Wang v Fan

1. [1]

   This matter concerns payments between Ms Jingsi Wang (“the plaintiff”), and Mr Haiyang Fan (“the defendant”). The primary claims brought by the plaintiff concerned:

   1. (1)

      the plaintiff lending the defendant RMB 10,000,000 (“the RMB loan”); and

   2. (2)

      the plaintiff paying the defendant $248,500 (“the $248,500 payment”) in consideration for the defendant’s promise to marry the plaintiff.

2. [2]

   Soon after receiving monies from the December 2022 payments, the defendant ended the romantic relationship with the plaintiff. The plaintiff sought a declaration that the defendant was liable to repay the RMB loan and the $248,500 payment to the plaintiff.

3. [3]

   In response to this claim, the defendant filed a cross claim which alleged that the monies paid in December 2022 by the plaintiff were, in effect, partial repayment of previous debts (“the alleged previous debts”) made to the defendant by the plaintiff with an outstanding amount owed to the defendant in Renminbi (expressed as “RMB”) and the plaintiff in Australian dollars (expressed as “$” unless the context requires reference to AUD). The alleged previous debts were said to have accrued between August 2018 and February 2022 and concerned some payments made to and between third parties including individuals and companies whom the defendant claimed were made at the request of the plaintiff.

4. [4]

   The plaintiff was, at the close of the proceedings, the director and sole shareholder of Anson One International Pty Ltd (“Anson One”) and had been from 14 November 2013 when the company was registered. The plaintiff was additionally the director of Pfizer Group Ltd (“Pfizer”) from 13 November 2015, the date the company was incorporated in the Republic of Seychelles, until 20 October 2021 when her mother, Ping’e Yuan (“the plaintiff’s mother” or “Ms Yuan”), took over. The plaintiff’s mother was, at all times, the sole shareholder of Pfizer.

5. [5]

   The defendant was the director and sole shareholder of Func International Ltd (“Func”) from 23 June 2017, the date the company was incorporated in the Territory of the British Virgin Islands. It is unclear on the evidence whether the defendant retains those shares and his role as director.1 The defendant was also the director and sole shareholder of Syat Pty Ltd (“Syat”) from 1 March 2012 to, on the defendant’s evidence, 2017 when the company stopped trading. However, an ASIC search conducted on Syat Pty Ltd on 9 February 2023 showed that the defendant remained a director and shareholder of the company at that time.

Procedural history

1. [6]

   On 24 February 2023, the plaintiff filed a Statement of Claim (“SOC” or “the claim”) commencing these proceedings against the defendant. On the 11 April 2023, the defendant filed a Defence and a Statement of Cross-Claim which were twice amended. The Further Amended Defence (“Defence”) and Further Amended Statement of Cross-Claim (“SCC”) were filed on 22 September 2023 by the defendant. On 13 October 2023, the plaintiff filed a reply to the Defence (“Reply”) and a Defence to the SCC (“DSCC”).

2. [7]

   Both the plaintiff and the defendant filed extensive closing written submissions. The defendant was given leave to file a supplementary submission concerning authorities in relation to payments on request creating an immediate debt and a second note on credit to the Court (the submission was received on 12 April 2024). The plaintiff was given leave to make reply submissions generally in writing by consent of the defendant. Those submissions were filed on 9 May 2024. Neither party sought leave to make any further submissions after the reply submissions were filed and served by the plaintiff, except for submissions made by the parties in response to the Court’s request for a joint statement of issues.

Issues

1. [8]

   Throughout the hearing consistent requests were made to the parties to provide a joint statement of issues (“JSOI”) to the Court.

2. [9]

   A final request was made, on the last day of the hearing, for a JSOI to be provided to the Court with the supplementary submissions (which were delayed in the plaintiff’s case) or in the alternative, if there was a dispute as to the JSOI, that should be raised.

3. [10]

   Following these requests no JSOI was provided to the Court. Nor was any issue raised regarding a dispute between the parties in that respect.

4. [11]

   On 6 August 2024, the Court sent an email to the parties requesting a JSOI be provided. No response was received. On 15 August 2024, the Court sent a second email directing the parties to provide a JSOI.

5. [12]

   On 19 August 2024, Mr T Buterin, Junior Counsel for the defendant sent an email in reply which advised that the parties had been unable to agree on a JSOI and provided the defendant’s statement of issues. The plaintiff confirmed that position shortly after via email and provided the plaintiff’s statement of issues.

6. [13]

   The end result was that the parties apparently wished to represent to the Court that there was not a single issue in common which could be identified, even though, at a sedimentary level, it must have been possible to identify common issues in the respective statement of issues the parties filed.

7. [14]

   Much might be said about this failure. However, I do not propose to make any observations beyond stating that the approach of counsel has complicated and delayed the resolution of the matter and constituted, in my view, an approach inconsistent with the requirements of s 56(3) of the Civil Procedure Act 2005 (NSW).

8. [15]

   Given that position, it is necessary at the outset of the judgment to identify, albeit in the absence of that assistance, what is the pith and substance of the parties’ cases. I will attend to those matters in the following section of this judgment.

9. [16]

   Before turning to that analysis, it is well to mention that a particular issue arose during the course of the proceedings as to the authenticity of the WeChat conversations from WeChat accounts which became known in the proceedings as the Palm Beach and PUA WeChat accounts (“the Palm Beach conversations” and “the PUA conversations” respectively).

10. [17]

    The plaintiff objected to the receipt of evidence concerning the Palm Beach and PUA conversations on the basis that the documents were not authentic. With the concurrence of the parties, the Court admitted the evidence on a provisional basis pursuant to s 57(1)(b) of the Evidence Act 1995 (NSW). In the result, the respective parties were cross-examined on the Palm Beach and PUA conversations which evidence then bore upon the authenticity of the documents. I will return to that question after outlining the respective cases of the parties and dealing with issues of credit and authenticity.

The case theories of the parties

1. [18]

   This section of my judgment sets out my understanding of the essence of the parties’ cases. It is not intended to produce a full summary of the parties’ cases which, in substantial measure, but not exclusively, will be contained in the analysis of the transactions, which lie at the centre of the contest.

2. [19]

   In closing written submissions, the plaintiff expressed their “Pleadings and Contentions” as follows:

3. [20]

   That expression of the claim aligned with the particulars of the SOC (at [12]) but was amended during closing submissions.

4. [21]

   During oral submissions the Court sought to clarify the precise cause of action or causes of action in relation to the RMB loan and the $248,500 payment. The plaintiff made the following clarification:

5. [22]

   From that statement emerges two causes of action. The first is a claim for repayment of a debt on a loan based upon an implied promise to repay the RMB loan and the second is a claim for restitution for money had and received, namely the $248,500 payment, on the basis of unjust enrichment because the circumstances giving rise to the payment of the money did not occur.

6. [23]

   In the alternative, the plaintiff sought to recover the total amount of the December 2022 payments by way of restitution for money had and received.

7. [24]

   I will describe how the December 2022 payments were answered by the defendant below. However, I note that there was no dispute that these payments were made. The real issue in dispute is the characterisation of the December 2022 payments which is best explained after I deal with the Defence and SCC.

8. [25]

   I note that there was no dispute as to the essential legal principles that should be applied to the resolution of the respective claims although a particular matter of principle was raised by the plaintiff as to restitutionary relief concerning payments to third parties. I will attend to those principles briefly after attending to the defendant’s case.

9. [26]

   During the course of the final day of hearing, I sought to clarify what the precise cause of action or causes of action the cross-claimant relied upon. However, it was not made entirely clear.

10. [27]

    The defendant did not deny that the December 2022 payments were received but denied the characterisation of those payments as constituting either a loan or money had and received.

11. [28]

    The Defence pleaded that, on or about 22 December 2022, the plaintiff and the defendant had a conversation during which the defendant demanded that the plaintiff pay him the “full amount the defendant paid for the watch and deposit (totalling $248,500)” and “the total amount he paid at the plaintiff’s request and direction less the amounts paid by the plaintiff at the defendant’s request” (“the demand”) and that the “plaintiff agreed to the demand”.

12. [29]

    In broad terms, what the defendant contended was that the December 2022 payments were the repayment of existing debts owed to the defendant by the plaintiff arising from what I will discuss below as the transactions. The action that each debt rests upon was pleaded in the defence broadly as follows:

    1. (1)

       An agreement in August 2018 between the plaintiff and the defendant whereby the plaintiff agreed to convert payments to be made by the defendant in RMB into AUD. Payment was made by the defendant as directed by the plaintiff, however, “no consideration was given by the plaintiff for the benefit she received and retained from the payment made by the defendant at the plaintiff’s direction”.

    2. (2)

       From on or about August 2018 to on or about 11 February 2022 the defendant made payments to the plaintiff and third parties, namely, the plaintiff’s mother, Anson One, Haiyan Zhou and ‘Zhang’. It was further pleaded in the Defence and SCC that the defendant loaned to the plaintiff the monies he paid at her request to the plaintiff and there was an implied promise to repay the monies paid by him to third parties at the plaintiff’s request.

    3. (3)

       Additionally, the defendant made payments to Pfizer through his company Func at the request of the plaintiff.

13. [30]

    These pleadings were crystallised in the defendant’s supplementary submissions which were as follows:

14. [31]

    The essence of the defendant’s case arising out of these pleadings was encapsulated in the defendant’s oral submission on the final day of the hearing:

15. [32]

    My understanding of what senior counsel for the defendant meant by ‘an accounting exercise’ is that on the defendant’s case the payments that were made by her were payments in the nature of payments due as a result of the earlier sums paid by him at her direction.

16. [33]

    Thus, the disputed payments that were relied upon as having been made by the defendant at the request of the plaintiff, in that respect, were as follows:

    1. (1)

       On 4 August 2018, the defendant, through his mother, paid RMB 2,544,020 (being AUD 500,000) to ‘Zhu Zhang’ ("Foreign exchange transactions”).

    2. (2)

       On 30 October 2018, the defendant made 3 transfers of RMB 1,000,000 to the plaintiff’s mother (“the alleged gift transaction”).

    3. (3)

       On 16 June 2020, the defendant transferred RMB 332,214.50 to Haiyan Zhou (“Haiyan Zhou payment”).

    4. (4)

       On 29 September 2021, the defendant transferred $50,000 into the account of Zhang (“Zhang payment”).

    5. (5)

       On 29 April 2019, the defendant transferred to Anson One the sum of $950,000.

    6. (6)

       On 17 June 2019, the defendant transferred to Anson One the sum of $500,000.

    7. (7)

       On 27 December 2022, the defendant transferred to Anson One the sum of $100,000.

    8. (8)

       On 30 August 2019, the defendant, through Func, transferred Pfizer $300,000.

    9. (9)

       On 10 March 2020, the defendant, through Func, transferred to Pfizer the sum of $82,910.70.

17. [34]

    Collectively, the disputed payments shall be referred to as such or as ‘the transactions’.

18. [35]

    On the defendant’s final accounting, the defendant alleged:

    1. (1)

       the plaintiff is liable to the defendant for RMB 7,477,215 less RMB 7,628,215 = RMB 151,000; and

    2. (2)

       the defendant is liable to the plaintiff for $2,911,579.20 less $2,752,910.70 = $158,668.50.

19. [36]

    I note, in this respect, that attached to this judgment and marked as Annexure A is a document produced by the defendant marked as Exhibit B in the proceedings. The document is attached because it provides a useful guide to monies paid or received as between the plaintiff and the defendant or as between either party and third parties. It is also somewhat useful in identifying disputed transactions (or at least part of them) by the marking of those transactions in red.

20. [37]

    The attachment of this document to the judgment should not be taken as in any way definitive of the Court’s views about the transactions as they are described in that document by the defendant. For example, items 11 to 14 and 30 concern whether various payments made by the defendant to Anson One on the dates shown were loans as between the plaintiff and the defendant or Anson One and the defendant such that the fundamental issue was whether Anson One or the plaintiff were parties to the loan from the defendant. Annexure A does not and does not purport to grapple with that issue between the parties in that way where it refers to, in the headings to the fifth and sixth columns to “AUD paid by plaintiff” and “AUD paid by defendant”. Nor does it purport to be a means of reflecting upon the true character of the transactions which will be dealt with during the course of this judgment.

21. [38]

    I note for completeness that the plaintiff also produced tables of transactions in her affidavit which were less amenable to being made an attachment to this judgment whereas Annexure A was better capable of giving a bird’s eye view of the flow on monies between the parties and third parties.

22. [39]

    Nonetheless, the most appropriate way of identifying the true character of the payments is to examine each transaction in turn, provided careful attention is given to the overall context in which the transactions occurred. That process will be undertaken below.

23. [40]

    Questions were raised during the proceedings as to what the precise basis upon which it was said the plaintiff owed a legal obligation to the defendant in relation to each transfer of monies. As mentioned, this was never made entirely clear but in broad terms it was expressed by the defendant, in closing written submissions as “[t]he causes of action relied on by Mr Fan are: breach of contract; failure of consideration; unjust enrichment; and money had and received”.

24. [41]

    Further, the plaintiff contended that the payments made between the parties and the liabilities for loans give rise to a right of set-off to determine the amount owing: AWA Ltd v Exicom Australia Pty Ltd (1990) 19 NSWLR 705 and Australian Mutual Provident Society v Specialist Funding Consultants Pty Ltd (1991) 24 NSWLR 326 at 328. The defendant alternatively placed reliance upon s 21(1), Civil Procedure Act 2005 (NSW) which is in the following terms:

LEGAL PRINCIPLES

1. [42]

   The plaintiff relied upon NZI Capital Corporation Pty Ltd v Child (1991) 23 NSWLR 481 in this respect. The relevant passage at 489 per Rogers CJ is as follows:

2. [43]

   That principle appeared to be accepted by both parties and, in my view, is the current status of the law, bearing upon the claim for repayment of a loan.

3. [44]

   Restitutionary claims for money had and received only arise where there is no contract or an ineffective contract. Once there is an effective contract between parties, that contract covers the field and any such restitution claims will fail. [1]

4. [45]

   Another expression of this distinction is that, while the law of restitution seeks to reverse the defendant's gain, the law of contract seeks to compensate for the plaintiff's loss. [2]

5. [46]

   The principles outlined in “Principles of Remedies” by W Covell, K Lupton and L Parsons [3] are useful in understanding the taxonomy of the plaintiff’s claim in this respect:

6. [47]

   French CJ, Crennan and Kiefel JJ in Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7, citing David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353, expressed an approach for determining such claims (at [30]):

7. [48]

   The plaintiff relied on Roxborough v Rothmans of Pall Mall Australian Ltd (2001) 208 CLR 516 at [14] to [16] where Gleeson CJ, Gaudron and Hayne JJ considered failure of consideration as the basis for a money had and received claim:

8. [49]

   The plaintiff additionally referred to the recent case of Carpenter & Anor v Morris & Anor [2023] NSWCA 154 at [6] where Bell CJ stated:

9. [50]

   At the conclusion of oral submissions, the Court provided an opportunity for the parties to make supplementary submissions as to the principles applicable to circumstances where a request is made by “party B” to another, “party A”, to pay money to a third party. In reliance on Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 566 (“Young”), the defendant had submitted that a request of that kind constituted a loan of money payable on request which created an immediate debt owed by the plaintiff.

10. [51]

    In the supplementary submissions for the defendant reliance was placed upon Progressive Pod Properties Pty Ltd v A & M Green Investments Pty Ltd [2012] NSWCA 225 (“Progressive Pod Properties”) and CBRE (V) Pty Ltd v City Pacific Ltd (in liq) [2022] NSWCA 54 (“CBRE”). The plaintiff submitted that neither judgment supported the defendant’s submission that the mere request by party B to party A to pay money to a third party immediately created a debt owing by party B to party A. Before turning to those authorities, I propose to briefly mention the authority in Young. The defendant in Young admitted that each of the loans alleged by the plaintiff had, in fact, been made to him by the plaintiff (a deceased person) but pleaded that he had repaid such loans.

11. [52]

    The plaintiff is correct to submit that Young is authority for the following propositions:

    1. (1)

       a loan of money payable on request creates an immediate debt (page 566). A debt is conceived as a detention of a sum of money and not merely as a sum certain for an executed consideration on a mere breach of contract (see page 567); and

    2. (2)

       in such circumstances, the defendant must allege and prove payment by way of discharge as a defence to an action for indebtedness in respect of an executed consideration (see pages 569-70).

12. [53]

    The facts and circumstances in Progressive Pod Properties were amply summarised by the defendant in what follows.

13. [54]

    The issue in Progressive Pod Properties was whether the respondents (the “Greens”) were entitled to claim half of the cost of building a roundabout from the appellant (“Progressive”). The parties obtained approval to develop land they each owned on opposite sides of a road. One of the conditions of Council’s approval was that a roundabout be built to facilitate entry to their properties, the cost of which would be shared between the Greens and Progressive. It was contemplated that Council would construct the roundabout and charge the cost to the parties. However, the Greens took it upon themselves to construct the roundabout and claimed half of the cost from Progressive, which refused to pay. In reliance upon, among other things, Progressive’s agreement to share the cost of the construction of the roundabout, which was a condition of the grant of approval, the trial judge found Progressive had impliedly requested Greens to construct the roundabout for their joint benefit and at their mutual cost.

14. [55]

    On appeal, Macfarlan JA, with whom Young AJA and Barrett JA agreed, found that, while the Greens assumed Progressive would pay half of the costs, the Greens did not seek its agreement or act on any request from Progressive to do the work.

15. [56]

    In his reasons, Macfarlan JA stated at [5] to [9] as follows:

16. [57]

    Young AJA identified (at [51]) the key questions for determination as being whether there was any implied request by Progressive to the Greens and, if so, whether payment/construction by the Greens was made in reliance on that request. This, his Honour said, was determinative of a case on a common money count for money paid by the Greens for Progressive at its request, being the only cause of action on which his Honour considered the Greens could succeed: [49].

17. [58]

    From [53], Young AJA summarised the development of the law in this area which is instructive for present purposes:

18. [59]

    Progressive Pod Properties has recently been applied by the Court of Appeal in CBRE. At [33] to [36], Leeming JA, with whom Bell CJ and Brereton JA agreed, observed:

19. [60]

    The defendant relied upon these authorities to submit that the “evidence and submissions” made in his case warrant a finding that the plaintiff requested (in each transaction) the defendant to make the contested payments and the defendant made those payments in reliance on those requests.

20. [61]

    This contention is expressed at a reasonably high level of abstraction. My overall impression is the defendant failed to identify in his pleadings, with particularity, the material facts upon which it was alleged, within a recognised category, the basis upon which the plaintiff is alleged to be required to make restitution to the defendant for payments made by him to third parties.

21. [62]

    The plaintiff provided a summary of the Defence and SCC on the allegations brough by the plaintiff in the pleadings as to alleged payments by the defendant to third parties. I consider that that summary is accurate and is as follows:

    1. (1)

       As mentioned above, it was pleaded that from in or about August 2018 to on or about 11 February 2022:

    2. (2)

       in the circumstances:

22. [63]

    It would appear from those pleadings that it is alleged that there was a loan with respect to each payment to each third party or a claim for restitution for payments made to third parties at the request of the plaintiff. The plaintiff contended, with some force, that the pleadings do not allege that the plaintiff received any benefit from such parties. A further question arising is, if there was a reliance on an implied loan, what the pleading is with respect to an implicit promise to repay (CBRE at [32]).

23. [64]

    Returning to the issue of principle raised with respect to monies paid to a third party, without consideration, and at the request of the plaintiff, it is necessary at this juncture to identify three important matters:

    1. (1)

       Neither Progressive Pod Properties nor CBRE stand for the proposition that the mere request by party B to party A to pay money to a third party C immediately created a debt owing by party B to party A.

    2. (2)

       There is not a general principle that, where a person pays money without consideration at the request and for the benefit of another that such person is entitled to an indemnity. Nor does the law cast an absolute obligation on the person who requested and received the benefit of the payment to a third party to pay or repay the payment to the payor.

    3. (3)

       A claim for restitution based upon “money paid” requires proof that a person, in this case, the defendant, pays money without consideration to a third party at the request of and for the benefit of another person, in this case the plaintiff.

24. [65]

    The first and second propositions are well established by the judgment of Leeming JA in CBRE at [33] – [35].

25. [66]

    As to the third proposition, it was well established in Progressive Pod Properties that, not only must it be shown that there was reliance on the request in deciding to proceed (in that case, the Greens’ reliance) but it is also necessary to demonstrate that the party requesting the payment received a benefit from the payment: Progressive Pod Properties at [5(a)] and [9] (MacFarlan JA) and [51] and [56(4)] (Young AJA).

26. [67]

    In Progressive Pod Properties, it was unclear what benefit Progressive derived from the Greens construction of the roundabout. As Macfarlan JA observed, whether any enhancement in Progressive’s sale price would have occurred as a result of the construction of the roundabout (when considered in the light of the cost of the construction of the roundabout) was a matter of speculation (see also the observations of Young AJA at [64]).

27. [68]

    Furthermore, reference may also be made to Falcke v Scottish Imperial Insurance Company (1886) 34 Ch. D. 234 (“Falcke”) and Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635 (“Lumbers”).

28. [69]

    Falcke involved a claim by a plaintiff for restitution of a payment made by the plaintiff of a premium on a policy of life assurance which had been mortgaged by the plaintiff to the defendant. On the facts, the plaintiff failed because he could not prove that the defendant requested the payment.

29. [70]

    In Lumbers at [80], the majority of the High Court approved the following passage from the judgement of Bowen LJ in Falcke at 248, namely:

30. [71]

    Bowen LJ went on to find exceptions to that general principle including where the circumstances are such that the person whose property was preserved or benefited by the payment requested the payment.

31. [72]

    Aside from situations where money is paid for consideration such as a contract for loan, there are recognised categories in which a court may impose an obligation on a defendant to restore a plaintiff or find an implicit obligation to repay where a defendant has made a payment or laid out money to a third party at the request of and for the benefit of the defendant.

32. [73]

    In the instant case, with respect to claims for restitution, those categories may include:

    1. (1)

       where it is not sufficient to establish enrichment of a defendant (i.e. benefit to the defendant) that the defendant made a request, even if the request was satisfied: see Mason & Carter at [156];

    2. (2)

       where the payment discharges a debt owed by Party B to Party C or is in payment of a guarantee given by Party A to Party C for Party B's debt: see Mason & Carter at [116]; Progressive Pod Properties at [56](1); Israel v Foreshore Properties Pty Ltd (in liq) (1980) 30 ALR 631 at 633; and

    3. (3)

       where the payment was to preserve or benefit the property of party B: see Falcke at 241 (per Cotton LJ) and 248 – 249 (per Bowen LJ).

CREDIT

1. [74]

   I will say more about credit when I examine the parties evidence into disputed transactions, however, because credit, in my view, is an important consideration in the adjudication upon the purported claims and counter claims, I propose to make some general observations about the credit of the plaintiff and the defendant as witnesses at the outset.

2. [75]

   In approaching credit in that way, I have borne actively in mind the observations of Kunc J in Pavlis v Pavlis [2021] NSWSC 1117 (“Pavlis”) at [159]-[167] with which I broadly agree.

3. [76]

   The principles set out in Kunc J in Pavlis are, of course, not principles of law to be applied on every occasion. Rather they are matters stated to be derived and applied from particular cases based on the facts of those cases. Ultimately, it is up to the Court to assess the whole of the evidence presented, including, in that respect, issues concerning credit, and make its own findings based on that evidence.

4. [77]

   For present purposes, I rely upon the statement of principle in Liu v Lam [2024] NSWSC 1306 (at [58] – [60]) as follows:

5. [78]

   Mr P Russell, counsel for the plaintiff, made the following broad submissions on the defendant’s credit in closing written and oral submissions:

   1. (1)

      In cross-examination, the defendant accepted that an honest person is somebody who is truthful in what they do or say. Further, that honest person would not do anything to lie, cheat or steal in what they say or do. The defendant considers himself an honest person and wanted the Court to accept him as an honest person.

   2. (2)

      However, it has been established that the defendant has been thoroughly dishonest in relation to:

   3. (3)

      It cannot be said that the defendant “readily conceded when documents contained statements that were not true or inaccurate”. First, in many instances the defendant objected to giving particular evidence and did not do so until the Court issued Certificates under s 128 of the Evidence Act. Secondly, the defendant in most, if not all instances, conceded such matters because, in the circumstances, it was obvious on their face they were not true or were inaccurate.

   4. (4)

      Evidence given by the defendant to the Court was often dishonest or otherwise contradictory, evasive or, if accepted, irrational. In the result, a finding should be made in favour of the plaintiff in relation to two WeChat accounts (“the Palm Beach account” and “the PUA account”) [4] that the plaintiff says are not authentic and the messages presented to the Court by the defendant were, therefore, not sent or received by the plaintiff.

6. [79]

   In terms of broad issues of credit, senior counsel for the defendant, Mr P Newton, did not gainsay the broad adverse credit findings that might be made in regards to the circumstances outlined in subparagraph (3) above. In any event, in my view, all of the contentions made by the plaintiff as to the defendant’s credit may be readily accepted. Although I will return to deal separately with the question of authenticity, there is a relationship between my findings of credit and that issue.

7. [80]

   Mr Newton submitted that the Court should not use broad credit findings of the kind found in subparagraph (3) above to impugn the defendant’s evidence about particular transactions. Expressed in that way senior counsel’s contentions were unexceptional, provided it is understood some of the illustrations related directly to the defendant’s evidence on particular transactions.

8. [81]

   He went further to submit that particular credit findings made with respect to the defendant’s evidence going to particular transactions should not result in general findings as to the plaintiff’s evidence or necessarily impact upon the plaintiff’s evidence with respect to other transactions. I do not accept that submission in this case for a number of reasons.

9. [82]

   First, the submissions of the plaintiff’s counsel that I have accepted above (see [78]) have more global implications. Secondly, I will make adverse findings of fact with respect to the defendant’s evidence as to particular transactions which, in my view, reflect not only upon the defendant’s honesty in giving evidence in those respects but more generally as to his evidence. That conclusion may arise by the Court inferring similar dishonesty from surrounding related transactions or from the Court’s analysis of the evidence across the entirety of the transactions where in many cases dishonesty has been found.

10. [83]

    Thirdly, and by any measure and experience, the defendant presented as an extremely unsatisfactory witness in such a way as to reflect upon his honesty and reliability as a witness.

11. [84]

    As to the third reason, I accept that as a general rule there are limits to drawing such conclusions from the mere observation of a witness but, in this case, my conclusion derives not only from a close reading of the evidence in the proceedings (which is referred to in the discussion of the various transactions) but from the strong impressions created from my direct observations of the defendant in giving his evidence over an extended period of cross-examination.

12. [85]

    The plaintiff submitted that the defendant lacked any credibility as a witness whatsoever and that the Court should not accept the defendant’s evidence unless it is established by other evidence.

13. [86]

    Based upon my overall assessment of the defendant’s evidence as discussed above, when combined with the further adverse credit findings regarding the defendant’s evidence in the section of the judgment dealing with transactions, I have such concerns about both the honesty and reliability of the defendant’s evidence that, mindful of the aforementioned principles, his evidence, in general, must nonetheless, be approached with great caution.

14. [87]

    Overall, I have found that the defendant is not a truthful and reliable witness and that his evidence should be approached with such caution except to the extent that it is against his interests, is consistent with the plaintiff’s evidence (who I will find below was substantially honest and reliable) or is corroborated by contemporaneous documentary evidence or objective facts.

15. [88]

    As to the credit of the plaintiff, Mr Newton made the following submissions:

    1. (1)

       The plaintiff is a very intelligent woman who is across the dates and events. She was able to deal with transactions many years in the past and is able to provide accounting evidence in relation to transactions in the witness box. It was submitted that, keeping in mind the ability of recall of the plaintiff, it is improbable that she cannot recall particular details.

    2. (2)

       In relation to the denied authenticity of WeChat messages from the Palm Beach and PUA accounts by the plaintiff, senior counsel for the defendant submitted that, when the plaintiff was asked if she could remember why she sent a WeChat message of a QR code to the defendant on 9 October 2018, she could not remember why she sent it. It was submitted that it “becomes inherently improbable that a woman of the intelligence and capacity of recall that Ms Wang demonstrated in the witness box couldn’t remember why she sent a WeChat message to the defendant with a QR code and together with instructions on how to access the QR code”.

16. [89]

    It was contended by the defendant that, where the plaintiff’s evidence is inconsistent with the surrounding facts, matters and circumstances or contemporaneous documents (comprising WeChat messages and invoices), or contained discrepancies, displayed inadequacies or otherwise lacks probative force, the evidence ought to be rejected and inferences that arise from the surrounding facts, matters and circumstances or contemporaneous documents ought to be preferred.

17. [90]

    As a general proposition I have found the plaintiff to be an impressive witness who generally answered questions under close cross-examination in a direct, frank and intelligent manner.

18. [91]

    This is not to suggest that the plaintiff’s evidence was without blemish. I accept the defendant’s criticism of that part of her evidence as to the authenticity of the Palm Beach and PUA WeChat messages which concerned her recollection of the reason for sending the QR code. This also appeared to me to be disingenuous. A further matter going to the plaintiff’s credibility, albeit confined, was her evasive evidence given in relation to one aspect of her dealings with respect to the transaction concerning the money paid to Pfizer. I do not find, however, that the plaintiff’s evidence as to the alleged gift transaction reflects adversely on her credibility as a witness even though I have rejected the plaintiff’s case in that respect. The resolution of that issue did not attract such consideration.

19. [92]

    However, that is the full extent of my concerns as to the plaintiff’s evidence which, on my observations was, as I have mentioned, very credible.

20. [93]

    Returning to the disputed Palm Beach and PUA WeChat conversations, I have analysed the evidence in considerable detail below and formed the view in that light that they are not authentic. A conclusion which is overall confirmatory of the plaintiff’s evidence in that respect.

21. [94]

    Finally, I note that I do not accept the defendant’s submission as to how the Court should broadly approach the plaintiff’s evidence and further note that the plaintiff appeared unshaken in her evidence under cross-examination.

AUTHENTICITY OF THE PALM BEACH AND PUA WECHAT ACCOUNTS

1. [95]

   As mentioned, there is a dispute about the authenticity of the Palm Beach and PUA WeChat accounts and, in particular, the authenticity of the conversations recorded in the screenshots from those accounts of conversations as between the plaintiff and the defendant.

2. [96]

   Senior counsel for the defendant made the following submissions on this issue:

   1. (1)

      The defendant received WeChat messages from the following accounts:

   2. (2)

      In cross-examination, the plaintiff admitted that, on 23 July 2018, she sent from the Isabella account a QR Code and a series of messages. In these WeChat messages, the plaintiff gave instructions on how to activate the QR Code. The plaintiff sent the instruction: “Click the picture to identify the QR Code in the picture”. Exhibit 12 is a blown up image of the picture of the QR Code scanned and sent by the plaintiff to the defendant.

   3. (3)

      Upon scanning the QR Code with a mobile phone, access was granted to the Palm Beach account.

   4. (4)

      As mentioned, the plaintiff could not remember why she sent the QR Code. However, she admitted she sent the QR Code together with the instructions “Click the photo, and it will recognise the QR Code in the photo” to enable the defendant to get access to the Palm Beach account.

   5. (5)

      The defendant gave evidence that he received messages from the Palm Beach and PUA account that contained photographs of the plaintiff’s son, her mother, the plaintiff and personal messages.

   6. (6)

      One of the personal messages sent from the Palm Beach account was: “Have you had dinner yet, Fairy Fan” (in cross-examination, it was put to the defendant that the plaintiff sometimes referred to the defendant as “Fairy Fan”, but the defendant stated that she never called him by that name).

   7. (7)

      The plaintiff could not explain how these messages were sent to the defendant.

   8. (8)

      The “incontrovertible evidence” was that, on 23 July 2018, the plaintiff sent, from the Isabella account to the defendant, the QR Code together with instructions on how to activate the code. Upon scanning the code with a mobile phone camera, the defendant was given access to the Palm Beach account. The defendant received on the Palm Beach account, photographs of the plaintiff’s son and mother together with messages about her son and mother to which the defendant responded to.

   9. (9)

      The “incontrovertible evidence” established, on the balance of probabilities, that the plaintiff sent messages to the defendant on the Palm Beach account. This conclusion has a greater degree of likelihood than the plaintiff’s denial that she sent messages on the Palm Beach account.

   10. (10)

       The “incontrovertible evidence” was that the defendant received messages on the PUA account that included messages about what the plaintiff was wearing, photographs of the plaintiff, and a photograph of the plaintiff’s son. The defendant responded to these messages.

   11. (11)

       The “incontrovertible evidence” established, on the balance of probabilities, that the plaintiff sent messages to the defendant on the PUA account. This conclusion has a greater degree of likelihood than the plaintiff’s denial that she sent messages on the PUA account.

3. [97]

   Counsel for the plaintiff submitted that the plaintiff denied that she owned or was the holder of the Palm Beach and PUA accounts and that none of the alleged messages that appear in the defendant’s evidence were sent or received by her. Mr Russel’s submissions on this issue were as follows:

   1. (1)

      Throughout their relationship from 2018 to 2023, the plaintiff and the defendant communicated via WeChat.

   2. (2)

      Until 14 September 2023, there had been no suggestion in these proceedings, including any affidavits sworn in these proceedings, that the plaintiff and the defendant had communicated with each other on WeChat other than through the Isabella account.

   3. (3)

      On about 14 September 2023, the defendant made and served an affidavit of that date together with HF-2 in Exhibit 2, in which the defendant gave evidence for the first time claiming he had other WeChat messages with the plaiiff on two other alleged WeChat accounts of the plaintiff, namely the Palm Beach and PUA accounts (I note that this was after the two prior amendments to the Defence and SCC).

   4. (4)

      At paragraph 7 to 25 of the plaintiff’s affidavit made 17 November 2023, the plaintiff gave detailed and clear evidence of the steps taken by her to establish, maintain and operate her one and only WeChat account, being that with the WeChat user ID of “hellojingjing”. In particular, the plaintiff gave evidence that all of her usernames have included the Chinese characters of ”jingjing” and that she has never used any other usernames without those Chinese characters. Also, the plaintiff gave evidence that she always uses a photograph of herself as her WeChat profile photo because she used the account both for her personal and her business dealings and she believed a photograph of herself made her WeChat account appear more personal and trustworthy. She also gave evidence that the only WeChat account associated with her is the “hellojingjing” account (Isabella account).

   5. (5)

      The plaintiff denied she was a party to any of the apparent conversations through the Palm Beach and PUA accounts. In particular, at paragraph 38 of her affidavit of 17 November 2023 the plaintiff gave evidence of the inconsistencies in the use of the seal image on some of the Palm Beach messages.

   6. (6)

      The plaintiff gave evidence that she would never use the letters PUA as her WeChat username because it was a derogatory reference to “Pick Up Artist”.

   7. (7)

      The defendant’s reliance upon the nature of the images, including those of the plaintiff’s mother and her children, as evidence that these messages were sent or received by the plaintiff, is misplaced. Those pages of apparent WeChat conversations of Palm Beach and PUA are merely two dimensional representations of the same. They do not prove that the plaintiff is the owner of those WeChat accounts or that she sent or received those pictures or words.

   8. (8)

      The Court must first accept that those images or words were sent or received between the plaintiff and the defendant on the defendant’s phone.

   9. (9)

      The plaintiff requested to inspect the defendant’s phone and by a Notice to Produce dated 20 November 2023 sought copies of, inter alia, all WeChat conversations for the PUA and Palm Beach. Eventually, an ‘inspection’ of sorts took place at the chambers of junior counsel for the defendant on 6 December 2023.

   10. (10)

       Given the defendant’s lack of credibility, the circumstances in which he produced for the first time the alleged WeChat conversations of Palm Beach and PUA and the steps taken by the defendant to ensure that neither the plaintiff nor her legal representatives had access to his device or phone, those WeChat conversations ought to be rejected.

   11. (11)

       In relation to the Palm Beach WeChat alleged conversations, the following give rise to further or other reasons as to why these conversations should be rejected:

   12. (12)

       As to the alleged WeChat account of PUA, the following gives rise to other reasons requiring the PUA WeChat messages be rejected:

   13. (13)

       In the circumstances, the Court should reject all the purported evidence of the Palm Beach WeChat messages and the PUA WeChat messages.

4. [98]

   Mr Russell made further submissions on this issue in written submissions in reply:

   1. (1)

      Many of the defendant’s submissions are not supported by the evidence cited, are ill-founded and are not ‘incontrovertible’. For example:

   2. (2)

      The plaintiff repeats her objections, made twice, to the evidence given by the defendant in re-examination of an alleged statement from the plaintiff’s solicitor to the plaintiff which the defendant said he ‘overheard’ at the ‘inspection’ at his counsel’s chambers and which is relied on by the defendant.

   3. (3)

      Where there is not in evidence by a WeChat manual, expert opinion or evidence from someone (independently) who can cast light on these matters, the Court is not in a position to forensically make an assessment of the parties’ respective assertions, where there is dispute, as to the matters the defendant needs to prove to establish that these WeChat messages are authentic and admissible.

Consideration: authenticity

1. [99]

   At the outset of the trial, counsel for the plaintiff objected to the Palm Beach and PUA WeChat messages although accepted those messages may be provisionally admitted under s 57(1) of the Evidence Act and accepted the questions raised may be determined in the Court’s final judgment after the receipt of all the evidence.

2. [100]

   Whilst that submission was expressed in terms of relevance, the underlying basis for the objection was the authenticity of those messages.

3. [101]

   The approach preferred by the plaintiff was adopted by the Court without objection by the defendant. It was clearly available as an approach under s 57(1)(b) of the Evidence Act because a finding of authenticity (on which relevance depends) need not be ascertained before the evidence is found to be relevant and admissible, subject to further evidence being admitted at a later stage of the proceedings that will make it reasonably open to make that finding.

4. [102]

   The plaintiff made a submission as to the proper approach to determining the question of authenticity which evokes further attention to the questions raised by the objection. The plaintiff submitted that the defendant needed to prove:

   1. (1)

      the plaintiff is the owner of each of the Palm Beach and PUA WeChat accounts;

   2. (2)

      the plaintiff sent or received, as the case may be, the messages that are said to have occurred on those WeChat accounts.

5. [103]

   That submission resonates with one aspect of the judgment of Bryson J in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539 (“Rusu”) in which his Honour determined, in relation to a question on authenticity, that what must be proved, on the balance of probabilities, was that a document ‘is what it is alleged to be’ (see also Australian Securities & Investments Commission v Rich (2005) 191 FLR 385; [2005] NSWSC 417 at [117] (Austin J)).

6. [104]

   The correctness of Rusu has been widely discussed. [5] However, it would seem that Bryson J’s judgment, in that respect, has not been overturned, although has largely been confined to its own facts and circumstances. [6]

7. [105]

   That said, in my view the approach by Perram J in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; 301 ALR 326; [2012] FCA 1355 at [92] (“Air New Zealand”) is, in my view, and with respect, correct. His Honour there stated:

8. [106]

   I note for completeness, the reservation expressed by Ward CJ in Equity (as she then was) in Antov v Bokan [2018] NSWSC 1474 at [326] as to the different contexts in which issues of authenticity may arise as follows:

9. [107]

   It follows that the question immediately raised by the plaintiff’s objection must be whether there is a reasonable inference that the documents in question are authentic, and if such an inference can be drawn, whether it might rationally affect the assessment of the probabilities of a fact in issue.

10. [108]

    There can be no doubt, in my view, that it may be rationally inferred, having regard to the subject matter of the documents and the manner of the receipt of the documents, that, as a matter of law, the documents may be seen as authentic and that they are relevant because they, at least, are relevant to the resolution of certain of the disputed transactions and payments and thereby rationally affect the probability of the finding of fact the Court will make in that respect.

11. [109]

    Taken at a level of generality, and as the question of relevance above, the WeChat messages concerned the following transactions or payments relied upon in the defendant’s case: the Foreign exchange transactions (Palm Beach account); the alleged Gift Transaction (Palm Beach account) and the Zhang payment (PUA account).

12. [110]

    However, despite the defendant’s reliance on the Palm Beach and PUA WeChat conversations with respect to the Haiyan Zhou payment, it would appear that the only WeChat messages relevant to that payment are those which used the Isabella account. The Palm Beach and PUA messages cannot be relevant to that transaction. The defendant also suggested that the Palm Beach or PUA WeChat conversations were relevant to the money transferred to Pfizer. However, there does not seem to be any proper basis for that submission in terms of reliance on either the Palm Beach or PUA WeChat conversations and, hence, the same conclusion follows.

13. [111]

    I further observe, in this respect, that the fact that a particular document may not be authentic will, at least in this case, also be what makes it relevant because it may reflect on the credit of one or other of the parties.

14. [112]

    However, as Air New Zealand makes clear, the consideration of the Court does not end that juncture because authenticity of the Palm Beach and PUA WeChat messages has been squarely raised by the plaintiff and accordingly, that issue will need to be resolved as a question of fact by the tribunal of fact in accordance with ordinary principles for the resolution of questions of fact not dissimilar to those identified by the plaintiff. It is to that question that I now turn, mindful of the credit findings that I have earlier made.

15. [113]

    By an affidavit sworn 14 September 2023, the defendant raised for the first time that he had received WeChat messages from the plaintiff on what is now known as the PUA account. He attached messages which concerned the Zhang payment.

16. [114]

    By that time, the defendant had twice amended his pleadings. The amendments to the pleadings made after 14 September 2023, namely, the Defence, specifically relied upon for the first time not only the PUA WeChat conversation but also the Palm Beach WeChat conversations.

17. [115]

    On 20 October 2023, the defendant filed a further affidavit which, inter alia, produced the entirety of the Palm Beach and PUA WeChat conversations then relied upon by the defendant in his case.

18. [116]

    WeChat is an instant messaging and social media application. It is widely used by the Chinese speaking community around the world.

19. [117]

    As will have been observed a significant component of the parties submissions involved technical considerations as to the functionality of WeChat application when used via mobile phones or other devices. However, no expert evidence was called either as to the nature and operation of the system and, in particular, there was no evidence of that character bearing upon the particular WeChat accounts in question or the establishment and operation of the WeChat accounts in general. I also note that no manual or other systems instructions were provided to the Court.

20. [118]

    The limited information provided to the Court concerning the operation of the WeChat app was provided by the plaintiff in her affidavit of 17 November 2023. She had signed up for a WeChat account in 2012. The explanation was accepted in general terms by the defendant in cross-examination. The relevant parts of that affidavit are as follows:

21. [119]

    As to par [9] and [10] of the above extract from the plaintiff’s affidavit, the copy of the QR code attached to the affidavit shows a typical image of a QR code with a picture of the plaintiff in the centre of the QR code and the person’s profile photo (which is the same photo) appearing in the top left hand corner with the username beside that profile photo. That copy of the QR code is in Annexure B.

22. [120]

    Conversations involving the Isabella account showed the image of the plaintiff. The plaintiff’s username included two Chinese characters, followed by the word “Isabella”. The plaintiff’s WeChat ID for Isabella’s account is “hellojingjing”.

23. [121]

    The plaintiff gave evidence that all of her usernames have included the Chinese characters of ‘jingjing’ and that she has never used any other usernames without those Chinese characters.

24. [122]

    The plaintiff gave evidence that she has only ever used a photograph of herself as her WeChat profile photo and one of the reasons for that fact is that she uses “the WeChat account in [her] business dealings and [she] believe[s] a photograph of [herself] makes [her] WeChat account look more personal and trustworthy”.

25. [123]

    Throughout their relationship from 2018 to 2023 the plaintiff and the defendant communicated with each other via WeChat. The defendant estimated that the number of messages between the plaintiff, using the account with the WeChat ID “helllojingjing”, and the defendant in the period 2018 to 2023 was “millions”.

26. [124]

    The plaintiff’s evidence was that, she had only established, maintained and operated one WeChat account being that with the WeChat user ID “hellojingjing”.

27. [125]

    The Palm Beach account displays an image of Palm Beach. It has a username of “.”. The WeChat ID for that account is “queenis9”.

28. [126]

    In the defendant’s 20 October 2023 affidavit (omitting images and statements in Mandarin), the following evidence was admitted under s 136 of the Evidence Act:

29. [127]

    The image in 10(j) of the extract above of the defendant’s affidavit was enlarged and became exhibit 12 in the proceedings which is annexed as Annexure C.

30. [128]

    The image of the QR code in Annexure C does not contain a profile photo of the plaintiff. It does contain an image of unidentified shapes but the image is not the palm beach image which appears in the Palm Beach WeChat messages relied upon by the defendant.

31. [129]

    There are Chinese characters appearing at the top of the image of the QR code. The defendant was cross-examined as to the meaning of those words. He agreed that the first word was “collect”. However, in evidence as to the second word, his evidence was initially “the second maybe that means a fairy or a demon, something, yeah”. That evidence is curious because it is most unlikely that the interpretation would involve apparently opposite concepts as between a fairy and a demon and the defendant relied upon a reference to the words ‘Fairy Fan’ in the forensic analysis undertaken of communications sent by the plaintiff to the defendant as to the use of the QR code to which I will return. Ultimately, the defendant conceded that the Chinese characters used are translated to “collect demons”. He also accepted that in consequence, the username for the QR code was “collect demons”.

32. [130]

    That fact is significant in a number of respects as follows:

    1. (1)

       The plaintiff had never been referred to the defendant’s knowledge by the words “collect demons”. In other words, it had not been an expression associated with her.

    2. (2)

       The Palm Beach account username does not have the words “collect demons” as the username.

    3. (3)

       The defendant agreed in cross-examination that the only username he had seen on the Palm Beach account was the full stop.

    4. (4)

       The defendant also agreed that the only profile photo on the Palm Beach account that he had seen was the image of Palm Beach.

33. [131]

    There is no dispute that, on 23 July 2018, the plaintiff sent a WeChat message from Isabella’s account. The message contained an image of the plaintiff where the message is from her and an image of a seal when a response is given or a statement is made by the defendant.

34. [132]

    The English translation of the messages without images (although there is a notation referring to images) appears below:

35. [133]

    Where the first reference to “photo” appears in the English translation of the messages what appears was Annexure C. Then the plaintiff stated in the messages two invitations or instructions:

    1. (1)

       “Could you accept the WeChat invitation”

    2. (2)

       “Click the photo and it will recognise the QR code in the photo”

36. [134]

    The profile picture in the photo is that appearing in Annexure C and not the Palm Beach photo. As noted earlier, the plaintiff submitted that the first mentioned invitation was not confirmatory that it was an invitation to the plaintiff’s WeChat account or her QR code.

37. [135]

    As earlier mentioned, the defendant contended that:

    1. (1)

       Upon scanning the QR code with his mobile phone, access was granted to the Palm Beach account.

    2. (2)

       The plaintiff had conceded that she sent the QR code together with the second mentioned instruction above to enable the defendant to get access to the Palm Beach account.

    3. (3)

       When the defendant gained access to the Palm Beach account, it contained personal photographs and messages relating to the plaintiff including a message “have you had dinner yet, Fairy Fan”.

    4. (4)

       The plaintiff sometimes called the defendant Fairy Fan.

38. [136]

    In the defendant’s affidavit of 20 October 2023, he gave evidence as to the receipt of the WeChat message of 23 July 2018 on his belief and understanding as earlier extracted above. There are two other paragraphs of his affidavit that are relied upon by the defendant in this respect (omitting the image):

39. [137]

    The image shown in Par 11 of the defendant’s affidavit of 20 October 2023 is not the image that appears in the top left of the QR code. Nor is it, when taken as a whole, the image that appears in the various messages appearing in the Palm Beach WeChat conversations. Rather it appears on a separate page of the WeChat messages where the full stop username appears, as shown on the image the WeChat ID, as well as three dots in the top right-hand corner which gives access to other parts of the WeChat system.

40. [138]

    The defendant was cross-examined on his evidence in this respect. The oral evidence relied upon by the defendant in his written submissions essentially directed attention to his re-examination and, in turn, to issues raised during cross-examination about the inspection of the defendant’s phone in junior counsel’s Chambers on 6 December 2023.

41. [139]

    The plaintiff requested to inspect the defendant’s phone and by a Notice to Produce dated 20 November 2023 sought copies of, inter alia, all WeChat conversations for the PUA and Palm Beach. Eventually, an ‘inspection’ of sorts took place at the Chambers of junior counsel for the defendant on 6 December 2023. In cross-examination, the defendant gave evidence of that ‘inspection’ including:

    1. (1)

       the defendant instructed his barrister that neither the plaintiff, her counsel or her instructing solicitor were allowed to touch his phone and that they were not allowed near his phone;

    2. (2)

       the plaintiff and her legal representatives sat opposite the defendant and his legal representatives across a wide boardroom table;

    3. (3)

       the defendant’s device was connected to a computer that allowed it to project images up to a screen and there were a large number of images that were put up that day;

    4. (4)

       the defendant gave those instructions because he did not want anyone having any access to his device.

42. [140]

    During the course of that re-examination, the following passage of evidence and objections occurred:

43. [141]

    In closing written submissions, the defendant contended upon scanning the QR Code with a mobile phone, access was granted to the Palm Beach Account.

44. [142]

    The plaintiff repeated her objections, made twice, to the evidence given by the defendant in re-examination of an alleged statement from the plaintiff’s solicitor to the plaintiff which the defendant said he ‘overheard’ at the ‘inspection’ at his junior counsel’s Chambers and which is relied on by the defendant in paragraph 23. The plaintiff sought that the Court reject or give no weight to that the evidence for the following reasons:

    1. (1)

       The evidence did not arise from cross-examination but was fresh evidence that ought to have been given in chief to allow the plaintiff to properly answer and test it.

    2. (2)

       Prima facie, the evidence is of a privileged conversation between the plaintiff and her solicitor: s 118, Evidence Act.

    3. (3)

       In any event the evidence is hearsay and is not admissible: s 59 of the Evidence Act.

    4. (4)

       The statement is by the plaintiff’s solicitor and not the plaintiff. Thus, it could not amount to an admission for the purposes of s 82 of the Evidence Act.

    5. (5)

       The circumstances in which this evidence was adduced in re-examination at the end of the hearing of the evidence means that the danger that the evidence is unfairly prejudicial to the plaintiff substantially outweighs its probative value: see ss 135 and 136 of the Evidence Act.

45. [143]

    The passage of evidence extracted above illustrates that the evidence given by the defendant as to statements made during the inspection on 6 December 2023 were given after the objection taken by counsel for the plaintiff. So much is indicated by the attempt by senior counsel for the defendant to renew the question after that answer was given and before any ruling was made on the objection.

46. [144]

    The observations of the Court appear to be mis-transcribed where there is a reference to “an answer retained” on p 237 of the transcript on 22 March 2024. Senior counsel for the defendant does not take the matter any further and suggested that the questions were in relation to accusations of “denial of access”.

47. [145]

    However, it is clear from the closing submissions advanced by the defendant that the defendant relied upon the evidence as demonstrating that the QR code sent by the plaintiff on 23 July 2018 was connected to the “plaintiff’s account”. It is also clear that the use intended to be given of the evidence is not confined to the question of ‘denial of access’ but rather to the proof that the plaintiff had sent via the QR code the Palm Beach account to the defendant and, in turn, had then proceeded to send messages on that account.

48. [146]

    In my view, there was no final determination of the objection by the Court given the course taken by counsel. If re-examination was confined, to denial of access, then it would have been permissible but with the benefit of the further submissions made by the defendant it is plain that the questions were not so confined.

49. [147]

    When seen in that light, the basis for the objections made by the plaintiff are well foundered (except perhaps for the second basis) in so far as they are directed to the italicised questions by senior counsel of the defendant in the above extract from the transcript above. I uphold the objections to the question.

50. [148]

    That ruling may, however, be somewhat artificial at this juncture. A partial answer was given to that question which remains on the Court’s record. Strictly speaking, the ruling on the question could result in the answer being struck but as the answer appears on the Court record and no particular submissions had been advanced by either party in that respect, I will take the alternative course proposed by Mr Russell and treat the answer as having little or no weight.

51. [149]

    My ruling in this is the product of my overall view of the defendant’s credit but is also conditioned by the circumstances in which the defendant attempted to give the evidence in question during re-examination. I also have real doubts as to the plausibility of the proposition that the plaintiff’s solicitors would make the suggestion attributed to him vis-a-vis authenticity during the course of the assembly of the respective parties and their lawyers in a Chambers setting for the purposes of evaluating that very question by examining the defendant’s phone. Further, I have taken into account the unusual arrangements which eventuated which were the product of a refusal by the defendant to enable his phone (which apparently contained the WeChat messages) to be openly interrogated by the plaintiff or her legal representatives.

52. [150]

    The defendant relied upon the content of the Palm Beach and PUA WeChat conversations as supportive of the defendant’s evidence that he received such messages. There can be no doubt that there appeared with the messages, photographs of the plaintiff’s son, her mother and the plaintiff. I will return to the question of personal aspects of the messages below.

53. [151]

    I now turn to the defendant’s submissions as to the plaintiff’s evidence. That submission states that the plaintiff could not remember why she sent the QR code. That is correct and I have reflected on her credit in that respect. However, the submission is also made that the plaintiff “admitted she sent the QR code together with the instructions ‘Click the photo, and it will recognise the QR Code in the photo’ to enable Mr Fan to get access to the Palm Beach account.”

54. [152]

    That submission cannot be accepted. What the plaintiff admitted was that she sent the QR code together with the instruction. However, her evidence beyond that is to the contrary of the proposition that she took the step to enable the defendant to get access to the Palm Beach account.

55. [153]

    The plaintiff’s evidence in cross-examination in that respect was as follows:

56. [154]

    There are a number of features of the documents purporting to constitute the Palm Beach WeChat messages from the plaintiff to the defendant which raise serious questions about their authenticity. Without the benefit of any expert evidence produced by the defendant, my assessment of those issues is as follows:

    1. (1)

       The QR code sent by the plaintiff at pages 1 and 2 of HF-3 in Exhibit 2 is part of a photograph of another phone that holds that image of the QR code. The Palm Beach WeChat conversations are merely a two-dimensional representations of the images of the plaintiff’s mother and her children and not evidence as such that these messages were sent or received by the plaintiff.

    2. (2)

       There are three ways to send a QR code directly from a phone or device, namely by using the function under the three dots on the QR code screen to send it straight from that screen; using the function ‘save image’ on the QR code screen to save it to the device’s photos folder; and to take a screenshot of the QR code which would save the image to the device’s photos folder.

    3. (3)

       There is no evidence that the plaintiff owned another phone upon which she used the Palm Beach WeChat and had that QR code or why she would send a photo of it on another phone rather than sending it directly from her phone.

    4. (4)

       There is no photograph of Palm Beach in the QR code in Annexure C.

    5. (5)

       The username for that QR code, namely, “collect demons” is not an expression that has been known to be used in or in connection with the plaintiff.

    6. (6)

       The images and the username in Annexure C do not appear in the Palm Beach account. The plaintiff gave unchallenged evidence that you cannot use two names at the same time or use two pictures.

    7. (7)

       As to the WeChat ID of queenis9, the defendant agreed that the plaintiff’s search for that WeChat ID in WeChat led to a result of “user not found”. Furthermore, the defendant gave evidence that he knew of this matter before he swore any of his affidavits, and despite having a number of occasions to do so, did not provide any explanation in these affidavits as to why this may be so and that queenis9 is the registration number of the defendant. It makes little difference, in my view, to this consideration that the plaintiff may have from time to time borrowed the defendant’s car.

    8. (8)

       Whilst the defendant placed reliance upon personal messages in the Palm Beach Wechat messages as signifying that the plaintiff had sent the Palm Beach WeChat account, and, in particular, relied upon the reference to “Fairy Fan”, when cross-examined upon that expression, as previously mentioned, the defendant denied that the plaintiff ever referred to him in that fashion.

    9. (9)

       To those considerations may be added the observations of the Court as to the veracity of the Palm Beach WeChat messages when considered in the light of the defendant’s evidence under cross-examination with respect to the Foreign Exchange Transaction discussed below.

57. [155]

    There are some further considerations which, in a broader sense, raise doubts about the authenticity of the Palm Beach WeChat conversations as follows:

    1. (1)

       There is no adequate explanation as to why the plaintiff departed from her standard practice of using the Isabella account for WeChat messages and set up other accounts for her WeChat messages only with the defendant.

    2. (2)

       As the plaintiff correctly pointed out the period of operation of the Palm Beach account is quite limited.

    3. (3)

       The circumstances in which the defendant produced, for the first time, the Palm Beach WeChat conversations and the unusual circumstances under which access to the plaintiff and her legal representatives was given by the defendant to his phone also cast doubts on the authenticity of the messages or their receipt upon the defendant’s phone.

58. [156]

    It is true that the evidence sustains that the plaintiff sent from the Isabella account to the defendant a QR code together with instructions on how to activate or use the code. It is also true that the version of the Palm Beach account produced in evidence by the defendant contains photographs of the plaintiff’s son and mother together with messages about the son and mother to which the defendant responded. I have rejected the use of the personal reference to “Fairy Fan” as properly being described as a personal message as it is not an expression which had hither to been used by the plaintiff in relation to the defendant.

59. [157]

    However, the acceptance of the following propositions advanced by the defendant depends upon the acceptance of the defendant’s evidence as a witness lacking in credit (in particular to his evidence about one of the WeChat messages relating to the Foreign Exchange Transaction and the alleged gift transaction), the rejection of the plaintiff’s evidence and an acceptance that the aforementioned questions as to authenticity may be overcome in the defendant’s case that:

    1. (1)

       upon scanning the QR code the defendant was given access to the Palm Beach account; and

    2. (2)

       the plaintiff sent messages to the defendant on the Palm Beach account and the defendant responded to those messages.

60. [158]

    Having regard to those factors, the defendant’s case that the Palm Beach WeChat messages are authentic may not be accepted. In my view, the much greater likelihood is that the plaintiff was honest in her denial that she had sent messages on the Palm Beach WeChat account. Nor do I consider that the evidence permits a conclusion that the QR code in Annexure C was linked to a WeChat account that belonged to the plaintiff.

61. [159]

    In the circumstances, it has not been established on the evidence, on the balance of probabilities, that the Palm Beach WeChat messages produced by the defendant are authentic. Nor do I accept that the conversations between the plaintiff and the defendant on the Palm Beach account are authentic.

62. [160]

    As I noted at the outset of the discussion of this question that is a determination of fact which then contributes to other findings of fact in relation to the various transactions to which I have earlier referred.

63. [161]

    I turn then to the PUA account and, in doing so, reach the same conclusion essentially for the same reasons although what follows sets out further considerations as to why the PUA WeChat conversations should be found not to be authentic.

64. [162]

    As previously mentioned, the PUA account contains an image of a head and shoulders. This appears to be a default picture of a silhouette of an upper portion of a person.

65. [163]

    The plaintiff gave evidence, which I have found convincing, that she would never use the letters “PUA” as her WeChat username because it was a derogatory reference to “Pick up Artist”.

66. [164]

    Unlike the Palm Beach account, the defendant does not give evidence in his affidavit as to how he received the PUA account. He certainly does not give evidence that he received it after the plaintiff sent him a QR code from which he accessed that account.

67. [165]

    Apart from those considerations, the additional factors raised by the plaintiff as reasons for rejecting the PUA account as being authentic as summarised above should be accepted.

68. [166]

    I do not accept that the conversations recorded in the PUA account may, on the evidence, be accepted as authentic.

FINDINGS OF FACT AND THE DISCUSSION OF ISSUES CONCERNING THE TRANSACTIONS

1. [167]

   With the earlier broad findings of credit in mind, I turn to background facts and particular findings of fact regarding a promise of marriage in December 2022 and the RMB loan. Later in the judgment I shall deal with the transactions. The transactions will be approached, so far as possible, in a chronological fashion but it is not entirely possible to achieve that end given the way in which the parties have grouped some of the transactions.

Whether there was an agreement for marriage and the RMB loan?

1. [168]

   The plaintiff and the defendant are migrants from China and were both previously married and have children from those marriages.

2. [169]

   The parties were unable to produce a common or agreed chronology. Nonetheless, there did appear to be some factual commonality between the respective chronologies filed. Furthermore, there was some matters of fact which did not appear to be in dispute in the evidence of the respective parties.

3. [170]

   The financial relationship between the parties was described by the plaintiff, in her affidavit of 23 February 2023, as follows:

4. [171]

   The defendant’s evidence as to that broad consideration was given in his affidavit of 5 July 2023 as follows:

5. [172]

   From the period between August 2018 and February 2022 a number of transactions were made between the parties which were variously agreed or the subject of dispute, as previously mentioned, with respect to their nature and character. For present purposes I focus upon the events in December 2022 when various conversations occurred between the plaintiff and the defendant which, on the plaintiff’s case, included a promise to marry. I shall now turn to that question.

6. [173]

   In 2018, the plaintiff and the defendant commenced a romantic relationship (“the relationship”).

7. [174]

   In about March/April 2020, the plaintiff and her two sons moved in to live with the defendant, his daughter and niece at the Killara property. In about November 2020, the plaintiff ended her romantic relationship with the defendant and moved out of the Killara property with her sons. The plaintiff later commenced a relationship with Mr Su.

8. [175]

   The plaintiff ended the relationship with Mr Su in May 2021 and, in about June 2021, the plaintiff and the defendant resumed their romantic relationship.

9. [176]

   The plaintiff alleged that sometime in June 2021, she had a conversation with the defendant to the following effect:

10. [177]

    The defendant alleged the offer to purchase a watch for the plaintiff arose in a conversation on or about 20 June 2021 where the defendant said words of the following effect to the plaintiff:

11. [178]

    On 25 June 2021, the plaintiff and the defendant attended the Van Cleef Arpels (“VCA”) shop in Sydney, where upon the defendant purchased a watch for the plaintiff worth $234,000 and a ring worth $14,700.

12. [179]

    On 25 September 2021, the defendant paid a deposit of $14,500 for a necklace that he intended to purchase for the plaintiff’s birthday in October.

13. [180]

    On 21 October 2021, the plaintiff returned the watch and used the necklace deposit to purchase a new watch worth $370,000. The plaintiff and the defendant spoke over the phone regarding this exchange, however, the defendant was plainly not happy with the plaintiff’s actions. The defendant stated he said the following on the phone call: “I don’t want you to do that. I bought you that watch as a sign of my love for you and you can’t just replace it”.

14. [181]

    Between June 2021 and October 2022, the plaintiff and the defendant had “ups and downs”, lived in separate properties, and had a number of arguments regarding Mr Su staying at the plaintiff’s house and him asking to resume their relationship.

15. [182]

    During this period, it would appear that the plaintiff and the defendant became romantically estranged even though their friendship apparently continued. The plaintiff stated the following conversation occurred on 31 August 2021:

16. [183]

    The plaintiff gave evidence that shortly afterwards there was a reconciliation between her and the defendant and they resumed their romantic relationship. There was no dispute as to the relationship resuming at that time. Nor was there any cross-examination as to this evidence. Having regard to my earlier credit findings, and in those circumstances, I accept the evidence.

17. [184]

    On or about October 2022 the plaintiff and the defendant had an argument regarding various recordings made during a previous relationship.

18. [185]

    The plaintiff and the defendant ceased contact in October 2022 until mid-December 2022.

19. [186]

    The plaintiff stated that on 15 December 2022, she had a conversation with the defendant in which words to the following effect were said:

20. [187]

    The defendant alleged different conversations occurred in December 2022 between the defendant and the plaintiff. The defendant alleged he proposed three conditions to resuming a romantic relationship and that the conversation was on 12 December.

21. [188]

    The defendant stated he had a conversation with the plaintiff on 12 December 2022 in the following terms:

22. [189]

    That evidence was admitted under s 136 of the Evidence Act.

23. [190]

    The defendant alleged that a further conversation occurred on 15 December 2022 as follows:

24. [191]

    The defendant asserted he stated the following on 26 December 2022:

25. [192]

    The plaintiff agreed that a conversation occurred on 26 December 2022 but recalled the conversation differently to the defendant as follows:

26. [193]

    The defendant denied having a conversation to that effect and specifically denied saying the word marry or agreeing to marry the plaintiff.

27. [194]

    From the 15 to 26 of December 2022, the plaintiff made the following payments to the defendant:

    1. (1)

       15/12/22 - transfers $500,000 from plaintiff s WBC account to defendant's CBA account;

    2. (2)

       16/12/22 - delivers $70,000 to defendant at Killara property;

    3. (3)

       16/12/22 - transfers $30,000 from plaintiff's WBC account to defendant's CBA account;

    4. (4)

       19/12/22 - transfers RMB3,000,000 from plaintiff's CMB account to defendant's ICBC account;

    5. (5)

       22/12/22 - transfers RMB2,000,000 from plaintiff's CMB account to defendant's ICBC account;

    6. (6)

       23/12/22 - transfers RMB2,000,000 from plaintiff's CMB account to defendant's ICBC account;

    7. (7)

       26/12/22 - transfers $248,500 from plaintiff’s WBC account to defendant's CBA account.

28. [195]

    On 31 December 2022 the defendant ended the romantic relationship with the plaintiff due to a further argument regarding the plaintiff’s previous relationship and alleged photography in that previous relationship.

29. [196]

    I have earlier discussed the way the parties put their cases so far as it relates to the events between mid to late December 2022. As to the respective statements of issues, there would at least appear to be a common question advanced in this respect, namely, whether, in the period between 15 to 26 December 2022, the defendant promised to marry the plaintiff on the condition that or in consideration for the plaintiff lending to the defendant the RMB loan and the plaintiff paying to the defendant the $248,500 payment. The refinements to the plaintiff’s case indicate that the claim for the RMB loan was only advanced on the basis of a loan (and not a promise to marry) whereas the $248,500 payment was advanced on the basis of the alleged agreement to marry and made as a claim in restitution.

30. [197]

    A subsidiary issue was whether the alleged conversation of 12 December 2022 occurred, and if so, what was the context of it.

31. [198]

    Before turning to the transactions, I will briefly deal with the issue regarding the existence of an agreement to marry.

32. [199]

    Despite substantial evidence in the affidavits of the plaintiff and the defendant regarding whether there was any marriage agreement in December 2022 neither party made substantial submissions on the point.

33. [200]

    In oral submissions Mr Russell stated the following:

34. [201]

    Mr Newtown stated in oral submissions “Nothing turns on whether the plaintiff and defendant had some agreement or understanding that there was a promise to marry”. Mr Newtown additionally stated:

35. [202]

    I agree with the submission advanced by the defendant that the RMB loan is irrelevant to this issue. That conclusion follows at least from the way in which the plaintiff adjusted her position as to the basis upon which the RMB loan was pursued in the proceedings, namely, as a loan simpliciter.

36. [203]

    However, the issue is relevant to the $248,500 payment, and in some respects the credit of the defendant.

37. [204]

    The background circumstances as I have set them out, in my view, strongly favour the plaintiff’s account of the conversations that occurred from 15 December 2022 irrespective of broader issues of credit. Those factors were as follows:

    1. (1)

       There had been a prior promise to marry in June 2021. Even on the defendant’s account there was an aim to marry. At that time, the watch was purchased from VCA.

    2. (2)

       In October 2022, the relationship ceased for a period of time because the defendant had refused to marry at that time as it was not a good time to marry. The questioning in this respect was somewhat confusing because it referred to October 2021 but it is clear that the defendant understood that the questions concerned the period in which the relationship had ceased.

    3. (3)

       Although there was some prevarication during the course of cross-examination, the defendant ultimately accepted that he understood that marriage was very important to the plaintiff, and this had particular connections to cultural norms in China.

    4. (4)

       Irrespective of the version of events given by the respective parties in relation to the conversations in December, there was no dispute that the defendant had attached conditions to the resumption of the romantic relationship. That fact is consistent with the defendant and plaintiff entering into an arrangement which involved a promise to act upon certain terms and conditions being met. I agree with the submission of the plaintiff that it is most unlikely, given the history between the parties, and the plaintiff’s strong views on the topic, that such an arrangement would not have been reached without the plaintiff having received a promise to marry. The absence of any mention in the defendant’s account of marriage strains credibility for the same reasons.

    5. (5)

       Putting aside the character of the payments, there is no dispute that the plaintiff made payments to the defendant at and immediately following the time of their conversations consistent with an arrangement she said had been reached. I note, in that respect, that I do not accept the defendant’s evidence that a conversation occurred on 12 December 2022. In my view, that construct was a self-serving one to underpin his evidence that he imposed three conditions.

    6. (6)

       I agree with the submission of the plaintiff that the conditions imposed by the defendant (whether it be two or three conditions) were deliberately designed to manipulate the plaintiff into paying a substantial amount of money to him. It is most unlikely that that manipulation would have had the purchase upon the plaintiff, as an independent and intelligent woman, in the absence of there being at play something that she considered important to meet her cultural obligations in China and further to meet the expectations of her mother in that respect. It is true that the plaintiff was attempting to regain the defendant’s trust after the issues arising with respect to Mr Su and the various recordings that the defendant had become aware of, but there can be no real doubt that the ultimate purpose of the discussions in December 2022 was to re-establish a romantic relationship which had always had at its foundation her desire for marriage (which had sometimes been reciprocated by the defendant and other times not so).

38. [205]

    The defendant stated in his evidence that he had sought the second condition on the basis that he wanted money that he had “lent” to the plaintiff repaid to him (in the sum of RMB 12 million) but I do not accept that evidence for the following reasons:

    1. (1)

       As I will find below, most of the transactions which the defendant ultimately relied upon in claiming the existence of such a loan cannot be sustained. The defendant’s case was that the RMB loan could not properly be described as a loan because in essence the monies merely corresponded with debts owed by the plaintiff to the defendant or monies properly needing to be paid in restitution. The defendant’s evidence conveniently corresponds to that case.

    2. (2)

       It follows that the assertion as to the conversation of 15 December 2022 suffers the difficulty of the plaintiff not having loaned such monies based upon the findings made in this judgment with respect to the transactions below.

    3. (3)

       It is true that the defendant does refer to the alleged gift transaction, but even accepting that payment was a gift, it does not account for the balance of the monies which the defendant asserted he referred to in his version of a conversation of 15 December 2022.

    4. (4)

       Nowhere has it been shown in evidence or submissions what the amount of RMB 12 million concerned.

    5. (5)

       These conclusions have conformity with my earlier credit findings.

39. [206]

    In my view, the plaintiff’s evidence about the conversations with the defendant between 15 December and 26 December 2022 should be preferred. That conclusion conforms with my overall view of the credit of the plaintiff as a witness (and the counter part consideration of the lack of credit of the defendant) but also derives from the above-mentioned findings as to why the plaintiff’s account should be accepted.

40. [207]

    Those conversations incorporated the following:

    1. (1)

       On 15 December 2022:

    2. (2)

       On 26 December 2022:

41. [208]

    On the basis of that analysis of the evidence, two conclusions may be reached:

    1. (1)

       The defendant sought that the plaintiff pay him RMB 10 million, which he expressly acknowledged were monies advanced as a loan.

    2. (2)

       On 26 December 2022, being the second conversation between the plaintiff and the defendant, the defendant promised to marry the plaintiff on the condition that, or in consideration for, the plaintiff paying to the defendant the $248,500 payment.

42. [209]

    These findings sustain the making of the declaration in the first claim for the plaintiff claimed under the SOC. It would also sustain, if present, the fourth claim for relief.

43. [210]

    However, it is nonetheless necessary to resolve the issues raised by the parties as to the transactions not only because part of my findings as to the existence of the arrangements for marriage derive from my anticipated findings in that respect but also because the defendant nonetheless pursed the Defence and cross-claim on the basis of, inter alia, offsets.

TRANSACTIONS

1. [211]

   As earlier mentioned, there was no dispute that the plaintiff paid the defendant various amounts in RMB in December 2022. Those payments were listed above. The RMB components consisted of the following:

   1. (1)

      RMB 3,000,000 on 19 December 2022

   2. (2)

      RMB 2,000,000 on 22 December 2022

   3. (3)

      RMB 2,000,000 on 23 December 2022

2. [212]

   The total RMB was 7,000,000.

3. [213]

   Similar to the RMB payments in December 2022, there was no dispute that the plaintiff paid the defendant the following amounts in AUD at that time. These payments were as follows:

   1. (1)

      $500,000 on 15 December 2022

   2. (2)

      $30,000 on 16 December 2022

   3. (3)

      $70,000 on 16 December 2022

   4. (4)

      $234,000 on 26 December 2022

   5. (5)

      $14,500 on 26 December 2022

4. [214]

   The total AUD is $848,500.

5. [215]

   The findings in the previous four paragraphs are sufficient to sustain the second claim for relief in the SOC (I note that items (4) and (5) in paragraph [213] equal the sum of $248,500 being the $248,500 payment and sustain the third claim for relief in the SOC).

6. [216]

   There were various other payments made between the plaintiff and the defendant and third parties to which are referred to in Annexure A although I note the earlier caveats that I raised regarding that document.

7. [217]

   The disputed transactions in these proceedings can be broken into the following groups:

   1. (1)

      Foreign exchange transactions;

   2. (2)

      Cash payments;

   3. (3)

      The alleged gift transaction;

   4. (4)

      Haiyan Zhou payment;

   5. (5)

      Zhang payment;

   6. (6)

      Transactions between companies including money paid to Anson One and money paid to Pfizer.

8. [218]

   I note at this juncture that some of the disputed transactions are affected by whether this Court finds the WeChat messages from the Palm Beach and PUA accounts are authentic. I have found that the Palm Beach and PUA conversations are not authentic.

FOREIGN EXCHANGE TRANSACTIONS

1. [219]

   The defendant stated that the central dispute concerning these transactions was whether the defendant (by his mother) made a payment to Zhu Zhang on 4 August 2018 in the sum of RMB2,544,020 (being $500,000) and whether the payment was a loan advanced by the defendant at the request of the plaintiff.

2. [220]

   The defendant submitted that the evidence established that:

   1. (1)

      in a conversation between the plaintiff and the defendant, the plaintiff agreed to use her business contact in China to convert for the defendant RMB 2,550,000 to $500,000.

   2. (2)

      The plaintiff sent to the defendant the QR Code for the Palm Beach Account and she sent personal information and messages to the defendant using the Palm Beach Account.

   3. (3)

      By WeChat messages sent from the Palm Beach Account, the plaintiff directed the defendant to pay RMB2,550,000 to Zhu Zhang’s account with ICBC.

   4. (4)

      The evidence supports a finding that Zhu Zhang was the plaintiff’s business contact in China and agent.

   5. (5)

      The defendant directed his mother to pay RMB2,550,000 into Zhu Zhang’s account which occurred on 3 August 2018.

   6. (6)

      The plaintiff did not convert that payment to AUD and pay it to the defendant as she agreed to do.

3. [221]

   I will return to the pleadings momentarily but in the defendant’s supplementary closing submission, he identified the principal elements of the SCC as follows:

   1. (1)

      by agreement made in August 2018, Ms Wang agreed to convert payments to be made by Mr Fan from RMB to AUD (paragraph 1.1);

   2. (2)

      on 2 August 2018, Ms Wang directed Mr Fan to pay RMB into the Zhu Zhang Account (paragraph 1.2);

   3. (3)

      on 3 August 2018, Mr Fan paid RMB 2,544,020 into the Zhu Zhang Account (paragraph 1.3);

   4. (4)

      in breach of the agreement, Ms Wang failed to pay to Mr Fan RMB 2,544,020 or its AUD equivalent (paragraph 1.7); and

   5. (5)

      Ms Wang has been enriched by the payment made at the expense of Mr Fan and is liable to Mr Fan for the payment (paragraph 1.11).

4. [222]

   I shall refer to these allegations and claims in the pleadings as “the foreign exchange agreement” and “payment to Zhu Zhang”.

5. [223]

   The defendant contended that the plaintiff is liable to the defendant for the sum of $500,000.

6. [224]

   The allegations made by the defendant in this respect are set forth in pars 24 to 34, 35(d) and 36(d) of the Defence and paragraphs 1.1 to 1.11, 6(d) and 6.1(c) of the SCC appear to capture two claims. From these pleadings may be derived the following basis for the defence:

   1. (1)

      breach of the alleged Foreign Exchange Agreement by the plaintiff in failing to pay to the defendant RMB 2,554,020.00 or its AUD equivalent; and alternatively

   2. (2)

      restitution for the payment made by the defendant (by his mother) as the plaintiff has been enriched by the payment at the expense of the defendant.

7. [225]

   The allegations made in the Defence and the SCC in support of those claims in broad terms were:

   1. (1)

      by the Foreign Exchange Agreement, the plaintiff agreed to convert payments to be made by the defendant in RMB to AUD;

   2. (2)

      on 3 August 2018 and at the direction of the plaintiff, the defendant transferred RMB 2,544,020 (the equivalent to AUD 500,200.55) to the account of Zhu Zhang. The particulars of the Defence stated the payment was made on behalf of the defendant by the defendant’s mother (Laying Sun) by electronic transfer from China Construction Bank Co Ltd;

   3. (3)

      on 4 August 2018, the plaintiff informed the defendant that she held AUD 500,000 for the defendant;

   4. (4)

      the plaintiff received the payment of (or the benefit of) the RMB 2,544,020 made by the defendant;

   5. (5)

      in breach of the Foreign Exchange Agreement, the plaintiff failed to pay the defendant RMB 2,544,020 or its AUD equivalent in the sum of approximately AUD 500,000;

   6. (6)

      the defendant made the payment into the Zhu Zhang account pursuant to the Foreign Exchange Agreement; and

   7. (7)

      the plaintiff was liable to the defendant for the amount she received from the payment into the Zhu Zhang account.

8. [226]

   The defendant originally gave no evidence as to the circumstances or purpose of the payments totalling RMB 2,550,000 made by him to the plaintiff on 21 August 2018.

9. [227]

   In her affidavit of 2 August 2023, the plaintiff deposed, in detail, to the circumstances and purpose of those payments and provided documentary evidence of the various other transactions associated with those payments.

10. [228]

    In summary, the plaintiff’s evidence as to this transaction was as follows:

    1. (1)

       Sometime in 2018, the following conversation was said to have occurred:

    2. (2)

       The plaintiff made arrangements for a foreign currency exchange with her friend and business colleague, Tony Chen of ZHUZHU.

    3. (3)

       Those arrangements were executed by a series of bank transfers in the period from 21 to 31 August 2018 including the plaintiff transferring in total RMB 2,570,000 from her Chinese Agricultural Bank account to an associate of Mr Chen and the defendant receiving in total AUD 499,979.96 to his CBA account.

    4. (4)

       The defendant told the plaintiff that he used the money to purchase the Surry Hills property in September 2018 and afterwards never complained that he had not received the AUD equivalent of RMB 2,550,000 and never complained that the plaintiff owed him money because of the foreign exchange dealing.

11. [229]

    At the commencement of the trial in the schedule produced by the defendant, there were 5 undisputed foreign exchange transactions. There were three payments from the defendant to the plaintiff dated 21 August 2018 and two payments from “zhuzhu” to the defendant totalling $500,020 dated respectively 22 and 31 August 2018.

12. [230]

    By an affidavit sworn 14 September 2023, the defendant raised for the first time that there was an alleged foreign exchange dealing between the plaintiff and himself that took place shortly before 2 August 2018 [8] and in respect of which the defendant alleged the plaintiff is liable to pay him the sum of $500,000.

13. [231]

    By that time, the defendant had twice amended his pleadings. The pleading made after that affidavit contains the pleadings which I have described above. It is worth mentioning at this juncture, as the plaintiff did in reply submissions, that the essence of that defence and the allegations made in support of the claim were as follows:

    1. (1)

       the defendant would transfer RMB 2,550,000 to a colleague of the plaintiff. The payment was made on behalf of the defendant by his mother;

    2. (2)

       that colleague would then transfer $500,000 to the plaintiff; and

    3. (3)

       the plaintiff would then pay that sum to the defendant.

14. [232]

    The defendant’s evidence on these matters was largely contained in pars 26 to 39 of the defendant’s affidavit made 20 October 2023 which may be summarised as follows:

    1. (1)

       The defendant said that he had the conversation set out in the above summary of the plaintiff’s evidence (at [228(1)]) shortly before on or about 2 August 2018;

    2. (2)

       the defendant says that he had a later conversation with the plaintiff during which she told him that she had made arrangements “for a colleague of mine” to transfer AUD 500,000 to me. I will send her details to you. If you transfer RMB 2,550,000, I can transfer AUD 500,000 to you”;

    3. (3)

       on 2 August, the defendant says that he sent and received Palm Beach WeChat messages with the plaintiff. The Palm Beach WeChat conversation relied upon by the defendant is found at pages 15 and 16 of HF- 3 in Exhibit 2. Page 15 is a screenshot of what is said to be a chat that occurred on 2 August 2018 at 12.25pm. That page consists of, in the first entry, a copy of what is said to be a bank statement of the plaintiff (which was later enlarged to enhance reading and marked as Exhibit C. There then occurred subsequent entries which occurred either against a copy of a picture of Palm Beach or against a copy of a seal which the defendant asserted was a reference to him. Page 15 of the Palm Beach conversation shall be described as the “alleged 2 August 2018 Palm Beach WeChat conversation”. The English translation of page 15 consisted of the following after the copy of the bank statement (which itself is a screenshot):

    4. (4)

       Page 16 of HF – 3 which includes, in the Mandarin version, the repetition of the last entry of page 15 and then a series of further entries against the palm beach image or the seal image for 12:25pm and further messages at 12:34pm. The English version translation of that page is as follows:

    5. (5)

       The defendant stated he saw and understood the screenshot (what became Exhibit C) was an image of a statement for an account of the plaintiff at the Commonwealth Bank of Australia, account number 06214011300782 recording the account held AUD 330,000.

    6. (6)

       The defendant says he received the following message, which he understood to mean: “Only 33 can be remitted. Remaining 27 will need to be remitted tomorrow. There’s a limit”:

    7. (7)

       The defendant said he understood this to mean that the plaintiff had received $330,000 from her colleague and would be receiving the remaining $270,000 on 3 August 2018.

    8. (8)

       As to the image of a credit card, the defendant stated he saw and understood that this was an image of a bank card held by Zhu Zhang with Industrial and Commercial Bank of China (ICBC). He saw the account number was 6222 0812 0400 1000 482.

    9. (9)

       The defendant says he received the following message, which he understood to mean “Zhu Zhang, Shijialu Branch, Jiashan County, Zhejiang Province.”

    10. (10)

        The defendant said that he understood from the conversations he had with the plaintiff, the images and messages he received that by 3 August 2018 the plaintiff would have AUD 500,000 and if he transferred RMB 2,550,000 to Zhu Zhang’s account with ICBC, she would convert his payment and pay him AUD 500,000.

    11. (11)

        The defendant then made reference to parts of the WeChat message which referred to exchange rates, the reference to being in and out of class and the closing aspects of the WeChat message regarding further steps.

    12. (12)

        The defendant stated that on 3 August 2018 he asked his mother, Lanying Sun, to transfer RMB 2,544,020 to the account in the name of Zhu Zhang with ICBC. He says he provided to his mother the account details that he had received for that account.

    13. (13)

        The defendant stated that on 3 August 2018 the sum of RMB 2,544,020 was transferred into the account in the name of Zhu Zhang with ICBC, account number 6222 0812 0400 1000 482.

    14. (14)

        the defendant stated that on or about 4 August, the plaintiff told him she had received AUD 500,000 and handed to the defendant a personal cheque in the sum of AUD 500,000, which he did not bank;

    15. (15)

        on 5 or 6 August 2018, the defendant had a discussion with the plaintiff in which she told him that her husband had taken all of her money while she was asleep and left her about $100. For that reason, he did not bank the cheque;

    16. (16)

        on 20 August 2018, the defendant says he had a conversation with the plaintiff in which he told her that he would transfer more renminbi to her to get converted into Australian dollars and the plaintiff told him that to make sure nothing happens to your money again, “I will ask Zhu Zhu to pay you directly”;

    17. (17)

        thereafter, the defendant admits that he received the amount from ZHUZHU e-Commerce Integrated Limited of the amounts on 28 August and 31 August 2018;

15. [233]

    The plaintiff’s evidence in this respect appears at paragraphs 43 to 63 of the plaintiff’s affidavit made 17 November 2023. The plaintiff’s evidence may be summarised as follows:

    1. (1)

       the plaintiff denied that she organised any other foreign exchange dealing for the defendant in 2018 other than the one she has previously deposed to which involved Mr Tony Chen of ZHUZHU e-Commerce Limited;

    2. (2)

       the plaintiff denied that she was a party to any of the Palm Beach WeChat conversations;

    3. (3)

       the plaintiff stated that she did receive into her CBA account, which is the one referred to in Exhibit C, on 2 August and 3 August the sums of $329,990.00 and $169,990.00 from “AAA Sure Ltd borrow money”. Those monies were a short-term loan of $500,000.00 which the plaintiff obtained from AAA Sure Limited. The plaintiff only dealt with Ms Amy Zhou from AAA Sure. The plaintiff attaches her bank statements showing those receipts and the repayment of that loan in the period from 10 September to 25 September 2018 which she made at Ms Zhou’s direction. A person by the name of “Zhu Zhang” was not involved in this loan and it had nothing to do with the foreign exchange dealing she organised for the defendant in 2018;

    4. (4)

       the plaintiff denied that she knows a person named “Zhu Zhang”;

    5. (5)

       the plaintiff denied she handed any cheque to the defendant. While she had a cheque book for that account, she never used it because of her limited literacy skills in English and she had never been confident to write a cheque; and

    6. (6)

       finally, the plaintiff denied that she had a conversation with the defendant to the effect deposed to regarding her ex-husband or her husband at that time. The unauthorised withdrawal of $100,000.00 by her ex-husband took place on 27 August 2018 which she was referring to in paragraph 27(a) of her affidavit made 2 August 2023.

Consideration: Foreign Exchange Transactions

1. [234]

   Before I turn to a further analysis of the evidence, I would pause to consider two submissions as to the plaintiff’s evidence advanced by the defendant. First, it was submitted in the defendant’s written submissions that the plaintiff had changed her evidence in affidavit form from the conversation occurring sometime in 2018 and contradicted a concession that she had made that the conversation had occurred on 2 August 2018 by asserting the conversation occurred on “21 August 2021”.

2. [235]

   I do not consider that is a fair assessment of the plaintiff’s evidence. It is clear that senior counsel for the defendant had, from an exchange during the course of an objection, assumed that he had received a concession from the plaintiff as to the conversation occurring on 2 August 2018 when, in fact, he had only received a concession that the defendant had asked for $500,000 to purchase a property in Sydney and that she had acknowledged she had business contacts that would assist the defendant exchanging his RMB for AUD.

3. [236]

   After the objection was taken, senior counsel agreed that he would clarify the date as being 2 August 2018 which resulted in the plaintiff immediately rejecting that proposition, giving the answer of “21 August 2021”. The witness who stated “so sorry, 2018. 2018, my bad. 21 August 2018”, after clarifying that there were two transfers (no doubt a reference to the transfers on 22 and 31 August 2018). The plaintiff confirmed that the conversation occurred on 21 August 2018 (and did so again later in her cross-examination).

4. [237]

   Secondly, the defendant submitted that, in cross-examination, the plaintiff accepted that the screenshot enlarged in Exhibit C was for an account held by her with the CBA and she received $330,000 into this account.

5. [238]

   It is true that the plaintiff agreed that the screenshot would appear to have been sent from the Palm Beach account; she held a CBA account in August 2018 and that she acknowledged that the screenshot showed an amount of $330,000.

6. [239]

   However, the plaintiff also gave the following evidence in cross-examination clarifying these matters:

   1. (1)

      She did not send the Palm Beach account message;

   2. (2)

      When asked to explain why a screenshot for what appears to be an account of hers with the CBA was sent on the Palm Beach account, she said: “it was my bank account, but it was someone who transferred money to this account, and that’s the screenshot” and she received the transfer as a “borrow money transaction” in the sum of $330,000. By way of clarification, she said that on 2 August 2018 “someone lent me AU$330,003” and that the money was a loan from someone called Amy who worked for a company which provided the loan.

   3. (3)

      She did not know who Zhu Zhang was.

7. [240]

   In my view, the evidence given by the plaintiff with respect to the amount of $330,000, being received in her account in that fashion and the source of that money being a borrowing is entirely sustained by the objective evidence.

8. [241]

   Exhibit C and the plaintiff’s bank statements at pages 41 to 42 of JW-3 in Exhibit 2 clearly showed that the plaintiff did borrow $500,000.00 from AAA Sure Limited, which was paid to the plaintiff on 2 and 3 August 2018, which the plaintiff subsequently repaid in the period from 10 September to 25 September 2018. Clearly, those monies were never available to be paid to the defendant.

9. [242]

   It is plain from the plaintiff’s evidence, from which she did not resile, that the foreign exchange conversation occurred on 21 August 2018 which was then productive of the earlier referred to payments by the defendant on 21 August 2018 and the distribution back to the defendant from the plaintiff on 22 and 31 August 2018. The amount’s shown on those transactions are consistent with the evidence as to the foreign exchange process discussed in the foreign exchange conversation (and correspond to the non-disputed amounts in Annexure A). It should also be mentioned that the plaintiff identified that she did not know a Zhu Zhang.

10. [243]

    Zhu Zhang was, in fact, a female colleague of the defendant and Zhu Zhang and “ZHUZHU” would appear to be the same person.

11. [244]

    I will return to other components of the evidence going to this transaction but would firstly observe that, weighing as a counter point to the above, if it be authentic, was the alleged 2 August 2018 Palm Beach WeChat conversation. However, I have earlier made adverse findings about the authenticity of the Palm Beach WeChat conversations. The evidence as to the WeChat messages in the context of this transaction strongly buttresses that conclusion as well as further significantly damaging the defendant’s credit.

12. [245]

    The evidence given by the defendant as to the alleged 2 August 2018 Palm Beach WeChat conversation is both implausible and incredible and is a strong indication that the WeChat message is a fabrication. It also strongly supports adverse credit findings being made against the defendant. It is useful to look at that evidence in components.

13. [246]

    First, when the defendant was confronted with the fact that the total amount shown in the WeChat message was $600,000 rather than $500,000 (the amount consistent with the Foreign Exchange Transaction) he gave the following unconvincing and implausible evidence:

14. [247]

    Secondly, the defendant admitted that the Palm Beach WeChat conversation was referring to two people [and not the one female he deposed to in his affidavit] - which were a wife and husband who operated an account known as Zhu Zhang and that he knew who those people were. When it was put to him that he deliberately did not put in his affidavit who Zhu Zhang is, the defendant gave evidence, “I thought the plaintiff knows”.

15. [248]

    His evidence in that respect was both evasive and implausible and was as follows:

16. [249]

    Thirdly, the next passage of the defendant’s evidence in cross-examination was, in my view, demonstrative of his lack of honesty as a witness. The evidence may be summarised as follows:

    1. (1)

       the defendant maintained that he had received a cheque of $500,000 from the plaintiff;

    2. (2)

       the defendant admitted that he did not know where the alleged cheque was, he probably destroyed it, it looked just like “toy paper” and white, and he could not remember the colour or the bank for the cheque;

    3. (3)

       the defendant admitted that every other payment between the plaintiff and the defendant was by cash or electronic bank transfer;

    4. (4)

       despite it being memorable to the defendant that he received a cheque from the plaintiff and this transaction allegedly taking place within two or three weeks of his romantic relationship with the plaintiff, the defendant admitted he could not remember the transaction until September of 2023; and

    5. (5)

       when he made his affidavit of 5 July 2023, the defendant admitted he had no recollection at that point in time of any other foreign exchange dealing and the first time he accepted that he had received money from ZHUZHU was in his affidavit of 14 September 2023.

17. [250]

    It may be noted that the plaintiff gave evidence that, while she had a cheque book for the account shown in the alleged 2 August 2018 Palm Beach conversation, she never used it because of her limited literacy skills in English and she had never been confident to write a cheque.

18. [251]

    The passage of the defendant’s evidence in cross-examination, which is demonstrative of his lack of credit was as follows:

19. [252]

    In my view, the defendant is lying about his receipt of a $500,000 cheque from the plaintiff in that evidence. The evidence was so implausible as to strain credibility.

20. [253]

    There are some other factors which bear upon this issue so far as it concerns the proposition advanced by the defendant that he entered into a loan to the plaintiff which he says was made on 4 August 2018 via a payment made by his mother.

21. [254]

    There was no evidence that the defendant himself paid any RMB to Zhu Zhang. The defendant’s asserted that his mother Lanying Sun made a payment from her own funds to Zhu Zhang. However, the evidence does not support that the defendant’s mother made a payment to Zhu Zhang. My reasons for that conclusion are as follows:

    1. (1)

       There is no documentary evidence or no sufficient documentary evidence to prove that Lanying Sun transferred RMB 2,544,020.00 to the Zhu Zhang account.

    2. (2)

       The online bank transfer remittance electronic receipt found at p 17 of HF-4 in exhibit 2 has a significant caveat which reads as follows:

    3. (3)

       There was a sound basis for the plaintiff’s reliance upon a Notice to Produce dated 20 November 2023. Exhibit 16 is a copy of the plaintiff’s Notice to Produce to the defendant dated 20 November 2023 and together with a statement by the defendant dated 5 December 2023 in answer to that Notice to Produce. Items 8, 9 and 10 seek all communications between the defendant and Lanying Sun in the period from 1 July 2018 to 31 August 2018 and all bank statements for the period 1 July 2018 to 31 August 2018 for Lanying Sun’s bank account held with the China Construction Bank Co Ltd. In answer to that Notice to Produce, the defendant stated, “There is nothing to produce to Categories 8, 9 and 10. For the avoidance of any doubt, I did not communicate in writing with Lanying Sun (Category 9) and I do not have access to the document sought in Category 10.” Further, in cross-examination, the defendant gave evidence that he asked for the bank statements, but his mother and sister had not produced them.

    4. (4)

       The defendant gave evidence that the money in the account referred to in that document is his mother’s money and not his. He also gave evidence that this was the document he relied upon from which he asked the Court to accept that there has been a payment of RMB 2,544,020.00 from his mother to Zhu Zhang;

22. [255]

    The evidence does not support a conclusion that the plaintiff received $500,000 from Zhu Zhang. As I have earlier indicated, the objective evidence reveals that money received by the plaintiff in that sum was part of a short term loan from AAA Sure Ltd which was repaid by the plaintiff. The plaintiff was not challenged in cross-examination on her evidence in that respect. As I have earlier found, the defendant’s evidence, to the contrary, needs to be treated with great care as he is not a witness of credit. That is particularly so in relation to this area of his evidence. I have dealt with above the deficiencies in the alleged 2 August 2018 Palm Beach WeChat conversation.

23. [256]

    In my view, the evidence does not sustain that the defendant paid RMB 2,550,020 to Zhu Zhang or that the plaintiff received $500,000 from Zhu Zhang. I agree with the submissions advanced by the plaintiff that in those circumstances, it is not available to the defendant to contend that he had performed his obligations or that the plaintiff was in breach of her obligations under the alleged Foreign Exchange Agreement.

24. [257]

    I turn then to the claim by the defendant that he was entitled, in the alternative, to restitution of $500,000. The basis upon which that claim was advanced was as follows:

    1. (1)

       no consideration was given by the plaintiff for the payment made by the defendant at the plaintiff’s direction;

    2. (2)

       no consideration was given by the plaintiff for the benefit she received and retained from the payment made by the defendant at the plaintiff’s direction;

    3. (3)

       as an alternative claim for breach of the Foreign Exchange Agreement and in the circumstances pleaded [in paragraphs 24 to 33 of the FAD/1.1 to 1.10 of the FASCC]:

25. [258]

    Having regard to my conclusions as to the primary basis for the defendant’s Defence and SCC with respect to this transaction, any claim for restitution by the defendant against the plaintiff must also fail. In particular I note the following earlier conclusions:

    1. (1)

       the defendant did not make any payments to Zhu Zhang;

    2. (2)

       the plaintiff did not receive $500,000.00 from Zhu Zhang or any other relevant ‘benefit’ in relation to alleged payment from the defendant to Zhu Zhang that would give rise to any restitutionary claim for money paid.

26. [259]

    The plaintiff is not liable to pay the defendant $500,000 for a breach of restitution for money had and received or money paid.

27. [260]

    The defendant’s claims regarding the alleged breach of the Foreign Exchange Agreement and the alleged payment to Zhu Zhang are rejected. The plaintiff is not liable to make a payment of $500,000 to the defendant with respect to this transaction.

CASH PAYMENT

1. [261]

   There is a dispute as to whether the plaintiff paid the defendant $50,000 in cash on 5 October 2018.

2. [262]

   The plaintiff alleged that shortly before that date she had returned from China and sold some of her private collection of jewellery and luxury bags in RMB to raise some money. At around that time the plaintiff gave evidence that the following conversation took place with the defendant:

3. [263]

   The plaintiff stated in cross-examination that she exchanged the Chinese currency she received from these sales to AUD at a “money exchange company” in Chinatown on 5 October 2018 and gave 5 bundles of cash to the defendant. The plaintiff stated the money was provided to the defendant by way of loan. The defendant denied ever having received that payment.

4. [264]

   Senior counsel for the defendant made the following submissions regarding the transactions:

   1. (1)

      In cross-examination, Ms Wang gave evidence that she gave Mr Fan 5 bundles of cash totalling AUD 50,000 which she sourced from a “money exchange company” in Chinatown. The plaintiff was taken to her affidavit evidence on this topic which makes no reference to a ‘money exchange company’. Rather, it merely refers to ‘I sold some of that collection privately to raise some cash’. Ms Wang sought to clarify that she sold jewellery in Chinese currency and then had exchanged that currency to AUD with which she gave Mr Fan AUD 50,000.

   2. (2)

      The plaintiff made no reference to the exchange process in her affidavit evidence and no reference to the alleged loan until her second affidavit of 2 August 2023.

   3. (3)

      There is no record of the defendant being paid $50,000 as alleged by the plaintiff. In cross-examination, the defendant was unshaken in his denial that he received $50,000 from the plaintiff on 5 October 2018. The defendant’s evidence should be preferred.

   4. (4)

      The plaintiff has not discharged her onus of establishing that, on 5 October 2018, she paid $50,000 to Mr Fan.

5. [265]

   Counsel for the plaintiff submitted the following on this issue:

   1. (1)

      Consistent with the plaintiff’s evidence in cross-examination and re-examination, documents produced following a Notice to Produce show that the plaintiff did receive RMB 1,500,000 into her China Merchant’s Bank account on 13 September 2018 and from which she transferred RMB 249,500 on 5 October 2018, which was exchanged by Supay on 5 October 2018 for an amount of $50,138.66.

   2. (2)

      The defendant, after being taken to his bank statement number 29 of his Commonwealth Bank Account, stated that he:

   3. (3)

      No criticism can be made of the plaintiff that it was not until her affidavit of 2 August 2023 where the plaintiff raised or referred (for the first time) to the cash payment of $50,000.00 to the defendant on 5 October 2018 because:

   4. (4)

      All of the documents support the plaintiff’s version of events and the fact that she made a $50,000 cash payment to the defendant on 5 October 2018. There are no documents or other objective evidence that supports the defendant’s denials in this regard.

   5. (5)

      The plaintiff claimed a second cash payment was made in early 2021 which the defendant ultimately did not dispute. However, the first time he acknowledged this was when his barrister tendered Exhibit A (which is the precursor to Annexure A) to the Court. The defendant accepted that payment in cross-examination, however, could give no sensible account as to why he had not put any of this in his affidavits.

Consideration: Cash Payment

1. [266]

   In my view, the plaintiff has established on the evidence that she paid the defendant $50,000 cash on 5 October 2018.

2. [267]

   The objective evidence produced as a result of a Notice to Produce referred to in the plaintiff’s submissions corroborates the plaintiff’s evidence in cross-examination and re-examination. This is additionally so because the defendant gave evidence that this was the bank account to which he received the cash to purchase the Surry Hills property. His bank balances at the time further sustain the plaintiff’s account.

3. [268]

   I do not consider the plaintiff’s evidence in cross-examination, when properly understood, should be taken to alter that conclusion. That is for two reasons:

   1. (1)

      The plaintiff’s earlier evidence, in which she did not mention the cash payment, related only to the December 2022 payments made by the plaintiff to the defendant. The later affidavit dealt with the defendant’s case in which the “accounting exercise” referred to by senior counsel for the defendant brought to account earlier payments or transactions to counterbalance the December 2022 payments. The 2 August 2023 affidavit was the first relevant opportunity for the plaintiff to go into evidence about the defendant’s case in that respect.

   2. (2)

      The failure to reference the money exchange process in the plaintiff’s affidavit is not a matter that significantly affects the veracity of her evidence given that she did disclose that, to make the payment to the defendant, she had to sell some of her collection privately to raise some cash. In that respect, her evidence was entirely consistent.

4. [269]

   I find that the plaintiff paid to the defendant cash in the sum of $50,000 on 5 October 2018 in addition to an earlier cash payment of $50,000 in early 2021.

THE ALLEGED GIFT TRANSACTION

1. [270]

   The second set of disputed transactions concerns item 4, 5 and 6 of Annexure A. The issue, in this respect, was whether payments, totalling RMB 3 million made by the defendant to the plaintiff’s mother, were a gift. A further and related issue was whether the payments were made at the direction of the plaintiff such that the plaintiff was liable for a debt on a loan or liable for restitution for monies paid?

2. [271]

   The plaintiff’s mother lived in China but travelled to Australia and stayed with the plaintiff when in Sydney. The plaintiff gave evidence that, after the plaintiff “commenced working in [her] career, [she] gave money to [her] mother from time to time on many occasions and for various reasons”.

3. [272]

   The plaintiff was divorced in 2018 and, as previously mentioned, stated that her ex-husband had previously diverted almost all of their matrimonial property, including cash and other liquid assets. The plaintiff submitted she had a number of conversations with the defendant about this topic.

4. [273]

   The plaintiff submitted that the diversion of matrimonial property occurred on 27 August 2018 when her ex-husband withdrew $100,000 from their joint account.

5. [274]

   On 10 September 2018, the defendant submitted that he had a conversation with the plaintiff, via the Palm Beach Account, on WeChat in Mandarin. In the defendant’s affidavit of 20 October 2023, the defendant provided his interpretation of those messages in English. However, a NAATI translated version is preferred by the Court and is as follows:

6. [275]

   The plaintiff denied that she was “party to any of” that WeChat conversation. I have earlier found the messages of the Palm Beach WeChat account not to be authentic. I will further comment on that below.

7. [276]

   On 18 October 2018, the plaintiff, via Isabella’s WeChat, and the defendant, via the defendant’s WeChat, had a conversation in Mandarin. There was a material dispute as to the translation of part of that conversation which concerned whether the word ‘first’ was used. That dispute was ultimately resolved when the plaintiff acknowledged her understanding of the messages included the word “first”.

8. [277]

   That conversation was translated by a NAATI translator, as the following:

9. [278]

   The Chinese language version of the above WeChat conversations contained a blurred image of a document written in Chinese at the location where the English translated version simply records “image”. Other than the document being forwarded by the defendant, there is no translation provided and, in any event, the document is blurred to the extent it is very unclear.

10. [279]

    Furthermore, the parties have made no submission about the document and, in the circumstances, I will place no reliance upon it other than noting that it appears at the end of the chain of messages in the Isabella WeChat conversation of 18 October 2018.

11. [280]

    The defendant submitted that he understood that “the plaintiff wanted to transfer her mother RMB 2,000,000 to RMB 3,000,000, she had RMB 1.65M and in October 2018 she was expecting to receive AUD 130,000” and that when he sent the messages “Don’t transfer all the money in your own account”, “I will first transfer 3 million to Queen Mother” and “Keep the money of your own first” he ”meant to say that [he] would transfer RMB 3,000,000 to the plaintiff’s mother’s account first and the plaintiff would repay [him] when she had the money in her account”.

12. [281]

    On 29 October 2018, the plaintiff sent the card details for Ms Yuan to the defendant.

13. [282]

    On 30 October 2018, the defendant made 3 transfers of RMB 1,000,000 to Ms Yuan. At this time, the defendant had never met or spoken to Ms Yuan.

14. [283]

    Senior Counsel for the defendant made the following submissions as to this payment:

    1. (1)

       The WeChat messages are informal. They are not sent in English. In the messages, the plaintiff is proposing to transfer RMB 2-3 million to her mother but she does not currently have the funds to send. To the extent that the defendant’s statement “I will give it to you” was a proposal to gift money to the plaintiff, it was rejected by the plaintiff when she said: “It’s not necessary. I should be able to have this amount of money by the end of next month. . . . ”. The defendant follows this up by saying “Don’t transfer all the money in your own account” and “I will first transfer 3 million to Queen Mother ”and “Keep the money of your own first ”.

    2. (2)

       The use of the word first, indicates that this is the first step of a chain of events. The defendant says he understood these messages to mean the plaintiff had RMB 1.65 million and she was expecting to receive AUD 130,000. When she had those funds, she would pay her mother. The defendant steps in and firstly pays RMB 3 million to the plaintiff’s mother in the expectation that the plaintiff would later have RMB 3 million.

    3. (3)

       The only communications in relation to the payments were the WeChat messages. The defendant did not say to the plaintiff that he did not expect her to repay to him the amount he was firstly paying to his mother when she had RMB 3 million.

    4. (4)

       The WeChat messages did not establish that the defendant gifted the plaintiff or her mother RMB 3 million. On the contrary, they demonstrate the inherent probability that the defendant loaned RMB 3 million to the plaintiff and, at her direction, paid it to her mother.

    5. (5)

       The evidence established that, at the request of the plaintiff, the defendant transferred RMB 3,000,000 into the plaintiff’s mother’s account. This gave rise to an immediate debt. The plaintiff has not made out her defence to this claim that it was a gift.

    6. (6)

       The plaintiff is liable to the defendant for the sum of the RMB 3 million he transferred to the plaintiff’s mother at the plaintiff’s request.

15. [284]

    Counsel for the plaintiff made the following submissions in this respect:

    1. (1)

       At law, a gift is effective when the donor intends to make a gift and the donee receives the thing given and keeps it, knowing that he or she has got it: Dewar v Dewar [1975] 2 All ER 728 (Goff J) at p 733.

    2. (2)

       The defendant originally gave no evidence as to the circumstances or purpose of the payments totalling RMB 3 million made by him to the plaintiff’s mother on 30 October 2018.

    3. (3)

       In her affidavit of 2 August 2023, the plaintiff deposed, in detail, to the circumstances and purpose of those payments. In particular, the plaintiff deposed to WeChat communications with the defendant which are both exhibited and the English translation of which is set out in the narrative of her evidence.

    4. (4)

       It is objectively clear that these payments by the defendant were gifts to Ms Yuan. Further, there was no promise, implied or otherwise, that the plaintiff would repay these payments to the defendant.

    5. (5)

       The defendant then adduced further evidence regarding the payments to Ms Yuan in his affidavit sworn 14 September 2023, the affidavit of Liang Liu sworn 15 September 2023 and his affidavit of 20 October 2023. In her affidavit of 17 November 2023, the plaintiff denied the new matters raised by the defendant, including the alleged Palm Beach WeChat conversations, and otherwise relied upon her previous evidence.

    6. (6)

       In cross-examination, the defendant gave the following evidence:

    7. (7)

       Having regard to the evidence given by the defendant in cross-examination and the plaintiff’s submissions on this transaction, it is clear that those payments were gifts by the defendant to Ms Yuan, and there can be no suggestion that:

    8. (8)

       Even if one was to have regard to the alleged Palm Beach messages of 10 September 2018, those messages positively deny any suggestion that the plaintiff requested the defendant to make the payments to Ms Yuan or that the plaintiff promised to repay those monies to the defendant. In that regard, in those alleged Palm Beach WeChat messages of 10 September 2018, the defendant says, "I can transfer you some money" and, in reply, the plaintiff says "No".

    9. (9)

       As to the WeChat messages of 18 October 2018, it is clear on their face that the plaintiff rejects all proposals by the defendant to give money to Ms Yuan, (viz. that they both give another amount to Ms Yuan), that the defendant would give the money to the plaintiff, that the defendant will first transfer 3 million to Ms Yuan and the plaintiff was to “keep the money of your own first”. The plaintiff's final words are "That's ok. I will transfer it myself. I will have to face these matters myself anyway".

    10. (10)

        The Court should reject and give no weight to any evidence of the defendant as to his understanding of any of these WeChat messages. The task of the Court, given that it has an authorised translation of those messages, is to objectively determine what the parties intended from those communications. The subjective, uncommunicated understanding of the defendant as to what was intended by those communications are of no assistance to the Court and would lead it into error should it have regard to them.

    11. (11)

        Finally, it is neither alleged nor submitted by the defendant that the plaintiff obtained any relevant 'benefit' for any of the payments made by the defendant to Ms Yuan to establish a restitution claim for money paid. The plaintiff was not under any legal obligation to pay any monies to her mother and there is no property of the plaintiff which is said to have been preserved or benefited by the payments.

    12. (12)

        The evidence clearly discloses that the plaintiff intended to make a gift to her mother, but that the defendant decided to make that gift instead. The act of and reasons for the defendant in making that gift to Ms Yuan are clearly understood and apparent from the tenor of the WeChat conversations between the plaintiff and the defendant, the surrounding circumstances and from the fact that the plaintiff and the defendant had then newly commenced a romantic relationship.

    13. (13)

        Clearly, on all the evidence, the payment by the defendant to Ms Yuan was a gift and could not in any way be construed as a loan to the plaintiff or something for which the plaintiff was liable.

    14. (14)

        The court should dismiss all the defendant's claims against the plaintiff regarding the payments to Ms Yuan.

Consideration: The Alleged Gift Transaction

1. [285]

   Before I turn to the core issue under this heading, I propose to make some further observations concerning the authenticity of the Palm Beach WeChat message.

2. [286]

   One matter of note is that there is a stark difference between the form and tone of the alleged Palm Beach conversation of 10 September 2018 and the message one month later between the defendant and the Isabella account dealing with the same subject matter. The Palm Beach WeChat message is highly truncated and does not incorporate any discussion as to the circumstances under which the plaintiff contemplated sending money to her mother, notwithstanding, that the defendant offers to transfer “the plaintiff” some money. It is odd that the comprehensive discussion about the need for the plaintiff to transfer money to her mother only occurs in the later WeChat message, even though both involve an offer for the defendant to provide monies.

3. [287]

   A further consideration is that the 10 September 2018 Palm Beach WeChat message occurs approximately a fortnight after the plaintiff’s ex-husband had “diverted almost all of our matrimonial property from beyond” the reach of the plaintiff. In the 10 September 2018 WeChat message, the plaintiff stated, “I’m really poor now”. Yet she is recorded as saying that she still has RMB 1.65 million and that she is going to transfer RMB 1.5 million to her mother at or about that time.

4. [288]

   A further consideration is that there is no explicit reference in the Isabella WeChat conversation of 18 October 2018 to the sums referred to in the earlier message. The defendant gives evidence that his understanding was that references to “don’t transfer all the money in your own account” and “keep the money in your own first” was a reference to those earlier sums but there are two difficulties in that respect. First, the parties are only explicitly referring to monetary sums (as may be expected) in a discussion of the kind they were undertaking in the Isabella WeChat conversation and, secondly, there is a reference to another money sum becoming available to the plaintiff within a month of the Isabella WeChat message, namely, $130,000.

5. [289]

   The last factor pointing to the lack of authenticity of the 10 September 2018 Palm Beach conversation is that no explanation is given as to why, in relation to the same subject matter, namely, payment to the plaintiff’s mother, two different WeChat accounts were used. I also note that the first entry in the Palm Beach WeChat message is from the defendant himself.

6. [290]

   I then turn to the issue as to whether the RMB 3 million payment from the defendant to the plaintiff’s mother on 30 October 2018 was a gift.

7. [291]

   The plaintiff responded to the affidavit of the defendant dated 5 July 2023 in her affidavit of 2 August 2023 as to this issue (prior to that affidavit by the defendant he had not given any evidence as to the circumstances or purpose of the RMB 3 million payment made to the plaintiff’s mother).

8. [292]

   After recounting the circumstances of the separation from her husband, the financial implications of that event as a result of the actions of her ex-husband and the cultural norms in China (that most parents to female children believe a family stable family relationship is key to the future of their loved one and a failed marriage is a disaster), the plaintiff turned to what she described as “a number of conversations” with the defendant in about mid 2018 during which she informed the defendant that:

9. [293]

   There was no cross-examination upon that part of the plaintiff’s affidavit. Rather attention was directed to the Palm Beach WeChat message of 10 September 2018, which generally did not deal with that detailed account but did reference the plaintiff being “robbed of everything” and being “really poor now”. The plaintiff denied that she had received that message or undertaken those communications. As I have found, the Palm Beach and PUA WeChat conversations not to be authentic, the evidence may be accepted.

10. [294]

    The plaintiff, in substance, maintained her evidence that the RMB 3 million payment was a gift and provided the following evidence in addition to her reliance upon the Isabella account conversation of 18 October 2018, as follows:

    1. (1)

       Sometime after that message, she had sent the photograph of the bank card of her mother after the defendant had called her and asked her to send it to him.

    2. (2)

       It was put to the plaintiff that she sent the photograph to the defendant because she wanted him to pay RMB 3 million into her mother’s bank account. She disagreed with that proposition and stated it was the defendant who said “he will transfer 3 million to my mum first”.

    3. (3)

       Monies were transferred but to her mother rather than to herself.

11. [295]

    I have earlier summarised the plaintiff’s submissions and in doing so I have recorded the plaintiff’s summary of the evidence given by the defendant under cross-examination. I agree with that summary.

12. [296]

    Apart from the context in which the RMB 3 million payment was made to Ms Yuan, neither the plaintiff, nor the defendant, gave any account of their conversations as to the payment of RMB 3 million to Ms Yuan beyond the Isabella WeChat conversation of 18 October 2018. That observation is made because:

    1. (1)

       I have put aside the 10 September 2018 Palm Beach WeChat conversation as not being authentic. In any event, it does not add significantly to the determination of this question.

    2. (2)

       The defendant accepted that he had no recollection of conversations with the plaintiff as to this transaction and relied upon, inter alia, the Isabella WeChat conversation of 18 October 2018.

    3. (3)

       The defendant accepted that the basis for his decision to transfer the monies to Ms Yuan are to be found in, inter alia, the Isabella WeChat conversation of 18 October 2018.

    4. (4)

       The plaintiff did not give any account of exchanges with the defendant directly dealing with the transfer of monies for Ms Yuan, other than in the Isabella WeChat message. Her answers in cross-examination really concerned questions about particular parts of that message.

13. [297]

    It follows that the resolution of this issue must turn upon the Court’s assessment of the Isabella WeChat message in the context of the surrounding circumstances (but not deriving from the defendant’s subjective undertaking or intention).

14. [298]

    I agree with the submission of the plaintiff that the plaintiff had made clear in the WeChat message that she wished to make the payment to her mother in about the sum which was ultimately transferred by the defendant to Ms Yuan.

15. [299]

    The plaintiff is also correct to submit that it was the intention of the plaintiff to make the payment to her mother out of her own funds which she expected to receive in about a months time, notwithstanding the offer by the defendant to make such a payment.

16. [300]

    However, it is also apparent from the Isabella WeChat conversation of 18 October 2018 that, if a payment of RMB 3 million was to be made to the plaintiff’s mother at or about the time of the Isabella WeChat conversation of 18 October 2018 then that payment would need to be made out of the defendant’s funds.

17. [301]

    The defendant is correct to submit that the transaction between the parties in the Isabella WeChat conversation of 18 October 2018 should be understood as the plaintiff rejecting, to the extent it was advanced, the offer of a gift. That is effectively what the plaintiff said towards the end of that WeChat conversation where she indicated she would transfer the money herself and would have to face those obligations by herself.

18. [302]

    When seen in that light, the defendant’s communication to offer the payment of money after the WeChat conversation on 18 October 2018 should be seen as acting as an interlocuter between the plaintiff and her mother.

19. [303]

    It is true that the defendant stated that the couple should face difficulties together (as they were still in a romantic relationship) but the plaintiff never departed from her desire to manage matters independently.

20. [304]

    Whilst the Court should not engage in a process akin to the construction of a document, when seen in that light, and the plaintiff’s depravation of funds as a result of the acts of her ex-husband (which was known to the defendant), the defendant’s statements that “I will first transfer 3 million to Queen Mother” and “keep the money of your own first” should essentially be understood as him assisting the plaintiff to meet her cultural obligations until she was able to financially get back on her feet.

21. [305]

    She ultimately succumbed to that position when she accepted the defendant’s proposal to forward RMB 3 million to Ms Yuan by facilitating that process, by forwarding her mother’s bank details (she sent a picture of the bank card of her mother). That step also indicated that the payment was made at the plaintiff’s direction and directly on her investigation. In those circumstances it is immaterial that the payment was made directly to Ms Yuan.

22. [306]

    In all the circumstances, I consider there was an implied promise to repay. The plaintiff’s insisted on being responsible for payment to her mother in the Isabella WeChat conversation and provided the defendant with the bank card details of her mother.

23. [307]

    If considered in terms of restitution, I would find the relevant benefit to be the assistance to the plaintiff to meet her obligations to her mother and satisfy cultural obligations.

24. [308]

    It follows that the evidence establishes that, at the request of the plaintiff the defendant transferred RMB 3 million into the plaintiff’s mother’s account. This gave rise to a debt and she is liable to pay the defendant for that amount. The plaintiff has not made out her defence to the SCC that the payment was a gift.

HAIYAN ZHOU PAYMENT

1. [309]

   The defendant alleged that on 16 June 2020, the plaintiff said words to him to the effect of “Can I borrow RMB 332,215 from you” or “Can you lend me RMB 332,215” and “Can you transfer the money to Haiyan Zhou”.

2. [310]

   The central issues in dispute of this transaction are whether the payment made by the defendant to Haiyan Zhou of RMB 332,215 on 16 June 2020 was made by the defendant at the request of the plaintiff and whether the plaintiff is liable to repay the defendant for those monies.

3. [311]

   The documentary evidence revealed the following events took place on 16 June 2020:

   1. (1)

      at 10:08 am, the defendant provided to the plaintiff his ICBC (China) bank account details (#4503);

   2. (2)

      at 11:19 am, the plaintiff provided details of the Haiyan Zhou account;

   3. (3)

      the plaintiff made two transfers from her China merchant bank account (#9109) to the defendant’s ICBC account totalling RMB 332,214.50, the last of which took place at 13:03:01 (3:03 PM).

   4. (4)

      at 3:18 PM, the plaintiff sent the following message to the defendant: “332,214.50”;

   5. (5)

      at 3:30 PM, (13:30 in China), the defendant made the payment of 332,214.50 to Haiyan Zhou’s account.

4. [312]

   The defendant understood these messages “to be confirmation of the amount the plaintiff wanted [him] to transfer into the account of Haiyan Zhou”. On 16 June 2020, the defendant transferred RMB 332,214.50 to the bank account of Haiyan Zhou. The defendant stated that he has never spoken to or sent messages to Haiyan Zhou.

5. [313]

   In cross-examination, the defendant agreed that, on 16 June 2020, the plaintiff first made two payments to the defendant totalling RMB 332,215 (at 1:03 PM Chinese time) which he then paid to Haiyan Zhou (at 1:30 PM Chinese time) because “she send the bank details to me”.

6. [314]

   The defendant also gave the following evidence in cross-examination which seemed to suggest he recognised these transactions were not loans between the parties:

7. [315]

   The plaintiff stated that she did not know the circumstance of when or how the alleged payment had actually occurred. The plaintiff denied that she directed or requested the defendant to pay RMB 332,215 to Haiyan Zhou. Furthermore, she denied in cross-examination knowing any person called Haiyan Zhou. The plaintiff denied that she borrowed RMB 332,215 from the defendant.

8. [316]

   Senior counsel for the defendant made the following submissions, in this respect:

   1. (1)

      In cross-examination, the plaintiff claimed she did not know any person called Haiyan Zhou. However, she admitted sending the messages on 16 June 2020 but could not recall why she sent the message with the account details for Haiyan Zhou, she was “not sure what happened at that time”.

   2. (2)

      The evidence established that the plaintiff sent WeChat messages to the defendant with the account details of Haiyan Zhou together with the figure 332,214.50. This constituted a request by the plaintiff to the defendant to transfer RMB 332,214.50 into the account of Haiyan Zhou. Whilst the plaintiff denied this, when invited to, she could not offer any explanation for why she sent the messages. The defendant transferred RMB 332,215 into the account of Haiyan Zhou.

   3. (3)

      The evidence established that, by sending the WeChat messages on 16 October 2020, the plaintiff requested the defendant to pay RMB 332.214.50 to Haiyan Zhou. This constituted a loan of money payable on request which created an immediate debt owing by the plaintiff.

   4. (4)

      The plaintiff is liable to the defendant for the sum of RMB 332,215 he transferred to Haiyan Zhou at her request.

Consideration: Haiyan Zhou Payment

1. [317]

   A significant difficulty for the defendant’s case in this respect is the evidence given by the defendant under cross-examination to the following effect:

   1. (1)

      the defendant admitted that he did not recall any conversation with the plaintiff and he relied on the WeChat messages;

   2. (2)

      the defendant could give no account as to why the plaintiff needed to send the money via the defendant’s account;

   3. (3)

      the defendant admitted there was nothing in the WeChat messages to suggest that the plaintiff is borrowing money from the defendant;

   4. (4)

      the defendant admitted there was nothing in the WeChat messages suggesting the Plaintiff is asking the defendant to pay RMB 332,214.50 to Haiyan Zhou; and

   5. (5)

      the defendant admitted that there was nothing in the WeChat messages to suggest that the plaintiff was agreeing to repay the defendant or be liable to repay the defendant or be liable for any payment the defendant made to Haiyan Zhou.

2. [318]

   The evidence that the plaintiff gave, that she had not borrowed from the defendant as to any payments to Haiyan Zhou, was buttressed by the fact that the plaintiff made a payment of the exact same sum to the defendant on the same day.

3. [319]

   The plaintiff submitted, and I accept, that it would be irrational for the plaintiff to seek a loan when she was in possession of the sum of money sought to constitute the loan.

4. [320]

   On the evidence, or particularly that of the plaintiff, the Court finds that the defendant did not lend or implicitly lend any money to the plaintiff in respect of his payment to Haiyan Zhou and the plaintiff is not liable with respect to the same. The plaintiff did not require the defendant to make the payment or promise to repay the defendant.

5. [321]

   Lastly, the defendant did not allege or prove any relevant 'benefit' to the plaintiff for his payment to Haiyan Zhou such that that would give rise to a claim for restitution for money paid even if, contrary to my conclusion above, a finding was to be made that such a payment had been made at the request of the plaintiff.

6. [322]

   The plaintiff is not liable for a debt or payment in restitution for the sum of RMB 333,215.

7. [323]

   The plaintiff is not liable to repay the defendant RMB 332, 215.

ZHANG PAYMENT

1. [324]

   The central issue in this disputed transaction is whether the payment by the defendant to “Zhang” of $50,000 was made at the request of the plaintiff such that the plaintiff was liable to repay the defendant $50,000 or, in the alternative, was liable for the restitution for money paid.

2. [325]

   The defendant alleged that on 29 September 2021, the plaintiff said words to the effect of “Can I borrow $50,000 from you” or “Can you lend me $50,000” and “Can you pay the money to my friend Zhang” to the defendant.

3. [326]

   The defendant relied on and alleged that he received messages in Mandarin from the plaintiff via the PUA account. Those messages purport to show communications between the defendant and the plaintiff via the PUA WeChat account. The relevant extract, when translated, was as follows:

4. [327]

   After this conversation later that day, the defendant transferred $50,000 into the account of “Zhang”. The defendant stated he had never spoken to or sent messages to “Zhang”.

5. [328]

   The plaintiff denied knowing or recognising the name “Zhang” or that she directed or requested the defendant to pay to Zhang $50,000.

6. [329]

   The defendant made the following submissions on this transaction:

   1. (1)

      The plaintiff denied she knows Zhang and denies she sent messages to the PUA account. However, the PUA account was used to send personal photographs and messages that, on the evidence, only the plaintiff would send. When asked, the plaintiff was unable to explain how or who sent photographs of herself and her son and messages relating to those photos to the defendant.

   2. (2)

      The evidence established, on the balance of probabilities, that the plaintiff sent messages to the defendant on the PUA account. This conclusion has a greater degree of likelihood than the plaintiff’s denial that she sent messages on the PUA account.

   3. (3)

      The evidence supported the finding that, on 29 September 2021, the plaintiff requested the defendant to pay on her behalf AUD 50,000 to Zhang and the defendant transferred AUD 50,000 into the account of Zhang and the plaintiff was liable to the defendant for the sum of AUD50,000.

Consideration: Zhang Payment

1. [330]

   I have reached the conclusion that, on the evidence, the claim by the defendant to take into account the alleged payment to Zhang either on the basis of a loan or for restitution should fail. My reasons for that conclusion appear below.

2. [331]

   First, the defendant’s case proceeded upon the basis of that the plaintiff had a debt to the defendant (that is, there was an implicit loan). That case was predicted solely on the basis of the PUA account considerations as the defendant had no independent recollection of the payment and relied entirely upon the PUA WeChat message.

3. [332]

   There are significant difficulties with the defendant’s case, when pursued on that basis, because:

   1. (1)

      I have rejected the PUA WeChat conversations as authentic.

   2. (2)

      In any event the claim rested on the uncertain basis that, notwithstanding his affidavit evidence as to a conversation with the plaintiff about the payment, his cross-examination revealed that the defendant lacked any independent recollection of the request for the payment.

   3. (3)

      In so far as the defendant relied upon the PUA WeChat conversation, as the basis for the recollection, it did not actually refer to an amount of $50,000.

   4. (4)

      The defendant admitted that there is nothing in the alleged WeChat messages that the plaintiff agreed to be liable for or repay the defendant whatever he may pay Zhang.

   5. (5)

      In cross-examination the defendant denied any suggestion that there was a loan from the defendant to the plaintiff or that the plaintiff promised to repay the monies to the defendant.

   6. (6)

      There is no proper basis on the evidence to find the plaintiff made a request that the defendant pay Zhang.

4. [333]

   Secondly, the defendant’s reliance on restitution must fail. If contrary to the above conclusion, there was found to be a Zhang payment, there is no allegation or evidence of any relevant 'benefit' from that payment which would allow the Court to make an order for restitution.

5. [334]

   The Court rejects the defendant’s claims against the plaintiff regarding the Zhang payment. The plaintiff is not liable to repay the defendant $50,000 in that respect.

TRANSACTIONS BETWEEN COMPANIES

1. [335]

   The defendant asserted that there were a number of transactions between companies that the plaintiff or defendant owned, or were the sole directors of, such that there were, in effect, loans between the parties in their personal capacities.

2. [336]

   The disputed transactions in this respect can be broken down into two categories. The first concerned money paid from the defendant to Anson One as follows:

   1. (1)

      $950,000 on 29 April 2019;

   2. (2)

      $500,000 on 17 June 2019; and

   3. (3)

      $100,000 on 27 December 2022.

3. [337]

   The second transaction concerned money paid from Func to Pfizer:

   1. (1)

      $300,000 on 30 August 2019; and

   2. (2)

      $82,910.70 on 10 March 2020.

4. [338]

   The plaintiff broadly submitted that, in dealing with the payments involving Anson One, Func and Pfizer, it was important for the Court to bear in mind that it was not alleged in these proceedings that Anson One, Func or Pfizer had not been duly incorporated or were not separate legal entities. Further, it was not alleged or suggested that any of those companies were shams or agents for any of their directors or members.

5. [339]

   The plaintiff submitted that, in that light, and in accordance with the separate entity doctrine of company law, that each of these companies had rights, privileges, duties and liabilities that were separate from its director(s) or member(s), even when there was a single director and/or single member. [10] Thus, where money has been received or paid by Anson One, Func or Pfizer, it was received or paid on its own behalf only and not on behalf of any of its directors or members.

6. [340]

   These submissions have some force and I will take them into account in resolving the issues reserved in this respect. However, as will appear below, reliance upon these notions is not essential to the resolution of those questions.

Money paid to Anson One

1. [341]

   In relation to these loans the defendant proposed the following issues:

   1. (1)

      Whether the payment by the defendant to Anson One on 29 April 2019 in the sum of $950,000 (AUD Table item 11) was made at the request of the plaintiff and whether the plaintiff became liable to repay the defendant $950,000.

   2. (2)

      Whether the payment made by the defendant to Anson One on 17 June 2019 in the sum of $500,000 (AUD Table item 14) was made at the request of the plaintiff and whether the plaintiff became liable to repay the defendant $500,000.

   3. (3)

      Whether the payment made by the defendant to Anson One on 27 December 2022 in the sum of $100,000 (AUD Table item 30) was a payment made by the defendant at the request of the plaintiff and whether the plaintiff became liable to repay the defendant $100,000.

   4. (4)

      Lastly, in relation to (1) to (3): Was Anson One or the plaintiff the other party to the loan(s) from the defendant and what are the precise facts, matters and circumstances giving rise to such liability?

2. [342]

   The plaintiff submitted in her reply submissions that the primary issue broadly was “[t]he only dispute between the parties is whether it was Anson One or the plaintiff who was the other party to those loans advanced by the defendant”. However, the plaintiff expressed the issues more fully, in this respect, in the plaintiff’s statement of issues as follows:

3. [343]

   There does not seem to be, in my view, any material difference in the issues as stated respectively by the parties.

4. [344]

   In relation to the alleged loan of $950,000, the defendant alleged that on or about April 2019, the plaintiff and the defendant had conversations to the following effect:

5. [345]

   The plaintiff denied this conversation occurred in her affidavit of 2 August 2023.

6. [346]

   The defendant then alleged that on or about 29 April 2019 he had a conversation with the plaintiff where she said words to the effect of “Can you lend me $950,000” and “Can you pay the money to my company”. The plaintiff also denied this conversation occurred. The plaintiff denied she ever made this request in cross-examination.

7. [347]

   At 11:05am on 29 April 2019, the defendant received a message from the plaintiff containing the payment details for Anson One.

8. [348]

   On 29 April 2019, the defendant transferred $950,000 to Anson One. The plaintiff does not dispute that the payment occurred but characterised the loan as one made to Anson one and not to the plaintiff.

9. [349]

   The source of that money was a loan in the sum of $990,000 given to the defendant, through his company Syat Pty Ltd, by ANZ Bank (“ANZ Loan”). The Facility Schedule attached to the letter of offer of finance for the ANZ Loan provided the “purpose” of the loan was “Business investment purposes”. Additionally, the letter of offer stipulates under the heading “Before you can use your facility” that “ANZ has received a duly signed copy of the contract of sale for the property situated at [40/2 Railway Parade, Lidcombe NSW 2141] before you draw on a Facility, showing a purchase price of at least, $950000.00 (excluding GST) and which is otherwise reasonably satisfactory to ANZ.”

10. [350]

    The plaintiff’s account of dealings between herself and the defendant and related conversations as to both Anson One and the payment to Anson One were as follows:

    1. (1)

       In 2018 and 2019, I had a number of conversations with the defendant during which I told him of Anson One and its business model.

    2. (2)

       Sometime in 2019, I had a conversation with the defendant during which words were said to the following effect:

    3. (3)

       After that conversation, I put the defendant in contact with some of my business connections in China. However, he told me later that he was giving up on the idea.

    4. (4)

       In about April 2019, the defendant and I had a conversation during which words were said to the following effect:

    5. (5)

       On 29 April 2019, the defendant transferred $950,000.00 to Anson One's bank account by way of loan to Anson One. “We have never discussed in details about terms and conditions of this loan and I have never provided personal guarantee to Fan's loan to Anson One”.

11. [351]

    Senior counsel for the defendant made extensive submissions on the contention that the defendant did not make any distinction between companies and its officers such that any loan the defendant made to Anson One he assumed was, in effect, a loan made to the plaintiff. Senior counsel for the defendant, inter alia, extracted the following passage from cross-examination of the defendant to support this contention:

12. [352]

    I note in passing that a good deal of the evidence given by the defendant in this passage is evasive.

13. [353]

    Senior counsel for the defendant, additionally drew attention to the following extracts of cross-examination of the defendant to demonstrate his belief that he loaned the monies to the plaintiff and not Anson One:

14. [354]

    I will return to the defendant’s evidence but note that this is, again, an example of the defendant giving evasive answers to questions in cross-examination.

15. [355]

    In oral submissions the defendant made the following submissions in relation to this transaction and the following transaction concerning the $500,000 loan:

16. [356]

    When Senior counsel for the defendant was asked for an authority as to those propositions the defendant sought to rely upon the following principle: [11]

17. [357]

    The authority sought to be relied upon by the defendant appeared to be Young and Progressive Pod Properties. I have earlier discussed these authorities under the heading legal principles.

18. [358]

    Counsel for the plaintiff made the following submissions regarding those issues:

    1. (1)

       The submission that the defendant did not make a distinction between a company and its officers is not supported at all by the transcript references extracted in the defendant’s closing written submissions.

    2. (2)

       Indeed, despite the evasiveness of the defendant during that cross-examination, the defendant clearly conceded that there is a distinction between corporate and personal entities demonstrated by, for example, the defendant’s acknowledgment that Syat employed its employees, not the defendant personally.

    3. (3)

       In any event, such evidence as to the defendant's uncommunicated, subjective state of mind is irrelevant to the determination on the objective basis as to who is the other party to the loan agreement(s) and the court would fall into error should it have regard to it.

19. [359]

    Counsel for the plaintiff additionally made a number of submissions regarding the credibility of the defendant in relation to the ANZ Loan and the $950,000 paid to Anson One which were as follows:

    1. (1)

       The defendant’s evidence was that to fund the loan for use by Anson One, the defendant obtained a personal bank loan in his name from the ANZ for $990,000.00 using the Surry Hills property. That evidence was not true.

    2. (2)

       The defendant did not take out a personal loan with ANZ. In fact, as the documents in Exhibit 18 demonstrate, Syat applied for and was granted a business loan of $990,000.00, secured by a personal guarantee from the defendant and a first registered mortgage granted by the defendant to ANZ over the Surry Hills property, for the purpose of purchasing property at 40/2 Railway Parade, Lidcombe NSW 2141.

    3. (3)

       The following may be noted from the ANZ Business Credit Application Form dated 21 March 2019 in Exhibit 18:

    4. (4)

       In the ANZ Small Business Banking - AppReady Tool in Exhibit 18, which appears to be an internal bank document, the following may be noted:

    5. (5)

       In the ANZ Letter of Offer dated 18 April 2019 addressed to The Directors, Syat Pty Ltd, the following may be noted:

    6. (6)

       As is apparent from the abovementioned evidence regarding Syat, its business and its financial circumstances and the defendant’s evidence of his income, much of the information that has been provided to and relied upon by the ANZ Bank during the application and in providing the loan to Syat is false.

    7. (7)

       The defendant was cross-examined about the contents of the ANZ bank documents in Exhibit 18 on 22 February and 7 March 2024. The defendant’s evidence in this regard was often contradictory, evasive or, if accepted, irrational. A number of matters however arose from the defendant’s cross-examination in this regard.

    8. (8)

       The defendant identified his signature on page 11 of 11 of the ANZ Business Credit Application Form, the Letter of Offer and the Contract for the Sale and Purchase of Land.

    9. (9)

       Contrary to his evidence that he obtained a personal bank loan in his name from the ANZ, the defendant admitted that Syat applied for a loan from the ANZ.

    10. (10)

        With regard to the ANZ Business Credit Application Form, the defendant admitted that the following were not true:

    11. (11)

        The defendant was taken to page 11 of 11 of the ANZ Business Credit Application Form and to the “Signature and Declaration” passage. The defendant was asked whether he read that passage before he signed the document and he answered, “not really”.

    12. (12)

        The defendant was then asked questions concerning what he told the bank he was going to use the money for. Whilst the defendant made admissions during this passage of the evidence, the evidence is again demonstrative of the defendant engaging in evasion and dissembling during the course of his evidence. The following exchange then took place:

    13. (13)

        The defendant was then cross-examined on the small business banking app ready tool document regarding its contents at pages 3 (Deal Specific Documents) and 4 (Section A) of that document. During that cross-examination:

    14. (14)

        The defendant was then cross-examined on the letter of offer. The defendant was taken through the terms of the offer and indicated that he understood that Syat was borrowing the money in the amount of $990,000.00. After the defendant was taken through the terms of the facility schedule at pages 4 and 5 of 10, the following exchange took place during cross-examination:

    15. (15)

        The defendant was then cross-examined on a conversation deposed to by the plaintiff at par 47 of her affidavit made 2 August 2023 (see par [350(4)] of this judgment), the entirety of which the defendant had denied at paragraph 46 of his affidavit made 14 September 2023, during which:

    16. (16)

        The following exchange then occurred during the defendant's cross-examination:

    17. (17)

        During cross-examination on 7 March and then again on 22 March 2024, the defendant gave evidence that he could not remember the name or address for the broker or the broker’s business, who the defendant said he had engaged for this ANZ Business Loan Application. [12]

    18. (18)

        Finally, on 7 March 2024:

    19. (19)

        Clearly, many false matters were conveyed to the ANZ in order to secure this loan. The defendant signed the Business Loan Application by which he was clearly conveying to the ANZ the correctness of all things that had been conveyed to the bank. There is no indication on the documents that the defendant used or engaged a broker, and the defendant cannot even identify the broker. The defendant’s attempts to blame his alleged broker for what was conveyed to the ANZ, even if true, imply that the defendant is entirely reckless when it comes to conveying the truth or accuracy of any matter.

20. [360]

    Senior counsel for the defendant did not appear to challenge these submissions on credit, except by stating the principles of Pavlis.

21. [361]

    Counsel for the plaintiff made submissions as to the proper legal principles to be applied in the resolution of the issues concerning the Anson One loans with which I agree.

22. [362]

    Identification of the parties to a contract must be in accordance with the objective theory of contract. That is the intention that a reasonable person, with knowledge of the words and actions that the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had.

23. [363]

    The process of construction requires consideration of not only the text of the documents, but also the surrounding circumstances known to the parties and the purpose and object of the transaction. This, in turn, presupposes knowledge of the genesis of the transaction, the background, and the context in which the parties are operating: Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 at [54]; Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509.

24. [364]

    I also agree with counsel for the plaintiff that the relevant surrounding circumstances with respect to all of the payments from the defendant to Anson One were as follows:

    1. (1)

       the plaintiff had a company, Anson One, which conducted a business of sourcing, selling and exporting Australian made lifestyle products such as vitamins, beauty products and baby formula to Chinese e-commerce platforms;

    2. (2)

       the defendant knew of Anson One and that it ran a vitamin export business;

    3. (3)

       all payments from the defendant to Anson One were to be by way of loan;

    4. (4)

       the purpose of the loan was to provide working capital for Anson One;

    5. (5)

       all payments were made directly from the defendant to Anson One’s bank account;

    6. (6)

       at the time of making the initial payment of AUD 950,000 to Anson One’s bank account on 29 April 2019, the defendant provided to his bank details of the payment as “LOAN”;

    7. (7)

       on 14 June 2019, Anson One directly repaid $500,000 to the defendant’s CBA account with the remittance advice of “loan repayme[nt]”;

    8. (8)

       on 23 August 2019 and 27 February 2020, Anson One repaid respectively $300,000 and $83,059.20 of the defendant’s loan by paying those sums, in accordance with the defendant’s direction, to the defendant’s company Func. There is no evidence that Anson One had any liability to Func to warrant those payments;

    9. (9)

       on 11 January 2021 and 30 December 2022 respectively, Anson One made direct repayments to the defendant of $50,000 and $100,000 with the details of “anson to haiyang” and “anson to seal”;

    10. (10)

        At exhibit 1 is a copy of Anson One's ledger accounts enquiry for the period 1 July 2018 to 30 June 2023 for account ‘3217-loans-Haiyang Fan’. This is a business record of Anson One and it recorded what is set out in that company's accounts of the status of the loan from the defendant.

25. [365]

    As to the credibility of the defendant’s evidence with respect to this loan payment, I draw attention to the following passage in the evidence which, in my view, further underlines that the defendant’s evidence is unsatisfactory:

26. [366]

    As a general proposition, I accept the entirety of the plaintiff’s attack on the defendant’s credit, in this respect, and, in particular, submissions made as to the dishonesty engaged in by the defendant by making of false statements conveyed to his bank in order to secure a loan.

27. [367]

    Whilst the plaintiff’s counsel was circumspect in his submissions as to the plaintiff’s attempts to extricate himself from some of the implications of his conduct by attributing the actions in part to an unnamed broker, in my view, when taken with my overall impression of the defendant as a witness in these proceedings, and, in particular, his evidence on this topic, it may be readily concluded that his evidence as to the involvement of a broker, who lent himself to the activities engaged in by the defendant, was a fabrication. In any event, as the plaintiff submitted, the defendant was entirely reckless when it came to conveying the truth or accuracy of any matter concerning the ANZ Loan.

28. [368]

    Returning to submissions for the defendant, the following additional submissions in respect of the $950,000 loan were made:

    1. (1)

       The defendant’s concern for the plaintiff rather than her company is entirely plausible and understandable given that they were in a romantic relationship at that time and his evidence as to the distinction (or lack thereof) between personal and company liabilities.

    2. (2)

       the evidence established that the defendant lent the plaintiff $950,000 which resulted, at the plaintiff’s WeChat direction, in the defendant paying Anson One that sum. The evidence established the plaintiff is liable for the loan of $950,000.

29. [369]

    I do not accept those contentions. I will commence with a discussion of the first contention and deal with the second contention as part of the balance of considerations.

30. [370]

    As to the first part of the first contention, despite initially dissembling that his interest lay with the plaintiff rather than, “the company” and that “Anson One's business or plaintiff's business, doesn't matter”, when taken to his affidavit of 5 July 2023 he admitted the payment of $950,000 was to provide working capital for Anson One.

31. [371]

    The plaintiff’s evidence under cross-examination is consistent with the fact that the defendant loaned money to Anson One. This evidence was as follows:

32. [372]

    The plaintiff’s evidence established that the defendant wished to extend the scope of his furniture business, and, in the absence of being able to do so, directed his attention to Anson One. That would account for his interest in making the payment with money received from a loan and explained why, in those circumstances, and having regard to the relationship between the parties (business or otherwise), there was little discussion of the terms of the loan to Anson One.

33. [373]

    As to the second part of the first contention, I do not accept that the defendant lacked an understanding as to the distinction between personal and company liabilities. Whilst it is conceivable that the finer points of such a distinction may have evaded him, overall, I consider his evidence in that respect to be evasive and dissembling.

34. [374]

    The defendant was not without commercial or business experience. He conducted, for example, a furniture business and discussed involvement in the workings of the Anson One business and raising working capital. His evidence as to the injection of funds into corporations as apparently illustrating personal responsibility for companies was again unconvincing and evasive. The defendant ultimately conceded, when pressed about his company being responsible for its own debts, that: “Yeah, but I responsible for the company”. It was soon after that concession that he acknowledged the position with respect to employees. When pressed with the obvious example of the engagement of his employees he conceded that those employees were engaged by Syat and not him personally.

35. [375]

    I will return to the second contention below.

36. [376]

    An additional consideration is the other aspects of the evidence of the plaintiff which I accept. I will commence by setting out the plaintiff’s account regarding Anson One and the Anson One business. The plaintiff’s evidence, in that respect, is found in her affidavit of 2 August 2023 as follows:

37. [377]

    The plaintiff then set out the preliminary engagement between her and the defendant ahead of a conversation which she attested to as occurring in or about April 2019. Her evidence in this respect appears earlier in this judgment (at [350](4).

38. [378]

    At par [47] of the plaintiff’s affidavit of 2 August 2023, the plaintiff gave evidence as to a conversation with the defendant. In that conversation, the defendant is recorded as saying, after identifying he had secured a loan on his Surry Hills property and had “a lot of cash”; “how about I lend to Anson One so it can leverage the amount to provide credit to your customers to complete more transactions”. To that the plaintiff responded favourably and indicated that she would give the defendant Anson One’s bank account details (which she did on 29 April 2019) and that she would direct her accountant to record it “as a loan to the company”.

39. [379]

    The defendant could not recall that conversation other than the reference to the loan on the Surry Hills property and denying the account by the plaintiff that she would direct her accountant to record the transaction as a loan to the company.

40. [380]

    My overall conclusion is that I accept the plaintiff’s account as to the engagement between her and the defendant in 2018 and 2019 as to Anson One and its business and as to her record of the conversations in that period. Her account is plausible and she was not shaken in cross-examination. Additionally, I have accepted her, in a more general sense, as a witness of credit.

41. [381]

    The counterpoint is that I do not accept the evidence of the defendant. It is sufficient for that purpose to note my adverse findings in the context of this transaction, but mention my earlier general credit findings. In substance, the defendant’s evidence is critical to the defendant’s case in this respect and that conclusion alone would point to the failure of the defendant’s case.

42. [382]

    Further, I agree with the plaintiff’s submission that any evidence as to the defendant’s uncommunicated subjective state of mind is irrelevant to the determination of the objective basis as to who is the other party to a loan agreement. However, in this case the plaintiff has given evidence, as I have referred to it, which squarely attributes the transaction under consideration here to one of a loan by the defendant to the company Anson One, which was expressly acknowledged by the defendant in the aspects of the aforementioned conversation held in or about April 2019 which he did not dispute.

43. [383]

    I do not accept the defendant’s submission that any failure or refusal by Anson One to repay the defendant the money he paid to it is consistent with a debt being owed by the plaintiff because:

    1. (1)

       By Annexure A it would appear that there had been repayments made with respect to the money paid to Anson one, and, in any event, all such repayments were made by the corporation.

    2. (2)

       It is true that Anson One has not repaid the full extent of the loan to it but no demand has been made on Anson One in that respect. Anson One has not been joined to these proceedings.

44. [384]

    In my view, there is no documentary or other objective evidence to support the defendant’s contention that the $950,000 loan was, in fact, a loan between the defendant and the plaintiff personally. For the reasons I have given, the defendant’s evidence cannot sustain his case in this respect.

45. [385]

    On the objective evidence available, a reasonable person would conclude that the intention was that the defendant and Anson One were the only parties, and the plaintiff was not a party, to any loan agreement.

46. [386]

    The objective evidence and the surrounding circumstances, together with the plaintiff’s evidence, lead to a conclusion that Anson One, and not the plaintiff, is and was the other party to the loan agreement(s) with the defendant. There was no request by the plaintiff in her personal capacity for the defendant to make payments to Anson One. Rather, the arrangements were driven by the defendant’s own interest in investing monies he received under a separate loan.

47. [387]

    It follows that the evidence must result in the conclusion that Anson One, and not the plaintiff, is and was the other party to the loan agreement with the defendant. There is no proper basis in those circumstances for the claim being satisfied in the basis of restitution. That firstly follows because, as the plaintiff put it, the loan covered the field.

48. [388]

    That assessment also follows because on the conclusions that I have reached there is no proper basis to find restitution assuming the defendant, in fact, relied upon that contention. The evidence does not establish that the defendant lent the plaintiff $950,000. In that context, the WeChat communication was not the plaintiff’s direction to the defendant to pay Anson One, but rather, as the plaintiff gave in evidence, her providing the bank details of Anson One, presumably as the director of the company, to the defendant in order to give effect to his loan to Anson One.

49. [389]

    One further observation should be made in these circumstances. Given that it was not suggested that Anson One is a sham or a mere agent for any of its directors or members, the application of the separate entity doctrine should result in the company being treated in law as having rights, privileges, duties and responsibilities that are separate from its director or member, even when there is a single director and/or a single member. I Ramsay and R Austin in Ford Austin & Ramsay’s Principles of Corporations Law state at [4.250], unfairness alone cannot justify a Court departing from the separate entity doctrine.

50. [390]

    In all the circumstances, the Court dismisses the defendant’s claims against the plaintiff regarding this loan by the defendant to Anson One. Specifically, to address the issue raised by the parties, I find that Anson One was the party to the loan and that the plaintiff was not liable to repay the defendant.

51. [391]

    I will now turn to the payment by the defendant of $500,000 to Anson One.

52. [392]

    In relation to the payment of $500,000 to Anson One on 17 June 2019, the defendant alleged that he had a conversation with the plaintiff on that day where the plaintiff said words to the effect of “Can you lend me $500,000” and “Can you pay the money to my company”. The plaintiff denied this conversation occurred. The defendant transferred $500,000 to Anson One that day.

53. [393]

    The plaintiff alleged a different set of circumstances preceded the payment of the $500,000 loan. The plaintiff stated that in about June 2019 she had a conversation with the defendant to the following effect:

54. [394]

    Following that conversation, on 14 June 2019, it is undisputed that a payment of $500,000 was made by Anson One to the defendant.

55. [395]

    The plaintiff alleged that shortly after the repayment of $500,000 to the defendant the following occurred:

    1. (1)

       The defendant said words to the plaintiff to the following effect: “The purchase of that Auburn property is not feasible and I have given up on that idea”.

    2. (2)

       Shortly after on 17 June 2019, a cash deposit of $500,000 was made to Anson One. The plaintiff “had no idea of the source of this sum of money. [The defendant] did not tell [the plaintiff] that he was making deposit into Anson One’s bank account. [The plaintiff] subsequently came to learn that the cash deposit was from [the defendant] to Anson One’s bank account”.

56. [396]

    Senior counsel for the defendant put questions to the plaintiff in cross-examination regarding the $500,000 loan which have been earlier extracted in the $950,000 loan extract.

57. [397]

    Senior counsel for the defendant submitted:

    1. (1)

       This exchange does not support a finding that the defendant loaned money to Anson One. In the context of the close personal relationship between the plaintiff and the defendant and the fact that the plaintiff personally sent Anson One’s account details supports the finding that the defendant was assisting the plaintiff and loaned the plaintiff money which the plaintiff directed be paid to Anson One.

    2. (2)

       The plaintiff was Anson One’s only employee in Australia at the time of cross-examination. The plaintiff stated that Anson One was profitable, however asserted that the company needed to ‘collect some money’ to have the capacity to pay the money owed to the defendant.

    3. (3)

       The failure or refusal of Anson One to repay the defendant the money he paid to it is consistent with the debt being owed by the plaintiff.

    4. (4)

       In cross-examination, the plaintiff acknowledged the payment of AUD 500,000 by the defendant to Anson One but pointed out that, on 14 June 2019, Anson One paid to the defendant $500,000. The plaintiff considered the defendant’s payment of $500,000 to Anson One on 17 June 2019 as repayment of a loan given to the defendant on 14 June 2019. The plaintiff’s evidence in that respect may be accepted. That is, the two transfers of AUD 500,000 between the defendant and Anson One on 14 and 17 June 2019 cancel each other out. It does not, however, enable the Court to find that the defendant entered into a loan agreement with Anson One. In fact, it demonstrates the opposite – the parties ignored the separate corporate identities and treated the payments as loans between themselves.

58. [398]

    In reply submissions, the plaintiff contended that:

    1. (1)

       The $950,000 loan extract is consistent with the fact that the defendant loaned money to Anson One.

    2. (2)

       The plaintiff responded specifically to the defendant’s submissions as recorded above as follows:

59. [399]

    Counsel for the plaintiff made further submissions with respect to the defendant allegedly taking out a loan for $950,000 which were in the same terms as advanced with respect to the $500,000 loan as follows:

    1. (1)

       The defendant’s oral evidence that “I would say the plaintiff has cashflow problem. I don't care about the company; I care about plaintiff” was an attempt by him to move away from his otherwise clear and uncontradicted evidence in his affidavit made 5 July 2023 which indicated the loan was to address Anson One’s cashflow problems and provide Anson One working capital.

    2. (2)

       The plaintiff again submitted that the evidence of the defendant as to his uncommunicated, subjective state of mind is irrelevant to the determination on the objective basis as to who was the other party to the loan agreement(s) and the court would fall into error should it have regard to it.

60. [400]

    As in the case of the $950,000 loan the essential issue between the parties with respect to these payments was whether it was Anson One or the plaintiff who was the other party to the loans advanced by the defendant.

61. [401]

    Many of the conclusions that I have reached with respect to the $950,000 loan are equally applicable in this context except for the following additional or supplementary reasons:

    1. (1)

       The plaintiff acknowledged in cross-examination that a payment of $500,000 was made by the defendant to Anson One on 14 June 2019. However, Anson One paid that amount to the defendant on 17 June 2019. That repayment was plainly a repayment of the loan by the defendant which was made out of Anson One.

    2. (2)

       I do not accept the contention of the defendant that it does not follow that the defendant entered into a loan agreement with Anson One. My view is that it is confirmatory of the evidence given by the plaintiff, which I accept, that the defendant had asked Anson One to repay the loan to it and that, in response thereto, the repayment had been received.

    3. (3)

       As previously mentioned, I do not accept the submission by the defendant that the defendant did not make any distinction between companies and its officers. He conceded as much in cross-examination.

    4. (4)

       Similarly, I do not accept that these payments, for reasons earlier given, were made out of concern for the plaintiff but rather concern business considerations. The various loans were made to address Anson One’s cashflow problems and to provide Anson One with working capital because of the defendant’s interest in that business.

62. [402]

    In all the circumstances, the Court dismisses the defendant’s claims against the plaintiff regarding this loan by the defendant to Anson One. Specifically, to address the issue raised by the defendant, I find that Anson One was the party to the loan and that the plaintiff was not liable to repay the defendant.

63. [403]

    In relation to the payment of $100,000 by the defendant to Anson One, the plaintiff alleged that, on 26 December 2022, she realised Anson One needed to pay a supplier and it was short of cash due to her making the December 2022 payments to the defendant.

64. [404]

    The plaintiff recalled a conversation with the defendant at this time where words to the following effect were stated:

65. [405]

    It is not disputed that on 27 December 2022, the defendant transferred Anson One $100,000. However, the defendant denied that words to the effect of “can you loan Anson One [a] sum of money” were ever said to him.

66. [406]

    I accept the evidence of the plaintiff in these respects. She made a request on behalf of Anson One for Anson One to obtain a loan from the defendant.

67. [407]

    In relation to the $100,000 payment to Anson One, the defendant broadly submitted the fact the plaintiff sent the companies account details to the defendant and the surrounding circumstances including the close personal relationship between the plaintiff and the defendant, supports the finding that the defendant was assisting the plaintiff and lent the plaintiff $100,000 which, at the plaintiff’s direction, the defendant paid to Anson One. It was submitted that was the inherent probability of the transaction.

68. [408]

    In my view, when account is taken of the objective facts and surrounding circumstances as I have found them to exist with respect to the $950,000 loan and the $500,000 loan, and having regard to my findings as to the defendant’s credibility both in this respect and in relation to the earlier mentioned loans to Anson One and, overall, my assessment of the evidence above. I reject the defendant’s claim with respect to this transaction. I find that the party to the loan was Anson One and that any liability with respect to the loan resides in Anson One and not the plaintiff.

Money paid to Pfizer

1. [409]

   The defendant stated the following issues existed with respect to these transactions:

   1. (1)

      Whether the payment made by Func to Pfizer on 30 August 2019 in the sum of $300,000 was made on behalf of the defendant at the request of the plaintiff and whether the plaintiff became liable to repay the defendant $300,000

   2. (2)

      Whether the payment made by Func to Pfizer on 10 March 2020 in the sum of $82,910.70 was made on behalf of the defendant at the request of the plaintiff and whether the plaintiff became liable to repay the defendant $82,910.70.

   3. (3)

      In relation to issues (1) and (2) above, was the plaintiff’s liable for a debt on an alleged loan between the plaintiff and the defendant (with an implicit promise to repay by the plaintiff) or was it for restitution for money paid and what are the precise facts, matters and circumstances giving rise to such liability?

2. [410]

   The plaintiff again expressed the issues, in this respect, differently as follows:

   1. (1)

      was the plaintiff liable to repay the defendant those payments and on what basis? In that regard, was the plaintiff’s liable for a debt on alleged loan(s) from the defendant and the plaintiff (with an implicit promise to repay by the plaintiff) or was it for restitution for money paid and what are the precise facts, matters and circumstances giving rise to such liability? It is noted that the plaintiff alleges that those payments were loans from Func to Pfizer.

3. [411]

   The circumstances alleged in relation to the money paid to Pfizer are different in the plaintiff and defendant’s case, although there were some agreed facts.

4. [412]

   On 23 August 2019 and 27 February 2020, Anson One made repayments of $300,000 and $83,059.20 respectively to Func thereby repaying a loan from the defendant. The total amount transferred was $393,059.20. On 30 August 2019 Func transferred $300,000 to Pfizer. On 10 March 2020, Func paid Pfizer $82,910.70.

5. [413]

   On the plaintiff’s case, the surrounding circumstances for the transactions were:

   1. (1)

      Before the payment made on 23 August 2019 was made, the plaintiff had a conversation with the defendant to the effect of:

   2. (2)

      At some time after 23 August 2019, the defendant and the plaintiff had a conversation to the following effect:

   3. (3)

      Following that conversation, the plaintiff provided the defendant with Pfizer’s bank account details.

   4. (4)

      At some time after 27 February 2020, the defendant and the plaintiff had a conversation during which:

6. [414]

   On the defendant’s case, the following were the surrounding circumstances of the transactions:

   1. (1)

      Sometime before, or around 23 August 2019, the plaintiff asked the defendant if she could use Func’s Hong Kong bank account to make a payment to Pfizer. Based on what the plaintiff had told the defendant, the defendant was aware that Anson One and Pfizer had had a business relationship. The defendant otherwise had no dealings with Pfizer.

   2. (2)

      Sometime before, or around 27 February 2020, the plaintiff asked the defendant if she could use the Hong Kong bank account of Func to make a payment to Pfizer. The defendant “simply did as she asked”.

   3. (3)

      The defendant had no business dealings with Pfizer before or after these payments. The defendant stated that Func “does not, and did not, retain the $382,910.70 it received from Anson One”.

7. [415]

   Almost a year after the payments to Pfizer, in March 2021, the defendant was contacted via WeChat by Mr Xiaoming Zhong, a representative of CITIC Bank (“Mr Zhong”). The conversation in Mandarin was translated to the following:

8. [416]

   On 12 March 2021 at 7.30pm, the defendant sent a screenshot of his conversation with Mr Zhong to the plaintiff. Thereafter the defendant asserted a conversation on WeChat ensued in Mandarin which has been translated below. However, the plaintiff asserted that prior to those WeChat messages the plaintiff and the defendant had a phone conversation to the following effect:

9. [417]

   The WeChat conversation that then occurred in Mandarin was translated as follows:

10. [418]

    The plaintiff stated that, after the phone conversation and reading the WeChat messages from the defendant, she understood “that the bank was looking for receipts or invoices concerning the transactions involving Anson One, Func International and Pfizer group”. The plaintiff then checked the bank statements of Anson One and Pfizer and identified the relevant bank transfers between Anson One and Func and between Func and Pfizer.

11. [419]

    The plaintiff then created and sent the defendant two pdf files via the WeChat conversation titled: “func international.pdf” and “func 26 02 2020.pdf” which were invoices from Func to Anson One.

12. [420]

    After receiving those files, the defendant sent a message to the plaintiff in Mandarin which was translated as follows:

13. [421]

    The plaintiff sent two additional pdf files in the WeChat titled: “INV-200919.pdf” and “INV-260220.pdf” which she created as invoices from Pfizer to Func.

14. [422]

    The defendant then replied in Mandarin, which is translated as follows:

15. [423]

    It is not disputed that none of the transactions recorded by the invoices the plaintiff created took place. The plaintiff stated that although she was not in a romantic relationship with the defendant at this time she still regarded the defendant as a friend and created the invoices at his request as a favour to him.

16. [424]

    Further, WeChat correspondence between Mr Zhong and the defendant recorded that, on 25 March 2021 there was a call between Mr Zhong and the defendant at 2:12pm which was recorded as “Duration: 01:03”. The following Mandarin conversation was translated as follows:

17. [425]

    In paragraphs [10] to [18] of the defendant’s affidavit of 15 September 2020 he stated:

18. [426]

    Senior counsel for the defendant made the following submissions on the money paid to Pfizer:

    1. (1)

       The defendant was the sole director and shareholder of Func.

    2. (2)

       At the time the payments from Func to Pfizer were made, the plaintiff was the sole director of Pfizer.

    3. (3)

       Rather than accepting that Func essentially transferred the monies deposited by Anson One into its account to Pfizer, the plaintiff contended that the two payments were a loan from Func to Pfizer. However, the plaintiff’s evidence is that she never had a discussion with the defendant about the terms of the loan.

    4. (4)

       In cross-examination, the plaintiff was asked the following questions and gave the following answers in relation to the payments:

    5. (5)

       That evidence does not support a finding that Func loaned to Pfizer the 2 payments it made on 30 August 2019 and 10 March 2020. The defendant says he does not know who Pfizer is. There was never any discussion between the plaintiff and the defendant about when, how or if the monies would be repaid by Pfizer.

    6. (6)

       The payments made by Func to Pfizer must be seen in the context of the prior transfers from Anson One to Func. The timing of the payments from Anson One to Func and then from Func to Pfizer, alone demonstrate that, on balance, the defendant’s account that the plaintiff had asked him if she could, in effect, use Func as an intermediary for payments to Pfizer is inherently probable.

    7. (7)

       In March 2021, that is more than 1 year after Anson One’s second payment to Func and Func’s second payment to Pfizer, the defendant was contacted by a representative of the bank with which Func held an account.

    8. (8)

       The defendant simply took a screenshot of his exchange with Mr Zhong and forwarded it to the plaintiff. The defendant and the plaintiff continued to have a WeChat conversation in relation to Ms Zhong’s request for documents about the AUD 380,000 payments from Anson One to Func and the AUD 380,000 payments from Func to Pfizer. Nowhere in those discussions does the defendant ask the plaintiff to create documents. Despite that, the plaintiff responds by sending the defendant two invoices from Func to Anson One (totalling $383,059.20), and two invoices from Pfizer to Func (totalling $383,059.20) in answer to the bank’s request for documents. The invoices purport to be in respect of the supply of products. In cross-examination, the plaintiff conceded that she created invoices in answer to the bank’s request.

    9. (9)

       The plaintiff’s creation of the invoices is consistent with the defendant’s account that she had asked him to cause Func to onforward money to Pfizer.

    10. (10)

        The creation of the invoices is entirely inconsistent with the plaintiff’s account that Func had loaned money to Pfizer. When asked why the plaintiff did not simply provide a statement as director of Pfizer saying that it had received AUD382,000 by way of loan from Func, the plaintiff responded:

    11. (11)

        The plaintiff’s answer was non-responsive, illogical and entirely inconsistent with the claim that Func loaned monies to Pfizer.

    12. (12)

        As indicated, the payments made by Func to Pfizer must be seen in the context of the prior transfers from Anson One to Func. The timing of the payments from Anson One to Func and then from Func to Pfizer demonstrate that, on balance, the defendant’s account that the plaintiff had asked him if she could in effect use Func as an intermediary for payments to Pfizer is inherently probable.

    13. (13)

        The plaintiff has not provided any contemporaneous documents supporting her claim that Func Ioaned monies to Pfizer. The plaintiff’s response to the request from the bank for documents relating to the payments to Pfizer does not support her claim that Func loaned Pfizer monies.

    14. (14)

        The evidence established that the inherent probability is that Anson One made two payments to Func totalling AUD383,059.20 which, at the request of the plaintiff, Func paid to Pfizer. The evidence does not support a finding that Func loaned monies to Pfizer as claimed by the plaintiff.

19. [427]

    Counsel for the plaintiff made the following submissions in relation to the monies paid to Pfizer:

    1. (1)

       The defendant submitted that each of the payments from Anson One to Func and then to Pfizer were made at the request of the plaintiff because she had told the defendant that Anson One and Pfizer had a business relationship. There is no basis for this submission or for any finding by the Court that such payments were a loan from the defendant to the plaintiff.

    2. (2)

       Each of the payments from Anson One to Func were repayments by Anson One of the loans from the defendant to Anson One and were made at the direction of the defendant. Further, each of the payments from Func to Pfizer were loans from Func to Pfizer. The defendant denied this.

    3. (3)

       There are simply no allegations or evidence that:

    4. (4)

       At no time in any of the defendant’s dealings with Mr Zhong of CITIC Bank did the defendant assert or suggest that the monies received from Anson One and paid by Func to Pfizer were not Func’s monies.

    5. (5)

       There was a WeChat conversation between the defendant and Mr Zhong on 12 March 2021 which was forwarded to the plaintiff. A conversation ensued between the plaintiff and the defendant and the plaintiff created four invoices which she sent to the defendant.

    6. (6)

       It is obviously apparent from the messages, from the defendant to the plaintiff in their WeChat conversation, that the defendant had clearly read those invoices on 12 March 2021 and that if the amounts in the bank’s remittance records, which the defendant was waiting for, matched with those in the invoices the plaintiff sent, the defendant would forward those invoices to the bank.

    7. (7)

       The defendant was cross-examined on these matters and gave the following evidence:

20. [428]

    It was put to the defendant that he had lied or misled the bank in what he had done, the following exchange took place:

21. [429]

    The defendant’s evidence in this passage of his cross-examination was clearly dishonest, as was his dealings with CITIC bank.

22. [430]

    In my view, the defendant requested the plaintiff to prepare those false invoices. Further, he read them after the plaintiff sent them to him. Also, the defendant proffered those invoices to his bank to prove that Func did trade. The defendant deceived his Bank in the course of its ‘internal risk control’ enquiries, which got the bank “off his back”.

23. [431]

    My considerations in this respect will be directed to both transactions between Func and Pfizer.

24. [432]

    There was no dispute that the following transactions occurred in mid-2019 and early 2020 in this respect as follows:

    1. (1)

       on 23 August 2019, Anson One paid $300,000 to Func at its CITIC Hong Kong bank account;

    2. (2)

       on 30 August 2019, Func paid $300,000 to Pfizer at its Hong Kong bank account;

    3. (3)

       on 27 February 2020, Anson One paid $83,059.20 to Func at its CITIC Hong Kong bank account;

    4. (4)

       On 10 March 2020, Func paid $82,910.70 to Pfizer at its Hong Kong bank account.

25. [433]

    The defendant was correct to submit that the transactions as between Anson One and Func and Func and Pfizer were, in a temporal sense, in close proximity to one another. However, the evidence also demonstrates that the payments from Anson One to Func were repayments by Anson One of a loan from the defendant to Anson One and were made at the direction of the defendant.

26. [434]

    It was also common ground that, at the time the payments were made, the defendant was the sole director and shareholder of Func and the plaintiff was the sole director of Pfizer (the plaintiff’s mother was the sole shareholder of Pfizer).

27. [435]

    Nor would there seem to be any dispute in the evidence, and in any event, I find that:

    1. (1)

       the defendant opened Func for the purpose of some business, but he cancelled that plan. Hence, he never used the company and never used the companies account for his business. In short, Func did not operate;

    2. (2)

       the only two transactions on Func’s bank account were the above mentioned transactions;

    3. (3)

       Func does not trade and has never traded; and

    4. (4)

       the defendant never received any income from Func.

28. [436]

    The plaintiff conceded in cross-examination, there were no terms for the loan and no security was obtained. That fact is relevant to whether the plaintiff can demonstrate, on the evidence, that Func gave a loan to Pfizer.

29. [437]

    The defendant’s case, was, in essence, that the plaintiff had asked him to use Func as an intermediatory for payment by the defendant to Pfizer. In the plaintiff’s written submissions, it was contended that the evidence does not support a finding and that the payment from Func to Pfizer constituted a loan from Func to Pfizer.

30. [438]

    It is quite unclear how the defendant sought to demonstrate, as was at least implicit in his defence and cross claim, that the plaintiff personally owed to the defendant the equivalent of the monies paid from Func to Pfizer. It would seem that the defendant relied upon the existence of a loan from the defendant to the plaintiff equivalent to the combined payments from Func to Pfizer of $383,059.20.

31. [439]

    There may also be a claim in restitution although, again, it is not clear how the defendant prosecuted any such proposition. Returning to some remarks made at the commencement of my judgment, that is a less than satisfactory basis upon which to determine the claim.

32. [440]

    If that is the basis upon which the defendant sought to establish this transaction as, for example, providing the basis for an offset then, in my view, it must fail and it also must fail on any of the other bases which I have discussed as a potential basis for the SCC above.

33. [441]

    Even on the defendant’s evidence, the plaintiff asked if she could use Func’s bank account as a means to make a payment from Anson One to Pfizer. When Func made the payments to Pfizer, on the defendant’s evidence, it was in accordance with the plaintiff’s request and direction that Anson One, not herself, make a payment through Func to Pfizer. In my view, the plaintiff made the request as a director of Anson One.

34. [442]

    Furthermore, the plaintiff is correct to submit that the defendant made no pleadings or allegations or called in evidence any of the following:

    1. (1)

       the payments from Func to Pfizer were advances or payments by or on behalf of the defendant;

    2. (2)

       there were any promises by the plaintiff to pay or repay those monies to the defendant; and

    3. (3)

       there was any relevant ‘benefit’ to the defendant from those payments from Func to Pfizer.

35. [443]

    I return then to the plaintiff’s contention that the transactions represented a loan from Func to Pfizer.

36. [444]

    It is true that there is come objective evidence pointing against that contention, in favour of Func acting as an intermediatory, because of the temporal connection, as I have mentioned, between the payments between Anson One and Func and Func and Pfizer. Also weighing against the finding of the existence of such a loan was the absence of any contemporary documents supporting the existence of a loan or any form of security.

37. [445]

    However, there are significant countervailing considerations in favour of the plaintiff’s position in addition to my earlier remarks under this heading. In the defendant’s dealing with the CITIC Bank, he did not, at any time, state that the monies received from Anson One and paid by Func to Pfizer were other than Func’s monies.

38. [446]

    Further, I do not accept the submission of the defendant that the creation of the fake invoices by the plaintiff was entirely inconsistent with the plaintiff’s account that Func had loaned money to Pfizer. The plaintiff’s evidence, in this respect, as I have noted, is not entirely satisfactory but it is clear on the evidence, as I have analysed it above, that the defendant’s evidence that he did not have a conversation with the plaintiff requesting or desiring the production of the invoices, or at least business records necessary to satisfy his bank, must be rejected.

39. [447]

    Additionally, I consider, as earlier mentioned, that the defendant did look at the invoices when he received them and forwarded them to his bank knowing that they were clearly false. Func had never sold goods to Anson One and Pfizer had never sold any goods to Func.

40. [448]

    As I have earlier found, in my view, the defendant forwarded the invoices after being contacted by Mr Zhong, as a means of deceiving the bank as to the true nature of the payments between the respective companies. In particular, it was a deception about Func actually trading.

41. [449]

    Those circumstances cast a different light on the transactions and should result in a rejection of the defendant’s evidence about the transactions. On balance, the monies forwarded to Pfizer by Func were Func’s monies. This and my proceeding analysis are consistent with there being a loan from Func to Pfizer, neither of which are parties to the proceedings.

42. [450]

    Whether viewed through the prism of any claim by the defendant as to the existence of a loan between the defendant and the plaintiff, restitutionary relief being sought in relation to the transactions, or through the prism of their existing a loan between Func and Pfizer, in my view, the plaintiff is not liable for the total sum paid from Func to Pfizer in 2019 and 2020.

CONCLUSION

1. [451]

   The relief claimed by the plaintiff in the SOC consisted of various claims for declarations, judgment of monetary sums expressed in Australian dollars and Renminbi together with interest from 17 January 2023 to judgment and costs.

2. [452]

   Whilst the plaintiff, in her first claim for relief under the SOC, sought a declaration that the defendant promised to marry the plaintiff in the period from 15 to 26 December 2022 on the condition that, or in consideration for, the plaintiff lending to the defendant RMB 10 million and the plaintiff paying to the defendant the sum of $248,500, counsel for the plaintiff effectively amended that claim in oral submissions so as to confine the first declaration to the payment by the plaintiff of the sum of $248,500 on the basis of that promise.

3. [453]

   On the evidence, I have found the existence of the promise to marry referred to in the plaintiff’s pleadings in the first prayer for relief in the SOC and, in all of the circumstances, I propose to make a declaration in terms of the first claim for relief in the SOC in the terms proposed but confining the relief to the payment of $248,500.

4. [454]

   The claim for RMB 10 million, which I have referred to throughout my judgment as the RMB loan, was pursued on the basis of a loan by the plaintiff to the defendant in that sum, even though the payments were not advanced in a lump sum but by a series of transfers or payments in AUD and RMB between the plaintiff and the defendant between 15 and 23 December 2022.

5. [455]

   I have found the existence of that loan and those payments and accordingly, in due course, I will grant the second prayer for relief claimed in the SOC by making declarations in the manner proposed by the plaintiff. To the extent the plaintiff needs to amend first prayer for relief or bring a further prayer for relief (in addition to the fifth claim for relief) for a declaration as to the RMB loan, I am inclined to do so.

6. [456]

   The payment of $248,500 was made on 26 December 2022 by transferring that sum from the plaintiff’s Westpac Banking Corporation account to the defendant’s Commonwealth Bank of Australia account. Accordingly, a declaration may be made in terms of the third claim for relief in the SOC. It would seem unnecessary to grant the fourth claim for relief having regard to the above conclusions. However, I leave open that question in the provision for further submissions that I have made in the Orders and Directions below.

7. [457]

   The fifth prayer for relief sought a declaration that the defendant was liable to repay the RMB loan to the plaintiff. That declaration is also available upon the findings made in this judgment, provided that the loan is understood to be the amounts advanced in the second prayer for relief and subject to the next part of my conclusions.

8. [458]

   By the Defence and SCC, the defendant sought to bring to account what I have referred to in my judgment as the transactions as well as other monies to offset or otherwise reduce the judgment sum payable by the defendant with respect to the payments made by the plaintiff to the defendant between 15 and 23 December 2022 (the RMB loan).

9. [459]

   On the ‘accounting exercise’ advocated by the defendant, the remainder of monies owed by the defendant to the plaintiff was relatively confined and not disputed. However, I have found, contrary to the defendant’s case, that the plaintiff is not liable by virtue of a loan, in restitution or on any other basis relied upon by the defendant for the monies paid in the transactions, save for what I have described during the course of the judgment as the alleged gift transaction. In that respect, I have found that the defendant did not pay the sum of RMB 3 million to the plaintiff’s mother as a gift. Rather the payment constituted a loan (whether express or implicit) from the defendant to the plaintiff’s mother at the direction of the plaintiff. That same conclusion flows through to any consideration of an offset.

10. [460]

    It follows that any declaration made arising from the fifth prayer for relief or any judgment given with respect to the RMB loan in the eighth prayer for relief will be affected by the necessity to make adjustments with respect to, at least, the alleged gift transaction.

11. [461]

    In the Defence and in the SCC the defendant placed reliance upon various other transactions between the parties which did not fall within the basket of the transactions, that is, as to disputed transactions. The submissions of the parties were essentially focused upon the RMB loan and the $248,500 payment and the transactions with little attention being directed to those other acknowledged transactions although I acknowledge that they form part of what the defendant had described as an overall accounting exercise.

12. [462]

    Before I make a declaration and enter judgment with respect to the RMB loan, I propose to give the parties an opportunity to consider just how those other transactions might be brought to account in any order for judgment (or declaration) in the Short Minutes of Order filed and served in accordance with the orders of the Court and whether any further submissions should be made, in that respect (for which leave is granted by the Orders and Directions).

13. [463]

    In my view, it is appropriate to make the declaration sought in the seventh relief claimed. It is unclear whether the plaintiff pressed the declaration sought in the sixth relief claim and, accordingly, I shall make no determination in that respect at this time.

14. [464]

    The judgment sum sought of $848,500 in the prayer 8(a) of the prayers for relief in the SOC consisted of a claim with respect to the AUD payments made by the plaintiff with respect to the RMB loan between 15 and 16 December 2022 together with the claim for the $248,500 payment made on 26 December 2022. It is not appropriate to enter judgment in that respect at this time until the balance of the issues I have referred to above are resolved.

15. [465]

    The Court did not receive any submissions as to interest and costs and accordingly those matters will be reserved for further attention corresponding to the orders and directions below.

ORDERS AND DIRECTIONS

1. [466]

   The Court makes the following Orders and Directions:

   1. (1)

      The plaintiff shall bring in Short Minutes of Order reflecting this judgment within 28 days of this judgment. Those Short Minutes shall incorporate a program for the resolution of any issues remaining as to the form of the Orders to reflect the judgment and interest and costs which are reserved. In the case of interest and costs, the directions may also make provision for the receipt of evidence.

   2. (2)

      In the event that the defendant disputes the form of the Orders filed in accordance with Order (1) then the defendant shall file the alternative form of Orders including directions as to the receipt of submissions as to the form of Orders, interest and costs within 49 days.

   3. (3)

      In the event that the parties settle the terms of Orders and Short Minutes of Order, the Short Minutes of Order shall be filed with a corresponding note to that effect and the Court shall deal with the Orders administratively in Chambers.