Li Pei Ye v Crown Limited - [2004] FCAFC 8 - FCAFC 2004 case summary — Zoe

CTHFCAFC

Li Pei Ye v Crown Limited

[2004] FCAFC 8

Federal Court of Australia (Full Court)|2004-01-23|Before: Lander JJ

View original source

At a glance

Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2004-01-23

Before

Lander JJ

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

TABLE OF CONTENTS THE DISPUTE....................................................................................................................... [1] THE FACTUAL BACKGROUND........................................................................................ [8] EVENTS PRECEDING THE OCTOBER 2000 VISIT.................................................. [9] THE OCTOBER 2000 VISIT.......................................................................................... [28] SUBSEQUENT EVENTS............................................................................................... [44] THE PRIMARY JUDGE'S REASONING........................................................................ [50] APPLICATIONS TO AMEND THE NOTICE OF APPEAL............................................ [63] THE FIRST APPLICATION TO AMEND................................................................... [63] The Proposed Amendments To The Notice Of Appeal.............................................. [64] Reason Why Leave Should Be Refused..................................................................... [75] THE SECOND APPLICATION TO AMEND.............................................................. [86] The Proposed Amendment To The Notice Of Appeal................................................ [86] REASONS WHY THE AMENDMENT SHOULD BE REFUSED.......................... [89] THE THIRD APPLICATION TO AMEND.................................................................. [95] THE APPELLANT'S SUBMISSIONS............................................................................... [97] REASONING ON THE APPEAL..................................................................................... [105] THE PRINCIPLES........................................................................................................ [105] THE PRESENT CASE.................................................................................................. [109] THE PAYMENT OF COMMISSIONS............................................................................ [132] THE PROPOSED AMENDMENTS............................................................................ [132] THE SUBMISSIONS..................................................................................................... [134] SHOULD LEAVE TO AMEND BE GRANTED?...................................................... [139] THE MOTION TO ADDUCE FRESH EVIDENCE....................................................... [147] THE CHARGES AGAINST MS FENG....................................................................... [147] SHOULD FURTHER EVIDENCE BE PERMITTED?............................................ [152] CONCLUSION.................................................................................................................. [163] REASONS FOR JUDGMENT

[2]

THE DISPUTE 1 This case involves hotly disputed evidence as to arrangements made between a "high rolling" gambler and a casino operator. The primary Judge resolved the dispute in favour of the casino operator. Since it is common ground that the casino operator failed to follow basic procedures in documenting the arrangements, it is perhaps not surprising that the factual issues have been pursued on appeal. 2 The appeal is from a judgment of a Judge of this Court delivered after a hearing lasting 12 days. His Honour rejected the appellant's claim to recover $1,361,008 said to be due to him by the respondent ("Crown") on a balance of accounts relating to the appellant's gambling at the Crown Casino ("Casino") in Melbourne. The appellant also sought other relief, including damages for defamation by reason of Crown notifying the appellant as a defaulter in respect of a debt said to be due by him to Crown. The primary Judge dismissed the application and entered judgment on Crown's cross-claim against the appellant in the sum of $1,338,992, together with interest of $371,799.56. The appellant was ordered to pay Crown's costs of the proceedings. 3 The appeal challenges his Honour's findings of fact, particularly his finding that an agreement was made between the appellant and Crown in early October 2000, the effect of which was that the appellant provided funds to Crown which discharged a portion of an existing debt, but still left the sum of $1,338,992 outstanding. As the primary Judge noted, resolution of the critical factual issues in the case depended on determining what occurred between the appellant and Crown employees at the Casino on 4 October 2000. The evidence on this issue was quite inconsistent and the primary Judge preferred the version given by Crown employees over that given by the appellant. The appellant submits that his Honour erred in relying on the demeanour of the Crown witnesses, where there was uncontradicted and incontrovertible evidence that should have led him to conclude that there was no such arrangement as that alleged by Crown. 4 It was common ground that as at 20 July 2000, the appellant, who was described by his Honour as "a businessman from Shanghai in the People's Republic of China", owed Crown $2,797,041 (the "July debt"). The July debt was secured by counter cheques provided by the appellant to Crown, expressed in Hong Kong currency, with a face value equivalent to approximately $A3 million. The appellant pleaded that in or about September 2000, he agreed with Ms Angela Zhong, acting on Crown's behalf, that if he remitted funds to Crown to repay the debt and returned to the Casino to gamble then:

$500,000 of the July debt would be extinguished;
the balance of the July debt would be discharged; and
Crown would give the appellant $200,000 "lucky money" which could be used only for the purpose of gambling at the Casino. Ms Zhong at the time was a Crown representative stationed in Shanghai. 5 According to the appellant, pursuant to this agreement he placed currency to the value of $3,658,049 in Crown's Hong Kong bank in early October 2000 and travelled to the Casino in order to gamble. In fact he did not gamble on his own account. The result, so he contended, was that he completely discharged his previous indebtedness and was owed moneys by Crown. On the appellant's case, the state of accounts between the parties was as follows: "Owing after the July visit $2,797,041 Less discount as per September Agreement $ 500,000 $2,297,041 Less the Remitted Amount paid on 3 and 4 October 2000 $3,658,049 Credit Balance $1,361,008" 6 Although Crown accepted that there had been a discussion between the appellant and Ms Zhong, it denied that any agreement had been reached. In this regard, Crown pointed to further negotiations between Crown and the appellant that had occurred subsequent to the discussion between the appellant and Ms Zhong 7 For its part, Crown pleaded that an agreement had been made on 4 October 2000 at the Casino between the appellant and Crown. The agreement was said to have been partly oral and partly implied. Insofar as it was oral it was constituted by discussion between the appellant and two Crown representatives, namely Mr Craig Ashton, Senior Vice President, International Business Development, and Mr Phil Geappen, Crown's Cage Manager. The terms of the pleaded agreement were that: (i) of the funds remitted by the appellant to Crown, the sum of $1,458,049 was to be applied in partial settlement of the July debt; (ii) $2,200,000 was to be placed in the so-called "junket account" of a Madam Shi for the purposes of gambling by players in her "junket group"; and (iii) the appellant would pay the balance of the July debt at the conclusion of his visit to the Casino in October 2000 or, if part of the July debt remained outstanding, Crown would remain entitled to present sufficient of the counter cheques to settle the outstanding amount. Since the July debt amounted to $2,797,041, the amount due to Crown after deducting $1,458,049 was $1,338,992.

[4]

events preceding the october 2000 visit 9 The appellant was born in 1944 in Shanghai. In 1980 he migrated to Australia, becoming an Australian citizen in 1983. In 1989, he returned to Shanghai and has lived there ever since. At the relevant time, he was chairman of a large property development company, Super Ocean Ltd ("Super Ocean"). 10 According to the appellant, his ability to speak English was very limited. The primary Judge found, however, that although the appellant was "far from fluent", his ability to understand English, particularly in relation to gambling at a casino, was adequate. His Honour said that he made this finding independently of the evidence of the Crown employees. 11 Crown operated a Premium Player Program and Junket Program. These programs were explained by one of Crown's witnesses, Mr Geappen, in terms accepted by the primary Judge: "Premium Player Program 8. A Premium Player Program is a program whereby a player is entitled to receive a commission based upon the player's gambling with the Casino. An international Premium Player would generally be one who would provide at least $50,000 in front money. Front money is the money which the patron brings to Crown to gamble with. The front money is placed into an account conducted by the Cage in the Premium Player's name. 9. The Premium Player is then entitled to purchase chip purchase vouchers up to the amount of the funds held by the Cage on account of the Premium Player and to the extent of any funds advanced by Crown pursuant to a cheque cashing facility which may have been arranged by the Player. 10. Upon purchase of a chip purchase voucher the Premium Player signs the withdrawal form to acknowledge the receipt of a chip purchase voucher for a certain amount from their account. 11. The Premium Player then takes the chip purchase voucher to a gambling table, where it is then signed and chips to the value of the voucher are then provided to the Premium Player. 12. The Premium Player is then entitled to gamble using the chips. If the Premium Player loses, the chips are then collected by the dealer. If the Premium Player wins whilst gambling, the Premium Players [sic] receives commission based play chips as winnings. Junket Program 13. A Junket Program is a program whereby a person called a junket organiser arranges a group of people who want to gamble. The Junket Organiser is entitled to receive a commission from Crown based upon the exchange of commission chips for non-negotiable chips. The commission that is paid to the Junket Organiser is higher than that paid to a player on a Premium Player Program. 14. With a Junket Program, the Cage receives funds from the Junket Organiser to make up the required front money to allow gambling on the Junket to occur. There is no direct dealing with the junket players. All dealings with the cage are by the Junket Organiser. 15. The front money may be provided from a variety of sources including from all or some of the junket players, the junket organiser, a cashed cheque, or an arranged credit facility. 16. Gambling by junket players is conducted using "non-negotiable" gambling chips. These can only be obtained by the Junket Organiser first obtaining from the Cage a non-negotiable chip purchase voucher. The Junket Organiser obtains a non-negotiable chip purchase voucher from the Cage. The non-negotiable chip purchase voucher is a form provided in triplicate and consisting of three separate parts. The first part being an account deposit and withdrawal, the second part being a patron receipt and the third party [sic] being a non-negotiable chip purchase voucher. 17. Upon the purchase of a non-negotiable purchase voucher the Junket Organiser signs the account of deposit and withdrawal form to acknowledge the receipt of a chip purchase voucher and that the face value of the voucher has been debited to the Junket Organiser's account. 18. The Junket Organiser then takes the chip purchase voucher to a gambling table, where it is then signed and chips to the value of the voucher are then provided to the Junket Organiser who then provides non-negotiable chips to the Junket Players. 19. The Junket Organiser is not entitled to receive commission on gambling conducted with commission based play chips. Accordingly whilst the Junket Player is entitled to gamble using the commission based play chips, the Junket Player usually then returns the chips to the Junket Organiser who provides them to the Cage, credits them to the account of the Junket Player and receives an account deposit and withdrawal form acknowledging the receipt of the commission based play chips by the Junket Organiser and then purchases non-negotiable chips purchase vouchers." 12 The appellant had been a regular patron of Crown from 1998. In 1999, he and his nephew, Zongnan (John) Ye, assisted Crown employees to make contacts in China. Those employees included Mr Ashton and Ms Zhong. In 1999, John Ye introduced premium players to Crown, including Wong Yau Hing ("Mr Wong"). 13 Mr Wong had been known to the appellant since 1990. There was a dispute on the appeal as to the precise nature of the relationship between them. However, the primary Judge found that Mr Wong had gambled twice at the Casino in 1999, once on a "junket" arranged by John Ye. On that occasion, the appellant and his wife were present when Mr Wong was gambling at the Casino. 14 John Ye also transferred funds provided by the appellant to Crown on behalf of friends of the appellant, including Mr Wong. The transfers were made against promises by the friends to repay the equivalent sums to the appellant in Chinese local currency. On 23 August 1999, John Ye wrote a letter to Crown suggesting collaboration between Crown and Super Ocean in promoting the Casino in China. The letter, which was given some prominence in Crown's submissions, contained the following passages: "In regards to the possible collaboration between Crown and Super Ocean in tourists' business to promote the Crown Resort in China, I strongly believe there is a great potential to attract players from China to come to Crown. To implement this would come cross [sic] many issues, such as fund transfer, confidentiality of players and visa, I look forward to meeting with you and discussing these issues further. As you know, [the appellant] and I have been doing our best to support Crown by regularly bring [sic] to you many premium players. You would find only few of the players have come back along, they would come back only with us. The reason is simple, firstly, they may have a difficulty of fund transfer (RMB to hard currencies), and secondly, many of them do not like to expose their personal details to Crown. The problem will remain until China becomes more and more open, which is unlikely to be seen in the near future. In result of this, [the appellant] and I have not been rewarded (in commission) as much as we would have entitled [sic]. … Last week, I introduce [sic] to you a premium player, named Mr Wong You [sic] Hing. I enclose with the letter a copy of the introduction form of premium players, which I faxed back to Melbourne on 19 August 1999. Mr Wong did register with Crown. We arranged Australian Dollars for him to play. His turnover was about $80 millions and eventually he lost all in Crown. Now, we are responsible for collect RMB in China and bare [sic] the risk of the possible devaluation of the currency. Disappointingly, I was advised that I would not be paid any commissions this time, because they played together under [the appellant's] program. I know that the money (cash chips) might be from [the appellant's] account because of their arrangement on fund transfer, but they played separately. I cannot accept the fact of being denied a payment of commissions." (Emphasis added.) 15 A clear inference from this letter would appear to be that the appellant and John Ye were facilitating the wish of Chinese patrons to gamble at the Casino by arranging for Chinese currency (RMB) to be "transferred" to "hard" currency. This inference was supported by oral evidence from John Ye: "Because I want to suggest to you that what happening here is that you know sitting there in the witness box there are Chinese foreign exchange control regulations, right? --- That's correct, yes. And that Chinese nationals living in China would not be able directly to transfer Chinese RMB say to Australia for gambling purpose, agreed? --- Agreed. So what is happening is that in Hong Kong you and your company are transferring Hong Kong dollars to Crown aren't you? --- Yes. And you're doing so pursuant to an arrangement that - and when you do even though you're transferring them in your name John Ye's name or Eddie Ye's name, you're doing so on behalf of persons who want to gamble at Crown who live in China, agreed? --- Technically. Exactly not technically, agree? --- Technically. So agree, thank you. And what you then tell the people in China is that because you've got currency in Hong Kong in Hong Kong dollars they should repay you in China in RMB and you can use those RMB in China to pay for your business operations, isn't that how it works? --- In many cases because the company was a subsidiary, it was invested by Super Ocean Limited, in many ways we had to transfer Hong Kong dollars into China or US dollars, Australian dollars, whatever. … Are you saying you weren't referring specifically to Mr Wong in that paragraph, you were referring to many premium players? --- I mean that I clearly remember I [was] never lending any money to Mr Wong. But you will lend money to other premium players, will you? --- For people I know for people I can trust. … Do you agree that you make an arrangement with an Chinese gambler who wants to gamble at Crown whereby effectively you will act as a foreign exchange dealer whereby you will transfer Hong Kong dollars to Crown out of you or Eddie Ye's or Super Ocean's account in Hong Kong against a promise by them to repay you or Super Ocean in China with the RMB equivalent? --- I decline the words of currency dealer, it's quite normal for friends ask me if they want to come to Australia for a holiday, bring their families to holiday, if they have a difficulty to arrange Australian dollars I can lend to them, it's just as friendship. For someone come to Crown to play I have a limited resources, I'm not as rich as Mr Eddie Ye. If there is anything that needs to have the company involved I will firstly consent to Mr Eddie Ye and Mrs Ye who are the majority shareholder of the company, I will firstly consent with them, without them their approval I will not do any, transfer any funds to Australia. You were arranging these funds transfer on behalf of Eddie Ye using Eddie Ye's money, weren't you? --- Again, Mr Ye has to given me the instruction before I can do that. But it was a practice that you were carrying on in 1999, do you agree? --- Sorry? You were doing just that in 1999? --- Just doing what, sorry? Transferring money for friends of Eddie Ye to Crown against the promise by those friends to repay the funds that were transferred in RMB equivalent in China? --- Yes, I did." 16 In light of this evidence the primary Judge concluded that the appellant provided a "facility" for the "the provision of hard currency to overseas casinos on account of Chinese nationals". The primary Judge accepted that such a facility would not have been afforded in a particular case "without an appropriate back-to-back transaction". 17 On 29 January 2000, the appellant applied to Crown for a credit facility. We note in passing that under s 68 of the Casino Control Act 1991 (Vic) such a credit facility cannot be afforded to an Australian resident. Even for foreign residents it can only be afforded to someone who has a premium player arrangement or who is participating in a junket, and only then in accordance with the relevant controls and procedures approved by the Victorian Casino and Gaming Authority ("the Authority"). The credit facility was granted on 8 February 2000, in the sum of $500,000. When the appellant drew upon the credit facility to obtain cheques for gambling, he provided a counter cheque, drawn upon a Hong Kong bank, to secure repayment of the facility. Credit was then advanced on the basis of a dollar per dollar arrangement. Thus if the appellant provided $500,000 in advance, known as "front money", he could draw chips to the value of $1 million. 18 The credit facility granted to the appellant on this occasion included a term in writing authorising Crown in its sole discretion to apply any funds held in accounts with Crown first in reduction of any outstanding credit facility with the remainder, if any, to be returned to the appellant. No similar document was in evidence in relation to credit afforded to the appellant by Crown on subsequent occasions. 19 In fact on this occasion, the appellant provided $504,000 as front money. His gambling turnover was $1.7 million; he won $85,000; and he received commission from Crown of $11,000. Since he won, the counter cheque was redeemed before he left the Casino. 20 In April 2000, credit was extended to the appellant on a $2 for $1 basis, up to a maximum of $1 million. In other words, if front money of $500,000 was provided, credit of $1 million would be advanced, thus permitting the appellant to draw chips to the value of $1.5 million. On this occasion, the appellant's turnover was $10.56 million; he won $73,000; and earned commission of $68,600. He provided counter cheques totalling $996,000 and these were redeemed at the end of his visit to the Casino. 21 In May 2000, Crown again provided credit to the appellant on a $2 for $1 basis up to a maximum of $1 million. The appellant provided a counter cheque for $1 million, which was redeemed in due course. In June 2000, he provided another counter cheque for $500,000 and it, too, was redeemed in due course. 22 In the course of a visit to the Casino in early July 2000, the appellant provided front money of $500,000 and a further sum of about $1.5 million by telegraphic transfer. He also provided counter cheques drawn upon a Hong Kong bank to a total value of about $3 million. On that visit, the appellant signed two Premium Player Agreements, one relating to front money of $500,000 and the other to the agreed credit of $500,000. 23 As events transpired, the appellant lost approximately $5 million during this visit. When the appellant left the Casino on 20 July 2000, he owed Crown the sum of $2,797,041 to which we have already referred. The counter cheques were not redeemed. 24 The appellant claimed that when he left Crown he had a discussion, through an interpreter, with Craig Ashton, as follows: "[Appellant]:'If I repay the money I have lost in one or two weeks, will you give me a discount of AUD$700,000?' Ashton: 'No, I can't give you that amount of discount'. [Appellant]: 'I want that discount or I won't come back to gamble'." According to the appellant, Craig Ashton said he would have to ask his superiors. Mr Ashton denied the conversation. 25 The appellant said that when he reached Hong Kong, he called Angela Zhong in Shanghai, again seeking a discount of $700,000 on his debt. He claimed that ultimately Ms Zhong agreed, on behalf of Crown, to a discount of $500,000 and the provision of $200,000 "lucky money", to be utilised only for gambling at Crown, on the basis that the appellant would agree to return to gamble at Crown. Ms Zhong, who was no longer employed by Crown, did not give evidence at the trial. 26 Crown accepted that there had been some discussion between Ms Zhong and the appellant, but denied that any agreement had been reached. The primary Judge recorded the content of a number of emails sent from the Shanghai office of Crown to Mr Ashton and his replies. His Honour found that the contemporaneous documentation did not record or refer to any agreement relating to the grant of a discount to the appellant, although the correspondence indicated that negotiations were taking place. The counter cheques which the appellant had signed in July were retained by Crown, but were not presented because of the continuing negotiations. 27 The primary Judge was not satisfied that any agreement had been reached between Ms Zhong and the appellant for a discount on his indebtedness to Crown. His Honour accepted that senior management of Crown did not authorise or ratify such an agreement. Nor had it been argued that Ms Zhong, in any event, had actual or ostensible authority to make any such agreement. The appellant does not challenge these findings.

[5]

the october 2000 visit 28 On 1 October 2000 Ms Zhong sent an e-mail to Crown advising that Mr Wong and Mr Ye would be arriving separately on 2 and 4 October 2000. Ms Zhong requested that arrangements be made for them to be met at the airport by Rolls Royce, that specified accommodation be provided and that arrangements be made for Mr Wong to play golf on 2 October 2000. The note also records "F/M 3M (2M for Mr Wong, 1M for Mr Ye)". There seems little doubt that the letters "F/M" stand for "front money" and that the letter "M" stands for "million". 29 On Monday, 2 October 2000, Mr Wong and Ms Shi Pei Lin (known as Madam Shi) arrived in Melbourne and were met by Ms Vivian Feng, Manager of International Tours and Marketing in Hong Kong and China for Crown. Madam Shi had been granted approval to conduct junkets at Crown by the Authority on 29 March 1999. There was, however, no record of her gambling at the Casino prior to 4 October 2000. Although she had arrived in Melbourne on 2 October 2000 she did not sign a "Junket Agreement Between Crown Limited and the Approved Junket Organiser" until 4 October 2000, after the appellant had arrived at the Casino and had the conversation with Mr Ashton referred to below (at [34]). The agreement followed the form prescribed by the Casino Control (Junkets and Premium Players) Regulations 1999 (Vic). 30 The appellant and his wife arrived in Melbourne on Wednesday, 4 October 2000. On 3 and 4 October 2000, the appellant caused a total of $3,658,000 to be remitted to Crown's account at a Hong Kong bank. This was credited by Crown to a deposit account in the appellant's name, as permitted by s 68(3) of the Casino Control Act 1991 (Vic) (see [72] below). The deposit account was described by the primary Judge as a "kind of suspense or escrow account". 31 The appellant's version of events was that these funds were intended to pay the July debt in full and provide him with additional funds of approximately $1 million with which to gamble at the Casino. The appellant said that after his arrival at the Casino, he went into the high rollers' room and saw Mr Wong waiting to commence gambling. The appellant denied offering to give credit to Mr Wong or being requested to place funds in Madam Shi's Junket account or the account of any other junket operator. He said that he did not have any conversation directly with Mr Ashton, otherwise than through an interpreter. He said that he asked the interpreter (Ms Feng) to ask Mr Ashton if "my funds have been received" to which the interpreter replied "Mr Ashton says yes. Good everything is settled now". The appellant denied having any conversation with Mr Ashton in which he authorised Crown to apply any of the funds in his deposit account to Madam Shi's junket account. The appellant claimed that he had no knowledge as to how some of these funds came to be withdrawn and placed in Madam Shi's junket account. He said that Mr Ashton subsequently indicated to the appellant by gestures that the appellant should sign various documents, but the appellant raised his hands and said "no". 32 Crown's version of events was radically different. In essence, it was that a portion of the funds remitted to Crown ($2.2 million) was transferred, on the appellant's verbal instructions, to the credit of Madam Shi's junket and the balance of those funds ($1,458,049) applied as part payment of the outstanding July debt. According to Crown, the appellant was a member of Madam Shi's junket and did not gamble on his own during this visit to the Casino. 33 The principal witness supporting Crown's case was Mr Ashton. He said that he met the appellant in the Mahogany Room in the Casino near the cage area. (The cage is an enclosed area where funds are received by Crown and deposited into standing accounts, chip purchase vouchers are issued, commissions calculated and funds disbursed from patron's accounts.) According to Mr Ashton, Mr Wong, Madam Shi and Ms Feng were present at the time, while Mr Geappen and Mr Hancock, the Casino's Shift Manger, were in the cage. 34 Mr Ashton's version of his conversation with the appellant and its aftermath was as follows: "Ashton: 'Eddie, we have to do something about the July debt. I want to apply most of the funds we are now holding for you towards the amount outstanding from July'. [Appellant]: 'I need that money for the junket to gamble today'. Ashton: 'We need to credit at least $2 million against the outstanding amount, the remainder will be paid from winnings or commission'. [Appellant]: 'Not that much. I need at least $2 million today'. We continued to negotiate over the amount. Finally, our discussion concluded with words to the following effect: Ashton: '$2.2 million is the most we can give you for the junket. We will need the rest credited against the July outstanding'. [Appellant]: 'OK'. I then turned to Phil Geappen who was in the cage area and said words to the following effect: Ashton: 'Phil, Eddie is to have $2.2 million of the funds we are currently holding put in Madam Shi's junket. The rest is to go against any amounts currently outstanding. Commission and winnings should be used to cover the remaining outstanding debt'. 23. When I stated these words to Mr Geappen, [the appellant] was still standing beside me …. 24. Once my discussion with [the appellant] had ended, and I had given the instruction to Mr Geappen, I walked away from the cage area on my way out of the Mahogany room. As I was walking away I saw [the appellant] enter the buy-in room, which is next to the cage. The door to that room was open and, in the course of my discussion with [the appellant], I had seen Madam Shi enter that room, accompanied by one of the services managers, Mr Indran Suburamaniam and Ms Feng." 35 Clearly enough the background is critical to an understanding of what occurred on 4 October 2000. On the appellant's version, the dispute as to payment of the July debt had been resolved in September. He had paid the money due to the Casino (and more) before he arrived. As such there was nothing to discuss with Mr Ashton when the appellant arrived on 4 October 2000, other than gaining access to his credit balance of $1.36 million. There were a number of problems with this version of events. Not least were the many business records of Crown showing clearly that negotiations as to the payment of the debt were still continuing after the date when the appellant claimed that the negotiations had been concluded. If the negotiations had not been concluded (as his Honour found), then it is more than likely that Mr Ashton would have wanted to discuss the matter with the appellant. There was also the e-mail sent by Ms Zhong on 1 October 2000, which said that $2 million was available for Mr Wong. Moreover, Madam Shi seems to have delayed signing the Junket agreement until two days after her arrival in Melbourne. This apparent delay would be explained if she was waiting for the appellant to arrive with the money required for the "initial buy in" of $2.2 million or thereabouts. 36 The Junket agreement as signed by Madam Shi identified the junket players as the appellant and Mr Wong. Each was said to be resident in China. Commission was to be 1.6% of cash chip turnover. The space on the form for "Proposed Date & Time of Arrival of Junket Players at Casino" was filled in as "4/10/00". 37 The Junket agreement contained an important "special condition" as follows: "All commission and winnings to be held until all outstandings are cleared by [the appellant]." The appellant pointed out that the terms of this special condition differed from what Mr Ashton claimed to have told the appellant ("the remainder will be paid from winnings or commission") and also from what Mr Ashton said that he told Mr Geappen ("Commission and winnings should be used to cover the remaining outstanding debt"). Mr Ashton's evidence was that commission and winnings were to be directly debited against the appellant's debt, whereas the terms of the special condition were that the commission and winnings were to be "held" until the debt was "cleared". 38 As the primary Judge noted, Mr Ashton's version was supported "in various respects" by the evidence of Mr Geappen, Mr Hancock, Mr Subramaniam and Ms Feng (who first gave a written statement, at Mr Ashton's request, on 19 October 2000). Each testified that Mr Ashton had had a conversation with the appellant in the absence of an interpreter. To the extent that any of them could give any evidence of the conversation it generally supported Mr Ashton's version. This, however, is subject to one important qualification. As his Honour also noted, Mr Geappen was responsible for documenting the arrangement between Mr Ashton and the appellant, but failed to do so. Mr Geappen's evidence in substance was that, although he was within earshot of Mr Ashton and the appellant, all that he heard the appellant say was that he needed front money to play with. Mr Geappen heard no reference to the junket. Clearly this evidence was inconsistent with the appellant's version of events, but it was not entirely consistent with Crown's version that the appellant authorised the transfer of funds to the junket. 39 It is clear that Mr Geappen produced the various documents necessary to facilitate the transaction whereby $2.2 million of the appellant's funds were allocated to Madam Shi's junket. Crown's practices, to say nothing of sensible business practice, required those documents to be signed by the appellant. Some rather desultory attempt seems to have been made by Crown's staff to get the appellant to sign the forms, but he did not do so. The staff inserted on some of the forms in the place for signature, including an account deposit and withdrawal form, the words "Unavailable to Sign" or "Patron Unable to Sign". As his Honour found, these statements were untrue. 40 One document that was signed was the "Junket Funds Record". This was not a document that the appellant needed to sign, but it was signed by Madam Shi on 4 October 2000. The document recorded that $2.2 million had been received from the appellant. There was no record of any credit being offered by Crown to Madam Shi's junket. On the face of matters, it is difficult to understand, save perhaps for fraud, why Madam Shi would have signed this document, or entered into the Junket agreement. On the appellant's version, she had no knowledge of where the $2.2 million came from or, if she somehow knew that the appellant had provided the funds, she did not know why he would have done such a thing. 41 Mr Wong appears to have been the only member of the junket who gambled. There is no dispute that the appellant was present during much if not all of Mr Wong's gambling, which extended over a period of nearly eight hours. On a number of occasions he assisted Mr Wong by "squeezing the cards", but did not gamble himself. There is no dispute that Mr Wong lost heavily with the result that the front money of $2.2 million (initially transferred from the appellant's account to Madam Shi's account) was lost. 42 Although the Junket agreement required either that commission be applied against the appellant's debt or that it be held until that debt was paid, the primary Judge found that both partial and final settlements of commission were paid to Madam Shi. This does not, however, fully describe what in fact occurred. A document entitled "Non Negotiable Cage Buy In" records that Madam Shi's junket generated commission entitlements totalling $572,592. These entitlements were disbursed as follows:

$296,000 was applied on 4 October 2000 to buy in chips for Madam Shi's junket;
an additional $90,000 was applied on the same day for the same purpose;
an additional $160,000 was applied on 5 October 2000 for the same purpose; and
as evidenced by a "Junket Settlement sheet", an additional sum of $26,592 was paid on 6 October 2000 to Madam Shi. 43 The appellant and his wife checked out of the Crown Hotel on 5 October 2000. His explanation for not going to the Casino in order to redeem the surplus funds which (on his version) he had remitted to Crown's account, was that he expected to return in a few days and to gamble with that money.

[6]

subsequent events 44 On 11 October 2000, the appellant wrote to Mr Geappen, the Cage Manager, requesting immediate settlement of his account and the transfer of the credit balance in accordance with instructions contained in the letter. 45 On 16 October 2000, Mr Jenkins from the finance section of Crown telephoned Central Credit Inc in the United States and informed that agency that the appellant had not paid a debt due and owing of $1,338,992. In consequence, Central Credit Inc entered a warning in its data base that the appellant was a "Delinquent Casino Account at Crown" in that sum. The subscribers to that data base include many casinos in various parts of the world, as well as the major travellers cheque issuing companies. 46 On 17 October 2000, Crown's solicitors wrote to the appellant demanding settlement of the outstanding debt of $1,338,992. On 19 October 2000, Mr Geappen replied to the appellant's letter of 11 October 2000 confirming that, in accordance with the appellant's verbal instructions given on 4 October 2000 to Mr Ashton and Mr Geappen himself, Crown had transferred $2,200,000 to Madam Shi's junket account and applied the sum of $1,458,049 as part payment of the July debt due to Crown. 47 Later in the month, Crown caused counter cheques which had been signed by the appellant in July 2000 to be presented to the bank. On the appellant's instructions, the cheques were not honoured. 48 From late 2000 until mid 2001, correspondence and meetings took place sporadically between the appellant and Crown concerning the debt claimed by Crown. The dispute was not settled. During this period, the appellant returned to Crown with guests on two occasions, in April and June 2001. 49 On 16 July 2001, Crown commenced proceedings against the appellant in Hong Kong for recovery of the sum said to be due to it. The appellant commenced the present proceedings in this Court on 28 August 2001, thereby prompting the cross-claim. The Hong Kong proceedings were apparently adjourned pending these proceedings.

[7]

the primary judge's reasoning 50 The primary Judge recorded that the Crown witnesses had been cross-examined in detail. The cross-examination had not shaken the essentials of their version of events and nothing in their manner of giving evidence caused him to disbelieve any of the Crown witnesses. It had not been put to any Crown witness that evidence had been fabricated or that there had been a conspiracy to give false evidence. In particular, it had not been put to Ms Feng that she had fabricated her evidence or her written statement of 19 October 2000. 51 His Honour pointed out that if the appellant's account was correct, the evidence of the Crown witnesses must have been deliberately false. It was also clear that the effect of the contemporaneous documentation was consistent with the evidence of the Crown witnesses and not with that of the appellant. Yet he had not been invited to make a finding that the documents had been falsified. 52 The primary Judge said that he did not regard the evidence of the Crown witnesses as necessarily inconsistent with the objective facts or with the inherent probabilities, although there were "questions to be considered". One such question was Crown's failure to secure the appellant's signature confirming the appropriation of his funds to Madam Shi's junket. This was "hardly an ordinary transaction". Moreover, the appellant had been neither unable nor unavailable to sign on 4 October 2000, and to say so on the relevant forms (as had been done) was false. It would have been simple to refuse to effect the buy-in for Madam Shi until signatures had been obtained from the appellant. 53 His Honour accepted evidence that some "high roller" patrons, including the appellant, were difficult to persuade to follow the rules. The appellant himself had acknowledged that he had previously refused to sign documents when requested. Even so, he considered it "tempting to rely upon the objective lack of signatures to resolve an issue which otherwise depends wholly upon hotly disputed oral evidence, where the probabilities are by no means all one way." Further, he thought it difficult to feel much sympathy for Crown "when such a fundamental precaution was omitted". In the end, however, his Honour did not think that he could avoid coming to a view as to the credibility of the witnesses. 54 A second issue was why the appellant would gamble in Madam Shi's junket when he had previously taken part only in one junket and then for family reasons. The appellant was an experienced gambler fully conversant with casino procedures and had no need of the assistance of a junket operator. Further, why would the appellant fund Mr Wong whom he regarded as a reckless gambler not in a good financial situation? If the money being gambled on 4 and 5 October 2000 was the appellant's, why did he merely play a passive role? 55 His Honour thought that these were "puzzling questions to which the evidence does not provide certain answers". His Honour dealt with them as follows: "Neither Wong Yau Hing nor Madam Shi gave evidence. Angela Zhong did not give evidence. I am far from satisfied that [the appellant] and his wife disclosed the full story of their relationship with Wong Yau Hing, which went back over a number of years. [The appellant] had gambled with him at Crown previously, and I have no doubt that they met at Crown by arrangement on this occasion. It is unlikely that they met on 4 October by coincidence, or that [the appellant] accompanied Wong Yau Hing at the tables and at dinner simply to have fun whilst filling in time. The key more than likely lies in the facility which [the appellant's] corporate interests was able to afford in the provision of hard currency to overseas casinos on account of Chinese nationals, explained (to some extent) by John Ye. I accept that this facility would not have been afforded to Wong Yau Hing without an appropriate back-to-back transaction. It should not be overlooked that it may be concluded from the evidence of John Ye (plus some informed conjecture) that there is good reason arising from Chinese law in relation to transmission of currency for the witnesses not being completely frank about such transactions. I am not in a position to find that there was any such back to back transaction, but the possibility of it assists in recognising that what may seem odd on the face of it may be explicable." 56 A third issue raised by the appellant's counsel was inconsistency between Crown's previous attitude to discounts and the arrangement entered into. The result of the arrangement was that Crown was apparently satisfied with a good deal less than it had previously insisted on as a minimum repayment of the July debt. His Honour, however, accepted Mr Ashton's explanation that the earlier negotiations had involved a discount and, in any event, Crown was protected by the rider relating to the application of winnings and commission. 57 A fourth issue was that the rider was not in fact complied with, since both partial and final settlements of commission were paid to Madam Shi (or, we would add, to the account of her junket). His Honour attributed this to poor administration on Crown's part. 58 A fifth issue concerned a "post-it note" attached to Madam Shi's Junket Funds Record. The note recorded that "Mr Wong's line needs to be redeemed at settlement". Mr Hancock accepted in evidence that he must have had an understanding that at least some of the funds had been advanced to Mr Wong. His Honour also considered it "odd" that the note should include a statement that "Payment plan in process for Eddie Ye Re: Service Mgr before redeeming any funds". One difficulty was that it was unclear when the post-it note had been written, bearing in mind that credit had been extended to the appellant both before his arrival on 4 October 2000 and after his departure the following day. In his Honour's view, any ambiguity in the note was insufficient to displace the effect of other evidence. 59 The primary Judge regarded it as inherently unlikely that, after the earlier negotiations as to the July debt, the appellant would have left the Casino without making arrangements as to the disbursement of the credit balance of his account. The letter written by him on 11 October 2000 was "disingenuous". Further, his Honour found that the appellant was prepared to tailor his evidence consciously to advance his case. His exaggeration of his difficulties with English was a case in point. His Honour's impression was that the appellant "regarded bargaining with a foreign casino as fair game". 60 The primary Judge recognised the possibility that Mr Wong and Madam Shi may have conspired to set up the appellant and that some of the Crown employees were parties to the conspiracy. His Honour noted, for example, that Ms Feng organised Mr Wong's trip to the Casino and that both Ms Feng and Mr Ashton were involved in providing credit to Mr Wong (who had not repaid the debt). It was also possible that Mr Ashton had been duped into "unwittingly taking advantage of" the appellant's relatively poor command of English. However, the appellant had not sought to make out that case. 61 His Honour also recognised the possibility that the Crown employees and the appellant "simply misunderstood each other due to language and other difficulties". However, he rejected this as contrary to the evidence of each side. At least one of the Crown employees (Vivian Feng) spoke Mandarin, and the other Crown employees were well accustomed to dealing with Chinese patrons. None of the witnesses indicated any real uncertainty about what occurred. 62 His Honour contended that the appellant's claim to recover the sum allegedly owed to him failed and the cross-claim succeeded. The appellant's defamation claim failed because the defence of truth was established.

[9]

The Proposed Amendments to the Notice of Appeal 64 The notice of appeal in its present form contains 21 grounds. Mr Ellicott QC, who appeared with Mr Caspersonn and Mr Gye for the appellant, sought leave on behalf of the appellant to add two further grounds as follows: "22. That His Honour should have held that the Junket agreement entered into by Crown with Mme Shi on 4 October 2000 ("the Shi Junket Agreement") did not comply with s 69 of the Casino Control Act (Vic) and Regulation 16 of the Casino Control (Junkets and Premium Players) Regulations 1999 (Vic) thereto in that it did not include the following information: - (a) The State or province in which each of the Appellant and Wong, Yau Hing, the junket players, resided; and (b) the proposed time of arrival at the Crown Casino of the said junket players that by reason of such non-compliance the Shi Junket Agreement was invalid and unenforceable, and that any arrangement between Crown and the Appellant for the provision of $2,200,000.00 as front money for the Shi Junket did not authorise Crown to provide such moneys under the said Junket Agreement and that Crown had no legal right or authority so to apply the said sum out of the Appellant's deposit account; 23. That His Honour should have found that Crown had by reason of s 68 of the Casino Control Act (Vic) no power to debit the Appellant's deposit account with Crown in the sum of $2,200,000.00 and that such debit was unlawful and invalid and that the crediting of the said sum to the account of Madame Shi was also by reason of the said section outside Crown's power and authority." 65 The appellant's legal representatives gave notice to the respondent's counsel the evening before the trial of their intention to apply to amend the notice of appeal by adding pars 22 and 23. Mr Hilton SC, who appeared with Ms Walker for the respondent, did not, however, become aware of this proposed application to amend until shortly before the appeal commenced. 66 Each of the proposed grounds of appeal had the following characteristics: (i) it had not been pleaded by the appellant; (ii) it had not been argued on his behalf at the trial; (iii) it had not been included as a ground in the notice of appeal; (iv) it had not been referred to in the appellant's written submissions filed in conformity with directions made by the Court; and (v) notice of the ground was not given until shortly before the appeal commenced. 67 So far as the second of these matters is concerned, Mr Ellicott (who did not appear at the trial) attempted to persuade us that the issue of illegality raised in the proposed amendments had been the subject of argument before the primary Judge. It is sufficient to say that we consider it abundantly clear that the issue was not adverted to in argument, and, for that reason, was not addressed by the primary Judge. 68 Mr Ellicott also sought to persuade us that none of these grounds needed to be pleaded by the appellant because the onus at all times was on Crown to establish the agreement pleaded by it. If by reason of any of the matters referred to in pars 22 or 23 of the proposed notice of appeal Crown did not establish the existence of an enforceable agreement, so he argued, it had failed to discharge its onus, regardless of whether the appellant specifically pleaded any of those matters. In our view, it is clear that each of the matters should have been pleaded if the appellant intended to rely on them. The Federal Court Rules ("FCR") require a party denying the fulfilment of a condition precedent to plead the denial: O 11 r 6(2); Deputy Commissioner of Taxation v Pratt Holdings Pty Ltd (2002) 49 ATR 178, at 184 [20], 187 [36], per Kenny J. Theyalso require a party to plead any fact showing illegality that is alleged to make a claim not maintainable, or any fact that might take the other party by surprise: FCR O 11 r 10. As Kirby ACJ observed in CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, at 55, the law relating to the specific pleading of illegality is strict, not merely because of rules of courtbut because of the more general requirements of fair procedure. 69 Paragraph 22 of the proposed notice of appeal relies on s 69(2)(c) of the Casino Control Act, which authorises the making of regulations "requir[ing] any contract or other agreement that relates to the conduct of a junket to be in a form and containing provisions approved of by the Authority". Regulation 16 of the Casino Control (Junkets and Premium Players) Regulations 1999 (Vic), requires a "junket agreement" (a defined term) to be in writing in a form approved by the Authority and to include specified information. The information must include (reg 16(1)(b)): "(iii) the country of residence, and State within that country, where applicable, of each junket player; … (vi) the proposed date and time of arrival at the casino of the junket players".

[10]

Regulation 16(2) provides that a casino operator must not enter into a junket agreement that does not comply with subregulation (1). 70 The appellant wishes to contend that the Junket agreement between Crown and Madam Shi, although identifying the junket players as resident in China, was deficient because it failed to specify the province where each lived. According to Mr Ellicott, the form of agreement was also deficient because, although identifying the date of arrival of the junket players as 4 October 2000, it omitted to specify a time of arrival on that day. 71 It must be said that even if the form of Junket agreement did not strictly comply with reg 16, it is not obvious why such non-compliance should preclude Crown from withdrawing funds from the appellant's account for the purposes of the junket in accordance with his specific instructions. Mr Ellicott's answer was that a term should be implied into the agreement between Crown and the appellant to the effect that the sum of $2.2 million could be withdrawn from his account only if it could lawfully be placed in Madam Shi's junket account. There would seem to be significant obstacles in the path of this argument succeeding. 72 Paragraph 23 of the proposed notice of appeal invokes s 68 of the Casino Control Act. Section 68(2) prohibits a casino operator, in connection with any gaming or betting in the casino, "wholly or partly releas[ing] or discharge[ing] a debt" except with the approval of the Authority or as allowed by s 68 itself. Section 68(3) permits a casino operator to establish a deposit account for a person, to which is to be credited the amount of any deposit comprising money, a cheque payable to the operator or a traveller's cheque. Section 68(4) permits the operator to "issue to a person who establishes a deposit account and debit to the account chip purchase vouchers or money, not exceeding in total value the amount standing to the credit of the account at the time of issue of the vouchers or money". 73 The contention the appellant wishes to advance is that s 68(4) of the Casino Control Act, on its proper construction, authorises a casino operator to debit a deposit account in two ways only: by the issue of chip purchase vouchers or the payment of money in the form of cash. This argument seizes on what seems to be rather careless drafting of some aspects of s 68. For example, s 68(6) of the Act appears to distinguish between "money" on the one hand and a cheque on the other, lending perhaps some support to the appellant's foreshadowed argument. But if s 68(4) is read at all sensibly, the appellant's argument appears to be no more promising than the contention based on s 69 and reg 16. If correct, it would have the consequence that a patron of a casino wishing to redeem a credit balance in a deposit account would be required to collect the funds in cash, rather than in the form of a cheque or even by means of an electronic transfer of the funds to another account.

[11]

Reason Why Leave Should be Refused 74 None of the contentions foreshadowed by the appellant appears to have force and therefore perhaps could be disposed of relatively quickly if leave were to be granted. Nonetheless, as we announced at the hearing, we formed the view that the appellant should be refused leave to amend his notice of appeal. 75 The appellant adduced no evidence to explain the failure to plead or argue the matters sought to be raised in the amended notice of appeal. In these circumstances, the inference should be drawn that the experienced senior counsel then representing the appellant made a deliberate forensic decision not to rely on any alleged illegality or the existence of a condition precedent as an answer to Crown's entitlement to withdraw funds from the deposit account pursuant to the appellant's oral instructions. The reason for such a forensic decision is not difficult to discern. The appellant's case at trial was very clear: he had no discussions with Mr Ashton that could possibly have been construed as an authority by him to allow Crown to withdraw funds from the deposit account for the purposes of Madam Shi's junket. The alternative arguments now sought to be put might well have been thought to cast doubt on the appellant's version of events, had they been pressed at trial. We think it highly unlikely that the issues now sought to be raised escaped the attention of the appellant's counsel at the trial. It is much more likely that a decision was made not to run the arguments for fear of undercutting the appellant's principal case. Doubtless one factor in the decision was also a view as to the strength of the various arguments. 76 An appeal to this Court is most aptly described as an appeal by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the Court admits under its statutory power to do so: Federal Court of Australia Act 1976 (Cth), s 27; CDJ v VAJ (1998) 197 CLR 172, at 201-202 [111], per McHugh, Gummow and Callinan JJ; Allesch v Maunz (2000) 203 CLR 172, at 179-180 [20]-[22], per Gaudron, McHugh, Gummow and Hayne JJ; Western Australia v Ward (2002) 191 ALR 1, at 34 [70], per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Fox v Percy (2003) 197 ALR 201 at 206 [20], per Gleeson CJ, Gummow and Kirby JJ. The principles governing the raising of a new issue on an appeal by way of rehearing were stated by Mason P (with whom Gleeson CJ and Priestley JA agreed) in Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 47 NSWLR 631, at 645: "Since this is an appeal by way of re-hearing, the matter should be approached in accordance with the principles stated in cases such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe [(1986) 162 CLR 1, at 7-9]. A party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial. Multicon Engineering argues that these principles do not preclude it from raising the constitutional point [for the first time] on appeal, because all that is in issue is the proper approach to be followed in considering whether to adopt a report in a matter in the Federal jurisdiction. The evidence which each party wished to rely upon was before the Judge. However, there is another principle of more direct relevance. A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law. This is because it remains a question of whether the appellate court 'may find it expedient and in the interests of justice to entertain the point': Water Board v Moustakas (1988) 180 CLR 491 at 497; see also Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47. The rule is not an absolute one…. However: '…it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopted at the trial': Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24, per Isaacs J; see also Browne v Dunn (1893) 6 R 67 at 75; Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 284. In Coulton (at 7), Gibbs CJ, Wilson J, Brennan J and Dawson J said that: 'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.' In the present case it would not be 'in the interests of justice' to permit Multicon Engineering to repudiate on appeal the stance it adopted at all stages in the trial. That would make it a classical case of a party having elected to fight on one basis, and lost, seeking a new trial to be allowed to fight it or another basis." (As to the nature of an appeal to the New South Wales Court of Appeal, see Supreme Court Act 1970 (NSW), s 75A(5)-(10); Fox v Percy, at 206-207 [20]-[22], per Gleeson CJ, Gummow and Kirby JJ.) 77 In Dovuro Pty Ltd v Wilkins (2000) 105 FCR 476, a majority of the Full Court (Branson and Finkelstein JJ; Gyles J dissenting) took a similar approach to that in Multicon when refusing leave to an appellant to withdraw a concession on a matter of law: see at 487 [38], per Branson J; at 508-509, [115]-[119], per Finkelstein J. As Branson J noted, an appeal to the Full Court was at that time regarded (incorrectly as the High Court subsequently held) as an appeal in the strict sense, rather than an appeal by way of rehearing. We do not, however, read the views of the majority as dependent on that fact, although Branson J gave the nature of the appeal as an additional reason for concluding that the appellant should not be permitted to withdraw its concession. 78 We accept that the circumstances of the present application are different from those in Multicon. There the appellant sought to challenge a referral to a referee which it had supported. The challenge was made after the referee had reported, following proceedings that spanned 205 sitting days. The present application therefore does not involve anything comparable to the waste of resources implicit in the appellant's belated challenge in Multicon. 79 Nonetheless, in our view it would not be in the interests of justice to allow the appellant now to raise issues that were not pursued at trial because (as we infer) the appellant's counsel made a deliberate forensic decision not to do so. Just as there are circumstances in which an appellant should not be permitted to resile from a concession on a matter of law, so there are circumstances in which an appellant should not be permitted to resile from a forensic decision not to rely on an argument, even if the argument raises only an issue of law. We think it material that the appellant refrained from pleading and arguing the matters referred to in the proposed notice of appeal partly because to do so might have cut across his factual claim. Having elected to fight the case on the factual basis he did, the appellant should not be permitted to advance a different case on appeal after his evidence has been rejected by the primary Judge. 80 We would have refused leave to the appellant to amend the notice of appeal in the manner described even if the new grounds could not have led Crown to have conducted its case differently at trial. However, we accept the assurance of Mr Hilton, who appeared both on the appeal and at the trial, that he would have conducted the case differently had the matters referred to in pars 22 and 23 of the proposed notice of appeal been pleaded on behalf of the appellant. Mr Hilton pointed to three areas which almost certainly would have required further evidence. 81 First, Crown would have resisted the claim that it could not enforce the agreement with the appellant by reason of illegality, by invoking the principle that "the courts should not refuse to enforce contractual rights…merely because the contract is associated with or in furtherance of an illegal purpose, where the contract was not made in breach of a statutory prohibition upon its formation or upon the doing of a particular act essential to the performance of the contract or otherwise making unlawful the manner in which the contract is performed". Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215, at 229, per McHugh and Gummow JJ. That principle would have warranted evidence being adduced to explain the circumstances of any illegality and to show that the sanction of refusing to enforce contractual rights would be disproportionate to the seriousness of the allegedly unlawful conduct: Fitzgerald v Leonhardt, at 230. 82 Secondly, Crown would have relied on the restitutionary principles discussed in Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221. This would have required evidence of the precise benefits obtained by the appellant from Madam Shi's junket, an issue not explored in detail at the trial. 83 Thirdly, Crown would have pleaded a case in estoppel, on the basis that the appellant had represented that if the sum of $2.2 million was paid from his deposit account to Madam Shi's junket, he would take the necessary steps to ensure that the balance of the account was applied to reduce or discharge his indebtedness to Crown. Crown would have pleaded that it acted to its detriment in reliance on the representation. Mr Ellicott argued that no estoppel could have been established, in that Crown had suffered no detriment because it had won from Mr Wong and/or the junket. However, the relevant detriment in this case may have consisted of Crown permitting Mr Wong to gamble, thereby creating the risk that Crown might lose. In any event, it seems to us that it was at least plausible that Crown may have sought to call further or other evidence for the purpose of seeking to establish an estoppel. 84 It is not necessary to decide whether these contentions would have succeeded. It is enough to say that the grounds the appellant sought to raise on appeal could possibly have been met by Crown calling evidence at the trial.

[13]

Reasons Why the Amendment Should be Refused 88 In our view, it is clear that the matters raised in the proposed amendment should have been pleaded if the appellant intended to rely on them by way of reply to Crown's defence (which relied on the agreement of 4 October 2000) or as a defence to Crown's cross-claim (which was also based on that agreement). FCR, O 11 r 6, to which we have already referred, provides as follows: "(1) It shall not in any pleading be necessary to make a general allegation of fulfilment of a condition precedent to a right of action. (2) Any party wishing to deny the fulfilment of any such condition precedent shall plead such denial." 89 The appellant, by his proposed amendment, now seeks to assert that the alleged agreement was subject to an unfulfilled condition, namely a requirement that the agreement be reduced to writing before it bound the appellant. Furthermore, insofar as the appellant now relies on non-fulfilment of the condition precedent in order to rebut Crown's defence, it is a matter which is alleged to make Crown's defence not maintainable or which, if not specifically pleaded, would have taken Crown by surprise: FCR, O 11 r 10(a),(b). 90 We think it equally clear that the condition precedent issue was not raised at the trial. Mr Ellicott pointed out that the appellant's senior counsel had cross-examined Crown's witnesses in relation to Crown's failure to secure the appellant's signature to any document including the agreement. That is true. However, the cross-examination was not directed to establishing the term of an agreement between the appellant and Crown to the effect that the former's funds could be transferred to Madam Shi's junket only if the appellant authorised the transfer in writing. Rather, it was designed to support the appellant's case that no arrangement at all had been made for the transfer of the appellant's funds to Madam Shi's junket, by demonstrating that Crown's employers had failed to implement the practices that would have applied to such an arrangement. 91 No explanation was given as to why the condition precedent issue was neither pleaded nor argued at the trial. We again infer that senior counsel then representing the appellant made a deliberate forensic decision not to pursue the contention. As we have observed, the appellant's case at trial was that he had simply not discussed with Mr Ashton transferring funds to Madam Shi's junket. The appellant now seeks to put an alternative case that if, contrary to his evidence, there had been an arrangement to transfer the funds, it was subject to a condition that he would have to authorise the transfer in writing. If the alternative case had been advanced at trial, it might have been thought to do little to enhance the appellant's principal case. 92 The application to amend the notice of appeal should be rejected for much the same reasons as we rejected the appellant's first application to amend. It would not be in the interests of justice to allow the appellant to put an argument on the appeal that was apparently deliberately not advanced at trial for fear of undercutting the appellant's own evidence. 93 We would have reached this conclusion even if there was no question of Crown calling evidence at the trial to meet the contention now sought to be advanced. However, we accept Crown's submission that it might well have called evidence at the trial to meet the point, had it been pleaded. First, Crown may have adduced further evidence from Mr Ashton and others as to the dealings with the appellant to show that, although Crown's standard practice was to require a written authority for the transfer of funds and although Mr Ashton expected the appellant to sign the relevant documentation, the agreement with the appellant was not conditional upon such an authority. Secondly, Mr Hilton said that Crown would have wished to plead that the appellant was estopped by his conduct from relying on the alleged condition and would have been likely to adduce further evidence to support such a plan. The evidence would have been intended to show that Crown acted to its detriment in reliance on the appellant's representation that if the money were to be transferred to Madam Shi's junket, he would ensure that his outstanding debt was discharged. Once again, it is not necessary to decide whether a plea of estoppel would have been made out. It is enough to say that the defence would seem to have been arguable had Crown been able to establish a factual basis supporting it.

[15]

the appellant's submissions 96 Ground 2 of the notice of appeal summarised the appellant's contentions as follows: "His Honour was in error in relying on demeanour and [credibility] as the determining factor in his judgment in circumstances where there was uncontested testimony incontrovertible fact, strong inferences and strong probabilities that should have led him to find that there was no such arrangement as the Respondent contended or to not being satisfied that such an arrangement existed and that the Appellant's claims for debt and defamation should succeed." It was submitted that in the light of the authorities this was an appropriate case for appellate intervention. Reference was made, in particular, to Fox v Percy, at 208-210 [26]-[31], per Gleeson CJ, Gummow and Kirby JJ and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588, at 589-590 [3]-[4], 606-607 [61]-[64], per Gaudron, Gummow and Hayne JJ; at 620-622 [93], per Kirby J; at 630 [139], per Callinan J. 97 In his oral submissions, Mr Ellicott emphasised that the onus was upon Crown to establish that an agreement as alleged by it had been reached. He contended that the primary Judge had failed to weigh up all of the factors pointing against the existence of the agreement. It was not necessary, so he argued, for the appellant to establish that Crown's employees or anyone else had acted fraudulently. The evidence was consistent, for example, with Mr Ashton and the appellant having misunderstood each other in the course of the conversation that his Honour found had occurred on 4 October 2000. The primary Judge, on a consideration of the evidence, should have found that Crown had failed to discharge its onus of showing that the appellant had authorised the transfer of $2.2 million to Madam Shi's junket. 98 The appellant relied on several matters in particular as casting very serious doubt on Crown's case. 99 First, it was inherently implausible that the appellant would have funded Madam Shi's junket. The appellant was an experienced gambler who did not need a junket in order to gamble at the Casino. Indeed, Mr Ashton's evidence was that immediately before his conversation with the appellant he was unsure whether the appellant intended to play on his own account or to go ahead with the junket. The appellant's evidence was that he had met Madam Shi only on the day the money was transferred to the junket. The appellant, as the primary Judge found, regarded Mr Wong as a reckless gambler, who was not in a good financial position and indeed had refused to advance funds to Mr Wong on a previous gambling trip. Why, then, would the appellant be prepared to let Mr Wong gamble away his (the appellant's) money and watch passively, participating only by squeezing the cards? 100 Mr Ellicott acknowledged that the primary Judge had asked himself this question. But his Honour had answered it by some "informed conjecture" to the effect that there was at least a possibility of a "back to back transaction" which would explain what otherwise seemed inexplicable. Yet his Honour accepted that he was not in a position to find that there had been such a transaction. 101 Secondly, it was an incontrovertible fact that the appellant had not given a written authority for the transfer of $2.2 million from his account with Crown for the use of Madam Shi's junket. Moreover, as the primary Judge found, the appellant was neither unable nor unavailable to sign the relevant form and it was false to say so on the relevant forms. The appellant had signed documents at the Casino on previous occasions. No satisfactory explanation had been given for Crown's failure to follow its standard procedures. In these circumstances, the failure to obtain a written authorisation to apply the very substantial sum of $2.2 million to the junket was inconsistent with Crown's case and its positive defence. 102 Thirdly, the evidence of Crown's witnesses was inconsistent. Only Ms Feng and Mr Geappen said that they had heard the conversation between Mr Ashton and the appellant. Mr Geappen's evidence, as we have noted, was that he heard the appellant say that he needed money to gamble with - and did not hear Mr Ashton mention a junket. Although Ms Feng claimed to have heard the appellant ask Mr Ashton in English to transfer $2.2m into Madam Shi's account and agree to use the balance to reduce his debt, she was not in the cage room, but in the buy-in room next door. Indeed, there were inconsistencies in her evidence on this issue. 103 Fourthly, Crown had not complied with the condition recorded in Madam Shi's junket agreement, namely that "all commission and winnings to be held until all outstandings are cleared by [the appellant]". The commission entitlements, as we have seen, were applied to buy in chips for the junket or were paid to Madam Shi. This fact, so it was argued, cast doubt on Crown's version of events.

[16]

The Principles 104 In Fox v Percy, the joint judgment (at 208 [26]) reaffirmed the significance of the trilogy of cases which had reiterated the High Court's "earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not". The trilogy of cases comprises Jones v Hyde (1989) 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167; and Devries v Australian National Railways Commission (1993) 177 CLR 472. In Devries, Brennan, Gaudron and McHugh JJ said this (at 479): "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." 105 The joint judgment in Fox v Percy went on to emphasise (at 208-209 [27]) that the instruction given in these cases cannot "derogate from the obligation of courts of appeal…to perform the appellate function as established by parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute." 106 Their Honours continued as follows (at 209 [28]-[29]): "Over more than a century, this court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. That this is so is demonstrated in several recent decisions of this court. In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process." 107 Their Honours noted that for a long time appellate judges had given as a reason for appellate deference to the decision of a trial judge the fact that the trial judge is able to assess the appearance of witnesses. But they also pointed out that judges have long cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. They added this observation (at 210 [31]): "[I]n recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical."

[17]

The Present Case 108 The circumstances of this case differ from those of Fox v Percy. There uncontradicted objective evidence as to the location of skid marks on a road directly contradicted the oral evidence of witnesses whose version of events was accepted by the trial judge. The High Court held that the objective fact of the skid marks, which remained unexplained or insufficiently explained by the appellant, justified the New South Wales Court of Appeal in overturning the findings of the trial Judge. 109 Of course, each case must depend on its own circumstances. It would be a mistake to assume that it is only in a case as clear as Fox v Percy that an appellate court should interfere with credit-based factual findings: see SRA v Earthline, at 620-622 [93], per Kirby J. The way it was put in the present case is that the primary Judge erred in concluding that the Crown had discharged its onus having regard to the compelling inferences supporting the appellant available from the uncontradicted evidence. We must give due deference to the primary Judge's credit-based findings, but we must also weigh the conflicting evidence and draw our own conclusions: Devries, 480-481, per Deane and Dawson JJ. 110 In undertaking this task, it is necessary to bear in mind that none of the matters relied on by the appellant was overlooked by the primary Judge. The appellant submitted that his Honour had failed to give them sufficient weight. This is not, however, a case where the primary Judge entirely overlooked important objective facts when making crucial findings. Nor is it a case where the primary Judge incorrectly assumed that because the appellant's evidence was not accepted, Crown had made out its claim on the balance of probabilities. His Honour specifically found that the cross-examination of Crown's witnesses, despite some inconsistency, "did not shake the essentials of their version of events". Clearly, his Honour accepted the account given by Mr Ashton and supported, to varying degrees, by other witnesses. It was not in dispute that this finding was based, at least in part, on the primary Judge's assessment of the credibility of those witnesses. 111 The appellant's submissions, naturally enough, concentrated on matters that appear to favour the appellant's version of events. But as Mr Hilton pointed out, there were several important circumstances that favoured Crown's version of events. 112 The most important is that Crown generated documentation which on its face is consistent with the evidence of Mr Ashton and inconsistent with that of the appellant. It is true that the appellant never signed the critical document, notwithstanding Mr Ashton's evidence that he (Mr Ashton) expected that the cage manager would place the document in front of the appellant and secure his signature. But assuming that Mr Ashton was not acting fraudulently (and Mr Ellicott accepted that he could not submit that the primary Judge should have found that Mr Ashton fraudulently created the documentation), it would seem to follow that Mr Ashton, in giving instructions that resulted in the preparation of the documentation, believed that he and the appellant had reached an arrangement for the transfer of $2.2 million to Madam Shi's junket. 113 The fact that Mr Ashton believed that an arrangement had been reached does not of itself preclude the possibility that he and the appellant misunderstood each other and that in truth the appellant did not mean to authorise the transfer of the funds to Madam Shi's junket. But a second objective circumstance to take into account is that, as the primary Judge recognised, neither the appellant nor Crown's witnesses suggested that there had been any misunderstanding of the conversation. While the cross-examination of Mr Ashton and Mr Geappen referred to the "possibility that there had been a misunderstanding", the questioning was in the context of exploring the appellant's ability to speak English and testing whether a conversation in English had taken place, as Mr Ashton alleged. 114 The cross-examination did not explore the nature of any possible misunderstanding between the parties, or how a misunderstanding could explain the documentation that Crown created. Nor, for that matter, did it explore how $2.2 million of the appellant's money came to be used by Mr Wong and Madam Shi without the appellant's authority. Plainly enough, Madam Shi and Mr Wong were expecting to take part in a junket arrangement with the Casino. After Madam Shi signed the Junket agreement, Mr Wong proceeded to bet large amounts of money derived from the junket to which, in the appellant's version, the junket had no entitlement. 115 In the circumstances we have described, it is perhaps doubtful whether it was even open to the primary Judge to find that there had been some misunderstanding in the conversation between the appellant and Mr Ashton that explained Crown's conduct: Suvaal v Cessnock City Council (2003) 200 ALR 1. In any event, the primary Judge did not err by concluding that the mere possibility of an understanding was insufficient to warrant concluding that Crown had failed to discharge the onus of establishing an agreement in the terms pleaded by it. 116 A third circumstance concerns the relationship between the appellant and Mr Wong. As the primary Judge found, they had known each other since 1990 and had gambled together in 1999. Crown records showed that Mr Wong "played under" the appellant at the Casino in August 1999. On 21 August 1999, the appellant signed an authority for Crown to transfer $30,000 of his commission to Mr Wong. Both played in John Ye's junket in September 1999. 117 As we have explained ([14]-[15] above), the appellant and John Ye arranged for Chinese currency to be "transferred" to hard currency, including Australian dollars, to facilitate gambling at the Casino. On at least one occasion such an arrangement was made for Mr Wong. Ms Feng's written statement of 19 October 2000 recorded that Mr Wong had told her that the appellant was helping him (Mr Wong) to transfer funds. She was not challenged on this evidence. In addition, Ms Zhong's email of 1 October 2000 recorded that $2 million in front money was to be available for Mr Wong. 118 In the light of this evidence, it does not seem to be a very large step to find, on the balance of probabilities, that the sum of $2.2 million used by Mr Wong to gamble at the Casino was provided by the appellant in consequence of a foreign currency transaction between him and Mr Wong. Particularly is this so when the alternative seems to be that Mr Wong gambled away $2.2 million of the appellant's money in the latter's presence but without his authority. 119 The primary Judge was not prepared to go so far as to find that there was a "back to back" transaction between the appellant and Mr Wong, perhaps because the proposition was not put specifically to the appellant. Be that as it may, it was clearly not correct to contend, as the appellant did, that any suggestion of a back to back transaction between the appellant and Mr Wong was mere speculation. It was not necessary for Crown to prove on the balance of probabilities that the appellant and Mr Wong had entered into a particular currency transaction in order to establish the existence of the agreement alleged in the pleading. If, however, the evidence provided a plausible explanation for what might otherwise appear to be an odd transaction, that is a matter his Honour was entitled to take into account in assessing whether the arrangement pleaded by Crown had been established on the balance of probabilities. 120 A fourth objective circumstance is that the appellant left the Casino on 5 October 2000 without making any arrangements for the disbursement of the substantial sum standing to his credit. There was some evidence that the appellant left the Casino hurriedly on 5 October 2003. But even if he did not (as Mr Ellicott submitted), the fact remains that he left without making any arrangements for the repayment or other application of over $1.3 million which, on his version of events, Crown owed him. The primary Judge was well justified in finding that it was inherently unlikely that the appellant would have acted in this way if he believed that he had a credit balance in his account with Crown. 121 A fifth matter to be taken into account is the appellant's ability to speak English. It was part of the appellant's case, as pleaded in the further amended statement of claim, that Crown was aware that he could not speak or understand English, other than a few basic common words. The primary Judge found that the appellant had a greater ability to understand and speak English than he had claimed and had consciously exaggerated his difficulties with English in order to advance his case. 122 These findings of course depend on his Honour's assessment of the evidence. But it is important to appreciate that there was compelling evidence supporting those findings, independent of the testimony of Crown's witnesses. This included the fact that the appellant had lived in Australia for nine years during which he had attended English classes; that in 1984 he was recorded as having fulfilled the criteria for Australia citizenship, one of which was that he met the required standard of English; and that an incident had occurred at Tullamarine Airport on 14 January 1999 in the course of which, as indicated by a contemporaneous note, the appellant showed himself able to communicate in English with a customs officer. 123 When these factors are taken into account, it can be seen that the primary Judge's findings of fact were not simply based upon his assessment of the credibility of the appellant and of Crown's witnesses. On the contrary, there was "objective" evidence which strongly supported Crown's case and which was difficult to reconcile with the appellant's case. 124 Even so, if there was objective evidence which directly rebutted key elements of Crown's case, it still might be open to conclude that the primary Judge had erred, for example, by "fail[ing] to use" or "palpably misus[ing] his advantage" or by making "glaringly improbable" findings of fact. It is true that the factors relied upon by the appellant tend to support his denial that any arrangement of the kind propounded by Crown had been made on 4 October 2000. Nonetheless, these factors are not inconsistent, either when considered individually or cumulatively, with Crown's case. In our view, they do not establish that the primary Judge erred in making the findings he did. 125 First, for the reasons we have given, it was open to the primary Judge to conclude that there was a plausible explanation for the appellant choosing to fund Madam Shi's junket. The appellant's submission that it was inherently implausible for the appellant to agree to provide $2.2 million for Madam Shi's junket should be rejected. 126 Secondly, although it was clearly a serious departure from Crown's established procedures (and from prudent business practice) not to secure a written authority from the appellant for the transfer of funds from his account, the omission was not necessarily inconsistent with an agreement in the terms pleaded by Crown. The issue in this case was whether the appellant had authorised the transfer of funds in the course of the conversation he had with Mr Ashton on 4 October 2000. In resolving this issue, his Honour properly took into account that this was not the first occasion on which Crown employees had failed to obtain the appellant's signature to documents that, if standard procedures were followed, should have been signed by him. The primary Judge had to consider the reasons given for the breakdown in Crown's procedures and weigh that breakdown against other factors, including the documentation created in consequence of Mr Ashton's instructions. 127 Mr Geappen in cross-examination frankly stated that a commercial decision had been made not to comply with procedural guidelines at "the top end of the market". This statement may say a good deal about Crown's management practices and its culture of compliance (or non-compliance) with regulatory requirements. But it also is capable of providing an explanation for the casual approach taken by Crown employees to securing the appellant's signature to a document authorising the disbursement of funds standing to his credit. Unsatisfactory as Crown's practices may have been, it was open to his Honour to accept Mr Geappen's explanation. 128 Thirdly, the evidence of Crown witnesses, with the exception of some aspects of Mr Geappen's evidence, generally supported Mr Ashton's account of events. Although Mr Geappen did not recall Mr Ashton and the appellant discussing the funding of the junket, he gave evidence that Mr Ashton instructed him to apply $2.2 million as front money to the junket, with the balance to be applied to the outstanding debt. This evidence was consistent with Mr Ashton's version of events. It is also to be remembered that Mr Geappen's evidence was quite inconsistent with that of the appellant, who denied that he had a discussion with Mr Ashton concerning the balance of his account. The primary Judge's findings are supported by the substance of the evidence given by Crown's witnesses. 129 Fourthly, Crown's failure to deal with the commission earned by Madam Shi's junket in accordance with the junket agreement does not establish that no agreement had been reached between Mr Ashton and the appellant authorising the transfer of $2.2 million into Madam Shi's junket account. It was plainly an important matter to consider in making the ultimate findings of fact. His Honour did so and concluded that the failure to apply the commission in the manner contemplated by the agreement was due to poor administration. There was some evidence of this, in that Mr Geappen and Mr Subramaniam gave evidence that they would have understood the special condition in the Junket agreement as referring only to the payment of winnings and commission at final settlement - that is, at the conclusion of the junket. Whether or not poor administration was the full explanation for Crown's conduct, this was but one factor to be weighed in the balance in determining whether it had made out its case. 130 In our view, it was clearly open to his Honour to find, on a balance of probabilities, that the agreement pleaded by Crown had been made out on the evidence.

[18]

the proposed amendments 131 As we have noted, the appellant sought leave to amend his notice of appeal to raise the question of whether any indebtedness to Crown should be reduced by the amount of the commissions earned by Madam Shi's junket. The proposed amendment to the notice of appeal would add the following ground: "That, if there was an agreement, as found, his Honour erred: (a) in finding that the payment out to Mme Shi of commissions was 'poor administration'…; (b) in not finding: (i) that it was a term or condition of the agreement that commissions and winnings should be credited to the Appellant's account with the Respondent; (ii) that the Respondent had paid commissions or credited to Mme Shi or the Shi Junket totalling approximately $572,592 which should in accordance with that term or condition have been credited to the Appellant's account with the Respondent; (iii) that if the Appellant was indebted to the Respondent in respect of any liquidated amount it was not $1,388,049.00 as claimed but $815,457 or some other lesser sum than $1,388,049." 132 The application to amend the notice of appeal was accompanied by an application to amend the defence to cross-claim, by adding the following paragraph: "2.1A In the alternative to paragraphs 2.1.1 to 2.1.5 inclusive, if (which is denied) there was an agreement between Mr Ye and the Cross Claimant as alleged in paragraph 12 of the Defence, then Mr Ye says: 2.1A.1 It was an express term and condition of that said agreement that all commissions and winnings arising out of Madam Shi's Junket would be applied to cover the remaining outstanding debt of $1,388,044.00, owed by Mr Ye to the Cross Claimant. Particulars (i) See paragraph [22] of the affidavit of Mr C Ashton sworn 6 May 2002. 2.1A.2 It was an implied term and condition of the said agreement that the Cross Claimant would ensure that all such commissions be applied in reduction of Mr Ye's indebtedness to the Respondent. Particulars (a) Implied from all the circumstances surrounding the creation of the said agreement and the carrying out of its express terms; and (b) Implied to give business efficacy to the said agreement. 2.1A.3 In the period 4 to 6 October 2000 the Cross-Claimant paid commissions arising out of the Shi Junket to Madam Shi in the total sum of $572,592.00. Particulars Particulars of Commission Payments (i) 4 October 2003 $296,000.00 (ii) 4 October 2003 $ 90,000.00 (iii) 6 October 2003 $160,000.00 (iv) 6 October 2003 $ 26,592.00 TOTAL: $572,592.00 2.1A.4 That the Cross-Claimant by paying of commission to Madam Shi was in breach of the said agreement in clause 12 (which agreement is denied), as it had failed to credit the said commissions in reduction of the debt owed (which is denied) by Mr Ye to the Cross-Claimant. 2.1A.5 As a consequence of the said breach, Mr Ye has not been credited to his account the amount of the said commissions. 2.1A.6 Mr Ye claims that the said amount of $572,592.00 or alternatively whatever sum may be found to be equivalent to such commissions should be deducted from his indebtedness to the Cross Claimant (which indebtedness is denied) so that the Cross Claimant's Cross Claim against Mr Ye in debt is at least reduced accordingly."

[19]

the submissions 133 The appellant submitted that the entirety of the evidence on which Crown's cross-claim was based was before the Court. Mr Ashton's evidence, which was accepted by the primary Judge, was that a term of the agreement with the appellant was that the winnings and commission from Madam Shi's junket were to be credited against the appellant's outstanding July debt to Crown (see [34] above). Mr Ashton had instructed Mr Geappen, in the appellant's presence, that commission and winnings from the junket should be used to cover the appellant's indebtedness. The "special condition" recorded in the Junket agreement (to which the appellant was not a party) was in somewhat different terms, as it provided for "[a]ll commission and winnings to be held until all outstandings are cleared". 134 There was no dispute that the commission attributable to Madam Shi's junket totalled $572,592. Of this sum, $546,000 had been "reinvested" in the junket and the balance of $26,592 had been paid to Madam Shi. On the face of matters, in the absence of a further agreement between the appellant and Crown, the failure of Crown to credit the commission to the appellant's account would seem to have breached the terms of the agreement found by the primary Judge to have been made on 4 October 2000. Crown also appears not to have complied with the terms of the special condition recorded in the Junket agreement. 135 Mr Ellicott submitted that the appellant could raise Crown's breach of the agreement on the appeal. He maintained that the issue had been raised "in substance" at the trial and that, in any event, all relevant factors had been established beyond controversy. In these circumstances, there was no relevant prejudice to Crown. 136 Crown opposed the applications to amend the notice of appeal and the defence to cross-claim. Mr Hilton pointed out that the appellant could have defended the cross-claim on the basis that Crown had failed to comply with the terms of the agreement. He attributed the failure to do so to a forensic judgment that such a defence would have been inconsistent with the appellant's principal case. He also pointed out that receiving credit for the amount of commissions would not have advanced the appellant's defamation case, since he still would have been indebted to Crown in a substantial sum. 137 Mr Hilton further submitted that if the appellant had pleaded breach of the agreement as a partial defence to Crown's cross-claim, Crown would have pleaded estoppel, acquiescence, waiver and variation by conduct. Crown would have cross-examined the appellant as to his knowledge of the reinvestment of the commissions in Madam Shi's junket and of the payment to Madam Shi. It would have sought to show that the appellant had authorised or ratified these payments. Mr Hilton acknowledged that Mr Geappen had been cross-examined as to whether to his knowledge the appellant had authorised any departure from the terms of the 4 October 2000 agreement and he had replied in the negative. But he had also said that he assumed that someone else in authority in Crown had approved the alteration. Mr Hilton submitted that if Crown had understood there to be an issue about the application of the commissions earned by Madam Shi's junket it would have been likely to call evidence as to how the decision was made. At the very least inquiries would have been undertaken. Because there was no such issue at the trial, the question had not been explored. Mr Hilton submitted that the Court could not be satisfied that Crown would not have adduced further evidence that "by any possibility could have prevented the point from succeeding": Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, at 438, per Latham CJ, Williams and Fullagar JJ.

[20]

should leave to amend be granted? 138 This application to amend is somewhat different from the two applications we have already rejected. In a sense, the question arises on Crown's own case. Although Crown did not plead a condition requiring commissions earned by Madam Shi's junket to be applied in reduction of the appellant's indebtedness, Mr Ashton's evidence was that he and the appellant had agreed that the commission would be applied in that way. That the commissions had not been applied in the manner contemplated by the agreement must have been known to Crown. 139 The appellant relied at the trial on Crown's failure to apply the commissions in reduction of his indebtedness to support his case that no agreement had ever been made. The primary Judge was not, however, invited to reduce any award in favour of Crown by the amount of the commissions credited to Madam Shi's junket or paid directly to her. There was no explanation proffered for the absence of any such invitation or any pleading alleging that Crown had breached the terms of the October 2000 agreement. It is possible that the appellant's counsel made a deliberate forensic decision not to run the point. On the other hand, it would not seem to have been particularly harmful to the appellant's case to have advanced an alternative argument based entirely on Mr Ashton's evidence and Crown's apparent failure to comply with the terms of the agreement made between Mr Ashton and the appellant. The inference that counsel made a deliberate forensic decision not to plead the point is less compelling here than in relation to the other issues the appellant belatedly sought to raise. 140 As we have noted, Crown did not plead that the agreement of 4 October 2000 contained a condition requiring the commissions earned by Madam Shi's junket to be applied in reduction of the appellant's indebtedness. It may be that, strictly speaking, Crown did not have to plead that term. The starting point for its claim was the appellant's admitted indebtedness in the form of the July debt ($2,797,041). The relevance of the October agreement to Crown's case was that it explained why Crown was seeking to recover only part of the July debt - that is, it explained how the appellant's indebtedness had been reduced (as Crown claimed) to $1,338,992. Crown pleaded the terms of the October agreement that yielded this result on a balance of accounts. On the other hand, Crown's own evidence showed that it was a term of the October agreement (as his Honour found) that any commission earned by Madam Shi's junket was to be used to cover the appellant's indebtedness to Crown. In the interests of completeness, a reference to this term in defence and cross-claim would not have been inappropriate. 141 As the appellant's proposed pleading demonstrates, if he wished to rely on Crown's failure to observe the terms of the October agreement, he should have pleaded that Crown had breached that agreement. Of course no such pleading was filed. 142 The fundamental difficulty facing the appellant is not, however, the failure to plead Crown's breach of the agreement. His failure to plead a breach of the October agreement (or, perhaps, a failure by Crown properly to account for commission) might be attributable to Crown's own failure to plead the relevant term of the October agreement. But the fact remains that the appellant did not contend before the primary Judge that the Commission, or some portion of it, should have been offset against his indebtedness. The issue was never raised. In these circumstances, the question is whether the point now sought to be raised for the first time could possibly have been met by Crown calling evidence at the trial. Had the appellant raised the issue, Crown might have attempted to meet the claim by adducing evidence that the appellant had agreed to the commissions being credited to Madam Shi's junket or to Madam Shi herself. It is true that Mr Geappen was cross-examined on this question, but other Crown witnesses were not. Moreover, Mr Geappen gave evidence that he assumed that someone in authority had approved the payments after discussing the matter, presumably with the appellant. 143 In these circumstances, it is difficult to gainsay Mr Hilton's assertion that had Crown appreciated that the appellant intended to allege that it had breached the October agreement, it would have explored the issue further in the evidence. It might be said that any evidence relevant to that issue could also have been relevant to the dispute as to whether the conversation between Mr Ashton and the appellant took place. That may be so. But we cannot be sure that no evidence was available to Crown which might enable it to establish that the appellant authorised or ratified the payment of commissions to the credit of Madam Shi's junket or to her directly. 144 Even if we were wrong in this and leave to amend should be granted, this would still not result in the damages being reduced by $572,592. There are two reasons for this. One is that this amount would seem to include the payment of commission upon commission. Such commission upon commission would not have been payable if the commission had been immediately credited against the appellant's debt. No-one has been able or willing to inform the Court what that amount is. It may be a matter on which evidence is required. The second, and more important reason is that the amount to be credited against the appellant's debt may not have been all amounts credited to the junket account for commission, but only those amounts remaining at final settlement. Mr Ashton gave evidence (which was accepted) that the agreement was that Crown would credit against the appellant's debt the amounts payable to the junket on account of winnings and commission. It might be expected that the reference to winnings would refer to winnings at final settlement. As already noted, in relation to commission Mr Geappen gave evidence that in the casino industry the word "commission", when used in relation to junkets and the like, means commission at final settlement, rather than as calculated from time to time. Ms Feng expressed an apparently contrary view. The evidence on this issue was not fully pursued and no findings were made in relation to it. However, if Mr Geappen's evidence were accepted then the amount by which the appellant's debt should have been reduced would not be $572,592, but only the amount of the final payment to Madam Shi, being $26,592. 145 These issues merely highlight the point we have already made. The questions of what commission was payable, how it should be applied and what effect it would have in reducing the appellant's indebtedness to Crown were not pleaded and were not argued at trial. We cannot be satisfied that further evidence would not have been called if these issues had been raised and pursued when they should have been. It follows that the appellant must be refused leave to amend the notice of appeal or the defence to cross-claim, notwithstanding that the effect of doing so would seem to be that Crown will profit from its own "poor administration".

[21]

the charges against ms feng 146 One of the grounds of appeal was that: "His Honour prior to delivering judgment became aware of and on delivering judgment provided to the parties a copy of certain published material which, if true, would throw considerable doubt upon the credibility of Vivian Feng and that rather than drawing it to the notice of the parties upon giving judgment His Honour in the circumstances where credibility was paramount in his decision should have, prior to delivering judgment afforded the Appellant the opportunity to consider the material and to seek leave to recall Vivian Feng for further cross examination based on the circumstances referred to in that material". 147 The circumstances that gave rise to this ground were as follows. The primary Judge delivered reasons for judgment on 23 May 2003. He made no final orders at that time, but stood the proceedings over until 3 June 2003 for the parties to bring in short minutes of order to give effect to the reasons and to allow argument as to costs. 148 At the conclusion of the hearing on 23 May, the primary Judge's Associate handed to each party a copy of a recent newspaper report. This suggested that Ms Feng had been charged with stealing some $250,000 in foreign currency from "high rollers" at Star City Casino in Sydney. The report did not make it clear when the alleged offences had been committed, although it implied that they had occurred early in 2003. This was after Ms Feng had given evidence at the trial and been released as a witness. Indeed, by early 2003, all the evidence and submissions had been completed and judgment had been reserved. 149 During the period from 23 May 2003 until the making of orders on 3 June 2003, the appellant did not apply to the primary Judge either to adduce further evidence or to delay making final orders pending further investigations of the matters reported by the newspaper. In the absence of any such application, the primary Judge made final orders on 3 June 2003. 150 On the appeal, it was argued that the primary Judge should not have delivered his reasons without offering the parties the opportunity of further cross-examining Ms Feng as to her credit by reason of this new information. Without acceding in any way to the proposition that the primary Judge was under any obligation to have done so, it is clear enough that in this case the appellant's legal advisers had ample opportunity to take such steps as they might have been advised, with a view to cross examining Ms Feng before the final orders were made and entered. The fact is that they did not do so. There can be no criticism of the primary Judge because they chose not to pursue a matter that had been drawn to their attention.

[22]

SHOULD further evidence BE PERMITTED? 151 The appellant pursued the question of the charges against Ms Feng by filing a motion in the appeal seeking to put before this Court fresh evidence in the form of an affidavit by Ms Feng. The affidavit annexes a transcript of an interview given on 1 February 2003 by Ms Feng to a police officer. In this interview, it appears that Ms Feng made certain admissions concerning the theft of money from a patron of Star City Casino on 31 January 2003. 152 The purpose of this affidavit is presumably to identify issues that might be pursued if the proceedings were remitted to the primary Judge to enable further cross-examination of Ms Feng to take place. The material in the affidavit is, however, relevant only to Ms Feng's credit. There is nothing to suggest that the evidence she gave in the proceedings was false. Nor does it suggest that there was any conspiracy among Crown employees or others, either of the kind identified by the primary Judge or to give false evidence. The only apparent significance of the affidavit is that Ms Feng accepts that she made admissions to the police in relation to an offence that allegedly occurred after the close of evidence at the trial. 153 As Mr Ellicott accepted in argument, if Ms Feng had committed an offence of dishonesty after the orders of the primary Judge had been sealed then, absent some fresh evidence of a conspiracy to pervert the course of justice (or something similar), the appellant could not seek, on appeal, to have the orders set aside for the purpose of permitting further cross examination of Ms Feng. That concession was plainly right. It is equally clear that the orders cannot be set aside in this case for that purpose. As we have noted, there was no application before the trial Judge either to cross-examine Ms Feng further or to delay the making of final orders so that further investigations could be pursued. No evidence was concealed or withheld by Crown during the trial. In any event, the material sought to be pursued in cross examination is of insufficient probative weight to suggest that a further opportunity to cross examine Ms Feng should now be afforded to the appellant, even assuming that it would otherwise be appropriate to do so. 154 The appellant also sought to adduce further evidence from Mr Wong and Mr Judd, the appellant's solicitor. Mr Judd deposed to an interview he conducted with Mr Wong in August 2001, well before the trial commenced. According to Mr Judd, Mr Wong later informed the appellant that he would not be prepared to meet with the appellant's lawyers and would not be prepared to swear an affidavit. Subsequently Mr Wong could not be traced. Apparently at this time he was being investigated for a "substantial fraud" and was being "sought by the police". No application was made by the appellant for a subpoena to be issued requiring Mr Wong to give evidence at the trial. 155 Subsequent to the trial it seems that Mr Wong's whereabouts were discovered and attempts were again made for him to execute an affidavit. This time the efforts were successful. According to Mr Wong's affidavit there was no arrangement between him and the appellant for the latter to provide moneys to enable Mr Wong to gamble. Instead Mr Wong was afforded $2.2 million credit in "Madam Shi's junket". The affidavit also refers to a subsequent loan of $100,000 afforded to him by Crown and the procedures that he had to go through to obtain that loan. Mr Wong acknowledges that the amount of that loan is still outstanding to Crown. It would seem implicit that Mr Wong does not claim that the credit of $2.2 million was provided by the Casino. He gives no hint as to who he thought did provide it, beyond recording a belief that Madam Shi had arranged a loan for the junket funds. Mr Wong also asserts that he did not hear the appellant talking to Madam Shi or any Crown employee about putting any money into her junket. 156 It is clear from Mr Judd's affidavit that the affidavit originally drafted for execution by Mr Wong contained a statement that he was willing to give oral evidence by video link. The final affidavit contains no such statement. There is nothing before us to suggest that Mr Wong would be prepared to give oral evidence in the proceedings. 157 The principles for the reception of fresh evidence in this Court were recently re-affirmed in Gao v Official Trustee in Bankruptcy [2003] FCAFC 84 at [23]: "The Full Court of the Federal Court in Cottrell v Wilcox [2002] FCA 232, following the judgments of the High Court in CDJ v VAJ (1998) 197 CLR 172, made it plain that the statutory power to receive further evidence under s 27 of the Federal Court Act on appeal is not governed by common law rules governing the reception of fresh evidence. That power is confined only by the requirement that it be exercised judicially and consistently with the judicial process: at 184-186 per Gaudron J." 158 In general, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing. That is plainly this case. The importance of Mr Wong's evidence was obvious. He was interviewed. Although Mr Wong then "disappeared", no steps appear to have been taken to have him found. No adjournment of the proceedings was sought for the purpose. None of the Court's procedures for compelling prospective witnesses to attend was invoked. 159 Moreover, evidence should not generally be admitted on an appeal unless it is cogent and likely to affect the outcome of the proceedings. Mr Wong's evidence is not of that kind. The important issue upon which Mr Wong could give evidence is whether or not there was some pre-existing arrangement by which the appellant's money was to paid to the Junket account. Mr Wong's affidavit is limited to what he heard. He says nothing of what he knew or understood. Consequently the affidavit does not deal with the question of whose money Mr Wong thought he was using when gambling on 4 October 2003, beyond suggesting that Madam Shi had arranged a loan. As was put by Mr Hilton, the affidavit "is more conspicuous for what it does not say than for what it does say." 160 Finally, there is absolutely no reason to think that if the affidavit material were received as fresh evidence Mr Wong would make himself available to be cross examined, Mr Judd's affidavit discloses that Mr Wong will talk to the appellant, but not to the appellant's solicitors. And, as already mentioned, the annexures to that affidavit disclose that the draft statement of Mr Wong's preparedness to give evidence via video link has been deleted. As Mr Ellicott properly accepted, even if the evidence was admitted, Mr Wong may not turn up at any further hearing. 161 In the circumstances, the affidavit of Mr Wong dated 24 September 2003 should not be received into evidence. Nor should the affidavit of Mr Judd sworn on 3 November 2003. The motion should be dismissed.