Zhang v Zhang

[2022] NSWSC 924

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Zhang v Zhang [2022] NSWSC 924

Hearing dates:

20 – 22 and 30 June 2022; last submissions received 5 July 2022

Decision date:

12 July 2022

Jurisdiction:

Equity

Before:

Meek J

Decision:

Judgment for the plaintiff

Catchwords:

LOANS – Dispute as to terms of an oral loan – when is a loan repayable – whether interest payable at agreed rates beyond repayment date for loan or pursuant to s 100 Civil Procedure Act 2005 (NSW)

CONTRACT – admissibility of post-contractual conduct as evidence as to terms of oral loan or as an admission of the terms

TRANSFER OF PROCEEDINGS – Potential transfer of cross-claim to the District Court – Obligations of legal practitioners to assist the Court to identify the jurisprudential nature of the claim and statutory provisions enabling the proposed transfer court to have jurisdiction to deal with the matter

EVIDENCE – Mode of appearance at hearing – audio visual and other mode of appearance – r 31.3 Uniform Civil Procedure Rules 2005 (NSW), Pt 1A Evidence (Audio and Audio Visual Links) Act 1998 (NSW)

INTERPRETERS – Arrangements for interpreters at the hearing – Obligations of parties in relation to co-operating in respect of provision of interpreters – Obligation of parties in first instance to pay for costs of interpreter

UNREPRESENTED LITIGANTS – content of procedural fairness

EVIDENCE – discussion regarding practice of deponents asked to re-authenticate affidavits

CROSS EXAMINATION – Browne v Dunn (1893) 6 R 67 – Discussion regarding utility of rule when examiner anticipates witness will not expressly agree or disagree with matter sought to be challenged

EQUITY – whether equitable charge over property to secure payment of money

EQUITABLE DEFENCES – Acquiescence – Election – Estoppel – Waiver.

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 100

District Court Act 1973 (NSW), ss 44, 134

Evidence Act 1995 (NSW), s 30

Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B, Pt 1A

Interpretation Act 1987 (NSW), ss 3, 21

Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 31.1, 31.3, 31.55, 31.56, 31.57, 31.58, 31.59, 31.62, 31.63, 31.64, Pt 31 Div 3, sch 7A

Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75

Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57

Aslan v Shehadie [1998] NSWCA 19

AWA Ltd v Radio 3XY Pty Ltd (Supreme Court (NSW), McLelland J, 21 June 1991, unrep) BC9101867

Bauskis v Liew [2013] NSWCA 297

Browne v Dunn (1893) 6 R 67

Cahn v Kosmin [2022] NSWSC 751

Chu v Haddad [2014] NSWSC 1720

Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; [1963] HCA 59

DZAAA v Minister for Immigration and Citizenship [2011] FMCA 434; (2011) 250 FLR 423

Falkner v Bourke (1990) 19 NSWLR 574

GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15

Hamod v New South Wales [2011] NSWCA 375

In the matter of Black Tie Holdings Pty Ltd [2022] NSWSC 781

Knott Investments Pty Ltd v Winnebago Industries Inc (2013) 211 FCR 449; [2013] FCAFC 59

Left Bank Investments Pty Ltd v NgunyaJarjum Aboriginal Corporation [2020] NSWCA 144

Lym International Pty Ltd v Marcolongo [2011] NSWCA 303

Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133

New South Wales Crime Commission v Nguyen [2018] NSWSC 1858

Ogilvie v Adams [1981] VR 1041

Orr v Ford (1989) 167 CLR 316; [1989] HCA 4

Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd [2004] NSWSC 56

Peters v Lithgow Forge Pty Ltd [2011] NSWSC 1185; (2011) 15 BPR 29,611

Rogers v Rogers [2020] NSWSC 392

Rogic v Samaan [2018] NSWSC 1464

Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964

West v Mead [2003] NSWSC 161

Xia v Santah Pty Ltd [2003] NSWSC 807

Zhang v Zhang [2022] NSWSC 752

Texts Cited:

Henry Thomas Banning, Statute Law of Limitation of Actions (2nd ed, 1892, Steven & Haynes)

Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017)

M Barnett, “Mind Your Language Interpreters in Australian Immigration Proceedings” [2006] UWSLawRw 5

Practice Note SC Gen 10

Practice Note SC Gen 21

Ritchie’s Uniform Civil Procedure NSW

Category:

Principal judgment

Parties:

Ran Zhang (Plaintiff)
Jian jian Zhang (First Defendant / First Cross-Claimant)
Jing Yang (Second Defendant / Second Cross-Claimant)

Representation:

Counsel:
P Reynolds (Plaintiff)
Y Gao (solicitor) (First Defendant)
In person (Second Defendant)
Solicitors:
JC Legal Practice (Plaintiff)
Novolaw (First Defendant)

File Number(s):

2020/332753

Judgment

HIS HONOUR:

Introduction

1. The proceedings before the Court relate to a dispute regarding terms of repayment of a loan to assist in the financing of the purchase of an apartment at Brodie Spark Drive, Wolli Creek (the property). The property has been sold in circumstances referred to below.

2. For reasons which I outline below, I find for the plaintiff (Ran) on her claim.

3. The parties are, or have been, related to one another and without intending any disrespect it is convenient to refer to the parties by reference to their given names.

4. Ran is the sister of the first defendant (Jian jian). Ran is a preschool teacher and Jian jian is her younger brother. Ran is married to Di Meng (Di).

5. Jian jian was born in December 1980 and is now aged 41.

6. In February 2010, Jian jian married the second defendant (Jing), who was born in November 1983 and is currently aged 38.

7. The defendants have a daughter Ruihan born in August 2010, currently aged 11.

8. Relations between the parties have broken down. Ran lives in Australia. At the time the property was purchased the defendants were married. They separated and are now divorced. Both defendants are currently living in China.

Pleadings

9. The proceedings were commenced by summons filed on 20 November 2020.

10. The proceedings progressed by way of pleadings.

11. Ran in a statement of claim filed on 1 March 2021 sought:

1. a declaration that the defendants held the property on a resulting trust for Ran to the amount of $245,795.50 plus interest;

2. additionally or alternatively, a declaration that the property was charged by the defendants with repayment to Ran of that amount;

3. judgment for Ran against the defendants in the sum of $228,795.50 (claimed amount), being the initial sum less $17,000 repaid, together with interest.

12. On 26 April 2021, Jing filed a defence to Ran’s claim.

13. I will mention below under the heading ‘Issues’, more particular aspects of the issues arising on the pleadings.

14. The proceedings have a long procedural history. It is not necessary to refer to all of it. However, I will refer to some procedural issues below.

Default judgment against Jian jian

15. On 15 September 2021, Ran obtained Judgment against Jian jian in the proceedings. The transcript of the hearing before Rein J on 15 September 2021 records that Mr Gao appeared for Jian jian and admitted to the amount claimed (T4). The admission of the claim was formalised by the entry (by consent) of a Default Judgment for Ran against Jian jian in the amount of $257,050.34 comprising a debt of $248,973.83 (including principal of $228,795.50 and contractual interest of $20,177.33) and pre-judgment interest in the amount of $8,077.51.

16. By consent, there was further judgment for Jian jian to pay Ran's costs in the amount of $1,184.50, being 50% of the costs claimed by Ran in the application for Default Judgment. An application for Summary Judgment by Ran against Jian jian was, in the above circumstances, not pressed: T3.

Jian jian’s cross-claim

17. On 10 February 2021, Jian jian filed a cross-claim against Jing seeking both final and interlocutory orders. The interlocutory relief sought was a freezing order.

18. The final relief sought by Jian jian in the cross-claim included a declaration that he holds in equity and is entitled to half of the proceeds of sale of the property up to a value of $178,200.00. The cross-claim has been since amended.

Some procedural issues

19. In the period (March 2022 to June 2022) leading up to the hearing of the proceedings there was extensive correspondence by email as between Jing and the solicitor for Ran, Mr Zhu, and the Court, including the Equity Registrar and my staff relating to various Court applications, listings and directions.

20. One interlocutory matter can be mentioned briefly. There was a Notice of Motion filed by Jing on 12 January 2022 against Jian jian to seek to have funds released from a freezing order. On a number of directions hearings Jing sought to have access to the funds and the freezing order discharged. Ultimately, Jing’s notice of motion for release of funds under the freezing order was heard and dismissed by Parker J on 3 June 2022. His Honour provided reasons for judgment: see Zhang v Zhang [2022] NSWSC 752.

21. The main hearing was originally listed for three days on 20-22 June 2022. Due to difficulties arising out of various matters including connection issues, time taken in the interpreting and providing explanations regarding the Court procedure, the hearing was not completed within three days. The matter was listed for directions on 29 June 2022 to ascertain availability of the parties to continue the hearing. I determined that the matter continue for hearing on 30 June 2022 and if need be 1 July 2022. Jing had indicated that she had difficulties in appearing on 1July 2022 due to matters with her daughter: T 8 (29 June 2022). As events occurred, the hearing continued and was completed on 30 June 2022. On that day the Court sat late with the goodwill of the parties, sound recordist and my staff: e.g. T187, 205.

22. It is relevant to address two other procedural and logistical aspects of the proceedings in a more detailed way, namely:

1. an issue as to whether Jian jian’s cross-claim would be determined at the hearing or otherwise dealt with; and

2. logistical issues relating to Jing appearing by audio visual facility at the hearing of the proceedings.

Jian jian’s cross-claim and potential transfer to the District Court

23. The issue regarding Jian jian’s cross-claim was regrettably vexed.

24. The initial cross-claim had been filed on 10 February 2021. On 15 February 2021 Parker J directed Jian jian to file and serve his cross-claim against Jing by 26 March 2021. On 9 April 2021 Ward CJ in Eq extended the time for compliance to 16 April 2021.

25. On 23 April 2021 Slattery J granted leave for Jian jian to file and serve a statement of cross-claim by 5 May 2021. On 15 September 2021 Rein J ordered Jian jian to file and serve a statement of cross-claim by 4:00pm on 24 September 2021. On 17 November 2021, Registrar Walton extended time for compliance to 4:00pm on 23 December 2021. It is unclear what, if any, further order was made. In any event, an amended form of cross-claim was filed at 1:37 AM on 16 February 2022 in advance of the directions hearing to take place before the Equity Registrar on that day. Later on 16 February 2022, Registrar Walton ordered “Cross claim is to be rejected”.

26. Mr Gao took no steps to rectify the rejection of the cross-claim.

27. The matter was listed before me on 30 May 2022 for pre-trial directions. On that occasion Mr Gao did not appear.

28. Consequently, I listed of the matter for further mention on 1 June 2022 to address a number of matters in and, in particular, the status of the cross-claim.

29. On that occasion Mr Gao apologised for his prior non-attendance stating that his understanding was that “the hearing was principally as between the plaintiff and the second defendant” but noted that “I should have attended”: T1.

30. I questioned Mr Gao regarding the cross-claim. He indicated (T1-2):

“It was an active claim in the proceedings, however, there are effectively two ways to dispose of that matter and those issues. The intention was that once the main proceedings between the plaintiff and the second defendant were concluded, I was then to file a separate summons recommencing that exact matter and orders were made to dispose that issue. There was a cross‑claim that I sought to file but because it was filed out of time I think it was disallowed and it didn't go in as evidence and that was already prepared and it would have dealt with those issues, but the judicial registrar indicated that it wasn't part of the Court orders, being that it was filed out of time. It was only filed, from memory, about an hour out of time. But rather than waste the Court's time, I thought it would be in everyone's interests if the main proceeding between the plaintiff and the second defendant was dealt with so that it didn't delay that proceeding and then whatever issues remained or lingered afterwards, we could deal with that in a separate pleading. Or if your Honour deems it appropriate, that orders should be made to dispose of it now, we can also do that as well.”

31. The difficulty with Mr Gao’s proposed approach (as I noted at T2) is that hearing of cases do not ordinarily proceed in such a manner. Ordinarily a claim and a cross-claim are heard together and not in a staggered or piecemeal way. If a party does not wish a particular claim to proceed at a hearing (for whatever reason) that fact must be brought to the Court’s attention, and to the attention of the other party affected, in a prompt way and addressed by some appropriate order whether that be by dismissal of the claim or by means of a separate order for determination of the issue raised by the claim, or by some other order.

32. The mere fact that an amended form of cross-claim has been rejected for filing does not of itself dispose of the initial form of the cross-claim.

33. On 3 June 2022, during the hearing of Jing’s Notice of Motion to lift or otherwise discharge the freezing order obtained by Jian jian, Parker J raised with Mr Gao issues regarding the cross-claim.

34. His Honour questioned Mr Gao regarding the nature of the cross-claim: T8, 20-21.

35. Mr Gao in substance agreed with the proposition that Jian jian’s claim against Jing was a money claim that could be dealt with by the District Court.

36. Parker J on that occasion made an order that the cross-claim by Jian jian against Jing be heard after the hearing of Ran’s claim against Jing.

37. That was an order for separate determination of the proceedings on the cross-claim: r 28.2 Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

38. It is apparent from the transcript of the hearing before Parker J that Mr Gao was seeking to establish whether he would be permitted to rely upon the amended form of cross-claim that had been filed but rejected: T22.

39. His Honour ultimately noted that the Court proposed on the completion of Ran’s claim that the cross-claim would be transferred to the District Court.

40. A difficulty with the consideration of whether to transfer the cross-claim to the District Court is that Jian jian did not take any steps between 3 June and 20 June to seek leave to amend the initial form of cross-claim.

41. During the hearing I sought to clarify with Mr Gao the nature of the cross-claim asserted by Jian jian against Jing to enable consideration to be given as to whether a transfer order to the District Court ought to be made: T36-39; 62-64 (Day 2) and T88-92; 145 (Day 3).

42. Because the District Court is a court of limited jurisdiction, when a judge of the Supreme Court is asked to transfer proceedings to the District Court, the judge would need to be satisfied that the District Court has jurisdiction to hear and determine the proceedings.

43. In my view, when a question arises in proceedings regarding potential transfer of the proceedings from the Supreme Court to the District Court (whether a transfer is sought by a party expressly by notice of motion, or whether it is raised in discussion as between a judge and a party), a legal practitioner, particularly when some prior notice to address the issue has been given, should stand ready to assist the Court in respect of the jurisdictional question.

44. At least part of the assistance that ought to be provided to the Court is identification of (a) the jurisprudential nature of the claim and (b) by reference to the District Court Act 1973 (NSW) (for example ss 44, 134) or other legislation the statutory provisions which enable the District Court to have jurisdiction to hear and determine such a claim.

45. Ultimately, I directed that Mr Gao provide a draft of the form of amended cross-claim and gave Jing an opportunity to oppose the filing of that document.

46. On 24 June 2022 Mr Gao emailed to my Associate (copied to Jing and the representatives for Ran) a form of amended statement of cross-claim (amended cross-claim).

47. The form of amended cross-claim seeks various declarations. In particular declarations that (a) Jing holds an amount of $250,000 on trust for Jian jian; and (b) that at the time of sale of the property Jian jian and Jing were owners as joint tenants of the property and are entitled to a division of the net proceeds of sale equally between them.

48. On 27 June 2022, Jing emailed to Mr Gao (copied to my Associate) a form of defence to the proposed amended cross-claim .

49. Without in any way determining the merits of the amended cross-claim, it is not clear that it adequately explains the entitlement to the relief sought in light of the existence of the joint tenancy and the fact that it is not pleaded as to whether the joint tenancy was severed.

50. I did not have any express application before me by Mr Gao to transfer the proceedings to the District Court. In the above circumstances, particularly in light of the lack of clarity as to whether the claim as framed (or potentially sought to be framed) is clearly within the jurisdiction of the District Court, I declined to make any order or directions regarding the transfer of the proceedings to the District Court.

51. I permitted the proposed amended cross-claim and Jing’s defence to it to be filed and stood the proceedings on the cross-claim over for directions before the Registrar in Equity.

Mode of appearance at the hearing

52. Proceedings in Supreme Court are generally held in person: see e.g. Xia v Santah Pty Ltd [2003] NSWSC 807 at [9] per Palmer J. In proceedings commenced by statement of claim, subject to the rules of court and the Evidence Act 1995 (NSW) (Evidence Act), evidence must be given orally at Court: r 31.1(2) UCPR. The Court may direct that all or any of a witness’s evidence in such a trial be given by affidavit: r 31.3(3) UCPR.

53. However, the Court may permit parties or witnesses to the proceedings to give evidence and make submissions by telephone, audio visual link or other form of communication: r 31.3(1) UCPR.

54. Such a decision, as to whether to permit the giving of evidence and making of submissions by telephone, audio visual link or other form of communication, is “for the management of proceedings” within the meaning of s 58 Civil Procedure Act 2005 (NSW) (CPA).

55. The Court in deciding whether to make any order for the management of the proceedings, must seek to act in accordance with the dictates of justice: s 58(1)(a)(ii) CPA.

56. For the purposes of determining what the dictates of justice are in a particular case, the Court must have regard to the provisions in ss 56 and 57 CPA and may have regard to the matters set out in s 58(2)(b) CPA to the extent which the Court considers them relevant.

57. The provisions of s 58(2)(b) CPA are as follows:

“(2)       For the purpose of determining what are the dictates of justice in a particular case, the court—

…

(b)       may have regard to the following matters to the extent to which it considers them relevant—

(i)       the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii)       the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii)       the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v)       the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi)       the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii)       such other matters as the court considers relevant in the circumstances of the case.”

58. A consideration of some significance to be taken into account in determining whether to permit a witness to give evidence by telephone, audio visual link or other form of communication is whether the issues in the case will involve assessing the credibility of the witness: Xia v Santah Pty Ltd at [2]-[6] per Palmer J.

59. On 14 June 2022 (12:43 PM), Jing sent an email to my Associate (copied to the solicitors for Ran and Jian jian) which included an assertion that she could not appear by video link due to a network restriction or firewall in China and referring to difficulties in arranging an interpreter.

60. On 15 June 2022 (10:32 AM), my Associate sent an email to the parties noting inter alia that the Court proposed to make available both an audio visual link and a telephone link to enable Jing to participate in the proceedings subject to any fair objection by any other party to the proceedings.

61. On 15 June 2022 (4:18 PM) Jing emailed my Associate, copied to the other parties, providing submissions and objections to affidavits. The email further stated:

"In addition, do I need to submit any other letters? [F]or the telephone appearance on 20 June 2022?"

62. On 16 June 2022 (2:38 PM), Mr Wong on behalf of Ran sent an email to my Associate as follows:

"We would like to raise a fair objection pursuant to point 4 of your email below (“The Court proposes to make available audio-visual link and telephone link to enable the second defendant to participate in the proceedings, subject to any fair objection by another other party to the proceedings”).

We note from experience that it is possible to get on an AVL link from China.  We have had cases in the FCFCOA where people have done it using Teams, and other cases where it was done using a VPN (Virtual Private Network). 

We note that it is extremely difficult to cross-examine over the telephone and there may be procedural unfairness for our client, the plaintiff, if this is allowed.

If our objection is upheld by His Honour, we are willing to get in contact with the second defendant to facilitate her in getting access to the AVL link from China using either Teams or a VPN if required.

If it may facilitate the court, we are willing to attend an interlocutory proceeding tomorrow morning to aid His Honour in making a decision on our raised objection.

We look forward to His Honour’s orders on this matter."

63. On 16 June 2022 there were further communications by email as between my Associate and the parties leading to the listing of the matter on 17 June 2022 at 9:30 AM to address audio visual link options for the hearing.

64. On 16 June 2022 (8:04 PM) Jing sent an email to my Associate (copied to the other parties) which indicated that whilst she was using a VPN she could not open the Court session link. She further indicated a preference to use the internet “to save on expensive long-distance phone bills”.

65. On 17 June 2022 the directions hearing proceeded.

66. I made the following orders:

"1. Order pursuant to r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW), subject to any further order of the Court, that the second defendant, Jing Yang, be permitted to conduct the hearing of these proceedings at the trial due to commence on Monday 20 June 2022 at 10:00am by Audio Visual Link provided by the Court, including by giving evidence, submissions and conducting cross examination.

2. Direct the parties to provide any submissions at the commencement at the hearing on Monday, 20 June 2022 as to whether China is a ‘participating State’ for the purposes of Part 1A of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).

3.   Direct the plaintiff and the second defendant to take all reasonable steps to communicate with the legal representatives of the plaintiff and to use their best endeavours for the purpose of establishing by means of the Court’s Audio Visual Link, a working link for the purposes of Order 1, for the hearing in the proceedings due to commence on 20 June 2022.

4.   Note, without it being prescriptive, that the parties and the legal representatives of the plaintiff are to co-operate to establish that link by whatever reasonable means necessary, including the use of a virtual private network (VPN) or Microsoft Teams facility.

5.   Direct that for the purpose of conducting the hearing the parties are to use all reasonable steps to have available to them during the hearing a copy of the Court Book that has been prepared and provided to the Court either in electronic form or hard copy form.

6.   Direct that during the hearing and for purposes of the hearing the second defendant have available a working email facility, such as the email address […]@139.com used [by] the second defendant to communicate previously with the Court, for purposes of communicating at the hearing.

7.   Note that the parties agree that the only claims for relief that will be listed for hearing on Monday, 20 June 2022 are the claims in the plaintiff’s statement of claim filed on 1 March 2021.

8.   Direct that a proposed order for transfer of the first defendant’s cross claim to the District Court to be provided by the first defendant to my Associate, and copied to the other parties, by the commencement of the hearing on Monday, 20 June 2022."

67. On 17 June 2022 (2:29 PM) Mr Reynolds on behalf of Ran sent to my Associate a submission in relation to the direction in respect of Pt 1A of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (Evidence (Audio and Audio Visual Links) Act).

68. The submission was to the effect that China is not a “participating State” for the purposes of Pt 1A of the Evidence (Audio and Audio Visual Links) Act, because:

1. The word “State” used in the legislation refers to a state within the Commonwealth of Australia.

2. Section 21(1) Interpretation Act1987 (NSW) (IA) states that, in any Act or instrument, “State” means a State of the Commonwealth.  This is in contrast to “foreign country” which is defined in the IA as meaning any country (whether or not an independent sovereign state) outside Australia and its external Territories.  Notably the reference to a foreign country as a ‘state’ uses lowercase (not the defined expression, “State”).

3. There is nothing in the Evidence (Audio and Audio Visual Links) Act that would suggest that the IA meanings are not applied.

4. The word “State” is defined non-exhaustively in s 3(1) as including a Territory.

5. The phrase ‘participating State’ is defined as meaning another State in which provisions of a law in terms substantially corresponding to Parts 2 and 3 are in force (which would suggest a polity of a similar type as NSW).

6. The phrase “foreign country” is also used in the Evidence (Audio and Audio Visual Links) Act as well.

7. A number of the provisions (e.g. s 11, which entitles a legal practitioner in a participating State to practice as a barrister or solicitor in relation to the NSW proceedings and ss 14-18, which grant “recognised courts” (defined as a court or tribunal of a participating State that is authorised under their corresponding legislation to direct evidence via audio or audio visual link) certain powers and authority in NSW) make more sense if the definition is limited to States within Australia.

69. It seems to me that it is prima facie correct that China is not a “participating State” for the purposes of Pt 1A of the Evidence (Audio and Audio Visual Links) Act and accordingly, an order for the hearing of the proceedings could also have been made pursuant to the provisions of s 5B Evidence (Audio and Audio Visual Links) Act.

70. Nonetheless, without particular submissions from Jing addressing the matter, in light of the fact that I had already made an order pursuant to r 31.3 UCPR, there was no particular necessity to make any alternative or additional order pursuant to the provisions of s 5B Evidence (Audio and Audio Visual Links) Act.

71. On 17 June 2022 (7:11 PM) Jing sent an email to my Associate copied to the other parties in the following terms:

"I saw the letter from the plaintiff's lawyer below. I think the law has to be based on facts, and the law is not an empty book.

I also tried to link the video of the court with the help of one of the lawyers of the plaintiff through wechat video.

I've connected to the VPN and re-downloaded the latest version of the browser. I did exactly what the documents suggested. I even installed A VPN on my MAC and tried it with apple's own system. I spent the whole day working on it. But it's still not available. I have tried all approaches I could try. With the help of one of the plaintiff's lawyers, I've been working on this all day. But the video link is still unavailable.

On the day of the court session, can I connect to the court by Zoom or wechat video? But I still have to call the court, because I booked a telephone interpreter. And TIS National, the translation company, had to call the phone number and ID number that day. Thank you."

72. Despite the attempt by directions to enable the trial to proceed smoothly by audio visual link, there were issues at the commencement of the hearing listed on 20 June 2022.

73. To enable a satisfactory audio visual link my Associate arranged for the hearing to be conducted via Microsoft Teams and provided the link to enable that to occur.

74. The hearing was able to proceed on 20 June 2022 by use of Microsoft Teams and on the subsequent three days of hearing. However, the use of Microsoft Teams, being the only suitable connection by which Jing was able to connect visually to the Court, gave rise to issues associated with Jing’s arrangements for an interpreter as noted below.

75. For reasons that are not entirely clear, whilst Jing was able to connect visually over Microsoft Teams, the Court could not hear her through Microsoft Teams, although it appeared that Jing could hear the Court. This issue was addressed by use of a mobile phone which was placed adjacent to the interpreter on each day of the hearing so that Jing could see the Court and be seen by the Court via Microsoft Teams and hear the Court and be heard by the Court via the mobile phone connection which was amplified.

76. On occasion it appeared that Jing’s connection to the Court had dropped out and the Court paused for a period of time until the connection was re-established: e.g. T15, 171. I clarified on these occasions what part of the process Jing had observed and updated her on what had been done: T 16, 171.

77. I paused at appropriate occasions during the hearing to enable dialogue to be interpreted to Jing. I established that people in the Court had been able to see Jing’s picture on the screen and that she had been able to hear the Court and what had been said in Court: T30, 173. Jing indicated that she had been able to hear most of the time although sometimes voices got a little faint or blurred: T31. At one point there was an echo in the audio connection however that also resolved: T43.

78. There was an initial connection issue for Jing on the second day of the hearing: T32. There was also a connection issue following the luncheon adjournment on the third day: T111. However, on each occasion, eventually a satisfactory connection was re-established. Jing confirmed that she could see and hear the proceedings in court: T148.

Representation

79. On 10 March 2021, Jing appointed Yu Chen of Juris Cor Legal to act as her solicitor in the proceedings. A Notice of Appointment of Solicitor was filed on that day.

80. On 29 October 2021, Jing signed a Notice of Removal of Solicitor terminating the authority of Juris Cor Legal to act on her behalf in the proceedings. The Notice of Removal of Solicitor was e-filed on 1 November 2021.

81. The hearing proceeded with Mr Reynolds of counsel appearing for Ran. Mr Reynolds, his instructing solicitor and Ran attended in person in Court.

82. Mr Gao (as solicitor for Jian jian) connected via audio visual link.

83. Jing appeared by audio visual link in the manner I have described. She was self-represented.

Arrangements for an interpreter at the hearing

Pre-hearing issues regarding arrangements for and cost of an interpreter

84. Logistical issues arose relating to Jing arranging an interpreter for directions listings and the hearing.

85. Often issues that arise regarding interpreters in legal proceedings involve the question of whether the person or party who seeks assistance of an interpreter has sufficiently good English to continue in English rather than having an interpreter interpret.

86. There was no dispute in the proceedings that Jing did not have sufficiently good English to be able to give evidence in English.

87. Thus, the issue in these proceedings was not in essence a discretionary decision regarding whether a witness required an interpreter or not but rather the practical question of who should arrange an interpreter and who should bear the cost of doing so.

88. A recurring theme in the history of the proceedings particularly in period leading up to the hearing was assertions by Jing in emails that she had difficulty in affording interpreters, and requests by Jing for interpreters to be provided to her: emails dated 13 April 2022 4:06 PM; 25 May 2022 at 11:52 AM; 25 May 2022 5:11 PM.

89. On 25 May 2022 (10:40 AM), my Associate emailed the parties indicating the matter would be listed for pre-trial directions on 30 May 2022 at 9:30 AM. The email indicated both audio visual and telephone links to join the hearing.

90. On 25 May 2022 (4:37 PM), my Associate emailed the parties, noting that the matter would remain listed for the pre-trial directions hearing on 30 May 2022.

91. The email noted:

“The Court does not organise interpreters for parties. If the Second Defendant believes her English in not adequate, she will need to organise an interpreter herself. The interpreter should be a NAATI accredited interpreter and can be organised through:

It is noted that the Second Defendant has appeared with the benefit of an interpreter previously.”

92. On 1 June 2022 at 9:30 AM, the matter was further listed for directions. Mr Zhu appeared for Ran. Mr Gao appeared for Jian jian. Jing dialled in by telephone link and appeared with a Mandarin interpreter. During the course of the directions listing the interpreter announced that she was only booked until 10:00 AM and would have to go. There was some further discussion as recorded by the transcript. However, at almost precisely 10:00 AM the interpreter terminated the telephone link and Jing also disconnected the link.

93. I directed my Tipstaff to correspond with all parties and in particular Jing to request an attendance with an interpreter to attend at 12:00 PM that day and for the interpreter to be present for whatever time is required for the matter to be dealt with.

94. At 12:00 PM on 1 June 2022, there was a further listing. Jing appeared with an interpreter.

Interpreter arrangement and cost issues persist into the hearing

95. Issues in respect of arrangements for and payment for an interpreter persisted into the hearing, with the result that at some points of the hearing there was some doubt as to how the matter would proceed.

96. I have already recited the relevant details regarding the attempts to enable the hearing to proceed in a satisfactory way by means of an audio visual connection.

97. Following emails on 20 June 2022 between my Associate, Jing and the interpreting service arranged by Jing namely Lili Bollen of Translating and Interpreting Service (TIS National), Ms Bollen advised that the interpreter was unable to use the Microsoft Teams link to connect to the hearing as it is prohibited on the TIS National departmental system.

98. The interpreting service sought to connect to the proceedings by telephone only. However, the Court’s audio visual link facility did not have the functionality to simultaneously accommodate a telephone link as well a Microsoft Teams audio visual link connection.

99. As it turned out, Ran had separately arranged to have available an interpreter for the first two days of the hearing, essentially for her own purposes on the basis that she might be giving evidence on those days.

100. As the proceedings unfolded, logistical issues with the mode of appearance at the hearing interplayed with questions regarding the arrangements for interpreters.

101. Legal principle and the practical realities of forensic decision making often intersect in interesting ways.

102. As recited above, Ran’s legal representatives organised an interpreter essentially to facilitate her giving evidence in the matter. What confronted them at the commencement of the hearing was a defendant litigant who on any view did not have sufficiently good English to engage in the proceedings without an interpreter.

103. Despite significant pre-trial attempts to ensure Jing, who required remote connection facilities and an interpreter, would be able to connect appropriately and be assisted by an interpreter, that did not occur.

104. During the process of dealing with opening remarks and objections on the first day, Ran without objection by her, simply made the interpreter she had engaged available for those purposes: T1.

105. The interpretation in the proceedings proceeded by consecutive rather than simultaneous interpreting, the differences as to which I briefly note below.

106. On 21 June 2022, the second day of the hearing, there were further preliminary issues with Jing connecting by audio visual link to the hearing. Mr Reynolds indicated that his instructing solicitor had communications with Jing to the effect that Jing’s internet had stopped working or modem had stopped working.

107. Jing made arrangements to attend at the house of a neighbour with a working internet connection.

108. Mr Reynolds’ instructing solicitor had arranged for a NAATI accredited interpreter, Ms Wang, to be available to interpret for Ran and Ms Wang was sworn in and interpreted for all purposes on the second day of the hearing.

109. That there might be problems with knowing who would interpret for the second day was expressly raised at the end of the first day. The following exchange occurred (T31):

“REYNOLDS: I just wanted to give the second defendant as much notice as possible that the plaintiff has booked the interpreter for tomorrow but not for the third day, and it's not envisaged that cross-examination of the plaintiff would go over to the third day, so if the matter continues on to the third day, the second defendant will need to organise her own interpreter. I thought it best to say something about it now.

HIS HONOUR: Can you please translate that?

INTERPRETER: Today I've already organised my own interpreter, and I've paid them the fee, and they told me that my interpreter can only attend by telephone. There's no way that they can connect via video, so I cannot organise my own.”

110. The issue regarding the availability of an interpreter and who would arrange it and be responsible for the cost of doing so came to a head late on the second day, after Ran had given evidence and whilst Jing was part way through being cross-examined (T82) as follows:

“HIS HONOUR: We'll clearly not finish today. The matter is listed for tomorrow. Before I adjourn, I had asked Mr Gao to come back to me. Can I ask what the arrangements are for tomorrow? The matter is listed for hearing tomorrow. There has been a translator, Ms Ren yesterday, a translator, Ms Wang today. Is it expected there will be another translator tomorrow? Are you able to tell me what the position is?

REYNOLDS: From the plaintiff's end, no. The interpreter was only booked for yesterday and today, being the days on which it could be possible that the plaintiff might be giving evidence, and she sort of then volunteered to provided assistance to the second defendant while she's here; but there's been no booking made for tomorrow. I understand at least for yesterday made her own arrangements, which didn't quite work out, but she seems to be able to organise interpreting services.”

111. After some discussion the following exchange took place (T84-86):

“HIS HONOUR: Sorry. Ms Yang, are you able to make an arrangement for an interpreter to physically attend at court? Or alternatively, dial into court in order to be able to interpret for tomorrow? Sorry. The dial in option is not going to work because the audio visual is via Teams and it’s not going to work that way.

REYNOLDS: Yes. Well, the two options would appear to be for Ms Yang to engage the company independently and retain an interpreter from that company for tomorrow. Or alternatively, to pay the money to those instructing me who will take on the burden and make that arrangement.

HIS HONOUR: One way or another, there will need to be some interpretation done tomorrow. What I direct is for the legal representatives for the plaintiff to speak with Ms Yang and to work out, however it is done, a workable arrangement for an interpretation to be done for tomorrow. Well, firstly, can you translate that?”

..

..

HIS HONOUR: Mr Reynolds, there are two issues that seem to me that need to be addressed.

REYNOLDS: Yes.

HIS HONOUR: One is the fact that an interpreter is required.

REYNOLDS: Yes.

HIS HONOUR: But the second issue is the question of cost.

REYNOLDS: Yes.

HIS HONOUR: Can you please translate? The question of cost is a question that it seems to me that can be dealt with as a part of the determination of the outcome of the proceeding.

..

..

HIS HONOUR: Without making any determination about the matter, at the moment I do not have a degree of confidence that Ms Yang is able to make the necessary arrangements for tomorrow morning. Please interpret.

INTERPRETER: No, I can’t. Yes.

HIS HONOUR: Mr Reynolds, if the plaintiff is able to arrange for interpretation tomorrow morning in a similar way that has happened for yesterday and today, that seems to me to be the more secure option of facilitating the matter being able to proceed in an orderly way tomorrow. If I put aside the question of costs so that that will be determined as part of the case, do you have anything to say about what I have just said in terms of arrangements?

REYNOLDS: Just pardon my back a moment. What I'm instructed is they'll make some enquiries with the interpretation firm that's been providing services yesterday and today, but certainly the plaintiff would be wanting in terms of costs, those costs on an indemnity basis either way as they’re effectively bearing the second defendant’s burden at this stage for costs they’d have to pay but that can be dealt with the cost stage.

HIS HONOUR: Without making any determination on the question of costs right here and now, it is evident that translation has been and will be required and that it is further evident that that will be a reasonable expense in relation to the hearing of the matter. Please translate. I think that is all I can say at the moment. Please translate. I will adjourn until 10 am tomorrow morning.”

112. The question facing Ran and her legal representatives was whether they would make available the interpreter they had retained for a limited purpose to enable the hearing to proceed or potentially run the gauntlet of facing the consequences of the hearing being unable to proceed without any interpreter (whether arising from an adjournment application or otherwise).

113. On 22 June 2022, the third day of the hearing, another NAATI accredited interpreter, Ms Xu, engaged by Ran, was sworn in and interpreted for all purposes during the day of the hearing.

114. On 30 June 2022, the fourth and final day of the hearing, Ms Wang, who had interpreted on the second day of the day, engaged again by Ran, was sworn in and interpreted for all purposes during the day of the hearing.

115. The decision made by Ran’s legal representatives to make an interpreter available on each day of the hearing was ultimately (as acknowledged by Mr Reynolds) an accession to “the practical realities” and “she elected not to go down” the “avenue” of making no interpreter available: T200.

116. Thus, in these proceedings, I did not need to make any ultimate determination as to directions regarding the engagement of an interpreter having regard to the fact that independent NAATI accredited interpreters, engaged by Ran’s solicitors, were, in the exigencies that I have described above, ultimately made available to assist not merely Ran, but also Jing and the Court, in interpreting for all purposes during all the days the proceedings were listed for hearing.

117. At the conclusion of the hearing on the fourth day, I directed Ran and Jing to provide submissions on the obligations of parties to organise an interpreter for the purposes of Court processes and who bears the cost of the interpreter by 4pm Tuesday, 5 July 2022.

118. Jing provided a brief submission on 30 June 2022 as follows:

“As for the translation fee for these four days, I obey the law and respect the arrangement of his Honor. But NOW I really have no money to pay, because my money was taken away by the first defendant, the money in Australia was frozen. If I have to pay half, it can be deducted from my frozen account. Thank you so much”.

119. Mr Reynolds provided submissions on 5 July 2022 to which I refer below.

Principles regarding arrangements for an interpreter

120. Kunc J observed in Rogic v Samaan [2018] NSWSC 1464 at [158]:

“Being bilingual is not the same thing as being an interpreter (spoken words) or translator (documents). Interpreting and translating are highly skilled occupations, often now undertaken with the benefit of specialist tertiary study. Furthermore, reputable interpreters adhere to a professional code of ethics which emphasises the importance of professional competence, accuracy and independence.”

121. For convenience, I will generally use the expression ‘interpreting’ (and variations of it) to cover the conversion of evidence from one language to another, although during the hearing the qualified interpreter sometimes interpreted dialogue and at other times translated documents.

122. There is a distinction between simultaneous and consecutive interpreting which has been referred to in DZAAA v Minister for Immigration and Citizenship [2011] FMCA 434; (2011) 250 FLR 423 at [42] (DZAAA) citing M Barnett, “Mind Your Language Interpreters in Australian Immigration Proceedings” [2006] UWSLawRw 5 (at pp 10 and 11 of the print out), namely:

“Consecutive interpretation means that the interpreter translates after the speaker has finished the communication. This is the most commonly used form of interpretation to interpret a witnesses’ evidence. This form of interpreting requires the interpreter to listen carefully and remember what was said, perhaps even taking written notes to help with the task. Simultaneous interpretation is interpreting almost immediately after a statement is spoken. It is made while the speaker continues to speak. Generally simultaneous interpretation, where it is utilised in immigration proceedings, will be undertaken by the interpreter translating, usually in a whisper to the applicant, what the Tribunal member is saying to other witnesses and where appropriate what other witnesses say. There is no information available about the frequency of the use of simultaneous interpretation.”

123. In 2017 the Judicial Council on Cultural Diversity published Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017) (RNSWICT Publication). The RNSWICT Publication includes not only National Standards (National Standards) and Model Rules (Model Rules) but also comprehensively addresses various issues which arise in relation to interpreters in proceedings.

124. The RNSWICT Publication includes comment in relation to the engagement of interpreters to ensure procedural fairness in proceedings: pp 94, 105.

125. It is clear that rules for engagement of interpreters vary as between both the type of proceedings that occur, and as between differing courts and tribunals. In some proceedings, courts or tribunals may be responsible for the engagement of interpreters, and there are provisions or at least guidance regarding how the cost of the provision of the interpreter is to be borne.

126. The Supreme Court resolved to implement and apply the National Standards.

127. As part of that implementation the Court introduced UCPR Pt 31 Div 3 (based on the Model Rules prescribed by the National Standards).

128. On 4 March 2020 the Supreme Court of New South Wales issued a Practice Note dealing with interpreters in civil proceedings, Practice Note SC Gen 21 - Interpreters in Civil Proceedings.

129. Practice Note SC Gen 21 - Interpreters in Civil Proceedings applies to these proceedings.

130. The Practice Note and UCPR Pt 31 Div 3 are to be read together: Practice Note SC Gen 21 at [4]; r 31.55(c) UCPR.

131. The Court takes into account and, unless the Court considers it for any reason impractical or undesirable in the circumstances of the particular case, gives effect to the National Standards when the Court is construing and applying UCPR Pt 31 Div 3: Practice Note SC Gen 21 at [5].

132. The general position regarding interpreters in civil proceedings in the Supreme Court in respect of whether they are permitted, and who is responsible for engaging interpreters can be summarised as follows:

1. There are various statutory provisions and general law which inform and explain the use of interpreters for court proceedings.

2. Proceedings in the Supreme Court are to be conducted in English, subject to Div 3 Pt 31: r 31.57 UCPR; (see also Standard 2.1 ‘Recommended Standards for Courts’ RNSWICT Publication).

3. By r 31.58(1) UCPR, if the Court is satisfied that a witness cannot understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put to the witness, then the witness may give:

1. oral evidence in the other language that is interpreted into English by an interpreter in accordance with this Division, or

2. evidence by an affidavit or statement in English that has been sight translated to the witness by an interpreter in accordance with r 31.62 UCPR.

4. At common law, whether an interpreter should be used is a matter for the discretion of the trial judge. The discretion will generally be exercised according to an assessment of whether the party seeking the use of an interpreter would without such use be placed at an unfair disadvantage: Aslan v Shehadie [1998] NSWCA 19 at 4-5 citing Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 464; [1963] HCA 59; Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 78, 81, 84 (Adamopoulos).

5. The Evidence Act provides that a witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact: s 30 Evidence Act.

6. It is not entirely clear whether s 30 Evidence Act modifies the common law position, by affecting the discretionary nature of the use of an interpreter or the matters relevant to the discretion: Aslan v Shehadie at 5. However, Div 3 Pt 31 applies subject to the provisions of the Evidence Act: r 31.64 UCPR.

7. The party calling a witness requiring an interpreter is responsible for engaging an interpreter who meets the standards and requirements imposed by Div 3 Pt 31: r 31.58(2) UCPR; see also Model Rule 1.4.

8. If the Court is satisfied that a party cannot understand and speak the English language sufficiently to enable the party to understand and participate in the proceedings, the Court must permit the party to use an interpreter who meets the standards and requirements imposed by this Division so as to communicate with the court (but for no other purpose): r 31.58(3) UCPR; see also Model Rule 1.6.

9. The provision of the rules in this respect follows the general law in that ordinarily in civil proceedings the parties must provide any interpreter required for the purpose of proceedings. That is in contrast with the position in criminal proceedings where, if an accused person or a witness called by the accused requires an interpreter, that is arranged by the Court: New South Wales Crime Commission v Nguyen [2018] NSWSC 1858 at [4] per McCallum J (as her Honour then was); Model Rule 1.5.

10. The Court’s decision regarding permitting an interpreter is clearly made in the context of facilitating a fair trial: Adamopoulos at 80G-81A per Mahoney JA.

11. A person must not act as an interpreter in proceedings or proposed proceedings unless the person:

1. is currently an accredited interpreter for the other language concerned or otherwise satisfies the Court that the person is qualified to act as an interpreter, and

2. has read and agreed to comply with the code of conduct, and

3. takes an oath or makes an affirmation to interpret accurately to the best of the person's ability: r 31.59(1) UCPR.

12. The Court may, where it is in the interests of justice, grant leave for a person to act as an interpreter despite not complying with the requirements: r 31.59(4) UCPR.

13. An "accredited interpreter" means an interpreter who is accredited, registered or recognised as an interpreter for the language by a recognised agency, being the National Accreditation Authority for Translators and Interpreters (NAATI), or any other organisation approved by the Chief Justice to be a recognised agency for the purposes of Div 3 Pt 31: r 31.56 UCPR.

14. To facilitate the orderly conduct of the hearing, the accredited interpreter or ideally the parties’ legal representatives should be in a position to provide to the presiding judge’s Chambers a copy of the front and back of the interpreter’s certification/registration card prior to the hearing.

15. If the accredited interpreter is to appear via Audio Visual Link, she or he should at the commencement of the hearing, be ready to display the details of her or his registration or certification to the presiding judge when requested.

16. The Court Interpreters' Code of Conduct is set out in Sch 7A UCPR.

17. In addition to compliance with UCPR Pt 31 Div 3 and the provisions of the Practice Note, each party must, to the extent it is reasonably practicable, conduct proceedings in accordance with and so as to give effect to the National Standards: Practice Note SC Gen 21 at [10].

18. Interpreting accurately for the purposes of UCPR Pt 31 Div 3 “involves skilled and sophisticated judgments on the part of the interpreter. An accurate interpretation does not equate to a literal or ‘word for word’ translation. The Court recognises that, in general, the obligation to interpret accurately is not intended to compel, and will not necessarily be satisfied by, literal or ‘word for word’ interpretation”: Practice Note SC Gen 21 at [11].

133. Mr Reynolds provided helpful submissions (on 5 July 2022) as to the provisions regarding the National Standards, Model Rules and UCPR.

134. Not merely ideally, but generally, proceedings should not have to commence or (as happened in this case) continue with everyone in the Courtroom not the least the presiding judge uncertain as to whether the valuable court time allocated to hear the proceedings, which in this case was 3 days, would be practically stymied by the unavailability of a qualified person to interpret in the circumstances that prevailed.

135. The logistical issues in the lead up to the hearing made it highly likely that unless some specific arrangement was made for the provision of an interpreter to work with the exigencies of an audio visual mode of appearance some further logistical issues would occur at the hearing.

136. The notion that the party calling a witness requiring an interpreter is responsible for engaging an interpreter who meets the prescribed standards and requirements (r 31.58(2) UCPR) on one view only speaks to a limited part of the proceedings, relating to a witness. However, proceedings are not compartmentalised and when a party requires an interpreter that requirement will normally not be limited to the giving of evidence but extend to all aspects of the party’s involvement in the proceedings.

137. Where issues arise in civil proceedings regarding responsibility for engaging a qualified interpreter and payment for the interpreter, those decisions are made, as noted above, in the context of the court facilitating a fair hearing.

138. When the issue of provision of an interpreter arises particularly close to or in the midst of a court hearing, consideration may need to be given to whether the proceedings are adjourned to enable a proper interpreter to be available.

139. The prospect that civil proceedings might be adjourned, to enable an interpreter to be available to facilitate a fair hearing was the subject of comment in Adamopoulos at 81D-G per Mahoney JA. His Honour clearly admitted the possibility that civil proceedings may be adjourned for some time although indicated that whether civil proceedings could be indefinitely delayed for such reason would require (future) consideration: at 81F.

140. As to the question of who is responsible for engaging in interpreter, there are clearly aspects of a hearing where a number of parties involved in hearing may need interpretation for any given witness that is called. Is the party who calls a witness who requires an interpreter, to give evidence in chief, responsible for arranging an interpreter when the time comes for the witness, who has given evidence in chief, to be cross-examined?

141. Conceptually there may be many different parties in the proceedings who each call a witness and there may be a number of counsel for other parties who each wish to cross-examine the witness (subject to the rules regarding multiple counsel cross-examining: e.g. GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 22–23; Ritchie’s Uniform Civil Procedure NSW [29.5.95]).

142. Does that mean that each different party who calls a witness needs to each arrange for interpreter to be available? If five witnesses are called by different parties to give evidence on a given day do five different interpreters need to be arranged to be available to interpret?

143. Mr Reynolds understandably distinguished a multi-party case from the present case as being “really the engagement of an interpreter to enable the second defendant to participate in the process”: T199.

144. However, contemplation of other scenarios serves to address consideration of the issues that arose in this case.

145. Whilst the general position is that the party calling a witness requiring an interpreter is responsible for engaging an interpreter who meets the standards and requirements imposed by Div 3 Pt 31, the general position must give way to the particular requirements of any given hearing having regard to practical efficiencies in the conduct of the hearing and difficulties faced by one or more of the parties in arranging interpreters or difficulties faced by the Court in ensuring that a hearing progresses in a satisfactory way.

146. Without limiting the Court's powers to control its own procedures, r 31.63 UCPR provides that the Court may at any time give directions concerning the involvement of interpreters in the proceedings including:

“(b)    the number of interpreters required in any proceedings and whether relay interpreting should be used,

…

(n)    the payment of interpreters.”

147. Mr Reynolds submitted, and I accept, that the Court can depart from the position established by UCPR r 31.58(2) and (3) in an appropriate case.

147. However, apart from the power of the Court to give directions, the parties themselves have a responsibility for the conduct of the proceedings. Section 56(3) CPA provides:

“A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court”.

149. In my opinion, properly construed, (in light of s 56(3) CPA, Practice Note SC Gen 21 at [7] and r 31.63 UCPR), the responsibility referred to in r 31.58(2) UCPR for engaging an interpreter is not a fixed requirement to be understood as merely and only ever individual party decisions irrespective of the nature of the case.

150. Rather, as is evident from Practice Note SC Gen 21 at [7], when any party might require an interpreter, there ought to be an expectation that the parties themselves and legal representatives liaise with each other prior to the hearing co-operatively to ensure that appropriately qualified interpreters are available as may be necessary for all parts of the hearing, rather than a partisan approach in which each party only considers their own interests in engaging and making available an interpreter for a witness.

151. Generally speaking practitioners should assess the nature of the case and adopt (as might be appropriate) a co-operative approach to ensure that a single accredited interpreter can be available to interpret rather than the prospect of having a number of different interpreters being engaged and deployed during the hearing as different witnesses who might require interpreters for different parties are called to give evidence.

152. If such co-operative arrangements are not possible, for whatever reason, the matter ought to be listed for directions.

153. Lest it be thought otherwise, my comments in this regard are not intended to be critical of the parties in this case. Whilst there was a messiness in the way interpreting arrangements worked out in this case, the purpose of my comments is expressly not to assert (let alone attribute) blame but simply to ensure that future proceedings are conducted as smoothly and efficiently as circumstances can reasonably permit.

Principles regarding the cost of an interpreter

154. The question of who is to pay for the interpreter in the first instance is separate to the question of who is to ultimately bear the costs associated with the provision of an interpreter.

155. In addressing this issue, I expressly limit my remarks to the hearing of civil proceedings in the Supreme Court. Clearly there are other considerations that apply in relation to hearings in other courts and tribunals and other types of proceedings including for example proceedings for judicial review of asylum seekers in immigration detention regarding their refugee status: see DZAAA.

156. When I asked Jing in submissions whether there was any reason why she should not equally share the costs associated with the cost of engagement of the interpreters for the Court hearings she indicated that “if I need to share the cost, this cost can be taken out of the money that’s currently under the freezing order”: T196.

157. Mr Reynolds submitted (T197) that in terms of the cost of the interpreter, Ran would be seeking all the costs to be paid by Jing:

“the plaintiff would be seeking all the costs be paid by the second defendant, she only organised for herself an interpreter as a backup in case she struggled in cross-examination, which as it transpired, she did not really need and the interpreter’s organised by her have almost entirely been for the benefit of the plaintiff who really ought to have organised her own.

158. Subsequently, Mr Reynolds submitted in relation to the application of the Model Rules and UCPR to the facts of this case (submissions 5 July 2022) that:

“[8] ….the Second Defendant had a responsibility for arranging the interpreter for her witnesses (i.e. herself) and the Second Defendant had to be permitted to engage an interpreter to facilitate her own participation in the proceedings as a party. She had a right to participate in the proceedings via interpreter, but not to have the interpreter paid for by the Plaintiff. It is a right to participate that is contemplated in the context of civil proceedings, not a cost free right to participate.

[9] The Court can depart from the position established by UCPR rule 31.58(2) and (3) in an appropriate case. However, there is nothing unusual in the circumstances of this case that would bring it outside the metes and bounds of what was contemplated by the National Standards or UCPR rule 31.58(2) and (3).

[10] It may be accepted that the removal of language barriers to enable parties to participate in proceedings in their own language is essential to ensuring access to justice and procedural fairness. Indeed, this was the stated purpose of the National Standards (see the preamble for example), as well as the inferred purpose of SC Gen 21 and UCPR Part 31 Division 3 via the adoption of the National Standards. However, that object is achieved via the regime established by the National Standards and the UCPR; viz Model Rule 1.4 and 1.6. In terms of the present case, the object was achieved via the Plaintiff arranged the interpreter to address the language barrier when the Second Defendant’s arrangement as to an interpreter was unsuccessful.

[11] That objective does not collide with the usual approach concerning the payment of costs (i.e. that costs follow the event). First, as stated above, the Model Rules and the UCPR contemplate the party calling the witness requiring an interpreter to give evidence and the party requiring an interpreter to participate in the hearing bearing responsibility for that interpreter. Second, the fact that there is an intent to facilitate a party participating in a hearing via an interpreter does not gainsay the proposition that, if that party is unsuccessful, they should pay the costs of the other party (which would extend to all expenses including interpreters). Third, whilst it might be said that it is a necessary cost that needs to be incurred to achieve justice, the same could be said of many other expenses in the course of litigation, such the cost of preparing and printing the court book or arranging for the cost of necessary overseas telephone calls (where remote attendance by telephone is permitted), amongst other costs. Ultimately, they are all costs that need to be paid for by someone to facilitate the orderly and procedurally fair conducts of the proceedings, but that does not undercut the ordinary approach that the unsuccessful party should be responsible for them. The propositions that the costs are necessary to achieve justice and that the unsuccessful party should pay the costs of the event are not mutually exclusive concepts.”

159. Whilst it is technically true that under r 31.58, Jing had the responsibility for ‘engaging’ the interpreter for the witnesses (i.e. herself) I do not accept the submission that “there is nothing unusual in the circumstances of this case that would bring it outside the metes and bounds of what was contemplated by the National Standards or UCPR rule 31.58(2) and (3)”.

160. Leaving aside the question of the ultimate liability for costs of the interpreters in these proceedings, the ad hoc arrangements that were worked out in these proceedings for interpreters were not ideal.

161. The concept of a party ‘engaging’ or ‘providing’ an interpreter in civil cases for the purposes of r 31.58(2) UCPR might prima facie involve or give rise to an expectation that that party, in the first instance, be responsible for paying for an interpreter they require for themselves or their witnesses. However, the rule whilst referring to ‘engaging’ an interpreter, does not at least expressly deal with costs.

162. In a society which is multicultural and the occasions for parties and witnesses coming before the Court to require interpreters are not insignificant, the need for the parties to address arrangements for provision of interpreters and for the initial cost of interpreters is important and should not be left to the vagaries of ad hoc or partisan decision-making.

163. As I have mentioned above, proceedings should not have to commence with everyone in the Courtroom wondering not merely who is going to interpret in the proceedings, but how the initial cost will be borne. Again, lest anyone considers I am casting blame on the parties for the uncertainty that occurred in this case, that is not the case.

164. The provisions of s 56(3) CPA, Practice Note SC Gen 21 at [7] and r 31.63 UCPR inform decisions regarding the bearing of costs in the first instance (as distinct from the ultimate liability for costs), such that some sharing of costs as between parties should be considered for the purpose of ensuring that a matter when fixed for hearing will actually proceed smoothly.

165. Some insight on the costs issue is to my mind gleaned by the Court’s approach to expert witnesses. In years past, experts were often engaged in a partisan way by parties.

166. Legislators and the Court have for some time now recognised that experts rather than being partisan are essentially performing a role of assisting the court in administering justice.

167. The practice of the Court in relation to the payment of fees for single expert witnesses is that when a “single expert direction” is made, in the first instance, a single expert witness’s fee for preparation of the report and any supplementary report and for attending court, if required to do so, is to be paid by the parties equally, subject to other agreement or direction and subject to any later order concerning the costs of the proceedings. A single expert witness’s fee for answering questions put by a party is to be paid by the party, subject to the same qualification: Practice Note SC Gen 10 - Single Expert Witnesses at [7(k)].

168. The appointment of single party experts can often occur in a context in which one party might seek to lead expert evidence and the other does not. Nonetheless, the costs of the expert are often shared.

169. In circumstances where it will be rare that the interpreter will be solely or principally for the benefit of one party only, it is difficult to see why the costs of an interpreter should not, in the first instance, been seen as simply part of the cost of ensuring an orderly hearing.

170. On any view of the matter, the costs associated with making available an independent NAATI accredited interpreters, not merely for the purpose of assisting a party and her, his or its legal representatives, but in assisting the Court to interpret for purposes of the proceedings is clearly a reasonable expense for the purposes of the proceedings.

171. Often the question of the engagement of and payment of the costs of an interpreter will be able to be agreed by the parties or the subject of directions by the Court prior to the commencement of the hearing.

172. For the purposes of rulemaking and law reform, some consideration should be given to reviewing the rules to provide for sharing costs of an interpreter in the first instance subject to any ultimate order for costs in the proceedings, to avoid the type of logistical difficulties which occurred in this case.

173. I reiterate that my comments in this regard are directed to ensuring that hearings are able to proceed from the outset in an orderly and smooth way.

Jing’s pre-trial familiarity with procedure and participation in the proceedings

174. In pre-trial email communications with the Court and the other parties leading up to the hearing of the matter, it was evident that Jing, despite language difficulties, was able to readily communicate with the Court and the other parties by email facility in English. It appeared from email communications that she had translation software which facilitated her being able to communicate that way: e.g. emails sent to the Court and other parties on 13 April 2022 at 4:06 PM; 25 May 2022 at 11:52 AM.

175. Jing at the hearing stated that she had quite basic English and was assisted by translation software in translating documents although indicating that she did not “100% understand them”: T10. She also stated “my English is not good” (T 115) “but I have learnt English before. I know translating from English to Chinese is easy but from Chinese into English is more difficult”: T185. On one occasion she used her phone to take a photo of the English text in the court book and used a translation tool on her phone to translate the text into Mandarin: T115.

176. Jing had (as is clear from both emails sent to the Court and other parties and from the transcript of the hearing) clearly prepared for the hearing by various methods including prior to the hearing:

1. providing an affidavit affirmed by her (before Jiong Shi described as a "Chinese barrister" located in Tianjin, China) for the purposes of the hearing of her notice of motion: email 2 June 2022;

2. clarifying the purpose of written submissions: email 9 June 2022;

3. clarifying the timing of the Court hearing for each day for the purpose of booking an interpreter: email 10 June 2022;

4. providing detail of the defence and copies of affidavits on which she relied: email 13 June 2022;

5. providing a list of objections to Ran’s affidavits: email 15 June 2022;

6. providing responses to objections to her affidavits: email 15 June 2022;

7. providing written submissions: email 15 June 2022;

8. providing a revised and final version of submissions: email 17 June 2022; and

9. providing notice to the Ran’s representatives of witnesses, or specifically Ran, to be available for cross-examination: (as noted at T41).

Unrepresented litigants

177. The approach of the Court in assisting an unrepresented litigant is properly understood and to be considered in the context of the Court’s obligation to ensure a fair trial according to law for all of the parties in the proceedings.

178. In Bauskis v Liew [2013] NSWCA 297 Gleeson JA (Beazley P and Barrett JA agreeing) addressed the question of the Court's duty to unrepresented litigants in the context of procedural fairness. His Honour referring to the decision of Beazley JA (as her Honour then was) in Hamod v New South Wales [2011] NSWCA 375 at [309]–[316] stated the following propositions in respect of the Court's duty:

"The Court’s duty to unrepresented litigants

[66] The appellants’ submissions raise the issue of the role of the court in ensuring a fair hearing. The court’s duty to unrepresented litigants was examined in Hamod v New South Wales [2011] NSWCA 375 at [309]–[316] by Beazley JA (as her Honour then was) where the authorities are collected. The following propositions emerge from those authorities relevant to the present case.

[67] First, the court’s obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae‐Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41–507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135 ; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500 ; (2005) 94 SASR 154.

[68] Secondly, the court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337 ; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666 ; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]–[53].

[69] Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406 ; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914.

[70] Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corp Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14."

Information provided regarding Court processes

179. Jing was informed by me of various aspects of the stages of the hearing and the rights that parties had to participate and engage in the hearing at those stages.

180. I indicated to Jing (and the other parties) (T41-42) that:

1. I could provide a litigant (Jing) with information as to the practice, and to the procedure of the Court, to ensure that there is a fair trial to both parties;

2. how much information is provided to a litigant will depend upon the circumstances of each case;

3. the Court’s duty in providing information to a party who is not legally represented is to ensure that there is a fair trial for all parties;

4. in providing a litigant with information, it is not the Court’s role to advise the litigant how her or his rights should be exercised;

5. it is not the function of the Court to give the litigant advice, or to conduct the case on the litigant’s behalf;

6. what I described regarding the provision of information and the stages of the hearing and description of the purposes of those stages was not intended to be a complete setting out of the limits of such stage (e.g. cross-examination), rather it was intended to give the litigant (in this case Jing) sufficient information regarding the purposes or the main purposes of each stage to enable her to make her own choices;

7. it is a matter for a litigant (here Jing) to choose for herself the extent to which she availed herself of or participated in the Court’s procedures as explained;

8. the parties to the proceedings have a responsibility to use the Court time in a manner to ensure that a fair hearing of the matter occurs within the allotted time, and to focus on the real issues in dispute.

181. For the purposes of the hearing Jing confirmed, in response to my question, that she had an electronic copy of the court book with her: T8.

182. The information regarding participation in the hearing and aspects of procedural fairness which I provided to Jing included informing her of and in respect of the following matters:

1. the people who were present in Court: T2, 3, 88, 148;

2. the fact that an interpreter, who was NAATI accredited, had been sworn in and had promised to faithfully interpret the dialogue in Court: T3, 33, 148;

3. that everything that is said needs to be interpreted to the party or parties requiring interpretation: T46

4. the fact that there is a transcript of the proceedings, being a typed record of the recording of the dialogue that takes place in Court, and that if the parties seek to have access to the transcript they can apply to the Court Reporting Branch to obtain a copy: T34;

5. that counsel for Ran would make an opening statement in support of Ran’s claim: T3;

6. that Jing had an opportunity to and may make a response regarding what Mr Reynolds had said and to confirm or otherwise indicate to the Court the nature of her defence to the claim: T 6;

7. that I would deal with the objections to the affidavits and make rulings in respect of the objections to clarify what material was admitted into evidence and what was not admitted, and to ensure that each party knew what evidence was in the proceeding and what evidence had been rejected: T10, 11;

8. that despite a litigant’s (Jing’s) frustration in dealing with objections one by one, and suggestion that the objection process be terminated to move onto the next stage of the hearing, that the purpose of ruling on objections was not really a matter of saving time. Rather it is a matter of ensuring that the hearing of the proceedings is conducted in a fair manner for all of the parties to the proceedings, including the litigant in person: T11-12;

And in this regard, while there's a discretion to grant interest if there is no specific contractual provision dealing with it, it was established in Falkner v Bourke, referred to in the commentary at 100.10, that interest will almost invariably be ordered.

HIS HONOUR: Thank you.

REYNOLDS: That's a very short decision, the page reference is 576B. And interestingly, were it to apply, your Honour would find the rates set out in the annotations, sorry, the commentary at 36.7.10. And it would, in fact, be a higher rate than what the plaintiff says was agreed. But the plaintiff, of course, says against their interests, the court should find her account of the conversation occurred, and order interest in accordance with what she says was agreed.”

558. The conversation between the parties was (as I have found):

“Jianjian ZHANG: I know you have some money after refinancing the loan for your property. If you lend us the money, we can repay you after a year. We can also pay you interest. I am your brother, so don't charge me too much… can we just pay your current loan interest rate?

Me: OK. I'm right now paying 3.95%. But this is also my husband's money, please make sure you will repay it.”

559. It is not clear to me that the term as to interest was to operate on the basis that interest at 3.95% per annum would be charged only for the period until the property was sold and that the agreed rate would cease to apply once the property was sold.

560. Section 100(3)(b) CPA provides that the section does not authorise the giving of interest on a debt in respect of any period for which interest is payable as a right, whether by virtue of an agreement or otherwise. Accordingly, if a loan agreement provides for interest at an agreed rate beyond the repayment dates, s 100 will have no application: see e.g. Chu v Haddad [2014] NSWSC 1720 at [5] per Davies J.

561. In Chu v Haddad (see at [7]) there was a specific term under the heading “Repayments” in which the word "interest" appeared and the agreement read:

“Monthly interest is to be paid at the beginning of each month period in advance, (that is, on or before 19th of each month) starting on 19 September 2006 and henceforth each month for the duration of the loan periods.” (emphasis added)

562. I have the impression that on the facts here the proper construction of the interest term is that interest was to be repayable at the particular rate identified until the loan was repaid.

563. Nonetheless, as there were no specific submissions on this issue, I will permit the parties an opportunity to briefly further address on this issue.

Loan period

564. Whilst I accept Ran’s evidence regarding the alleged agreement conversation a strong theme of Jing’s defence to Ran’s claim, both in cross-examination and submissions, was a claim that Ran had not discussed with Jing sale of the property (prior to the commencement of the proceedings) or was not concerned about sale of the property, but rather that Ran only reminded her to pay attention to the rent for the property: T56, 60-61, 186, 191.

565. In relation to the loan term the WeChat messages dated 26 March 2018 and 20 April 2018, whilst predating the discussions in respect of the loan, clearly indicate that it was within the contemplation of the parties that at that stage, if monies were required to be borrowed from Ran, that they would be repaid within a period of 6 to 12 months.

566. Whilst I accept that there were discussions and correspondence by WeChat message regarding potential sale of the Chinese property, I do not consider it likely that repayment of the loan would be subject to a condition precedent that it would only be repaid at some indefinite timing linked to the sale of the Chinese property.

567. The WeChat message dated 20 April 2018 as translated (CB 91) states "The small property is not popular in the market for real". It appears that even at that stage there was some doubt communicated by Jing to Ran about the likelihood of the Chinese property being readily sold. The fact that the property remains unsold is consistent with that doubt.

568. I do not consider it likely and am not persuaded that the loan would be repaid to Ran only upon and as a condition precedent to the Chinese property being sold.

Security

569. In relation to whether the property was charged with repayment of the loan, Ran states that in the discussion she had with the defendants she emphasised the need for the defendants to make sure that the monies would be repaid, noting that the monies were also her husband's money and says that Jing indicated that both the Chinese property and the property would be security.

570. In submissions, Jing claimed that Ran lied about saying that Jian jian and Jing agreed to sell the Wolli Creek property to repay her or have it as security for the loan: T186, 192.

571. It is clear that by the time for settlement of the purchase of the property Ran was concerned about repayment.

572. Apart from accepting Ran’s evidence as to the conversation, I consider it inherently unlikely that in light of Ran’s concern not to lend unless there was no other option for the defendants to borrow and being conscious of the fact that the family were relying on Ran’s income because Di’s business was not going well (CB 46[12]) that Ran would have agreed to lend monies on a basis that involved no certainty regarding when the monies would be repaid, without any interest and without any security.

573. Rather, it is inherently likely that Ran was convinced to advance the monies based on an assurance that the property would be security for repayment of the funds.

Repayments

574. In relation to repayment of the loan, Ran contends that the defendants made two repayments of $12,000 and $5,000 totalling $17,000.

575. Jing whilst denying knowledge of the first payment does not in her defence nor in her evidence dispute that it was by means of repayment of the loan. In fact she pleads that (CB 15):

“.. the alleged payment of $12,000 made by the first defendant to the plaintiff would constitute a reduction to the balance of the principal sum of the Loan.”

576. Ran’s pleading regarding the sum of $5,000 as repayment is (CB 4):

“9. On 20 July 2019, the second defendant made part repayment of the Loan.

Particulars

The second defendant, while in Australia, transferred the amount of $5,000.00 to the plaintiff’s ANZ bank account.”

577. Jing’s defence to this is (CB 15):

“The second defendant admits paragraph 9 of the SOC, save that the second

defendant says the $5,000 was transferred to the bank account of the mother of the plaintiff and first defendant and says further that the repayment was not made pursuant to any obligation arising under the Loan Agreement.”

578. Thus, there is no real dispute on the pleadings that the amount paid actually reduced the amount of the loan.

579. It is inherently unlikely that Ran would claim that monies had been repaid from the loan by Jian jian if that were not the case.

580. Whilst, as I have indicated above, I am prepared to accept that Jing did not have particular involvement with the first payment of $12,000 on 27 May 2019, I do not accept her evidence in relation to the second payment.

581. It seems to me that on the pleadings it is actually accepted by Jing that the payment reduced the loan and the qualification in her defence is as to the mode of payment and whether there was any obligation to do it. It is more likely that the amount of $5,000 was some form of part repayment of the loan monies. In any event, I find that that the payment reduced the amount of the loan.

Defences

582. Mr Reynolds provided detailed pre-trial written submissions in respect of the estoppel, waiver, acquiescence and election defences raised in Jing’s defence.

583. In oral submissions Mr Reynolds noted that those defences as pleaded endeavour to springboard off the content of the divorce agreements that were not admitted into evidence: T183. He submitted that in any event there were issues in terms of reliance and demonstrating detriment based on (disputed) claims that Ran had not sought repayment (prior to commencing proceedings): T183.

584. Apart from the pre-hearing email in which Jing indicated she relied upon her defence and her pre-trial written submissions (at [28]), I clarified during submissions that she relied upon the estoppel, waiver, acquiescence and election defences: T194-195.

585. Jing frankly accepted that there were “legal terms” in the defence which she did not understand: T194 and pre-trial written submissions at [29].

586. Whilst informing Jing that I understood she is not a lawyer and that she cannot or may not be able to tell me anything about the legal basis or legal support for the law in relation to those defences, I gave her the opportunity to make submissions regarding the factual basis for those defences: T195.

587. Jing was only able to point to some typographical errors in the defence: T195.

588. Nonetheless, I have considered the defences below.

Estoppel

589. In defence of the claim Jing pleads that Ran represented to her that the loan would be on terms as she has suggested above, and that she (Jing) relied upon the representations in deciding to enter into the loan and not seek to refinance the loan from other sources. It is said that Jing will suffer loss and damage if Ran is permitted to resile from the effect of the representations and that it would be unconscionable for her to do so: CB 17[15]–18[20].

590. The nature of the estoppel is not addressed in Jing’s written submissions.

591. The estoppel fails at a factual level. For reasons outlined above, I do not accept that the terms of the loan were as asserted by Jing. Rather, I accept that the terms were as contended for by Ran.

592. Mr Reynolds submitted that the alleged reliance by Jing is implausible given her own evidence that she was seeking finance from Ran because she was unable to borrow money from other sources due to her foreign residency status: CB 106[27]. I agree.

593. Further, as Mr Reynolds submits, and I accept, Jing has provided no evidence that there was any alternative lender prepared to take no security, require no (or less) interest and without an obligation to pay within any particular timeframe.

Waiver

594. Jing’s defence of waiver is to the effect that Ran did not make any demand for the defendants to sell the property in order to repay her the loan and that she was aware of the terms of the May 2018 and November 2018 divorce agreements and did not raise any issues with her regarding the terms of those agreements.

595. Jing has not identified in her submissions the precise legal basis for waiver.

596. As noted by Mr Reynolds, the concept of "waiver" has multiple meanings and gives rise to "uncertainties and difficulties": see Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 per Gummow, Hayne and Kiefel JJ at [54].

597. Mr Reynolds suggests that Jing has used the concept of waiver as a defence to mean "an intentional act, done with knowledge, whereby a person abandons a right by acting in a manner inconsistent with that right": Gardiner at [56].

598. The defence of waiver insofar as Jing asserts that Ran did not make any demand for the defendants to sell the (Australian) property in order to repay the loan is contrary to my findings.

599. In any event, if what is meant by the defence is that Ran abandoned her right to repayment or acted in a manner inconsistent with that right, the defence fails on the evidence.

600. Ran states, and I accept, that she did request repayment of the loan at times dating from approximately a year after the monies had been lent.

601. Further, there is no evidence that Ran was in any way involved in the negotiation of the divorce agreements or in any way acknowledged that she was or is bound by the terms of those agreements, which agreements as to their terms were not admitted in evidence.

Acquiescence

602. Jing claims that further to the matters pleaded as waiver that Ran acquiesced to a set of circumstances whereby the defendants had agreed and acknowledged that repayment of the loan was conditional upon sale of the Chinese property such that she would be estopped or otherwise prevented from seeking to enforce any such right.

603. Mr Reynolds apprehended that Jing’s defence of acquiescence indicated that it was apparent that she intended to raise the matter in a sense of another estoppel and made reference to the decision of the Full Court of the Federal Court in Knott Investments Pty Ltd v Winnebago Industries Inc (2013) 211 FCR 449; [2013] FCAFC 59 at [147]-[148].

604. Use of the terminology of acquiescence requires some precision.

605. In Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd [2004] NSWSC 56, Young CJ in Eq at [59] quoted from the judgment of Deane J in Orr v Ford (1989) 167 CLR 316 at 336-337; [1989] HCA 4. Deane J said (omitting reference to authority):

“There has, over the years, been considerable criticism of the loose use of the word ‘acquiescence’ as a broad conjunctive or disjunctive companion to ‘laches’. Such criticism has obvious force in that, so used, the word has a chameleon-like quality which adds little besides confusion to an already vague area of equity doctrine. Strictly used, acquiescence indicates the contemporaneous and informed ('knowing') acceptance or standing by which is treated by equity as 'assent' (i.e. consent) to what would otherwise be an infringement of rights. The word is commonly also used to refer: (i) to a representation by silence of a type which may found an estoppel by conduct; or (ii) to acceptance of a past wrongful act in circumstances which give rise to an active waiver of rights or a release of liability; or (iii) to an election to abandon or not enforce rights.”

Deane J then adopted a phrase from Henry Thomas Banning, Statute Law of Limitation of Actions (2^nd ed, 1892, Steven & Haynes) p 269 saying:

“A plaintiff may, however, lose his right to relief by an 'inferior species of acquiescence' which does not amount to assent, waiver or election or give rise to an estoppel. In these cases, acquiescence may be used in at least one of three ways. First, it is sometimes used as an indefinite overlapping component of a catchall phrase also incorporating 'laches' or 'gross laches' and/or 'delay' … . Secondly, acquiescence is used as a true alternative to 'laches' to divide the field between inaction in the face of 'the assertion of adverse rights' ('acquiescence') and inaction 'in prosecuting rights' ('laches') … . Thirdly, and more commonly, acquiescence is used, in a context where laches is used to indicate either mere delay or delay with knowledge to refer to conduct by a person, with knowledge of the acts of another person, which encourages that other person reasonably to believe that his acts are accepted (if past) or not opposed (if contemporaneous).”

606. It is not entirely clear how Jing uses the defence.

607. However, on any view of the matter the claim of acquiescence appears connected to the pleading of waiver and the assertion that Ran did not make any demand for the defendants to sell the property and was somehow aware of and bound by the terms of the May 2018 and November 2018 divorce agreements.

608. For reasons which I have indicated above, I do not accept that Ran made no demand for repayment nor do I accept that Ran was in any way bound by the divorce agreements as between Jing and Jian jian.

Election

609. The final pleaded basis for Jing’s defence to the claim a defence of election described as being further and in the alternative to the matters pleaded in regard to the defence of waiver, to the effect that Ran elected not to exercise such if any right she had to repayment on the condition of the sale of the property (which right Jing denies) on or before 5 November 2020 and in the circumstances is prevented from seeking repayment of the loan before the sale of the Chinese property.

610. Again, the manner in which Jing seeks to deploy the defence of election is not entirely clear.

611. Mr Reynolds apprehended that it was being advanced in the sense of electing between inconsistent rights referring to the High Court decision in Gardiner at [56]-[63] referring to "an intentional act, done with knowledge, whereby a person abandons right by acting in a manner inconsistent with that right".

612. Mr Reynolds submits that the defence is confusing and misconceives Ran's case which is simply that the loan was repayable by the end of August 2019 and that that date had passed.

613. Even accepting Jing’s pleading of Ran’s alleged failure to exercise any right prior to 5 November 2020, a defence that Ran did not complain about the defendants’ divorce agreements appears misconceived. The defence fails at factual level in that I do not accept that Ran was not permitted to exercise any right to repayment prior to 5 November 2020 or was in any way bound by the divorce agreements between the defendants.

614. What Ran chose to do was to commence these proceedings to enforce a claim. That was not inconsistent with rights that she had, but rather consistent with it.

Vexatious proceedings

615. Finally, Jing in her pre-trial written submissions asserted (at [30]):

“Moreover, the Vexatious Proceedings Act 2008 (the Act) (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground.”

616. Jing in her objections to evidence also referred to the Vexatious Proceedings Act 2008.

617. Whilst there is a Vexatious Proceedings Act 2008 (NSW), which is part of New South Wales law, its application to these proceedings was never pleaded in a defence by Jing nor explained by Jing and there is simply no basis in my view for any defence to the claim based on that legislation.

Charge

618. In support of Ran’s claim in respect of a charge over the proceeds of sale, Mr Reynolds referred the Court to the decisions of Slattery J in Peters v Lithgow Forge Pty Ltd [2011] NSWSC 1185; (2011) 15 BPR 29,611 and of Darke J in Rogers v Rogers [2020] NSWSC 392.

619. In particular Mr Reynolds referred to passages in Rogers v Rogers at [56]-[62] as follows:

“[56]  An equitable charge may take the form either of an equitable mortgage, or of an equitable charge not by way of mortgage (see Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584 at 594 per Buckley LJ, in the Court of Appeal). It was not suggested that an equitable mortgage was created in the present case. Accordingly, the issue is whether a binding and enforceable charge not by way of equitable mortgage was created.

[57]  The authorities establish that, whatever the form, there are certain requirements that must be met in order for an equitable charge to arise.

[58]  In Roberts v Investwell Pty Ltd (in liquidation) [2012] NSWCA 134 at [26] Bathurst CJ (with whom Beazley JA and Tobias AJA agreed) stated that in order to create an equitable charge it is necessary:

…that property of the chargor is appropriated to the chargee for payment of a debt and the chargee has a present right to have it made available for payment of its debt. The availability of equitable remedies to enforce that right gives the chargee a proprietary interest by way of security in the property charged.

[59]  The Chief Justice proceeded to refer (at [27]) to the judgment of Buckley LJ in the Court of Appeal in Swiss Bank Corporation v Lloyds Bank Ltd (supra) at 594–5, including where his Lordship stated:

An equitable charge which is not an equitable mortgage is said to be created when property is expressly or constructively made liable, or specially appropriated, to the discharge of a debt or some other obligation, and confers on the chargee a right of realisation by judicial process, that is to say, by the appointment of a receiver or an order for sale…

[60]  The Chief Justice also referred (at [27]) to the dictum of Atkin LJ in National Provincial and Union Bank of England v Charnley [1924] 1 KB 431 at 449 –450 to the following effect:

…. I think there can be no doubt that where in a transaction for value both parties evince an intention that property, existing or future, shall be made available as security for the payment of a debt, and that the creditor shall have a present right to have it made available, there is a charge, even though the present legal right which is contemplated can only be enforced at some future date, and though the creditor gets no legal right of property, either absolute or special, or any legal right to possession, but only gets a right to have the security made available by an order of the Court.

[61]  After referring to further authorities in which these principles have been approved or adopted, Bathurst CJ stated (at [29]):

What is clear from the authorities is that for either an equitable mortgage or equitable charge to come into existence there must be an intention to create an immediate proprietary interest or immediate right of recourse to identifiable, present, or in the case of a charge, future property.

[62]  It is clear from these authorities that the intention of the chargor is of cardinal importance (see also Morris Finance Ltd v Free [2017] NSWSC 1417 at [30] per Ward CJ in Eq). It is also clear that an equitable charge is a proprietary interest granted by way of security, which entitles the chargee to resort to the property only for the purpose of satisfying some liability due to the chargee, whether from the person providing the security or a third party (see Re Bank of Credit and Commerce International SA (No 8) [1988] AC 214 at 226 per Lord Hoffman, cited with approval by the High Court in Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liquidation) (2000) 202 CLR 588; [2000] HCA 25 at [6]).”

620. I think it is inherently likely that the conversation Ran said took place on 30 August 2018 assured her to provide the loan monies.

621. It is distinctly arguable (and I accept) that the conversation was in terms of the authorities intended by the defendants to be a special appropriation of the property to the discharge of the debt, which intention and proposal was accepted by Ran as the basis for lending.

Conclusion

622. In the result I find that the terms of the loan are as asserted by Ran and that she is entitled to the relief sought in the proceedings, subject to receiving submissions as to the duration of the application of the agreed interest rate.

623. The orders of the Court are:

1. Judgment for the Plaintiff.

2. Parties to bring in short minutes of order, including submissions as to what interest rate applies after the term of the loan and on costs, by 4:00 PM on 15 July 2022.

3. Adjourn the proceedings to 10:00 AM on 22 July 2022.

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Amendments

21 July 2022 - Paragraph numbering throughout judgment corrected