Victorian Civil and Administrative Tribunal|2014-10-07

Wei v Yu (Civil Claims) [2014] VCAT 1500 (7 October 2014)

Construction of agreements - Plain and ordinary meaning

Wei v Yu (Civil Claims) [2014] VCAT 1500

2. On hearing the parties and for the reasons given upon the application, the tribunal orders that the applicants must pay the respondent's costs of the proceeding fixed at $3,000.00.**

In the matter of Chen Wei and Qi Yun Xia against Na Yu. This is a claim made by the applicants against the respondent for:
1. $38,000 as the balance of monies owing for monies lent by them to the respondent on or about May 2012; and
2. $1,600 for money lent by them to the respondent on or about August 2012.

Any other claims of the applicants arising out of their application made on 2 December 2013 have been struck out for want of jurisdiction pursuant to an order of the Tribunal made on 2 May 2014.

I will first address the claim for $38,000. The applicants, Mr Chen Wei and Ms Qi Yun Xia, gave evidence that this is the remaining balance owing of a loan to the respondent of $60,000. The loan of $60,000, according to both applicants, was requested by the respondent and paid by the applicants as a loan to be repaid to the applicants at a later date.
From the applicant's evidence and their Points of Claim the following matters are summarised:

On 25 January 2010, the applicants paid a 10% deposit ($54,300) for the purchase of the property unit 211/8 Berkley Street, Doncaster. The contract for the purchase of Unit 211 was in the name of Mr Wen Tao Wei, the son of the applicants. 2. On the same day, the applicants also paid a 5% deposit ($32,950) for the purchase of an interest in the property, unit 314/8 Berkley Street, Doncaster. The contract for the purchase of the unit 314 was under two names, Mr Wen Tao Wei, the son of the applicants, and a Mr Yi Zheng Luo, both as to a 50% interest.

In approximately April 2012, both units under the purchase contracts were renominated from the name of the purchaser, Mr Wen Tao Wei, to the name of the respondent's wife, Ms Na Yu, in accordance with nomination clauses under the respective purchase contracts. Whilst the expressions 'registered' and transferred' were used by the applicants to describe the above change of names, it was ultimately acknowledged that the two units at the relevant time had not yet proceeded to the settlement and registration stage. The nominations to the name of Ms Yu were made prior to any settlement of the units.

In early May 2012, the applicants state that the respondent, their daughter in law, requested a loan from the applicants in the sum of $60,000 for the purposes of settling the purchase of the units. 2. The respondent, her husband Mr Wen Tao Wei and the respondent's mother moved into unit 211on or about 12 June 2012. On or about 17 June 2012 the husband was asked to leave the apartment and did so.
Ms Xia testified that the loan monies of $60,000 were paid into the respondent's private account with the Commonwealth Bank on 9 May 2012 (Exhibit A2; also R3). The sum of $22,000 was paid back to the applicants by the respondent on 2 July 2012 and 3 July 2012 (Exhibit A5; also R3). Ms Xia said that the respondent required the money to settle the purchase of two units, number 211 and number 314, at 8 Barkly Street, Doncaster. Both Ms Xia and Mr Chen Wei each testified that the monies were for the use of Ms Yu either to settle the above units as they were in the name of Ms Yu or otherwise for her use.
In support of her testimony that the $60,000 was a loan to the respondent, Ms Xia gave evidence that she herself had borrowed the $60,000 from her sister in law, Ms Ying Wei. This was evidenced by a statement in writing (Exhibit A1) dated 2 August 2014, a date 3 days prior to the initial hearing of this matter. The statement was tendered against the objection of Mr Selimi of Counsel. In the letter the sister in law states that the applicant, Ms Xia, rang her and sought to borrow this money saying that it was at the request of the respondent. The letter also refers to a later telephone call about a request by Ms Xia to transfer the money to Ms Yu's account and that the $60,000 was for settlement of the unit in Doncaster.
Ms Xia stated that her son had no knowledge of the loan and that this was evidenced by a letter dated 2 August 2014, also a date 3 days prior to the initial hearing of this matter. The letter was tendered as Exhibit A3, against the objection of Mr Selimi of Counsel. The letter was written by Mr Wen Tao Wei, Ms Xia's son, saying that he didn't ask his parents to borrow any money, he didn't know that his wife Na Yu had borrowed this money until his parents told him in July and that the respondent, Na Yu, did this behind his back while he was away. Ms Xia states that her son assures that the statement provided is true and 'he is willing to take legal responsibilities'.
Mr Chen Wei also stated that his son, Mr Wen Tao Wei, had no knowledge of the $60,000 loan to his wife made on 9 May 2012 and that this was the case even though at this point their son was still living with his wife and continued to do so until on or about 17 June 2012.
The evidence of Mr Chen Wei was given several times by interrupting his wife Ms Xia's testimony, a situation arising from the delay in the interpreter translating his wife's testimony and Mr Chen Wei's apparent desire and ability, given his partial understanding of English, to add to or supplement his wife's testimony. In these circumstances the Tribunal sought clarification of Mr Chen Wei's supplementary evidence concerning the circumstances surrounding the alleged loan of $60,000. To this, Mr Chen Wei stated that he was not present when the respondent asked his wife for a loan of $60,000. He said that the evidence he gave was only what he had heard through discussions with his wife, Ms Xia.
Mr Chen Wei gave evidence that he and his wife did not mention the loan to their son around the time of the making the loan because they didn't want to upset the marital relationship.
Tendered by Mr Chen Wei was an unexecuted agreement purporting to be between the applicants Chen Wei and Qi Yun Xia, the respondent Na Yu and the co owner of unit 314, Yi Zheng Luo (Exhibit A4). Mr Chen Wei submitted that the respondent sought and had drawn up this agreement by the solicitors Fong & Co. Further, that the respondent sought to get the applicants to sign the agreement so that under clause 2.2 the respondent would be released from any monies owing by her to the applicants.
Relevantly, the substantive provision in the agreement is contained in clause 2.2. It is a release given by the applicants in favour of the respondent releasing and forever discharging the respondent, in the usual manner of such releases, from all obligations, sums of money, claims, proceedings ... in respect of the matters referred to in the recitals to the agreement. The recitals to the unexecuted agreement include: the respondent Ms Yu being the wife of Mr Wen Tao Wei 'but separating'; the nomination of the respondent as substituted purchaser with Mr Yi Zheng Luo; a mortgage being in the names of the now registered owners, the respondent and Mr Yi Zheng Luo of $593,000; and the sale of the property at auction for $600,000 on 31 March 2013.
Mr Chen Wei submitted that he and his wife refused to sign the agreement. He submitted that clause 2.2 of the agreement was evidence of the respondent 'using this to get away from the loan'.
In cross examination, Ms Xia stated that the respondent acted towards her 'personably'. Ms Xia acknowledged that her son had a drug problem and that there had been an intervention order against him in favour of his wife. Ms Xia stated that she would do anything to help him and in fact to save him. She acknowledged the drug problem had consequences on the marital relationship.
Ms Xia denied the $60,000 was given to her son. She did agree that in 2010 she paid $32,950 as the deposit on unit 314 as a loan to her son and that she also paid as a loan the deposit on the unit 211 of $54,300. She acknowledged that the son has no assets in his name. She acknowledged that she had asked her son to pay back the monies lent to him for the deposits, that he had not repaid the monies and that he doesn't have any money.
Ms Xia addressed documents put to her in cross examination headed IOU which were a letter written in Chinese (Exhibit R1) with a translation (Exhibit R2) dated 5 July 2012, signed by Mr Wen Tao Wei, the respondent's husband. The letter and translation were appended by the applicants to their application to The Victorian Civil and Administrative Tribunal dated 2 December 2013, the subject of the present proceedings.
Ms Xia did not accept that the letter states an acknowledgement by Mr Wen Tao Wei that he borrowed $38,000 for the deposit on unit 211/8 Berkley Street, Doncaster. Ms Xia did not accept that Mr Wen Tao Wei was referred to and signed the IOU letter as the 'borrower'.
In cross examination, Mr Chen Wei agreed that his son, Mr Wen Tao Wei, signed the document dated 5 July 2012 headed IOU and he referred to the Chinese document Exhibit R1 and the translation Exhibit R2. In Mr Chen Wei's view, the Chinese original and its English translation mean that Ms Yu borrowed the $38,000 from the applicants.
Mr Chen Wei agreed that he attached this document to his application to the Tribunal and that he had obtained it from his son.
The translation of the IOU letter into English reads as follows:

I (Wentao WEI) borrowed $38000.00 Australian Dollars from the parents for paying 5% of the down payment on 211/8 Berkley St., Doncaster and making loan repayments.

The money has been deposited in the account of Na YU.

Mr Chen Wei confirmed that it was his son's signature in Chinese on Exhibit R1 and reiterated that the IOU does not mean an acknowledgment by his son of owing monies to the applicants. He confirmed that both documents Exhibit R1 and Exhibit R2 are both correct, that is, the Chinese original and the translation into English give the correct Chinese meaning. But he repeated that that the letters signify a loan to the respondent not to their son. Mr Chen Wei confirmed that Exhibit R1 and Exhibit R2, when referring to the sum of $38,000, was the $38,000 owing from the original loan of $60,000. Mr Chen Wei insisted that that letters are proof that the respondent borrowed the $38,000. He further said that 'the couple borrowed' but not the son, although it was not clear to the Tribunal what was meant by this last statement.
In further cross examination, the letter dated 2 August 2014 (referred to in paragraph 6 above as Exhibit A3) signed by Mr Wen Tao Wei stating amongst other matters, that he did not ask his parents to borrow money, was put to Mr Chen Wei. Mr Chen Wei, when asked, stated that this letter and the Chinese IOU letter (Exhibit R1) both relate to the same loan of $60,000 from which the balance of $38,000 is now being claimed. Mr Chen Wei did not accept that both documents Exhibit A3 and Exhibit R1 could not be correct. He did not accept that one document must be false.
In relation to the second part of the applicants claim, the claim for $1,600, Ms Xia gave evidence that the respondent sought these monies to go to visit China and that the monies were paid to the respondent over approximately three different occasions, totalling $1,600. Ms Xia said she eventually gave the respondent the monies reluctantly even though she had previously seen a drawer with thousands of dollars in it at the respondent's apartment, although she did not know who that money belonged to. She had seen this money previously during the time that her son, Mr Wen Tao Wei, still lived together with the respondent. She says she also saw the respondent borrow money from other people. Ms Xia recalled that she had seen money in the respondent's hand at her son's apartment at a time prior to giving her $1,600.
Ms Xia said the loan was made at a time after her son has ceased living with the respondent. In cross examination, Ms Xia acknowledged that her relationship with her daughter in law was volatile.
Mr Chen Wei was not present when the requests by the respondent to Ms Xia for monies for the air ticket were said to have taken place.
Mr Yi Zheng Luo gave evidence as the witness of the applicants. He said three apartments were purchased at 8 Berkley Street, Doncaster, unit 112 (purchased by Mr Luo alone), unit 211 (purchased by Mr Wen Tao Wei alone) and unit 314 (purchased jointly by the both of them).
In 2010, the deposit on unit 314 was paid by Mr Luo as to his 50% and by Ms Xia for her son as to the other 50%. Mr Luo said he went with Ms Xia when this payment was made. He gave evidence that unit 314 was later put into the nominated name of Ms Yu by Mr Wen Tao Wei and subsequently registered.
When the purchase of unit 314 came to be settled, the 90% balance was paid 50% by him and 50% by Ms Yu, who was the nominated purchaser, via a joint mortgage from the National Australia Bank.
Mr Luo gave evidence that prior to the time for the sale of unit 314, Ms Yu said to Mr Luo that she would not sell unit 314 unless she had an agreement. The drawing up of the agreement was attended to jointly at the solicitor's office, Fong & Co by the respondent and Mr Luo. Mr Luo said that he didn't have any great input to the drawing up of the agreement. The draft unexecuted agreement was tendered as Exhibit A4.
In response to a question from the Tribunal as to the whereabouts of Mr Wen Tao Wei and he not being present at today's hearing, Mr Luo said that Mr Wen Tao Wei does not talk to friends anymore, he just stays at home. And in later evidence Mr Luo said Mr Wen Tao Wei was very depressed, very low in mood and that he refused to see Mr Luo or anyone. Mr Luo said that he had not seen Mr Wen Tao Wei for 3 or 4 months. He understood from Wei's parents that Mr Wen Tao Wei has a cold today, the date of the hearing.
On cross examination, Mr Luo agreed that Mr Wen Tao Wei was a good friend up to about 6 months ago, that they used to meet for drinks about every 2 weeks with a group and that, whilst not as close now, would still say hello to each other.
Mr Luo agreed that Mr Wen Tao Wei had problems in servicing the mortgage in respect of unit 314 and that because of this the unit was sold.
Mr Luo said that Mr Wen Tao Wei had told him that there was a new off the plan purchase opportunity and that he would get money from his parents and after making money out of the business he would pay it back. He said that Mr Wen Tao Wei told him that he had borrowed money from the parents.
Mr Luo agreed that Mr Wen Tao Wei managed to persuade his parents to lend $60,000 to him for the apartment, unit 314. He said that he was there with the parents, the applicants, when this was agreed with Mr Wen Tao Wei and when Ms Xia said that she would herself have to borrow the $60,000 from other sources. At this time, according to Mr Luo, the apartment 314 had already been nominated to the name of Ms Yu.
Mr Wen Tao Wei told Mr Luo that he had nominated Ms Yu as a purchaser mainly because she was more likely to be successful in getting a mortgage via the National Australia Bank.
Mr Luo agreed that Mr Wen Tao Wei had got a lot of help from his parents, what he referred to as a generous amount of help. He said the Mr Wen Tao Wei got $80,000 odd in 2010, and $60,000 odd in 2012.
He said he didn't know about Mr Wen Tao Wei's violent habits towards the respondent when that was put to him but he did know about an intervention order. He agreed that there was a drug problem and he acknowledged that Mr Wen Tao Wei had been in jail for 9 months. Mr Luo said he knew that at least one person was after Mr Wen Tao Wei for money. He said Ms Yu did not borrow any money from him.
In relation to the allegation against Ms Yu that she requested money to purchase an the air ticket to China, Mr Luo said Ms Yu told him he should tell Ms Xia that she, Ms Yu, had asked him for some money for an air ticket and that Ms Yu just wanted him to pretend and to say this to Ms Xia.
The respondent Ms Yu then gave evidence. She said she didn't discuss any loan from Ms Xia or Mr Chen Wei for $60,000. She said she did not borrow any money and she did not ever request any loan.
She said that the two apartments were acquired by her ex husband, that his business was failing or had failed and that he had acquired a serious drug dependence problem with the substance known as ice.
She said that the apartments were transferred under a nomination clause to her name and that this was to assist in the obtaining of a mortgage. She and her ex-husband discussed from time to time how to complete the settlement due in 6 months. Her husband at the time said that he would borrow money from his parents.
Ms Yu said that her ex-husband accepted the $60,000 and it was put into her account and that, upon the instructions of her ex-husband, she repaid $22,000, one payment of $20,000 and a second the next day of $2,000. She said that he required her to make this repayment. She gave evidence that she was nominated as the purchaser by her husband because of his drug problem, his debts and his creditors chasing him.
She said that she was not really the purchaser of the apartment and not the borrower of the $60,000 to go towards it. She noted that the documents Exhibits R1 and R2, being the IOU made by her ex-husband to the parents, was dated 5 July 2012 and that by this date her ex-husband in fact had moved out several weeks before on 12 June 2012.
In relation to the air ticket, $1,600 claim, she gave evidence she was not living with her husband at the time of the alleged request for $1,600, that her relationship with her parents in law had already broken down, that she did not ever ask for $1,600.
Mr Chen Wei cross examined Ms Yu. Ms Yu denied the matters put to her, save that she agreed that she repaid the sum of $22,000 to Ms Xia.
In answer to a question put by Mr Chen Wei as to why Ms Yu had the sum of $60,000 put into her account, she responded saying that her ex-husband had asked her to provide her bank account details. She further stated that her ex-husband did not want to receive the monies into his own account because of his drug problem and matters associated with this.
The evidence referred to above for both applicants, the applicants' witness and the respondent is not intended to be exhaustive. It is a summary of salient matters in the proceedings relating to issues in dispute between the parties concerning the two claims.
At the commencement of these proceedings, the Tribunal addressed the parties on the procedure adopted by the Tribunal including the burden and standard of proof required for the applicants to prove their case. On the standard of proof, I stated that the Tribunal as the finder of fact must make its findings on the balance of probabilities which, if the Tribunal is so satisfied, means that the applicants version of those facts could be accepted.
The Tribunal received considerable testimony from the applicants and their witness in respect of there being two loans. The respondent's evidence consisted of categorical denials that either $60,000 or $1,600 was borrowed by her. The evidence of the applicants and the respondent is diametrically opposed.
Mr Chen Wei gave extensive testimony on matters related to the purported loan of $60,000. On his own admission however, he was not present during the discussions that his wife, Ms Xia, said she had with the respondent Ms Yu about borrowing $60,000. Further, Mr Chen Wei also stated that he was not present when Ms Xia said she had several conversations with Ms Yu concerning requests for money for an air ticket, the second claim the subject of these proceedings. Mr Chen Wei's testimony is hearsay, second hand testimony derived from discussions with his wife and others. He was unable to provide the Tribunal with independent testimony of his own knowledge relating to the purported loan of $60,000 or the claim of $1,600.
Mr Chen Wei gave testimony under cross examination concerning an IOU letter dated 5 July 2012, put into evidence by the respondent (Exhibits R1 and R2), including matters related to a translation and his son's signature.
The Tribunal attributes significant importance to the documents Exhibits R1 and R2. Exhibit R1 is a Chinese Mandarin document dated 5 July 2012 with a heading in Mandarin stating, according to the translation, the equivalent of 'IOU'. The Tribunal accepts the evidence of Mr Chen Wei that Exhibit R2 is a faithful translation into English of the Chinese document, the veracity of the translation also being attested to, at he foot of the document, by the declaration of one Zhengran Zhao, professional translator. The Tribunal also accepts Mr Chen Wei's evidence that the Mandarin document is signed in Mandarin by Mr Wen Tao Wei. Both the veracity of the translation and the signature being that of Mr Wen Tao Wei were not in issue in the proceedings, being common ground between them.
However, the interpretation of both the applicants is that the letter does not mean what it appears to the Tribunal to mean, but that it is proof that Ms Yu borrowed $60,000, of which $38,000 is the outstanding balance. Under cross examination, the applicants were resolute in their views that the IOU carried this meaning. Further, Mr Chen Wei did not concede that the other letter of his son dated 2 August 2014 (Exhibit A3), where Mr Chen Tao Wei states that he is not the borrower, was inconsistent with the IOU letter and that at least one of the two letters must be false.
The Tribunal is not persuaded by these interpretations. The Tribunal considers that the precepts governing construction of written agreements are apposite in the present matter and provide a guide in understanding the meaning to be given to the IOU letter where that is in dispute. In B&B Constructions (Australia) Pty Ltd v Brian A Cheesman & Associates Pty Ltd ((1994) 35 NSWLR 227 at 234) per Kirby P:

[I]f the written language of the agreement has a 'plain meaning', evidence will not be admissible to contradict that meaning ... The purpose of this rule ... is to hold parties to bargains reduced to writing which are unambiguously expressed. There is a link here (naturally enough) to the rule for construction of unambiguous statutory language. If the purpose of that language is clear, the duty of the court is to give effect to the intention of parliament derived from that unambiguous language ... The social purpose secured by such rules is to discourage litigation, with the time consuming, costly and dilatory exploration of detailed facts and the resolution of conflicts of recollection and testimony. It is to discourage curial exploration of the unfathomable depths of subjective intentions. It is to add certainty by adherence to the effect of the clearly expressed written word.

The High Court in Southern Cross Assurance Co Ltd v Australian Provincial Assurance Association Ltd ((1935) 53 CLR 618 at 636) held that the contract must be interpreted, like any other contract, and the natural meaning of the language used must receive its effect unless, upon, a proper application of the rules of interpretation, a contrary intention is to be found contained within the instrument. The elements of this contain what is known as the golden rule of contractual interpretation.
The Tribunal accepts, especially where the accuracy of the translation is not itself in dispute, a plain and ordinary reading of the IOU letter, that the letter means what it says and that what it says is that Mr Wen Tao Wei acknowledges that $38,000 was borrowed by him from his parents. The Tribunal finds no basis for the proposition that the subsequent letter dated 2 August 2014, stating that Mr Wen Tao Wei is not the borrower, could be consistent with the language of the contemporaneous IOU letter signed on 5 July 2012. To the extent that the letter of 2 August 2014 was put in evidence, together with the testimony of Ms Xia and of Mr Chen Wei, seeking to contradict the plain language of the IOU, the Tribunal rejects that evidence.
The Tribunal also notes that the IOU letter was attached to the applicants' application to The Victorian Civil and Administrative Tribunal, but that the letter was not referred to by the applicants in their evidence. It was only raised and put into evidence during their respective cross examinations. The strict rules of evidence do not apply in The Victorian Civil and Administrative Tribunal jurisdiction nor are there formal pleadings. Also, the applicants were not represented or familiar with Tribunal procedure and did not speak English well or at all. Nevertheless, their failure to refer to the IOU letter in their respective evidence in chief appears to be at odds with their conviction that the IOU letter is itself proof that Mr Wen Tao Wei was not the borrower.
In all the circumstances, Mr Wen Tao Wei, the son of the applicants, the driving force in the purchase of the two units, 'separating' husband of Ms Yu and author of the IOU is a person central to the facts and circumstances surrounding the characterisation of the $60,000 and whether or not it might be regarded as a loan to the respondent. Mr Wen Tao Wei was not however called by the applicants to give evidence and no reason was advanced by Mr Chen Wei or Ms Xia for their son's failure to attend. The witness Mr Luo did give evidence that Mr Wen Tao Wei did not now like to see people and that he was told by the parents that he had a cold, at least on the first day of the hearing. Mr Wen Tao Wei also did not appear at the second day of the hearing conducted around 2 months later.
Mr Wen Tao Wei's evidence could have assisted the Tribunal in understanding important facts and circumstances concerning the purported loan of $60,000. His evidence could have shed light on why the IOU dated 5 July 2012 did not amount to an acknowledgement by him of a debt owing by him to his parents in the sum of $38,000. His evidence could also have explained how it could be that his later letter dated 2 August 2014, a few days before the hearing, denying he was the borrower could somehow be consistent with the earlier more contemporaneous IOU, as asserted by his father in evidence. The failure to call Mr Wen Tao Wei, apart from the generalised observations of Mr Luo, remains unexplained.
In these circumstances, the Tribunal is entitled to make an inference Jones v Dunkel ((1959) 101 CLR 298) and to infer that the direct evidence of Mr Wen Tao Wei and any evidence in respect of his contemporaneous IOU letter would not have assisted the applicants in their argument that a loan had been made to the respondent or in their interpretation of their son's IOU letter that it was proof of their being a loan to the respondent. For this additional reason, the Tribunal finds that there is substantial doubt concerning the evidence of the applicants as to their being a loan made to the respondent of which $38,000 is claimed as the outstanding balance.
The applicants also asserted that the payment of $60,000 as a loan to the respondent is proved by the fact that it was paid into her Commonwealth bank account. They exhibited banking details and bank account documents (Exhibits A2 and A5). They argued, there's the money, it's in there, she borrowed it.
The Tribunal notes the history of the acquisition of the two apartments and the evidence given in relation to that. It notes that they were purchased and entered into by Mr Wen Tao Wei, alone for unit the 211 and with Mr Luo for unit 314. At the initial acquisition stage there was no evidence that this was a joint adventure by Mr Wen Tao Wei and Ms Yu, even though they were married. The circumstances of the nomination of Ms Yu have been put in evidence. The Tribunal prefers the evidence of witness Mr Luo who swore that the property was put into Ms Yu's name because she was more likely to get credit or a mortgage than Mr Wen Tao Wei and that this was discussed amongst them.
Whilst Ms Xia and Mr Chen Wei have placed significance on the fact of the $60,000 having been paid into Ms Yu's private Commonwealth bank account, the Tribunal finds that this was for the reasons advanced by Mr Luo and Ms Yu, namely to advance the potential to obtain a mortgage and to protect the money from claims by creditors and others chasing Mr Wen Tao Wei.
Evidence was also sought to be given in the form of a letter from Ms Xia's sister in law, Ms Ying Wei (Exhibit A1) and dated a few days before the commencement of the hearing. The letter is to the effect that Ms Ying Wei had been told by Ms Xia about the respondent being the borrower and about the need to deposit the funds into the respondent's bank account. The evidence is not direct evidence and does not attest to anything with which Ms Ying Wei was personally acquainted. The Tribunal gives it no weight.
Finally, against the arguments put by the applicants there is the clear evidence given under cross examination by Mr Luo. The Tribunal accepts the evidence of Mr Luo that Mr Wen Tao Wei told him that he would borrow $60,000 from his parents towards the purchase of the unit and that he in fact did borrow the money from the parents. The evidence of Mr Luo is also confirmatory of a plain and ordinary interpretation that the Tribunal has found as to the meaning to be given to the IOU letter, namely an acknowledgment by Mr Wen Tao Wei that he borrowed the money from his parents.
Mr Luo acknowledges that both he and Ms Yu went to the solicitors Fong & Co for a draft agreement and that Ms Yu said that she would not sell the jointly held apartment without the release contained in the draft agreement, clause 2.2. The Tribunal finds that there is nothing in this evidence or that of the applicants to suggest that the sought after release was an acknowledgement of their being a loan to the respondent.
The Tribunal was impressed by the demeanour of the respondent throughout the proceedings, including during times of cross-examination when she was under considerable pressure from questioning from Mr Chen Wei.
The Tribunal notes the son has an acknowledged drug problem. The Tribunal understands the very great concern that Mr Chen Wei and Ms Xia have about their son's circumstances. Ms Xia says that they will try and save their son. The Tribunal is respectful of and understanding of these very human and natural emotions.
Concerning the $38,000 purported loan however, the Tribunal does not accept that Ms Yu was in an adventure of her own, meaning that she was the active investor and that she was the borrower to sustain that investment. The preponderance of the evidence is that this was the business of Mr Wen Tao Wei. Ms Yu acted under his instructions and at his behest. The Tribunal accepts the evidence of Ms Yu that the monies of $60,000 were borrowed by Mr Wen Tao Wei and the balance of $38,000 is the remaining balance of that loan owing by him.
It follows that the Tribunal rejects the evidence of Ms Xia and, to the extent relevant, Mr Chen Wei characterising the sum of $38,000 as a loan to Ms Yu. The Tribunal finds their evidence unreliable and influenced by a desire to recover losses from a failed investment venture at the expense of their now estranged daughter in law.
The Tribunal dismisses the applicants' first claim for $38,000.
I turn to the second claim for $1,600. Ms Yu has denied receipt of this sum. Ms Xia says it was a loan in response to request from Ms Yu for an air ticket to China. It was paid, says Ms Xia, to Ms Yu at a time after Ms Yu had left her husband and resided independently. It was alleged to have been lent at a time when the relationship between the applicants and Ms Yu had broken down. There was debate as to whether the purported loan of $1,600 was a gift, a loan or not made at all. The applicants claim it was a loan. Mr Chen Wei acknowledged that he was not present during purported discussions concerning an agreement to lend monies.
Ms Yu says she never received $1,600 for an air ticket or at all. The evidence of Mr Luo as to being asked by Ms Yu to take part in some pretence that she had asked him for a loan for an air ticket and for him to tell this to Ms Xia was unclear and not, in the Tribunal's view, evidence that any loan had been made to Ms Yu for an air ticket or at all.
In these circumstances, on the balance of probabilities the Tribunal finds that the applicants have been unable to present sufficient evidence to meet the threshold required to prove a loan to Ms Yu of $1,600.
The Tribunal dismisses the applicants' second claim for $1,600.

Wei v Yu

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Judgment (16 paragraphs)

Wei v Yu (Civil Claims) [2014] VCAT 1500 (7 October 2014)

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Cases Cited (1)