BJ International Limited v Asghar

RULE 5.23 AND NON-COMPLIANCE WITH ORDERS 9 The orders made on 4 April 2013 noted the failure on the part of Mr Asghar to comply with the orders made on 12 November 2012 requiring: an Amended Defence to be filed no later than 17 December 2012; and any evidence to be filed and served by no later than 21 February 2013. Those orders further noted that Mr Asghar failed: to attend directions hearings held on 11 and 20 March 2013. To that list of non-compliance with orders may now be added: the failure on the part of Mr Asghar to file an Amended Defence and evidence by 2 May 2013 as required by the orders made on 4 April 2013. A document which had been filed on 29 April 2013 headed "Defence" and also described as an "Affidavit", it is respectfully considered, is a failure to comply with the orders made on 4 April 2013. That document did indicate, however, an intention on the part of Mr Asghar to file a Defence and further indicated that he disputed the claims made by BJ International. 10 In such circumstances, both the Interlocutory Application as filed on 20 March 2013 - and as repeated in the oral application as made at the outset of the hearing on 15 May 2013 - were applications not without some substance. 11 The substance of those applications was that Mr Asghar was unquestionably in "default" of orders made by the Court. 12 The circumstances in which this Court may make an order where a party is "in default" are addressed in Division 5.2 of the Federal Court Rules 2011. "Default" is defined in r 5.22 as follows: A party is in default if the party fails to: (a) do an act required to be done, or to do an act in the time required, by these Rules; or (b) comply with an order of the Court; or (c) attend a hearing in the proceeding; or (d) prosecute or defend the proceeding with due diligence. Rule 5.23(1) provides for those circumstances in which it is an applicant who is in default; r 5.23(2) provides for those circumstances in which it is a respondent who is in default. Rule 5.23(2) provides as follows: If a respondent is in default, an applicant may apply to the Court for: (a) an order that a step in the proceeding be taken within a specified time; or (b) if the claim against the respondent is for a debt or liquidated damages - an order giving judgment against the respondent for: (i) the debt or liquidated damages; and (ii) if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or (c) if the proceeding was started by an originating application supported by a statement of claim, or if the Court has ordered that the proceeding continue on pleadings - an order giving judgment against the respondent for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled; or (d) an order giving judgment against the respondent for damages to be assessed, or any other order; or (e) an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order. 13 Where a party is in default - be it an applicant or a respondent - the opposing party need not make an application for an order pursuant to r 5.23(1) or (2). And if an application is made, the Court retains a discretion as to whether or not to make any order or an order of a particular kind. Whether that discretion should be exercised would depend upon (inter alia) the nature of the default itself, any explanation provided for the default, the manner in which the party in default has conducted the proceeding to-date and whether the Court could have any confidence that a proceeding would henceforth be conducted in an orderly and proper manner. 14 Without being exhaustive, an order may be made entering judgment against a respondent pursuant to r 5.23(2)(d) in those circumstances where the default which has occurred is such as to manifest an intention on the part of a respondent not to comply with orders which have been made with a view to preparing a case for hearing. A single act of default may be sufficient; in other circumstances a single act of default may not warrant an order being made. Much may also depend upon whether a respondent has been given adequate notice of an intention to make an application for judgment to be given and an opportunity for the respondent to remedy a past act of default. 15 Notwithstanding "default" on the part of Mr Asghar, the course pursued on 15 May 2013 was to proceed to hearing both any application for judgment to be entered by reason of that "default" and the hearing of the principal proceeding. 16 Both the Applicant and the Respondent were prepared to proceed to have the principal claims for relief heard and determined. Those claims were within a limited compass and occupied little more time than would an application for an order pursuant to r 5.23. 17 In the circumstances of the present proceeding, it is thus considered that the preferable course is to hear and determine the claims for relied as sought by BJ International in its Amended Statement of Claim.

THE AMENDED STATEMENT OF CLAIM 18 The judgment in the Interlocutory Application heard and resolved in September 2012 summarised the two causes of action then relied upon as being: a claim founded upon an agreement for the supply of motor vehicles; and a claim as to misrepresentation. Reservation was expressed in the interlocutory judgment as to whether the only agreement then in evidence was an agreement between BJ International and an entity known as Ginza Importers Pty Ltd, rather than an agreement with Mr Asghar: [2012] FCA 1067 at [13]. Relief was refused (inter alia) by reason of the delay in seeking interlocutory relief: [2012] FCA 1067 at [19]. 19 The Amended Statement of Claim thereafter filed on 12 November 2012 relies upon causes of action being: an agreement between BJ International and Mr Asghar; a breach of guarantees provided by Mr Asghar, guaranteeing any indebtedness as between BJ International and Ginza Importers Pty Ltd; an agreement between BJ International and Ginza Importers Pty Ltd whereby the latter company was Mr Asghar's "undisclosed agent"; an "acknowledgment of debt"; misleading and deceptive conduct; interference with contractual relations; deceit; and unjust enrichment. In one or other of these ways, BJ International sought to confront the prospect that any agreement for the supply of motor vehicles was not an agreement as between BJ International and Mr Asghar - but an agreement with Ginza Importers Pty Ltd.

THE PARTIES TO THE AGREEMENT AND BREACH 20 Notwithstanding the reservations previously expressed when interlocutory relief was being sought, the evidence now before the Court establishes an agreement as between BJ International and Mr Asghar. 21 The Managing Director of BJ International, Mr Saber Sakura, filed affidavits on 12 November 2012 and 15 March 2013 and was cross-examined by Mr Asghar. 22 The affidavit of 12 November 2012 set forth a meeting that had taken place "in or about 1999" in Japan between Mr Asghar, Mr Aslam (a "business associate" of Mr Sakura) and Mr Sakura. During the course of that meeting, the following conversation took place: Mr Aslam: "This is my friend Jawed Asghar from Australia. He is a reliable person, please help him, he would like to do business with you." Mr Sakura: "Do you have any experience selling cars?" Mr Asghar: "I am a taxi driver in Australia, but I have bought and sold some motor vehicles." Mr Sakura: "How many cars do you think you need to start the business?" Mr Asghar: "I need four or five vehicle per month." Mr Sakura: "That should not be a problem; I can supply four or five vehicles a month." Mr Asghar: "I know you buy your cars from the auctions. What are your terms?" Mr Sakura: "Our customers give us the price, make and model they need. They tell us how much they are willing to pay. I will buy from auctions and the dealers. The price I buy it belongs to me, whichever the price customer gave me is the price for the dealings. After all, I will charge you shipping charges for the car and the transport up to the port." Mr Asghar: "Yes, I agree." Mr Sakura was asked questions in respect to this paragraph. Difficulties soon became apparent. Mr Asghar, being unrepresented, was largely unable - with respect - to ask Mr Sakura any meaningful questions. To compound the difficulty, Mr Sakura gave evidence with the assistance of an interpreter. The translation of poorly expressed questions and the translation of Mr Sakura's response was not a course free of difficulty. 23 But those difficulties can be left to one side. It was apparent that Mr Asghar was disputing that the conversation took place and Mr Sakura maintained that it did. The account of Mr Sakura is accepted. 24 Mr Asghar also gave oral evidence and was cross-examined. It is unnecessary to do more for present purposes than to observe that a significant attack was made on the credit of Mr Asghar. That attack took the form of questioning whether: Mr Asghar had misrepresented an explanation previously provided for an inability to produce some bank records, the explanation being that there had been a robbery at his car sale yard. The robbery was reported to police and the offender captured shortly thereafter. The police record makes no reference to the theft of any bank statements and the offender was not found to have any bank statements in his possession when apprehended; and Mr Asghar had deliberately provided false information when seeking approval from the Department of Transport and Regional Services ('the Department") to import motor vehicles into Australia. The suggestion was that the value of the cars was deliberately understated with a view to (inter alia) paying lower import duties. A question was raised as to whether Mr Asghar should be advised as to the potential to invoke any privilege that may be available in respect to "self incrimination". Mr Asghar was told that he could claim the privilege if he so wished. He nevertheless proceeded to answer the questions put. His explanation was that he provided to the Department and to the customs brokers information provided by Mr Sakura. The further suggestion was put that no such information had been provided by Mr Sakura and that it was Mr Asghar who fabricated false pro forma invoices purportedly on the letter head of BJ International. Either or both of these suggestions provides a reasonably certain basis for questioning the reliability of the evidence of Mr Asghar. 25 Even accepting the difficulties confronted by an unrepresented litigant when seeking to give evidence, as opposed to making submissions seeking to justify his position, the evidence of Mr Sakura is to be preferred. 26 It is concluded that there was an agreement as to the supply of motor vehicles and that that agreement was one between BJ International and Mr Asghar. 27 Motor vehicles were supplied commencing in 1999. 28 The involvement of Ginza Importers Pty Ltd only emerged much later. In his affidavit of 12 November 2012, Mr Sakura gave the following account of a telephone conversation which occurred between himself and Mr Asghar in February 2001: Mr Asghar: "Without a business registration I cannot import any cars into Australia. The government has changed the rules; an individual cannot import cars, only a company. I will register a company." Mr Sakura: "It is up to you, better you make it because of the government regulation. If you can make it, make it. If you do it properly I can send the vehicles." Mr Sakura gave the following account of a further telephone conversation occurring a few months later: Mr Asghar: "As I told you, I have started up a company so hereafter you have to send the vehicles to "Ginza Importers". "Ginza" is one of Tokyo's biggest cities. Mr Sakura: "Yes that is a good name." Mr Asghar: "Hereafter we will use the name of Ginza Importers and not the individual." Mr Sakura: "That's okay. It is not a matter to me using any company, but you have to take sole responsibility." Mr Asghar: "Yes, it is my company; I am the sole operator, so I take all responsibility. I will send through a fax with the details of where and to who to send the invoices." The subsequent emergence of Ginza Importers Pty Ltd did not impact upon or vary the agreement that had already been reached in 1999. 29 Some payments were made for the motor vehicles supplied. But there remains an amount outstanding. 30 The conclusion that the agreement was one between Mr Asghar and BJ International, and not Ginza Importers Pty Ltd, is founded upon: the conversation at the meeting between Mr Asghar and Messrs Aslam and Sakura; the fact that motor vehicles were supplied from 1999; and the fact that the agreement was entered into in about 1999 - and Ginza Importers Pty Ltd was not registered until June 2001. Nothing occurred after the initial agreement to vary the terms of that agreement.

THE OTHER CAUSES OF ACTION 31 The conclusion that the primary manner in which BJ International advanced its claim as against Mr Asghar founded upon an agreement made in about 1999 should succeed renders it unnecessary to express any further conclusion in respect to the outstanding causes of action. 32 Some brief mention should, however, be made of two such causes of action. 33 One further cause of action was founded upon an acknowledgment of indebtedness and an agreement to pay the amount then outstanding, namely ¥69,041,659. That acknowledgment was signed by Mr Asghar in a letter dated 21 January 2011 and provided as follows (without alteration): ACCOUNT BETWEEN BJ JAPAN AND GINZA IMPORTERS AUSTRALIA TOTAL PURCHASE FROM BJ YEAR 2004 TO YEAR 2010/12 ACCOUNT UP TO INVICED NO122 INCLUDING LEGNUM EC5W0400587 AND REMAINING CARS WILL SHOW UP IN 2011 ACCOUNTS TOTAL PRICE: ¥-172283209 LOAN IN PAKISTAN: ¥1000000 REMITANCE TO BJ: ¥-103396000 TOTAL OWING BJ: ¥-69041659 CLIAM DISCREPTION: VITZ REAL COST: ¥550000 (¥-20000) 3/TOYOTA SUPRA:JZA800014589 NEVER SHIPPED TO GINZA ¥645550 (¥-645550) TOTAL OWIN NOW: ¥-69041659

Invoice No 122 was in respect to motor vehicles shipped to Australia in October 2010. 34 Mr Sakura's evidence as to the way in which this letter came to be provided was that he had a telephone conversation with Mr Asghar on 21 January 2011 to the following effect: Mr Sakura: "You have not sent me any payment this month." Mr Asghar: "Don't worry. I have sold many cars, but I am waiting for the money to come in." Mr Sakura: "You also promised me that when you get back to Australia, you would send me a letter confirming the balance of owe me. Why have you not done this?" Mr Asghar: "I will send you the letter right away." Mr Sakura said that he or his staff had to telephone Mr Asghar "many times that day" to send the letter. It was ultimately received on 22 January 2011. 35 Mr Asghar accepted that he had signed the letter but maintained that he signed under duress. The document headed Defence, which was filed on 29 April 2013, stated that he signed the acknowledgment consequent upon a threat made by Mr Sakura to have Mr Asghar's family "murdered in Pakistan". That explanation was repeated during the oral evidence of Mr Asghar. The explanation and evidence provided by Mr Asghar is rejected. It is concluded that there is no satisfactory evidence of any threat ever having been made. 36 One submission made by Counsel for BJ International in support of a finding being made that no such threat had been made by Mr Sakura relied upon the "rule" in Browne v Dunn (1894) 6 R 67. It was submitted that Mr Asghar should have asked Mr Sakura about the circumstances giving rise to the threat and whether the letter dated 21 January 2011 had been extracted under duress. But Mr Sakura, not surprisingly, gave no evidence as to any threat being made against Mr Asghar's family. 37 Irrespective of whether the "rule" in Browne v Dunn required Mr Asghar to question Mr Sakura as to whether his account of the telephone conversation was correct and whether he had during that conversation (or on some other occasion) threatened Mr Asghar's family, the "principle in Brown v Dunn is an aspect of the fair conduct of hearings": B and L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [106] per Allsop P (Giles and Basten JJA agreeing). To require an unrepresented litigant to conduct a cross-examination within the framework of the rules of evidence and accepted common law principles of litigation, however, would impose upon such a litigant an unfair impediment. If anything, it was perhaps Counsel for BJ International who should have suggested to Mr Asghar during his cross-examination that his account of the threat made by Mr Sakura had never in fact been made. 38 But nothing presently turns upon such procedural niceties. 39 Had it been necessary to resolve, it would have been concluded that the 21 January 2011 letter constituted an acknowledgment of an indebtedness in the sum of ¥69,041,659 and an agreement to pay that amount. 40 A further cause of action relied upon by BJ International in the event that it failed to establish an agreement as between it and Mr Asghar was founded upon guarantees said to have been provided by Mr Asghar. The guarantees said to have been provided by Mr Asghar to pay any amounts owing from Ginza Importers Pty Ltd to BJ International were submitted to have been provided on a number of occasions. 41 One such occasion arose during the telephone conversation between Mr Asghar and Mr Sakura when Mr Asghar informed Mr Sakura that a company had been established and when Mr Asghar said "…it is my company; I am the sole operator, so I take all responsibility". Another occasion arose in November 2004 during another telephone conversation when the following exchange occurred : Mr Sakura: "My Company has changed the invoice structure so from now on we will send the new format." Mr Asghar: "Okay. That is fine." Mr Sakura: "We will organise to have the invoices issued to your firm, but you will have to be responsible for payment of the money." Mr Asghar: "That is fine; I will be responsible for money which my company owes." Mr Sakura: "We will start issuing you with invoices next week." Further conversations to like effect took place by telephone in January 2010 and during a meeting in Japan in October 2010. 42 Each of these conversations, it would have been concluded, constituted a personal guarantee. Mr Asghar was assuring Mr Sakura that he would "remain responsible" for any amounts owing and that BJ International would be paid: Commercial Bank of Australia Ltd v Colonial Finance, Mortgage, Investment and Guarantee Corporation Ltd (1906) 4 CLR 57 at 65. Griffith CJ there observed: … In construing a guarantee, it is necessary to bear in mind that the object of the guarantee, so far as the creditor is concerned, is to give him a guarantee that the debt owing by the debtor will be paid, and it is primá facie intended that the liability on the guarantee shall continue as long as the debt is owing. 43 Had it been necessary to resolve this further cause of action it would have been most probably concluded that Mr Asghar had personally guaranteed any amounts owing by Ginza Importers Pty Ltd to BJ International in respect to motor vehicles shipped from Japan to Australia pursuant to any agreement between the two corporate entities. The submission, which need not be further addressed, was that any requirement for a contract of guarantee to be in writing by reason of the Statute of Frauds has no application in New South Wales: Carter JW, Penden E and Tolhurst GJ, Contract Law in Australia at [9-11] (5th ed, LexisNexis, 2007).

THE AMOUNT OUTSTANDING 44 The amount claimed to be owing to BJ International was calculated at the outset of the hearing as being ¥83,098,055. 45 That amount was set forth in a spread sheet which purported to identify: each of the motor vehicles imported prior to November 2010, together with the amount claimed in respect to each vehicle; each of the motor vehicles imported after November 2010, together with the amount claimed in respect to each vehicle; and each of the amounts received by BJ International from Mr Asghar. It became apparent that the figures and calculations in that spread sheet had not, however, been verified in any meaningful way. The case had, however, been listed for two days. The proceeding was adjourned to the following day to allow satisfactory evidence as to the quantum of liability to be adduced. 46 On the resumption of the hearing on the following day the amounts claimed had been verified by the Applicant's solicitors. But, when verified, the amount claimed by BJ International was reduced. The amount claimed in the amended spread sheet was calculated as follows: Amount claim for vehicles prior to November 2010 ¥ 167,577,849 Amount claimed for vehicles invoiced after November 2010 ¥ 185,201,815 Loan ¥ 1,000,000

Less amounts received ¥ 105,896,000 ¥ 80,305,815

The overnight adjournment also permitted Mr Asghar the opportunity to locate and produce documents evidencing electronic transfers of monies to BJ International. A further short adjournment was provided to ensure that all such monies as Mr Asghar claimed had been remitted to BJ International were taken into account in the revised calculation of the amounts outstanding. All such amounts had in fact been taken into account.

A FURTHER APPLICATION TO RE-OPEN 47 Subject only to the further evidence verifying the amount claimed by BJ International, Counsel for the company formally closed his case during the first day of the hearing. 48 At the outset of the hearing on the second day, however, Counsel for BJ International also sought to adduce evidence that Mr Sakura had never seen the pro forma invoices which Mr Asghar maintained had been provided to him by Mr Sakura. To that limited extent, an application was made to re-open the case for the Applicant company. A superior court has power to grant leave to a party to re-open a case after a hearing has concluded but before judgment for the purpose of admitting new or additional evidence: e.g., Devenish v Devenish [2011] WASC 129 at [111] to [112] per Pritchard J. 49 The principles to be applied when such an application is made are well-settled. 50 In Urban Transport Authority (NSW) v Nweiser (1992) 28 NSWLR 471 at 478 Clarke JA summarised these principles as follows: The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call [sic] the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel. Appl'd: McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 89 at [45] per Ward J. And, by way of example, in Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436, 171 FCR 174, judicial review had been sought of the decision made by the Commission. Lindgren J granted leave to tender two documents which only came into existence after the hearing had concluded. In doing so his Honour observed: Legal principles in relation to the grant of leave to reopen [206] The parties agree on the principles that govern the motion for leave to reopen. [207] Telstra could not have adduced the evidence in question during the hearing: it did not come into existence until 20 December 2007 - some 13 days after the last day of the hearing. [208] The ultimate question for the Court is whether it is in the interests of justice that the further evidence be admitted … [209] The particular criterion relevant to the present circumstances is whether it is probable to the required degree that the additional evidence will affect the result. There is not a single formulation in the cases as to the degree of probability required. In Australasian Meat Industry Employees' Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491, Toohey J said (at 493-494): In situations where a hearing has concluded but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it; the evidence is believed would most probably affect the result; … [my emphasis] In Daniel, RD Nicholson J stated (at 269) that it must be shown that the new evidence, if accepted, would "most certainly affect the result" (my emphasis). Cited: McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 89 at [52] to [54]. An application to re-open may be made after submissions have concluded: e.g., Traianedes in his capacity as Deed Administrator of Mercury Brands Group Pty Ltd v Mercury Brands Group Pty Ltd (No 2) [2010] FCA 1140. 51 Leave to re-open to adduce the additional evidence in the present proceeding as to Mr Sakura not having seen the pro forma invoices relied upon by Mr Asghar was refused because: no explanation was provided as to why such evidence had not been previously adduced from Mr Sakura before Counsel formally closed the case on behalf of the Applicant company; the question as to the authenticity of the pro forma invoices was an issue known to Counsel during the course of the hearing - indeed, during the cross-examination of Mr Asghar, it was put to him that it was Mr Asghar who had himself prepared the pro forma invoices and had done so as part of the deliberate attempt on his part to understate the value of the motor vehicles being imported; the relevance of the further evidence essentially went to the credit of Mr Asghar as opposed to a strength or weakness in one or other of the causes of action relied upon by BJ International; the further evidence, if admitted, would not affect the conclusions otherwise reached; and Mr Asghar was unrepresented.

CONCLUSIONS 52 It is concluded that in about 1999, the Applicant and the Respondent entered into an agreement for the supply of motor vehicles to be shipped to Australia from Japan. Although the Respondent made some payments in respect to those motor vehicles the sum of ¥80,305,815 remains outstanding. 53 Judgment should be entered for the Applicant in the Australian dollar equivalent of that sum, calculated as at the date of judgment. 54 Two further matters should be mentioned. 55 First, during the course of the questioning of Mr Sakura by Mr Asghar, Mr Asghar disclosed the fact that an offer of settlement had apparently been made by BJ International. Both parties were asked whether that disclosure gave rise to a reason why the Court should be reconstituted. Neither party suggested that such a course should be taken. The reference to the offer of settlement has been disregarded. 56 The Respondent should pay the costs of the Applicant. But no order for costs should be made in favour of the Applicant for the second day of the hearing. The adjournment to the following day was to permit the Applicant to adduce evidence as to the quantum of the amount outstanding. Such evidence should have been available when the case was called on for hearing. 57 Second, and after the conclusion of the hearing, Mr Asghar filed with leave a further affidavit. The affidavit addressed, albeit not in admissible form, the prices for which vehicles had been purchased at auction in Japan. The content of that affidavit does not affect any of the conclusions reached. 58 Judgment should be entered in favour of the Applicant in the Australian dollar equivalent of the sum of ¥80,305,815 together with interest as claimed.

the COURT ORDERS THAT:

1. The parties bring in short minutes of orders to give effect to these reasons within 14 days. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.