Has Mrs Jang established the existence of the express oral trust?
155 Having considered the evidence as a whole, in my opinion Mrs Jang has failed to establish, on the balance of probabilities, the existence of an express oral trust (and thus the resulting trust) pursuant to which Sarah holds her interest in the Gungahlin Property on trust for her.
156 The express oral trust is said to arise on the pleaded case upon entry into the Agreement by Mrs Jang with Kan Kwai and Seung to the effect that they would jointly purchase the Gungahlin Property and the Second Agreement the effect of which was that Sarah would act as Mrs Jang's agent for the purchase. In her amended statement of claim Mrs Jang then alleges that she paid $300,000 towards the purchase of the Gungahlin Property and that Kan Kwai and Seung paid the balance of the purchase price.
157 In her closing submissions Mrs Jang submitted that the express oral trust was established by the four core matters set out at [148] above.
158 The Trustees appeared to complain that Mrs Jang's evidence and the case she pursued at trial were at odds with her pleaded case. That is so and a matter which was acknowledged by Mrs Jang, although whether she abandoned her pleaded case was not clear. Mrs Jang submitted that the pleading should not be taken as a script such that any difference between it and the evidence, however minor, is sufficient to deprive her of any relief.
159 In Ethicon Sarl v Gill [2021] FCAFC 29; (2021) 387 ALR 494 a Full Court of this Court (Jagot, Murphy and Lee JJ) considered the role of pleadings in the context of an allegation that in finding that particular devices had a defect the primary judge erred. In making that allegation the appellants contended that neither the pleading nor submissions raised the matter which formed a basis for the finding in issue and that the respondents should have been held to their pleading.
160 At [687]-[689] the Full Court said:
687 In Banque Commerciale SA en Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 296, Dawson J said, as cited with approval in Vale v Sutherland [2009] HCA 26; (2009) 237 CLR 638 at [41]:
But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties … cases are determined on the evidence, not the pleadings.
688 To similar effect, in Betfair Pty Ltd v Racing New South Wales and Anor [2010] FCAFC 133; (2010) 189 FCR 356 at [51]-[53], [55]-[58] the Full Court explained that at trial a party is entitled to have the opposing party confined to that party's pleadings, but if the first party does not seek to so confine the opposing party but allows the other party to raise other material facts and issues for the determination of the Court, then the Court is permitted and possibly obliged to decide the proceeding on the further material facts and issues raised and addressed at trial. The Full Court said (at [52]-[53]):
Pleadings are a means to an end and not an end in themselves (Banque Commerciale per Dawson J at 292-3). As early as 1916 Isaacs and Rich JJ said, in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in Liquidation) (1916) 22 CLR 490 (at 517):
Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.
(Emphasis added).
Approached in these terms, the question is whether the respondents knew the nature of the case they had to meet.
689 Their Honours further explained (at [55]):
The course of proceedings is in the control of the Court. That control is to be exercised for the attainment of a just outcome. There will obviously be cases where a pleaded case does not raise an important fact for attention. If that remains the position at the end of the case, the case may be lost on that basis, so far as it depends on that fact. Sometimes it would be unfair to allow a party to amend a case, or a pleading, to raise a new matter which could have been, but was not, raised earlier. On the other hand, mere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party.
(Emphasis added).
161 This is not a case where a claim has been made and pursued at trial which has not been expressly pleaded. The issue is more nuanced. Mrs Jang pleads that the alleged trust arose by reason of the Agreement and Second Agreement. The Trustees contended that she has not made out her pleaded case and, in doing so, suggest, at least implicitly, that Mrs Jang should be held to that case. However, at trial Mrs Jang advanced a case that was different from her pleaded case. While she still asserted that her interest arose by reason of a resulting trust, a matter which is pleaded, she relies on material facts that differ from those pleaded to make good that claim.
162 The Trustees were on notice of the way in which Mrs Jang put her case and that it departed in a number of respects from her pleaded case. They made no complaint about that during the course of the trial and, given the evidence relied on by Mrs Jang and her opening submissions, were on notice of that case. Mrs Jang's case has been presented with reasonable clarity.
163 In any event, whether on the basis of the case as pleaded or as presented at trial I reach the same conclusion. That is that Mrs Jang has failed to establish the existence of the resulting trust pursuant to which she contends that Sarah held a 50% share in the Gungahlin Property on her behalf.
164 As I have already observed Mrs Jang relies on four core matters to establish the resulting trust in her favour. However, she has not provided by way of closing submissions or otherwise any references to the evidence which she contends establishes these core matters. It is instructive to examine each one.
165 The first core matter is that Mrs Jang gave Sarah money to purchase an interest in the Gungahlin Property. As is clear from the authorities set out above, Mrs Jang bears the onus of establishing the payments that give rise to a presumption of a resulting trust. However, in my opinion, the evidence relied on by Mrs Jang does not support the assertion made by the first core matter.
166 Sarah holds a half interest in the Gungahlin Property. The purchase price of $1.28 million was paid in two parts: a 10% deposit followed by the balance subject to adjustments on completion.
167 Insofar as the deposit is concerned, initially Mrs Jang gave evidence that she could pay the deposit but in the same affidavit said that she intended that the sum of $65,000 which she gave to Sarah in January was to be paid by Sarah to Kan Kwai for the deposit. In a later affidavit Mrs Jang said that she did not have funds to immediately pay the deposit, that Kan Kwai and Seung would pay the deposit and that Mrs Jang would pay them later when she had the money. In cross-examination Mrs Jang said that the Jang Note recorded that she had borrowed the deposit for the Gungahlin Property.
168 Sarah gave evidence that Kan Kwai agreed to pay the whole of the deposit. In cross-examination she said that at the time of exchange Kan Kwai paid the deposit and that later Mrs Jang gave her cash which she transferred, I infer, to Kan Kwai's account.
169 As to the payment of the balance of the purchase price, in her April 2019 Affidavit Mrs Jang said that she gave Sarah an additional amount of $235,000 either directly or via Yun-Jong which amount she intended be used for the purchase of the Gungahlin Property. However, when she gave evidence at the hearing Mrs Jang said that she contributed $265,000 in total to the Gungahlin Property, that the "total amount" that she "was to put in was $215,000" but that she also contributed $50,000 for renovations. Then in cross-examination Mrs Jang suggested that the $300,000 contribution pleaded in her amended statement of claim (and which I observe was the total amount referred to in the April 2019 Affidavit) was "without the loan money" suggesting that she in fact contributed more to the purchase price.
170 Yun-Jong's evidence is that she was given some money by her mother and told it was for the "property" and that she should give it to Sarah and that in February and March 2017 she transferred a total of $40,000 into Sarah's bank account.
171 Sarah has no independent recollection of the amounts or the dates on which she says she was given money by Mrs Jang.
172 None of the evidence given by Mrs Jang, Sarah or Yun-Jong is supported by any objective documentary evidence showing, for example, the source of funds, the date of payment of funds to Sarah and by what means e.g. cash or electronic transfer or otherwise, the receipt of funds and the application of those funds to the purchase price for the Gungahlin Property. The evidence rises no higher than an assertion that some moneys were paid to Sarah by Mrs Jang. That Mrs Jang intended, and in the case of money provided to Yun-Jong for transfer to Sarah told Yun-Jong, that those moneys were to be applied to the purchase of the Gungahlin Property is not sufficient to demonstrate that they were so applied.
173 The only objective documentary evidence of the source of funds for the purchase of the Gungahlin Property came from the Trustees. It comprised:
(1) Kan Kwai's statement of account for her "Rocket Repay Home Loan" held with Westpac for the period dated 28 January 2016 to 27 January 2017 which shows a withdrawal of $128,000 on 16 December 2016, the date of exchange of the contract for sale of the Gungahlin Property, and deposits on 9 January 2017 by Kyle of $30,000 (in three separate transactions of $10,000 each) and by Sarah of $34,000 (in two separate transactions of $10,000 and $24,000 respectively). As to the latter corresponding payments were identified in the ANZ Statements (see [131] above);
(2) the evidence given by Ms Sijabat of funds received by Sarah into the ANZ Account in the period between exchange and settlement of the contract for sale of the Gungahlin Property based on an analysis of the statements for that account (see [130] above) for which the Trustees have been unable to establish the source or origin; and
(3) Kan Kwai's reconciliation of the amounts contributed by each of Sarah, Seung and herself to the purchase price for the Gungahlin Property (see [81] above).
174 This evidence does not show Mrs Jang as the contributor of any of the funds received by Sarah in the relevant period or the application of funds apparently received from Mrs Jang to the purchase price for the Gungahlin Property.
175 The second, third and fourth core matters can be considered together. They are that the interest in the Gungahlin Property purchased by Sarah was held by her for Mrs Jang, that Mrs Jang and Sarah understood that the interest purchased by Sarah was Mrs Jang's investment and that this was done because Mrs Jang wanted to invest in property but could not get a loan.
176 Mrs Jang relies on the evidence in chief given by her and Sarah to establish the creation of the trust and thus these core matters. The conversations between Mrs Jang and Sarah are set out at [26]-[28] above. Mrs Jang submitted that the Trustees cannot challenge that evidence directly, they are effectively strangers to the alleged arrangements. That is so. But that does not mean that the only available option is to accept the evidence or to accept it without any reservation or criticism.
177 The Trustees referred to Watson v Foxman (1995) 49 NSWLR 315. That case concerned a dispute between, on the one hand, Phillip Foxman and two companies controlled by him and, on the other, the Commonwealth Bank of Australia and a receiver appointed by the bank over some of the assets of Mr Foxman's companies. The bank sought to recover a debt from Mr Foxman and his companies, one of which, Foxman Holdings, then cross-claimed against the bank seeking damages for, among other things, misleading or deceptive conduct under the then Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987 (NSW). In support of that claim Foxman Holdings relied on evidence given by Mr Foxman of conversations he said he had with an officer of the bank. After referring to that evidence at 318-319 McLelland CJ in Eq said:
Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ¼ attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712.
(Emphasis added.)
178 As was the case in Watson v Foxman, Mrs Jang's cause of action is founded on the speaking of words. The observations of McLelland CJ in Eq apply equally here such that the words spoken "must be proved with a degree of precision sufficient to enable the court", in this case, to be reasonably satisfied that any consensus reached was capable of forming a binding agreement and was intended by the parties to be legally binding. However, the evidence relied on does not meet that threshold.
179 Insofar as the alleged agreement between Mrs Jang and Sarah is concerned Mrs Jang gave the evidence set out at [27]-[28] above in her May 2019 Affidavit. In her oral evidence, which was more detailed than the evidence included on the topic in her May 2019 Affidavit, Mrs Jang gave scant detail about the alleged agreement. She said that: Sarah and Kyle found out about the Gungahlin Property from an accountant who she does not identify but who I assume to be Kan Kwai; that they were short of money and so asked her if she was interested in the property but she said she had no funds at the time; Sarah and Kyle then spoke to the accountant and Mrs Jang was told that the accountant would pay the deposit; that being so Mrs Jang considered whether she could come up with the money; Mrs Jang said, although it is not clear to whom, that it would take some time to get a loan but that she could borrow money from her friends; because Mrs Jang could not obtain a loan in her name she asked "her" to buy the Gungahlin Property in her name and "she" agreed to do so; and accordingly "she" entered into the contract on 16 December 2016 and Mrs Jang gave her some money by the end of December 2016.
180 Mrs Jang's evidence does no more than describe the bare elements of her case; it lacks any precision. For example, Mrs Jang does not name the "accountant" nor the person who she asked to act as purchaser, although I assume it was Sarah, nor does she provide any detail of conversations she had with Sarah about the Gungahlin Property and the way in which the transaction was to proceed, including the basis upon which Sarah was to hold the property on her behalf. The alleged agreement involved the acquisition of a significant asset for a not insubstantial sum. One might expect that there would be a level of detailed discussion about such a transaction prior to entry into it and that, given the significance of the transaction, a somewhat more detailed recollection of those discussions and how the transaction unfolded.
181 In the same vein, Mrs Jang provides no detail about the proposed funding of the Gungahlin Property either in the longer term, through borrowings or, in the shorter term, from her friends. Nor does she explain why or what circumstances or events, beyond her age, caused her to form the view that she could not obtain a loan thus necessitating the need for the property to be purchased in someone else's name.
182 Mrs Jang's evidence included in her May 2019 Affidavit does not advance the matter any further.
183 Sarah's evidence in relation to the alleged agreement is set out at [30]-[35] above. While it aligns in part with the evidence given by Mrs Jang it does not either of itself or in combination with Mrs Jang's evidence satisfy me that there was an agreement in the terms alleged.
184 Sarah gave her evidence by way of affidavit. The limitations of affidavits as a means of providing an accurate account of past oral communications is, as was observed by Pembroke J in Linfield Developments Pty Ltd v Shuangxing Development Pty Ltd [2016] NSWSC 68 at [11], well known. His Honour continued:
In Thomas v SMP (International) Pty Ltd [2010] NSWSC 822, I set out some of the considerations:
[23] … Affidavits have an important function and serve a useful purpose. But they are not necessarily always the best means of leading evidence-in-chief. Where there are disputed issues of fact involving oral representations and conversations, affidavit evidence can sometimes be an unsatisfactory medium for leading the evidence-in-chief.
[24] It is well known that eminent jurists with unparalleled trial experience have expressed misgivings about the elicitation of evidence-in-chief by affidavits in cases whose success or failure depends on disputed representations and conversations. A colourful but apposite aphorism frequently invoked by Hon T E F Hughes QC, and attributed to Lord Buckmaster, is that "the truth sometimes leaks out of an affidavit - like water from the bottom of a well"…
[25] Justice Emmett elaborated more fully on the difficulties to which affidavits and witness statements can give rise in Practical Litigation in the Federal Court of Australia - Affidavtis (2001) 20 Australian Bar Review 28:
Where evidence is controversial, particularly where credibility of the witness is involved, the adducing of the evidence in written form is often undesirable and can be quite unfair… With the very best of intentions a lawyer who settles an affidavit or a witness statement will invariably reduce the language of the witness to the lawyer's own language. That may entail changes in meaning and emphasis that, although not intended, may expose a witness to unnecessary difficulties in the course of cross-examination. On the other hand, a dishonest witness will always be assisted by having evidence put into credible form by a lawyer...
[26] In 1996 in the Access to Justice Report, Final Report (HMSO), 1996 at [55], Lord Woolf pithily observed:
Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting.
[27] And as long ago as 1975, the New South Wales Law Reform Commission, in Working Paper 14, (1975) - Procedure: Common Law Pleadings, also observed (paragraph 7.3): "affidavit evidence is said (and with justification) to be more the evidence of the legal advisor than the witness".
[28] A common thread in the commentary is that the studied reconstruction, and formulation in writing, of contentious conversations and oral communications in language that is usually settled and refined by lawyers, can sometimes be unreliable and unintentionally misleading. …
185 Added to this are the comments of McLelland CJ in Eq set out at [177] above where his Honour referred to the fallibility of memory which increases with time and can be affected, where a dispute intervenes, albeit subconsciously, "by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said".
186 As I have already observed, in some respects Sarah's evidence (see [30]-[35] above) aligns with that given by Mrs Jang. In her first affidavit sworn on 3 May 2019 Sarah said that: she came to learn about the Gungahlin Property in November 2016; she and Kyle did not have the funds to buy the Gungahlin Property; Mrs Jang asked Sarah to approach Kan Kwai and Seung to inquire if they would purchase the property with her and at that time told her that Kan Kwai and Seung would need to pay the full deposit and that she would have to get the money together; and that upon being informed about the urgency of the sale, Mrs Jang told Sarah that she did not have the money at the moment, that she would get it and asked Sarah to see if Kan Kwai and Seung could pay the deposit.
187 Later in the same affidavit Sarah gave evidence which differed in one respect to that given by Mrs Jang (see [35] above). That is, Sarah gave evidence of further conversations with Mrs Jang in which Mrs Jang said that she was giving Sarah the money, her name would be on the title but it would be Mrs Jang's property and that Sarah's name was just there to protect Mrs Jang. Based on Sarah's evidence, the reason why the Gungahlin Property was to be purchased in Sarah's name was not because of an inability on the part of Mrs Jang to borrow funds but to protect Mrs Jang.
188 Sarah's evidence, like that of Mrs Jang, lacks any detail. As I have already observed the proposal was to acquire a property for a not insignificant sum with two people about whom, at least based on the evidence relied on by Mrs Jang, she knew little if anything. Yet there is no evidence given about the nature of the property, the sale price, or the detail of the alleged agreement pursuant to which it is said the resulting trust arises. Putting to one side why the transaction would proceed in the way proposed, with Sarah registered on the title but holding her half share for the benefit of Mrs Jang, there is no explanation of how that arrangement would operate in terms of the timing of the provision of money to fund the half share and the quantum required or how, for example, the income generated from the half share in the Gungahlin Property, which was described by Sarah as an investment property, would be disbursed or otherwise dealt with.
189 Nor is there any evidence explaining why it is that Sarah needed to be registered on the title of the Gungahlin Property in order to "protect" Mrs Jang. The nature of the protection sought, why it was required and how having Sarah recorded as registered proprietor afforded that protection is not the subject of any evidence. Once again, given the nature and relative import of the transaction, the lack of detail creates an uncertainty about the evidence and tells against its ability to persuade me that, on the balance of probabilities, the alleged agreement was put in place at the time of the purchase of the Gungahlin Property or at all.
190 Putting to one side the Jang Note, which I address below, an added problem is the complete lack of contemporaneous documents relied on by Mrs Jang to support the alleged agreement. Those documents that were in evidence tell against the existence of the alleged agreement:
(1) as observed above, the ANZ Statements disclose that for the period between the exchange of contracts for the sale of the Gungahlin Property and their settlement a total of $179,087.05 was deposited into the ANZ Account. There is no evidence that establishes where those funds were derived from or how they were expended and Mrs Jang accepted in cross-examination that she made no contemporaneous note or record of providing funds to Sarah in December 2016 or March 2017;
(2) Kan Kwai informed the vendors' solicitor by text message sent on 27 January 2017 that the intended purchasers of the Gungahlin Property were to be herself, Seung, Sarah and Kyle, each holding a 25% interest;
(3) the contract for sale of the Gungahlin Property dated 16 December 2016 names Kan Kwai, Seung and Sarah as purchasers;
(4) a letter dated 27 January 2017 from Suncorp to Kan Kwai notifying preliminary approval of a loan in the sum of $896,000 to be secured by way of mortgage over the Gungahlin Property names Kan Kwai, Seung and Sarah as borrowers;
(5) on 1 February 2017 Badgery & Rafferty issued a costs agreement to Kan Kwai, Seung and Sarah in relation to their retainer to act for them on the purchase of the Gungahlin Property;
(6) a letter dated 20 February 2017 from Suncorp to Sarah notifying approval of a loan in the sum of $768,000 to be secured by way of mortgage over the Gungahlin Property names Kan Kwai, Seung and Sarah as borrowers;
(7) on 29 March 2017 the Gungahlin Property was registered in the names of Kan Kwai and Seung as to a 25% interest each and Sarah as to a 50% interest and a mortgage to Suncorp was registered on its title;
(8) on 21 August the Caveat was registered on the title of the Gungahlin Property by which Mrs Jang claimed an "equitable interest of $300,000 pursuant to an unregistered loan agreement" with Sarah;
(9) in the SOA dated 5 August 2018, which in cross-examination Sarah accepted she completed truthfully to the best of her knowledge, Sarah noted that she first had difficulty paying her debts in May 2017, declared that the Gungahlin Property was owned by her, Kan Kwai and Seung and did not disclose that Mrs Jang had any interest in it, named Mrs Jang as a debtor owing her $400,000, named Suncorp as her only secured creditor and did not include Mrs Jang in the list of her unsecured creditors; and
(10) a letter dated 28 June 2018 from Marissa Lee to the Trustees states that her instructions, among other things, were that Mrs Jang had "lent the sum of about $400,000 to [Sarah] or her related entities of which about $300,000 was used to purchase the [Gungahlin Property]" albeit it also raised a claim by Mrs Jang of a resulting trust in favour of Mrs Jang for Sarah's interest in the Gungahlin Property without articulating the basis for that claim.
191 It is convenient at this point to make some observations about the Caveat. Mrs Jang submitted that the Caveat supported her case. In doing so she referred to her evidence, given in cross-examination, that the interest claimed in the Gungahlin Property included in the Caveat was not translated to her prior to her execution of it. She submitted that, as a result, the Caveat does not carry much weight but that the fact of the Caveat itself and the purpose for which she lodged it lends support to her evidence about her interest in the Gungahlin Property.
192 Mrs Jang observed that it was suggested to her in cross-examination that the Caveat was put on the Gungahlin Property in response to Sarah informing her of financial troubles with Ciani in 2017. Mrs Jang referred to her evidence denying that contention but submitted there were a number of surrounding facts which undermined that motivation for lodging the Caveat. They were: first, the absence of evidence that she knew anything about Ciani's financial troubles; and secondly, the fact that the debt owed to Lincoln Sentry by Ciani which led to Sarah's bankruptcy was only approximately $60,000, yet she was willing to offer $130,000 in a composition to creditors to annul Sarah's bankruptcy. Mrs Jang relied on her evidence, again given in cross-examination, that she first heard about the debt owing to Lincoln Sentry after her sons and Sarah had become bankrupt.
193 Mrs Jang submitted that when taken together it is open to the Court to infer that if she had been informed about the financial difficulties her family was experiencing she would have provided the money to pay off those lesser debts, given her willingness to pay a greater sum to resolve Sarah's bankruptcy. She contended that the fact that no such steps were taken in 2017 or 2018 prior to Sarah's bankruptcy lends support to the conclusion that she did not know about Sarah's financial troubles at the time the Caveat was lodged and that such troubles were not the reason for its lodgement in August 2017. Mrs Jang submitted that once that hypothesis is excluded the logical conclusion is that she lodged the Caveat in August 2017 for the reasons she gave, namely to protect her investment in the Gungahlin Property and that the existence and lodgement of the Caveat is a powerful fact in support of her case.
194 In cross-examination Mrs Jang accepted that the Caveat was the first document in which she sought to preserve what she claimed to be her interest in the Gungahlin Property. She also accepted that the Caveat was the first ever record of her providing funds to Sarah for the purchase of the Gungahlin Property. Mrs Jang refused to acknowledge that the Caveat recorded the interest claimed by her in the Gungahlin Property as a loan to Sarah and denied that she loaned any monies to Sarah. Then, in a non-responsive comment to a line of questioning about the timing of the lodgement of the Caveat, Mrs Jang said that the reason for lodging the Caveat was in case Sarah divorced and a concern that "she would get it all".
195 Mrs Jang was not prepared to answer questions in cross-examination concerning the Caveat where it was put to her that the interest claimed therein at the time it was prepared and lodged was recorded as a loan to Sarah. Further, Mrs Jang sought to explain the alleged inaccuracy of the description of her interest in the Gungahlin Property by blaming her solicitor. She suggested by her evidence that either her solicitor had completed the Caveat without instructions or he had done so contrary to her instructions. As to the former, even if I accept that the Caveat was not translated to her before she signed it, it does not follow that it was not explained to her. As to the latter there is no basis upon which I would infer that the Caveat was prepared other than on instructions from Mrs Jang who, on her evidence, sought advice from Jacob Jang about asset protection. If Mrs Jang had loaned moneys to Sarah for the purpose of her acquisition of the Gungahlin Property then it would make perfect sense for her to wish to protect her interest as a lender by way of lodgement of the Caveat.
196 In those circumstances I do not accept Mrs Jang's submission that the use of the word "loan" in the Caveat does not carry much weight. In my view, the inference to be drawn from the Caveat as prepared, signed and lodged is that, at the time, Mrs Jang claimed an interest in the Gungahlin Property as a result of a loan in the sum of $300,000 which she alleged she had made to Sarah for the purposes of its acquisition.
197 Whether or not Mrs Jang knew that Ciani was in financial difficulty at the time she lodged the Caveat does not change the view I have reached. But, in any event, assuming that she did not, there is no basis upon which I would draw the inference urged on me by Mrs Jang. There is no basis to infer that, had she been informed about Ciani's financial difficulties, she would have provided funds to pay off the debt owed to Lincoln Sentry. It does not follow that Mrs Jang's willingness to attempt to resolve Sarah's bankruptcy by way of a compromise with her creditors some years later means that she would have been willing to pay off "lesser debts" in 2017 or 2018.
198 I turn then to consider the Jang Note, the only contemporaneous document relied on by Mrs Jang and, relatedly, the evidence of Young Ja Lee, Mrs Doo and Mrs Oh and the documents they each produced in answer to the subpoenas served on them.
199 Mrs Jang submitted that the Jang Note supports the alleged agreement with Sarah and undermines any submission of self-suggestion or recent invention. She submitted that the Jang Note records moneys which she borrowed to give to Sarah towards the purchase of the Gungahlin Property, the deletion of the interest for June and July was explained by her as recording the repayment of interest at the time it was paid and that a careful review of the relevant transcript leads to the conclusion that the notes for June and July 2017 were made at the time the interest was repaid while the notes about the loans were made in January 2017 when Mrs Jang gave the money to Sarah. Mrs Jang submitted that this evidence is consistent with the terms of the Jang Note and the use to which it had been put, namely to record moneys borrowed towards the purchase of Mrs Jang's interest in the Gungahlin Property.
200 Mrs Jang submitted that, on balance, the Jang Note is a simple document which supports her case: it records money borrowed, from whom and related interest rates; and the repayment of interest prior to repayment of the whole loan. It was the type of document one would expect a woman like her to make.
201 Mrs Jang's evidence about the Jang Note, a copy of which is reproduced at [97] above, was somewhat ambiguous. I cannot conclude, as Mrs Jang says I should, that it was prepared at two different times: as to the loans, at the time she provided the funds to Sarah; and, as to the entries about interest, at the time that interest was due and paid. On my review of the transcript of Mrs Jang's cross-examination her evidence was that the entries about interest concerned interest owing to a bank that she could not pay (see [98] above). She gave no evidence about when those entries were made.
202 Taken at its highest, the Jang Note records moneys borrowed from the persons named in it at the interest rates specified. Those persons include Mrs Doo but it is not apparent, on the face of the Jang Note or from Mrs Jang's evidence, that they include Young Ja Lee or Mrs Oh. The Jang Note does not specify when the amounts were borrowed or for what purpose. Even assuming that the heading "property purchase" refers to the Gungahlin Property, the Jang Note does not assist in understanding the purpose for which those moneys were borrowed. More critically, the Jang Note does not include any reference to Sarah or to the alleged agreement. In the circumstances, even if I accept that the Jang Note or a part of it was created in January 2017 at about the time Mrs Jang contends she gave money to Sarah, it does not assist Mrs Jang. It is not sufficient to corroborate the alleged agreement pursuant to which she contends Sarah holds the Gungahlin Property on a resulting trust for her benefit.
203 As set out above, Mrs Jang also relies on the evidence of three members of her Kye, Yong Ja Lee, Mrs Doo and Mrs Oh, as corroborative of her claim that Sarah holds her interest in the Gungahlin Property on resulting trust for her. Their evidence is set out at [90(1)] and [91] (Young Ja Lee), [90(2)] and [92]-[94] (Mrs Doo) and [90(3)] and [96] (Mrs Oh) above. In summary I found their evidence to be of limited use. It was at best peripheral and capable of providing only circumstantial support for Mrs Jang's case. But, in any event it was significantly undermined by the evidence given by each of Young Ja Lee, Mrs Doo and Mrs Oh about the allegedly corroborative notes each of them conveniently produced initially in March 2021 and subsequently in answer to the subpoenas served by the Trustees.
204 As set out at [90]-[96] above, in answer to subpoenas served on them Young Ja Lee, Mrs Doo and Mrs Oh each produced the originals of documents, copies of which were provided by way of ongoing discovery in the days leading up to the commencement of the hearing to the Trustees. Those documents were the Lee Note, the Doo Note and the Oh Note.
205 The Lee Note, Doo Note and Oh Note were said to be corroborative of the evidence given by each of Young Ja Lee, Mrs Doo and Mrs Oh. However, neither Young Ja Lee, Mrs Doo or Mrs Oh referred to the existence of, in the case of Young Ja Lee, the Lee Note, in the case of Mrs Doo, the Doo Note and, in the case of Mrs Oh, the Oh Note in their respective affidavits. It is instructive to set out a summary of the evidence given by each of Young Ja Lee, Mrs Doo and Mrs Oh in relation to the production of their respective notes which they said recorded the loans made by them to Mrs Jang.
206 Young Ja Lee said that she recorded her loan to Mrs Jang in a notebook on 28 January 2017, the relevant page of which is the Lee Note. She said that she had moved home within the two or three months prior to the trial and that she had lived in her prior home for approximately 30 years. She said that she found the notebook containing the Lee Note "a few days ago". That is, a few days before giving evidence on 14 April 2021. However, a photograph of the Lee Note had been taken on 8 or 9 March 2021, some five weeks prior. The objective timeline of first provision of a copy of the Lee Note to the Trustees casts considerable doubt on Young Ja Lee's evidence as to the timing of the location of the Lee Note.
207 Added to that was Young Ja Lee's evolving evidence in relation to where she located the notebook which contained the Lee Note. First she said she found it in a drawer in her new home, then she said she found it in a handbag and, finally, she said she found it in a handbag which was in a drawer. She managed to do so days before giving evidence having moved only a few months earlier from the home she had lived in for 30 years where, as must have been the case, the notebook containing the Lee Note had been stored.
208 Given the nature of Young Ja Lee's evidence about the Lee Note, I would not give any weight to it or rely on it as corroborative either of Young Ja Lee's evidence or of the assertion that Young Ja Lee loaned moneys to Mrs Jang.
209 Mrs Doo's evidence was that she wrote the Doo Note on 23 February 2017 and that it was in existence on 6 June 2019 when she swore her affidavit. But that evidence was proved to be wrong. Mrs Doo admitted that the Doo Note was written on the back of a portion of a calendar which marked the Lunar New Year day as Friday, 12 February 2021. When it was pointed out to her that the Doo Note could not have possibly been created in February 2017 Mrs Doo said she transferred the Doo Note from a thick diary to the back of the calendar page. She then apparently disposed of the diary.
210 I do not accept Mrs Doo's evidence about the way in which the Doo Note was created. It cannot be relied on as an accurate record of what Mrs Doo says was originally recorded in her notebook or as corroborative of her evidence that she loaned money to Mrs Jang. The irresistible inference is that the Doo Note was fabricated for the purposes of this proceeding. This of course serves to undermine not only the Doo Note itself but the whole of Mrs Doo's evidence.
211 In her affidavit Mrs Oh said that Mrs Jang made a handwritten note recording her loan which she tore up upon being repaid. She also said that she wrote the Oh Note in her diary on 15 February 2017. However, in cross-examination Mrs Oh said that "because I got repaid, I tore up the paper, and afterwards for my memory I wrote it down in my diary". But it seems somewhat counterintuitive to re-create a note of a loan once it has been repaid and certainly there would be no need to create the Oh Note prior to repayment because, on her evidence, she had the note provided to her by Mrs Jang. In any event, when counsel for the Trustees pointed out the inconsistency in her evidence Mrs Oh gave the following evidence: "this note was made at the time I lent the money, but in October, later, when I got paid, that's when I got it - I - I tore it up". That evidence is difficult to understand or indeed to reconcile with Mrs Oh's earlier evidence. If Mrs Oh tore up the Oh Note, a copy of it could not have been provided to the Trustees on 11 March 2021 and the original could not have been produced in answer to the subpoena.
212 Mrs Oh's changing evidence about the genesis of the Oh Note undermines the reliability of the Oh Note and her evidence as a whole. It is impossible to know when the Oh Note was created. The effect of her changing story is to lead me to conclude that the Oh Note was created well after February 2017, a conclusion that is reinforced by the fact that Mrs Oh did not refer to it in her affidavit which was sworn in June 2019. I do not accept Mrs Oh's explanation that the reason why she did not produce the Oh Note at that time was because it was a personal record.
213 In any event, as the Trustees submitted, Young Ja Lee's, Mrs Doo's and Mrs Oh's evidence was only peripheral and at best capable of providing only circumstantial support for Mrs Jang's case. That was, until they produced their respective notes or receipts in relation to moneys provided to Mrs Jang. However, in light of the matters set out above I place no weight on the Lee Note, the Doo Note or the Oh Note. The views I have come to about those notes considerably undermines the evidence otherwise given by Yong Ja Lee, Mrs Doo and Mrs Oh but, in any event, their evidence does not serve to establish the alleged agreement between Mrs Jang and Sarah. At its highest, if accepted, it establishes only that these three woman loaned moneys to Mrs Jang on the basis that it would later be repaid.
214 In light of the sparse evidence given by Mrs Jang and Sarah about the circumstances in which the alleged agreement was struck and its terms or, put in the way in which Mrs Jang contended, the intention to create an express trust, and the lack of any contemporaneous documents in support of the alleged agreement or intention or other reliable corroborative evidence, Mrs Jang has failed to establish her claim. I am not satisfied that there was any such agreement as alleged or intention to create a trust such that Sarah holds her half share in the Gungahlin Property on a resulting trust in Mrs Jang's favour.
215 I turn then to the pleaded case. To the extent it has not been abandoned, for the same reasons Mrs Jang has not established it. The only additional observation I would make is that there is no evidence relied on by Mrs Jang to support the Agreement as pleaded. Mrs Jang gives no evidence of any discussion with Kan Kwai or of any such alleged agreement. Kan Kwai was not cross-examined about the Agreement and the effect of her evidence in chief was that she was never told prior to entering into the contract for sale of the Gungahlin Property that Sarah was purchasing the property on behalf of Mrs Jang. Indeed, in cross-examination it was put to Kan Kwai that she knew nothing of the financial arrangements between Sarah and Mrs Jang, a proposition which she accepted.