Helou v Nguyen

t 111 [2] - 112 [4] and 113 - 114 [10]. Heperu Pty Limited v Belle (2009) 76 NSWLR 230 at 252 [89], 253 [92], 265-266 [154] and 267-268 [163]; 260 [127] and 263 [142]-268 [163] Hungerfords v Walker (1990) 171 CLR 125 at 148 Income Tax Commissioner v Maharajadhiraj of Darbhanga (1933) LR 60 IND App 146 at 157 In Re Diplock [1948] Ch 465 at 517 and 557-558 J & H Just (Holdings) Pty Limited v Bank of NSW (1971) 125 CLR 546 Kinarra Pty Limited v Crawford [2006] VSC 309 at [83] Latec Investments Limited v Hotel Terrigal Pty Limited (In Liquidation) (1965) 113 CLR 265 Lipkin Gorman v Karpnale Limited [1991] 2 AC 548 at 559 Maguire v Makaronis (1997) 188 CLR 449 at 469 McDonald v Levy (1833) 1 Legge 39; [1833] NSWSupC 47 Nominal Defendant v McLennan [2012] NSWCA 148 at [139]-[140] Penfolds Wines Pty Limited v Elliott (1946) 74 CLR 204 at 229 Peter Butt, Land Law (Law Book Co, 6th ed, 2010), paras [14.05]-[14.09] R v Curtis; ex parte Attorney-General [1988] 1 Qd R 546 at 548 and 551 Re Dawson [1966] 2 NSWR 211; 84WN (Pt 1) (NSW) 399 Re Global Finance Group Pty Limited (2002) 26 WAR 385 at 406 [94] Robb Evans of Robb Evans & Associates v European Bank Limited (2004) 61 NSWLR 75 at 103 [131] - 105 [148] Rouse v Sheppard (No 2) (1994) 35 NSWLR 277 at 279-282 Royal Insurance Co Ltd v Mylius (1926) 38 CLR 477 at 497 Sadcas Pty Limited v Business and Professional Finance Pty Limited [2011] NSWCA 267 at [42] and [83] Samuel v Newbold [1906] AC 461 at 471-474 Scott v Scott (1964) 109 CLR 649 at 660-662 and 664 Sinclair v Brougham [1914] AC 398 at 418-419 United Australia Limited v Barclays Bank Limited [1941] AC 1 Vadasz v Pioneer Concrete (SA) Pty Limited (1995) 184 CLR 102 at 113-114 Warman International Limited v Dwyer (1995) 182 CLR 544 at 559 Wright v Gibbons (1948) 78 CLR 313 at 330-331 Youyang Pty Limited v Minter Ellison Maurice Fletcher (2003) 212 CLR 484 Texts Cited: JH Baker, An Introduction to English Legal History (Butterworths Lexis Nexis, London, 4th ed, 2002), p 311 n 83 AWB Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Clarendon Press, Oxford, 1987), p 510 Blackstone, Commentaries on the Laws of England, p 454: Holdsworth, A History of English Law, vol 8, 2nd ed, 1937), pp 100-113, esp112; vol 11 (1938), pp 514-516; vol 13 (1952) pp 12, 29, 110-112 and 212-213 Osborn's Concise Law Dictionary (12th edition, 2013) A Smith, The Wealth of Nations; 1st edition, 1776 B Kercher, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict NSW (Federation Press, Sydney, 1996), pp 141-142 and 171-173 SJ Butlin, The Foundations of the Australian Monetary System, 1788-1851 (Sydney University Press, 1953; 1968 reprint) GW Millard and BA Helmore, The Law of Personal Property in NSW (Law Book Co, Sydney, 5th ed, 1947), pp 310-311 A Oliver, A collection of the statutes of practical utility, colonial and imperial, in force in NSW (NSW Government Printer, Sydney, 1879), vol 2, pp 2485-2486 CH Currey, Sir Francis Forbes (Angus & Robertson, Sydney, 1968), chapter 41 Historical Records of Australia, series 1, vol 17, pp 520-537; vol 18, pp 94-95 Tarrant, "Theft principle in private law" (2006) 80 ALJ 531 PW Young, C Croft and ML Smith, On Equity (Law Book Co, Sydney, 2009), paras [2.150] - [2.170], [14.50] - [14.60] and [14.180]. F Jordan, Chapters on Equity in New South Wales (6th ed, 1947), p 15, p 13 Story, Commentaries on Equity Jurisprudence (1st English ed, 1884), paras 26-28, and 31; G Spence, The Equitable Jurisdiction of the Court of Chancery (1846), Vol 1, pp 390-391 W Holdsworth, A History of English Law (3rd ed, 1944) Vol 9, p 338; JN Pomeroy, Equity Jurisprudence (5th ed, 1941), Vol 1, paras 109 and 113-116 Ashburner, Principles of Equity (Butterworth, London, 2nd ed, 1933), pp 38-39, 39-40 RP Meagher, JD Hayden and MJ Leeming (eds), Meagher Gummow & Lehane's Equity: Doctrines and Remedies (Butterworths Lexis Nexis, Australia, 4th ed, 2002), paras [12-035]-[12-045] and [12-055] FW Maitland, Equity (Cambridge University Press, 2nd ed, 1936), pp 7-8, 17 and 19 G Watt, Equity Stiring (Hart Publishing, Oxford, 2009), pp 85, 106-109 and 229 DR Klinck, Conscience, Equity and the Court of Chancery in Early Modern England (Ashgate, 2010) K Handley, The Black v Freedman Trust: Vindicating Proprietary Rights or Remedying Wrongs? in E Bant and M Bryan (ed), Principles of Proprietary Remedies (LBC, Sydney, 2013), ch 7 at pp 122-123 and 125 Halsbury's Laws of England (5th ed), Vol 22 "Contract", para 525 Category: Principal judgment Parties: Mohammed Helou, Janine Helou, Suzanne Helou, Halima Helou, Walid Helou, Nozem Helou and Karia Helou (Plaintiffs)

Judgment 1Residence in the cash economy, beyond necessities of daily living, comes at a price for altruism, no less than avarice: exposure to theft, active or passive, is one element of that price. Moderation in all things remains a virtue worthy of notice, even in the accumulation of cash, lest our property, or that of somebody else, comes to possess us. That is the "moral" demonstrated, on both sides of the record, by these proceedings. 2The plaintiffs (a conservative Muslim family of mother, father and five adult children surnamed Helou) sue the defendants (Mr Nguyen and his wife) to recover part of the property they allege that the first defendant (Mr Nguyen) stole from one of their two family homes (both in Bankstown) on 27 March 2006. 3The relief the plaintiffs claim against Mr Nguyen is personal and proprietary in character. They contend that the proceeds of the alleged theft were applied by Mr Nguyen in the purchase of two properties (one in Bankstown, the other in Dulwich Hill) in the names of the two defendants, and in development of the Bankstown property. 4The property alleged to have been stolen comprises two types, only one of which is the subject of a claim for relief in these proceedings. Mr Nguyen is alleged to have stolen both a large amount of cash and a large amount of jewellery. 5At the commencement of the trial the plaintiffs abandoned their claims for relief in relation to the jewellery, acknowledging that those claims were unsupported by any evidence as to value of the jewellery. They did not resile from their allegation that the jewellery had been stolen; but, the claims for relief relating to it having been abandoned, neither side of the record focussed attention on it or on its abandonment. 6One extraordinary feature of the proceedings is that the quantity of cash alleged to have been stolen (from the plaintiffs' townhouse, "Unit 1" in Pringle Avenue, Bankstown) totals $467,500.00: an amount sufficient to buy a home unit, if not a house, in many parts of Greater Sydney. 7Another extraordinary feature of the proceedings is the plaintiffs' allegation that, prior to its theft, the stolen property was kept, for security purposes, in the roof cavity of the townhouse (one of three owned by the Helou family in a strata development) pending application of the cash towards redevelopment of the family's main residence in nearby Highland Avenue, Bankstown. 8These two extraordinary features are explained, by the plaintiffs, as incidents of the family's strong commitment to their Muslim faith. 9The parents, both born in Lebanon, migrated to Australia in about 1968. The evidence does not disclose the age of Mr Helou Senior. Mrs Helou was born in 1940. All five children of the family were born and educated in Australia: Suzanne was born in 1969; Halima (also known as Helen) in 1971; Mohammed, in 1972; Janine, in 1974; and Walid, in 1978. 10Within the plaintiffs' family there is, also, a story of inter-generational change. Its self-professed conservatism is not limited to the parents, but is grounded in the younger generation's veneration for their parents and, in particular, the respect shown towards the family patriarch, Mr Helou Senior. 11He was the only member of the family from whom no evidence was adduced at trial. His absence, explained by descent into dementia, is only physical. Absent though he was from the trial, his influence on his family was ever present. 12At all times material to these proceedings the Helou family lived, in one or the other or both of the Pringle Avenue property and the Highland Avenue property, as a nuclear family. All the children lived at home. None was married. All contributed virtually all their income to the common weal. 13The parents bought the Highland Avenue property as the family home in about 1971. 14In about 1982 they purchased the Pringle Avenue property, then a five bedroom fibro cottage, as an investment property. In 2001-2002 they demolished that cottage and constructed there townhouses (colloquially described as "Unit 1", "Unit 2" and "Unit 3" respectively) each comprising four bedrooms and two bathrooms. 15Unit 1 was dedicated to family occupation. Soon after, if not immediately upon construction, Units 2 and 3 were rented out. In March 2006 Unit 2 was occupied by a Mr John Williams and his son Beau, and Unit 3 was occupied by Ms Jean Field. 16From about 1997, the Helou family began planning development of their Highland Avenue property. They began to save money for that purpose. They hid it behind a kickboard in the kitchen, and under floor boards in Halima's bedroom, of the family home at that address, in cash. In 1999 they purchased the residential property next door. They planned to develop the two properties in much the same way as the Pringle Avenue property came to be developed: with a residence for the family at the front of the site, and townhouses at the back to generate rental income for the family. 17By December 2005 they had accumulated sufficient money to begin the transition, from residence in Highland Avenue to residence in Pringle Avenue, necessary to facilitate redevelopment of the Highland Avenue property. 18On 11 December 2005 Mohammed and Suzanne did a stocktake of the family's cash holdings held at the Highland Avenue property. 19On 1 March 2006 Mohammed, in consultation with Suzanne and their mother, did another stocktake. Mohammed then transferred the cash, freshly counted, to the Pringle Avenue property. He placed it, with the family's gold jewellery, in the roof cavity of Unit 1 on the Pringle Avenue property. 20This elaborate procedure was adopted, in substantial measure, to accommodate the devout religious beliefs of Mr Helou Senior. He, in particular, is said to have believed (and I accept that he did conscientiously believe) that it is against the Muslim faith to receive income by way of interest earned on money and that, if any interest is earned, the faithful are under a religious obligation to contribute it to charity in accordance with a practice described as "the Zikat". 21Mr Helou Senior retired from work as a cabinetmaker in about 1998. Following his retirement he went to the Haj, as a pilgrim, in 1999. 22At this point I defer to Mohammed's description, in cross examination (at transcript pp 77-79), of the Helou family mores: "Q. The fact is that in relation to [your evidence] that [the] Pringle Avenue [redevelopment] was saved up [for] from about 1990 onwards to about 2000? A. From 1987 sir. From the day that there was no mortgage on the property. Q. From 1987 to 2000 and the moneys were saved by family members and safely held in a bank account, weren't they? A. That's correct. Q. In stark contrast to your family's apparent other methods of saving which is to store it in cash under floorboards; correct? A. That's correct. Q. In relation to the question of interest, you say do you not, that the reason you put all the money in cash is because your family is not entitled, for religious reasons, to be paid or receive any interest; is that right? A. To clarify that, firstly, there was discussion in 1997, end of 97, '98, discussion with my father. We all live in one house, it was getting quite tight. I said to my father, 'Let's build a bigger home.' My father's response to that - he is a religious person at that particular time - he says, 'Son, I will not live in a house which has money accumulated from interest in it.' I tried to reason with him, but he is a dominating, controlling person. I have to listen to what he used to say. His beliefs are so strong, I've got to listen. If I don't, he almost starts yelling to the extent it's almost an abuse. I've got to respect his religion. He is more strict than what I am in terms of Islamic religion. I need to clarify my answer. I have to answer it. He did not want to live in a house which was from money that accumulated from interest. He then said to me, 'You're responsible.' I then went to mum and spoke to everyone to withdraw moneys from their accounts to store under the floorboards. In 1999, there's a pilgrimage trip called the Haj. He retired in 1998, he went to the Haj in 1999. He came back with strict Islamic beliefs that he wanted to impose on not only me, but on my brothers and sisters and my mother. My sisters as well as myself, we're religious people. In the year 1999, 2000, he became so strict, he didn't want any money at all in the bank. He doesn't realise that I run a business, a company, there's no alternative but to put money in the bank. And my sisters work. I said to him, 'But the religion says as well that any interest accumulated, you need to pay it in the way of charity to the orphans or human appeal.' From 1999, Suzanne set up the human appeal. Each one of us has an individual account from 1999 with the human appeal. It's a charity to give money to orphans. It was earning interest in zakat, which is to charity. From the end of 1999, I said to mum, 'Janine, Helen, they've got money in their accounts. They've been working for a long time. Withdraw it, put it into this building.' And that's the reason. Q. So far as interest, do you say it's fine to accrue interest providing you give it to charity? A. My belief in the Islamic way, yes. My father isn't. Q. Similarly, banks can offer accounts to your knowledge can't they, where you don't actually get interest? A. I explained that to my father. My father is strict in his ways. I'm fearful and I still am. He imposes these rules which you've got to abide by. I've lived with him all my life. Got to respect him. I'm fearful. I don't want to argue with him. I reasoned with him, I said, 'We can put it in Arab Bank.' 'No. Are you going against my beliefs, Mohammed?' I avoided it. I'm a peaceful person, I avoid any arguments with my father to the extent where it's fearful. He wants to impose his strict, strict Islamic beliefs on all my brothers and sisters and myself. I'm sorry, I'm a person who prays, gives money to poor, set up zakat to give money to charity. To this day I still do. For the rest of my life, I will. I said to mum, 'Get rid of them from Janine and Helen's accounts. Put them in this development." 23Without intending to suggest that the religious faith of other members of the Helou family is any less deep than that of Mr Helou Senior, my assessment is that his theological disdain for interest income (rather than any personal disdain on the part of other family members) was the principal driving force in the family's shared practice of accumulation of large amounts of cash at home. 24Leaving aside Walid (because of an intellectual impairment which has excluded him from communal management decisions), all members of the family, other than Mr Helou Senior, appear always to have been comfortable accommodating their theological beliefs to modern banking practice, modified by a routine practice of making donations to charity in sums equivalent to interest earned from bank deposits. 25It is not necessary for the purpose of this judgment to explore the extent to which, if at all, the Helou family's pattern of accumulating cash at home has been driven, at least in part, by the parents' origins in Lebanon or cultural influences other than Mr Helou Senior's theology. I do not, however, exclude those factors from consideration. They may have played a part. 26Contemporary mainstream Australian society might, reasonably, be thought not to share Mr Helou Senior's theological disdain for interest bearing bank deposits. However, against the possibility that his belief system may be regarded as entirely foreign to Australian tradition, notice might be taken of English Canon law, and English statutes against usury, not remote from the experience of the British who colonised Australia. A mindset not unlike that of Mr Helou Senior is part of this nation's Anglo-Australian heritage. 27As in many areas of the law, the early colonial phase of Australian history coincided with fundamental change in Britain. 28According to Canon law as applied in England in medieval times, it was a sin, and moreover a crime, to earn interest on money lent. 29Only after the Reformation did the word "usury" shift its meaning away from the concept of earning interest at all towards the modern concept of earning an excessive amount of interest. Osborn's Concise Law Dictionary (Sweet & Maxwell, 12th edition, 2013) reflects this change in its definition of "usury": "Usury. Originally meant interest. By Acts of [the British] Parliament known as the Usury Laws (repealed in 1854) interest above certain rates was prohibited. Usury hence came to mean only illegal or excessive interest." 30So far has Anglo-Australian law shifted its focus, that Professor JH Baker deals with it in a footnote (in An Introduction to English Legal History (Butterworths Lexis Nexis, London, 4th ed, 2002), p 311 n 83): "The Canon law regarded it as a sin ('usury') to take interest on a loan, and usurers were liable to punishment in the medieval church courts. The common law took a more worldly approach and did not invalidate usurious agreements, though penalties were introduced in 1495, and in 1545 parliament set an upper limit of 10% on lawful interest: Stat. 11 Hen. VII, c. 8; 37 Hen. VIII, c. 9. (The limit was later reduced to 5%, where it remained until the repeal of the usury laws in 1854.)" 31The Reformation is not universally regarded as having effected material change. In his classic work, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Clarendon Press, Oxford, 1987), Professor AWB Simpson recorded, at p 510, his view that "[the] Reformation did not in the least bring about any weakening of the extreme vehemence with which the sin of usury was condemned. ... ": see also, pp 116-117 and 510-518. 32Sir William Blackstone dealt with the topic in chapter 30, Book II of his Commentaries on the Laws of England, first published in four volumes between 1765-1769. 33The flavour of his treatment of the topic can be discerned from the following extract from Dr Wayne Morrison's modernised English (2001) version of the 9th "received" edition of 1783 at p 454: "There is one species of [the price or reward for the hiring out, or borrowing, of property], the most usual of any, but concerning which many good and learned men have in former times very much perplexed themselves and other people, by raising doubts about its legality in foro conscientiae. That is, when money is lent on a contract to receive not only the principal sum again, but also an increase by way of compensation for the use; which generally is called "interest" by those who think it lawful, and usury by those who do not so. For the enemies to interest in general make no distinction between that and usury, holding any increase of money to be indefensibly usurious. And this they ground as well as on the prohibition of it by the law of Moses among the Jews, as also upon what is said to be laid down by Aristotle, that money is naturally barren, and to make it breed money is preposterous, and a perversion at the end of its institution, which was only to serve the purposes of exchange, and not of increase. Hence the school devines have branded the practice of taking interest, as being contrary to the devine law both natural and revealed; and the Canon law has proscribed the taking any, the least, increase for the loan of money as a mortal sin." 34Historians of English law attribute the decisive change in attitude, that came after Blackstone's death, to the influence of Jeremy Bentham (1748-1832): eg, Sir William Holdsworth, A History of English Law, vol 8, 2nd ed, 1937), pp 100-113, especially 112; vol 11 (1938), pp 514-516; vol 13 (1952) pp 12, 29, 110-112 and 212-213. 35In 1787 Bentham first published his Defence of Usury, in which he took Adam Smith (author of The Wealth of Nations; 1st edition, 1776) to task for failing, in his promotion of free trade, to condemn the usury laws. Smith was more empirical and pragmatic, and less doctrinaire, than Bentham, a devotee of utilitarian logic. 36Under Bentham's sway (more than, as we might, uninstructed, suspect that of Smith), the usury laws were ultimately repealed, in England, in 1854. Even then, within half a century, the need for regulatory controls over excessive interest claims manifested itself in the enactment of the Money-Lenders Act 1900 (UK), 63 and 64 Victoria chapter 51. 37With idiosyncratic local adaptations, and hot debate about the role of law, the course of Australian legal history came, eventually, to mirror that of England as the 19th century drew to a close. New South Wales adopted English legislative models and NSW courts increasingly followed English precedents: B Kercher, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict NSW (Federation Press, Sydney, 1996), pp 141-142 and 171-173; SJ Butlin, The Foundations of the Australian Monetary System, 1788-1851 (Sydney University Press, 1953; 1968 reprint); GW Millard and BA Helmore, The Law of Personal Property in NSW (Law Book Co, Sydney, 5th ed, 1947), pp 310-311; Samuel v Newbold [1906] AC 461 at 471-474, followed in Castles v Freidman (1910) 11 CLR 580 at 590-591. 38However, in McDonald v Levy (1833) 1 Legge 39; [1833] NSWSupC 47 the English Usury legislation was held (by Forbes CJ and Dowling J, Burton J dissenting) not to have been received in NSW as part of local law and, to overcome Burton J's persistence in dissent, the Legislative Council of NSW enacted, in 5 William IV No 10 (colloquially known as the Rate of Interest (Forbes's) Act 1834 NSW), a legislative declaration "[that] the Laws and Statutes of England relating to Usury shall be deemed taken and adjudged not to extend to [NSW] or to be in force within the same": A Oliver, a collection of the statutes of practical utility, colonial and imperial, in force in NSW (NSW Government Printer, Sydney, 1879), vol 2, pp 2485-2486; CH Currey, Sir Francis Forbes (Angus & Robertson, Sydney, 1968), chapter 41. Burton J carried his opposition to the Colonial Office, but in due course, on the recommendation of Governor Bourke, the Colonial Secretary, Lord Glenelg concurred with the opinions of Forbes and Dowling: Historical Records of Australia, series 1, vol 17, pp 520-537; vol 18, pp 94-95. 39None of this was in the minds of the parties presently before the Court when, in and about March 2006, their lives fatefully intersected. 40On both sides of the record, the parties hail from communities in which possession of a horde of cash may not raise eyebrows in the same way as it can do in the broader Australian community. The plaintiffs' Lebanese cultural heritage has been mentioned. The first defendant, Mr Nguyen, was born in Vietnam in 1956. He migrated to Australia in 1984. Although the course of her life was not elaborated in the evidence, his wife appears to have a similar background. 41On both sides of the record, uncontroversial evidence establishes that, within the family, substantial wealth was held, with makeshift security arrangements, in cash. 42For Australians fortunate enough to have lived always in a peaceful society, with a stable economy, conscious effort can be required to displace a fixed tendency towards complete disbelief of those who inhabit a world in which cash is king and independent, verifiable accounting records are scarce. Whatever their outcome, these proceedings call for disciplined attention to evidence of what, in fact, happened: empirical observation, unconstrained by, though not unmindful of, normative standards of propriety concerning the cash economy. 43The questions for determination in the proceedings are but three, each essentially factual: (a)QUESTION 1: Did the plaintiffs have $467,500.00 in cash, together with a horde of jewellery, stashed in the cavity of the roof of their Pringle Avenue townhouse on 27 March 2006? (b)QUESTION 2: If yes, was that property (the cash and jewellery) stolen by Mr Nguyen on 27 March 2006? (c)QUESTION 3: If yes, did Mr Nguyen apply the proceeds of the theft in the purchase or development of land (in Bankstown and Dulwich Hill) in the names of himself and his wife. 44The defendants accept that (by an application of Black v S Freeman and Company (1910) 12 CLR 105 or Farrah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89) if proceeds of a theft by Mr Nguyen were applied in the purchase or development of that land the plaintiffs are entitled, to that extent, to a proprietary remedy. 45The second defendant does not contend that there is a fourth question to be determined directed to preservation of her interest in land as a purchaser for value without notice. The case has been conducted upon the assumption, not that she was actively engaged in wrongdoing alleged against her husband, but that any stolen property received by her was received as a volunteer. That much is common ground. 46The parties are agreed that the plaintiffs bear the onus of proof, on each of the three questions for determination, governed by s 140 of the Evidence Act 1995 NSW, a statutory embodiment of Briginshaw v Briginshaw (1938) 60 CLR 336 at 343-344 and 360-363. The plaintiffs, in particular, accept that the civil standard of proof (proof on the balance of probabilities) varies according to the gravity of the fact to be proved, and that their allegation of theft is a serious one. 47The seriousness of the allegation is underscored by the plaintiffs' contention that Mr Nguyen's modus operandi in effecting the alleged theft involved him in cultivating one of their number, Walid (an impressionable, intellectually impaired, lonely person), as a means of discovery of, and obtaining access to, the hidden wealth of the plaintiffs' family. 48The Briginshaw standard - strictly, in these proceedings, s 140 - requires application of a standard of proof approximating, but not identical with, the criminal standard of proof beyond reasonable doubt. 49The defendants take comfort in these proceedings from the historical fact that, after investigation of the plaintiffs' allegation of theft against Mr Nguyen, the New South Wales Police declined to charge him with any offence because, the Police said, there was insufficient evidence to sustain a prosecution. 50These proceedings cannot be determined, either way, by reference to opinions attributed, correctly or otherwise, to police officers whose opinions, if any, may have been based on evidence different from that adduced in the proceedings. 51That said, at least some of the difficulties which the police may reasonably have thought to represent an impediment to success in a criminal prosecution of Mr Nguyen continue to represent a forensic challenge to the plaintiffs in the current, civil proceedings: (a)The principal witness against Mr Nguyen is Walid. His intellectual impairment invites caution, and a prudential inquiry about corroborative evidence, as a test of the reliability of his evidence, without any reflection on his personal honesty. He is the only witness who claims to have seen Mr Nguyen take some (not all) of the cash alleged by the plaintiffs to have been at the Pringle Avenue townhouse on 27 March 2006. On his evidence depends the plaintiffs' allegation that Mr Nguyen had timely possession of keys to the townhouse and an opportunity, in the absence of any member of the plaintiffs' family, to enter the townhouse for the purpose of taking the balance of the property claimed by the plaintiffs to have been stolen. (b)The credibility of the plaintiffs' allegation of theft depends also, critically, on their assertion that, because of their theological beliefs (neither shared, nor readily comprehended, by mainstream Australia) they held a small fortune in cash at home. (c)Mr Nguyen stoutly denies the plaintiffs' allegations, root and branch, and, moreover, alleges that the plaintiffs' undoubtedly strong, shared belief in his guilt has influenced Walid's thinking to such an extent that Walid's evidence must be treated as irretrievably tainted. 52The defendants' defence of the proceedings strikes the foundations of the plaintiffs' allegation of theft by placing in issue the existence of any horde of cash such as that claimed by the plaintiffs to have been stolen. The defendants contend that the plaintiffs have fabricated their allegations against Mr Nguyen, and colluded in their presentation of evidence against him. 53The defendants do not advance a case theory, based upon an assumption that the cash and jewellery alleged by the plaintiffs to have been stolen in fact existed, to the effect that the property was or may have been stolen by a person other than Mr Nguyen. 54They have taxed the plaintiffs about an allegation, or allegations, made by one of the plaintiffs (Suzanne) against a Pringle Avenue neighbour (Mr Williams) in the heat of the moment of discovery of the alleged theft. However any such allegation was, with quiet embarrassment, disclaimed by Suzanne in her oral evidence. Mr Williams took no offence. 55For their part the defendants, by counsel, cross examined each of the plaintiffs' Pringle Avenue neighbours (Mr Williams, his son Beau and Ms Field) on the basis of an express disclaimer of any allegation of theft against them. In final submissions he also disclaimed any attack on their credit, confining himself to a submission that, by reason of lapses of memory over time, their evidence was not reliable. 56To meet the forensic challenges standing in their way, the plaintiffs have advanced a case that has included the following elements. 57First, every one of them, other than Mr Helou Senior, has given evidence about their knowledge, or lack of it, about primary facts in issue and has been exposed, at length, to cross examination. 58Secondly, corroborative evidence of primary records of the Helou family has been adduced, including Suzanne's handwritten summaries of the cash stocktakes conducted on 11 December 2005 and 1 March 2006. 59Thirdly, a number of Mr Nguyen's (express or constructive) denials of incidental, but significant, facts have been challenged by evidence ostensibly independent of the plaintiffs. Some of that evidence has been documentary: eg, records of a fitness club, and bank statements of Mr Nguyen, evidencing that Mr Nguyen paid for Walid's subscription for membership of the club between January - August 2004 or thereabouts. 60Other evidence has come from the plaintiffs' Pringle Avenue neighbours (Mr Williams, his son Beau and Ms Field) and the groundsman of Belmore Oval (Mr Lee Best) about contact between Mr Nguyen and Walid at times when Mr Nguyen denies there was any contact at all. 61The neighbours deposed to having seen Mr Nguyen in the near vicinity of Unit 1, Pringle Avenue. Mr Best deposed to having seen Walid (a fanatical supporter of the Canterbury Bankstown Rugby League Team, whose ancestral home is Belmore Oval) in the company of Mr Nguyen, kicking footballs in the vicinity of Belmore Oval. 62Fourthly, the records of the defendants have been analysed: (a) to challenge their contention that their lifestyle and acquisition of property after 27 March 2006 can be innocently explained without reference to property allegedly stolen from the plaintiffs; and (b) to demonstrate that, in the two years or so following 27 March 2006, Mr Nguyen progressively, and for a purpose which included preservation of secrecy about the amount of cash in his possession, deposited large amounts of cash in bank accounts against which he drew to fund activities that included the acquisition of land. 63Fifthly, Mr Nguyen has been cross examined at length. 64That cross examination may be accepted as having established a number of facts that, in combination with one another and with other evidence, tell heavily against the defendants. 65First, on his own case, he had routinely received large amounts of cash in the course of his employment and in the course of his conduct of various businesses as a fruit and vegetable vendor and as a truck driver. 66Secondly, on his own admission he routinely understated his income in tax returns by non-declaration of his receipt of money in cash. 67Thirdly, he took steps to conceal from the police investigating the plaintiffs' allegation of theft the fact (asserted by him) that he had tens of thousands of dollars in cash within his possession or control. 68Each of the witnesses called in the plaintiffs' case impressed as a witness of truth. 69The evidently incredible version of events recounted by the Helou family attained credibility, under close cross examination, as the moral imperatives, frugal lifestyles and deep inter-personal relationships within the family were tested. All the children, including Mohammed (a chiropractor by profession, in private practice) surrendered to their mother substantial control over bank accounts to facilitate family savings in aid of communal living, both consumption and investment. 70The nature and extent of exposure of the members of the Helou family to cross examination was calculated to expose such, if any, fissures as might have been there to be found. No rock cracked. Minor differences, natural enough in the presentation of different perspectives, can be identified. However, none of those differences calls into question the veracity of the evidence given. 71The defendants would have the Court find that the plaintiffs made a false application for a "First Home Buyer's Grant" of a government subsidy, or at least dishonestly failed to comply with conditions attached to the subsidy, when they let out Units 2 and 3 of the Pringle Avenue property following construction of the townhouse development there. However, the evidence of Mohammed (which I accept) is that the plaintiffs complied with the formal conditions of the subsidy before letting out the leased Units. Mohammed was the person, within the Helou family, responsible for organising the development. Two of his sisters, who became registered proprietors of the Units, left everything in his care. 72Although contemporaneous records of the police investigation following the Helou family's complaint of theft on 28 March 2006 reveal a reluctance to press charges, two important points emerge from the plaintiffs' contact with the police. First, the loud, insistent complaints of family members rebut any suggestion that the family's complaint of theft, or their version of how it occurred, is tainted by recent invention. Secondly, in the face of Mr Nguyen's denials of wrongdoing, an investigating officer counselled Mohammed to hasten slowly in the institution of civil proceedings, against the possibility (now said by the plaintiffs to have materialised) that Mr Nguyen's lifestyle or patterns of expenditure might provide evidence corroborative of the plaintiffs' allegation of theft. 73Despite his (obvious) intellectual impairment, Walid recounted his version of events in a persuasive manner, neither by rote nor evidently rehearsed. The simplicity of his mind, apparently a weakness in the presentation of a case, became a strength. 74Although the evidence given by the plaintiffs' neighbours and the Belmore Oval groundsman involved an element of imprecision as to dates, it was given sincerely and with detachment. 75I do not exclude the possibility that the trauma patently exhibited by the Helou family may have drawn their neighbours closer to them, empathetically. This might be said of Mr Williams, in particular, as he appears to have provided comfort for the family in their distress. However, each of the independent witnesses struck me as a thoughtful, honest person. Mr Williams, a bus driver by occupation, presented as a calm, detached observer of events. 76In terms of their credit and credibility, the defendants' witnesses suffer by comparison. 77Mr Nguyen's credit suffered from inconsistencies and prevarications in his presentation of evidence, reinforced by concessions made by him in cross examination (earlier noticed) that: (a) he had, deliberately, understated his income for tax purposes over several years by not declaring cash receipts; and (b) after the alleged theft, he had systematically made cash deposits, over an extended time, into bank accounts in a pattern designed to conceal the fact that he had in his possession substantial amounts of cash (not disclosed to, or found by, the police investigating the plaintiffs' allegation of robbery) that he was endeavouring quietly to deploy in the acquisition of property or in the maintenance of the lifestyle of himself, his wife and their son. 78He claimed to have maintained a stash of about $40,000 - $50,000 in cash under the mattress of his bed. 79Payments for the acquisition of property apparently funded through a bank appear, on closer examination, to have been sourced from Mr Nguyen's amorphous, unverifiable reservoir of cash. 80The second defendant presented as a stolid, loyal wife, with some, but less than full, knowledge of the financial affairs of herself and her husband. In a rare manifestation of positive emotion she took evident delight in giving evidence, during the course of cross examination, that, upon execution of a search warrant at the defendants' home, the police did not notice that she had $30,000.00 in cash hidden in a rice container. I hesitate to attribute dishonesty to her, but her evidence lacks sufficient credibility to add an aura of respectability otherwise lacking in Mr Nguyen's presentation. 81The only other witness called in the defendants' case was Mr Nguyen's long time friend, and godfather to the defendants' son, Mr Truong. His demeanour in giving evidence was controlled, but consistent with a consciousness that the evidence being given was uncritically supportive of Mr Nguyen. I would not be comfortable in accepting his evidence, in support of his friend, as reliable. Like Mr Nguyen, his residence in the cash economy, and the vagueness of his recall of detail about particular events, colours an assessment of his credit. 82Forensically, his evidence was intended to corroborate Mr Nguyen's assertion that Mr Nguyen had borrowed $74,000.00 from him (in cash) as an interest-free loan to assist in the purchase of the defendants' Dulwich Hill property. 83Mr Truong is a loyal friend, but his evidence is not credible. It is not susceptible to independent verification. Cash in, cash out. None of it documented. An alleged, personal loan for the acquisition of a property Mr Truong was unable to identify in cross examination, and about which he claimed to be indifferent at the time of making available to Mr Nguyen the whole of his cash reserves. A story of repayments of the alleged loan, by sporadic periodic payments, said to have been kept track of in an exercise book allegedly thrown out when the loan was repaid. I do not accept this evidence. 84Neither do I, on the other side of the contest, place any reliance on Mr Truong's evidence that, at an indeterminate time, Walid accompanied Messrs Nguyen and Truong on one of their regular fishing trips. That may possibly be true. However, Mr Truong's evidence is generally so lacking in reliability that I am not prepared to count it against Mr Nguyen any more than I am prepared to count it in the defendants' favour. 85In the broad, I have no hesitation in preferring the evidence of witnesses called on the plaintiffs' side of the record over those on the defendants' side. 86That assessment is qualified only to the extent necessary to recognise that, in particular respects, error may have crept into evidence of the plaintiffs' witnesses. I have in mind as an example, the evidence of Walid that, at one time, he routinely spent fully six days a week in the company of Mr Nguyen at the defendants' fruit and vegetable shop in Marion Street, Bankstown. This is unlikely, literally, to be correct, although, figuratively, not far from the truth. Walid spent as much time as he could in the presence of Mr Nguyen, whom he regarded (on Mr Nguyen's evidence, without reciprocation) as his best friend. 87I make the following findings of fact: (a)On 27 March 2006 the plaintiffs had in their possession, stored in the roof cavity of their townhouse (Unit 1) in Pringle Avenue: (i)cash in the total sum of $467,500.00 (recorded on two separate sheets of paper in the handwriting of Suzanne, one dated 11 December 2005, the other dated 1 March 2006) in the several receptacles described in the handwritten note dated 1 March 2006 given by Suzanne to her brother Mohammed; and (ii)a substantial quantity of jewellery of a presently unknown value. (b)That sum of money represented savings accumulated by the plaintiffs, as a family, for two particular purposes: first, $434,500.00 had been accumulated, either in cash or as withdrawals from bank accounts in order to satisfy Mr Helou Senior of the availability of a cash fund, for investment in a redevelopment of the family's Highland Avenue property; and, secondly, $33,000.00 set aside for funeral expenses (including burial in Lebanon) of Mr and Mrs Helou Senior. (c)The money ($467,500.00) was moved from hiding places in the plaintiffs' Highland Avenue property to the Pringle Avenue townhouse on 1 March 2006 in anticipation of execution of a building contract for redevelopment of Highland Avenue. (d)Unbeknown to other members of his family, Walid had discovered the whereabouts of the family's wealth in the Pringle Avenue townhouse (as he had earlier discovered cash behind the kickboard in the kitchen of the Highland Avenue property) by observation, deduction and an insatiable child-like curiosity about a family secret. (e)Having earlier elicited from Walid that the Helou family had substantial cash hidden away, and having earlier in the presence of Walid dipped into cash held behind the kickboard in the Highland Avenue property, Mr Nguyen was, on the morning of 27 March 2006, introduced by Walid to the family treasure secreted in the roof cavity of the Pringle Avenue townhouse. (f)At that time, to the direct observation and over the express objection of Walid, Mr Nguyen (using a ladder he kept in his van) took a quantity of cash from the roof cavity of the townhouse and appropriated it to himself by depositing it in the van, which he had (despite a temporary suspension of his driver's licence) driven to the Pringle Avenue property. (g)Early in the day on 27 March 2006, before she went out, Mrs Helou Senior was confronted by Mr Nguyen, inside the entrance to the Pringle Avenue townhouse, asking for Walid. Despite his denials, he entered the townhouse that morning, as he had on earlier occasions. (h)By chance, on a date which (by reconstruction) may have been slightly earlier than 27 March 2006, Mr Williams (the plaintiffs' neighbour from Unit 2) observed Walid, in the presence of Mr Nguyen, at Unit 1 with a ladder. As related by Janine Helou, Mr Nguyen had carried ladders in his van when, on 13 February 2006, he had (in the presence of Walid and Mrs Helou) picked her up from hospital after she had had day surgery. (i)With imprecision as to dates, but probably on 27 March 2006, Ms Field observed Mr Nguyen's white van in the driveway of the Pringle Avenue property, adjacent to Unit 1, blocking the exit of her car from Unit 3. (j)Having driven Walid to shops at Bankstown, having noticed that Walid had left keys in his vehicle, and having satisfied himself that nobody was home at Unit 1 in Pringle Avenue, Mr Nguyen had an opportunity sufficient to return to the townhouse for the purpose of theft of the balance of the cash, and the jewellery, then located in the roof cavity. (k)No person outside the plaintiffs' family other than Mr Nguyen had knowledge of the location of the plaintiffs' cash and jewellery as at 27 March 2006. (l)On 28 March 2006 Mohammed discovered that the cash and jewellery he had personally deposited in the roof cavity of Unit 1 on 1 March 2006 had disappeared. (m)That discovery occurred because Mohammed had entered the roof cavity to investigate whether there was a presence of birds in the roof that could explain an allergic reaction from which his mother was suffering after having taken up occupation of Unit 1. (n)After having been confronted by his family on the morning of 28 March 2006 about the loss of the family treasure, Walid called Mr Nguyen on his mobile telephone, at which time a conversation between them took place to the following effect: Walid said: "Hello Jim. Bring back all the money and jewellery now. Where is it? Where did you put them? Big trouble. Police are here." Mr Nguyen (generally known as "Jimmy") replied: "Your brother moved it to the red house [a reference to the Highland Avenue property]." (o)Shortly thereafter, faced with allegations by the plaintiffs' family that he had stolen their property, and apprehensive about the possibility of an ongoing police investigation, Mr Nguyen ceased to see Walid and, to put an end to telephone calls from Walid, he changed his mobile telephone number. (p)After an initial confrontation between Walid and other members of his family as they tried to piece together what had happened, Walid descended into sullen silence about what had happened until, at the request of the Helou family, Mr Williams invited Walid, in a non-judgemental atmosphere, to unburden himself about what had occurred vis á vis Mr Nguyen leading up to the events of 28 March 2006. (q)Over a period of several years following 28 March 2006 Mr Nguyen surreptitiously enjoyed the benefit of thousands of dollars in cash, the provenance of which cannot be explained by the defendants otherwise than by their personal assertion of legitimacy, but possession of which is consistent with Mr Nguyen having stolen the plaintiffs' property on 27 March 2006. (r)After 28 March 2006 Mr Nguyen systematically made cash deposits into bank accounts in a pattern designed to conceal the fact that he had substantial amounts of cash in his possession. [In that regard, I accept as an accurate summary of the evidence the aide memoire dated 14 October 2013, prepared by counsel for the plaintiffs, entitled "Transactions in three bank accounts held by the defendants in the quarterly periods between 1 January 2005 to 31 December 2008 (excluding term deposits)"]. (s)In 2007 the defendants deployed substantial amounts of cash in their acquisition of the Dulwich Hill property and, in the construction of their residence, on the Bankstown property. (t)Contracts for their purchase of the Dulwich Hill property were exchanged on 15 February 2007, and settled on 28 March 2007. Contracts for purchase of the Bankstown land were exchanged on 11 May 2007, and settled on 22 June 2007. Payments for building work on the Bankstown land were made in the months immediately following settlement of the purchase of that land. The construction work occupied the period between March - September 2008 or thereabouts. (u)In the period between 2002 (when he first met Walid and other members of the plaintiffs' family as customers of his Marion Street shop) and 28 March 2006, Mr Nguyen had cultivated a friendship with Walid, knowing (as could hardly not be observed by a person of ordinary intelligence and perception) that Walid was no more than a boy in a man's body, and, from time to time, using Walid's limited funds to finance their activities. (v)During that period Walid became emotionally dependent upon Mr Nguyen, whom he trusted (and in whom he confided) as, to use Walid's own words, his "best friend" (w)During the same period (between 2002 and 2006) Mr Nguyen had frequently quizzed Walid about whether Walid had money in his possession and whether (and whereabouts) Walid's family held cash at home. (x)The relationship between Mr Nguyen and Walid was ostensibly terminated in mid-2004, when Mohammed warned Mr Nguyen off any further contact with Walid, but (unknown to Mohammed, though reluctantly tolerated by women in the plaintiffs' family) it was in fact resumed in mid-2005, when Walid met Mr Nguyen in the fitness club earlier frequented by the two men, and it continued until March 2006. 88I infer from these facts that, on 27 March 2006, when possessed of an opportunity to do so, Mr Nguyen returned to the Pringle Avenue townhouse, without Walid, and stole the balance of the cash, and all the jewellery, secreted by Mohammed in the Unit's roof cavity. 89In drawing this inference I am fortified by the plaintiffs' proof that Mr Nguyen's denials of contact with Walid after 2004 are false. I accept as substantially correct the independent evidence of the plaintiffs' Pringle Avenue neighbours and the Belmore Oval groundsman, corroborative of the plaintiffs' evidence. 90I am comfortably satisfied, despite the seriousness of the case presented against Mr Nguyen, that: (a)the plaintiffs had $467,500.00 in cash, together with jewellery, in their possession; and (b)on 27 March 2006, Mr Nguyen stole that property from them. 91In reaching that degree of satisfaction I have been conscious of the constraints of the Evidence Act, s 140, embodying the standard of proof generally associated with Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. I have also been mindful of particular discussions of onus of proof, in cases dependent on circumstantial evidence, in Nominal Defendant v McLennan [2012] NSWCA 148 at [139]-[140] and Asim v Penrose [2010] NSWCA 366 at [140]-[143], and in authorities there canvassed. 92Had I not had a prolonged opportunity to observe members of the Helou family, and the defendants' witnesses, in the stressful environment of a forensic contest, my initial scepticism about the plaintiffs' allegations might not have matured into a conviction that, despite Mr Nguyen's attempts to refute it, the evidence they gave was, in essentials, correct. 93The conduct of the plaintiffs, in their management of cash, may be condemned as imprudent, eccentric or economically irrational. However, in the context of Mr Helou Senior's strong religious belief about the proper use of money and the equally strong cultural imperatives of a close knit, conservative family, what they did with what they had and why they did it is understandable. Misguided they may have been; dishonest and greedy they were not. 94The same cannot be said for Mr Nguyen. On his own evidence, deceit and avarice claimed more of his attention than, perhaps, he fully realised. An opportunity for gain, at the expense of the Helou family, presented itself to him courtesy of Walid's simple dependency upon him, and the vulnerability of the Halou family because of their weakest link (Walid) and the improbability of anybody believing that they had a small fortune in cash held, at home, without security. Succumbing to temptation, he took that opportunity, exposing himself to a perceived need for systematic concealment of more cash than he could innocently explain. He ended up living a lie. 95Each of the three questions stated for the Court's determination should be answered in the affirmative. The first two can be answered without qualification; the third not. 96Question 1 should be answered: The plaintiffs did have $467,500 in cash, with jewellery, stashed in the roof cavity of their Pringle Avenue townhouse on 27 March 2006. 97Question 2 should be answered: That property was stolen by Mr Nguyen on that date, 27 March 2006. 98Question 3 should be answered: The plaintiffs have established that, on the balance of probabilities $304,588.15 of the cash stolen from them by Mr Nguyen on 27 March 2006 was subsequently applied by him in the acquisition and development of real estate (at Dulwich Hill and Bankstown) in the name of himself and his wife as joint tenants. 99With chapter and verse set out in a Schedule to their written submissions dated 14 November 2013 and entitled "Plaintiffs' Outline of Submissions" (elaborated, in the text of the submissions, in sub paragraphs 41-85 of paragraph 55), counsel for the plaintiffs have demonstrated that Mr Nguyen applied $140,335.50 of the plaintiffs' funds in the purchase of the Dulwich Hill property; $139,568.35 in the purchase of the defendants' Bankstown land; and $24,684.30 in construction of their residence on the Bankstown land - $304,588.15 in total. 100The defendants have not in detail traversed the analytical tracing exercise undertaken by counsel for the plaintiffs, which analysis I adopt. 101I note, in passing, that this analysis accommodates the defendants' sale of a property at Petersham, between 30 August 2006 and 20 December 2006, for $500,000. It treats as part of the moneys stolen from the plaintiffs the $74,000 allegedly borrowed by Mr Nguyen from Mr Truong to fund the payment of deposit moneys on the defendants' Dulwich Hill property in February 2007. It also allows for the fact that, in their purchase of both the Dulwich Hill property and the Bankstown land, the defendants paid stamp duty and legal fees in cash. 102The plaintiffs' bear the onus of proving that money stolen from them can be traced into the real estate acquired, and developed, by the defendants after the theft. However, in circumstances in which Mr Nguyen deliberately took steps to conceal his possession and deployment of cash, the defendants cannot complain if the Court more readily draws an inference against their interests than it might otherwise have done had they offered a reasonable, alternative explanation of transactions analysed in the process of tracing what became of the plaintiffs' property. 103The complexity that can attend the process of tracing money should not obscure the purpose, and nature, of the exercise. It involves a demonstration, by an application of logic and experience to evidence, of what has in fact happened to identified property, with changes of form, over time. It is a process of identification to ascertain whether property can be traced from one form to another, culminating in a finding that property in its current form can properly be regarded as a substitute for the claimant's original form of property: Foskett v McKeown [2001] 1 AC 102 at 128, approved in Robb Evans of Robb Evans & Associates v European Bank Limited (2004) 61 NSWLR 75 at 103 [131] - 105 [148] and Heperu Pty Limited v Belle (2009) 76 NSWLR 230 at 252 [89]; Re Global Finance Group Pty Limited (2002) 26 WAR 385 at 406 [94] et seq, approved in Commonwealth of Australia v The Official Trustee in Bankruptcy as the Trustee of Property of Stephen Vasil [2004] NSWSC 1155 at [21]. 104In the absence of any reasonable, alternative explanation of transactions emanating from the defendants' side of the record, and having regard to the context in which transactions took place, a fair inference is that Mr Nguyen deployed the plaintiffs' cash in the acquisition and development of real estate in the names of himself and his wife. 105In the two years or so immediately following the theft of the plaintiffs' money, the defendants entered three major transactions (purchase of the Dulwich Hill property, purchase of the Bankstown land, and construction of a residence on the Bankstown land) when, for much of the time, Mr Nguyen was unemployed or in irregular employment; his wife was not in paid employment; and their living expenses included their son's private school fees. On his own evidence, Mr Nguyen was awash with cash which he was anxious to conceal by a series of transactions. 106Reasonable alternative explanations not having been forthcoming from the defendants' side of the record, I am comfortably satisfied, on the balance of probabilities, that no less than $304,588.15 of the $467,500 stolen by Mr Nguyen from the plaintiffs can be identified as having been traced into the defendants' Dulwich Hill and Bankstown properties. 107By agreement between the parties during the course of final submissions, I am entitled to know that, since the close of the evidence on 23 October 2013, the defendants have sold the Dulwich Hill property, with the consequence that (pursuant to an interlocutory order earlier made by another judge) the Bankstown property, registered in the names of the defendants as joint tenants without encumbrance, stands as a substitute for both properties to the extent that, as I have found, stolen money belonging to the plaintiffs can be traced into either. 108In their pursuit of remedies against the defendants the plaintiffs' invoke the common law, equity and declaratory jurisdictions of the Court. 109At common law their claims against Mr Nguyen are grounded on causes of action in conversion (Penfolds Wines Pty Limited v Elliott (1946) 74 CLR 204 at 229; Sadcas Pty Limited v Business and Professional Finance Pty Limited [2011] NSWCA 267 at [42] and [83]; Kinarra Pty Limited v Crawford [2006] VSC 309 at [83]) and for moneys had and received by the defendants to the use of the plaintiffs (Lipkin Gorman v Karpnale Limited [1991] 2 AC 548 at 559; ANZ Banking Group v Westpac Banking Corporation (1988) 164 CLR 662 at 672-673). 110In equity, the plaintiffs' rely upon Black v S Freedman & Co (1910) 12 CLR 105 at 109-110, Creak v James Moore & Sons Pty Limited (1912) 15 CLR 426 at 432 and Heperu Pty Limited v Belle (2009) 76 NSWLR 230 (as well as other cases) to ground the imposition of a constructive trust on Mr Nguyen immediately upon his wrongful taking of possession of the stolen money, and on his wife from a time no later than when she received notice, at or about the time of commencement of these proceedings, that she had property (the Dulwich Hill and Bankstown properties) paid for, at least in part, with money stolen from the plaintiffs. Cf, J Tarrant, "Theft principle in private law" (2006) 80 ALJ 531. 111On the findings of fact that have been made, the plaintiffs have made out their causes of action against Mr Nguyen and established that, in equity, they are entitled to relief against both defendants. 112The equitable relief to which the plaintiffs are entitled, against both defendants, is an equitable charge over the Bankstown property to the extent that the money stolen from them has been traced into it or the Dulwich Hill property: Australian Postal Corporation v Lutak (1991) 21 NSWLR 584. 113On the findings that have been made (hotly contested though they have been), no substantial controversy attaches to this conclusion. Nothing of substance turns on whether equity's intervention takes the form of a declaration that the Bankstown property is held, to a limited extent, on trust for the plaintiffs or a declaration that the plaintiffs are entitled in equity to a charge on the property. 114There is, however, an underlying controversy that requires consideration of how the plaintiffs' respective causes of action and their equitable entitlements fit together. 115At common law the plaintiffs claim, in the same amount (namely $467,500), an award of damages in conversion and moneys had and received, together with an award of pre-judgment interest under the Civil Procedure Act 2005 NSW, s 100. In equity, they claim an entitlement to a proportionate share of the Bankstown property (Scott v Scott (1964) 109 CLR 649 at 660-662 and 664) or an equivalent amount; they thereby claim an entitlement to share in any increase in the respective values of the Dulwich Hill and Bankstown properties arising from deployment of their stolen money in those properties. 116Each of the plaintiffs' causes of action and equitable entitlements has a different jurisprudential foundation. Their cause of action in conversion provides an award of damages as compensation for a loss suffered by them. Their action for moneys had and received is capable of producing a money judgment measured by that same loss or a monetary gain made by Mr Nguyen (reflecting Lord Mansfield's endeavours to assimilate the cause of action and equitable principles in the late 18th century), but the plaintiffs rely upon it for a monetary judgment equal to the amount of their loss. 117The way the plaintiffs have put their case against Mr Nguyen, at law, has circumvented any need to consider whether the principles formally encapsulated in the expression "waiver of tort" (but explained, in United Australia Limited v Barclays Bank Limited [1941] AC 1, in terms of a need for consistency of rights and remedies) need to be explored in depth: SJ Stoljar, The Law of Quasi-Contract (Law Book Co, Sydney, 2nd ed, 1989), pp 99-112; Mason & Carter's Restitution Law in Australia (Lexis Nexis Butterworths, Australia, 2nd ed, 2008), paras [1618]-[1622], [1632] and [1636]-[1639]; M Lobban, "Contract: Restitutionary Remedies" in The Oxford History of the Laws of England, Volume 12 (1820-1914, Private Law) (Oxford UP, 2010), pp 573-583 (and pp 601-610). 118It is sufficient for present purposes to notice that the need for consistency of rights and remedies, and for coherence in the law, is not confined to a consideration of alternative causes of action at common law. It extends no less to a consideration of alternative remedies available in equity and, in a broader sense, to the Court's consideration of what is required, in a particular case, to do justice between parties. 119In the interests of justice, the plaintiffs cannot fairly have both: (a) a remedy that, in substance, compensates them for their loss with pre-judgment interest; and (b) a remedy that, in substance, returns to them property with an accretion in value arising from the defendants' use of it. Whether this is described as an inconsistency in remedy, or an application of considerations of fairness, the plaintiffs must, before judgment, elect whether they seek only a loss-based remedy or, to some extent, a gain-based remedy and (if the latter) they must confront how their remedies fit together. 120In discharge of its primary obligation to do justice between the parties, and in the exercise of its powers and in the performance of its duty (illustrated by the Civil Procedure Act 2005, s 90 and the Uniform Civil Procedure Rules 2005 NSW, r 36.1) to give such judgment and to make such orders as the nature of the case may require, the Court must bear in mind the purpose the current proceedings are designed to serve. 121That purpose is the provision of an orderly process for determination of whether the plaintiffs had property of which they have been deprived and, if so, whether they can recover it or its equivalent. 122Significance attaches to the form of the property in dispute - currency without any special value beyond its character as currency - because: (a) as a medium of exchange, title to it generally passes by delivery (Sinclair v Brougham [1914] AC 398 at 418-419; R v Curtis; ex parte Attorney-General [1988] 1 Qd R 546 at 548 and 551; Stoljar, The Law of Quasi Contract (2nd ed, 1989), pp 112 et seq) and it is not universally recoverable by an action in detinue at common law or in a suit for specific restitution in equity; (b) a person wrongly deprived of it must generally be satisfied with recovery of its equivalent via processes which, in substance, require a wrongdoer, or any person who comes into possession of it otherwise than as a bona fide purchaser for value without notice of wrongdoing, to account for it to the plaintiff; and (c) the law recognises that, by a process of tracing, a person wrongfully deprived of it may identify it in the hands of another person, and may recover it from that person, as property notwithstanding that it has changed in form: C Proctor, Mann on the Legal Aspect of Money (Oxford UP, 6th ed, 2005), para 1.55; D Fox, Property Rights in Money (Oxford UP, 2008), paras 2.01-2.02 and 4.86-4.92. 123Another characteristic of currency that is of significance in these proceedings is that, both tangibly and intangibly, it may be divisable - perhaps not infinitely so, but in large measure - and, accordingly, recovery of it or an equivalent can take divergent forms. Currency, if stolen, might be recovered, in part, in specie; in part, in an equivalent amount of other currency; and, in part, in the form of other property into which it has been traced. 124Although the causes of action and equitable entitlements called in aid by the plaintiffs have different jurisprudential foundations, there is no inconsistency in the rights claimed by the plaintiffs. Each cause of action on which they rely is predicated on their entitlement, in essence, to possess, use and enjoy the money stolen from them. So too is equity's imposition of a constructive trust. 125On the facts as found, prima facie (unless the plaintiffs duly elect for a judgment measured by gains made by the defendants from use of their stolen money) the plaintiffs are entitled to, and ought be granted, a judgment measured by their loss of the money, and having the following elements: (a)a judgment for the payment of money in a sum representing the amount stolen from the plaintiffs ($467,500) together with an award of pre-judgment interest under the Civil Procedure Act, s 100. (b)a declaration that so much of that judgment debt as represents a principal sum of $304,588.15 (an amount equivalent to the stolen funds traced into the Dulwich Hill and Bankstown properties) and an award of pre-judgment interest under the Civil Procedure Act, s 100, together with interest accruing after judgment on that portion of the judgment debt, pursuant to s 101 of the Civil Procedure Act, constitutes an equitable charge on the defendants' title to the Bankstown property. 126If, before judgment, the plaintiffs elect to take a judgment measured by gains made by the defendants from use of their stolen money, they may be entitled to a judgment having the following elements: (a)a judgment for the payment of money in the sum of $162,911.85 (representing the balance of the stolen money after deducting $304,588.15 traced into real estate) together with an award of pre-judgment interest under the Civil Procedure Act, s 100. (b)a declaration that the defendants' title to the Bankstown property is subject to an equitable charge in favour of the plaintiffs to the extent of the sum of the following amounts: (i)an amount equal to that share of the defendants' proceeds of sale of the Dulwich Hill property, net of costs of sale, proportionate to the share of the defendants' costs of acquisition of the property borne by the $140,335.50 of stolen money traced into the property; (ii)an award of pre-judgment interest (under the Civil Procedure Act, s 100) on that amount calculated from the date of completion of the sale. (iii)an amount equal to that share of the current market value of the Bankstown property proportionate to that share of the defendants' costs of acquisition of the Bankstown land, and the costs of construction of their residence on the land, borne by the $164,252.65 of stolen money traced into the Bankstown property. 127Whichever form of judgment the plaintiffs elect to take, it should include the following additional elements: (a)a reservation of liberty to apply for orders for the sale of the Bankstown property to enforce the plaintiffs' equitable charge on the property. (b)an order varying an extant freezing order against Mr Nguyen to allow payments in favour of the plaintiffs to be made as contemplated by the judgment. (c)an order that the defendants' pay the plaintiffs' costs of the proceedings. 128The plaintiffs having foreshadowed an application that their costs be assessed on the indemnity basis, rather than the ordinary basis, I will hear the parties on that application before determining the basis upon which costs are to be assessed. 129The plaintiffs are entitled, within reasonable bounds, to call in aid the Court's procedures to enable them to be properly informed about facts underlying the election they have to make about alternative remedies. To the extent that any further hearing may be necessary for that purpose, each party will be at his or her own risk as to the costs of that further hearing. 130Under the Court's current administrative arrangements, any inquiry into those facts must be conducted, not upon a reference to another judicial officer, but as a further stage of the final hearing. 131For completeness, I formally record that any equitable charge to which the plaintiffs are entitled over the Bankstown land is a charge over the joint interests of the defendants, as joint tenants. 132I will allow the parties an opportunity to peruse these Reasons for Judgment before either making final orders or giving directions to enable any residual contest to be determined. To facilitate the process of moving towards final orders, I direct that the plaintiffs' bring in Short Minutes of Orders designed to give effect to these Reasons.

(1995) 184 CLR 102

(1995) 182 CLR 544

(1948) 78 CLR 313

(2003) 212 CLR 484

(1991) 21 NSWLR 584

(1989) 171 CLR 125

(1991) 171 CLR 657

(2004) 61 NSWLR 75

(1994) 35 NSWLR 277

(1926) 38 CLR 477

(1964) 109 CLR 649

(1988) 164 CLR 662

(2007) 70 NSWLR 201

(1998) 195 CLR 566

(1987) 164 CLR 137

(1910) 12 CLR 105

(1998) 194 CLR 457

(1938) 60 CLR 336

(1910) 11 CLR 580

(1998) 192 CLR 285

(1912) 15 CLR 426

(2010) 78 NSWLR 483

(2001) 52 NSWLR 572

(2007) 230 CLR 89

(1994) 35 NSWLR 206

(1988) 81 ALR 397

(1999) 196 CLR 101

(2009) 76 NSWLR 230

(1990) 171 CLR 125

(1971) 125 CLR 546

(1965) 113 CLR 265

(1997) 188 CLR 449

(1946) 74 CLR 204

(2002) 26 WAR 385

[2010] NSWCA 366

[1999] NSWSC 435

[2013] NSWCA 453

[2011] NSWSC 1156

[2011] NSWCA 267

[2004] NSWSC 1155

[2012] NSWCA 148

[1999] NSWCA 403