Advice on 26 July 1996 - Third Investment
48 The Trial Judge referred to cross-examination of Mr Carr and Mr Carr's evidence about the conversation of 1 August 1996, of which Mr Hor had contemporaneous notes. After referring to evidence and making some findings about the conversation of 1 August 1996 the Trial Judge said (Judgment [69] Red 45) that Mr Carr agreed that the next communication after 1 August 1996 that he had with Mr Hor was the letter of 29 August 1996 and said (Judgment [70]-[72] Red 46):
[70] Thereupon there arose the subject matter of an alleged conversation with Mr Hor on 28 July 1996.
[71] This takes us back to the matters referred to in para [27] of these reasons where on the first day of the hearing in a new statement Mr Carr changed his account as set out in para 13 of the original statement forming part of Exhibit A. It was now Mr Carr's position that in the evening conversation on 26 July, a Friday, in response to the expressly stated worded question " What is the score? ", Mr Hor replied, " From what I have done everything looks fine with the investment ".
[72] This change of position was sought to be explained, as is so often the case, by it really representing the truth as it had been all along, but the lawyers were at fault. I reject the position taken by Mr Carr on this issue. I do not intend any disrespect to his daughter who did give evidence to the effect that the telephone rang, was answered, and that her father came in and made a remark to the effect that Champions had given the go-ahead. At this stage I can state that the plaintiffs have not persuaded me that more probably than not any such conversation took place on that date.
49 A later reference shows that Levine J's finding was that no conversation took place on 26 July 1996 (Judgment [101] Red 58):
[101] I have already found that no conversation took place on 26 July 1996. At the time of that conversation, when one considers the progress of Mr Hor's activities, set out above (at para [76] and following), certain things were outstanding, and it would have been nonsensical for Mr Hor on either of Mr Carr's versions to have said what he said, and in view of his professional habits, to have made no record of it in view of its purported importance.
50 There is considerable significance in the finding that Mr Hor did not give Mr Carr telephone advice on 26 July 1996 to the effect that (Blue 1/235 para [8]) "everything looks fine with the investment" because the finding shows that the Third Investment was made before Mr Hor gave any advice upon which the first appellant can have relied in committing the appellants to the Third Investment. (It will be seen that he had already committed the appellants to the First and Second Investments before even seeking the respondents' advice). This produces consequences for the measures which would have been open to the appellants if they had received advice adverse to investing in FMA Unit Trust: adverse advice would (if acted on) at the most have led to attempts to recover the first three investments by redeeming the units (in exercise of rights of redemption under the Deed).
51 On behalf of the appellants it was submitted that the Trial Judge was in error in this finding, and many matters and circumstances were put forward in support of this contention.
52 It was complained that the Trial Judge did not have regard and made no reference to evidence of information obtained by Mr Hor from Mr Carr on 11 July 1996 which showed that in an initial telephone conversation Mr Carr told Mr Hor that the FMA Unit Trust business was due to open on 29 July 1996, and at an interview later that day told Mr Hor (reading from Mr Hor's notes): "Jack has proposed to Peter that the two of them own the whole trust 50/50 $650,000ea" and "Jack wants all money from Peter by 29/7/96." Knowledge of these matters appears from the terms of a letter which Mr Hor wrote on 16 July 1996, and acknowledgements by Mr Hor in evidence also showed that he knew from the first phone call that Jack Roberts wanted more money from Mr Carr by 29 July 1996 and that Mr Carr required an answer to his instructions to advise by that time. This was put forward as assisting, as a supporting probability, the appellants' case that Mr Hor actually did give advice before 29 July 2006.
53 It was contended that the Trial Judge was unduly critical of a change in the testimony of Mr Carr between his first and third statements, and that the departures to which the Trial Judge referred were not significant. In the first statement the conversation with Mr Hor had been attributed to (Blue 1/7 para [13]) "On or about 28 July" but in his third statement it was attributed to (Blue 1/235 para [8]) "Friday 26 July 1996". It was contended to the effect that there had been significant delays (as indeed there were) before delivery of judgment, and that in the circumstances the Trial Judge should have stated the reasons why the evidence of a particular witness had been rejected and why the preference existed for the evidence of one witness over the evidence of other witnesses. Counsel referred to observations relating to the significance of delay in giving judgment in Hadid v Redpath (2001) 35 MVR 152; Monie v Commonwealth of Australia [2005] NSWCA 25 at [43] and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 [85]-[89].
54 There are conflicting passages in statements of Mr Carr about whether he had in fact earlier told Mr Hor that he was to put in another $150,000 by 29 July 1996. In Mr Carr's Witness Statement of 17 July 2001 (Blue 1/7 para [13]) he said to the effect that he told Mr Hor on or about Sunday 28 July 1996 that he had been asked to put in another $150,000 by 29 July 1996. In his Third Witness Statement dated 2 December 2002 (Blue 1/235 para [8]) he gave a quite different account in which Mr Hor telephoned him at about 6 p.m. on Friday 26 July 1996, Mr Carr did not say the words in paragraph 13 of the earlier statement but said "What's the score?", Mr Hor said "From what I have done everything looks fine with the investment." In effect, in his later statement Mr Carr denied that Mr Hor had been told on Sunday 28 July that the $150,000 was to be paid on Monday 29 July; this takes away any force which the submission, which I consider later, that Mr Hor's use of the word "confirmed" shows that he already knew that this event was to happen would otherwise have; on his later version Mr Carr denied that he told Mr Hor that the event was to happen.
55 Mr Carr gave evidence on all or parts of six different days and the Trial Judge had an unusually good opportunity to make observations and form impressions of him. Although the transcript of the evidence cannot convey the impression produced by a witness's manner, there are a number of indications that Mr Carr's evidence could well have been very memorable; including his ready acknowledgement that he had threatened to shoot a Process Server, and the offhand indirectness of his treatment of some quite serious subjects with expressions to the effect of "Why should I". The Trial Judge cannot have had any difficulty in recollecting Mr Carr's evidence and manner. To my reading the judgment shows indications of careful preparation and of attention to detail, with full recourse to the transcript as well as to recollection.
56 Mr Carr's evidence occupied a considerable part of the hearing, and the Trial Judge took adverse views of Mr Carr's credibility and made many adverse comments on Mr Carr's evidence. These references, and a reading of the judgment overall make it clear, in my opinion, that notwithstanding that judgment was reserved for about 21 months, the Trial Judge had a full and clear understanding in detail of Mr Carr's evidence and retained clear impressions of Mr Carr in the witness box.
57 It was also contended to the effect that the Trial Judge did not deal adequately with the evidence of Mr Carr's daughter Ms. Deborah Schofield, who said in her Witness Statement dated 4 December 2002 (Blue 2/272):
10. After the conversation in paragraph 9 above, I recall my father receiving a telephone call at home sometime in the late afternoon or early evening. My mother, my husband and I were present when he received the telephone call. I recall that we were either having or about to have dinner together when the phone rang. My father took the call and then said words to the effect of:
"That was my lawyer. Jack's checked out all right. Everything is fine with the investment."
After he received this telephone call my father seemed pleased and relieved.
58 Ms. Schofield does not give a clear date for this event but context indicates when it occurred by referring to a conversation at some time in February 1995 in which Mr Carr said he had responded to an advertisement in a newspaper seeking investments in medical centres and a later conversation when he told her that he had been to see the respondents' firm and "They are checking out the investment and Jack Roberts " (Blue 2/272 para [9]).
59 Ms. Schofield was cross-examined and her recollection of the event was challenged in cross-examination, when she adhered to her evidence, and gave additional circumstances. Her evidence shows that she had first been asked to remember anything she could about the events within a few days before she gave evidence in December 2002.
60 Although the Trial Judge said relatively little about the evidence of Ms Schofield, his Honour's expression (Judgment [72] Red 46) "I do not intend any disrespect to his daughter …" indicates that the Trial Judge was rejecting the evidence in a full and clear way. Upon reading her evidence it appears that she had not wavered while giving evidence, but that she introduced considerably more detail and circumstance than appear in her statement and rejected the suggestion (which counsel approached in a rather obscure way) that her evidence was unreliable, by proclaiming her antipathy to lies. To my reading her evidence shows a fullness of interest in upholding Mr Carr and his cause, with detail, and shows surprising confidence in the witness's own recollection of what Mr Carr said in her hearing after a telephone conversation in which she had not participated which took place well over six years before her attention was again directed to it. The late emergence of Ms Schofield's Witness Statement, and the relation of its contents to the alteration in Mr Carr's account of the events are adverse to acceptation of what she said. The Trial Judge's rejection of Ms Schofield's evidence should be understood to be attributable to the weight of probabilities against its being correct.
61 The Trial Judge had before him clear evidence from Mr Hor denying that he had given advice at that time or that there had been such a conversation; and this was corroborated, in a manner, by there being no file note of any such conversation by Mr Hor, although otherwise he made file notes of all significant conversations in which he was involved. The Trial Judge gave careful consideration to Mr Hor's evidence, and set out passages in his cross-examination dealing with whether Mr Hor knew, before 1 August 1996, of Mr Carr's intention to invest $150,000 in an investment which took place on or about 29 July 1996. The Trial Judge found Mr Hor to be essentially an honest and reliable witness (Judgment [85] Red 51) and also referred to the fact that Mr Hor was dependent upon his contemporaneous notes. His Honour concluded (Judgment [89] Red 54): "And in the end, in relation to this aspect, I am more comfortable with his explanation and testimony generally than I am, to the extent that there is any to the contrary proffered by Mr Carr."
62 There were other issues of fact on which the Trial Judge, after careful consideration, accepted Mr Hor's evidence in conflict with that of Mr Carr. Senior counsel for the appellants referred to passages in the transcript of Mr Hor's evidence to which the Trial Judge did not refer; but in my opinion these passages do not show any misunderstanding on the part of the Trial Judge. What appears to me to be the principal matter relied on was the reference to confirmation, in a note made by Mr Hor of a conversation with Mrs Carr on 1 August 1996 (Blue 2/431). Mr Hor noted that he had telephoned Mr Carr who was out, and left a message with Mrs Carr for him to call and "She confirmed he has put another $150k, in & is still invited to be a director" and went on to deal with whether he should be a director. It was contended that the logical conclusion is that at some earlier point Mr Carr had told Mr Hor that he was going to put in another $150,000 and this was primary evidence that could have led to a finding of facts corroborative of the evidence given by Mr Carr and his daughter about the telephone advice given on 26 July 1996. I do not regard these considerations and the use of the word "confirm" as sustaining the submission or as showing in any clear way that Mr Hor's evidence is not reliable. As I showed earlier, Mr Carr's later statement means that there was no earlier information to confirm.
63 In my opinion the Trial Judge's rejection of the evidence relating to Mr Hor's having given telephone advice on or about 26 July 1996 was a credit-based finding based on an appraisal of the evidence of witnesses, and on the witnesses themselves, which the Trial Judge was in a good position to make, and supported by consideration of probabilities. The findings have not been shown to be contrary to anything which could be said to show the position in an objectively clear way. In my opinion these findings should not be disturbed.