Wei v Yu [2016] VCAT 1666 | Case summary

Wei v Yu [2016] VCAT 1666 | Case summary | Zoe

[36]

Mr Wei and Mrs Xia represented themselves in the hearing. Na Yu was represented by Counsel. Mr Wei and Mrs Xia and their witnesses were cross-examined in detail, as they asserted oral loan agreements which made their credibility a central issue. That the oral agreements were alleged to have been made some 4 years ago was highly relevant in this context.
As I show below when discussing the evidence, the Applicants' case is that Mrs Xia had the crucial conversations with Na Yu. Nevertheless, Mr Wei demonstrated that he was in charge of the Applicants' case. He gave his evidence in the form of a submission, containing propositions of law and 'facts' which were based on what others had told him. He did so without notes or reference to documents. It was apparent that he had memorised a version, and an interpretation, of events. I have no doubt that he sincerely believes that version. However, two things must be said about it:
- (a) it is highly subjective and illogical. Mr Wei believes Na Yu to be an evil woman who planned to cheat Mr Wei and Mrs Xia out of $60,000.00 / $38,000.00. This belief ignores the facts that Wen Tao Wei became a violent drug addict who abandoned his wife and baby, and who lost his ability to pay for the apartments when it came time to settle. It also ignores the fact that Na Yu is from a wealthy family, who supported her financially for some three years after the birth of her child. It is implausible that Na Yu would plan to marry, become pregnant, and give up her job to raise the baby, in order to obtain $38,000.00 from Mr Wei and Mrs Xia when she was able to borrow some $400,000.00 from her own parents when Wen Tao Wei ceased providing financial support.
- (b) Mr Wei's sincere belief in his theory caused him to misbehave in the hearing, on several occasions. To be blunt, when a witness - including Mrs Xia - gave evidence which was not in accord with Mr Wei's script, he would loudly interrupt. Having been directed to elements of the transcript of the first Tribunal hearing, I see that he did the same thing there. These interruptions were not "objections" to questions. They were disgraceful attempts to cause the witness to change their evidence. For example, during the cross-examination of Mrs Xia, she said that Wen Tao Wei had borrowed $87,250.00 which he was still liable to repay, which had been used to purchase apartments, and that she was seeking repayment from Na Yu for the benefit of Wen Tao Wei. She was in the middle of saying that she was upset because she perceived that Na Yu had the benefit of the loan of $38,000.00, which she had received shortly before the separation, when Mr Wei interrupted. I had explained to Mr Wei that he was entitled to object to a question, but that he was not entitled to interrupt witnesses' evidence, on many occasions and he persisted in doing so. Mr Wei's conduct in this respect was unfair and inappropriate. To her credit, though, Mrs Xia seemed not to change her evidence in line with Mr Wei's attempted coaching. Mr Wei's interruptions of witnesses' evidence only served to highlight aspects of the evidence which did not support his theory.

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The hearing lasted for six days, with gaps of weeks, and witnesses were interposed for the Applicants' convenience. The parties had given an estimate of two days at the directions hearing on 27 May 2016.
Whilst I will set out the evidence in some detail, I first set out this brief summary.
- (a) I accept the evidence of Ms Wen Tai Wei, that she lent $60,000.00 to Mr Wei and Mrs Xia on 8 May 2012, on the understanding that they would lend it to Na Yu who needed it to settle the purchase of an apartment. Ms Wen Tai Wei expected $30,000.00 to be repaid within weeks. Her understanding was based on what Mrs Xia told her. Ms Wen Tai Wei had no discussions with Na Yu.
- (b) Wen Tao Wei's evidence was of no assistance. He admitted having a drug problem in 2012 but did not see that it had anything to do with the case. He said he was unaware that if he was unable to settle the purchase of the apartments he would lose the deposits of $87,250.00 which he had borrowed from his parents, and I reject that evidence because it is absurd and because it is contradicted by his nomination of Na Yu as purchaser. One of his reasons for nominating Na Yu as purchaser was that he recognised that she had better prospects of getting a bank loan than he did, which shows that he understood the importance of complying with the contracts of sale. He said that he did not know that Na Yu had borrowed money from his parents and would not have consented to her doing so, which ignores the reality of the need to pay for the apartments which he had contracted to buy. Other aspects of his evidence were remarkable: he said that Na Yu had disrespected his parents by not helping with housework, and had embarrassed him in front of his friends, in April and June 2012 (when the baby was 1 and 3 months old). He denied having borrowed $60,000.00 or $38,000.00 but admitted having signed the IOUs. He was sullen, self-centred and withdrawn when giving evidence and appeared to me to have washed his hands of his loans of $87,250.00 and of his marriage.
- (c) Mr Yizheng Luo was a friend of Wen Tao Wei and Na Yu. He was reluctant to be dragged into this family dispute. He gave evidence in the first Tribunal hearing that he had been present when Wen Tao Wei persuaded his parents to lend him the $60,000.00. He literally gave evidence in the hearing before me that this was not the case. The best I could say about Mr Luo is that he probably wanted to help. Objectively though, I conclude that he saw his role of "helping" as being more important than his obligation to give truthful evidence. Mr Luo did not give truthful evidence in the hearing before me.
- (d) Mrs Xia is understandably loyal to her son Wen Tao Wei and disappointed in the breakdown of his marriage and the consequent loss of her contact with her grandchild. There are some inconsistencies between the evidence of Mrs Xia and Mr Wei concerning the drafting of the IOU of 5 July 2012, and I prefer her evidence on those matters. There is air of unreality in her evidence about the $60,000.00 loan, as she emphasised Na Yu's request for the loan in isolation from the effects of Wen Tao Wei's drug addiction and the options of either settling the purchases of the apartments or losing the $87,250.00 previously lent to Wen Tao Wei. Mrs Xia's attempts to explain the meaning of the IOU of 5 July 2012, which on its terms does not say that Na Yu was the borrower, and the absence of any IOU or similar document made by Na Yu were illogical and unconvincing, and appear to be the result of a reconstruction of events in order to create a case against Na Yu. She believes Na Yu tricked her into lending $1,600.00 in August 2012. Mrs Xia seems more upset with the relationship issues that with the alleged loan of $60,000.00.
- (e) Mr Wei was not a party to the conversations which are crucial to the Applicants' case. Whilst he made submissions, and asserted facts on the basis of his understanding of what other people had done, his evidence was of little value.
- (f) Na Yu was a credible witness. She has been adversely affected by this litigation. She said Wen Tao Wei's drug addiction was not predicted, and did not develop until after the marriage, and that it fundamentally changed his personality. Wen Tao Wei did not attend the birth of their child. She was adamant that she did not borrow the $60,000.00. She gave evidence that the litigation, including I gather the Supreme Court appeal, has cost Na Yu approximately $70,000.00 in legal fees, and she is now the respondent in Family Court proceedings issued by Wen Tao Wei at the instigation of Mr Wei. She agreed to be nominated as purchaser of the apartments because Wen Tao Wei was contemplating bankruptcy and was being pursued by creditors. She has serviced the mortgage on Apartment 211 and supported her child with no financial support from Wen Tao Wei, Mr Wei or Mrs Xia. I accept her evidence.
I turn to the witnesses' evidence:

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Mrs Qi Yun Xia spoke through an interpreter. She clearly had a grasp of English because she answered some questions in English, before they had been interpreted into Mandarin.
Between 25 February 2012 and 12 June 2012 Na Yu and her mother lived with Mr Wei and Mrs Xia.
On 1 May 2012 Na Yu said she wanted to borrow $60,000.00 to settle the property, and that in three weeks she would probably return $30,000.00 because the bank would make a loan. Mrs Xia said words to the effect, "I don't have money at the moment. Ask my younger sister[6]. When will you need it?", and Na Yu said, "In one week".
Mr Wei and Mrs Xia discussed the request that night. They saw the request as one for a loan of $30,000.00, because of the promise to repay $30,000.00 in three weeks, and because Na Yu had an annual salary of around $120,000.00 per annum they thought they could lend the money. They thought Na Yu's salary would allow her to obtain a bank loan for the balance needed to settle the purchases of the apartments.
On 1 May 2012 Mrs Xia telephoned Ms Wen Tai Wei and told her of Na Yu's request. Ms Wen Tai Wei said she could lend the money but to wait one week.
Na Yu gave Mrs Xia her bank account number, and Mrs Xia passed it on to Ms Wen Tai Wei.
On 8 May 2012 Na Yu told Mrs Xia that she needed the money the next day, so Mrs Xia telephoned Ms Wen Tai Wei and asked her to transfer the money. On 9 May 2012 Ms Wen Tai Wei transferred $60,000.00 into Na Yu's account, and telephoned Mrs Xia to confirm that she had done so. Mrs Xia then telephoned Na Yu and told her the transfer had been made, and that Na Yu should check her bank statement. After a while Na Yu said she had received the money into her account.
Mrs Xia then gave Na Yu the bank account number of her joint account with Mr Wei, and asked Na Yu to return the money by transferring it directly into this bank account. Na Yu should have repaid $30,000.00 within three weeks.
On 10 June 2012 Mrs Xia asked Na Yu if the money had been returned, but she said no and that maybe there was a problem with the bank. Mrs Xia said to Na Yu that because Mrs Xia and Mr Wei had borrowed the money from Ms Wen Tai Wei, they needed Na Yu to return the money so that they could keep their word to Ms Wen Tai Wei. Na Yu's mother also said that Na Yu should keep her word and return the money. Na Yu said she would double check.
On 25 June 2012 Mrs Xia telephoned again. Na Yu said she would return the money quickly. By this day, Na Yu was in Apartment 211. By 2 July 2012 Na Yu transferred $20,000.00 into Mrs Xia's account, and then on 3 July 2012 she paid in $2,000.00. After that Na Yu said she couldn't return any more money, because at settlement extra costs of $6,000.00 were incurred in relation to "insurance" and other expenses. Mrs Xia and Mr Wei believed that Na Yu was finding excuses and that she did not intend to repay the money. Because of this, on 5 July 2012 they told their son Wen Tao Wei about the loan. They had not told him before, because they did not want to cause trouble in his relationship with Na Yu. This was why on 5 July 2012 they had Wen Tao Wei sign the "receipt" [7] in respect of the $38,000.00. Mrs Xia and Mr Wei asked him to figure out this issue, meaning that if Na Yu did not pay the money herself, both of them would have to work together to do so.
Around Christmas 2012 Mrs Xia asked to see her grandson, but Na Yu refused. Mrs Xia mentioned the outstanding loan, but Na Yu denied it, saying she did not want to pay and hung up the telephone. After that, whenever Mrs Xia called, Na Yu would not answer.
In relation to the loan of $1,600.00, in August 2012 Na Yu said she needed to buy flight tickets for $1,600.00. Mrs Xia gave $600.00 to Mrs Yu's mother: this occurred when the two of them were in the apartment with the baby. The same night, Na Yu said that $600.00 was not enough, and she telephoned many times between 7:00 pm and 11:30 pm asking for money. Mrs Xia said she really didn't have enough money at that time. At 11:30 pm Na Yu asked Mrs Xia to give her the telephone number of Ms Wen Tai Wei, but being concerned that Na Yu would cause trouble if she was given the number, over a period of two days Mrs Xia herself supplied two more amounts of $500.00, bringing the total to $1,600.00. When Mrs Xia was handing over the first of these sums, Na Yu said that she had asked a neighbour for $500.00. I gather that Mrs Xia found the idea of such a request being made to a neighbour as being embarrassing or shameful. Mrs Xia thought that Na Yu was being tricky, by conveying the meaning that if Mrs Xia did not lend her money she would cause embarrassment by asking a neighbour for it.
Mrs Xia said the neighbour gave evidence to this effect at the first VCAT hearing, as shown on page 81 of the transcript. Mrs Xia said that Na Yu borrowed $300.00 from the neighbour, and that she had some copies of SMS messages written in Mandarin which proved it.
I note here that whilst the parties had been ordered to file and serve copies of documents on which they relied, this document had not been served on Na Yu. Further, the English translation of the Mandarin SMS messages had been done by Mr Wei. I caused the document to be shown to Na Yu's Counsel, who read it and said that Na Yu had no objection to the official interpreter at the hearing translating the SMS. The interpreter then translated the SMS messages as follows:

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Mrs Xia acknowledged that it was headed "IOU" in Mandarin, and not "receipt". She said that she wanted the IOU as evidence. She knew that the money was in Ya Nu's bank account.
Mrs Xia said that Na Yu demanded a loan of $50,000.00 in January 2012, in a telephone conversation. Na Yu said words to the effect, "I must have my share", but Mrs Xia did not know what she was talking about. Mrs Xia did not agree to make such a loan, explaining to Na Yu that she did not have $50,000.00. Mrs Xia said when she said that, Na Yu slammed the telephone down. Mrs Xia said that Mr Wei was not present when this conversation took place.
Mrs Xia said that Mr Wei was not present when, in May 2012 Na Yu asked for a loan of $60,000.00. This time Na Yu said she needed the money to settle the purchase of the apartments. Mrs Xia knew that Na Yu had been nominated as purchaser of the apartments, because Wen Tao Wei told her after the event. Wen Tao Wei explained that Na Yu had explained to him that if they put this purchase in Na Yu's name they would get the First Home Buyers Grant, and when they bought their next apartment they could do so in his name and get another First Home Buyers Grant.
Mrs Xia said she believed Wen Tao Wei had an interest in the Apartments as at 28 April 2012, even though his name was no longer recorded as the purchaser. Mrs Xia believed that the money lent to Wen Tao Wei had to be repaid. Mrs Xia trusted him. It was expected that the price of Apartment 314 would rise before settlement was due, and the growth of the sale price would allow Wen Tao Wei to sell that Apartment and repay Mrs Xia. Mrs Xia did not want Wen Tao Wei to transfer the Apartment out of his name, because the money that Mrs Xia had lent was "in" the Apartments. Mrs Xia considered Wen Tao Wei to be the owner of the Apartments, but that he owed her money.
Mrs Xia had said in the hearing in August 2014 that Na Yu did not have an interest in the Apartments. Mrs Xia believed the $87,250.00 was "safe" because the property was there. She trusted Wen Tao Wei to repay it.
When Mrs Xia lent the $87,250.00 in 2010 she knew there would be a settlement of the purchase of the Apartments eventually. She also understood that unless the balance of the purchase price was paid when required, the deposit could be lost. However, she insisted that when she was asked to lend $60,000.00 the possible loss of the $87,250.00 if the settlement did not proceed did not cross her mind. As such, protecting the $87,250.00 was not a motivation for lending the $60,000.00. However, Mrs Xia considered then that the Apartments secured the $87,250.00. She considered it then, and she considers it to this day. This is so even though Apartment 211 is in Na Yu's name. Mrs Xia said, "The money Wen Tao Wei paid belongs to us (meaning herself and Mr Wei) even though Na Yu was the nominated purchaser".
Mrs Xia believed that the $60,000.00 loan would also be secured by the Apartments, even though Na Yu was the nominated purchaser.
Mrs Xia said she did not consider her refusal to make a loan of $50,000.00 in January 2012 to be at all inconsistent with her agreement to make a loan of $60,000.00 in May 2012. Mrs Xia said she did not feel comfortable asking Na Yu to sign an IOU for the $60,000.00. Na Yu should have volunteered to sign an IOU. Mrs Xia said that if she lent money to a close friend she wouldn't ask the friend for an IOU, but her friend would ask Mrs Xia to accept an IOU, that is, to permit the friend to sign one. She said that when Na Yu asked for the loan of $60,000.00 she was very sincere, and that it was not up to Mrs Xia to ask her to sign an IOU because there should be trust between them. It was true that over time she had had her own son sign three IOUs, but she could talk directly to her son whilst she could not talk directly with her daughter-in-law.
It was put to Mrs Xia that being unable to talk to Na Yu was inconsistent with Mrs Xia being prepared to lend her $60,000.00. Mrs Xia did not reply to this proposition.
Mrs Xia was asked about the evidence which Mr Luo had given in the 2014 hearing, including -

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Mrs Xia said there was no such discussion. Mrs Xia said that such evidence was untrue. [Mr Luo had been interposed, and so Mrs Xia had heard Mr Luo's cross examination by the time she gave this evidence]. She said that Mr Luo said that he had misunderstood the questions at the hearing in August 2014 and that he had retracted it[8]. Mrs Xia said it was true that she had to borrow $60,000.00 from her sister-in-law, but that Mr Luo's evidence that he had been present was not true. Mrs Xia said that Wen Tao Wei and been trying to get off drugs and so he was not involved in many things because he was not in a good state during this process. That was why Mrs Xia did not tell him about Na Yu borrowing the $60,000.00. Mrs Xia was considering his mental state as well as her desire to keep their family together.
Mrs Xia was in a difficult position. Her son was getting off drugs. Na Yu was asking her for money and Na Yu would have known that Mrs Xia would not refuse. Mrs Xia did not want her son to be involved in the issue. Because of Wen Tao Wei's mental condition it was not possible to have family meetings at which money was discussed. Also, when the family discusses money matters it would not be possible to have outsiders present, and for these purposes Mr Luo was an outsider. This is further corroboration for the meeting at which Mr Luo said he was present not having taken place. Nevertheless, Mrs Xia then gave evidence that Mr Luo knew that Mrs Xia had had to borrow the $60,000.00 because Mrs Xia told him after the settlement.
It was put to Mrs Xia that at the time she says Na Yu asked to borrow $60,000.00 she was already being violent towards Wen Tao Wei. Mrs Xia said that this did not dissuade her from lending the $60,000.00, but that she did feel that because Wen Tao Wei had contributed half towards the purchase price Na Yu should pay $60,000.00. At the time Mrs Xia trusted Na Yu enough to lend her $60,000.00.
Mrs Xia denied the proposition that Wen Tao Wei had asked to borrow the money, and that she had chosen to sue Na Yu because she knows Wen Tao Wei does not have the financial capacity to repay the loan.
Mrs Xia gave evidence in cross examination for the first time that she had had a discussion with Wen Tao Wei before he had nominated Na Yu as purchaser, and that she had said words to the effect, "If you swap the name don't come to us for help".
Mrs Xia said that Wen Tao Wei was giving up drugs in May 2012, but could still be spoken to. She understood that he had not spoken to Na Yu after they separated on 17 June 2012. He would come to the Apartment to see his son, but did not have anything to do with Na Yu. His life went down hill. By July 2012 Wen Tao Wei had given up drugs.
Mrs Xia drafted the IOU of 5 July 2012, and asked Wen Tao Wei to sign it. Mrs Xia did not ask Na Yu to sign an IOU on 5 July 2012 even though she was the borrower, because she would not have wanted to write an IOU. Mrs Xia believed Na Yu when she said she would repay $30,000.00 within three months, even though Na Yu was then not working and had a three month old baby. Before she gave birth Na Yu was earning $120,000.00 a year, and she could work even with the young baby. Mrs Xia said the agreement was that Na Yu would repay $30,000.00 early on, and the other $30,000.00 slowly.
Mrs Xia had said in evidence that she did not want to trouble Wen Tao Wei by telling him about the $60,000.00 loan, but she was prepared to trouble him by having him sign an IOU on 5 July 2012. Once Na Yu said she would not repay the money, Mrs Xia decided to use this method.
Mrs Xia did not draft the IOU of 5 July 2012 in a form which required Na Yu to sign it, because she was hopeful that her son and Na Yu would reconcile and Mrs Xia did not want to offend Na Yu. Whilst Na Yu could have volunteered an IOU, Mrs Xia did not feel it appropriate to ask her to sign one.
Helping to keep the family of Wen Tao Wei and Na Yu and the baby together was a motivation in the decision to lend Na Yu $60,000.00.
Mrs Xia did not get Wen Tao Wei to sign an IOU because she did not trust him; it was because he and Na Yu were a couple and therefore together they could repay the loan. They were a couple when they borrowed the money even though they were no longer a couple by 5 July 2012.
Mrs Xia said that she wrote the IOU. She said that she drafted the IOU with her own thinking and Mr Wei's thinking. Mrs Xia said that she was a truthful and honest person, and the contents of the IOU are true but expresses Mrs Xia's thinking; that is, the contents were true but there is a story behind it. The document was not supposed to mean that Wen Tao Wei asked for $38,000.00 on 5 July 2012. In fact Wen Tao Wei never asked to borrow that money.
Mrs Xia wrote out the IOU in front of Mr Wen Tao Wei. The document was just "proof", it was not a receipt. She asked Wen Tao Wei to sign it because on 2 July 2012 Na Yu did not repay all of the money. By 3 July 2012 she had only repaid $22,000.00. Wen Tao Wei read it before signing it. He can read Mandarin.
On 9 May 2012 Ms Wen Tai Wei transferred $60,000 into Na Yu's account at Mrs Xia's request. This was a loan by Mrs Xia to Na Yu personally. Mrs Xia said the IOU is not "completely correct" in that Mrs Xia asked Wen Tao Wei to sign it, so that in case Na Yu did not repay the money, both of them could repay the money together. If Na Yu did not pay, Mrs Xia wanted both of them to pay, because the money was borrowed when they were still married. When they were still married, the loan was to both of them, so both of them should repay it.
Accordingly, even though the IOU uses the expression "I borrowed ..." it does not mean that Wen Tao Wei borrowed the money. It means that he signed a document to prove that both of them would repay.
Mrs Xia did not write in the IOU that Na Yu had borrowed $60,000.00. When asked why, she said, "How could I, in my son's document. My son wouldn't have admitted it if I had said $60,000.00. Can he speak on behalf of Yu Na? My son didn't know what happened when this document was put together".
5 July 2012 was about three weeks after Wen Tao Wei had been asked to leave the matrimonial home.
Mrs Xia admitted that the IOU was inconsistent with Na Yu having asked for $60,000.00, but she gave the explanation, that if she and Mr Wei did not have their own thinking about the document they would not have attached it to the VCAT application. That is, if they thought it only had its literal meaning they would not have attached it.
It was put to Mrs Xia that whatever she may think, that the document was true and correct. She replied that she was trying to get both Na Yu and Wen Tao Wei to repay, if Na Yu did not. In giving this answer Mrs Xia used the words "my son's debt" or "the money my son owed" [bearing in mind that she spoke in Mandarin and that her words were translated into English]. Counsel for Na Yu seized on this, emphasising that in Mrs Xia's own words she had said "the money my son owed" , and asked whether her intention was that Na Yu would be bound by the IOU. Mrs Xia answered that she asked her son to sign the IOU in order for both of them to pay, even though by 5 July 2012 they were no longer a couple.
Mrs Xia was then asked, that as Na Yu and Wen Tao Wei were then separated, how could she think that the document could bind Na Yu. Mrs Xia answered that they were still a couple on 9 May 2012 when the money was advanced, but that Na Yu had not told Wen Tao Wei she was borrowing the money. Mrs Xia said she wrote the IOU on 5 July 2012 because by that date Na Yu had given reasons why she couldn't repay. That Na Yu had not told Wen Tao Wei that she had borrowed the money, and that Wen Tao Wei could not speak on behalf of Na Yu, were other reasons why Mrs Xia did not state in the IOU that the loan had been $60,000.00. Mrs Xia said that once Na Yu made it clear that she didn't want to repay the money, all that Mrs Xia could do was to prepare the IOU. Mrs Xia said that because Na Yu didn't want to pay, Mrs Xia had no choice but to get her son to sign the IOU. She had to ask her son to "continue".
Mrs Xia wrote in the IOU of the $38,000.00 which was in Na Yu's account, because Wen Tao Wei had not seen the money, and Mrs Xia believed the money was still in the account. Mrs Xia said she didn't usually add that sentence to an IOU. She did so with this one to add meaning, that Na Yu had the money and she had to repay.
Mrs Xia said that she and Mr Wei put together the VCAT Application form and its annexures, which were issued on 13 December 2013. Mrs Xia did not write a letter of demand to Na Yu before issuing the proceedings. Mrs Xia sued Na Yu for the $87,250.00 because Na Yu was living in the Apartment. Only later did Mrs Xia take the view that Wen Tao Wei alone should repay that sum. Mrs Xia said that at the time the VCAT Application was filed in December 2013, she believed the IOU supported her case. Now she recognises that it is damaging if seen out of context. Overall it is not damaging because Mrs Xia has lots of relevant facts to prove that Na Yu borrowed the money. The IOU was to be used in the event that Na Yu did not want to repay.
Mrs Xia had also written the two previous IOUs, both dated 25 January 2010. She said she wrote them with Wen Tao Wei, and that she could not have come up with the document alone. She conceded that the English translations of those documents, tendered in evidence, were accurate. Mrs Xia said that she and Mr Wei had a business practice of requesting an IOU to acknowledge a debt.
Mrs Xia was challenged on her ability to remember the date 30 April 2012. She said that she checked her phone log, which shows telephone calls between her home and her sister-in-law on 1 May 2012. She recalls that she phoned Na Yu the next day. If in her evidence she was a day or two "out" in describing these calls, it did not affect the overall truth of her evidence. If Mrs Xia did not mention a conversation on 30 April 2012, at the previous VCAT hearing in August 2014, that was because she didn't have a chance to give all of her evidence. The important point is that her sister-in-law transferred the money to Na Yu on 9 May 2012, and if in her evidence Mrs Xia mentioned other dates as the date of telephone calls, that part of the evidence was merely an estimate.
Mrs Xia denied the proposition that Wen Tao Wei had asked her to borrow the money.
Mrs Xia said that she trusted her son, in May 2012, and that the reason she did not tell him that Na Yu had asked to borrow the money was that she did not want to cause trouble within their marriage. Mrs Xia said her son's marriage was a bit volatile in this period, but that he was getting off drugs. She did not want to make waves in her son's marriage. She believed Wen Tao Wei only had a drug problem for a few months before May 2012.
Mrs Xia said she did not know in May 2012 that her son needed money to settle the purchase of the Apartments. She said she didn't know for sure. She said Na Yu said that there would be settlement in three weeks, but that Mrs Xia was unsure what the word "settlement" meant.
It was put to Mrs Xia that she was depressed and upset because $87,250.00 and $38,000.00 had "gone into" the Apartments that Na Yu now occupied, and that she didn't feel that Na Yu should get the benefit of that money when the marriage had collapsed so quickly. Mrs Xia denied this proposition. She said that she felt that Na Yu had pre-planned things so that she would retain the benefit of the loan. She said Na Yu lived in the Apartment, and that she has the benefit of the loan but has not talked about repaying it. Mrs Xia lent $87,250.00 to her son, and he has not repaid that money and has no assets. The Apartment held by Na Yu is the asset which represents the loans. Mrs Xia said she was seeking repayment for the benefit of Wen Tao Wei. At this point Mrs Xia said she was upset because Na Yu had the benefit of the money and the marriage had broken up so soon. She said "that's why I'm upset"[9]. She believes it is unfair for Na Yu to keep the benefit of the money that was lent, and that she has brought this VCAT Application because she saw it the money went into the Apartments.
Mrs Xia admitted that she and Mr Wei had also sued both Wen Tao Wei and Na Yu in proceeding number C3796/2015, for $87,250.00, in reliance on the two IOUs dated 25 January 2010, even though Na Yu was not married to Wen Tao Wei when those two loans were made. She said they sued Na Yu in that proceeding because it was related to her thinking that as Na Yu was no longer married to Wen Tao Wei she should repay the money that she had the benefit of. In Mrs Xia's view it would be a fair result if the money was repaid. She agreed that the claim against Na Yu was struck out on 23 September 2015. She also agreed that on 18 November 2015 Wen Tao Wei consented to an Order being made against him, that he pay $87,250.00. Nevertheless he has not paid that sum.
Mrs Xia knew that Na Yu had not signed the two IOUs on 25 January 2010, but said that she had sued her anyway because the money was used for the purpose of both Wen Tao Wei and Na Yu. They transferred the Apartment to Na Yu's name in 2012, after they had married, so Mrs Xia says the money partly belongs to her son. All the money belongs to her son. When Mrs Xia was asked to clarify that statement she said she had not expressed herself well, and that she did not mean that all of the money belonged to her son. The interpreter said that was literally what she had said.
Mrs Xia said she accepted that the $87,250.00 had been borrowed by Wen Tao Wei alone. She did not think it was malicious to sue Na Yu for that money, saying that it was a family matter and that she did not want to talk about it.
Mrs Xia was asked, if she accepted that the first two IOUs did not apply to Na Yu, why she sued Na Yu on the third IOU, and Mrs Xia answered that although Na Yu did not sign, she lives in the Apartment and Mrs Xia's money is in the apartment. According to Mrs Xia's knowledge, her son Wen Tao Wei will repay, and both of them must repay. You need to trace the money. Because they were married they both must pay the money back.
Mrs Xia said in the end that she was angry at Na Yu. Thinking of the whole story, from the first payment of the deposit, to the nomination of Na Yu as the purchaser after the marriage, to the request for a loan so that she could settle, and then arranging a fight with Wen Tao Wei to justify the settlement, all the time when Mrs Xia treated Na Yu well.
In answer to a question about Mrs Xia asking her sister-in-law to lend $60,000.00, Mrs Xia used the words "that Na Yu needed $60,000 to settle the property". Mr Wei then interrupted again and Mrs Xia then "corrected herself" and said "Na Yu wanted to borrow $60,000 from her". When challenged about this, Mrs Xia said she had heard Mr Wei interrupt her and had heard him say the word "borrow", but nevertheless that was not why Mrs Xia corrected her evidence. It was only that she had not finished giving her evidence when Mr Wei interrupted her. Having observed this exchange, which occurred after several warnings to Mr Wei not to interrupt the evidence, I reject Mrs Xia's explanation and I find that she did change her evidence because she was coached to do so by Mr Wei.
In any event, the evidence continued and Mrs Xia said she did understand that the concepts of "needing money to settle" and "borrowing money to settle" were different. It was put to her that she did not tell her sister-in-law that Na Yu wanted to borrow $60,000.00, but instead that she told her that Na Yu needed the money. Mrs Xia said that she said Na Yu needed $60,000.00.
Finally Mrs Xia said that this was the correct version: "I talked to my sister-in-law. I told her Ms Na needs $60,000.00 to settle the property but she cannot borrow it from me because I don't have the money. She would like to borrow it from me".
Mrs Xia conceded that, if left unexplained, the IOU of 5 July 2012 did not contain words which made clear that Na Yu had borrowed the $60,000.00 / $38,000.00. Mrs Xia said she was trying to get both Na Yu and Wen Tao Wei to repay, if Na Yu did not.
Mrs Xia was asked about the claim that she had lent Na Yu $1,600.00. It was put that, according to Mrs Xia, Na Yu had by this time failed to repay $30,000.00 of the $60,000.00 loan, suggesting that it was unlikely that Mrs Xia would make another loan. Mrs Xia said she was angry that the $30,000.00 had not been repaid, because it prevented her from repaying Ms Wen Tai Wei. Mrs Xia had not wanted to make a big issue of the outstanding $30,000.00, and she did not express her anger to Na Yu. Na Yu wore her down by making harassing requests for the $1,600.00 over the phone, making calls as late as 11:30 pm and threatening, in Mrs Xia's view, to directly approach Ms Wen Tai Wei for a loan. Mrs Xia considers the exchange of SMS messages between Na Yu and Mr Luo to show that Na Yu was deceiving Mrs Xia, by creating the impression that Na Yu would shame the family by asking others for a loan.
Mrs Xia acknowledged that by the time Na Yu asked for the $1,600.00 loan, she had separated from Wen Tao Wei. Mrs Xia said that the separation was not inconsistent with her making this loan, because Mrs Xia was still hoping that the two of them would reconcile, and Mrs Xia had no malice towards Na Yu.
Mrs Xia also said that she saw $10,000 in cash in the drawer of a cabinet used for the baby. She considered that this demonstrated that Yu Na did not need $1,600.00. Nevertheless she did lend that sum to Yu Na. Mrs Xia did not make a note of the $1,600.00 loan.

[62]

Wen Tai Wei is close to her brother Mr Wei, and is the aunt of Wen Tao Wei. She has lived in Australia for some 26 years and has worked for years at Melbourne University in the collections development area. She can understand simple English. She typed her written witness statement at the request of Mr Wei, because she knew that she would be attending to be a witness. She acknowledged that she typed the statement about two years after the events that it sought to record.
She signed the witness statement three days before the first Tribunal hearing in August 2014. She knew that the statement would be used in that hearing. She knew that Mr Wei had sued Na Yu, but didn't know the details of the claim or even that $38,000.00 was being claimed. Wen Tai Wei was suffering some anxiety and depression in 2014, connected with the death of her mother, and didn't want to get involved or ask for details of the dispute. She denied that in giving evidence she was seeking to "help" Mr Wei. She desired to tell the truth.
However she did not attend the first Tribunal hearing give evidence.
She agrees that Na Yu had no discussion with her directly about a loan. She simply went to the bank and made the transfer, at Mrs Xia's request.
Wen Tai Wei was asked many questions about whether she had made the loan to Mr Wei or to Na Yu. In several of her answers she said that she had lent the money to Na Yu, but it was clear once these answers had been explored that her intention was to convey the fact that she had transferred the money to Na Yu's account, and I accept that this is what occurred.
Wen Tai Wei acknowledged that she did not know what had been discussed between Mrs Xia and Na Yu. She also has no personal knowledge of whether or not Mrs Xia and Na Yu were speaking to each other at all, although she believes what Mrs Xia has told her.
Wen Tai Wei was not close to Wen Tao Wei. She said he was "different", and that she did not see him for a long time. In connection with the birth of Na Yu's baby, Wen Tai Wei saw Na Yu a few times in March 2012, but did not see Wen Tao Wei. She had Na Yu's telephone number.
Wen Tai Wei lent the $60,000.00 to Mrs Xia and Mr Wei because she trusted her brother. She would not lend that much money to a stranger. If there was no agreement between Mrs Xia and Na Yu, she would not have transferred the money into Na Yu's account. As a matter of Chinese culture, the fact that Na Yu and Wen Tao Wei were married meant that they became one family.
Na Yu telephoned Mrs Xia after the transfer, acknowledging that the $60,000.00 had gone into the account. [This was not stated in Wen Tai Wei's written witness statement, and is hearsay anyway].
It is also not stated in the written statement that Na Yu agreed to repay $30,000.00 in three weeks of the settlement. Nevertheless, it is true. By the time Wen Tai Wei lent the $60,000.00, Mrs Xia had said that she would be repaid $30,000.00 in three weeks after settlement, and Wen Tai Wei believed this. This fact is not stated in the written witness statement because she did not think it was very important.
As to having been repaid, Wen Tai Wei said that Mrs Xia paid her $22,000.00, in two payments of $20,000.00 and $2,000.00 respectively, in July 2012, after she had received that sum from Na Yu which was after Na Yu had received the First Home Buyers Grant.
I find that Wen Tai Wei has no personal knowledge of the First Home Buyers Grant, and that she was telling the Tribunal what she had been told by Mr Wei or Mrs Xia. I reach that conclusion because of Wen Tai Wei's evidence that she had not spoken to Na Yu, and Wen Tao Wei's evidence that only Na Yu dealt with the settlement after he had nominated her as purchaser. Accordingly I find that this part of Wen Tai Wei's evidence suggests that she had discussed her evidence with the Applicants before the hearing.
Wen Tai Wei agreed with the proposition is that in May 2012 Na Yu had a three month old baby, that she and Wen Tao Wei were still living together, and that the settlement of the apartments was impending. Wen Tai Wei wanted to help the family, and she regarded Na Yu as family at that time.

[64]

Wen Tao Wei was given a full opportunity to give evidence and to tell the Tribunal the whole story. He appeared to me to be reluctant to give evidence. He mumbled. He was evasive. He said his memory was poor. He gave a strong impression of not wanting to be involved in this dispute.
Wen Tao Wei said that he did not borrow any money from his parents in May 2012. On 17 June 2012 he separated from Na Yu and he essentially had no contact with her after that time.
He was asked whether on 5 July 2012 Mr Wei told him about Na Yu having borrowed $60,000.00. Wen Tao Wei said that he could not recall the date, but that he recalled having been shocked when he was told that Na Yu had borrowed that money, because she had borrowed it behind his back.
Despite having signed the IOU of 5 July 2012 referring to $38,000.00, he did not borrow that money or $60,000.00. At the time the events took place, he did not know that Na Yu had borrowed $60,000.00 or that she had repaid $22,000.00 in early July 2012. Na Yu was dealing with the apartments after he had nominated her as purchaser, and there were many things that she did not tell him about.
Wen Tao Wei was asked whether he had a case against a person called Wan Dung. It was put to him that in that case Na Yu and her mother gave contradictory evidence. Wen Tao Wei said that he could remember the meeting but it was a long time ago and he cannot remember exactly. He did remember that Na Yu advised them to go to Court. [This point was not developed and no evidence was given about this alleged Court case, and I don't believe the point went anywhere].
Wen Tao Wei said that Na Yu disrespected his parents. They didn't tell him at the time because they didn't want to rock the boat in the marriage, but since the separation Na Yu has told him of events which were disrespectful. One day Ms Xia was cooking for the family on a very hot day and Na Yu did not sympathise with her and instead was critical of Mrs Xia not cooking enough food. Wen Tao Wei said he remembered this clearly. Even though Mrs Xia was sick she still made dinner. Na Yu was very disrespectful and Wen Tao Wei was disgusted with her behaviour and asked why wouldn't Na Yu do something for once. It was disrespectful for her to expect Mrs Xia to always make the dinner.
In June 2012 Na Yu hit Wen Tao Wei several times, in front of his friends. In April 2012 as well. A friend came around to visit and they were talking. Wen Tao Wei bought his son a present, the son having just turned one month. Na Yu ran out of the house and kicked him. This was embarrassing and it stopped the friend from going into business with Wen Tao Wei.
I can only describe these parts of Wen Tao Wei's evidence as disclosing an extraordinary lack of insight.
As to the IOU of 5 July 2012, Wen Tao Wei did not borrow money from his parents. They are getting old. Had Na Yu asked him about borrowing from his parents, he would have said no. He would have said that his parents had helped him enough and that it was up to Wen Tao Wei and Na Yu to pay the rest for the Apartments. When he learnt about the loan, he told his parents that Na Yu had borrowed small amounts of money and didn't account for it. Even at the wedding they had hundreds of friends attend and they received cash presents, and when Wen Tao Wei asked Na Yu whether she had given that money to his parents to offset the cost of the wedding, Na Yu kept all the money. She also took money out of Wen Tao Wei's business account. And then she would go overseas.
When Na Yu was rude to his parents, they did not want to hurt the relationship, saying as long as Wen Tao Wei was happy they were fine.

[65]

Wen Tao Wei identified the three IOUs and acknowledged that he had signed them. He said he could read Mandarin, and he read all of the IOUs before he signed them. He said that the intention of the IOU for $38,000.00 dated 5 July 2012 was because of his marriage to Na Yu. He signed it because of a reason, that Na Yu had to be responsible, because their marriage was still together. He acknowledged that the document says that he borrowed the sum of $38,000.00, and that his mother Mrs Xia wrote the document, and that he and Na Yu had separated by the time he signed the document, but nevertheless he says that it means that he and Na Yu together had borrowed the $38,000.00. He said that this concept of it being a joint loan is reflected in the fact that the money went into Na Yu's account.
Wen Tao Wei said that he signed the IOU because he was angry that Na Yu had borrowed money from his parents behind his back.
Wen Tao Wei agreed that he had a drug problem in 2012. He denied the proposition that people were chasing him for the payment of debts, and while he agreed that he had nominated Na Yu to be the purchaser of the two Apartments he said that this was because of pressure and persuasion by Na Yu. Na Yu had had the baby, and it was also easier for her to get a bank loan.
In reply to the proposition that it was Wen Tao Wei who persuaded Na Yu to become nominated as purchaser, because Wen Tao Wei could not get a bank loan and because people were chasing him for payment of debts, Wen Tao Wei denied it.
Wen Tao Wei denied the proposition that he had told Na Yu that he was borrowing $60,000.00 from his parents so that she could settle the purchase of the Apartments. He said that if you examined what Na Yu spent on bags and jewellery, which was a lot and that everybody knows about this, any shortfall in money needed to purchase the Apartments would have arisen because of her excessive spending on luxury goods. I reject this evidence, which I find to be most implausible.
Wen Tao Wei said he was not aware that the bank would only lend 85% of the valuation of an Apartment. He did not even know in general terms that there would be a shortfall between the amount that the bank would lend and the amount needed for settlement. He did not think there would be a shortfall, because Na Yu transferred money from his account and, in his words, "cleaned me out".
Wen Tao Wei said that Na Yu took money from the wedding; cash presents should have been given back to Wen Tao Wei's parents because they had paid so much on the wedding. He did not understand why Na Yu had to borrow money from his parents.
Wen Tao Wei acknowledged that he had borrowed $87,250.00 from his parents in 2010 and had used it as the deposits when he contracted to buy the Apartments "off the plan". He did not know that that money would be lost if Na Yu was unable to settle on the purchase of the apartments, but he said he did not want such a thing to happen and would not let it happen. When he nominated Na Yu as purchaser, he trusted her although he regrets that now.
Wen Tao Wei said his parents had told him that Na Yu said to them that she would look after them if Wen Tao Wei didn't. He asserted that Nu Yu said this to them to persuade them to lend her the $60,000.00. I note that neither Mrs Xia or Mr Wei gave evidence to that effect.
Wen Tao Wei had a Karoake business and Na Yu wanted him to let her run it, but she was no good at running it and it had to be closed down. Na Yu wanted him to close down the business, because she wanted him to get a day job. Wen Tao Wei wanted time to sell the business but she did not agree. Na Yu was dominating him, to the point where she forced him to close the business. This resulted in Wen Tao Wei having no income. He did have savings though, and with all the cash that had been received from guests at the wedding Na Yu had enough money to settle the purchase of the Apartments.
Wen Tao Wei acknowledged that he and Na Yu had separated on 17 June 2012. He said that he was bailed on that date. As part of the bail conditions, the judge asked him to go home to his Apartment. When he arrived home no one was there. He spoke to Yizheng Luo who lived downstairs and asked him to speak to Na Yu for him because she would not speak to him. Na Yu had an intervention order against him, but said that she obtained it by lying to the Court. About 30 minutes later the Police arrived and told him to leave the Apartment, and also told him that if he removed any chattels he would be charged with theft. Wen Tao Wei said that he had purchased all of the furniture and that all of his valuables were in the Apartment. He said that Mr Luo is still a friend of his. [I note that Wen Tao Wei's evidence about the intervention order puts it earlier in point of time then does Na Yu. As Wen Tao Wei had given evidence that he could not remember dates, I prefer Na Yu's evidence in relation to the intervention order].
Wen Tao Wei said he had opposed Na Yu's application for an intervention order, and had seven or eight witnesses, but that the Court heard about his drug problem and did not believe his witnesses. He maintains that Na Yu's obtaining of the intervention order was done for tactical reasons.
Wen Tao Wei has recently issued Family Court proceedings against Na Yu.
Wen Tao Wei acknowledged that his relationship with Na Yu in May - June 2012 was not good, and that part of this reason was his drug problem. In May 2012 he no longer hoped to save the marriage, because it was not possible as Na Yu yelled at him daily and it made him reluctant and even scared to come home. He was under pressure in that he felt no one understood him; his parents were pressuring him to save the marriage; Na Yu was always after him for money.
Wen Tao Wei was shown a copy of page 95 of the transcript of the August 2014 Tribunal hearing, which records a question and answer of Yizheng Luo which was given considerable attention in Yizheng Luo's examination. When Wen Tao Wei was asked whether that evidence was true, he said that Yizheng Luo said that it was not, and that after the hearing in August 2014 Mr Luo had told him that he was confused by the questions and that his answer was not what he meant to say. He didn't mean to say what he said. [I consider that this evidence from Wen Tao Wei shows that he has colluded with the Applicants in deciding what evidence to give in the hearing before me].

[66]

I acknowledge here that Mr Wei and Mrs Xia were self represented, so inevitably there were points where they asked questions in re-examination which did not arise from cross examination. This is a fairly common feature of proceedings in the Tribunal involving self represented litigants and the task of the Member is to act fairly to both sides. Accordingly I allowed Na Yu's Counsel to ask a few questions arising from this re-examination.
In re-examination Mr Wei put it to Wen Tao Wei that on 5 July 2012 Mr Wei explained to him that Na Yu had borrowed $60,000.00 two months before, and that she had only repaid $22,000.00. Mr Wei said that she had repudiated the loan, and Mr Wei said he wanted Wen Tao Wei to sign the IOU for $38,000.00. Wen Tao Wei was asked if this proposition was true. Wen Tao Wei replied that it was a long time ago, and that his mother Mrs Xia had told him that Na Yu had borrowed money and didn't want to pay it back. Wen Tao Wei was shocked. He did not want to see Na Yu. Na Yu is like a devil, and he did not even want to hear her name or have anything to do with her. He did not know what to do when his mother told him about the loan. All he could think of was that he wanted to protect his parents. Na Yu had left the family with nothing. His parents have nothing for their retirement or old wage which was a horrible thing. [I note, then, that Wen Tao Wei did not give the evidence which Mr Wei expected from him - that Mr Wei had explained to him that Na Yu had borrowed the money].
After they separated Na Yu obtained an intervention order against Wen Tao Wei. Initially he did not know what an intervention order was. He still does not know why she obtained one. Na Yu's evidence to the Ringwood Magistrates' Court when she obtained the intervention order in February 2013, was untrue. Wen Tao Wei could not believe the result of that case, and when the Magistrate did not believe him, Wen Tao Wei collapsed. He was stunned that the Magistrate believed Na Yu.
Wen Tao Wei only knew Na Yu for about two months before they married. It was a big mistake. She is highly educated but not good at feelings or relationships, and she has no respect.
Mr Wei put it to Wen Tao Wei that he told Na Yu to pay $22,000.00 to his parents, on 7 July 2012. Wen Tao Wei denied this, saying that he never spoke to Na Yu. He wanted nothing to do with her because he is scared of her.
Mr Wei put it to Wen Tao Wei that at the VCAT hearing in August 2014 Na Yu gave evidence that on 2 July 2012 Wen Tao Wei told her to pay his parents the money, and that this occurred before he signed the IOU. Wen Tao Wei said that he did not know that information before he signed the IOU. It was only when he was told that he knew that Na Yu had borrowed money from his parents at all. There was a period when he was in gaol, and when he was in gaol Na Yu did not telephone him. [This evidence does not explain why Wen Tao Wei would sign an IOU for $38,000.00. It is more likely than not, that if either parent told Wen Tao Wei about this loan, that they would have said it was $60,000.00 and that $22,000.00 had been repaid].
Mr Wei put it that in April 2012 Wen Tao Wei told him that he was seeing a solicitor to change the name on the contract of sale, to nominate Na Yu as purchaser. Wen Tao Wei said he regrets having done this. His parents asked him, after the event, why he had done that. In answer to the proposition that normally a couple buy a property as joint owners, Wen Tao Wei said that guilt caused him to nominate Na Yu has purchaser. After he did it, he told Na Yu that he should not have done it and that he should have talked to his parents.
Wen Tao Wei said his parents told him that Na Yu had borrowed the money from them a long time after it happened. She had the money in her possession. She had borrowed the money behind his back. She would say nice things to his parents, but this was to trick them into lending her the $60,000.00, and as soon as she got it, she changed the way she spoke to them. She became a different person.
Wen Tao Wei did not ask his parents for a loan in May 2012 to assist in the settlement of the Apartments. By then he was already regretting having nominated Na Yu as the purchaser, and he knew that his parents were not happy that he had done so. There was no chance that he would ask his parents to lend any more money. He appreciated what they had already done to help him by then.

[113]

"Giving signs" is quite different from Na Yu had telling Mr Luo that she had borrowed $60,000.00 from her parents-in-law, yet Mr Luo denied that difference and said that he knew that Na Yu was going to repay Ms Xia. Mr Luo said that "essentially" he was saying that if Na Yu had not borrowed money from Ms Xia she would not offer to pay any money to Ms Xia and she would not send SMSs asking Mr Luo to exaggerate the amounts they had borrowed.
Mr Luo said that in the period between June 2012 and December 2012 Na Yu said to Mr Luo that she was sure to repay Ms Xia. Mr Luo had not given that evidence before because he wasn't given a chance by the presiding Member at the hearing in August 2014. Even though Mr Wei asked Mr Luo questions in that hearing, Mr Luo wasn't as clear then as he is this time. Mr Luo agreed that he had had the opportunity to speak to Mr Wei before the hearing in August 2014, and he said that he had told Mr Wei before that hearing that Na Yu had acknowledged having borrowed the money from Ms Xia. Nevertheless Mr Luo did not give evidence to that effect at the hearing in August 2014.
Mr Luo then said that after the settlement in May 2012, Ms Xia told Mr Luo that she had borrowed 'the money', meaning an amount of money which included both the deposits and the sum for the settlement, from someone. When Counsel for Na Yu put it to Mr Luo that that was entirely new evidence and that it was a recent invention, Mr Luo complained, in English, that he was losing money at work by attending to give evidence.
Mr Luo said that when he gave his answer in August 2014, "He persuaded - yes Wentao Wei was able to persuade his parents to lend him this amount of money ..." he meant "they had borrowed money for the deposit and later for the settlement". The interpreter clarified this answer and confirmed that the quoted words in the transcript were correct. When asked did he say that Mr Wei and Ms Xia told him they had borrowed money for the deposit, Mr Lew answered no. He meant they had lent $87,250.00 to Wen Tao Wei.
Wen Tao Wei had told Mr Luo that he had nominated Na Yu as purchaser for three reasons: she wanted to be the purchaser; his income would make it hard for him to get a mortgage; and Na Yu had a better income and it was more convenient for her to borrow from the bank. He knew by the time of the settlement that Na Yu, and not Wen Tao Wei, was the purchaser. Whilst on page 95 of the transcript this is recorded

[116]

Mr Wei acknowledged that he was not present at various crucial points in the chronology, and that most relevant discussions had taken place between Mrs Xia and Na Yu when he was not present.
Mr Wei generally spoke in English in the hearing. When he gave his evidence in chief, he stated his version of the facts without relying on notes, but I must say it sounded like an opening statement. Mr Wei's evidence in chief was as follows. Quite clearly, a lot of what he said was based on hearsay evidence and amounted to his summaries of the facts as he understood them. Nevertheless as a matter of fairness I set out his evidence in chief.
Mr Wei came home at about 7:30 pm on 30 April 2012. He spoke to Wen Tao Wei, who told him that through a solicitor Wen Tao Wei had nominated Na Yu as the purchaser of the apartments. He did that because Na Yu told him that it would give Wen Tao Wei a government benefit if they bought another apartment in the future in his name. Mr Wei did not believe this, and instead thought that Na Yu had pressured Wen Tao Wei and that Wen Tao Wei was embarrassed to admit it.
Mrs Xia asked Mr Wei to come in and discuss it. She told Mr Wei that during the day Na Yu, who had been living with Mr Wei and Mrs Xia between 25 February 2012 and 12 June 2012, asked Mrs Xia to lend $60,000.00 to allow the settlement of the purchase of the apartments. Mr Wei said we don't have that money.
Mrs Xia told Mr Wei that Na Yu said that in three weeks she would return $30,000.00, and on the basis of this advice Mr Wei thought it would be okay to lend money to Na Yu. Also, Mrs Xia and Mr Wei knew that Na Yu earned $120,000.00 a year, and so they concluded she would repay the money. Also, Mrs Xia and Mr Wei knew that Na Yu needed help, and they thought that they should help her.
Mrs Xia spoke to Mr Wei's sister, Wen Tai Wei.
Later, on 4 May 2012 both Mrs Xia and Mr Wei spoke to Wen Tai Wei, and she agreed to lend the money to Mrs Xia and Mr Wei so that they could lend it to Na Yu.
Mrs Xia and Mr Wei asked Na Yu when she would need the money, and Na Yu replied in about a week. However on 8 May 2012 Na Yu said that she needed the money the next day. By this time Na Yu had given Mrs Xia her bank account number.
On 9 May 2012 Wen Tai Wei told Mrs Xia that she had deposited the $60,000.00 directly into Na Yu's bank account, and Mrs Xia advised Na Yu of that. Mrs Xia gave Na Yu the number of their joint bank account, to facilitate repayment of the loan.
Mrs Xia and Mr Wei expected the $30,000.00 to be re-paid, but it wasn't. They waited, not raising the matter with Na Yu, but then on 10 June 2012 Mrs Xia asked Na Yu Wen she would repay the money. Na Yu said words to the effect, "The problem is with the bank".
On 12 June 2012 Na Yu and her mother moved into the new Apartment 314.
On 13 June 2012 new furniture was to be delivered to Apartment 314, and Mrs Xia and Mr Wei attended there. Na Yu did not have any discussion with them about repayment.
After 25 June 2012 Mrs Xia asked when repayment would be made and Na Yu said "soon". On 6 July 2012 Na Yu repaid $20,000.00, and on 3 July 2012 she repaid a further $2,000.00. At this time Mrs Xia was visiting the apartment daily to look after the baby.
On around 3 July 2012 Mrs Xia spoke to Na Yu and asked when the rest of the $30,000.00 would be repaid. Na Yu said that she still had some money to pay out, maybe $6,000.00 for settlement and $4,000.00 for insurance, which explained why she had only repaid $22,000.00.
Around 8 August 2012 Mr Wei was present when Mrs Xia received telephone calls from Na Yu asking for $1,600.00 so that she could buy an air ticket. Mr Wei observed that many telephone calls were received over a period of around three hours. Mr Wei told Mrs Xia that he did not agree to lend $1,600.00 to Na Yu because Mrs Xia had seen cash in Na Yu's home. Mr Wei overheard the telephone calls from Na Yu, and heard Na Yu pressuring Mrs Xia to make the loan, saying "give to me, give to me".
Mr Wei did not actually know that Mrs Xia had lent the $1,600.00 to Na Yu until he saw the SMS messages between Na Yu and Mr Luo, which he considers to show lies.
Mr Wei was most unhappy that when Mrs Xia asked Na Yu a few times to see the baby, Nu Yu would hang up on her. Mrs Xia would telephone Na Yu until December 2012, asking for repayment, but none was never made.
In February 2013 Na Yu obtained an intervention order against Wen Tao Wei, by giving false evidence to the Magistrate. The falsity of the evidence was borne out by the fact that on 17 June 2012 Na Yu had hit Wen Tao Wei.
In December 2012 Mr Wei and Mrs Xia issued proceedings in VCAT, and gave VCAT all the relevant information. The problem with the hearing was that Mrs Xia did not have a chance to give all of her evidence, and that Mr Wei had not finished his cross examination of Na Yu. Mr Wei and Mrs Xia appealed to the Supreme Court, which allowed the appeal. Na Yu gave false evidence to VCAT and false evidence to the Supreme Court. The agreement that was drafted by the solicitor contains a release in favour of Na Yu and the fact that she had that release included in the document amounts to an admission that she owes the money to Mr Wei and Mrs Xia and that it would be a fraud if she did not repay the money. Na Yu is a vicious woman, exploiting old pensioners.

[117]

Mr Wei admitted that he gave his evidence in chief from memory, not relying on notes or papers. He denied the proposition that he had memorised a story, which had occurred four years ago.
Mr Wei said that he did participate himself in some aspects.
Mr Wei said that Na Yu had put pressure on Wen Tao Wei to nominate her as purchaser. It was put to Mr Wei that he had never made this assertion before. Mr Wei said that if he had have been given sufficient time in the August 2014 hearing, he would have given that evidence. When it was put to him that the transcript showed that he had an ample opportunity to give evidence in the August 2014 hearing, Mr Wei said that he was now giving additional information.
Mr Wei said that in April 2012, Wen Tao Wei told Mr Wei that he had agreed to nominate Na Yu as purchaser and that Wen Tao Wei was going to see the solicitor to sign the documents, Mr Wei said words to the effect, "If you do that, I cannot help you any more". Mr Wei said he told Wen Tao Wei that he was disappointed in him, and that Wen Tao Wei then admitted that Na Yu had put pressure on him. Mr Wei said that Wen Tao Wei had not asked his permission to nominate Na Yu. Mr Wei said he did not speak to his son in terms of instructing him not to make the nomination.
As clarification of the statement, "I cannot help you any more", Mr Wei said that he would not agree to Na Yu being nominated as purchaser - if he had been given an opportunity to agree or otherwise - because of the $87,250.00 which had already been lent to Wen Tao Wei; and that once Na Yu was nominated as purchaser it ceased to be possible to consider that a loan of $60,000.00 could be made so that funds could be applied towards settlement of the apartments.
Mr Wei said that before Wen Tao Wei and Na Yu separated he was still not that concerned about being repaid the $87,250.00, but that he did become concerned once Na Yu was nominated as purchaser. It was put to Mr Wei that if this version of events was true, it was most unlikely that Mr Wei would agree to $60,000.00 being lent to Na Yu in May 2012. Mr Wei answered that Wen Tao Wei was going into drug rehabilitation between 27 April and 3 May 2012, and that it was significant that Na Yu asked for the loan on 30 April 2012 when Wen Tao Wei was inaccessible. He also said that even after Na Yu was nominated, Mr Wei considered that both of them owned the apartment. That said, after the nomination Mr Wei would not support Wen Tao Wei any further.
It was put to Mr Wei that he did not give evidence in chief to the effect that he had discussed a loan of $60,000.00 with Na Yu. Mr Wei answered that he had discussed the loan with Mrs Xia all the time. Mr Wei said he was there in August 2012 when the $1,600.00 loan was requested, and also when Mrs Xia telephoned Na Yu asking when repayment would be made.
Mr Wei eventually conceded that he was not present when, he says, Na Yu asked Mrs Xia for a loan of $60,000.00. Mrs Xia told him about it, and of course he trusts and believes her. He also agreed that he had no discussion with Na Yu about the making of the loan.
Mr Wei said that he and Mrs Xia asked Wen Tai Wei to lend them $60,000.00. It was put to Mr Wei that this was inconsistent with Mrs Xia's evidence and the evidence which Mr Wei had given in August 2014. Mr Wei responded that it doesn't matter.
Mr Wei considers that Wen Tao Wei had an interest in the Apartments before he married Na Yu and until he nominated her as purchaser. Mr Wei regards Na Yu as a thief. He considers that Wen Tao Wei has been unable to repay the $87,250.00 which he borrowed in 2010 because Na Yu has taken his money.
Mr Wei knows that he has an Order against Wen Tao Wei for $87,250.00, which Wen Tao Wei has not satisfied. Mr Wei knows that Na Yu had no involvement in those loans in 2010, saying that they did not even know her then. Nevertheless he named her as a Respondent in the VCAT proceeding claiming repayment of those loans.
Mr Wei said that he asked Wen Tao Wei to sign the IOU of 5 July 2012. He did so because by then Na Yu had only repaid $22,000.00 and Mr Wei wanted proof of the loan. Mr Wei participated in Mrs Xia's preparation of the IOU. They came up with the wording of the IOU together.
It was put to Mr Wei that the words of the IOU did not support the Applicants' case, because it does not assert that there was a loan made to Na Yu. In the course of this puttage, Mr Wei acknowledged that he was an educated man who had worked as a schoolteacher in China. Counsel for Na Yu asked Mr Wei to read the IOU, and Mr Wei refused to do so and in fact declined to even touch the document. Mr Wei then said that he and Mrs Xia would not have attached a copy to their VCAT application if they did not believe that it supported their case.
It was put to Mr Wei that Mr Luo had given evidence that he had spoken to Mr Wei before giving his evidence. Mr Wei denied the proposition that they had spoken about the difference between the evidence Mr Luo gave in the August 2014 hearing and the evidence he proposed to give in the new hearing. Mr Wei said he did no more than discuss the date of the hearing and the time that Mr Luo should attend.
Mr Wei insisted that he did not say anything to Mr Luo when Mr Luo was giving his evidence in the August 2014 hearing. Mr Wei's attention was drawn to the transcript of that hearing and to the recording of Mr Luo giving his evidence in that hearing. Mr Wei said that he was just expressing his surprise at Mr Luo's evidence. Mr Wei agreed that he had read the decision of the Tribunal made in August 2014, as well as hearing the presiding Member's oral reasons, and that the Member had relied on Mr Luo's evidence. Mr Wei said that Mr Luo's evidence was wrong.
Mr Wei agreed that he had spoken to Mrs Xia before she gave her evidence in the August 2014 hearing and again in the hearing before me. He said that he "did not worry", which I take to mean that he did not have to encourage Mrs Xia to give any particular evidence.
It was put to Mr Wei that Wen Tao Wei had caused financial loss to Mr Wei and Mrs Xia. Mr Wei said that both Wen Tao Wei and Na Yu had done so.
Mr Wei said that he and Mrs Xia only wanted the July 2012 IOU as proof, and that they would not have needed it had Na Yu repaid the whole $60,000.00.
Mr Wei said that Mr Luo brought the solicitor's agreement to him and asked him to sign. Mr Luo said that Na Yu wanted it signed.

[118]

Na Yu met Wen Tao Wei in April 2011. They had a sweet relationship and were deeply in love when they married in October 2011. Whilst there were some bad signs in October 2011, it was only in December 2011 that Na Yu learned that Wen Tao Wei had become addicted to crystal methamphetamine. Wen Tao Wei was the proprietor of a karaoke bar and so he had generally been out late running the business, but by December 2011 the business was failing and his personality was changing. As Wen Tao Wei's drug use became heavier, he lost concentration, became violent, would wake during the night in a violent rage but purport not to remember the violence in the morning. He abused Na Yu and, after March 2012, the baby.
Na Yu did not borrow $60,000.00 or $1,600.00 from Mr Wei or Mrs Xia. Nor did she request either such a loan.
When Na Yu and Wen Tao Wei married, Na Yu knew that Wen Tao Wei had contracted to buy the two apartments off the plan. Wen Tao Wei knew that settlement was due in December 2011. At some stage the expected settlement date was pushed off to May 2012.
After December 2011 Wen Tao Wei's karaoke business was failing and he and Na Yu discussed how he could settle his purchase of the Apartments. He was not making any money in the business and people were chasing him for money. Wen Tao Wei sought finance from a bank but was told that he was unlikely to get it. Wen Tao Wei knew that Na Yu was earning around $100,000 per annum prior to the marriage.
Wen Tao Wei told Na Yu that he would lose his deposits if he could not settle the purchase. He begged Na Yu to take a mortgage for the good of the family. He said that Na Yu should get a loan and put the apartments in her name, so that if he was bankrupted the Apartments would be safe from creditors. The sum needed to settle the purchase of the two apartments was almost $1 million.
Na Yu made many enquiries from lenders, knowing that the mortgagee would have to agree to lend approximately 85% of the purchase price of the Apartments. Na Yu was able to get a loan from Citibank for 85% of the purchase price of Apartment 211, and a loan from National Australia Bank for 90% of the half share in Apartment 314. But that still left a 5% shortfall in the funds needed to settle Apartment 211, approximately $30,000.00. National Australia Bank also required the borrowers to pay for mortgage insurance on the mortgage for Apartment 314.
In a meeting with the mortgage broker at which both Na Yu and Wen Tao Wei attended, the mortgage broker told Na Yu that the banks required her to show that $60,000.00 was available before the banks would schedule settlement. Wen Tao Wei said he would borrow the $60,000.00 from his parents. Na Yu said that she did not ask him to do so.
In a later discussion with the broker, the broker told Na Yu that at settlement the purchasers would have to pay the stamp duty, but that being "off the plan" apartments there would be a rebate of duty after a while. The broker estimated that the sum which would come back after settlement in respect of the rebate of duty and the payment of the First Home Buyers Grant would be around $22,000.00.
The baby was born on 21 March 2012. By that date Wen Tao Wei's drug addiction was serious. He did not attend the birth. Mr Wei and Mrs Xia drove Na Yu to the hospital. Na Yu did not return to work until 2016. Wen Tao Wei provided no financial support for Na Yu or the baby. Na Yu arranged for a drug and alcohol service to counsel Wen Tao Wei, and Na Yu booked him into rehabilitation and detox, but Wen Tao Wei was expelled from the program on about 2 April 2012 when he assaulted staff members. Wen Tao Wei stayed sober for about 21 days but then resumed drug taking and increased his consumption.
By 17 June 2012 Wen Tao Wei had assaulted and battered Na Yu and she was advised to seek an intervention order. Na Yu regarded it as contrary to Chinese culture to seek an intervention order against a husband, and so she did not do so but she did ask Wen Tao Wei to leave the matrimonial home. The parties separated. After the separation Wen Tao Wei rarely visited the baby. Na Yu found that she could not telephone Wen Tao Wei, because he acquired around ten mobile telephones and would not disclose his telephone number. Na Yu only heard from him when he initiated the contact.
Na Yu went to China for a while to visit her parents. Mrs Xia did not provide the funds for the air ticket. Mrs Xia told Na Yu that Wen Tao Wei was arrested on four serious charges the day Na Yu left for China. Wen Tao Wei was bailed. Wen Tao Wei gave his address to the authorities as Apartment 211, even though this was not his address after the separation.
Na Yu returned to Melbourne in September 2012, and she was horrified by the state of Apartment 211 when she returned to it. She said that all of her goods had disappeared and the only furniture remaining was a television. She applied for an intervention order, which was granted.
Na Yu did not receive a letter of demand or any suggestion that she had borrowed money from Mr Wei and Mrs Xia. The first she heard of the allegation that she had borrowed $60,000.00 from them was when she was served with the VCAT application in this proceeding.
Na Yu was incredulous when Mr Wei and Mrs Xia also sued her for repayment of the $87,250.00 which Wen Tao Wei had borrowed in 2010.
In May 2012, Wen Tao Wei told Na Yu that the $60,000.00 had been deposited in her bank account, and Na Yu saw that the money was there. Na Yu only discussed this loan with Wen Tao Wei.
On 10 May 2012, the sum of $12,000.00 was withdrawn from Na Yu's bank account and applied towards the settlement of Apartment 314. Mr Luo also contributed a sum towards that settlement.
Wen Tao Wei had contracted to buy the two apartments in 2010, before they had met, and when he could not settle he nominated Na Yu as purchaser. After settlement, and before the parties separated, Na Yu considered that the two of them owned the Apartments even though they had been registered in her name alone.
Wen Tao Wei told Na Yu that he was selling his business, and that he would use the proceeds to repay Mr Wei and Mrs Xia and pay down the mortgage, and that he would then get a job.
Settlement of both apartments took place on 30 May 2012. Wen Tao Wei and Na Yu moved into Apartment 211 on 12 June 2012. The baby was under three months old, having been born on 21 March 2012.

[119]

Mr Wei put the Applicants' case to Na Yu in a series of individual questions. In answer to these questions Na Yu denied that she had asked to borrow $60,000.00; that she had said she would repay $30,000.00 within a few weeks; that she had given her bank account number so that the funds could be transferred to her account; that on 8 May 2012 she had told Mrs Xia she needed the money the next day; and that on 10 June 2012 Mrs Xia asked when money would be repaid and that Na Yu said the problem was with the bank.
Na Yu admitted that she paid $20,000.00 and $2,000.00 on 2 and 3 July 2012 respectively, and said that she did so on Wen Tao Wei's instructions. Na Yu said that Wen Tao Wei had telephoned her and given her those instructions.
Mr Wei asked some questions about events after the parties separated. Na Yu answered that Mr Wei and Mrs Xia had said to her that in Australia grandparents have no responsibility towards their grandchildren, and that Na Yu had received no financial support from Wen Tao Wei or from Mr Wei and Mrs Xia. She had received nothing from the closure of Wen Tao Wei's business or the sale of his car, and she had had to borrow money from her parents to survive before returning to work in 2016.
Mr Wei asked a series of questions about the SMS messages that had passed between Na Yu and Mr Luo. Na Yu said that she could not precisely remember all of the details but that they generally related to the need for each of them to pay money for mortgage insurance on the loan for Apartment 314 and to meet the shortfall so that settlement could proceed. She could not remember precisely what the $300 referred to in the SMS messages might have been used for, but she said she was borrowing from friends at the time of the SMS messages because she was not receiving any financial support from Wen Tao Wei and had to support the baby.
Mr Wei asked a series of questions about the agreement drafted by the solicitor. Na Yu said that it was prepared after Apartment 314 was sold, and that the solicitor emailed it to Mr Luo. She said that after her separation from Wen Tao Wei he had put a number of caveats on both apartments. Na Yu had told Mr Luo of her difficulties servicing the mortgages. Mr Luo had asked Wen Tao Wei to remove the caveats on Apartment 314 so that it could be sold. There had been a downturn in the property market, which caused the value of Apartment 314 to decline from the $660,000.00 purchase price to $600,000.00. Mr Luo told Na Yu that Mr Wei and Mrs Xia had expressed their disappointment with the sale price of that apartment and threatened to sue Mr Luo and Na Yu. Mr Luo told Na Yu that he had instructed the solicitors to prepare the agreement, which included a release, in case something went wrong. Na Yu said that she did not ask Mr Luo to ask Mr Wei and Mrs Xia to sign that agreement.
Mr Wei asked a series of questions designed to show inconsistencies in Na Yu's evidence. Na Yu had said in an affidavit that she had not received any money from Mr Wei and Mrs Xia, and yet she gave evidence that she had received $5,000.00 as a gift on the birth of the baby. Na Yu said that properly interpreted, the affidavit referred to the allegation that Mr Wei and Mrs Xia had lent her $1,600.00 for an air ticket. Similarly, Na Yu had referred in an affidavit about a lack of communication with Wen Tao Wei but had given evidence of being instructed by him to pay Mr Wei and Mrs Xia $22,000.00 and having done so. Na Yu repeated her evidence that because Wen Tao Mr Wei used a series of mobile telephones and would not disclose his telephone number, Na Yu could be contacted by him but that she could not contact him.
Mrs Xia also cross-examined Na Yu. Na Yu maintained that she had only ever spoken about the $60,000.00 with Wen Tao Wei, and that she had not asked Mrs Xia for a loan of that sum. Na Yu also said that when she paid the sums of $20,000.00 and $2,000.00 to Mr Wei and Mrs Xia, she did not discuss that with them. Na Yu did not think it necessary to ask whether those sums had shown up in their bank account. In answer to a question as to why Na Yu did not pay the other $38,000.00, Na Yu said that Wen Tao Wei had asked her how much money she had in her account. Wen Tao Wei was selling his business, and he told Na Yu to give Mr Wei and Mrs Xia whatever money she had and that when Wen Tao Wei sold his business he would reimburse her. Na Yu paid $22,000.00 because that was all she had. Wen Tao Wei did not pay her anything when he sold the business.
Mrs Xia asked about the SMS messages in August 2012, and about whether Na Yu had any contact with Wen Tao Wei after the separation. Mrs Xia's questions also implied a criticism of Na Yu requiring Wen Tao Wei to leave the matrimonial home. Na Yu repeated her evidence that Wen Tao Wei had become a violent drug addict who would contact Na Yu but not leave a telephone number at which he could be contacted, and that whilst she could not remember precisely what the $300.00 which is mentioned in the SMS messages was used for, she had had to borrow money from various sources because she had no financial support from Wen Tao Wei. Na Yu denied that the $300.00 was mentioned as a way to persuade Mrs Xia to lend $1,600.00 for the airfare.
I consider Na Yu's evidence to be credible.

[120]

An IOU is a written acknowledgement that a debt is owed. It derives from the statement "I owe you". There is no issue in this case as to whether the IOU signed by Wen Tao Wei on 5 July 2012 is a negotiable instrument.
In Thomas v Hollier[15] the High Court considered an IOU. NJ Management Pty Ltd had contracted to sell its retail business to IBGY Pty Ltd. Mr Hollier was a director of NJ, and Mr Thomas was a director of IBGY. They had been friends. There were provisions in the contract about IBGY buying stock up to $43,000.00. Excess stock was an issue: IBGY could not afford more than $43,000.00 but did not want the excess stock to be taken from the shop because it would look bad, and NJ did not want to end up with the excess stock, which would be of no use once it sold the business. It was agreed that the excess stock (after some adjustments) was worth $48,296.71 and that IBGY's liability to pay for excess stock would be deferred, interest free for 4 months.
When Mr Hollier's bank pressed him for repayment of a bank loan, Mr Thomas personally gave Mr Hollier an IOU for $48,296.71, payable on demand. Only $1,000.00 was paid to NJ, and eventually Mr Hollier sued Mr Thomas on the IOU. He won at trial, and on appeal. Mr Thomas appealed to the High Court.
The trial Court found the IOU to be a contract. To be a contract, an agreement must have "consideration", meaning the passing of value from one party to the other, and the trial Judge held that the consideration was that Mr Thomas's acquisition of personal liability was in return for the release of IBGY from its obligation. The Judges of the Court of Appeal dismissed Mr Thomas's appeal, for different reasons. In the High Court, the issue was whether there was "consideration" for the IOU: without it, the IOU would not be binding on Mr Thomas.
The majority allowed Mr Thomas's appeal. In their joint judgment Mason & Wilson JJ found that there was no consideration. First, IBGY was not bound to buy the excess stock; it could not be 'released' from an obligation it did not have; and so that 'release' could not be consideration for the IOU. Secondly, there was no evidence of an express agreement that in return for the IOU, IBGY was released.
Brennan J said that the IOU was the only evidence tending to show that Mr Thomas became indebted to Mr Hollier for $48,296.71 which, as Mr Hollier admitted, was the sum which IBGY owed to NJ. Brennan J said the question was whether Mr Thomas in fact owed Mr Hollier $48,296.71 when the IOU was given. Although the IOU purports to acknowledge such a debt, Mr Hollier had no cause of action if there was in truth no such debt owed to him by Mr Thomas. The IOU did not itself create a debt for which Mr Thomas could be sued. An IOU is some evidence of liability, it is not conclusive evidence. If, on the whole of the evidence, a defendant who has given an IOU is shown not to be liable to the plaintiff on an account stated or for a debt, the plaintiff fails. Brennan J found on the evidence that Mr Thomas was not liable to Mr Hollier when the IOU was given.
Consideration for the creation of that debt could not be found in a discharge of IBGY's liability to NJ. The fact that the $1,000.00 had been paid to NJ, and not to Mr Hollier (who did not object) showed that NJ had not given a release.
The success in the appeal meant that Mr Thomas was not held to be liable on the IOU.

[121]

It follows from Thomas v Hollier that in the current case the mere signing by Wen Tao Wei of the 5 July 2012 IOU did not create a debt to Mr Wei and Mrs Xia. It could only amount to evidence of a liability he already had. Even though Mr Wei and Mrs Xia are self represented, they said that they wanted the IOU as "proof" and it seems that their reasoning was consistent with that of the High Court, whether or not they understood that at the time.
Mr Wei and Mrs Xia have the burden of proof and they have not proven that Na Yu borrowed $60,000.00:
- (a) Wen Tao Wei signed the IOU for $38,000.00, but denies having borrowed the $60,000.00. Wen Tao Wei read the IOU before signing it. Wen Tao Wei accepts that his 2010 IOUs evidence a debt, but he disclaimed the July 2012 IOU. Wen Tao Wei has an incentive to say that Na Yu borrowed the $60,000.00, because he has been unable to pay the $87,250.00 which was the subject of not only his previous IOUs but a consent Order, and he knows that Na Yu has wealthy parents. Wen Tao Wei gave no evidence as to how the money needed for settlement was to be raised. I do not consider Wen Tao Wei to be a credible witness. I do not accept his denial of having borrowed the money.
- (b) Mr Luo gave evidence in the August 2014 hearing that he was present when Wen Tao Wei persuaded his parents to lend him $60,000.00, and I have found that Mr Luo's evidence of August 2014 is to be preferred to his misguided and false evidence before me to the contrary.
- (c) Mrs Xia says she lent $60,000.00 to Na Yu, which she and Mr Wei themselves had to borrow, but that at the time of the alleged loan she saw Wen Tao Wei as becoming an owner of the apartments (after settlement) and she drafted the IOU which expressly calls Wen Tao Wei the "Borrower", and refers to Na Yu's "account" but does not call her a "borrower". Mrs Xia also gave evidence that when Wen Tao Wei told her he intended to nominate Na Yu as purchaser, she had said words to the effect, "If you swap the name don't come to us for help", and I take the word "help" in this context to refer to financial assistance. As such the statement is inconsistent with Mrs Xia lending Na Yu $60,000.00 after the nomination. The fact that Mrs Xia and Mr Wei had to borrow $60,000.00 from Wen Tai Wei, strongly suggests that Mrs Xia would require borrower from her to sign a loan agreement or acknowledgement of some kind. The amount is so great that I cannot accept Mrs Xia's evidence that she could not ask Na Yu to sign a document if the loan was made. The absence of a document supports the view that Na Yu did not borrow $60,000.00.
- (d) In her written statement and oral evidence, Wen Tai Wei did not say that Mrs Xia said that Na Yu was "borrowing" money when Mrs Xia sought the $60,000.00. Wen Tai Wei is a somewhat independent witness and this part of her evidence is significant.
- (e) Mr Wei was not present when it is alleged that Na Yu asked for a loan of $60,000.00 and his sincere belief that this occurred, and his belief that Na Yu is evil, does not make it true. Mr Wei is so passionate in his hatred of Na Yu that his credibility is affected. His denial of having interrupted Mr Luo in the 2014 hearing, in the face of a transcript and a recording which showed that he did precisely that, shows his lack of objectivity in this matter. His interruption of Mrs Xia's evidence in the hearing before me does the same. Mr Wei's delivery of his evidence / submission suggested that he had memorised a story. To the extent that he purported to give evidence of what other people had done, it was not evidence at all. To the extent that he gave evidence of his own activities, I cannot believe him. The fact that Mr Wei and Mrs Xia sued Na Yu for the $87,250.00, which they had lent Wen Tao Wei before he had even met her, is very damaging to their credit.
- (f) Na Yu denied having borrowed the $60,000.00. While it could be said that she has an incentive to deny having borrowed the money, one must look at all the facts in context. By May 2012 Na Yu had left her job, had a young baby and a drug addicted dysfunctional husband. She had been nominated as purchaser, when Wen Tao Wei was being pressed by creditors and contemplating bankruptcy. Wen Tao Wei gave no evidence as to how the money needed for settlement was to be raised, if he did not borrow it. That the $60,000.00 was deposited in her bank account is consistent with her being a nominee or stakeholder in respect of Wen Tao Wei's borrowing. Na Yu's payment of $22,000.00 on instruction from Wen Tao Wei is also consistent with being a nominee. Na Yu has not been unjustly enriched by being nominated as purchaser: she was left with the task of obtaining bank finance before the settlement, and has had to support herself and the child since. The $60,000.00 was borrowed before the separation. It was after the separation on 17 June 2012, which Na Yu says occurred after Wen Tao Wei had been bailed on a criminal charge and after he assaulted her, that she ceased to regard Wen Tao Wei as having an interest in the apartments. Given the powers of the Family Court to adjust property interests, there is nothing remarkable in her taking this view.
- (g) The draft contract of February - March 2013 does not operate as a contract because it was not executed. That it provided for Mr Wei and Mrs Xia releasing Na Yu is not evidence of an admission that Na Yu had borrowed the $60,000.00 / $38,000.00. If - which has not been proven - Na Yu instructed Fong & Co to draft the contract it would seem to have been after Na Yu obtained the intervention order against Wen Tao Wei in the contested hearing, in which it is apparent Mr Wei considers Na Yu to have given false evidence. It would be understandable that Na Yu would want a release after having a serious falling out with Mr Wei. In any event, Na Yu denied that she had instructed Fong & Co to draft the contract.

Wei v Yu

At a glance

Court

Decision date

Source

Judgment (137 paragraphs)

Wei v Yu (Civil Claims) [2016] VCAT 1666 (29 September 2016)

Parties

Legislation Cited (1)

Cases Cited (1)