Le & Luong v Huang & Ma

Legislation Cited: Nil

Cases Cited: Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445
Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560
Butt v McDonald (1896) 7 QLJ 68
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Export Group International Pty Ltd v TransAction Solutions Ltd (No 2) [2025] NSWSC 795
Falk v Haugh (1935) 53 CLR 163
Foakes v Beer (1884) 9 App Cas 605
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
Hawkins v Clayton (1988) 164 CLR 539
Healey v Commonwealth Bank of Australia [1998] NSWCA 103
Khandanpour v Chambers [2019] EWCA Civ 570
Kramer v Stone (2024) 281 CLR 484
Manassen Holdings Pty Ltd v Commercial & General Corporation Pty Ltd [2019] SASC 171
Morton v Elgin-Stuczynski (2008) 19 VR 294
National Bank of Greece S.A. v Pinios Shipping Co. No.1 [1990] 1 AC 637
Pinnel’s Case (1602) 5 Co Rep 117 a, (1602) 77 ER 237
Que Capital Pty Ltd v Meuller [2015] WADC 6
Re Walsh, Ex parte Deputy Commissioner of Taxation (NSW) (1982) 42 ALR 727
Sidhu v Van Dyke (2014) 251 CLR 505
Thomas v Ken Thomas Ltd [2007] Bus LR 429; [2006] EWCA Civ 1504
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Texts Cited: Chitty on Contracts, 36th ed (2025) Volume 1
J D Heydon, Heydon on Contract (Lawbook Co. 2019)
N C Seddon & R A Bigwood, Cheshire and Fifoot Law of Contract (12th Australian edition, LexisNexis Australia 2023)
The Laws of Australia (Westlaw Thomson Reuters online)
Tyler, Young & Croft, Fisher & Lightwood’s Law of Mortgage 3rd Australian Edition (2014, LexisNexis Butterworths)

Category: Principal judgment

Parties: First Plaintiff:
Le Ha Le
Second Plaintiff:
Minh Chi Luong
First Defendant:
Cynthia Jian Er Huang
Second Defendant:
Long Gin Ma

Representation: Counsel:
N. Li (Plaintiffs)
A. Ng (Defendants) (Solicitor)
Solicitors:
GWH & Associates (Plaintiffs)
Lyon Lawyers (Defendants)

File Number(s): 2023/00426432

Publication restriction: Nil

Judgment

1. Ms Le, the first plaintiff, and Mr Luong, her husband and the second plaintiff, have sued the defendants for the unpaid balance of a loan of $380,000 they alleged they made to the defendants in May 2018, together with interest. In the alternative, the plaintiffs alleged that Ms Le made the loan to Ms Huang, the first defendant.

2. The plaintiffs have claimed that they are owed $515,050.75 plus interest.

3. The defendants say that Ms Le made the loan to Ms Huang and she has repaid the loan in full.

A. The basic agreement

4. The plaintiffs pleaded that the first defendant was the wife of the second defendant. Although the defendants denied that fact in their defence, the plaintiffs made no serious attempt to establish it by objective evidence and ultimately did not challenge the evidence of either defendant about the nature of their relationship. I accept the defendants’ evidence on this.

5. In May 2018 Ms Huang, the first defendant, was a licensed conveyancer operating her business under the name Auchland & Co. As at March 2025, Mr Ma, the second defendant was 78 years of age. He had been employed full-time as a conveyancer by Auchland & Co until his retirement in about 2006. Following his retirement, Ms Huang occasionally engaged Mr Ma as a consultant to assist in conveyancing work for Auchland & Co. Ms Huang also requested Mr Ma to assist with her personal and business-related matters from time to time.

6. Ms Huang said that she and Mr Ma were close friends and their families socialised together. She said that they were not married and have never been in a domestic relationship. She said that she had no financial interests with Mr Ma. Mr Ma said the same. He said they were very close friends. I accept their evidence. It was not challenged.

7. Although Ms Huang said she had never heard Mr Ma refer to her as his wife, Mr Ma said that he had on occasion referred to her in that way. He explained that he and Ms Huang are Chinese and the use of the word “wife” in the Chinese culture can have a different meaning, it can refer to a woman with whom you have a close relationship. I accept this evidence. It was not challenged.

8. The defendants say that Ms Huang borrowed the money and that she used it to fund her purchase of the property at 3 Wearne Avenue Pennant Hills or West Pennant Hills in her sole name. The plaintiffs accept that is what the money was used for.

9. The evidence shows that the money came from the plaintiffs’ joint bank account with the ANZ Bank.

10. It is common ground that Ms Huang signed a written “Loan Agreement” prepared by Mr Ma which was provided to the plaintiffs before the funds were made available in the form of a bank cheque made out to the name of the vendor of the property. Mr Luong says that Mr Ma personally presented the signed agreement to him and his wife. Mr Ma says that he was told by Ms Trieu that she gave the signed agreement to Mr Luong. It is unnecessary to resolve the question of whether Mr Ma or Ms Trieu gave the signed agreement to the plaintiffs, the point is that the plaintiffs accept that it was provided to them before the bank cheque was handed over.

11. The plaintiffs’ bank statement shows that the funds were withdrawn from their joint account on 28 May 2018. A “settlement adjustment sheet” shows that completion of the purchase of the property took place on 30 May 2018. Mr Luong says that he gave the bank cheque to Mr Ma “on or about 28 May 2018”. Mr Ma says that he was told by Ms Trieu on 30 May 2018 that she collected the bank cheque from Mr Luong that day and took it to the settlement. It is unnecessary to determine whether Mr Luong provided the bank cheque on 28 or 30 May. The precise date may be relevant to the calculation of interest and I will return to the question at that time.

12. There is no suggestion that Ms Huang had any meetings or conversations with either Ms Le or Mr Luong before the money was advanced. She gave unchallenged evidence that she had no recollection of personally meeting Mr Luong or Ms Le. She left Mr Ma to deal with the plaintiffs on her behalf.

13. The written agreement signed by Ms Huang (CB 50 – 51) stated that it was an agreement between Ms Huang as “ Borrower” and Ms Le as “Lender”.

14. Ms Le accepted in cross-examination that she agreed to lend the $380,000 to Ms Huang (T53) and that the loan agreement signed by Ms Huang contained the agreed terms (T55, T56).

15. Mr Luong volunteered in cross-examination that “It was (Ms Huang) that borrowed the money” (T 38) and agreed that she was “the only borrower” (T 39).

16. Having regard to those concessions, I find that Mr Ma was not a party to the loan agreement.

17. Ms Huang gave evidence that she instructed Mr Ma to prepare the loan agreement she signed and she understood that Ms Le would sign it too (affidavit paragraph 29, CB 202). Mr Ng, solicitor, who appeared for Ms Huang at the hearing maintained that the written terms were binding.

18. Mr Luong gave evidence in his affidavit (20 August 2024 paragraphs 15 and 16, CB 42) about the terms of the loan as follows:

“15. Mr Ma had told me that they had already paid a 10% deposit for a property in Pennant Hills, NSW, and were at risk of losing it. Mr Ma said that they (who I believed was a reference to himself and (Ms Huang)) required $380,000 and that he would pay us 2% interest monthly and he will pay us back the principle within 3 months. Mr Maaa said that he would give me a caveat over the Pennant Hills property and that he would be able to repay me after they settle.

16. I agreed to those terms.”

19. Mr Ma gave evidence in his affidavit that initially the loan was meant to be taken by Thi Hoa Trieu, known as Eva. This is the Ms Trieu mentioned earlier. Mr Ma said (Affidavit 25 March 2025 paragraph 24, CB 175):

“24 On or around 18 May 2018, I was told by Ms Trieu that she had had a conversation with Mr Luong who had agreed for Ms Le to provide the required finance to Ms Trieu on the following terms: a $380,000 loan, repayable after three months, at 2% interest per month, with security over the Property. Ms Trieu told me that the interest for the first month interest of $7,600 was to be deducted from the initial loan amount of$380,000.”

20. Mr Luong did not respond to this particular paragraph of Mr Ma’s affidavit other than to say that he did not consider the matters raised in it to be relevant. However, he did say (affidavit in reply 17 June 2025 paragraph 13, CB 160) “that Mr Ma informed (him) that (Ms Trieu) had withdrawn, and that his wife Ms Huang would proceed with the loan”.

21. Leaving aside the question of who was giving and taking the loan, the terms on which both Mr Luong and Mr Ma said it was to be given are remarkably similar. They are also consistent with the written loan agreement signed by Ms Huang and conceded by Ms Le to contain the terms of the agreement with Ms Huang.

22. The terms of the written loan agreement included the following (CB 50, CB 193):

‘1. The Lender grants to the Borrower an unsecured loan of Three Hundred Eighty Thousand Dollars ($380,000.00), hereinafter called the “principal sum”.

2. There is interest for this loan: 2% per month for the period of the 3 months , until the “principal sum” paying off.

3. The Borrower has agreed to allow a Caveat to be registered on the property of the borrower at 3 Wearne Ave, West Pennant Hills NSW 2120 being the whole of the land comprised in Folio Identifier Lot 2 to in DP 532589 by the Lender.’

23. It is necessary to consider what was objectively conveyed by what was done, having regard to the circumstances in which those statements and actions happened: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at [25], per Gaudron, McHugh, Hayne and Callinan JJ.

24. In all the circumstances, and having regard to the foregoing matters in particular, I find that the loan agreement was made between Ms Le and Ms Huang and that the terms of that agreement included terms 1, 2 and 3 of the written document.

B. Was simple or compound interest payable?

The issue and the parties’ submissions

25. The plaintiffs claimed that compound interest was payable on the loan.

26. The plaintiffs had pleaded in their statement of claim that there were implied terms of the loan agreement, firstly (paragraph 17) that interest will be payable monthly in advance and secondly (paragraph 18) that interest at 2% per month is payable on interest owing and payable but not yet paid. It was stated in particulars to the first implied term that the term was to be implied by Mr Ma’s instruction to Mr Luong to cause the first month’s interest to be deducted from the advance amount. It was stated in particulars to the second implied term that the term was implied by the first implied term that interest was to be payable monthly in advance and by the capitalisation of unpaid interest to the principal sum on the same terms as the principal sum.

27. In their opening written submissions, the plaintiffs submitted (paragraphs 24 and 25) that whether interest is to be calculated on a simple or compound basis depends on the true construction of the contract, read in light of the surrounding circumstances, and that there is no presumption that interest payable on a loan made by a private lender is to be calculated as either simple or compound interest, citing Morton v Elgin-Stuczynski (2008) 19 VR 294 per Neave JA at paragraphs [27] and [28]. In closing oral submissions counsel for the plaintiffs described it as a construction point.

28. In their opening written submissions, the plaintiffs submitted (paragraph 27) that interest was payable on a compounding basis because the commercial logic of the defendants’ hypothesis that they were permitted to repay principal in priority to interest must also imply that interest was payable on interest. Otherwise that would give rise to an irrational arbitrage which deprives the lender of an essential term of their bargain. These submissions were restated and developed further in the plaintiff’s written closing submissions (paragraph 18). In oral closing submissions counsel submitted that these considerations gave rise to the pleaded implied terms (Transcript 162-163).

29. The defendants submitted that whether interest should be calculated on a simple interest or compound interest basis depends on and only depends on the terms of the agreement, express or implied. The defendants cited National Bank of Greece S.A. v Pinios Shipping Co. No.1 [1990] 1 AC 637.

My analysis

30. I do not accept the plaintiffs’ submission that the pleaded terms were implied terms of the agreement between Ms Le and Ms Huang. Whilst Ms Le and Ms Huang did sign the written document, it is apparent that they did not attempt to spell out the full terms of their contract or reduce it to a complete written form. In those circumstances the question is whether the implication of the particular term is necessary for the reasonable or effective operation of the contract in the circumstances of the case: see e.g. Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq*)* (2000) 202 CLR 588 at 610 [46] and Hawkins v Clayton (1988) 164 CLR 539 at 573. In my view, neither of the pleaded implied terms were necessary for the reasonable or effective operation of the contract. It was not really argued that they were.

31. That takes me to what counsel for the plaintiffs referred to as the construction point.

32. The applicable legal principles were surveyed by Rees J in Export Group International Pty Ltd v TransAction Solutions Ltd (No 2) [2025] NSWSC 795 at [13]-[19], including reference to Morton v Elgin-Stuczynski. Her Honour summarised the position as follows at [19]:

‘Whatever adjective is deployed, whether it be “actual agreement” (as in Daniell v Sinclair) or “clear agreement (as in Bakker v Chanbri), the same basic question is posed: what did the parties agree? The usual principles of contractual construction apply. If the parties did not agree that interest would be calculated on a compound basis, then the parties are not entitled to it.’

33. Term 2 of the written document provided that ‘There is interest for this loan: 2% per month for the period of the 3 months , until the “principal sum” paying off.’.

34. Term 2 of the written document records that Ms Le and Ms Huang agreed, in effect, that interest would be payable on the principal sum of $380,000 until it had been “paid off”, in other words until it had been repaid in full.

35. I do not accept the defendants’ submission (Exhibit 1 pages 6 – 7) that term 2 of the written document means that the parties agreed that interest was to be paid 2% for a period of 3 months after which interest stops. In my view the reference to “the period of the 3 months” is a reference to the anticipated duration of the loan rather than the duration for which interest was to be payable; interest was to be payable until the $380,000 had been paid off.

36. In my view, Ms Le and Ms Huang did not agree that interest would be calculated on a compound basis.

37. There being no agreement that interest would be calculated on a compound basis, Ms Le is not entitled to it. She is only entitled to simple interest.

C. Payments made

38. It is common ground that the following amounts were paid into the plaintiff’s joint bank account on the following dates:

| Payment number | Date of payment | Amount of payment $ | | (i) | 23.1.19 | 50,000 | | (ii) | 12.2.19 | 7,600 | | (iii) | 15.7.19 | 40,000 | | (iv) | 18.7.19 | 1,200 | | (v) | 31.7.19 | 7,600 | | (vi) | 12.10.19 | 3,000 | | (vii) | 15.4.20 | 50,200 | | (viii) | 14.12.20 | 50,000 | | (ix) | 14.12.20 | 50,000 | | (x) | 23.11.21 | 50,000 | | (xi) | 5.6.22 | 50,000 | | (xii) | 6.6.22 | 129,800 |

39. Ms Huang gave unchallenged evidence, which I accept, that she made the payments. The dates in the above table are the dates on which Ms Huang said she paid the money into the plaintiffs’ account. A number of the payments were credited to the plaintiffs’ account the day after.

40. It is common ground that payments (i) to (vi) were for the payment of interest.

41. Ms Huang asserts, and the plaintiffs dispute, that the other payments, payments (vii) to (xii) totalling $380,000, were for the payment of principal.

D. Appropriation of payments - principal or interest?

The issue and the parties’ submissions

42. Ms Huang asserted in her defence that payments (vii) to (xii) were “repayments” of the “Loan Amount”, i.e. the $380,000, as distinct from “payments of interest”, and on that basis the loan “had been repaid in full” (Amended Defence paragraph 27 c.). As a consequence, she denied that there was any amount owing (Amended Defence paragraph 28 a.).

43. The plaintiffs did not accept that Ms Huang had the right to allocate her payments to principal at a time when there was still interest overdue and unpaid. The plaintiffs asserted that any payments made were to be applied first to the outstanding interest before they could be applied to principal: plaintiffs’ opening (Transcript pages 15 and 17).

44. In his written opening and closing submissions, counsel for the plaintiffs identified the issue by reference to the question: “Was the borrower, or were the borrowers, entitled to make repayment of principal in priority to outstanding interest?”. The defendants accepted that this was the relevant issue.

45. Counsel for the plaintiffs submitted that the court should adopt the position adopted by Sweeney DCJ in Que Capital Pty Ltd v Meuller [2015] WADC 6 at [279]-[284]. In that case, the loan agreement was silent on the manner in which repayments were to be treated (at [282]). Her Honour considered that general authorities to the effect that a creditor may appropriate a payment to whatever debt he chooses, unless a stipulation has been made by the debtor, were not quite on point (at [279]). For want of any authority justifying taking a different course, her Honour accepted “…the logic of the proposition that repayments are to be taken as paying any outstanding interest first, unless the parties have otherwise contracted, because otherwise the principal sum could be repaid in full leaving only outstanding interest payments which do not attract any interest themselves. While ever the principal sum remains outstanding, the borrower has had the use of it and can make use of it to earn interest himself or, as in this case, to renovate a restaurant with the potential to then increase his potential earnings from that restaurant, and should therefore pay interest on it himself” (at [283). Her Honour said “Accordingly, the debt is to be calculated on the basis that the repayments reduced the outstanding interest first, given that the outstanding interest was greater than the amount repaid, and that interest continued to accrue on the full principal sum.” (at [284]).

46. Counsel submitted that it is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract: Butt v McDonald (1896) 7 QLJ 68 at 70-71 per Griffith CJ. Counsel submitted that a term permitting repayment of principal before interest would be inconsistent with the essential elements of the bargain by depriving the lender of interest as compensation for the use of the lender’s money by the borrowers.

47. Counsel submitted that the principles that may permit a debtor to appropriate payment towards one debt as opposed to another debt that they owe to the lender has no role to play when there is but one cause of action and one indebtedness for aggregate principal and interest. If the creditor sued only for the interest and obtained judgment for the interest, their cause of action to recover the aggregate principal and interest would be the subject of merger. There is one agreement, one loan, one cause of action, and one indebtedness of the debtor to the creditor. The debtor does not have a right to appropriate payment towards different components of the indebtedness.

48. Counsel submitted that Mr Luong rejected the notion that Mr Ma could make repayment of principal before interest. In that regard, counsel referred to Mr Luong’s text message to Mr Ma at 10:48:56 am on 23 November 2021, in which he said: “That not how it work mr ma. Thats very tricky. Who pay principle before interest. Everything have to goes interest before principles.” (CB106). This was in response to Mr Ma’s text message at 9.45:07 am, in which he had said: “we have paid you $50000+$50000 on 14/12/2020 for principle repayment today we will pay other $50000 for principle as well total =$150,000.00 the balance of principle plus amount of interest will pay off once the ReFinance monies arrive into our bank account … please calculate new interest as from tomorrow” (CB106).

49. Mr Ng who appeared for the defendants submitted that the evidence shows that Ms Huang had made a number of payments to the plaintiffs that she characterised or described as interest payments and a number of payments that she characterised or described when making the transfer as payments towards principal or capital. As I understood it, based on her pleaded defence, Ms Huang asserted that her characterisation or description of payments as either interest or principal was binding on Ms Le. The defendants did not refer to any term of the contract or legal principle to justify that conclusion.

Legal principles

50. The relevant principles concern what Neuberger LJ referred to as the law of appropriation in Thomas v Ken Thomas Ltd [2007] Bus LR 429 at 435 [19], [2006] EWCA Civ 1504 at [19]. They are stated by reference to contracts generally in Chitty on Contracts, 36th ed (2025) volume 1 paragraphs 25-058 to 25-066 and in The Laws of Australia (Westlaw Thomson Reuters online), 7.Contract: General Principles at [7.5.490] to [7.5.520], and by reference to mortgages in Tyler, Young & Croft Fisher & Lightwood’s Law of Mortgage 3**rd Australian Edition (2014, LexisNexis Butterworths) at paragraphs 32.51 to 32.53.

51. The principles are usually called into play where a debtor owes several separate debts to a creditor. The general principle is stated in Chitty at paragraph 25-058 as follows, omitting footnotes: “Where several separate debts are due from the debtor to the creditor, the debtor may, when making a payment, appropriate the money paid to a particular debt or debts, and if the creditor accepts the payment so appropriated, he must apply it in the manner directed by the debtor; if, however, the debtor makes no appropriation when making the payment, the creditor may do so.”. The same principles apply in Australia, see for example The Laws of Australia at [7.5.490] – [7.5.500], Healey v Commonwealth Bank of Australia [1998] NSWCA 103 and Re Walsh, Ex parte Deputy Commissioner of Taxation (NSW) (1982) 42 ALR 727.

52. However, according to the High Court the principles have a more general application to payments received “generally on account of a debt, which is in part interest and in part principal”: Falk v Haugh (1935) 53 CLR 163 at 173 per Rich, Dixon, Evatt & McTiernan JJ. Their Honours said (at 173-174, omitting footnotes):

‘It has long been a rule that when payments are received generally on account of a debt, which is in part interest and in part principal, they are treated as applicable to interest in priority to principal. In Crisp v. Bluck (1) a bond creditor received some payments, and afterwards recovered judgment. It was decreed that the payments ought to go in discharge of the interest first. The rule was again enunciated by Lord Keeper Wright in Chase v. Box (2). It has, however, been little discussed. The most recent statement of the rule is contained in Venkatadri Appa Row v. Parthasarthi Appa Row (3). There Lord Buckmaster said (4) :- "There is a debt due that carries interest. There are moneys that are received without a definite appropriation on the one side or the other, and the rule which is well established in ordinary cases is that in those circumstances the money is first applied in payment of interest and then when that is satisfied in payment of capital. That rule is referred to by Rigby L.J. in the case of Parr's Banking Co. v. Yates (5) in these words:-'The defendant's counsel relied on the old rule that does, no doubt, apply to many cases, namely, that, where both principal and interest are due, the sums paid on account must be applied first to interest. That rule, where it is applicable, is only common justice. To apply the sums paid to principal where interest has accrued upon the debt, and is not paid, would be depriving the creditor of the benefit to which he is entitled under his contract.' " (See too Bamundoss Mookerjea v. Omeish Chunrler Raee (6).) The rule affords only a presumption in the absence of any actual or express appropriation by the debtor or the creditor. But it is treated by text writers as a rule governing the application of payments in respect of mortgage moneys … .’

53. The general principle is stated in a similar way in Chitty on Contracts 36th ed (2025) volume 1 at paragraph 25-066 under the heading “Appropriation as between principal and interest” (omitting footnotes):

“Where there is no appropriation by either debtor or creditor in the case of a debt bearing interest, the law will (unless a contrary intention appears) apply the payment to discharge any interest due before applying it to the earliest items of principal.”

54. Chitty explains at paragraph 25-059 that it is essential that an appropriation by the debtor should take the form of a communication, express or implied, to the creditor of the debtor’s intention to appropriate the payment to a specified debt (or debts), so that the creditor may know that his rights of appropriation as creditor cannot arise. The intention of the debtor to make the appropriation must be clearly established on an objective view of all the circumstances of the case as known to both parties.

55. The Laws of Australia explain at paragraph [7.5.490] that an appropriation by the debtor can be inferred from the circumstances in which the payment in question was made. The facts and circumstances upon or by reference to which an inference or appropriation is sought to be drawn must be known to both the creditor and the debtor.

56. In Khandanpour v Chambers [2019] EWCA Civ 570 Males LJ said at [25] and [27] (Sir Timothy Lloyd agreeing), it is clear that a debtor’s intention to appropriate a payment to a particular debt may be inferred from the circumstances known to both parties. What matters is that in light of all the circumstances, and viewing the matter objectively, there should be no doubt about the debtor’s intention.

Chronology of events surrounding the making of the payments

57. The payments in issue are payments (vii) to (xii).

58. Those payments, together with the earlier payments, are recorded on the plaintiffs’ ANZ bank statements. The bank statements record descriptions for a number of the payments which I infer would have been given to the ANZ bank by the person making the payment or electronic transfer of funds.

59. As I understand it, Ms Huang relies principally, if not totally, on the descriptions given in the plaintiffs’ ANZ bank statements as being her characterisation or description of the payment as being either for interest or principal. I infer that each relevant description was provided to the ANZ bank by Ms Huang as the person making the payment. It is necessary, however, to understand the characterisations or descriptions of each payment in light of the surrounding circumstances known to both parties. I will address those now in chronological order.

60. Payment (i) for $50,000 on 22 January 2019 was shown on the plaintiffs’ ANZ bank statement with the description “DEPOSIT” (CB88).

61. This payment was preceded by a great number of WhatsApp messages exchanged between Mr Luong and Mr Ma between 19 December 2018 (CB 58) and 10 January 2019 (CB 77). There were also brief text messages exchanged between Ms Le and Ms Huang on 8 January 2019.

62. There is no suggestion that Ms Huang appropriated the payment to either interest or principal. It is common ground that payment (i) was for interest.

63. On a date sometime before 30 January 2019, Mr Ma sent Mr Luong two photos of a deposit receipt issued by the ANZ Bank for the 22 January deposit of $50,000 (CB 115).

64. On 30 January 2019 Mr Luong sent Mr Ma a text message stating “Interest $7,600 x 7 equals $53,200 (up to 24/1/2019) Balance is $3200 plus $7600 is $10800. Please transfer me the amount thanks” (CB 115). The importance of Mr Luong’s calculations in this message is that he applied the $50,000 deposited on 22 January to the payment of interest.

65. On 7 February 2019 Mr Luong sent Mr Ma a text message stating “$10,800 interest, this amount will last until before 24/2/19 I’ll wait until Monday and see” (CB 115).

66. On 11 February 2019 at 1:36:16 PM Mr Luong sent Mr Ma a text message stating “still not receive it yet” (CB 115). On 11 February 2019 at 5:46 PM Ms Le sent Ms Huang a message saying “Don’t freaking play around with me” and “Are you wanna play game???” (CB151). Ms Huang did not reply to the message. (The next message that Ms Le sent to Ms Huang was on 21 August 2019.) On 11 February 2019 at 5:55:30 p.m. Mr Ma sent Mr Luong a text message about a failed attempt to transfer $7,600 for an “interest payment” (CB116).

67. Payment (ii) for $7,600 on 12 February 2019 was shown with the transaction description “TRANSFER FROM 3 PENNANT HILLS INTEREST 3PENNANT” (CB89).

68. It is common ground that payment (ii) was for interest and that is consistent with the description on the plaintiffs’ bank statement.

69. On 3 June 2019 there was a missed voice call between Mr Luong and Mr Ma (CB 77).

70. Payment (iii) for $40,000 on 15 July 2019 was shown on the plaintiffs’ ANZ bank statement with the description “DEPOSIT” (CB91).

71. There is no suggestion that Ms Huang appropriated the payment to either interest or principal. It is common ground that payment (iii) was for interest.

72. On 18 July 2019 there was a missed video call between Mr Luong and Mr Ma (CB77).

73. Payment (iv) for $1,200 on 18 July 2019 was shown on the plaintiffs’ ANZ bank statement with the description “FROM CYN INTEREST” (91).

74. It is common ground that payment (iv) was for interest and that is consistent with the description on the plaintiffs’ bank statement.

75. Payment (v) for $7,600 on 31 July 2019 was shown on the plaintiffs’ ANZ bank statement with the description “FROM CYNTHIA JIAN ER PENNANT HILLS INTER” (CB 91).

76. I infer that “INTER” is short for “interest”. It is common ground that payment (v) was for interest and that is consistent with the description on the plaintiffs’ bank statement.

77. On 21 August 2019 Ms Le sent Ms Huang a message saying: “Your next interest payment $7,600 will be due on this Saturday 24/8/2019, PLEASE make the payment ON TIME without any EXCUSES of delay.” (CB151) Ms Huang did not reply.

78. On 10 September 2019 there was a missed voice call between Mr Luong and Mr Ma (CB 77). On 10, 11 and 15 September 2019 Mr Luong and Mr Ma exchanged messages (CB 117).

79. On 21 September 2019 Mr Ma sent Mr Luong a screenshot showing an aerial photograph of 3 Wearne Avenue Pennant Hills (CB 78).

80. On 22 September 2019 Mr Luong sent Mr Ma a WhatsApp message saying “Mr Ma please tell your wife pay on time. I don’t want my wife go crazy about this interest” (CB 78). Mr Ma replied “okay I will tell her if she pay late please text to me” (CB 78).

81. Mr Luong and Mr Ma exchanged a series of WhatsApp messages on 22 September 2019, 23 September 2019, 24 September 2019, 25 September 2019, 26 September 2019, 27 September 2019, 28 September 2019, 29 September 2019, 30 September 2019, 1 October 2019 (CB78-CB82).

82. On 8 October 2019 there was a missed voice call between Mr Luong and Mr Ma (CB 82).

83. Payment (vi) for $3,000 on 12 October 2019 was shown on the plaintiffs’ ANZ bank statement with the description “FROM CYNTHIA HUANG INTEREST PAYMENT” (CB 92).

84. It is common ground that payment (vi) was for interest and that is consistent with the description on the plaintiffs’ bank statement.

85. On 26 December 2019 Mr Luong sent Mr Ma a WhatsApp message saying “Mr Ma just update till today is $32800” and Mr Ma replied “ok received it no problem” (CB 82).

86. On 6 January 2020 Mr Luong and Mr Ma exchanged WhatsApp messages (CB 82).

87. On 4 April 2020 there was a missed voice call between Mr Luong and Mr Ma (CB 82).

88. On 7 April 2020 Ms Le sent Ms Huang a message saying: “Up to today total amount that u are owing me is $435,600 Don't muck around ok” (CB151).

89. On 9 April 2020 Mr Luong sent Mr Ma a message (CB120) saying:

“Mr ma the amount you owe me up to today is

$42940 + feb + march

$42940 + 15200 + 380000 = 438140

Thanks”

Mr Ma replied “no problem” with a thumbs up (CB120).

90. Mr Luong and Mr Ma exchanged further messages on 10 and 11 April 2020, the last one from Mr Luong saying: “So where is the money” (CB120).

91. On 14 April 2020 at 6:58:08 PM Mr Ma sent Mr Luong a text message with a photo or screenshot of a Westpac payment and asked the question “is this the last payment for the interest??” to which Mr Luong replied “Base on my account is on 14/10/19 $3k”. Mr Ma replied” okay” (CB 102). Mr Luong sent two more messages to Mr Ma, being “Are you transform now” and “Why don’t you pay” (CB 102).

92. On 15 April 2020 Mr Luong and Mr Ma exchanged further messages, the first of which was from Mr Luong saying “I dont understand what do you need to work out. What ever you got minus interest the rest is principal. What so hard. Clear us out. Then everything is your. Is our money. Why keep” (CB 102).

93. Payment (vii) for $50,200 on 15 April 2020 was shown on the plaintiffs’ ANZ bank statement with the “Transaction description”… “FROM CYNTHIA HUANG PENNANT HILLS” (CB 94). The bank statement shows that the money was credited to the plaintiffs’ account on 16 April 2020 and an identical amount was transferred out of the account on the same day.

94. On 20 April 2020 Mr Luong sent Mr Ma photo of a handwritten table with a notation at the bottom stating “total $7,600 x 22 = $167,200 but you only transferred total $159,600 up to today” (CB 83).

95. On 21 April 2020 there were two missed voice calls between Mr Luong and Mr Ma (CB 83).

96. Payment (viii) for $50,000 on 14 December 2020 shown on the plaintiffs’ ANZ bank statement transaction description: “TRANSFER FROM CYNTHIA JIAN ER REPAYMENT CAPITAL” (emphasis added) (CB96).

97. Payment (ix) for $50,000 on 14 December 2020 was shown on the plaintiffs’ ANZ bank statement with the same transaction description: “TRANSFER FROM CYNTHIA JIAN ER REPAYMENT CAPITAL” (emphasis added) (CB96).

98. On 14 December 2020 Mr Ma sent Mr Luong a message with a photo or screenshot of a “Payment summary” from the payer bank (Westpac) for one of the 2 transfers of $50,000 on that day. The summary included the words: “Description REPAYMENT CAPITAL” (CB104).

99. On 22 November 2021 at 7:49:26 PM Mr Luong sent Mr Ma message saying: “How much ubtransfer” (CB106).

100. On 23 November 2021 Mr Ma and Mr Luong exchanged the following messages CB106-107:

Mr Ma to Mr Luong at 9:45:07 AM:

“we have paid you $50000+$50000 on 14/12/2020 for principle repayment today we will pay other $50000 for principle as well total =$150,000.00 the balance of principle plus amount of interest will pay off once the ReFinance monies arrive into our bank account please calculate new interest as from tomorrow”

Mr Luong to Mr Ma at 10:48:56 AM:

“That not how it work mr ma. Thats very tricky. Who pay principle before interest. Everything have to goes interest before principles.”

Mr Ma to Mr Luong:

“more easy to calculate because monies will arrive shortly not long”

Mr Luong to Mr Ma:

“Once your finance done. We will work out. Even the fifty grand u transfer cant even write off the interest.

The total up today interest is $52000. Not $50000

I dont even see the transfers”

101. The next message in sequence was from Mr Ma to Mr Luong the following morning, 24 November 2021 at 8:27:41 AM (CB107). The content of the message was a photo or screenshot of a document with, I assume, Chinese characters and English. The numbers and English indicate that it was a record of the payment made on 23 November 2021 by Ms Huang to the plaintiffs’ joint ANZ bank account for the sum of $50,000. The words in English at the foot of the page are “PRINCIPLE PAYMENT” (CB 107).

102. Payment (x) for $50,000 on 23 November 2021 was shown on the plaintiffs’ ANZ bank statement with the transaction description: “TRANSFER FROM CYNTHIA JIAN ER PRINCIPLE PAYMENT” (emphasis added) (CB98).

103. On 2 February 2022 Mr Luong and Mr Ma exchanged the following text messages (CB125):

Mr Ma to Mr Luong at 5:03:55 PM:

“today the bank told us we will have enough funds to pay off the balance of the principle amount”

Mr Luong replied:

“I will send u the full amount”

Mr Luong to Mr Ma at 7:05:37 PM:

“This time you have to pay me all. Principle plus interest. I dont want to drag anymore. Do not put us into this sort of dragging game again. We want to out of this non sense game. Borrow and pay later. We not afterpay

The full figure is $404800. Not included the pass 28/2. If so you have to add $7600 into the full amount. If keep on dragging

If you keep on dragging. Interest will keep on going until full figure payout. Dont do pay me principle keep on dragging interest until u good and happy to pay

If transfer before 11/2/2022

Then we will don't charge you this month, which means

$404,800 - 7,600 = $397,200”

104. On 16 March 2022 Mr Luong and Mr Ma exchanged the following text messages (CB126):

Mr Luong to Mr Ma at 2:33:30 PM:

“You have tell me everything. Or else transfer me the interest. Too much Mr Ma. Keep on making up story.

I think everyone is scare of you people. No one will help you even if they able to.

Pay me interest if no results by today. I will send the amount. Is close to April now. I think u should have enough to cover your interest. Do not drag until auction”

Mr Ma in reply:

“we can sale this over 1.7 m but already apply for refinace to get funds to pay you plus interest as well”

Mr Luong in return:

“Good for you. But thats not the point. Reason for lending is interest. Wait I can but too long. Plus always dragging behind interest. Thats why we sicken tired of this bullshit. Vice versa. lam not here to argue”

105. On 21 March 2022 at 12:37:03 AM Mr Luong sent Mr Ma a text message saying (CB126):

“Mr Ma. Just pay me my interest. I don't think u get pay anyway. Bank will not keep on dragging on and on. Never heard of it. Either u just making up story. I just can't think how u gonna get those amount to pay me. Pay me interest for now total is $40000. Up to this months total is $40000.”

106. On 22 March 2022 Ms Le sent a text message to Ms Huang saying: “You are fucking bitch indeed, rubbish old woman” (CB152).

107. On 24 March 2022 Mr Luong sent Mr Ma a text message saying: “Did you transfer the money Fucking stop dragging around Every time ask to pay. Like a mission. Very bad attitude. And you people are professional white colar. What a joke” (CB127).

108. On 28 March 2022 Mr Ma sent Mr Luong a text message saying: “the property value has been increased more than enough to pay back your monies & interest as well” (CB127). Mr Luong commenced his reply by saying: “I am not concerning any thing of that. I want my money. Thats good for you” (CB128).

109. On 28, 29 and 30 March 2022 Mr Luong sent Mr Ma a series of text messages expressing his frustration with the defendants in strong terms (CB128).

110. Mr Luong gave evidence that in April 2022 Mr Ma told him that they were refinancing and would be able to repay the loan. Mr Ma gave evidence that he had told Mr Luong that Ms Huang was in the process of obtaining refinance to pay all of the debt owing to Ms Le and additional finance for Ms Huang to pay for the subdivision of the property.

111. Mr Luong gave evidence, which was not disputed and I accept, that on 19 April 2022 Mr Ma sent him a picture of a loan application and that Mr Ma told him in a text message on 12 May 2022 that loan documents had been signed and sent waiting for settlement. Mr Ma sent Mr Luong more pictures of documentation following that message.

112. Mr Ma gave disputed evidence (affidavit paragraph 42) that in subsequent conversations with Mr Luong, Mr Luong agreed to waive any further payments of interest. Mr Ma said that he recalled a conversation with Mr Luong in early 2022 during which Mr Ma said words to the following effect “I am calling you to let you know that Cynthia’s finances have improved, and you should expect substantial payments of the principal” and Mr Luong replied in words to the following effect “Thankyou Ma, my main concern is that the principle be repaid, and I’m not concerned about any further interest.”. Mr Ma said (paragraph 43) that he recalled there were other similar conversations with Mr Luong where he expressed that his main concern was the repayment of the principal owing. I am not satisfied that the conversations that Mr Ma gives evidence of in paragraphs 42 and 43 of his affidavit took place. There is no reference to them in the many contemporaneous exchanges of WhatsApp and text messages. To the contrary, the contemporaneous messages show that Mr Luong was pursuing the payment of interest at the time these conversations are said to have taken place – see by way of example messages from Mr Luong to Mr Ma on 2 February 2022 (CB 126), Mr Luong to Mr Ma 16 March 2022 (CB 126), Mr Ma to Mr Luong 16 March 2022 (CB 126), Mr Luong to Mr Ma 21 March 2022 (CB 126), Mr Ma to Mr Luong 28 March 2022 (CB 127), Mr Luong to Mr Ma 30 March 2022 (CB 128) and Mr Luong to Mr Ma 2 June 2022 (CB 138).

113. On 2 June 2022 at 12:51:23 PM Mr Luong sent Mr Ma a text message saying: “Ma 47,600 + 380,000 = 427,600 The interest is charged up to 28/5/2022 ONLY” (CB138).

114. Mr Luong sent further text message at 8:43:49 PM (CB138):

“Please clear all this mess up. Do not try to pay me and leave some behind. And take time to pay slowly. Cause i know it will not happen. People pay never miss. U pay never hit. Last asking for interest. Until now nothing. I dont know what to say. we are praying every night ask god to help us to take money back. Now have weir thinking. All because of this. Please release us. We dont want this stupid game anymore. We are not this type of people. We not design for this.

We are begging god every night

To help us out”

115. On 3 June 2022 at 2:39:52 PM Mr Luong sent Ma a text message saying “When settle transfer for me. Dont know what u need to calculate. They only months by months interest. And iam sure u know how much u have transfer for me. U know it. Please dont keep on dragging “, and Mr Ma replied “settlement will finish at 4.30 pm” (CB138).

116. On Saturday 4 June 2022 at 7:20:44 AM Mr Luong sent Mr Ma a text message saying (C138):

“Only these few months and the principle. what u need to calculate so long. Let get rip of these problem

Very hard to take money back.

Lend money u just need to said one word. I do

Take back look at all of these conversation. This is ridiculous”

117. On 4 June 2022 at 7:43 AM Ms Le sent a message to Ms Huang saying: “Where is all my money??? Where is all my money??? Don’t fucking play game with me, Bitch!” (CB152).

118. On 4 June 2022 at 9:02:37 AM Mr Luong sent Mr Ma a text message (CB138) saying:

“Do not dragging. Please pay us all back. Ask other people to lend me you. We want out. So sick. Could not sleep. This fucking business is worst thing ever. Is a fuck up business. Only Violence can sold this shit”.

119. On 4 June 2022 Mr Luong sent Mr Ma a series of WhatsApp messages (CB84) saying:

“At least u have to transfer us a bit. To calm the issues. Not wait for you to calculate. If u handle issue like this. u not mature. Tell us yo wait. Do not sit on top of us. Is not nice. (10:10:24 AM ✓✓)

U a legal person. I respect u. I believe u do respect yourself too. We don’t want enermy (10:11:43 AM ✓✓)

If u want to keep on dragging. Transfer me some first (2:18:27 PM ✓✓)

I dont know what calculate u have to do (2:19:05 PM ✓✓)

All is how much o borrow and how much u pay. Thats the amount. Why drag

(2:20:10 PM ✓✓)

120. On 4 June 2022 at 2:26:29 PM Mr Luong sent Mr Ma a text message (CB139) saying:

“Why not pick up call

U said settle money to pay me. Why u keep for.

Work out for how long.

Is look like u dont have any power over this. Mate u the man

I know you might just be a messenger

I think it will take months to do payments.”

121. On 4 June 2022 Mr Luong sent Mr Ma further WhatsApp messages (CB84) saying:

I know u good man. I heard. Only the behind ia fuck up (2:47:38 PM ✓✓)

Now u dont pick up phone all because of this reason. (2:49:12 PM ✓✓)

122. On 4 June 2022 at 6:33:10 PM Mr Luong sent Mr Ma a text message (CB139) saying:

“Your behind are absolutely not normal. Got money dont want to pay.

Keep on hold on to our money. What for. U like to pay interest

Simple calculation still dragging. U dont need scientist to do this

Or you people just want to hold on to kiss it. You people allrite

You people money sick

Why u block my number

You people are fucking sick in the head

Legal firm owe money. Dant pick up call. World geniuses

Try every possible way to run aways

Are u going to run away

You and your fucking wife is same. Pretending

I have rung her.

She pretend like none of her fucking business”

123. On 4 June 2022 Mr Luong sent Mr Ma further WhatsApp messages (CB84) saying:

You people ok. Sick or crazy got too much to throw around. (6:38:28 PM ✓✓)

Just pay me and throw extra to do charity. People will love u guy. I dont need extra. Just whatever belong to me (6:39:13 PM ✓✓)

124. On 4 June 2022 at 8:59:48 PM Mr Luong sent Mr Ma a text message (CB140) saying:

“Both of you are fucking dog.

Both of you try to hidez

I will come over to on Monday

Fuck you all mateo”

125. On 4 June 2022 Mr Luong sent Mr Ma further WhatsApp messages (CB84) saying:

I see you on Monday mate (9:15:29 PM ✓✓)

Fuck you all (9:15:36 PM ✓✓)

Motherfucker (9:15:42 PM ✓✓)”

126. On Sunday 5 June 2022 at 1:16:56 AM Mr Ma sent Mr Luong a text message of a photo or screenshot of a Westpac “Payment summary” for the payment of $50,000 into the plaintiffs’ joint account with the description “PRINCIPAL” (CB140).

127. Payment (xi) for $50,000 on 5 June 2022 was shown on the plaintiffs’ ANZ bank statement with the transaction description “TRANSFER FROM CYNTHIA HUANG PRINCIPAL” (emphasis added) (CB100).

128. The evidence does not disclose the time it was sent, but at some time before 8:00 am on 5 June 2022 Mr Luong received from Mr Ma pictures of a document Mr Luong says, and I accept, he had not seen before. The document (CB109) listed 6 payments totalling $109,400 under the heading “INTEREST PAID RECORD:”. The 6 listed payments are payments (i) to (vi) in the table I set out at paragraph 38 of these reasons. The document then listed 5 payments totalling $250,200 under the heading “PRINCIPAL PAYMENT RECORD:”. The 5 listed payments are payments (vii) to (xi) in the table at paragraph 36. The last of those 5 listed payments was the payment of $50,000 on 5 June 2022. The document then stated:

“Due to the internet transition limitation, an amount of $129,800 cannot be transferred by Internet again and it has to be transferred to your account 012228 – XXXXXXXXX on next Monday by bank counter”.

The maths was not set out in the document, but the significance of the amount of $129,800 was that when it was added to the previously mentioned figure of $250,200, the total would be $380,000, being the amount of the original loan.

129. At 8:00:52 AM on 5 June 2022 Mr Luong sent Mr Ma a text message about the lists of payments Mr Ma had sent him: “There is nothing call pay principle than interest. Dont fuck around like this” (CB109).

130. Starting at about 2.32 pm on 5 June 2022 Mr Luong sent Mr Ma a further series of WhatsApp messages (CB85) saying:

“You such dog. Thats how you tricked me to runs away with interest. Pay all

principle and drag interest with out paying interest on interest.

2:32:09 PM ✓✓

You have said on $100000 on principle not all ok.

2:32:38 PM ✓✓

And you the fucking first one start to do this

2:34:55 PM ✓✓

Conversation fall into your trap

2:36:39 PM ✓✓

Thats what u do to people in life. I have trusted u so much.

2:37:53 PM ✓✓”

First disputed telephone conversation

131. Mr Ma gave evidence in his affidavit (paragraph 46, as corrected) that on 6 June 2022 he was in Ms Huang’s office when he rang Mr Luong with his phone on “load” speaker so that Ms Huang could hear. According to Mr Ma, words to the following effect were said:

| Mr Ma | "Cynthia will pay you the final amount of the principal owing today of $129,800 and can we agree that no more interest or principal is owing?" | | Mr Luong | "Yes, agreed. Are you sure that Cynthia will pay the money today?” | | Mr Ma | "Yes, for sure today." | | Mr Luong | "Then the amount of interest that has already been paid is enough, nothing further." |

132. In his affidavit in reply (paragraph 16) Mr Luong denied that the conversation occurred as Mr Ma alleged. He also denied stating that the amount of interest already paid was sufficient or that no further payment was required. It was put to Mr Ma in cross-examination that the conversation never happened.

133. In his affidavit, Mr Ma said that after the conversation he received the text message at 10:46:16 AM I have referred to below. Mr Luong did not dispute sending the message.

134. Ms Huang gave evidence in her affidavit (paragraph 51) that on 6 June 2022 she was with Mr Ma in her office when Mr Ma rang Mr Luong with his phone on speaker. She said she could hear the conversation and words to the following effect were said:

| Mr Ma | "You will be paid the final amount owing today of $129,800 of the loan.” | | Mr Luong | “Are you sure that Cynthia will pay the money today?” | | Mr Ma | "Yes." | | Mr Luong | "If Cynthia makes the payment today, then the amount of interest that has already been paid is enough, nothing further." |

135. In her affidavit, Ms Huang said that after hearing what Mr Luong said to Mr Ma on the telephone she made the final transfer of $129,800 to Ms Le and Mr Luong’s account that day.

136. Ms Huang was not challenged on her affidavit evidence on these matters.

Returning to the contemporaneous documents

137. On Monday 6 June 2022 at 10:46:16 AM Mr Luong sent Mr Ma a text message saying: “please transfer the amount for me please” and Mr Ma replied “will do today” (CB 109).

138. On 6 June 2022 at 1:59:25 PM Mr Ma sent Mr Luong a text message with a photo of an ANZ bank deposit slip showing the deposit into the plaintiffs’ joint account of the sum of $129,800 on that day (CB163).

139. Payment (xii) for $129,800 on 6 June 2022 was shown on the plaintiffs’ ANZ bank statement with the transaction description “DEPOSIT” (CB100).

140. On 6 June 2022 at 5:20:30 PM Mr Ma sent Mr Luong a text message with a picture or screenshot of a new version of the document he had sent Mr Luong the morning before listing interest and principal paid (CB163). The document was now headed “INTEREST & PRINCIPAL PAYMENT RECORD:”, listed the same 6 payments under the heading “INTEREST PAID RECORD:” totalling $109,400, but added a sixth payment of $129,800 on 6 June 2022 to the “PRINCIPAL PAID RECORD:” then stated “Total paid: $380,000”.

Second disputed telephone conversation

141. Mr Ma gave evidence in his affidavit (paragraph 50) that on 6 June 2022, after sending Mr Luong the new detailed list of payments at 5.20 pm, he contacted Mr Luong by telephone and words to the following effect were said:

| Mr Ma | "Did you receive my screenshots with the payment of $129,800, and the summary of interest and principal payments?” | | Mr Luong | “Yes, I received the screenshots.” | | Mr Ma | "Good, I believe that the loan and interest payments are finalised. If you have any questions then call me to discuss." | | Mr Luong | "Okay." |

142. In his affidavit in reply (paragraph 19), Mr Luong said he did not make the statements alleged by Mr Ma and he denied that such a conversation ever occurred. It was put to Mr Ma in cross-examination that the conversation never happened.

143. It is not in dispute that Mr Luong received the screenshots.

Further contact after 6 June 2022

144. Neither Mr Luong nor Ms Le sent any more WhatsApp or text messages to Mr Ma or Ms Huang about the loan after receiving the payment of $129,800 on 6 June 2022 and after Mr Ma’s text message to Mr Luong at 5.20 pm on 6 June 2022 with the list of payments until Ms Le sent Ms Huang a text message on 15 November 2022.

145. On 15 November 2022 Ms Le sent a text message to Ms Huang (CB169) saying:

“The total amount that Cynthia Jian Er Huang owing me is $255,400AUD

This amount is calculated up to 05 Jun 2022 only.

You must pay this amount immediately or max within 2 weeks from now on to finish the agreement.”

146. In cross-examination, Ms Le could not explain how she arrived at the figure of $255,400AUD.

147. Mr Ma gave undisputed evidence that he did not have any further conversations, text messages, letters or emails from Mr Luong or Ms Le regarding the loan or interest payments after 6 June 2022. Although he said that he did have a number of text messages and phone calls with Mr Luong regarding issues with Ms Trieu until 29 September 2022. This too was not disputed. In fact the first such text message was the very next day, 7 June 2022 (CB163).

My findings about the disputed telephone conversations of 6 June 2022

148. I set out Mr Ma’s, Ms Huang’s and Mr Luong’s evidence about the first disputed telephone conversation on 6 June 2022 earlier – see paragraphs 126 to 131 above.

149. I will start with some observations about the way in which each person gave their evidence in cross-examination.

150. Mr Luong was not an impressive witness. He repeatedly asked the interpreter to translate and read to him long parts of his own affidavit before answering questions that had been asked of him about particular parts of the affidavit. It was very odd that he required his own affidavit to be translated so many times whilst he was in the witness box, when his 2 affidavits were written in English, included many exhibits written in English, many of which were WhatsApp or text messages he himself had written in English, and there was no indication on the face of the affidavits that either one of them had been translated to him before he affirmed them. He was also often argumentative.

151. I accept the submission of counsel for the plaintiffs that Mr Ma was prone to making long speeches. Some of those were non-responsive, or at least extended well beyond the question he was asked. I do not accept the submission that they were rehearsed. He clearly became frustrated by the repeated questioning about his use of the word “solicitor” at the time and in text messages. In my view his frustration was warranted and I would not criticise him for showing his frustration. In my view neither the long answers nor displays of frustration count against his credibility.

152. I have no reason to doubt Ms Huang’s credibility or reliability. She gave her evidence in a straightforward manner. The substance of her evidence was not really challenged.

153. Considering objective matters and the apparent logic of events:

154. Counsel for the plaintiffs submitted that the court would not be satisfied that Mr Luong, between the vitriolic messages he sent to Mr Ma on 4 and 5 June and the conversation on 6 June became a docile and pliable and charitable fellow, agreeable to a voluntary debt forgiveness on Mr Ma’s request simply on the asking. At face value there is some force to the submission, however in my view it is somewhat undermined by a consideration of the events of 4, 5 and 6 June in the full context of what happened both before and after. On Mr Luong’s own evidence, from April 2022 he really tried to apply pressure to Mr Ma to pay because of the refinancing (first affidavit paragraph 54) and as at 6 June 2022 he was “too emotionally drained to keep fighting… (and) was willing at that time to treat this as just an expensive lesson about trusting the wrong person” (first affidavit paragraph 55).

155. Mr Ng submitted for the defendants that if one looks at the pattern of payments, Ms Huang made large payments of $50,000 at a time but the payment she made of $129,800 on 6 June 2022 was 2 ½ times the size of payments she had been making, and was also made after making a payment of $50,000 the day before. Mr Ng submitted that making the larger 2 1/2 times usual payment was out of the ordinary and something must have prompted her to make it. Mr Ng submitted that what prompted her was the representation made by Mr Luong that the payment would be “enough, nothing further”. There is a good deal of force in this submission.

156. Mr Ng submitted that it was significant that once the payment was made, Mr Luong went quiet and stopped pressing Mr Ma for money. In my view, this is highly significant and leads to the strong inference that Mr Luong had got what he bargained for – that is to say the payment of $129,800 in return for assuring Mr Ma and Ms Huang that that was enough, nothing further.

157. The contemporaneous documents are also highly relevant. By 8 o’clock on the morning of 5 June 2022 Mr Luong had seen and read Mr Ma’s document listing interest and principal payments. He would have no doubt noticed the significance of the foreshadowed payment of $129,800 still to come. As I explained earlier, when added to the list of principal payments already made it would bring the total to $380,000, being the amount of the loan. It is likely that before Mr Ma arranged for such a large sum to be paid, and Ms Huang went ahead and made the payment, that they would want some reassurance. Then, the payment having been made and Mr Ma sending an updated list of payments showing that the loan had been repaid in full, one would have expected Mr Luong to have protested or complained that the list was not correct and there was still more money to pay, rather than saying nothing, if he did not agree it was accurate.

158. Having regard to all of those matters, I accept Mr Ma’s and Ms Huang’s evidence about the first disputed telephone conversation. I find that the conversation took place in the circumstances and in the terms set out in their affidavits.

159. I referred to Mr Ma’s and Mr Luong’s evidence about the second disputed telephone conversation on 6 June 2022 earlier – see paragraphs 136 to 138 above.

160. On one view, whether or not the second conversation happened is not so important as the first conversation. That is because the objective evidence shows that Mr Luong received the screenshots – Mr Luong exhibited them to his affidavits. It also showed that Mr Luong had received the updated list of payments. Further the same objective matters apply to the second disputed conversation as to the first. Bearing all of those matters in mind and that I have already accepted Mr Ma’s evidence about the first conversation, I accept Mr Ma’s evidence about the second disputed conversation. I find that it took place in the circumstances and in the terms set out in Mr Ma’s affidavit.

Appropriation of payments (vii) to (xii) ~ findings

157. I return to the issue identified by the parties. The parties identified the issue by the question: was the borrower, or were the borrowers, entitled to make repayment of principal in priority to outstanding interest?

158. I set out the parties’ submissions and the relevant legal principles earlier.

159. Ms Le was entitled to appropriate her payments to principal or interest in accordance with those principles.

160. It was common ground that payments (i) to (vi) were made for the payment of interest. As they were made, some of those payments were expressly appropriated by Ms Le as payments of interest. I have identified those payments in the chronology.

161. Ms Le did not identify or describe payment (vii) for $50,200 on 15 April 2020 as being for interest or principal at the time she made the payment.

162. As I mentioned in the chronology, on 20 April 2020 Mr Luong sent Mr Ma photo of a handwritten table with a notation at the bottom stating “total $7,600 x 22 = $167,200 but you only transferred total $159,600 up to today” (CB 83).

163. In working out that $167,200 worth of interest had accrued as at 20 April 2020, but only $159,600 had been paid, on Mr Luong’s figures the shortfall was $7,600 in interest paid to 20 April 2020. Mr Luong’s “transferred total” of $159,600 represents the total of payments (i) to (vii), payment (vii) being paid on 15 April 2020. In these calculations Mr Luong did not allow for the fact that the first month’s interest payment ($7,600) had been retained from the original advance. Once that is taken into account, on Mr Luong’s figures the interest payments were actually up to date.

164. However, the significance for present purposes of Mr Luong’s message of 20 April is that it communicated to Mr Ma that Mr Luong was treating payment (vii) as a payment of interest.

165. Having regard to those matters I find that Ms Le did not appropriate payment (vii) to principal at the time she made the payment. In those circumstances, in accordance with Falk v Haugh the presumption that the payment should be treated as applicable to interest in priority to principal remained undisturbed. Further, Mr Luong’s treatment of the payment is consistent with his appropriation for Ms Le of the payment to interest, Ms Huang (as debtor) having failed to make an appropriation herself. Either way the same result follows.

166. For those reasons I find that payment (vii) went to payment of interest, not principal.

167. Payments (viii) and (ix), both for $50,000 and both made on 14 December 2020, are in a different category. Ms Le identified both payments as “repayments capital”, in other words as repayment of principal, at the time she made the payments. So much appears from the plaintiffs’ own ANZ bank statements, and from Mr Ma’s message to Mr Luong with a copy of the paying bank’s “Payment summary” for at least one of the payments on the same day. This was sufficient communication to Ms Le of Ms Huang’s intention to appropriate her payments to principal in all the circumstances. Mr Luong’s protest on 23 November 2021, almost a year later, did not affect the position. Ms Huang had already appropriated the payments.

168. For those reasons I find that payments (viii) and (ix) went to payment of principal. They reduced the outstanding principal from $380,000 to $280,000.

169. Payment (x) was made on 23 November 2021. The payment was preceded by an exchange of messages and one message following the payment. I referred to those messages in the chronology. The first message of 23 November 2021 referred to the 2 payments of $50,000 made on 14 December 2020 which were stated to be for “repayment capital” on the bank records at the time (as shown on the bank statements). The first message of 23 November 2021 also said that they will pay another $50,000 today "for principle". Mr Luong then protested, saying this is not how it works and is "very tricky". Notwithstanding this exchange, Ms Huang then proceeded to tell the bank when making the payment that it was a "principle payment” and Mr Ma sent Mr Luong a copy of the banking record making the payment, and that description appeared on the plaintiffs’ joint bank account statement. In closing submissions counsel for the plaintiffs submitted that it was "quite amusing" that notwithstanding Mr Luong's protestations the debtor did not seem to care when describing the payment as a "principle payment" (T145). I do not accept that submission. Given the sequence of events, in my view the inclusion of the description "principle payment" on the banking record at the time of making the payment indicates that the debtor, that is to say Ms Huang, was insisting that she was transferring the funds in order to make a payment of principal, as she had done in December 2020. In doing so, she was exercising her right to appropriate the payment to principal. If Ms Le, or Mr Luong who was acting on her behalf, was unhappy with the appropriation to the extent of not being prepared to accept the money on the basis it was offered, she could have returned it within a reasonable time (:see Thomas v Ken Thomas Ltd [2007] Bus LR 429, [2006] EWCA Civ 1504 at [28]). Once the money was retained on the basis selected by Ms Huang, Ms Le was as matter of law fixed with the appropriation (: Thomas v Ken Thomas Ltd at [28]).

170. For those reasons, I find that payment (x) went to payment of principal. It reduced the outstanding principal from $280,000 to $230,000.

171. The same analysis applies to payment (xi) of $50,000 on 5 June 2022. Notwithstanding Mr Luong’s protestations before and after the payment was made, Ms Huang communicated her intention to appropriate the payment to principal by describing it as a payment of “PRINCIPAL” in the transaction description, which was confirmed in Mr Ma’s text message to Mr Luong on 5 June 2022 at 1:16:56 AM and shown in the “PRINCIPAL PAYMENT RECORD” Mr Ma sent to Mr Luong before 8.00 am on 5 June 2022. If Ms Le, or Mr Luong acting on her behalf, was unhappy with the appropriation she could have returned it within a reasonable time, but did not. Once the money was retained on the basis selected by Ms Huang, Ms Le was as matter of law fixed with the appropriation.

172. For those reasons, I find that payment (xi) went to payment of principal. It reduced the outstanding principal from $230,000 to $180,000.

173. The same analysis would apply to payment (xii) of $129,800 on 6 June 2022. Ms Huang communicated her intention to appropriate the payment to principal, first by inference or implication from list of payments Mr Ma sent Mr Luong some time before 8.00 am on 2022 indicating that a further payment of $129,800 would bring the total of the “PRINCIPAL PAYMENT RECORD” up to a total of $380,000, and secondly in the first phone call on 6 June before the payment was made. After the payment was made, Mr Ma sent Mr Luong a photo of the deposit slip showing the payment had been made and later the same day sent Mr Luong an updated list of payments which confirmed that Mr Ma, and therefore Ms Huang, had treated the payment as a payment of capital. Ms Le could have returned the payment within a reasonable time, but did not. Once the money was retained on the basis selected by Ms Huang, Ms Le was as matter of law fixed with the appropriation.

174. For those reasons, I find that payment (xii) went to payment of principal. It reduced the outstanding principal from $180,000 to $50,200.

E. Summary of position so far

175. In light of the above allocations of the payments towards interest and principal, unless Ms Huang succeeds on her estoppel defence, she remains liable to pay Ms Le the outstanding principal of $50,200 plus interest.

F. “Interest Agreement” defence

176. Ms Huang pleaded in her Amended Defence (paragraph 27 e.) an agreement she referred to as the “Interest Agreement”. She asserted that in the conversation on 6 June 2022 between Mr Ma and Mr Luong, Mr Ma (acting on her behalf) agreed with Mr Luong (acting on behalf of the plaintiffs) “that in consideration of the first defendant prioritising and immediately making repayment of the outstanding Loan Amount to the plaintiffs, for the plaintiffs to waive or forego any claim the plaintiffs may have had to any outstanding interest owing pursuant to the Loan Agreement at the time of the repayment by the first defendant”.

177. The plaintiffs’ primary response to this defence was that there was no such agreement. However in opening and closing submissions the plaintiffs submitted that even if the plaintiffs did agree to waive outstanding interest, that agreement is not enforceable by reason of the rule in Pinnel’s case. The plaintiffs submitted that applying the rule, the defendants’ promise to make part payment of the indebtedness to the plaintiffs is not valid consideration supporting any promise to voluntarily forgive the defendants’ indebtedness.

178. Pinnel’s Case (1602) 5 Co Rep 117 a, (1602) 77 ER 237 was considered and applied by the House of Lords in Foakes v Beer (1884) 9 App Cas 605. It is discussed in J D Heydon Heydon on Contract (Lawbook Co. 2019) under the heading “Part-payment of a Debt” at pages 178 -183, and in N C Seddon & R A Bigwood Cheshire and Fifoot Law of Contract (12th Australian edition, LexisNexis Australia 2023) under the heading “Promises to pay lesser sums” at pages 225 - 229.

179. Lord FitzGerald put the principle as follows in Foakes v Beer (1884) 9 App Cas 605 at 629: ”the payment of a part of a debt then due and payable cannot alone be the foundation of a parol satisfaction and discharge of the residue, as it brings no advantage to the creditor, and there is no consideration moving from the debtor, who has done no more than partially to perform his obligation”.

180. I accept that applying that principle to the “Interest Agreement” pleaded by Ms Huang would lead to the result that the “Interest Agreement” did not have contractual force because there was no consideration moving from Ms Huang to Ms Le supporting any promise to waive or forego any claim for outstanding interest. The defendants did not seek to argue otherwise.

181. Ultimately, as I understood the defendants’ case, they did not seek to rely upon the “Interest Agreement” as providing a defence to the plaintiffs’ claim. Instead, in closing submissions, Ms Huang relied upon her defence of promissory estoppel. I therefore turn to that now.

G. Defence of promissory estoppel

182. In his closing submissions for the defendants, Mr Ng submitted that it was a case of promissory estoppel and referred to Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. He submitted that the case established that promissory estoppel will arise if 6 requirements are satisfied, which he listed as:

183. Promisor makes a promise;

184. Promisor creates or encourages an assumption that a contract will come into existence or a promise will be performed.

185. Promisee relies on this to his/her detriment.

186. It is unconscionable, having regard to the promisor’s conduct, for the promisor to ignore the promise.

187. I assume that by referring to 6 requirements, Mr Ng was referring to the 6 requirements or elements stated by Brennan J in Waltons Stores at 428-429.

188. Mr Ng submitted that Mr Luong represented that if Ms Huang paid the sum of $129,800 on 6 June 2022, the loan she had with the plaintiff would be at an end. Mr Ng submitted that this representation was clear and unambiguous and Ms Huang acted upon and relied on that representation by transferring a sum of $129,800 on 6 June 2022. Mr Ng submitted that the plaintiffs sued Ms Huang 17 months after she had made her last payment reasonably relying on the representation and this had caused her detriment. The detriment was said to include (a) Ms Huang forgoes her plan to develop her property at 31 Avenue, West Pennant Hills; (b) she is confronted with expensive legal bills in these proceedings; and (c) she will have to pay another 17 months of interest if the court finds for the plaintiffs. Mr Ng submitted that it is unconscionable for the plaintiffs to resile from the representation, and the court should find that a promissory estoppel has been made out and the payment by Ms Huang of $129,800 fully extinguished any remaining claim by the plaintiffs on 6 June 2022.

189. In opening the case for the plaintiffs, Mr Li of counsel submitted that the defendants had not led any evidence to support the particulars given by them said to give rise to an estoppel. I took this to be a submission that the defendants had not included any such evidence in their affidavits, the case being one in which the parties had set out their evidence in chief in affidavits served in advance of the hearing.

190. Counsel submitted that the relevant principles were to be found in the joint judgment of Gageler CJ, Gordon, Edelman and Beech-Jones JJ in Kramer v Stone (2024) 281 CLR 484 at [36]-[41], and in the judgment of Doyle J in Manassen Holdings Pty Ltd v Commercial & General Corporation Pty Ltd [2019] SASC 171 at [253]-[254].

191. Counsel submitted that the defendants suffered no detriment in reliance on the “Interest Agreement”. Counsel submitted that the defendants had not led evidence to show how they were worse off by relying on the “Interest Agreement”, other than that their expectations were disappointed. Counsel submitted that refinancing on the security of the property is not a relevant detriment because they are no less indebted before the refinancing and after it. Counsel submitted that there was no evidence of causation between the making of the representation on 6 June 2022 and the refinancing application, which is inferred to have been made before 6 June 2022. Counsel submitted that there is no evidence about the terms of the refinancing and there was no evidence that the defendants did not have the financial resources to complete the development. Counsel submitted that it was important for the defendants to give evidence of what they foreshadowed in their pleadings and particulars that for some reason they could only refinance for X amount of dollars and the rest was for the construction and they could not develop., Et cetera. Counsel submitted there was just no evidence of any of that. Counsel submitted that there was no evidence of when the first defendant refinanced, how much she refinanced for, what she was going to use the refinanced money to do, how much the development was going to cost and why it was said repaying the plaintiffs would prevent her from being able to develop the property.

My analysis and findings

188. Ms Huang’s pleaded estoppel case was a little different to the one put by Mr Ng in closing submissions, particularly on the question of reliance and detriment. The promise or representation pleaded by Ms Huang in her estoppel defence was substantially the same as the pleaded “Interest Agreement”. The pleaded representation was “that if the first defendant prioritised and made immediate repayment of the outstanding Loan Amount to the plaintiffs, the plaintiffs would waive or forego any claim the plaintiffs may have had to any outstanding interest owing pursuant to the Loan Agreement at the time of the repayment by the first defendant (Amended Defence paragraph 27A a.). Ms Huang pleaded that in reliance on the representation she “prioritised and made immediate repayment” of the outstanding loan amount to the plaintiff’s, being the amount of hundred and $129,800 (paragraph 27A b.). She pleaded that in “prioritising and making immediate payment” she “refinanced the West Pennant Hills property that provided the funds to repay the outstanding Loan Amount and additional funds to subdivide and develop West Pennant Hills property” (paragraph 27A c.). Ms Huang pleaded that in refinancing she has “suffered, or will suffer, detriment” particulars of which were “i. (she) pursued the subdivision and development of the West Pennant Hills property and applied the additional funds that were obtained from the refinancing of the property for that purpose”, and “ii. (she) had not provided for any further outstanding loan amounts and if (she) was required to provide further outstanding loan amounts, then (she) could not complete the subdivision and development of the West Pennant property” (paragraph 27A d.). Ms Huang pleaded that the plaintiffs knew, or ought to have known that she would suffer detriment in reliance on the representation and in particulars asserted that the second plaintiff was advised that the first defendant was seeking to subdivide and develop West Pennant Hills property and that the first defendant was seeking refinancing for this purpose (paragraph 27 f.).

189. As I understand it, the representation was said to have been made in the first disputed telephone conversation on 6 June 2022. I have already found that the conversation took place in the circumstances and in the terms set out in Ms Huang’s and Mr Ma’s affidavits. The versions of the conversation are not the same. That is to be expected. Neither version suggests that there was any reference to “prioritising” the payment over any other payment. What is common to both versions, and I find, is that Mr Luong promised or represented that if Ms Huang paid $129,800 today (i.e. 6 June 2022), that would be enough and nothing further would be required. There is no issue about Mr Luong’s authority to make such a promise or representation on behalf of Ms Le.

190. I accept that the promise or representation was clear and unequivocal.

191. I have accepted Ms Huang’s evidence that after hearing what Mr Luong said to Mr Ma on the telephone she made the final transfer of $129,800 to Ms Le and Mr Luong’s account that day.

192. Both parties refer to the need to establish reliance and detriment. The two concepts are connected.

193. In Sidhu v Van Dyke (2014) 251 CLR 505 French CJ, Kiefel, Bell and Keane JJ said at [58] (omitting footnotes):

‘In point of principle, to speak of deploying a presumption of reliance in the context of equitable estoppel is to fail to recognise that it is the conduct of the representee induced by the representor which is the very foundation for equitable intervention. Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money (87) by dispensing with the need for consideration if a promise is to be enforceable as a contract (88). It is not the breach of promise, but the promisor’s responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise. In Giumelli v Giumelli (89), Gleeson CJ, McHugh, Gummow and Callinan JJ approved the statement of McPherson J in Riches v Hogben (90) that:

“It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise.”’

194. In Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445 Kiefel CJ, Edelman, Steward and Gleeson JJ said at [80]:

‘It can immediately be accepted that the detriment with which estoppel is concerned is not limited to loss that can be measured in monetary terms. It is concerned with “the consequences that would enure to the disadvantage of a person who has been induced to change his or her position if the state of affairs so brought about were to be altered by the reversal of the assumption on which the change of position occurred” (Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 at 598-599 [84]).’

195. In Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560, after the passage in the quote from Allianz Australia set out in the previous paragraph, Hayne, Crennan, Kiefel, Bell and Keane JJ went on, at [85], to discuss “the understanding of detrimental reliance sufficient to ground an estoppel”. In doing so their Honours quoted with approval Dixon J’s explanation in Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674-675 of the precise ground on which estoppel precludes an otherwise good claim. Dixon J said:

“[I]t is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. His action or inaction must be such that, if the assumption upon which he proceeded were shown to be wrong and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice.”

196. In Kramer v Stone (2024) 281 CLR 484 Gageler CJ, Gordon, Edelman and Beech-Jones JJ said at [40] (omitting the footnote):

‘… it is the existence of detriment arising from reasonable reliance upon an unfulfilled promise that completes the recognition of the estoppel and moulds the remedial response. As this Court has repeatedly held, “[i]t is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise” (Giumelli v Giumelli (1999) 196 CLR 101 at 121 [35] and Sidhu v Van Dyke (2014) 251 CLR 505 at 523 [58], both quoting Riches v Hogben [1985] 2 Qd R 292 at 301. See also The Commonwealth v Verwayen (1990) 170 CLR 394 at 409; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 at 17 [39]’.

197. I do not accept that Ms Huang has made out her pleaded case about detrimental reliance in relation to the refinancing of the property and what would amount to her change of plans regarding subdivision and development. Generally I accept the plaintiffs’ submissions about the defendants’ failure to adduce evidence about relevant matters to make good the pleaded case.

198. There were some references in the evidence to refinancing Ms Huang’s Wearne Street property - see for example messages exchanged on 23 November 2021, 2 February 2022 and 16 March 2022, discussions between Mr Luong and Mr Ma in April 2022, text messages on 19 April 2022 and 12 May 2022.

199. There is no suggestion in the evidence that Ms Huang took any particular steps about organising the refinancing or changing any of her plans about developing or subdividing the property upon the faith of the promise or representation made on 6 June 2022 or that she was induced to change her position on any of those matters by what was said on 6 June 2022.

200. I accept the plaintiff’s submission that the act of refinancing of itself, and therefore borrowing the $129,800 used to pay Ms Le on 6 June 2022, would not constitute a relevant detriment because on the evidence before me it was merely substituting one debt for another.

201. For those reasons and in all the circumstances I am not satisfied that Ms Huang has made out her defence.

202. It follows that Ms Huang remains liable to pay Ms Le the outstanding principal of $50,200 plus interest.

H. Calculation of interest

203. Having regard to the findings I have made about the appropriations of payments between principal and interest, the amount that Ms Huang is liable to pay Ms Le may be calculated as follows.

204. Immediately after payment (vii) was made on 15 April 2020 the interest payments were up-to-date but no repayments of principal had been made.

205. From 16 April 2020 interest was payable on the full amount of the loan, that is to say on $380,000, at 2% per month (or 24% per annum) until 14 December 2020 when payments (viii) and (ix) were made. The interest payable from 16 April 2020 to 14 December 2020 was $60,301.64, as shown in the table below.

| Event Description | Event Date | Amount | Period From | Period To | No. of days in Period | Interest Rate | daily Interest Rate | Interest for Period | | 16 April 2020 Interest starts accruing on full amount of loan | 16/04/2020 | $380,000.00 | 16/04/2020 | 14/12/2020 | 242 | 24% | $249.18 | $60,301.64 |

206. Payments (viii) and (ix) made on 14 December 2020 reduced the outstanding principal to $280,000. From 15 December 2020 interest was payable on that amount at 24% per annum until payment (x) was made on 23 November 2021. The interest payable for that period was $62,957.43, as shown in the table below.

| Event Description | Event Date | Amount | Period From | Period To | No. of days in Period | Interest Rate | daily Interest Rate | Interest for Period | | Payments (viii) & (ix) made ($100,000) | 14/12/2020 | $280,000.00 | 15/12/2020 | 31/12/2020 | 16 | 24% | $183.61 | $2,937.70 | | Change of daily rate due to common year | 1/01/2021 | $280,000.00 | 1/01/2021 | 23/11/2021 | 326 | 24% | $184.11 | $60,019.73 |

207. Payment (x) made on 23 November 2021 reduced the outstanding principal to $230,000. On 24 November 2021 interest was payable on that amount at 24% per annum until payment (xi) was made on 5 June 2022. The interest payable for that period was $29,187.95, as shown in the table below.

| Event Description | Event Date | Amount | Period From | Period To | No. of days in Period | Interest Rate | daily Interest Rate | Interest for Period | | Payment (x) made ($50,000) | 23/11/2021 | $230,000.00 | 24/11/2021 | 5/06/2022 | 193 | 24% | $151.23 | $29,187.95 |

208. Payment (xi) made on 5 June 2022 reduced the outstanding principal to $180,000. From 6 June 2022 interest was payable on that amount and 24% per annum until payment (xii) was made on 6 June 2022. The interest payable for that period for being one day, was $118.36, as shown in the table below.

| Event Description | Event Date | Amount | Period From | Period To | No. of days in Period | Interest Rate | daily Interest Rate | Interest for Period | | Payment (xi) made ($50,000) | 5/06/2022 | $180,000.00 | 5/06/2022 | 6/06/2022 | 1 | 24% | $118.36 | $118.36 |

209. Payment (xii) made on 6 June 2022 reduced the outstanding principal to $50,200. Interest is payable on that amount from 7 June 2022 at 24% per annum up to the date of judgment, being 1 May 2026. Interest payable for that period is $46,970.70, as shown in the table below.

| Event Description | Event Date | Amount | Period From | Period To | No. of days in Period | Interest Rate | daily Interest Rate | Interest for Period | | Payment (xii) made ($129,800) | 6/06/2022 | $50,200 | 7/06/2022 | 31/12/2023 | 572 | 24% | $33.01 | $18,880.70 | | Change of daily rate due to leap year | 1/01/2024 | $50,200 | 1/01/2024 | 31/12/2024 | 366 | 24% | $32.92 | $12,048.00 | | Change of daily rate due to common year | 1/01/2025 | $50,200 | 1/01/2025 | 1/05/2026 | 486 | 24% | $33.01 | $16,041.99 |

210. The total amount of interest payable up to and including 1 May 2026 is $199,536.07. Ms Le is entitled to judgment in that amount together with the outstanding principal of $50,200, giving a total of $249,736.07.

I. Plaintiffs’ claim for delivery of a registrable instrument

211. I have found that it was a term of the loan agreement that Ms Huang agreed to allow a caveat to be registered on the property - see paragraphs 22 and 24 above.

212. Ms Huang has no obligation to provide Ms Le “a registrable instrument creating a charge” over the property.

213. I therefore decline to make the order sought by Ms Le that she provide one.

J. Costs

214. Costs should follow the event.

215. Ms Le has succeeded against Ms Huang. Ms Huang should be ordered to pay Ms Le’s costs of her claim against Ms Huang.

216. Both plaintiffs have been wholly unsuccessful against Mr Ma. They should be ordered to pay his costs of the proceedings.

217. Mr Luong has been wholly unsuccessful against Ms Huang. He should be ordered to pay her costs of his claim against her.

K. Orders

218. For those reasons I make the following orders:

219. Judgment for the first plaintiff against the first defendant in the sum of $249,736.07.

220. Judgment for the first defendant against the second plaintiff.

221. Judgment for the second defendant against the plaintiffs.

222. First defendant to pay the first plaintiff’s costs of the first plaintiff’s claim against her.

223. Second plaintiff to pay the first defendant’s costs of the second plaintiff’s claim against her.

224. First and second plaintiffs to pay the second defendant’s costs.