Nguyen v Pham

Category: Principal judgment

Parties: Kim Huyen Tran Nguyen (Plaintiff)
Ngoc Tuan Pham (Defendant)

Representation: Counsel:
Mr Anthony Hopkins (Plaintiff)
Mr Ahmed Rizk (Defendant)
Solicitor:
Quy Lawyers (Plaintiff)
Long Saad Woodbridge (Defendant)

File Number(s): 2020/00263747

Publication restriction: Nil

Judgment

1. Ms Nguyen (the plaintiff) claims that she made 2 loans to Mr Pham (the defendant), both of which he has failed to repay. She says that the first was a loan of $100,000 and the second a loan of $50,000.

2. Mr Pham denies borrowing or receiving any money from Ms Nguyen. He even denies knowing Ms Nguyen.

3. Ms Nguyen claims that she made the second loan to Mr Pham pursuant to a written loan agreement and an unregistered mortgage, both of which were signed by Mr Pham and said to have been witnessed by Mr Quang L Nguyen.

4. Mr Pham denies signing either document. He also denies signing a caveat at the same time. He called a handwriting expert to support his case.

5. Ms Nguyen is a beautician by occupation. Mr Pham is a real estate agent and justice of the peace. He has an office in Cabramatta.

6. Ms Nguyen, Mr Pham and Mr Quang L Nguyen each gave evidence by affidavit and were cross-examined. The handwriting expert provided a written report and also was cross-examined.

7. On Ms Nguyen’s account of events, there was another person who played a central role in the transactions but did not give evidence to the court. She was variously referred to in the evidence as Diana, Kim and Bich. A copy of a “Photo Card” in evidence gave her full name as Kim Khanh Huynh. Ms Nguyen said her full name was Diana Kim Khanh Huynh. She also referred to her as “god sister”, which she explained meant that their friendship had become very close. Mr Pham said he knew the same person as his tenant. I will refer to her either as Bich or Diana, as the parties mostly did. However it is important to understand that they are one and the same person.

A. THE PARTIES PLEADED CASES

8. Both parties verified their pleadings. As a consequence, Ms Nguyen swore in an affidavit that she believed the allegations of fact in her statement of claim were true; whilst Mr Pham affirmed that he believed that the allegations of fact in his defence were true and that the allegations of fact in the statement of claim he denied were untrue.

A.1 The plaintiff’s version of events according to her verified statement of claim

9. In so far as concerns the first loan, Ms Nguyen alleged as facts in her verified statement of claim filed on 10 September 2020 that:

9.1 by a contract made on 16 May 2019 between herself and Mr Pham, she agreed to lend Mr Pham the sum of $100,000 and he agreed to repay it on 16 November 2019 (paragraph 3);

9.2 she advanced the $100,000 to Mr Pham on the same day (16 May 2019) (paragraph 5);

9.3 it was a term of the agreement that Mr Pham would pay to the plaintiff “interest on so much of the principal sum which remained outstanding at the rate of 2% per month, such payments to be made on 16 June 2019 while any part of the principal sum remained outstanding” (paragraph 4).

10. Some particulars of the agreement were given in the statement of claim. Whilst particulars are not allegations of fact, it was said that the agreement “was wholly oral, in the form of a discussion between the plaintiff and defendant at Cabramatta on around April 2019”. It was also said by way of particulars that “(t)he sum was placed into the defendant's savings account at the Cabramatta Branch of the ANZ Bank by way of a deposit at the branch”.

11. It was alleged that in breach of this agreement Mr Pham had failed to repay the loan on 16 November 2019 and had failed to pay any interest due to the plaintiff since 16 June 2019 (paragraphs 6 and 7).

12. Salient features of the first loan as pleaded were that it was alleged to have been made pursuant to an oral contract agreed between Ms Nguyen and Mr Pham, that Ms Nguyen advanced the money to Mr Pham, that the loan was to be for 6 months and that Mr Pham was to pay interest at 2% a month. The statement of claim made no mention of any involvement by Diana.

13. In so far as concerns the second loan, Ms Nguyen alleged as facts in her statement of claim that:

13.1 by a contract made on 10 March 2020 between herself and Mr Pham, she agreed to lend Mr Pham the sum of $50,000 and he agreed to repay it within 6 months;

13.1 she advanced the sum of $50,000 to Mr Pham in around February 2020;

13.1 it was a term of the agreement that Mr Pham would pay to the plaintiff interest in accordance with cl 5.2 (and elsewhere) of the agreement.

14. Particulars of the agreement were given in the statement of claim. It was said that the contract was “in writing entitled ‘Loan Agreement’ and executed by the parties including a signed mortgage”. It was also said by way of particulars that the money “was given to the defendant in cash in around February 2020”.

15. It was alleged that in breach of the agreement Mr Pham had failed to pay any interest due to the plaintiff since 10 April 2020 (paragraph 12).

16. Salient features of the second loan as pleaded were that it was alleged to have been made pursuant to a written contract made on 10 March 2020 between Mr Nguyen and Mr Pham, that Ms Nguyen advanced the money to Mr Pham before the contract was made, and that the loan was to be for 6 months. Once again, the statement of claim made no mention of any involvement by Diana. Further, the loan was said to have been agreed and advanced at a time when Mr Pham was alleged to have been fully in default under the first loan – it was alleged that he had failed to repay both principal and interest under the first loan as promised.

A.2 The defendant’s response to the statement of claim, according to his verified defence

17. In his verified defence filed on 18 October 2023, Mr Pham denied Ms Nguyen’s allegations of fact. He also alleged that:

17.1 he did not enter into any loan agreement with Ms Nguyen;

17.2 he had not received $150,000 or any other sum from Ms Nguyen; and

17.3 his purported signature on the written Loan Agreement was not his signature, and had not been written by him or affixed with his knowledge or permission.

B. THE PLAINTIFF’S EVIDENCE ABOUT WHAT HAPPENED

18. Ms Nguyen has given a number of different accounts of the facts surrounding the making of the alleged loan contracts with Mr Pham and the alleged advancement of funds to him. It is necessary to refer to them in some detail because her reliability and credibility as a witness is in issue, as is Mr Pham’s, and Mr Quang L Nguyen’s.

19. In this part of my reasons, my aim is to identify the critical aspects of Ms Nguyen’s accounts of events, not to make findings of fact. My findings of fact will come at a later stage.

B.1 The plaintiff’s version of events according to her affidavit of 28 November 2023.

20. In her affidavit of 28 November 2023, Ms Nguyen gave evidence that she had known Mr Pham since 1990 when she was in high school. She said that he used to have a travel agency in Cabramatta and he was one the first travel agents to sell airline tickets to Vietnam after a trade embargo was lifted in the early 1990s. She said that she accompanied her mother to Mr Pham’s travel agency when her mother purchased tickets from Mr Pham to travel to Vietnam in the 1990s. She said his travel agency was located in John Street, Cabramatta.

21. Ms Nguyen said that since 2017 she had met Mr Pham and his wife “when I go to the Star Casino”. She did not say how often she went to the casino, but said that Mr Pham and his wife went there “regularly”. Ms Nguyen said she also met Mr Pham in John Street in Cabramatta when she went shopping.

First loan

22. Ms Nguyen did not set out in direct speech in her affidavit the details of any conversation she said she had with Mr Pham concerning the first loan. All she said was “The defendant, Bich and I met and discussed in April and May 2019”. To the extent that she referred to what they discussed, her evidence was:

“We came to agree that:

(a) I would lend the defendant the sum of $100,000.00;

(b) The funds would be deposited in his bank account;

(c) The term would be six (6) months;

(d) The interest would be 2% per month. The first payment would be due on 16 June 2019; and

(e) After 6 months, interest would be 4% per month.”

23. Ms Nguyen did not say when Mr Pham, Bich and she “came to agree” those matters.

24. As to advancing the funds, Ms Nguyen said that on 16 May 2019 she “arranged for the sum of $100,000 deposited” in Mr Pham’s bank account with the ANZ Bank. She exhibited to her affidavit what she said was “a copy of texts sent to me by Bich advising me that she has arranged for the funds to be deposited” into Mr Pham’s account. The exhibited text messages were in Vietnamese. Ms Nguyen translated the Vietnamese into English as follows:

“Bich: This is the withdrawal I transferred to his account, 100k, withdrawn and deposited at ANZ bank Cabramatta …

Ms Nguyen: 100k transaction name Bich put in brother Tuan’s account is that right sister?”

25. This evidence was admitted subject to limiting Ms Nguyen’s evidence about what Bich said to proof of the fact Bich said it, rather than the truth of what she said.

Second loan

26. Ms Nguyen’s affidavit evidence about the second loan was as follows:

26.1 She said that “In January and February 2020 the defendant, Bich and me met and discussed.”.

26.2 To the extent that she gave evidence of what they discussed, Ms Nguyen said:

“We came to agree that:

(a) I would lend the defendant the sum of $50,000.00;

(b) The funds would be given to him in cash;

(c) The term would be six (6) months; and

(d) The interest would be 2% per month. The first payment would be due on 16 June 2019.

(e) As he had not repaid me the first loan, he would sign a Loan Agreement, Mortgage and Caveat documents over the property located at 82 Oakey Forest Road, Marrangaroo.”.

26.3 Ms Nguyen did not say when Mr Pham, Bich and she “came to agree” those matters.

26.4 She said that she advanced to Mr Pham “cash in the sum of $50,000 in February 2020”.

27. Ms Nguyen then said that “The second loan agreement was followed by a number of communications between the defendant, Bich and myself through text messages and meetings in person.”. She did not say what she meant by “the second loan agreement”. The natural reading of her affidavit is that she was referring to the earlier paragraphs of the affidavit (which I have just set out), rather than the term defined as such in the statement of claim.

28. Ms Nguyen then referred to and exhibited to her affidavit what she said were copies of “text messages sent between the defendant and Bich in Vietnamese”, some of which were said to be sent on Friday 31 January and another on Friday 28 February. Ms Nguyen set out English translations of parts of the text messages in the body of her affidavit. She said that she was referred to in the texts as “Huyen”. She claimed that “Tommy” was Mr Pham’s name used on Facebook.

29. Ms Nguyen did not say in her affidavit how she came by these messages. Nor did she say that they had been passed on to her at the time. Mr Pham denied that he had written or received any of these messages. Their provenance and authenticity is in issue. Ms Nguyen translated parts of the messages from Vietnamese into English as follows:

2:04 Friday 31 January

Tommy: Bich in the afternoon before you go to Huyen's place pick uncle T .. . at shop

5:10 Friday 31 January

Tommy: Bich remember Huyen ... very urgent .... Tomorrow morning go to house number 4

Bich: Yes uncle

10:29 Friday 31 January

Bich: I asked for the money, 20k is available but I want to ask for more, tomorrow afternoon 2 o'clock I will have an answer. If not what I want, I still have the 20K for you

(no date)

Possibly next Thursday or Friday you can sign the caveat for number 2 for Huyen. By all means I will keep the property.

(no date)

Bich: Uncle, go to a lawyer to do the caveat for Huyen today.

Tommy: I asked a lawyer friend but they don't do it ... Please ask Huyen to do ...

Bich: Yes uncle. I will ask Huyen to do.

2:53 Friday 28 February

Tommy: Bich .. . , have you asked Huyen or someone else to help with the money??? Because uncle T can not delay the Bank??? There a number of Bill to be paid . . .. surely die ...

(no date)

Bich: If there is valuation report, you can sign the documents immediately, because not enough documents, tomorrow they do valuation, the next day you sign.

Tommy: Full valuation report ... uncle T just sent you 2 minutes ...

30. Ms Nguyen then said that “After those text messages were sent, I received by email the defendant’s passport and driver license. I also received council rates notice and valuation for the properties at 82 Oakey Forest Road, Marrangaroo.”. Ms Nguyen did not say from whom she received the email with those documents. She exhibited copies of the 4 documents to her affidavit. The first was a photograph of Mr Pham’s New South Wales Driver Licence. The second was a page from his passport. The third was a copy of a Lithgow City Council rate notice for the property 82 Oakey Forest Road Marrangaroo, addressed to Mr N T Pham at that address. The notice said the date of posting was 15 July 2019 and the date payment was due was 31 August 2019. The fourth document was an 11 page “Residential Valuation & Security Assessment for Mortgage Purposes” of that property. The inspection and valuation dates were stated to be 13 September 2019; the lender, Pepper Home Loans; and the borrower Ngoc Pham.

31. Ms Nguyen said that she then instructed her solicitors to prepare “Loan Agreement, Caveat and Mortgage based on those documents”.

32. Ms Nguyen said that on 25 March 2020 she received from her solicitors and handed over to Mr Pham mortgage, loan and caveat documents. She exhibited a copy of the covering letter from her solicitor enclosing those documents. The letter was from Mr Karl Quy of Quy Lawyers. (I note that Mr Quy was still acting for Ms Nguyen at time of the hearing. He is the solicitor on the record for her in these proceedings.) The letter was dated 25 March 2020 and addressed to Mr Ngoc Tuan Pham 82 Oakey Forest Road Marrangaroo. It stated:

“Dear Mr Pham,

Re: Your advance from Kim Huyen Tran Nguyen Security property: 82 Oakey Forest Road Marrangaroo NSW 2790

As solicitors for the mortgagee, we enclose the following:

1. Mortgage in duplicate;

2. Deed of Loan in duplicate;

3 Caveat; and

4. Bill of Costs.

Please read the documents, sign and return to us.

If you have any queries, please contact our office.

Yours faithfully,

QUY LAWYERS”

33. Ms Nguyen said that “A few days later, I received from the defendant signed documents”, and she exhibited to her affidavit “a copy of the documents signed by the defendant”. The 3 documents exhibited and said to have been “signed by the defendant” are the Loan Agreement, Mortgage and Caveat. Mr Pham denies signing these documents or giving them to Ms Nguyen. The authenticity of his signature on these documents is contested.

34. Ms Nguyen concluded her affidavit by saying that she had not seen Bich for 3 years, she had tried to find her but had not been successful and “I am still trying to find her”.

B.2 The plaintiff’s caveat and statutory declaration of 18 April 2020

35. The copy of the Caveat exhibited to Ms Nguyen’s affidavit includes a statutory declaration made by Ms Nguyen and witnessed by her solicitor, Mr Quy, on 18 April 2020.

36. In making the statutory declaration, Ms Nguyen solemnly and sincerely declared that she had a good and valid claim to the estate or interest as set out in Schedule 1 of the caveat. The estate or interest claimed in the Schedule was as an equitable interest as an unregistered mortgagee by virtue of an instrument being a “MORTGAGE & DEED OF LOAN” dated 1 March 2020 between Ms Nguyen and Mr Pham.

B.3 The plaintiff’s version of events according to her email to the defendant on 29 June 2020

37. A title search in evidence (Exhibit D) appears to show that the caveat was lodged with NSW Land Registry Services on 11 June 2020.

38. On 19 June 2020, Mr Pham made his own statutory declaration about the caveat, which he then provided to Ms Nguyen’s solicitors. In his statutory declaration, Mr Pham said:

“Urgent requested to withdrawn the Caviet lodged by your firm

I received the noticed from NSW Land Registry Services that your firm lodged the Caviet to my house (Land title reference 1/1227647) without my consent.

I believed and confirmed that:

1***.*** I never met or contact with your client Kim Huyen Tran Nguyen.

2. I never make agreement or received any funds from this person.

If your firm does not withdraw the Caviet within 14 days, I will ask the legal processing.”

39. Ms Nguyen’s solicitors obviously passed a copy of Mr Pham’s statutory declaration on to her, because on 30 June 2020 they sent an email to Mr Pham forwarding an email they had received from Ms Nguyen. The solicitors told Mr Pham that they had been instructed to forward an email from their client “addressed to you for your attention”. The forwarded email had been sent by Ms Nguyen to her solicitors the evening before, on 29 June 2020. The content of this email has a significant bearing on my decision in this case. I therefore set it out in full. In the email, Ms Nguyen said to Mr Pham in response to his statutory declaration of 19 June 2020:

“Dear Anh Tuan,

I asked my lawyer for permission to personally address contact conversation to you, in response to your Declaration Form that you sent to my lawyer. You are right, that I don't know you, but I'm sure that you know me. l'm also really sure that you know Kim Khanh Huynh as well.

Let me explain Kim Khanh Huynh's situation to you:

On the 2nd of January 2020, she came to my house to borrow $50,000 in which I withdrew from my Westpac account to lend to her. Then, sometime late January, she came back again, crying and explained to me that she expected the money from Uncle Tuan (you) to pay back to her God Sister, as it was due. She said that she's pregnant and very stressed about the situation. She doesn't know what to do, as well as she asked if I was able to help her pay and she will repay me back with monthly interested within 4 weeks, starting when her uncle returns the sum of $150,000. She then stated that if she failed to repay me back, because of her uncle not paying her in time, she'd ask him to put my name, "Kim Huyen Tran Nguyen" on the caveat of the property located at 82 Oakey Forest Road, Marrangaroo, NSW, 2790 as that house she had lent to her uncle as a favour for his deposit, and now is the time to pay it back.

Early February, I lent her an additional $100,000 in which I withdrew from my husband Westpac account and after 2 weeks, she realised that she was unable to repay me on time, so she asked you for all the legal documents and ID required for the caveat and she asked if I could put down $100,000 only as your request. Once the papers were prepared by my lawyer, ready for you to sign, she said that you asked to put down only $50,000 for some of your personal reasons, however, that paperwork of $100,000 still stands with my lawyer as it is still lodged on their computer files.

The caveat and second mortgage was legally lodged with my name "Kim Huyen Tran N" with amount of $50,000

Kinh,

Kim Huyen.”

40. There is no question mark over the authenticity of this email. It represents Ms Nguyen’s considered response to Mr Pham’s statutory declaration. It presents a very different account of events to that portrayed by Ms Nguyen in her statement of claim and affidavit. I will return to the details of those differences later.

B.4 The plaintiff’s version of events according to her oral evidence at the hearing on 22 and 23 May 2024

41. Ms Nguyen’s affidavit was in English and there was no indication on the face of the affidavit that it had been translated into Vietnamese before she had signed it.

42. At the commencement of Ms Nguyen’s oral evidence, her counsel explained that prima facie Ms Nguyen did not need an interpreter but for caution an interpreter had been arranged to attend court in case there were specific questions Ms Nguyen had trouble understanding. On that basis a Vietnamese interpreter was sworn and was available to Ms Nguyen throughout her evidence. As it happened Ms Nguyen gave almost all of her oral evidence in English and answered questions put to her in English without the assistance of the interpreter. In the course of her evidence she agreed that she was able to read English.

43. I make no attempt to summarise all of Ms Nguyen’s oral evidence. I will identify what I consider to be the most important aspects of it.

(i) The making of the first loan of $100,000

44. According to Ms Nguyen’s oral evidence, in relation to the first loan of $100,000:

44.1 Diana and Mr Pham came to Ms Nguyen’s house in late April 2019. Ms Nguyen was friends with Diana, not Mr Pham. Diana told Ms Nguyen that she had bought 2 properties but they were in Mr Pham’s name. She told Ms Nguyen because of immigration she could not have her name on it. They both told Ms Nguyen they wanted to borrow the money. They were going to repay the money to Ms Nguyen by remortgaging after 6 months. Ms Nguyen was not sure if the money was to be used to buy a property or just to help as they were running low on money; she did not know. In this discussion she agreed that they would both borrow $100,000 from her.

44.2 Ms Nguyen acknowledged that in her affidavit she had said she agreed she would lend “the defendant” (Mr Pham) the sum of $100,000 and had not said she would lend Mr Pham and Diana the sum of $100,000. She said the reason she only referred to “the defendant” was because when they had discussed it the house was under his name and “the house is to secure of my loan”.

44.3 Ms Nguyen did not transfer $100,000 to Mr Pham. Mr Pham and Diana came to her house together around the 10th, the 13th to pick up the money and she gave it to both of them in cash. She already had $50,000 in cash at home from her personal savings and borrowed another $50,000 cash from 2 friends. One friend, Helen Pham, dropped off $20,000 cash to her home in about early May. The other friend, Linda Beydoun, whom she also described as her sister and god sister, dropped off $30,000 on the day that Mr Pham and Diana picked up the money, which Ms Nguyen thought was around the 13th after Mother’s Day. She agreed that the money was ultimately going to be put into Mr Pham’s bank account, but she did not know whether the money went into Diana’s account. She said that she knew, but did not say how, that “both of them are at the bank, ANZ, to deposit but I don’t know from the bank account or in cash. I don’t know”.

44.4 Ms Nguyen borrowed the money from her friends without interest and repaid them when she remortgaged her house. She could not remember when she did that. She could not remember roughly what year. She said she remortgaged her house a couple of times. She was still friends with both women.

44.5 The first payment of interest was due on 16 June 2019, but Mr Pham and Diana did not pay. Diana explained to Ms Nguyen that because the house had not been settled yet, or refinanced, there was no money they were able to pay and Diana asked if Ms Nguyen was able to wait. Then month after month Diana told her to wait. Ms Nguyen said that both Diana and Mr Pham said to her around toward the end of June “We can’t afford that money at the moment so please have to wait to whenever we pay the hundred together with the interest or the settlement of the payment”, and Ms Nguyen said “All right. Make sure when the settlement, that is what you have to pay me”. Ms Nguyen said this was an agreement.

44.6 When the time for payment of the $100,000 plus interest arrived in November 2019 Diana and Mr Pham did not pay. Both Diana and Mr Pham came to Ms Nguyen’s house and begged her that they could not pay. They both said to her “I tried to do the remortgage but it’s fail”. Diana said “I’m so sorry that I fail my word with you. We can’t able to remortgage the house though I really need more time.”. Mr Pham said “yes, we can’t able to remortgage as yet so we all do really need more time.”. Ms Nguyen said “No, this is over the time that we agree. I really need it and I really need that money back.”.

(ii) The making of the second loan of $50,000

45. Ms Nguyen’s oral evidence about the discussions leading to the making of the second loan of $50,000 and the advancement of funds was disjointed, confusing and difficult to follow. No doubt this was in part due to the fact that much of it emerged for the first time during cross-examination, rather than by way of a narrative in her affidavit or in oral evidence in chief. I will not attempt to synthesise her oral evidence into a comprehensive whole. What follows are some critical aspects of her oral evidence in the order in which she gave it.

46. According to Ms Nguyen’s oral evidence, in relation to the second loan of $50,000:

46.1 (Transcript Day 1 p.64-65:) Diana and Mr Pham both came to Ms Nguyen’s house together and spoke to her. The evidence did not identify when this happened, other than when January, February 2020 came around. Diana and Mr Pham said that they needed another $50,000 to renovate the property so the value of the house will be higher so they can remortgage. They both said to her “We need to renovate the property”. They both said to her “We need $50,000”. They both said to her “We want to borrow it from you”. They both said we both borrow and we both have to repay. Ms Nguyen said “Why would I possibly give you money given you still owe me over $100,000.”. They said “if I don’t help them, then there is no way that they can remortgage their house with the higher value to pay me back”. Ms Nguyen did not ask for proof that they had bought the property because “I trusting Diane in a way of I have the receipt of her deposit”. This last statement did not quite make sense but was not explored further in cross-examination. Ms Nguyen agreed that she trusted Diana because they “were very close”.

46.2 (Transcript Day 1 p.65:) The first time when they both came and asked for more money Ms Nguyen refused because “the first money not pay”. This was in January.

46.3 (Transcript Day 1 p.66-67:) She gave them the $50,000 in 2 parts. She gave them $20,000 around 31 January or 1 February 2020 and then she gave them the balance of $30,000 around the 20th, 21st, or 22nd of February 2020.

46.4 (Transcript Day 1 p.67-68:) When they came to see Ms Nguyen the second time, in February 2020, “they said the house already settle. And I said ‘I need something to secure, to prove that’ so they offer me one of their house, but I ask to put on both of the house for 150, but because they said save the money with legal fees, I already have the, the receipt of the 100,000 that went into Uncle Tuan. So therefore we agree to 50,000 on one of the title deed”. During this conversation Ms Nguyen said, "I want secure". Her evidence was “so that is where they promised to do the caveat. They also offer me to do the caveat, they're willing to do it, not I'm forcing them to do it. I was asking and they also willing to offer me with the caveat. But I ask for 150.”.

46.5 At some point in this conversation Ms Nguyen said “I want the security because you already owe me money so I don’t want to lend more money without security”. When Ms Nguyen said she wanted security, “so that is where they promised to do the caveat. They also offer me to do the caveat, they're willing to do it, not I'm forcing them to do it. I was asking and they also willing to offer me with the caveat. But I ask for 150.”. After she had refused at the first meeting and they came back to her they said they were running behind on council rates and certain other bills “so they really need to fix it before the bank whatever”. She gave them the $20,000 before they did the caveat.

46.6 (Transcript Day 1 p.69:) The first $20,000 she gave them came from cash she already had. The balance of $30,000 she gave them came from the proceeds of a loan she had organised for her personal use. The money from that loan arrived on 20 February, and so she thinks she gave it to Diana and Mr Pham the day after.

46.7 (Transcript Day 1 p.80:) She gave the $20,000 in January 2020 to both Diana and Mr Pham, and also the $30,000 in February 2020 to both Diana and Mr Pham.

46.8 (Transcript Day 2 p.2-3:) About the conversation (or discussion ) and agreement referred to in paragraph 13 of her affidavit, Ms Nguyen’s evidence was:

Q. Was the conversation, that you say happened, late January where the terms you describe in paragraph 13.

A. WITNESS: Yes.

Q. That was in late January?

A. WITNESS: Yes.

Q. That was, you say, before any money was given or after?

A. WITNESS: Before anything - any money was given. Not very late, but around the 15, the 20, somewhere there. Where the decision was made where Uncle Tuan and Diana come to attend to my house.

Q. Can you just, in your own words, tell me what you say was agreed on that date? Somewhere, I appreciate you don't have an exact date, but 15 or 20 January, what was the agreement?

A. WITNESS: I said, I will try my best to help. Whatever I put, so therefore - but Diana still said if I can't able to help them in between of 50 to 70,000, they can't able to do the re-mortgage, so I called Tuan, I said, "Please try my best for 70,000." But I said, "I only try my best." So therefore, they left without money. I can't remember the exactly date, but on the 31st, somewhere end of January, Diana and Uncle Tuan came to my house one more time, which I think is on the message. Uncle Tuan said, "Diana before go to sister Kim, please pass by the shop and pick me up." And they came back again. Then I still say that I can't as yet, and then toward the night then I - not toward the night. Toward later in the afternoon, I tell that, "All right, I will try my best to help you for the 20,000 first." So that is the decision of the money was made.

Q. The agreement was, on 31 January, that you would do your best to lend them $20,000?

A. WITNESS: First.

Q. That's all that was discussed?

A. WITNESS: Yes, that's all that was discussed.

Q. And then you gave them the 20,000?

A. WITNESS: No. I gave - no. on the 31st, Uncle Tuan and Diana was there, was waiting for the money, but the money wasn't given on that afternoon, late afternoon.

Q. It was or it wasn't?

A. WITNESS: Wasn't given late afternoon, but decision was made after that. After they left, I contact Diana, "Okay, I will help you. I try my best for the 20,000 first." And if I'm not wrong, the message was even recorded.

Q. So, 31 January--

A. WITNESS: Somewhere there.

46.9 (Transcript Day 2 p.4:) After the meeting with Diana and Mr Pham at her home on 31 January 2020, but on the same day, Ms Nguyen called Diana and said to her “I will give 20,000”. The next day or the day after, Diana came to Ms Nguyen’s house and Ms Nguyen gave the $20,000 to Diana.

46.10 (Transcript Day 2 p.4-5:) She made Diana and Mr Pham come and get the $30,000 from her together.

(iii) The preparation and execution of the Loan Agreement, Mortgage and Caveat

47. According to Ms Nguyen’s oral evidence, in relation to the preparation and execution of the Loan Agreement, Mortgage and caveat:

47.1 The email she referred to in paragraph 17 of her affidavit was sent to her by Diana. This is the email providing a photograph of Mr Pham’s New South Wales Driver Licence, a page from his passport, a rate notice and valuation all of which Ms Nguyen said she passed on to her solicitors when she instructed them to prepare the loan agreement, caveat and mortgage based on those documents. I have already referred to this email and the documents in paragraph 29 of my reasons. When asked if she was aware of any reason why Diana would send her that material by email and not the defendant, Ms Nguyen said “Yes. Because, because Diana is my friend and how she brought (Mr Pham) to my house, so basically most of everything I go through Dian(a), not to him”.

47.2 Once she had received those documents, Ms Nguyen asked her lawyer to start preparing the Loan Agreement. She did this around 9 March 2020.

47.3 Ms Nguyen signed the Loan Agreement in front of her lawyer in the lawyer’s office. She did not write the date “1 March 2020” as shown on the copy of the Loan Agreement at page 50 of the Court Book. It was not her handwriting. She assumed that her lawyer Karl Quy wrote the date when he witnessed her signature.

47.4 Ms Nguyen signed the Mortgage in front of her lawyer Karl Quy. She did not write the date “25/3/2020” as shown on the copy of the mortgage at page 62 of the Court Book. Mr Quy signed it and he put the date. So she believed she signed the Mortgage on 25 March 2020.

47.5 After she had signed the documents, Ms Nguyen’s lawyer gave her their letter dated 25 March 2020 addressed to Mr Pham (the details of which I set out earlier) together with the documents referred to in it for her to give to Mr Pham. Ms Nguyen’s lawyers did not mail the letter to Mr Pham. Ms Nguyen agreed that she took the letter and documents with her on 25 March 2020.

47.6 The sequence of events that followed after she left her lawyer with the documents on 25 March 2020 was (Transcript Day 1 p.82-86):

(a) She contacted Diana by text message to say that she had the documents ready. Diana replied by text message. (b) Diana’s husband came to Ms Nguyen’s house and picked up the documents. (c) A few days later Diana sent a text message to Ms Nguyen saying that the documents were ready and she would get her husband to drop them off for her. (d) Then Diana called and said her husband was sick. (e) Diana texted Ms Nguyen that her husband will come and drop it off outside in her letterbox because she believed she and her husband and her children may have COVID or sick or cold. (f) Ms Nguyen told Diana she did not have a letterbox outside so either drop it to her face to face or get Mr Pham to drop it off to her. (g) Mr Pham came to her house and handed her the documents. Ms Nguyen did not have any communication with Mr Pham before he came to the house. Her communication was with Diana. (h) Ms Nguyen handed all the paperwork to her lawyer.

47.7 The sequence of events was (Transcript Day 2 p.12-16, with benefit of contemporaneous text messages annexed to Mr Pham’s affidavit of 23 May 2024):

(i) On 24 March 2020 Ms Nguyen exchanged messages with Diana. Diana said to Ms Nguyen: “Please ask the lawyer to redo the paper hurry up, as fast as possible. When finished, text. AQuang run over to get it and give it to Uncle to sign early. You can rest assured about your money. I'll pay for it later older sister. Now sister ask Is to do it, Please hurry up, I don't want uncle changed his mind. I can't say straight (please understand). Thank you very much.” (j) Ms Nguyen said to Diana: “Ok Bich & $2k do you want me to pay for solicitors fees first or if you have money pay it to me when you bring the paper signed to me as best.” (k) In these messages, the reference to “Quang” is to Diana’s husband, and the reference to “uncle” is to Mr Pham. (l) On 26 March 2020 Ms Nguyen sent a message to Diana saying: “Hi Bich please ask Quang to see me to collect paper to sign.”. (m) On 27 March 2020 Ms Nguyen exchanged messages with Diana. Diana said to Ms Nguyen: “Ok when he finished work this afternoon he will come to collect it.” Ms Nguyen replied: “OK Bich”. (n) On 28 March 2020 at 7.45 pm, Diana sent a message to Ms Nguyen saying: “In my area, there is so much epidemic infection, AQ is having a cough and runny nose. Tomorrow morning, please put the documents in a plastic bag and hang them in front of your house. I'll come by and pick them up. Avoid dangerous contact, thank you!”. Ms Nguyen replied: “Ok- I will place it in electrical box.”. (o) Ms Nguyen called Diana and spoke to her on the phone. (p) Late on 28 March 2020, Diana came and picked up the documents. Or Diana’s husband picked them up.

(iv) Disputed text messages between Bich and Tommy / Mr Pham

48. I have already referred to Ms Nugyen’s affidavit evidence about a number of disputed text messages which she said were “sent between the defendant and Bich in Vietnamese”, some of which were said to be sent on Friday 31 January and another on Friday 28 February. The authenticity and provenance of these messages is disputed.

49. According to Ms Nguyen’s oral evidence, she received the text messages by email from Diana’s sister in around July 2020.

(v) Generally

50. According to Ms Nguyen’s oral evidence, in relation to events generally:

50.1 Ms Nguyen was not friends with Mr Pham. She was friends with Diana.

50.2 Ms Nguyen trusted Diana because she and Diana “were very close”.

50.3 Ms Nguyen did not communicate with Mr Pham “through his phone at all”.

50.4 Her “relationship” with Mr Pham was “not close”. She said “I know him since I was young, yep. I know, that doesn't mean he know me.”.

50.5 The reason she says she lent the money was because of Diana. She did not have the type of relationship to lend money to Mr Pham.

50.6 When asked about her evidence that she received documents about Mr Pham (passport, driver’s licence, council rates notice and valuation) by email from Diana and not Mr Pham himself, Ms Nguyen said “… basically most of everything I go through Diana, not to him”.

50.7 Ms Nguyen has not had any contact with Diana since around May 2020. She has tried but has not been able to establish any contact at all.

(vi) It was put to the plaintiff that she was lying

51. Counsel for the defendant put to Ms Nguyen that she had entirely made up the story of Mr Pham coming to her house and giving her the signed documents. Counsel put to Ms Nguyen that she had been lying when giving that evidence and that she had lied about any discussions with the defendant about there being a loan agreement. Counsel put to Ms Nguyen that she was lying when she said she had agreed to lend money to the defendant. Counsel put to Ms Nguyen that she had lied about her relationship with the defendant, and that she was lying when she said that they knew each other, that she had known him since high school, that she knew him because he was well known in the community and that she got to know him really well when she was in the casino. Counsel put to her that the evidence she had given in court about the loan agreement was entirely made up and false. Ms Nguyen denied any suggestion that she had made up her evidence or had been lying. She also said that when she said to Mr Pham in her email of 29 June 2020 (forwarded by her solicitors to Mr Pham on 30 June 2020) that “You are right, that I don’t know you” she was being ironic.

(vii) In answer to my questions

52. At the conclusion of cross-examination and re-examination, in answer to my questions:

52.1 Ms Nguyen said that she was up to 80 to 90% sure that the person shown on the Photo Card exhibited to Mr Pham’s affidavit (at page 133 of the Court Book) with the name “Kim Khanh Huynh” was the same person she called Diana or Bich.

52.2 Ms Nguyen said she was 100% sure and had no doubt that the man she had the meetings with was the person in the courtroom, that is Mr Pham.

52.3 Ms Nugyen also gave the following evidence about when she had last seen Mr Pham before her first meeting with him and Diana:

Q. When was the last time you saw him--

A. WITNESS: I keep--

Q. Before the first meeting you had with him and Diana?

A. WITNESS: Can you repeat your question please?

Q. When was the last time you saw him before you had your first meeting with him and Dianna?

A. WITNESS: Normally, I would sort of see--

Q. No, not normally, just--

A. WITNESS: --I see him in the street every now and then in Cabramatta, and I can't recall before - what day I see him before we meet up with Diane(as said).

Q. I'm not asking for precise day; I'm just asking for your best recollection of the time you saw him before you saw him with Diana for the first time to talk about borrowing money.

A. WITNESS: Around a month/two months before that when I'm shopping in Cabramatta, John Street.

Q. Did you have any interaction with him at that time?

A. WITNESS: No. Normally, we may reach out with a smiling if we pass each other very close; by greeting elderly as he passed. Or I may bow my head down as I say hi to elderly.

C. MR QUANG LICH NGUYEN’S EVIDENCE ABOUT WITNESSING THE DOCUMENTS

C.1 According to his affidavit of 28 November 2023

53. Mr Nguyen’s affidavit of 28 November 2023 was extremely brief.

54. He gave his occupation as electrician.

55. In the first paragraph Mr Nguyen swore “I am the plaintiff”. This was obviously wrong. In cross-examination, he agreed that the plaintiff’s lawyer prepared the affidavit and that he read it carefully. At first, he agreed that he noticed when he read the affidavit that it said that he was the plaintiff. He agreed that he was not the plaintiff. He then said he did “not really read it properly” and he did not pick that up.

56. In the second paragraph he swore that a bundle of documents were “exhibited and marked”. When asked in cross-examination if he knew what those words meant, he said “Not really”. He said he did not ask the lawyer to explain.

57. In the third paragraph Mr Nguyen swore “On 28 March 2020 I witness the defendant signing the following documents …”. In cross-examination, he agreed that he did not put the date of 28 March 2020 in his affidavit, but the plaintiff’s lawyer did. He did not ask the lawyer where he got the date from. Mr Nguyen said that he remembered it was the end of March 2020 “because we really rushed before the lockdown of the COVID”. He said that he could not really remember exactly the date. He agreed with the proposition “So the lawyer just put it in, and you thought okay, I’ll sign it?”.

58. In the fourth paragraph Mr Nguyen swore “At pages 5 – 15, 17 & 19 of the Exhibit ‘QLN-1’ is a copy of the documents signed by the defendant”. In cross-examination, he agreed that the lawyer gave him the documents to look at, and he did look at them. When asked if he did that carefully, his answer was “Not really”.

C.2 According to his affidavit of 16 May 2024

59. Mr Nguyen’s affidavit of 16 May 2024 was also relatively brief.

60. In the first paragraph, Mr Nguyen referred to his earlier affidavit and noted that it contained an error in paragraph 1 in stating “I am the plaintiff”. He said “I am not sure how that error occurred, but I believe it should have read to the effect that ‘I am a friend of the plaintiff’.”.

61. When Mr Nguyen swore his affidavit on 16 May 2024 it read in paragraph 4 that he was previously the plaintiff’s de facto partner “from 2006 to 2015”. In oral evidence in chief he agreed that this was an error and that the true and correct dates were from 1996 to 2005. The error was in part repeated in paragraph 5. In oral evidence in chief Mr Nguyen said that paragraph 5 should have stated that his relationship with the plaintiff ceased in 2005. In cross-examination, Mr Nguyen said that he swore the affidavit in the plaintiff’s lawyer’s office after the lawyer had contacted him to go to the office and prepare a 2nd affidavit. He said that he told the lawyer that the dates were not correct before he signed it and he did not know why they did not fix it.

62. In the third paragraph Mr Nguyen said that he was an electrician and conducted his business through a company. He said he had been in the air-conditioning business for 10 years and the business sells, installs and services air-conditioning units for residential and commercial properties.

63. In the fourth and fifth paragraphs Mr Nguyen said that he and the plaintiff had 2 children together and that because of their children, and their shared social circles, he and the plaintiff “have remained good friends since we ceased our relationship” in 2005.

64. In the sixth paragraph, Mr Nguyen said that as a result of his work he regularly dealt with real estate agents in regards to residential and commercial properties.

65. In the seventh paragraph, Mr Nguyen said:

“I have known the defendant Mr Ngoc Tuan Pham (Tuan) for more than 15 years. I see Tuan and socialise with him on occasions.”.

66. In the eighth paragraph, Mr Nguyen said:

‘On 28 March 2020, I was with some of my work colleagues when I met Tuan in John Street, Cabramatta at around lunchtime. Tuan and I had the following conversation in Vietnamese in words to the effect:-

Tuan: “Hello Lich.”

I: “Hello, Anh Tuan (meaning older brother Tuan).”

Tuan: “Can you witness some documents for me?”

I: “What are they?”

Tuan: “A Loan Agreement with Huyen.”

I: “Alright.”’.

67. In the ninth and final paragarph, Mr Nguyen said:

‘We went into a coffee shop Gloria Jeans Coffees in John Street, Cabramatta. He asked me to witness his signature. I then signed and wrote my name. He then said to me: "Thank you" and I said: "You welcome".’.

C.3 According to his oral evidence on 23 May 2024

68. I have already referred to some of the evidence that Mr Nguyen gave orally in examination in chief and cross-examination at the hearing on 23 May 2024.

69. In addition, in cross-examination:

69.1 In relation to the execution page of the mortgage (Court book page 98):

(a) Mr Nguyen identified his own signature against the typed words “Witness Signature” and his own handwriting against the typed words “Full Name of Witness” and “Witness Address”. (b) He said he witnessed Mr Pham sign it. (c) He said he did not write the date “28/03/2020” against the typed words “Execution Date”. (d) He said he saw Mr Pham sign but he did not really pay attention to whether Mr Pham put the date on the page or not. (e) Mr Nguyen said that when he signed the document, there were no signatures under the heading “Mortgagee Execution”.

69.2 Mr Nguyen said Mr Pham approached him in John Street after he (Mr Nguyen) and his work colleague had just finished lunch and were walking back to Mr Nguyen’s car. He said Mr Pham did not have any papers in his hand. He said Mr Pham asked him to witness some documents and he agreed. All three of them then went into Gloria Jeans. Once they were inside Mr Pham “say wait for him and then he come and get the paperwork”. Mr Pham then walked off. Mr Nguyen said that Mr Pham then went to his office at the real estate agency. Mr Nguyen said that maybe it was about a 3-minute walk and when Mr Pham came back he had the papers, which Mr Nguyen said he then witnessed.

69.3 Mr Nguyen said that they all knew each other. He said he knew Mr Pham because “he’s very famous”. Mr Nguyen said he thought Mr Pham knew him too. When asked how, Mr Nguyen said “I’m pretty famous in the community too because I’m doing a lot of job in Cabramatta. I do repairing services for all – for his sister, his brother.”. When asked whether he and Mr Pham had “ever hung out together”, he said “No, not with him”. Mr Nguyen then gave the following evidence (Transcript Day 2 p.35–36):

Q. You’ve gone for a drink?

A. No, but I'm - before he owned a restaurant.

Q. He owned a restaurant?

A. Yeah, before, a long time ago. And we've been - I don't know about he's still remember me. But you know, when we go there - because by that time, there's not many restaurant in you know, in the Vietnamese community, so we always go there anyway when we got party or anything. So that's why.

Q. When you say that you know him, are you suggesting that it's someone you see around the community?

A. No, I know him.

Q. You know him?

A. Yes.

Q. I'm asking you how do you know him?

A. I know him because he very famous. I've been to his restaurant. And you know, on - even on the street?

Q. Yes.

A. And I know him. I meet him at his sister house.

Q. So, you've seen him?

A. Yeah.

Q. And you occasionally what, would have small conversations with him?

A. I don't know that he remember me. Yes.

Q. You've had some conversations?

A. Yes.

Q. Would he know - on that basis, how would he know that you - who your partner - your ex-partner is?

A. That what I don't know.

69.4 (Transcript Day 2 p.38–39) Mr Nguyen confirmed that when Mr Pham came up to him he said “Hi, can you witness a document for me?” and that Mr Nguyen asked him what it’s for. Mr Nguyen then gave the following evidence:

Q. What did he say?

A. He say that..(not transcribable)..on with your ex-partner.

Q. And so he - he said--

A. Yes.

Q. --with your ex-partner?

A. Yes.

Q. He used that term?

A. He just say that - not ex-partner, but his say that you know, for - because he didn't know that we ended the relationship.

Q. Okay, with you partner?

A. So he just say that, you know - yes, partner. Yes.

Q. With your partner. Okay.

A. Yes.

69.5 It was put to Mr Nguyen that he was making up his evidence, that he was not telling the truth about what happened and that he never saw the defendant sign the loan agreement.

D. THE DEFENDANT’S EVIDENCE ABOUT WHAT HAPPENED

D.1 The defendant’s version of events according to his affidavit of 9 January 2024

70. In his affidavit of 9 January 2024, Mr Pham said that he was a licensed real estate business agent at Goldstar Real Estate. A copy of his real estate licence history was included in the exhibit to his affidavit. That history shows that his license was issued in September 2008 and that his primary place of business was at Suite 2, 182 Cabramatta Road West, Cabramatta NSW 2166, with an additional address at Liverpool Street in the city.

(i) As to his dealings with the plaintiff

71. Mr Pham said that to the best of his knowledge, he did not know the plaintiff. He did not recall ever meeting the plaintiff. He said if he ever had any interactions with her, he did not recall them. He said he did not recognise her name as being someone he knew.

72. He said that he had never owned a travel agency in Cabramatta, but that his ex-wife had, and he used to visit at times when they were married, but he did not work there. He said he did not recall ever meeting the plaintiff at his ex-wife’s travel agency.

73. He said that he did sometimes visit the Star Casino, but did not recall ever meeting the plaintiff there.

74. Mr Pham denied that the plaintiff has loaned him any money, or that he ever had any agreement with her for her to lend him any money.

75. He denied that he had any discussions with Ms Nguyen and Diana in April and May 2019 as suggested in Ms Nguyen’s affidavit.

76. He said he did not meet the plaintiff and/or Bich in January and February 2020 or agree that the plaintiff would lend him $50,000. He said that he did not ever receive $50,000 in cash from the plaintiff. He said he did not agree to sign a loan agreement, mortgage and caveat documents over the property at 82 Oakey Forest Road Marrangaroo between him and the plaintiff.

77. Mr Pham said that he never received the loan agreement, mortgage, or caveat documents from the plaintiff exhibited to her affidavit. He said he did not sign any of those documents. Nor did he sign any documents before Quang L Nguyen. He said he did not know Quang L Nguyen. He said it was not his signature on any of the documents.

78. Mr Pham said that he had never communicated with the plaintiff via text messages or messenger and that he had never met with the plaintiff in person.

79. He said that because he was a real estate agent and justice of the peace, his mobile phone number was available to the public and anyone can locate it.

80. He said he had never been known as “Tommy” and that he had never used the name.

81. He said he did not write the text messages between “Tommy” and Bich (or Diana) outlined in the plaintiff’s affidavit.

82. He said he never sent a copy of his passport, driver’s licence, any council rates notice or valuation report of the property 82 Oakey Forest Road Marrangaroo to the plaintiff and did not know how she obtained copies of those documents.

(ii) As to his dealings with Bich / Diana

83. In his affidavit, Mr Pham referred to Bich or Diana repeatedly as “Kim Huynh”. I will refer to her as Diana for ease of comprehension of these reasons, bearing in mind, as I said at the outset, the plaintiff and defendant were talking about the same person by a different name.

84. Mr Pham said he invested in the properties known as 82 Oakey Forest Road Marrangaroo NSW 2790 (“the Oakey Forest Road property”) and 4 Emerald Drive, Kelso NSW 2795 (“the Emerald Drive property”) himself. He said he never invested in them with Diana. He said he purchased the Emerald Drive property on around 30 November 2018. He said he did not have any agreement with Diana that the properties would be purchased in his name on trust for her.

85. Mr Pham said that in or around April 2019, Diana attended Goldstar Real Estate where he was working as a property manager. She told him she was looking to rent 2 properties, one for herself and her husband (Huy Quang Nguyen) and another for her sister’s family. They discussed the prospect of Diana and her husband and her sister’s family renting the Marrangaroo and Kelso properties from Mr Pham.

86. He said that in or around April 2019, he attended both properties with Diana and 2 other people in order for an inspection to be undertaken by them. Each of the 3 people provided Mr Pham with their identification documents in order to enter into a tenancy agreement with him for the properties. Mr Pham included copies of the identification documents provided to him in the exhibit to his affidavit. The identity documents exhibited to the affidavit were:

86.1 A photograph of a MasterCard in the name of “Mr Huy Nguyen” with “valid dates” 09/19 - 09/22.

86.2 A photograph of a New South Wales Driver Licence in the name of “Huy Quang NGUYEN” with an expiry date of 15 December 2021. The licence bears the photo of a person.

86.3 A photograph of a New South Wales “Photo Card” in the name of “Kim Khanh Huynh”. The expiry date of the card is 18 April, but it is not possible to read the year. The card has a photo of a person. This is the Photo Card showing the person who Ms Nguyen said she was up to 80 to 90% sure was the same person she called Diana or Bich.

86.4 A photograph of what appears to be the photo identity page of a passport issued by the Socialist Republic of Vietnam for “HUYNH KIM KHANH”. It has the same date of birth as the Photo Card - a date in 1985.

86.5 A photograph of pages of a passport issued by the Socialist Republic of Vietnam for “HUYNH NGOC THACH”.

86.6 A photograph of a New South Wales Provisional Driver Licence in the same name (Ngoc Thach HUYNH). The photo looks similar to the photo on the passport. They have the same date of birth – a date in 1988.

86.7 Two pay slips from “3 BEARS” for “Huynh, Ngoc Thach (Hallie)”, one dated 13/3/2019 and the other 10/4/2019.

86.8 A Commonwealth Bank account statement for the period 8 September 2018 to 7 March 2019 in the name of “MISS N HUYNH”. The address is the same as the address shown on the New South Wales Provisional Driver Licence for Ngoc Thach HUYNH. The statement shows money being paid into account by “3BearsChildcare”.

87. Mr Pham said that he asked Diana to provide him with her husband's payslips, but she advised that these would be provided at a later date. He said she did not ever provide those payslips.

88. Mr Pham said that Diana did however offer to lease both the Oakey Forest Road and Emerald Drive properties on an initial one year fixed term with the full rent payable up front. Mr Pham said he agreed to that arrangement.

89. Mr Pham said that on 11 May 2019 Diana entered into agreements to lease the two properties, and on 16 May 2019 Diana paid him $100,000, which he says was paid into his ANZ Bank account and was “the rent towards the Properties for the full period of the tenancies”. Later in his affidavit he referred to it as “the rent payable for” the properties.

90. He exhibited to his affidavit copies of what he said were the lease agreements together with a statement of his ANZ Bank account statement. The authenticity and provenance of these lease agreements is disputed.

91. According to the document exhibited as the lease agreement in respect of the Oakey Forest Road property:

91.1 It is the Residential Tenancies Regulation 2010 Schedule 1 Standard Form Agreement (Clause 4(1)), and is headed “Standard form Residential tenancy agreement”.

91.2 Mr Pham is the landlord.

91.3 Mr Pham’s address is given at an address in Abbotsbury NSW 2176. (This address matches the address on Mr Pham’s bank account statement.)

91.4 Mr Pham’s telephone number is a mobile number. (This is the same as the mobile number shown under Mr Pham’s name on the webpage for Goldstar Real Estate printed on 8 April 2021 exhibited to Ms Nguyen’s affidavit.)

91.5 “Kim Khanh HUYNH” is the tenant. That is, Diana is the tenant.

91.6 Her address is given as the same as the address on the Photo Card exhibited to Mr Pham’s affidavit.

91.7 Her telephone number is a mobile number.

91.8 The term of the agreement was 12 months starting on 20 May 2019 and ending on 19 May 2020.

91.9 Rent was $1,200 a week payable in advance starting on 15 May 2019. (That would equate to $62,400 over the 12 months).

91.10 Rent must be paid to Mr Pham’s ANZ Bank account, the details of which were set out by reference to the Bank and branch names, the BSB and account numbers and account name. (These details match the account into which Mr Pham said the $100,000 was paid on 16 May 2019.)

91.11 A rental bond of $4,800 must be paid by the tenant on signing the agreement.

91.12 It was signed by both Mr Pham and Diana on 11 May 2019.

91. 13 Mr Pham witnessed Diana’s signature. Someone else witnessed Mr Pham’s signature.

92. According to the document exhibited as the lease agreement in respect of the Emeral****d Drive property:

92.1 The same details appear as on the Oakey Forest Road lease, except for the starting date, rent and the amount of the bond.

92.2 The term of the agreement was 12 months starting on 1 June 2019 and ending on 31 May 2020.

92.3 Rent was $750 a week payable in advance starting on 15 May 2019. (This would equate to $39,000 over the 12 months).

92.4 A rental bond of $3,000 must be paid by the tenant on signing the agreement.

93. According to the ANZ Bank account statement:

93.1 The account was in Mr Pham’s name.

93.2 On 16 May 2019 $100,000 was deposited into the account.

93.3 The “Transaction Details” for that deposit were described as “CARD ENTRY AT CABRAMATTA BRANCH”.

94. Mr Pham said that he did not enquire where Diana got the funds from to pay the rent for the properties. He said he did not have any relationship with her other than that of landlord and tenant.

D.2 The defendant’s version of events according to his statutory declaration of 19 June 2020

95. I have already set out what Mr Pham said in his statutory declaration of 19 June 2020: see paragraph 38 above.

D.3 The defendant’s version of events according to his oral evidence at the hearing on 23 May 2024

96. In oral evidence in chief:

96.1 Mr Pham said that in 2020, his office was at 182 Cabramatta Road, Cabramatta. He said he thought it would take about 5 to 7 minutes to walk to Gloria Jeans on John Street. (Gloria Jean’s is where Mr Quang L Nguyen said he witnessed Mr Pham sign the documents.)

96.2 Mr Pham said that in 2020 he thought there were about 10 staff members employed in the office. He said that ordinarily people were in the office on Saturdays.

96.3 He said he did not know Mr Quang L Nguyen.

96.4 He said he did not meet Mr Quang L Nguyen at Gloria Jeans on 28 March and he did not sign the documents that Mr Nguyen witnessed.

96.5 He said he had never owned or operated a restaurant. He said that he had worked in a restaurant over 30 years ago.

97. In cross-examination:

97.1 Mr Pham agreed that on 11 May 2019 he signed two lease agreements with Diana, one for the Oakey Forest Road property and the other for the Emerald Drive property.

97.2 Mr Pham agreed that his evidence was that Diana offered to pay rent upfront for the 2 properties.

97.3 He agreed that on 16 May he received $100,000 from Diana into his account. He agreed that this was 5 days after the 2 agreements were signed. He agreed that this was approximately about the one year rent for each of them up front.

97.4 Mr Pham said that by 11 May 2019 he did not own both properties. He said he only owned the Oakey Forest Road property and that he bought the Emerald Drive property on 15 or 17 May. He confirmed that his affidavit said that he had purchased the Emerald Drive property on around 30 November 2018.

97.5 Mr Pham was asked to explain how he was able to take Diana and her family for a tour of the Oakey Forest Road property if he had not bought it yet. Mr Pham said that he was able to do that because he had an agreement with the agent and he had been looking at that house for a long time. He said the property was empty and he contacted the agent Ray White in Lithgow and they helped him to open it for him. (I note that Ray White Lithgow was the agent for the Oakey Forest Road property. That can be seen from the sales notification dated 15 May 2019, which is part of Exhibit 3.)

97.6 Mr Pham agreed that he did not lodge a bond at the bonds office for the 2 properties. Mr Pham said he did not do that because he owned the properties and he was happy because they had paid in advance.

97.7 Mr Pham denied that he had concocted both of the leases for the purposes of the proceedings. He denied that the $100,000 had nothing to do with rent. He denied that saying the $100,000 was for rent was a complete fabrication to defeat the claim brought by the plaintiff. He denied that he completely fabricated all of the evidence about the leases and the rent for the purposes of defeating the plaintiff’s claim.

97.8 After being shown a Land Registry Services search of the Emerald Drive property and a copy of the registered Transfer, Mr Pham agreed that he had exchanged contracts to purchase the property on 27 May 2019 and the purchase settled on 19 July 2019.

97.9 It was then put to Mr Pham that everything he had said about taking Diana and her family for a tour of the property in April and executing a lease agreement for it on 11 May was entirely false. Mr Pham denied this. He agreed that he did not own the property and offered to explain. The cross examiner did not take up the offer of an explanation but instead put it to Mr Pham a second time that he had concocted the lease agreement for the purposes of defending the proceedings. Mr Pham denied this. It was put to him again that he never entered into a lease agreement in May 2019 with Diana. Mr Pham said that “Yeah, she came to my office and do the lease. Make the lease.”.

97.10 Mr Pham said that he had an arrangement with the owners of both properties.

97.11 Mr Pham accepted that the lease agreement for the Emerald Drive property said the lease started on 1 June 2019. He agreed that he had not settled on the property on 1 June 2019 but said “I have agreement with the vendors”. Again, the cross examiner did not ask for any details of that agreement. Mr Pham accepted that the agreement was not in evidence but said that he could get it from his conveyancer. The details of the agreement came in Mr Pham’s re-examination in the form of the documents which ultimately became Exhibit 2 – I will refer to those in more detail in due course. For the moment, I note that the documents in Exhibit 2 bear out what Mr Pham was saying about having an agreement with the vendors.

97.12 Mr Pham accepted that he did not own the Oakey Road property when he said he entered into the rental agreement on 11 May 2019. He said he had an agreement with the vendor. The details of that agreement came in the form of the documents which ultimately became Exhibit 3. I will refer to those documents later.

97.13 Mr Pham agreed that his affidavit was wrong in that when he had said in his affidavit that he had purchased the Emerald Drive property on or around 30 November 2018 that was not correct.

97.14 Mr Pham agreed that he had not exchanged contracts on either of the properties in April 2019.

97.15 He agreed that he settled the purchase of the Emerald Drive property on 19 July 2019. When asked “So that’s a date after allegedly this lease had already begun and they’d already moved in, correct?”, Mr Pham responded “No, I say before I have agreement with the vendors. They accept to our – my client to enter the property. I have agreement. In the contract—“. Again, the cross examiner did not ask for further details of the agreement Mr Pham was talking about. As I have said, they came in the form of the documents which became Exhibit 2.

97.16 Mr Pham denied that he and Diana never had any agreement to lease the properties.

97.17 Mr Pham denied that he and Diana had an agreement to purchase the properties together.

97.18 Mr Pham denied that he would be on title for those properties because Diana could not be on title because of her immigration.

97.19 Mr Pham denied that the $100,000 was a loan to allow him to purchase the properties.

97.20 He denied that he and Diana before May 2019 had gone to see the plaintiff in order to secure funding to purchase the properties.

97.21 He denied that “This idea that there was $100,000 in rent paid upfront for these 2 properties is a fabrication for you to avoid liability under the plaintiff’s claim in these proceedings”.

97.22 Mr Pham denied that what really happened was that before he exchanged contracts on the properties he and Diana needed money to purchase them. He denied he approached the plaintiff for the purpose of securing money to assist in purchasing the properties. He denied that he met with the plaintiff and Diana multiple times ahead of purchasing the 2 properties. He denied that the $100,000 was as a result of an oral agreement that he had with the plaintiff to provide that fund to him and Diana so that he could purchase the properties. He denied that he accepted in conversations that he would be responsible for paying the money back because he would be on title for the 2 properties. He repeated that he had never met plaintiff. He denied that he had told the plaintiff that once he had the properties he would attempt to refinance them and pay the money back.

97.23 Mr Pham was asked about whether he in fact did refinance the properties. At first he denied that he had refinanced the properties after he had purchased them (Transcript Day 2 page 63). When taken to the document at Court book page 36, he agreed that it was a valuation, but said that he had never seen the document before. When asked if he made an application to Pepper Home loans to refinance the Oakey Forest Road property he said “No, I don’t think so” (Transcript Day 2 page 64). He agreed that he had a loan with Pepper Finance. When asked again whether he refinanced, he said “You have to check about my finance broker. Yeah, maybe I did, yes”. When asked “so now your evidence is maybe you did get a refinance?” His answer was “Yeah, yeah. Maybe I recall now.”. He still denied that he had seen the valuation at court book page 36 before. He denied that he was trying to get a refinance, but said that his finance broker suggested it. Ultimately, Mr Pham agreed that he refinanced with Pepper Home Loans because the finance broker got a good deal with very low interest (Transcript Day 2 page 65).

97.24 Mr Pham agreed that the reason the valuation at Court book page 36 was done was because he was looking to refinance the property. He denied that “the real reason (he) wanted to refinance was so that (he) could borrow money to pay people back that (he) owed money to”. He denied that he provided the valuation from Pepper Home loans to Diana.

97.25 Mr Pham denied that he used his mobile phone number to send text messages to and from Diana. He said that he never contacted Diana by text message, but said that he had contact with her husband. Mr Pham denied that there could possibly be text messages between himself and Diana.

97.26 Mr Pham agreed that sometimes younger people would call him Uncle Tuan. He denied that he ever called himself Tommy or had the nickname of Tommy.

97.27 Mr Pham denied that he had exchanged any of the text messages with Diana in exhibit B.

97.28 Mr Pham was asked “and there’s no reason for you to send copies of your passport and driver’s licence to (Diana) … ?”, and answered “I can explain that” (Transcript day 2 page 72). The cross examiner did not ask for an explanation, but moved on. Subsequently, Mr Pham denied that he gave Diana a copy of his drivers licence, passport and the rates notice for the Oakey Forest Road property (Transcript Day 2 page 77).

97.29 Mr Pham denied that in early 2020 he visited the plaintiff several times with Diana. He denied visiting the plaintiff with Diana for the purpose of obtaining further funds to assist with the 2 properties. He denied that as a result of those meetings he came to an agreement whereby he agreed to grant a caveat in respect of one of the properties. He denied that he was subsequently provided a copy of the loan agreement appearing in the court book sometime in March or around March 2020 along with the mortgage. He denied that he executed the documents around March 2020. He denied that the documents were to regularise an oral agreement that he had reached with the plaintiff in early 2020 he denied that he signed the documents “on purpose” using a slightly different signature to his normal signature. He denied that he signed the documents in front of Mr Quang Nguyen. He denied that he ran into Mr Nguyen in Cabramatta sometime in March 2020 and asked him to witness the documents. He denied that he knew Mr Nguyen previously. He denied that he knew Mr Nguyen was the partner or former partner of the plaintiff. He denied that he had previously met or run into the plaintiff and Mr Nguyen at the casino. He denied that he and his wife had met the plaintiff previously at the casino.

97.30 He denied that the $100,000 he received into his account on 16 May 2019 was an advance under an agreement that he had with Diana and the plaintiff to borrow money from the plaintiff. He denied that it had nothing to do with rent. He denied that it was a concoction on his part.

98. There was no re-examination of Mr Pham as such. However, at the conclusion of cross-examination his counsel put into evidence 3 documents concerning the Emerald Drive property. The first document was a letter from Phu & Associates of Cabramatta dated 19 July 2019. The second and third documents were 2 counterparts of an agreement made on 27 May 2019 between Matthew Christopher Pearce and Gemma Clare Pearce as the “Owners” and Mr Pham as the “Purchasers”. One counterpart was signed by Mr and Mrs Pearce, and the other signed by Mr Pham. These became exhibit 2. I will refer to them again in a little more detail later.

98.1 The letterhead shows that the signatory to the letter, Michelle Phu, is a licensed conveyancer. The letter is addressed to “Centiry 21 Bathurst Region” at a street address in Bathurst. The letter is headed “Re: Pham purchase from Pearce. Property: 4 Emerald Drive, Kelso NSW 2795.” The body of the letter stated:

“We confirm that settlement took place today at 12pm.

You are now at liberty to account to the Vendors for the deposit held by you less your commission.

We note the purchaser has prepaid the rent of $4,500 for 10 weeks at $450 per week to your agent.

The purchaser took early occupation from 31 May 2019 being 50 days @ $64.29 per day

Kindly refund the reminder of $1,285.71 back to the purchaser.”

98.2 As to the agreement:

(a) It stated that it was “supplemental to Contract for Sale dated 27/05/2019 between the parties hereto in respect of the sale by the Owners to the Purchasers of the property known as 4 Emerald Drive, Kelso … for the sum of …. ($595,000)”. (b) The recitals stated “WHEREAS the Purchasers have handed to the Agents, Century 21 Bathurst, a deposit in the sum of … ($29,750.00) to be held by the Agents as Stakeholders pending completion AND WHEREAS the Purchasers have requested the Owners to allow them to enter into possession of the said property pending completion of such Contract and subject thereto”. (c) Clause 1 provided: “The Owners hereby grant to the Purchasers the right to enter into possession of the said property known as 4 Emerald Drive Kelso, New South Wales and to occupy the same as Licensee from 27th May, 2019 (hereinafter called ‘the date of possession’)”. (d) Clause 3 provided: “The Purchaser shall prior to exchange of agreements pay to the selling agent the occupation fee of … ($4,500.00) (being $450.00 per week for … (10) weeks) on exchange of agreements, such fee to be adjusted pro rata basis if settlement occurs…”.

99. I asked Mr Pham if he had any explanation as to how Diana had got the photo of his driver’s licence at CB33. This was the photo of Mr Pham’s driver’s licence exhibited to Ms Nguyen’s affidavit that she said she received by email from Diana. Mr Pham said that in 2019 Diana and her husband came to his office in Cabramatta and asked him to give a supporting witness statement of their relationship for residency and also for their future birth certificate of their children. He said he agreed to do that and he filled out the relevant Department of Immigration form which required him to provide his identification. He said “So I make the photo of my driver licence and my passport. I attach to the form and I give to them.”. He said that he made a plain paper copy of both on the photocopy machine in his office.

100. This evidence led to further cross-examination by counsel for the plaintiff, during which:

100.1 Mr Pham accepted that the photo of his driver’s licence in Exhibit E was not a photocopy he had taken in his office.

100.2 Mr Pham accepted that the image of his passport in Exhibit E was not a photocopy he had taken in his office.

100.3 Mr Pham denied that he allowed Diana to take photos of both his driver’s license and his passport.

E. THE EVIDENCE OF MS MELANIE HOLT, FORENSIC DOCUMENT EXAMINER (THE HANDWRITING EXPERT)

101. Ms Melanie Holt is a forensic document examiner. Her expertise was not in question.

102. Ms Holt was provided with copies of the 3 questioned documents, being the Loan Agreement, Mortgage and Caveat and asked to compare the signatures on those documents, which she referred to collectively as the “questioned loan documents”, with the signatures on specimen documents attributed to Mr Pham, which she referred to as the “specimen documents” and which might also be described as documents containing the genuine signature of Mr Pham.

103. She provided a detailed written report to the court and was cross-examined via audiovisual link.

104. Ms Holt assessed the potential authorship of the signatures purporting to be those of Mr Pham depicted on each questioned document by evaluating her findings against 2 competing hypotheses. The first hypothesis was that the writer of the specimen (or genuine) signatures attributed to Mr Pham signed each questioned document. The second hypothesis was that some other writer or writers signed the questioned documents.

105. Ms Holt was unshaken in cross-examination and I have no hesitation in accepting her evidence.

106. It is sufficient to quote in full the conclusions at paragraph 59 of her report:

“59. Based on the observations of the materials available, as well as the limitations and assumptions outlined in this report, I am of the opinion that:

a. variation was noted between the questioned signatures purporting to be those of Mr Pham on each questioned loan document providing very strong support for the proposition that each signature was individually signed in original form on each questioned document rather than the signatures being the product of a cut and paste manipulation and/or a templated electronic signature. However, the question relating to the type of writing implement used remains indeterminant due to the poor reproduction quality of the questioned loan documents.

b. the evidence provides very strong support for the alternative hypothesis (H2), that is, someone else, other than the writer of the specimen signatures attributed to Ngoc Tuan Pham, wrote the signatures in the same name on the questioned loan documents, compared to the first hypothesis (H1), that the writer of the specimen signatures attributed to Ngoc Tuan Pham signed the questioned loan documents.”

107. Ms Holt explained her reference to a “cut and paste” manipulation in a footnote. She said that ‘“Cut & paste” refers to the situation where a signature has been copied (“cut") from one document and reproduced (“pasted”) onto another document, using either a photocopier or a computer and imaging software, to make it appear that the signature was originally signed on the resultant document.’.

108. Ms Holt underlined the phrase “very strong” in paragraph 59 of her report, as I have done in quoting from it. She also referred to what she called the “conclusion scale” discussed in the Handwriting/Signature Methodology explanation attached to her report at Appendix F. It is necessary to set out what is stated there in order to properly understand the force of Ms Holt’s opinion and her confidence in it. It says (Court book page 260) under the heading “Opinion Terminology”:

“The examiner's opinion is intended to convey the degree of support provided by the observed evidence (i.e., findings) for a specific proposition versus one or more specified alternative propositions. It is a statement of the examiner's belief about the relative support provided by the findings for one proposition versus at least one other. The processes outlined above will result in one of several possible opinions.

The opinion is expressed in qualitative terms that relate to the magnitude of the degree of support provided, using a pre-determined (quasi-logarithmic) scale, as follows:

1. "The evidence provides approximately equal support for proposition X and proposition Y" meaning the evidence does not differentiate between the propositions and the probability of the evidence given each proposition is roughly equal (e.g., both are low; both are high). This is an 'inconclusive' result expressed when the findings do not differentiate the propositions generally due to significant limitations in the material;

2. "The evidence provides more support for proposition X than for proposition Y and the level of that support, while stronger for X than for Y, is limit ed or weak" meaning the evidence favours one proposition (X) over the other (Y), but only slightly; or

3. "The evidence provides > support for proposition X over proposition Y" meaning that the evidence favours proposition X over Y to the degree indicated by ; with the bein g one of the terms "moderate", "moderately strong", "strong", "very strong", or "extremely strong".

Please note that either proposition X or Y may be presented first in any of the above phrases depending upon which proposition is better supported by the evidence. Alternative wording may be used in a given report at the discretion of the examiner; however, it will conform to the above in its meaning and intent.”

F. DOCUMENTARY EVIDENCE ABOUT MR PHAM’S PURCHASE OF THE OAKEY FOREST ROAD PROPERTY AND THE EMERALD DRIVE PROPERTY

109. There were a number of contemporaneous documents, some lodged with New South Wales Land Registry Services, concerning Mr Pham’s purchase of the Oakey Forest Road property and the Emerald Drive property. Those documents were contained in Exhibits C, D, 2 and 3. Having regard to those documents, I find the following facts:

109.1 On 15 May 2019 Ray White Lithgow, real estate agents, prepared a sales notification of the Oakey Forest Road property noting a sale price of $845,000 and “SPECIAL CONDITIONS: 5% DEPOSIT – occupancy on the weekend 18th/19th May 2019, $600 per week – exchange prior to taking possession. Insurances to be provided by buyer”.

109.2 On 17 May 2019 Mr Pham exchanged contracts to purchase the Oakey Forest Road property from Michael James White and Lynette White for the sum of $845,000. The vendors’ solicitor was McPhee Kelshaw of Springwood. The vendors’ agent was Ray White Lithgow. Mr Pham’s representative was Phu & Associates. The deposit stated on the contract was $84,500.

109.3 On the same day (17 May 2019) the vendors’ solicitor informed the agent by email that “Contracts have been exchanged in this matter. You are authorised to release the keys to the purchasers.”.

109.4 On 27 May 2019 Mr Pham exchanged contracts to purchase the Emerald Drive property from Matthew Christopher Pearce and Gemma Clare Pearce for the sum of $595,000. Mr Pham paid a deposit of $29,750.

109.5 On the same day (27 May 2019) Mr Pham and the vendors of the Emerald Drive property entered into a written “agreement” which took the form of a deed. Clause 1 provided: “The Owners hereby grant to the Purchasers the right to enter into possession of the said property known as 4 Emerald Drive Kelso, New South Wales and to occupy the same as Licensee from 27th May, 2019 (hereinafter called ‘the date of possession’)”. Clause 3 provided: “The Purchaser shall prior to exchange of agreements pay to the selling agent the occupation fee of … ($4,500.00) (being $450.00 per week for … (10) weeks) on exchange of agreements, such fee to be adjusted pro rata basis if settlement occurs prior to the ten (10 week) period”.

109.6 Mr Pham’s purchase of the Oakey Forest Road property was completed on 15 July 2019.

109.7 Mr Pham’s purchase of the Emerald Drive property was completed on 19 July 2019. On completion the licensed conveyancer acting for Mr Pham (Michelle Phu of Phu & Associates), informed the agent in writing that Mr Pham as purchaser had “prepaid the rent of $4,500 for 10 weeks at $450 per week” and had taken “early occupation from 31 May 2019 being 50 days”. Ms Phu asked the agent to refund the difference to Mr Pham, being for 20 days at $64.29 per day.

109.8 Mr Pham remained the registered proprietor of the Emerald Drive property until he transferred it to Catherine Anne Welch and Aaron Zane Gladman on 10 January 2022.

109.9 Mr Pham remained the registered proprietor of the Oakey Forest Road property until he transferred it to Thuy Tien Nguyen and Tuan Anh Luu on 17 May 2023.

G. MY ANALYSIS AND FINDINGS

G.1 Issues

110. The ultimate issue is whether Ms Nguyen entered into the 2 loan agreements with Mr Pham as she alleges.

111. In closing submissions, counsel for Ms Nguyen submitted that the plaintiff’s and Mr Quang L Nguyen’s evidence should be accepted. Counsel submitted that the court should find that the lease agreements for the Oakey Forest Road and Emerald Drive properties are not genuine but are shams, concocted by Mr Pham. Counsel submitted that if the court accepted the leases were shams and did not reflect the true state of affairs, it is no great leap to find that Mr Pham would purposely execute the documents in such a way as to potentially avoid liability at a later date. As a step on the way, counsel also submitted that the court should find that the disputed text messages between Bich and Tommy (who the plaintiff asserted was Mr Pham) were genuine.

112. In closing submissions, counsel for Mr Pham submitted that the plaintiff should not be accepted as a reliable witness, and the court should have sufficient doubts about the veracity of her evidence to warrant dismissal of the claim. Counsel submitted that Mr Quang L Nguyen’s evidence should either be rejected or given minimal weight. Counsel submitted that the court would accept Mr Pham’s evidence on the key points that he never entered into any loan agreements with the plaintiff and that he never signed the written loan agreement.

113. The parties’ submissions, their pleadings and the evidence I have outlined give rise to a number of critical questions, all of which are interrelated and bear upon the ultimate outcome:

113.1 Do I accept Ms Nguyen’s evidence that she met with Mr Pham when he says he did not meet with her?

113.2 Do I accept Mr Quang L Nguyen’s evidence that it was Mr Pham he met with in John Street in Cabramatta and it was Mr Pham who signed the contested documents in front of him when Mr Pham says it was not him?

113.3 Are the leases genuine or were they shams, concocted by Mr Pham?

113.4 Were the disputed text messages between Bich and Tommy genuine text messages passing between Diana and Mr Pham?

114. I will analyse the parties’ and Mr Quang L Nguyen’s evidence, addressing some of those issues as I proceed, before considering the evidence as a whole and making findings on the ultimate issue.

115. Before doing that I will start with some relevant legal principles.

G.2 Some relevant legal principles

116. I approach my analysis of the contested evidence bearing in mind some general principles.

117. First, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities (: s.140(1) Evidence Act, 1995). Without limiting the matters the court may take into account in deciding whether the case has been proved on the balance of probabilities, it is to take into account (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged (: s.140(2)).

118. Secondly, the parties’ and their witnesses’ evidence of conversations and of what took place should be tested as far as possible against contemporaneous materials, objectively established facts and the apparent logic of events (: Fox v Percy (2003) 214 CLR 118 at [31] per Gleeson CJ, Gummow and Kirby JJ).

119. Thirdly, the well-known observations of McLelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 319 are relevant: “human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”.

120. Fourthly, the approach outlined by Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431 provides good guidance (: see for example Jeffreys v Sheer [2025] NSWCA 31 at [36] (Adamson JA; Mitchelmore JA and Basten AJA agreeing). Lord Pearce said:

“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be... Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

G.3 Analysis of Ms Nguyen’s evidence

121. I said earlier in these reasons that Ms Nguyen’s email of 29 June 2020 addressed to Mr Pham and sent through her solicitors has a significant bearing on my decision. The email represented Ms Nguyen’s considered response to Mr Pham’s statutory declaration saying that he had never met or had contact with her and had never made an agreement or received any funds from her. In context, Ms Nguyen’s email was being put forward by her as her explanation as to why she said Mr Pham owed her money and why she had the right to put a caveat on the title of his property.

122. As I also said earlier, Ms Nguyen’s email of 29 June 2020 presents a very different account of events to that portrayed by her in her statement of claim and affidavit. Many of the differences go to the heart of the questions in issue in the case. The differences include the following:

122.1 The first and most significant difference is that at the start of her email Ms Nguyen said to Mr Pham: “You are right, that I don’t know you”. This directly contradicts Ms Nguyen’s pleaded case that she entered into an oral agreement with Mr Pham in her own discussions with him in relation to the first loan. It directly contradicts her affidavit evidence that she met with Mr Pham and Diana and discussed making the first loan, and that she came to an agreement with them in relation to the first loan. It directly contradicts her affidavit evidence that she met with Mr Pham and Diana and discussed with them and came to an agreement with them about the second loan. It directly contradicts her oral evidence that Diana and Mr Pham came to her house and reached an agreement with her to make the first loan. It directly contradicts her oral evidence that Diana and Mr Pham came to her house and reached an agreement with her to make the second loan. It directly contradicts her oral evidence that Mr Pham came to her house and handed her the signed documents (being the Loan Agreement, Mortgage and Caveat).

122.2 In her oral evidence, Ms Nguyen sought to explain that when she stated “You are right, that I don’t know you” this was not true and she was being ironic. I do not accept that evidence. The statement does not read as intended to be ironic when read with the rest of the email. If the statement was intended to be ironic one would expect the full extent of the irony to be revealed in the balance of the email, for example by demonstrating how in fact Mr Pham knew her and she knew him. However, the balance of the email recounts Ms Nguyen’s communications and dealings with Diana, not with Mr Pham. On this account of events, Ms Nguyen had no communications or contact with Mr Pham herself at all. This is consistent with the other statement at the start of Ms Nguyen’s email that “I’m sure that you know me. I’m also really sure that you know (Diana) as well”. On a natural reading of the email, Ms Nguyen was attempting to persuade Mr Pham why he should know her based on her communications and dealings with Diana.

122.3 In my view, and I find, the statement by Ms Nguyen in the email that “You are right, that I don’t know you” was an admission by Ms Nguyen that she in fact did not know Mr Pham. Further, the recounting of her communications and dealings with Diana without mentioning any personal communications or dealings with Mr Pham was an implied admission that she had not had any personal communications or dealings with Mr Pham.

122.4 The next and equally significant difference is that in her email she said that it was Diana who came to her house asking to borrow money, not Diana and Mr Pham, and that she lent the money to Diana, and not to Mr Pham or to Diana and Mr Pham. This contradicts Ms Nguyen’s pleaded case, her affidavit and her oral evidence.

122.5 Further, and just as significant, in her email Ms Nguyen said that she lent Diana $50,000 on 2 January 2020 and then an additional $100,000 in early February. Whilst the 2 sums add up to $150,000, which is the total amount Ms Nguyen says that she lent Mr Pham, the timing, amounts and to whom the money was lent are different. In her statement of claim, Ms Nguyen pleaded that she made a contract with Mr Pham and lent him $100,000 on 16 November 2019, that she advanced Mr Pham a further $50,000 in around February 2020 and that she made a further contract with him to lend that amount on 10 March 2020.

122.6 Other, and just as significant, differences concern to whom Ms Nguyen paid the money and the source of funds she used to do that. In her email Ms Nguyen said that she withdrew the $50,000 she lent to Diana on 2 January 2020 “from my Westpac account to lend to her”. She also said that she withdrew the additional $100,000 she lent to Diana in early February “from my husband Westpac account”. This contradicts Ms Nguyen’s statement of claim in which the stated that she advanced the $100,000 to Mr Pham on 16 May 2019 and that she advanced the sum of $50,000 to Mr Pham in around February 2020. The email contradicts her affidavit in which she stated that she arranged for the sum of $100,000 to be deposited into Mr Pham’s bank account with the ANZ Bank on 16 May 2019 and that she advanced to Mr Pham cash in the sum of $50,000 in February 2020. The email contradicts her oral evidence that Diana and Mr Pham came to her house around the 10th or 13th of May 2019 and she gave both of them the $100,000 in cash. The statement in the email that she withdrew the $100,000 from her husband’s Westpac account contradicts her oral evidence that she used $50,000 which she had in cash at home from her personal savings and borrowed another $50,000 cash from 2 friends. The statement in the email that she withdrew the $50,000 she lent Diana from her Westpac account contradicts her oral evidence that she used $20,000 from cash she already had and $30,000 from the proceeds of a loan she organised for her personal use.

123. Leaving to one side her email of 29 June 2020, Ms Nguyen’s evidence about significant aspects of the first loan was inconsistent and contradictory:

123.1 In her affidavit Ms Nguyen said that she agreed with Mr Pham to lend him $100,000. However, in her oral evidence Ms Nguyen said that she agreed with both Mr Pham and Diana that they would both borrow the money and both repay it.

123.2 In her affidavit, Ms Nguyen said that on 16 May 2019 she arranged for the $100,000 to be deposited into Mr Pham’s bank account with the ANZ Bank. There is no dispute that $100,000 was in fact paid into Mr Pham’s ANZ Bank account on that day by Diana. As proof that she had “arranged” for that deposit to be made, Ms Nguyen exhibited to her affidavit a copy of a text message she says that she received from Diana which she translated into English as follows: “This is the withdrawal I transferred to his account, 100k, withdrawn and deposited at ANZ bank Cabramatta.”. Whilst this message was not admitted into evidence as the truth of its contents, it indicates that Diana was saying to Ms Nguyen that she had withdrawn funds from one bank account and put them into Mr Pham’s account. “Arranging for” money to be deposited and “withdrawing” funds from another account before doing so is inconsistent with and contradicts Ms Nguyen’s oral evidence that Mr Pham and Diana came to Ms Nguyen’s house and she gave them the $100,000 personally in cash. If Ms Nguyen had given both of them the money in cash, there was no need for Diana to withdraw the money from another account before then paying it into Mr Pham’s account. If Ms Nguyen had given Mr Pham the money, there was no need for him to give it to Diana to deposit into his account. “Withdrawing” the funds from another account is also inconsistent with Ms Nguyen’s oral evidence about borrowing $20,000 in cash from one friend and $30,000 in cash from another friend, which she said she used with the $50,000 of her own cash to make up the $100,000 cash she says that she gave Mr Pham and Diana.

124. Leaving to one side her email of 29 June 2020, Ms Nguyen’s evidence about significant aspects of the second loan was inconsistent and contradictory:

124.1 In her affidavit Ms Nguyen said that she advanced to Mr Pham cash in the sum of $50,000 in February 2020. However in her oral evidence Ms Nguyen started by saying that she gave both Mr Pham and Diana $20,000 (around 31 January or one February 2020) and then she gave both Mr Pham and Diana $30,000 (around 20, 21 or 22 February 2020). Whilst on one view this was theoretically consistent with advancing the cash to Mr Pham, albeit also advancing it to Diana at the same time, subsequently Ms Nguyen said that a day or 2 after Mr Pham and Diana had been to her house together, Diana came back on her own and Ms Nguyen gave Diana $20,000, and she made Diana and Mr Pham come and get the $30,000 from her together.

125. Ms Nguyen’s evidence about the reason for having a written loan agreement, mortgage and caveat was inconsistent and contradictory:

125.1 In her affidavit Ms Nguyen said that in January and February 2020 Mr Pham, Diana and her met and discussed and agreed that as Mr Pham had not repaid first loan, he would sign a loan agreement, mortgage and caveat documents over the Oakey Forest Road property.

125.2 In her email of 29 June 2020 Ms Nguyen gave a different account. On this account Ms Nguyen did not “meet” and “discuss” and “agree” with Mr Pham at all. On this account, Diana offered to pay interest and Diana offered to provide a caveat. On this account, Ms Nguyen said that Diana borrowed $50,000 from her on 2 January 2020, then sometime in late January she came back. At that time Ms Nguyen says Diana offered to pay interest and that Diana offered that if she failed to repay her she would ask Mr Pham to put Ms Nguyen’s name on “the caveat” of the Oakey Forest Road property “as that house she had lent to (Mr Pham) as a favour for his deposit, and now is the time to pay it back”. Subsequently, Ms Nguyen said that in early February she lent Diana an additional $100,000. Ms Nguyen said that “after 2 weeks” Diana realised that she was unable to repay Ms Nguyen on time, and, I assume, she (i.e. Diana) asked Mr Pham for “all the legal documents and ID required for the caveat”.

125.3 In her oral evidence, Ms Nguyen said that she asked for security when she says Diana and Mr Pham came to see her (for the second time) when asking for the second loan in February 2020. Ms Nguyen said that during this conversation she said to them that she wanted the security because they already owed her money and she did not want to lend more money without security.

126. Ms Nguyen’s evidence about the date of the written loan agreement and mortgage was inconsistent and contradictory:

126.1 In her verified statement of claim Ms Nguyen pleaded that the written loan agreement was made on 10 March 2020.

126.2 The loan agreement she exhibited to her affidavit is dated 1 March 2020 (CB 50).

126.3 The loan agreement her solicitors provided to Mr Pham on 24 May 2021 when he questioned the right to maintain a caveat is undated (CB 300).

126.4 The execution page of the mortgage alleged to have been signed by the Pham exhibited to Ms Nguyen’s affidavit is dated 28 March 2020 (CB 62).

126.5 The same execution page of the mortgage her solicitors provided to Mr Pham on 24 May 2021 when he questioned the right to maintain the caveat is undated (CB 312).

126.6 The execution page of the mortgage alleged to have been signed by Ms Nguyen and her solicitor exhibited to her affidavit is dated either 28 or 25 March 2020 (CB 62).

126.7 The same execution page of the mortgage her solicitors provided to Mr Pham on 24 May 2021 is undated (CB 312).

126.8 The caveat states that the mortgage in deed of loan are dated 1 March 2020 (CB 77).

127. Ms Nguyen was evasive in giving her oral evidence. In saying this, I recognise that some allowance must be made for the fact that English is not her first language. However, the following provide examples:

127.1 T48:25, when asked if when she verified the statement of claim she reviewed it and identified that it reflected the terms of the loans she said were entered into.

127.2 T49 – 50, when being asked about the defendant’s application to set aside the default judgment.

127.3 T50: 39.

127.4 T 53: 46, when asked about discussions with the defendant.

127.5 T 55 - 56, when asked to explain how she organised for $100,000 to be deposited into Mr Pham’s account.

127.6 T 76: 25.

127.7 T 77 - 78, about preparation of the loan agreement

127.8 T 89: 35, about whether a statement in the email was true or not true.

128. Speaking generally, Ms Nguyen’s evidence about the transactions lacked detail particularly about who said what and when, where the money she lent came from and how it was advanced to Mr Pham. When asked to supply details of these and other matters in her oral evidence, she struggled to do so and at times changed her evidence. As counsel for Mr Pham submitted (which I accept), Ms Nguyen’s affidavit was devoid of the level of substance or detail that the court would ordinarily expect to see in a case of this nature, particularly given the issues in dispute that had been raised in the pleadings, and she repeatedly gave different and often muddled explanations as to the chain of events.

129. Speaking generally, in light of the above matters in particular, I do not regard Ms Nguyen as a generally credible or reliable witness.

G.4 Analysis of Mr Quang L Nguyen’s evidence

130. Mr Nguyen’s account that Mr Pham saw him in the street, that he stopped Mr Nguyen and asked him to witness the documents which Mr Pham did not have with him, that Mr Nguyen and his workmate waited whilst Mr Pham went to his office to get the papers, that Mr Pham came back with the papers and they went into Gloria Jeans to sign the documents and then left, in my view is highly implausible in circumstances where on Mr Nguyen’s own evidence: (a) it was a chance meeting; (b) Mr Nguyen did not know Mr Pham well, or really much at all; (c) Mr Nguyen had finished lunch with his workmate and was busy at work because of Covid restrictions coming in, yet notwithstanding waited patiently whilst Mr Pham went to his office to pick up the documents and come back; (d) if Mr Pham had gone back to his office, he could just as easily have gotten someone else in the office to witness the documents; and (e) for that matter, there was no need to ask a relative stranger to witness the documents when there were people back in the office and available.

131. The mistakes in Mr Nguyen’s affidavits indicate that he was not concerned to ensure that his affidavits were accurate before signing them. In his first affidavit he swore “I am the plaintiff”. In his second affidavit he said he was not sure how that error occurred. In his oral evidence he said that he did not read it properly and he did not pick that up. In his first affidavit he said he did not understand and did not ask the lawyer to explain what the reference to documents being “exhibited and marked” meant. He said he could not really remember exactly the date on which he witnessed the documents and agreed that the lawyer just put in the date of 28 March 2020 and he thought okay, I’ll sign it. When asked if he looked at the documents in the exhibit carefully when he swore his affidavit, he said “not really”. In his second affidavit, even though he says he pointed out to the solicitor that the dates stated for the period of his relationship with the plaintiff were wrong and had not been corrected, he swore the affidavit anyway.

132. In his second affidavit Mr Nguyen said that he had known Mr Pham for more than 15 years. He said he saw him and socialised with him on occasions. When asked to explain how he knew Mr Pham, in his oral evidence Mr Nguyen said Mr Pham was “very famous”. He said that “a long time ago” Mr Pham owned a restaurant and he used to see him there. He denied that they had “hung out together”. When pressed to provide further detail about how he knew Mr Pham he was unable to explain other than to repeat that he was “very famous”, he had been to his restaurant and seen him on the street. He said that he had met him at Mr Pham’s sister’s house. He expressed his own doubt that Mr Pham would remember him.

133. In his first affidavit, Mr Nguyen made no mention of his relationship to the plaintiff. In fact, as I have said, he swore that he was the plaintiff. In his second affidavit he explained that he was in fact the plaintiff’s former de facto partner and they had 2 children together. He said that because of their children they had shared social circles and “have remained good friends since we ceased our relationship”. Whilst this is not a weighty factor, I must take into account that Mr Nguyen’s good relationship with the plaintiff is likely to predispose him to be biased in her favour.

134. In his second affidavit Mr Nguyen had said that when Mr Pham stopped him in the street and asked him to witness some documents he asked Mr Pham what they were, to which Mr Pham replied “a loan agreement with Huyen”. I note that “Huyen” is a reference to Ms Nguyen, the plaintiff. He was asked to repeat in cross-examination what Mr Pham said to him. I set out the questions and answers earlier in these reasons. Mr Nguyen started by saying that Mr Pham used words “ex-partner” and then “partner” to refer to the plaintiff. He was unable to explain how Mr Pham would know who his partner or ex-partner was. The explanation remains a mystery.

135. In his second affidavit Mr Nguyen made no mention of the fact that he and his workmate had to wait whilst Mr Pham went back to his office to retrieve the papers and then come back to Gloria Jeans before Mr Pham could sign them and Mr Nguyen could witness his signature. This is quite material aspect of the events to leave out of his affidavit.

136. The above matters provide little reason to conclude that Mr Nguyen’s evidence was reliable. For those reasons, I do not regard him as a generally credible or reliable witness.

G.5 Contradiction between Ms Nguyen’s evidence and Mr Nguyen’s evidence

137. Mr Quang L Nguyen’s evidence was that when he signed the Mortgage there were no signatures under the heading “Mortgagee Execution”. This obviously means that at the time he signed it, it had not been signed by Ms Nguyen and her solicitor.

138. This evidence directly contradicts the clear and repeated evidence of Ms Nguyen that the sequence was that her solicitor prepared the documents; she signed them (including the mortgage) in front of her solicitor; her solicitor then gave her the documents and letter addressed to Mr Pham to have him sign them; she got in touch with Diana by text message to arrange to get them signed; Diana’s husband picked up the documents from Ms Nguyen’s house; eventually the signed documents were returned to Ms Nguyen in person by Mr Pham; and Ms Nguyen handed all the paperwork to her lawyer.

G.6 Analysis of Mr Pham’s evidence

139. Mr Pham’s account and version of events is generally much more straightforward and less complicated than Ms Nguyen’s.

140. His denial of signing the loan agreement, mortgage and caveat is backed up by the evidence of Ms Holt, the handwriting expert. This is a powerful consideration in favour of accepting his evidence that he did not sign the documents.

141. The allegations being made against him are very serious. They include that he has given false evidence that he did not sign the documents and that he did not borrow any money from Ms Nguyen and that he does not know her. They include, in effect, allegations that he tricked both Diana and the plaintiff to get the plaintiff’s money to use it to purchase properties and then deny that he had received it from the plaintiff or had to pay it back. They include allegations that he sought to cover his tracks by creating or concocting false leases.

142. The starting and repeated attack on Mr Pham’s credit as a witness was based on the proposition that he had concocted the leases and they were shams.

143. In written closing submissions, counsel for the plaintiff submitted that the lease documents should be found to be a sham for the following reasons:

143.1 There are several curious elements to them, which in conjunction with the fact that the Defendant is a licensed real estate agent makes them suspicious documents on their face, these being:

(a) The written lease agreements do not record any one year lump sum payment in advance type arrangement and instead outline payment obligations inconsistent with such an arrangement. (b) The agreements record requirements for bonds to be paid (indeed these have been specifically filled in and not crossed out), and yet the defendant accepts that no bond was ever paid by him to any relevant authority, notwithstanding his understanding as to the legal requirements of the same. (c) The sum of $100,000 does not mathematically represent one year of combined rent in respect of the two properties in any event.

143.2 As a matter of logic and common sense the arrangement seem hard to accept notwithstanding the lack of any supporting evidence outside of the purported agreements.

143.3 At the time the alleged inspections took place in April 2019 the Defendant had not purchased either property, or entered into any such licence agreement. It seems difficult to accept that somehow the Defendant, who at that time was no more than a prospective purchaser, already had access to the properties.

143.4 At the time the leases were allegedly executed the Defendant still had not purchased either property. This being entirely inconsistent with his own affidavit evidence at CB p. 122 [12].

143.5 While evidence was led in reply of a licence being granted for early possession in respect of one of the properties, settlement in respect of the other only occurred well after the alleged lease period began. Again - if Diana was an arms length client looking to rent the property it is difficult to reconcile how the timeline would allow her to take possession of the property in accordance with the purported lease.

143.6 In respect of the 82 Oakey Forest Rd property the weekly rent is recorded as $1200 per week, and yet the Defendant accepted that in May 2020 his own agency had advertised that property for rent for $600 per week. This further reinforces that these were not genuine documents as it is hard to accept a landlord would advertise a property for 50% of its most recent weekly rental.

143.7 If Diana was truly a tenant of the Defendant why would she be in possession of council rates notices and a valuation of one of the properties that was obtained for the purposes of a re-finance?

143.8 Three sections of the Residential Tenancies Act, 2010 support the fact that the leases were not genuine documents. Section 33 made it an offence for a landlord to require tenant to pay more than 3 weeks rent in advance. Section 159 dealt with rental bond is. Section 162 made it an offence to not deposit a rental bond with the Secretary.

144. In oral closing submissions counsel for the plaintiff took up these submissions and added submissions that it was clearly not correct when Mr Pham said in his affidavit that he purchased the Emerald Drive property on around 30 November 2018. Counsel submitted that this was deceitful evidence and was a strong factor in support of the lease agreements not being genuine. At the very least, counsel submitted that it was a significant error in his evidence.

145. I do not accept these submissions. I address them in turn:

145.1 It is true that the leases do not record any one year lump sum payment in advance type arrangement. It is true that they both record that rent is to be payable weekly in advance. However, this does not mean that the rent could not be paid for one year in advance.

145.2 It is true that the leases record that a rental bond must be paid by the tenant on signing the agreement and Mr Pham conceded that no bonds had been paid. His explanation was that he was satisfied and did not require a bond because the rent had been paid in advance for the full term of the lease. Mr Pham’s attitude about that is consistent with the purpose of a rental bond. It is to provide security for any obligations that may arise on the tenant’s part. The primary obligation being to pay the rent and any other charges owing and payable under the lease. Other obligations include the reasonable costs of repairs to or restoration of residential premises as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee is the tenant, and the reasonable costs of cleaning at the end of the lease if the premises are not left reasonably clean by the tenant, having regard to the condition the premises at the commencement of the tenancy. See section 166 of the Residential Tenancies Act, 2010. Mr Pham had no obligation to pay a bond to the relevant authority if no bond had been paid to him, and he was not required to insist on a bond being paid if he was content with the arrangements. In my view, payment of a full year’s rent in advance is likely to have provided considerable incentive for Mr Pham not to insist upon the payment of a bond on top.

145.3 It is true that $100,000 does not mathematically represent one year of combined rent in respect of the 2 properties. However it is very close. One year’s rent for the Oakey Forest Road property was $62,400 under the lease, whilst it was $39,000 for the Emerald Drive property.

145.4 It is not true that there was a lack of any supporting evidence outside of the purported agreements. After Mr Pham was challenged in cross-examination about his ability to obtain access to the properties for the purpose of showing them to Diana and her family and then to rent the properties to her he was able to provide on short notice a series of contemporaneous documents, which were unchallenged and supported his evidence about having a connection with the real estate agents managing the properties and confirming his right to occupy the properties, and so let them out. When read with the documents obtained from New South Wales Land Registry Services, they provide overwhelming objective support for and proof of Mr Pham’s evidence about the leases. I have referred to those documents and made findings about them in the part of my reasons referring to the documentary evidence about Mr Pham’s purchase of the Oakey Forest Road property and the Emerald Drive property.

145.5 Having regard to those same documents, it is irrelevant that Mr Pham had not purchased either property or entered into licence agreements at the time he says he took Diana and her family to inspect them. By the time the term of each lease started, Mr Pham had the right to occupy the properties. He did not need to have purchased them, in the sense of completing his purchases of them, before entering into the leases. It is irrelevant that settlement or completion occurred after the alleged lease period began.

145.6 It is true that Mr Pham accepted that in May 2020 his own real estate agency advertised the Oakey Forest Road property for rent at $600 per week. However Mr Pham explained that he in fact did not rent the property for that sum or at all. Instead he allowed a Mr Perris to live there to look after the property rent free during Covid.

145.7 The answer to the question of if Diana was truly a tenant of the defendant why would she be in possession of the council rates notice, is supplied by the fact that the rates notice in question shows on its face that it was addressed to the property which, on Mr Pham’s evidence, Diana had leased and where she was living with her family. The answer to the question of why Diana was in possession of a valuation of one of the properties that was obtained for the purposes of a re-finance if she was truly a tenant of the defendant, is not clear and is one of the oddities of the case. However one possible explanation is that Diana had obtained a copy without the knowledge of Mr Pham.

145.8 Section 33 (2) of the Residential Tenancies Act, 2010 provides that “A landlord, or landlord’s agent, must not require tenant to pay more than 2 weeks rent in advance…”. According to Anforth, Alan, et al. Residential Tenancies Law and Practice New South Wales (Federation Press, 2022) at paragraph [2.33.4], “Section 33 (2) limits advance rent to 2 weeks rent in advance but only in terms of the landlord not ‘requiring’ more than this sum. The landlord is not precluded from ‘receiving’ more than 2 weeks rent if the tenant offers it.”. On Mr Pham’s evidence, Diana offered to pay the year’s rent in advance and he did not require it. In those circumstances there would be no contravention of section 33.

145.9 Section 159 prohibits the landlord from either “requiring” or “receiving” a rental bond of an amount exceeding 4 weeks rent. It requires a person receiving a bond to provide a receipt unless the details of the payment are recorded in the lease.

145.10 Section 162 requires a landlord or landlord’s agent who receives a rental bond to deposit it with the Secretary. The section will only apply if a rental bond has been received. In circumstances where no bond has been paid, section 162 has no work to do. It does not create an offence in those circumstances.

145.11 I accept that Mr Pham’s affidavit evidence about when he purchased the Emerald Drive property was incorrect. I do not accept that his evidence about this was deceitful. Nor do I accept, having regard to the contemporaneous objective evidence before the court about his purchase of the property, that this was a significant error in all the circumstances.

146. I have already summarised Mr Pham’s evidence about how the leases came into existence, the terms of the leases themselves and the documentary evidence about Mr Pham’s purchase of the Oakey Forest Road property and the Emerald Drive property. It is significant, in my view, that Mr Pham was able to produce the documentary evidence on very short notice after being challenged on the genuineness of the leases in cross-examination. It is also significant that none of the documentary evidence he produced has been challenged. It is all consistent with the conclusion that the leases are genuine and I find that to be the case.

147. This finding disposes of the main attack made on Mr Pham’s credit.

148. The plaintiff also attacked Mr Pham’s credit on the basis that the disputed text messages between Bich and Tommy were genuine text messages passing between Diana and Mr Pham.

149. Counsel for the plaintiff submitted that the court would find that these messages were genuine and Mr Pham was in fact Tommy. Counsel submitted that the court should make that finding because:

149.1 Mr Pham accepts that his mobile phone number was the one shown on the messages (at CB 28).

149.2 It seems farfetched that Diana would have, over many months, text message interactions with someone else of the nature of the messages, and then to attempt to demonstrate that the person was the Defendant by falsifying the contact details at CB p. 28 - to do so would be to find that Diana had orchestrated fake messages over many months, including messages containing images of council rates notices etc - for the purpose of implicating the Defendant - the Court would be slow to accept such a possibility.

149.3 The messages discuss matters that are directly connected to contemporaneous events, these being attempts to refinance, obtaining valuations, and overdue council rates notices. This makes the message exchanges credible - and more likely than not to be Defendant.

149.3 The rhetorical question which arises is who, other than the Defendant would be interested in chasing Diana to pay council rates that were payable by the Defendant.

150. As to those submissions:

150.1 I set out Ms Nguyen’s translation of the text of these messages when summarising her affidavit evidence. She did not say in her affidavit how she came by the messages. Nor did she say in her affidavit that they had been passed on to her at the time, noting that they were said to be between Diana and Mr Pham. It was not revealed until cross-examination that Ms Nguyen said she received the text messages by email from Diana’s sister in around July 2020 after she had ceased to have contact with Diana since around May 2020.

150.2 It is true that Mr Pham accepts that his mobile number is shown on the messages. If the messages were business records produced on subpoena, there might be some force in the fact that they identified Mr Pham’s phone number. However, Ms Nguyen’s evidence about the source of the documents and when they were provided to her indicates, in my view, that they ought to be examined with added scrutiny rather than accepted at face value. The fact that Mr Pham’s mobile number is shown on the documents adds very little, if anything, to their provenance.

150.3 The messages do not appear to be in chronological order. They appear to be a selection of separate text that have been put together.

150.4 Having regard to the rest of the evidence in the case it does not seem far-fetched to me that Diana would have orchestrated fake messages to show to Ms Nguyen. Having regard to all of the evidence, there is a distinct possibility that Diana set out to and in fact deceived Ms Nguyen at all points along the way.

151. Counsel for Mr Pham submitted that the starting position is that no one with any first-hand knowledge has given evidence that the messages are authentic. That is correct. Neither Diana nor her sister who is said to have sent them to Ms Nguyen has given evidence. The only person who has given evidence and is alleged to have been a party to them is Mr Pham – he denies that they are authentic.

152. Counsel for Mr Pham submitted that the messages should be given little or no weight.

153. Having regard to all those matters, I do not accept that the disputed messages originated from Mr Pham. I place no weight on them.

154. That finding disposes of the secondary attack on Mr Pham’s credit made in submissions.

155. Counsel for Ms Nguyen made further adverse submissions as to Mr Pham’s credit based on the copies of Mr Pham’s passport and driver’s licence in evidence. In her affidavit Ms Nguyen said that she received copies of them by email and passed them on to her solicitor who then prepared the loan agreement, mortgage and caveat. She did not say in her affidavit Mr Pham had sent them to her. In his affidavit, Mr Pham said that he had never sent a copy of his passport, driver’s licence, council rates notice or valuation report to Ms Nguyen and he did not know how she obtained copies of them. In cross-examination Ms Nguyen said that she received the documents by email from Diana and not Mr Pham himself. When the matter was first raised with Mr Pham in cross-examination, he said he could explain why Diana had copies of them, but the cross examiner did not ask for that explanation. Subsequently, Mr Pham denied he gave Diana a copy of the documents. When I asked about the matter, Mr Pham said that in 2019 Diana and her husband came to his office in Cabramatta and asked him to give a supporting witness statement of their relationship for residency and also for their future birth certificate of their children. I have set out the details earlier in these reasons. Mr Pham said that at this time he made a photo of his driver’s license and his passport, attached them to the form he filled out and gave it to Diana and her husband. He said he made a plain paper copy of both on the photocopy machine in his office. Exhibit E consists of a number of emails sent by Ms Nguyen to her solicitor on 22 May 2024 (the first day of the hearing). Those emails appear to forward, possibly only in part, emails sent on 5 March 2020. One email has attached to it a photo of Mr Pham’s driver’s licence and the other has a photo of a page from his passport. Mr Pham accepted in cross-examination that the photo of his driver’s licence in exhibit E was not a photocopy he had taken in his office. He also accepted that the image of his passport in exhibit E was not a photocopy he had taken in his office. He denied that he allowed Diana to take photos of both his driver’s licence and his passport.

156. Counsel for the plaintiff submitted:

156.1 The fact that Diana provided the Plaintiff with the Defendant's personal documents is a weighty factor in favour of the Plaintiffs case.

156.2 The Defendant's attempts, when questioned by his Honour, to explain how Diana came to have his licence and passport do not withstand scrutiny - Exhibit E contradicts the version proffered whereby Diana and her husband came to obtain photocopies of the documents in respect to a visa application they asked the Defendant to assist with by providing a supporting statement. It is also something that was never raised by the Defendant previously and is somewhat contradictory to the statement in his affidavit at CB p. 124 [33] where he says "I do not know how the plaintiff obtained copies of those documents" which was said at a time where it was clear to the Defendant from the plaintiffs evidence that Diana was closely connected with the Plaintiff and integral to the Plaintiffs claims.

156.3 There is clear contemporaneous evidence that Diana provided the documents to the Plaintiff in March 2020 - the more probable finding is that Diana obtained these documents, (along with the valuation and council rates) from the Defendant not through some trick but because it was requested in order to assist with documenting the loan agreement. The timing of the emails from Diana to the Defendant also coincides with the timing of the second loan and the weeks leading up to the execution of the loan agreement and mortgage.

157. As to those submissions:

157.1 The fact that Diana provided Ms Nguyen with copies of Mr Pham’s personal documents, particularly his driver’s license and passport, does raise questions. In my view, the more important questions are how she obtained them and whether she did so with the full permission and cooperation of Mr Nguyen. There is no evidence from Diana about how she obtained them. Mr Pham’s evidence that he provided photocopies (not photographs) of them to Diana and her husband when he filled out a government form for them is plausible. However it does not explain how Diana came by photographs of both the licence and passport. In my view, it is quite possible that Diana obtained them without Mr Pham’s knowledge or consent.

157.2 In the way the issue emerged, which I have described fully above, in my view it does not reflect poorly on Mr Pham’s credit that he did not mention these matters in his affidavit, given what was said in the affidavit to which he was responding.

157.3 The fact that Diana provided the documents to Ms Nguyen in March 2020 is as equally consistent with Diana obtaining them without Mr Pham’s knowledge or consent as with Mr Pham providing them to her voluntarily. I see no reason to conclude the latter having regard to the fact that Diana has not given evidence and the conclusions I have already arrived at in relation to the other attacks made on Mr Pham’s credit.

157.4 Nevertheless, I do accept that it remains a mystery, unexplained on the evidence, as to precisely how Diana was able to obtain photographs (not photocopies) of Mr Pham’s driver’s licence and part of his passport.

158. Counsel for the plaintiff also sought to make something of the fact that Diana had sent Ms Nguyen a copy of the amended valuation report of Opteon dated 27 September 2019 as tying in with Ms Nguyen’s evidence about what Diana had told her about why she (or perhaps Mr Pham, depending upon which version of the plaintiff’s evidence one accepts) wanted to borrow further money and how she is going to repay it. Whilst Mr Pham initially denied that he had financed the Oakey Road property, there is no evidence that Mr Pham borrowed more money when he refinanced, assuming he did. Whether or not he refinanced does not lead anywhere, apart from slightly undermining his credibility, because at first he denied refinancing. It does not lead anywhere because the Opteon valuation amended report 27.9.19 (Exh E, CB36) gives a market value of $845,000 as at 13.9.19. This is the same as the price paid by Mr Pham (per contract 17.5.19: Exh 3; and Transfer 15.7.19: Exh D).

159. Bearing in mind all those matters, I regard Mr Pham as a generally credible and reliable witness.

H. Considering the evidence as a whole

160. Although I have analysed the evidence of each witness separately, it is necessary to weigh each one’s evidence against the other’s in order to form a view about the the ultimate issues requiring determination.

161. The ultimate issue is whether Ms Nguyen entered into the 2 loan agreements with Mr Pham as she alleges. This in turn hinges upon whether or not I accept that she met with and had discussions with and reached agreements with Mr Pham, as she alleges. Resolution of the ultimate issue must also be heavily influenced by whether I accept that Mr Pham signed the loan agreement, mortgage and caveat which Mr Quang L Nguyen said he witnessed.

162. In her oral evidence Ms Nguyen said that she was 100% sure and had no doubt that the man she had meetings with was Mr Pham, the person in the courtroom. She obviously, and quite firmly, believed this to be true.

163. But what foundation did she have for her conclusion?

163.1 In her affidavit, Ms Nguyen said that she had “known” Mr Pham since 1990 when she was in high school. She said that the circumstances in which she “knew” him at that time were because he had a travel agency in Cabramatta and she would accompany her mother to the travel agency when her mother purchased tickets from Mr Pham to travel to Vietnam in the 1990s. Mr Pham said in his evidence that he never owned a travel agency in Cabramatta, but that his ex-wife had and he used to visit her at times when they were married, but he did not work there.

163.2 Leaving aside the issue of whether or not Mr Pham worked at the travel agency and sold tickets to Ms Nguyen’s mother in the 1990s, it is possible that Ms Nguyen did see Mr Pham at the travel agency on occasion in the 1990s. Ms Nguyen did not give evidence of the frequency with which her mother bought tickets to travel to Vietnam, but it is unlikely to have led to many encounters with Mr Pham. Further when making her affidavit at the end of 2023, Ms Nguyen was giving evidence of occasions on which he said she saw Mr Pham more than 23 years and perhaps up to 30 or more years previously. She did not describe any thing about his appearance or features that would make him memorable. It is the extremely unlikely, in my view, that she would be able to remember how Mr Pham had looked so long ago.

163.4 In her affidavit, Ms Nguyen said that since 2017 she had met Mr Pham and his wife when she went to the Star Casino. Mr Pham said that he did sometimes visit the Star Casino, but did not recall ever meeting Ms Nguyen there. Ms Nguyen did not say how often she went to the casino or how often she said she saw Mr Pham when she went. She did not say how she recognised that the person she saw at the casino was in fact Mr Pham. If it was based on seeing him in the travel agency with her mother, it is in extremely unlikely, in my view that she would have recognised him as the same person in 2017.

164.5 In her affidavit, Ms Nguyen said that she also “met” Mr Pham in John Street in Cabramatta when she went shopping. She did not say when and how often this happened. She did not say how she recognised that the person she “met” was Mr Pham. In her oral evidence, Ms Nguyen said that she saw Mr Pham in the street “every now and then” in Cabramatta and that her best recollection of the time she saw him before she saw him with Diana for the first time to talk about borrowing money was around a month or 2 months before when shopping in Cabramatta. She said that she did not have any interaction with Mr Pham at that time. She said “normally” we may reach out with a smiling if we pass each other very close “by greeting elderly as he passed” or “I may bow my head down as I say hi to elderly”.

164.6 In her oral evidence, Ms Nguyen said that she was not friends with Mr Pham; that she did not communicate with him through his phone at all; her “relationship” with him was “not close”; and that she did not have the type of relationship to lend money to him.

164. Taken together, that evidence does not provide a firm foundation for the surety and confidence with which Ms Nguyen expressed her opinion that the person she had dealings with was Mr Pham.

165. What else might explain Ms Nguyen’s 100% confidence that she was dealing with Mr Pham? Other possibilities are that she was exaggerating her degree of confidence, or she was mistaken, or she had convinced herself it was him, or she was lying or what she said was true.

166. When considering Ms Nguyen’s identification of Mr Pham as the person she was dealing with the clear admission she made in her email of 29 June 2020 that she in fact she did not know Mr Pham must weigh heavily in the balance. The fact that this admission was made at all and that it was made at a time much closer to the actual events in a conscious and deliberate way through her solicitors has, as I said earlier, a significant bearing on my decision. It weighs heavily against accepting Ms Nguyen’s evidence that she was dealing with Mr Pham. So too the account she gave in the same email of her dealings with Diana, rather than Mr Pham or Diana and Mr Pham.

167. I also bear in mind that I do not regard Ms Nguyen as a generally credible or reliable witness, for the reasons I gave earlier.

168. What of Mr Quang L Nguyen’s evidence that he witnessed Mr Pham sign the documents?

169. I have already analysed Mr Nguyen’s evidence and explained why I came to the conclusion that I do not regard him as a generally credible or reliable witness.

170. Against his evidence is that of the independent handwriting expert Ms Holt. Her opinion was that the evidence she examined provided “very strong” support for the hypothesis that someone other than Mr Pham wrote the signatures on the questioned loan documents. In my view, Ms Holt’s opinion carries significant weight.

171. I must then consider Mr Pham’s own evidence that he did not have any meetings or dealings with Ms Nguyen, he did not borrow any money from her and he did not sign the loan agreement, mortgage and caveat.

172. I have already analysed Mr Pham’s evidence and the criticisms of it and explained why I regard him as a generally credible and reliable witness.

173. I also bear in mind that the person best able to explain what happened, Diana, has not given evidence and, according to Ms Nguyen, is nowhere to be found.

174. It is not necessary that I find Ms Nguyen was lying about having dealings with Mr Pham, and I do not do so. In my view she was much more likely to have been mistaken or to have convinced herself, no doubt with the assistance of Diana initially, that Mr Pham was somehow involved.

175. For those reasons in particular, but having regard to all of the reasons I have given and all of the evidence I have referred to:

175.1 I do not accept Ms Nguyen’s evidence that she had discussions with, had meetings with and reached agreements with Mr Pham as she has alleged. I accept Mr Pham’s evidence on those matters.

175.2 I do not accept Mr Quang L Nguyen’s evidence that he witnessed Mr Pham sign the loan agreement, mortgage and caveat as he alleged. I accept Mr Pham’s evidence that he did not sign the documents.

175.3 I find that Ms Nguyen did not enter into the 2 loan agreements with Mr Pham.

175.4 I find that Mr Pham did not sign the loan agreement, mortgage and caveat.

175.5 I find that Ms Nguyen did not lend or pay any money to Mr Pham.

176. It follows that Ms Nguyen’s claim against Mr Pham must be dismissed.

177. Costs should follow the event.

I. MY ORDERS

178. I make the following orders:

178.1 Judgment for the defendant.

178.2 Plaintiff to pay the defendant’s costs of the proceedings.