credibility of either party.
Statements acknowledging the debt
The applicant submits that the debt owed to him by the respondent is identified in two communications: a text sent by the applicant at 7:05pm on the 10 September 2023 stating that the respondent still owes him $20,000 Australian dollars; and what he describes as the “Deed of acknowledgement of debt” written by the respondent on a piece of cardboard with her signature and fingerprint.
In response, the respondent gave evidence that she provided both communications under pressure from the respondent, and that she was concerned that if she did not agree to provide the text and the deed that her safety might be at risk. Even through the deed, in particular was provided outside the police station on the evening of the 10 September 2023, the respondent was concerned that if she did not sign something she would not be allowed to leave.
As I understand it, the respondent does not claim that she was subject to duress or undue influence such that she did not voluntarily enter into the agreement with the applicant. Rather, the respondent submits that the description of the agreement in the text and deed should not be taken to reflect the actual agreement between the parties.
There is no suggestion that the applicant had acted in an overtly threatening manner in requiring the respondent to provide the text or deed. The history between the applicant and respondent included the respondent paying the applicant for various tasks. The respondent asked the applicant the day following the incident to help transport her and her dog.
Importantly, in none of the subsequent communications with the applicant, including when she suggests that the applicant and Zoe have tried to scam her and asks the applicant to go to the police, does the respondent attempt to correct or challenge the suggestion that the applicant gave AUD to her as part of an agreement that it would be repaid in AUD and not merely exchanged to RMB.
I am prepared to accept that the respondent felt pressured to provide the statements when indicated, but I am not satisfied that the pressure was sufficient to induce her to alter the nature of the agreement between her and the applicant. I am therefore not satisfied that there is sufficient basis to discredit the text and Deed as a description of the nature of the agreement, or as undermining the credit of the applicant.
In any event, even if I accepted that the text and deed are not reliable evidence of the agreement between the parties, the other evidence provided by the applicant is sufficient to satisfy me on the balance of probabilities that the applicant had provided money to the respondent on the basis that it be repaid by her and not merely asked her assistance in exchanging AUD for RMB.
Findings on the agreement between the applicant and respondent
Despite the inconsistencies and uncertainties with both the applicant's and respondent's versions of the agreement between them, I am persuaded of the substance of the applicant's characterisation of his agreement with the respondent. The context and documented statements of both the applicant and respondent are consistent with that characterisation. The uncertainties created by the respondent's evidence of her statements to the contrary and concerns raised by the conduct of the applicant do not sufficiently undermine the credibility of the applicant so as to deny that persuasion.
I am therefore satisfied on the balance of probabilities that the applicant provided AUD$20,000 to the respondent on the basis that it be repaid to the applicant. While the term of the loan may not have been agreed at the time of the money being provided to the respondent, there was an understanding by both parties that it was for only a limited period. The text message shortly after the money was provided requesting the money be repaid in the next week was not objected to by the respondent. It was clear at least from 16 September 2022 that the respondent was not going to repay the debt.
The acceptance by the applicant of an offer by the respondent to transfer RMB to his account by his text indicating his agreed exchange rate did not, in my view, alter or replace that underlying agreement. If the agreed amount of RMB had been provided to the applicant, it would have displaced any debt owed to the applicant by the respondent, acting as the applicant suggested as a form of security. However, the agreement to have the amount converted back to AUD$20,000 would remain. In the event, it is accepted that the respondent has not provided either RMB or AUD to the applicant.
I do not accept that the respondent was acting as the applicant's agent or otherwise facilitating an exchange for the applicant of AUD into RMB, whether with Zoe or anyone else. I, therefore, do not accept the respondent's submissions that, as she had carried out her part in the agreement in providing the money to a third party for it to be converted to RMB and attempted to recover the money from the third party when it was not exchanged as agreed, it was the third party and not the respondent who was indebted to the applicant.
Indemnification by third party
The respondent submitted that, if her version of events is accepted, Ms Zhang owes a debt of AUD$20,000 to the applicant. However, this was on the basis that the respondent acted as the applicant's agent in seeking to exchange the applicant's AUD$20,000 for RMB, and that the respondent had directed Ms Zhang, on the applicant's behalf, to transfer funds into the applicant's bank account. By failing to act as directed, Ms Zhang incurred a liability to the applicant.
As set out above, I do not accept that the respondent was acting as the applicant's agent in seeking to exchange AUD for RMB with a third party. I am also not satisfied that the respondent had directed Ms Zhang in the way described. There was no evidence of exchanges between the respondent and Zoe, including whether the respondent provided Zoe with bank account details for herself or the applicant. The respondent could not recall at the hearing whether the WeChat profile suggested that she was communicating with Zoe or whether she only knew Zoe’s name after meeting with her. The latter is consistent with what was reported to the police. Even on an undefended basis, I am not satisfied that there is insufficient evidence of Ms Zhang being directed to transfer funds to the applicant's account or otherwise knew or should reasonable have known that the respondent was acting as an agent for the applicant.
As an alternative, the respondent submitted that an order for Ms Zhang to pay the applicant the sum of $20,000 should be made in equity. As set out in her submissions, under equity the respondent's claim:
[W]ould provide for each party to be placed in the position that they would have been had the parties not engaged in the transactions that they had with one another on 10 September 2022.[9]
[9] Respondent’s written submissions dated 17 July 2023 at [19]
While I accept that the tribunal may have jurisdiction to make orders on the basis of an equitable claim, the basis of that claim must be established. As set out above, I have found that the respondent did not act as an agent or otherwise act under an agreement to facilitate an exchange of AUD for RMB for the applicant. I have also described how the respondent's claim of undue influence is limited to disputing the characterisation or terms of the agreement between the applicant and respondent rather than seeking to set aside any agreement between them. The respondent has not outlined how the elements of a general claim for undue influence on the part of the applicant could be made out or why, if undue influence is established, that it would be appropriate to make an order that Ms Zhang restore the parties to their original positions. There is insufficient evidence to establish that Ms Zhang knew or reasonably should have been aware of any connection between the applicant and the respondent prior to the transaction on the 10 September 2022 or that she and the applicant have acted since then to defraud the respondent.
I therefore do not accept that a claim in equity or any other basis on which orders can be made against Ms Zhang has been made out.
Costs
The applicant seeks orders that the respondent pay the applicant $20,000 plus interest, the filing fee for the applicant's application and translation fees incurred by the applicant pursuant to section 48(2)(a) of the ACAT Act. The translation fees have not been quantified.
Section 48(2) provides for the circumstances in which a Tribunal can make a costs order.[10] They include, where the applicant has been successful, the filing fee for an application and “any other fee incurred by the applicant that the tribunal considers necessary for the application”. Examples of company searches, filing fee for a subpoena and hearing fees are included.
[10] CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96 at [82]

In my view, translation fees are not a fee that was necessary for the application. The Tribunal is not bound by the rules of evidence[11]and must seek to ensure that its procedures are simple, quick, inexpensive and informal[12]. There is no requirement in the ACT Civil and Administrative Tribunal Procedures Rules 2020 to provide certified translations of documents to be used as evidence in the proceedings. There was also no order made for translations to be certified.
[11] ACAT Act s 8
[12] ACAT Act s 7
Where uncertified translations are provided, as the respondent provided in this case, there may be a dispute over the accuracy of any translation provided, and perhaps a cautious approach taken to the weight to be accorded to the evidence.[13] In this case, however, both parties and their representatives were Mandarin speakers, and an interpreter was provided by the tribunal. The incurring of translation fees was, in those circumstances, not necessary for the application.

Conclusion

[13] See, for example, Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [32]-[33]

Within 14 days of the date of this order, the respondent pay the applicant:
(a)the sum of $20,000 plus interest from 16 September 2022 to the date of these orders, as calculated in accordance with the ACT Civil and Administrative Tribunal Procedures Rules 2020 and the Court Procedures Rules 2006 schedule 2, part 2.1, totalling $1,689.78; and
(b)the applicant's filing fee of $612.
………………………………

Senior Member D Stewart

Date(s) of hearing:	3 July 2023
Solicitor for the applicant:	Zelin Yu
Solicitor for the respondent:	Jiaying Goh
Third Party	No appearance