34 The Zhang submissions assert that the Court cannot be satisfied that $130,000 was really paid for the Poon interest in the business, since the business had barely been trading as at January 2007, many of the fixtures and fittings included in the lease were the subject of uncertain title, and Peter had extensive involvement in money laundering. The fact that the consideration said to be paid, $130,000, is identical to the amount found in Mr Au's car, and which had been seized by the AFP, invites suspicion too. Interestingly, Vincent is reported by William as having told him: "the fit-out is great and worth a lot of money": para 6 of William's affidavit of 5 September 2008, which is inconsistent with the proposition advanced by the Zhang submissions that there was nothing worth $260,000 like of "business".
35 No connection between Mr Au and the Poon Group has been established or even suggested, and I am persuaded, on the balance of probabilities, that $130,000 was paid by Peter to the Poon Group to enable Peter, Taki and Mark to purchase the Poon Group's interest in the business known as Heaven on Earth. There is no corroboration of Peter's assertion that Taki and Mark each paid $30,000. Peter claims that prior to 2 February, he had a 20% interest in the business, and that by the Deed, he acquired a further 50% interest, making his share 70% and Taki and Mark 15% each, but no document evidencing an agreement between Peter, Taki and Mark has been put in evidence, and see T139. Peter says he paid $40,000 to obtain his 30% interest before the Poon Group departed, but that assertion is not corroborated and is inconsistent with the recitals in the Deed of Release.
36 In the context of the competing versions, a number of factual disputes arose:
(1) Did Peter in fact pay $130,000 for the acquisition of the Poon Group's interest? I have dealt with this above.
(2) Was Peter aware that his assets might be seized and concerned that he might be gaoled?
(3) The significance, in that context, of Peter's affidavit of February 2007.
(4) What, if any, was the respective involvement in the business of Peter, Carol, William and Vincent from January 2007 to August 2008?
(5) Did Peter hand over $46,000 to Vincent to enable a rental bond to be given to the landlord, as he claims?
(6) the significance of receipt of bills from Mr Junn.
37 There were a number of aspects of the evidence of each of Peter, Carol, Ms Kuen, William and Vincent which make it difficult to accept their credibility. I was left with the impression that they have each endeavoured to present a version of events that avoids the truth, because, for differing reasons, the truth is uncomfortable for them. I shall deal with these topics separately but my subsequent comments as to the witnesses' credibility and my conclusions on these matters are interconnected.
The $46,000
38 One factual matter which assumed importance was the source of the funds of $46,000 which found their way into Global's bank account. There can be no doubt that the $46,000 was used by the National Australian Bank ("NAB") as its security for the issue of a $45,000 bank guarantee that the landlord required be provided as part of the assignment of the lease to Global.
39 Peter's evidence was that he obtained $46,000 from his sister, that he gave Vincent that money to enable Vincent to provide a 'lease bond'. Peter's evidence was based on the understanding that the $46,000 had to be paid for a bond, which was not the case. Peter's sister gave evidence that she had handed $46,000 in cash to Peter. She had made no mention of such a loan in her affidavit of 17 June 2008, and the assertion in Peter's affidavit of 14 July 2008 (it was later deleted and then subsequently reinstated, which itself undermined its credibility) points to the issue being a live one as at 17 July. His sister, who gave evidence through an interpreter, said she had the $46,000 in cash at her house, and that it was the result of sale of a grocery business some time before. There is no document therefore which points to the $46,000 having been withdrawn from an account. Peter said he gave the $46,000 to Vincent. When asked why he had not handed the money over to Carol, who was managing Global's business, he said he took the view that Vincent had to do something to justify the $200 a week that Global was being paid. That does not seem to me to be a credible explanation since, on Peter's case, the $200 was a fee to William for allowing Global to be lessee, not for the employment of, or management of the business, by Vincent, William or Global. Carol said she saw Peter hand over to Vincent an amount of $45,000 saying "this is $45,000 for the bond" (T249), so quite apart from the discrepancy in amount, her evidence suffers from the same problem. There was no evidence from Peter as to how he came to learn in April that the $46,000 was required to be provided by way of bond.
40 The Zhang's evidence also garnered no support from any documentation tendered by them and depended on cash being kept at home, and some other sources, and was at least as doubtful as the evidence of Peter and his sister. The $46,000 paid into Global's NAB account was paid on 30 April 2007, but it was paid in five separate deposits of $9,500 and $9,000, at five different branches of the NAB, four in the city, and one at St Leonards. Vincent and William gave evidence about this process, and it was most unconvincing, except at the point where Vincent acknowledged that the payments were all below $10,000 in order to avoid the need to provide details to the bank of the source of the funds.