Yin v Li; Li v Jiang

2018 proceeding

1. There have been several iterations of the pleadings in the 2018 proceeding. The most recent iterations are Ms Yin's Further Amended Statement of Claim dated 26 September 2019 and Mr Li's Further Amended Defence filed on 9 October 2019.
2. It is common ground that, in or about October 2015, Mr Li (as vendor) and Ms Jiang (as purchaser) entered into an oral agreement for the sale of the Property.
3. It is also common ground that Mr Li's title to the Property was subject to a registered mortgage in favour of National Australia Bank (NAB).
4. Ms Yin pleads that it was an express term of the oral sale agreement made in or about October 2015 that the price payable for the sale of the Property was $1,070,000.
5. In his "Defence to Amended Statement of Claim" filed on 18 July 2019 (being the iteration of his pleading that immediately preceded the Further Amended Defence), Mr Li pleaded that: "… the consideration for the sale of the property is at least AUD$1,070,000."
6. In his Further Amended Defence (being his defence at the time of the final hearing) Mr Li admits that $1,070,000 is the consideration stated in the registered transfer of the Property to Ms Jiang dated 1 March 2016 but pleads that (emphasis added): "the consideration agreed to be paid per the sale contract as between [Mr Li] and the purchaser Ruochen Jiang was in fact the sum of $1,150,000 (Purchase Price Term) and not the sum of $1,070,000 and [Mr Li] denies that the signature on the Transfer is his signature."
7. Mr Li provides the following "Particulars of Purchase Price Term": "a. Particulars of Purchase Price Term i. The Purchase Price Term:- 1. was express; 2. consisted of oral mobile phone/oral 'we chat' mobile phone conversations between the Defendant and purchaser whereby the Defendant and purchaser negotiated the sum of $1,150.000.00 as being the price the Defendant agreed to accept and the purchaser agreed to pay for the Property."
8. It is common ground that Ms Yin paid the sum of $95,000 into a NAB account in Mr Li's name on 29 February 2016.
9. Ms Yin claims that the $95,000 payment was a loan that she made to Mr Li pursuant to an oral loan agreement that she entered into with Mr Li on 27 February 2016. Ms Yin alleges that it was an implied term of the oral loan agreement that Mr Li would repay the loan within a reasonable time.
10. Ms Yin alleges that Mr Li has failed to repay the loan despite several requests for repayment.
11. Ms Yin seeks an order that Mr Li pay her the sum of $95,000, either as damages for breach of the alleged oral loan agreement or as money had and received. Ms Yin also seeks pre-judgment interest on the sum of $95,000 pursuant to s 100 of the Civil Procedure Act 2005.
12. Mr Li pleads that the $95,000 payment was not a loan but was a partial payment of the price payable by Ms Jiang for the transfer of the Property under the oral sale agreement referred to above.
13. Mr Li further pleads that, by Ms Yin's payment of the $95,000 into his NAB account on the date that completion of the sale of the Property was due to take place, Ms Yin represented to Mr Li that she was authorised to make the payment of $95,000 on behalf of Ms Jiang towards the purchase price for the Property. Mr Li pleads that the representation was partly express and partly implied. The matters relied on by Mr Li in support of the alleged implied representation include the following (emphasis added): "8. The Plaintiff was the mother of the purchaser; 9. The Defendant made known to the purchaser in an oral conversation with the purchaser on or about 29 February 2016 that the funds to be paid over on completion by the purchaser must exceed $920,350.00 for completion to take place given the purchase price was $1,150,000.00; 10. The Defendant received into his bank account on or about 29 February 2016, being the day scheduled for completion, the sum of $95,000.00 from the Plaintiff; 11. Subsequently the completion date was changed to 1 March 2016 and the payout figure confirmed at $760,000.00"
14. Mr Li pleads that Ms Yin is estopped from departing from the alleged representation.
15. Mr Li denies that he has been unjustly enriched by the payment of $95,000 and denies that he is liable to make restitution to Ms Yin.
16. In the alternative, if the Court finds that there was an oral loan agreement between Mr Li and Ms Yin, Mr Li pleads that the loan agreement is void for uncertainty.

2020 proceeding

1. The 2020 proceeding was commenced by summons filed on 24 March 2020. An amended summons was filed on 20 April 2020 removing a claim for an order extending a caveat and seeking instead an order granting leave to Mr Li to lodge a further caveat. There was subsequently a direction that the matter proceed by way of pleadings and the first iteration of Mr Li's statement of claim was filed on 23 September 2020. The present iteration of Mr Li's pleading is the further amended statement of claim that was filed in court without objection on the first day of the final hearing on 10 October 2022.
2. Mr Li pleads that his command of the English language was poor at all times relevant to these proceedings.
3. Mr Li pleads that, during his October 2015 negotiations with Ms Jiang concerning the sale of the Property, Ms Jiang represented to him that she would pay $1,500,000 for the Property and its contents, that there was no need to involve a real estate agent or prepare a contract and that Ms Jiang would arrange for one solicitor to act for both Mr Li and herself in relation to the transaction.
4. Mr Li pleads that, during further conversations with Ms Jiang in or about early 2016, Ms Jiang represented to him that: 1. her bank valued the Property at $1,180,000 and that she could only borrow 80 per cent of that valuation to purchase the Property; 2. that she would borrow additional funds of $95,000 from her mother (Ms Yin) to pay part of the purchase price, but that Mr Li was to tell Ms Yin if asked about the $95,000 payment that it was a loan by Ms Yin to Mr Li; 3. that she needed Mr Li to lend her $40,000 to pay the stamp duty that would be payable on the transfer of the Property to her; and 4. that she would repay the balance of the purchase price plus the stamp duty money on demand after the Property had been transferred to her.
5. Mr Li pleads that he lent Ms Jiang $40,000 for stamp duty in reliance on those representations.
6. As noted above, there is no dispute that Mr Li received the sum of $95,000 that was paid into his bank account by Ms Yin on or about 29 February 2016. Mr Li contends that this was a payment of part of the purchase price for the Property. Ms Yin contends that it was a loan to Mr Li.
7. Mr Li pleads that, on about 26 February 2016, Ms Jiang registered a transfer of the Property which bears a signature that purports to be his signature as transferor and which specifies the transfer price as $1,070,000. The transfer was in fact registered on or about 1 March 2016 as dealing AK270647J (the Transfer). Mr Li claims that the transferor's signature appearing on the Transfer is not his signature and was not made with his authority. Mr Li pleads that he did not, and has not ever, agreed to transfer the Property and its contents for less than $1,500,000.
8. Mr Li pleads that, in further conversations with Ms Jiang shortly before 26 March 2016, she represented to him that the Property had been transferred to her on the terms they had agreed during their October 2015 negotiations and that Mr Li should move out of the Property. Mr Li pleads that, in reliance on all of Ms Jiang's representations referred to at [28]-[29] and [32] above, he relinquished possession of the Property and its contents to Ms Jiang without demanding at that time payment of the balance of the purchase price or repayment of the $40,000 in respect of the stamp duty.
9. Mr Li alleges that the terms of the oral agreement that he made with Ms Jiang during the discussions in October 2015, early 2016 and March 2016 referred to above were that: 1. Ms Jiang would pay Mr Li the sum of $1,500,000 for the Property by: 1. paying the sum of $944,000 to Mr Li (being the amount that Ms Jiang was able to borrow from her bank for the purchase); 2. borrowing a further $95,000 from Ms Yin and causing Ms Yin to pay that amount to Mr Li; and 3. paying the balance of the $1,500,000, plus the $40,000 borrowed from Mr Li for stamp duty, after completion of the Transfer of the Property on demand by Mr Li; 1. Ms Jiang would arrange a solicitor to act for her and Mr Li in relation to the sale of the Property; 2. Mr Li would relinquish title and possession of the Property to Ms Jiang upon receiving at least $999,000 of the purchase price; and 3. Ms Jiang would take title and possession of the Property after Mr Li relinquished title and possession.
10. Mr Li alleges that Ms Jiang has paid the sum of $760,000 towards the purchase of the Property and its contents, in addition to the $95,000 payment made by Ms Yin. Mr Li pleads that, after setting off the $40,000 stamp duty loan, the net total amount paid by Ms Jiang to date for the Property and its contents is $815,000. Mr Li contends that $685,000 of the $1,500,000 purchase price remains outstanding.
11. A curious feature of Mr Li's pleaded case is that he does not claim to have issued any demand to Ms Jiang prior to the commencement of the 2020 proceeding for payment of the $685,000 that he says has been owing to him for the balance of the purchase price ever since he relinquished possession of the Property in March 2016.
12. The allegations now pleaded by Mr Li that the purchase price was $1,500,000 of which $685,000 remains unpaid are inconsistent with Mr Li's amended summons filed in the 2020 proceeding on 20 April 2020. That amended summons sought a declaration that Mr Li had an equitable charge by way of vendor's lien to secure payment of an amount of $335,000 said to be owing to him under a contract made on or about 1 October 2015 for the sale of the Property to Ms Jiang. Mr Li's allegation that he is owed the sum of $685,000 and his allegation that Ms Jiang represented that she would purchase the Property for $1,500,000 emerged for the first time in Mr Li's statement of claim filed on 23 September 2020. Mr Li's allegation that he entered into an oral agreement with Ms Jiang to sell the Property to her a price of $1,500,000 emerged for the first time in Mr Li's amended statement of claim filed on 9 November 2020.
13. There is no signed written note of the oral contract that Mr Li claims to have entered into. The Transfer does not reflect the price that Mr Li says was agreed under that oral contract and he claims that his signature on the Transfer was forged. Mr Li does not rely on the alleged forgery to impugn the indefeasibility of Ms Jiang's registered title to the Property. Rather, Mr Li seeks to overcome s 54A of the Conveyancing Act 1919 (NSW) by relying on what he describes as his relinquishing of title and possession of the Property as part performance of the oral contract that he alleges was entered into.
14. Mr Li does not claim an order that Ms Jiang specifically perform the alleged oral contract by paying him the $685,000 of the purchase price that Mr Li contends is outstanding. Rather, Mr Li seeks a declaration that he has an equitable charge over the Property securing the amount of $685,000. [1] Mr Li contends that a charge "arises by operation of law and/or equity as a vendor's lien for the unpaid moneys of the purchase price".
15. Mr Li does not seek an order in these proceedings to enforce the alleged equitable charge by an order for judicial sale of the Property: Sood v Christianos [2] ; King Investment Solutions Pty Ltd v Hussain. [3] Mr Li's pleaded application for an order appointing trustees for the sale of the Property pursuant to s 66G of the Conveyancing Act 1919 (NSW) was not pressed at final hearing. In any event, that pleaded claim for relief was misconceived because the Property is not held in co-ownership even if Mr Li is an equitable chargee: see Thorn (as executrix of the estate of the late Betty McAuley v Boyd. [4]
16. Mr Li alleges that Ms Jiang's conduct described above was "in all the circumstances, unconscionable." In oral submissions on the first day of the final hearing, counsel for Mr Li clarified that Mr Li alleges that his poor command of the English language was a "special disadvantage" that he suffered vis-à-vis Ms Jiang. If the Court does not find that Mr Li's signature on the Transfer was forged, then Mr Li contends that the Court should find that Ms Jiang took advantage of his "special disadvantage", by placing the English language Transfer before him for execution with a price of $1,070,000 that was lower than the $1,500,000 price that Mr Li claims (in the 2020 proceeding) to have agreed with Ms Jiang. In support of that contention, Mr Li relies on his allegation that their relationship involved Mr Li placing a high level of trust and confidence in Ms Jiang in respect of his personal and business affairs.
17. Mr Li claims that the transfer of the Property to Ms Jiang is "voidable in equity" by reason of the alleged unconscionability. However, Mr Li does not seek to set aside the transfer. Rather, in the alternative to the claims for relief referred to at [38] and [40] above, Mr Li claims a declaration that the Property is held on constructive trust for him "to the amount of $685,000" or equitable compensation in the amount of $685,000. At the final hearing, Mr Li abandoned his pleaded claim for an order under s 66G of the Conveyancing Act if a constructive trust is declared and submitted that the appropriate remedy in respect of the alleged unconscionability would be "compensation for the shortfall secured by a charge". [5]
18. Mr Li pleads that Ms Jiang is estopped from denying that she owes $685,000 to Mr Li for the balance of the purchase price and the stamp duty loan. Mr Li relies on this estoppel as a further, alternative basis for an order for equitable compensation in the amount of $685,000.
19. Counsel for Mr Li made no submissions in support of his pleaded claim for an order that "Transfer entitled AK270647J is to be rectified". The claim for relief is therefore taken to be abandoned, as I indicated to counsel for Mr Li at the end of his closing submissions.
20. Finally, Mr Li claims a declaration that the payment of $95,000 made by Ms Yin to Mr Li was in part payment of the purchase price for the Property on behalf of Ms Jiang and was not a loan to Mr Li.
21. Ms Jiang and Ms Yin deny that Mr Li is entitled to any of the relief claimed in the 2020 proceeding.
22. Ms Jiang admits that she negotiated with Mr Li for the sale of the Property to her in October 2015 but denies making the representations alleged by Mr Li during those negotiations or during their subsequent conversations. In particular, Ms Jiang denies agreeing to pay $1,500,000 for the Property and claims that she agreed to pay $1,070,000. Ms Jiang denies entering into any agreement to purchase the contents of the Property. Ms Jiang denies making the representations alleged by Mr Li about how she would fund the balance of the purchase price and denies borrowing $40,000 from Mr Li for stamp duty.
23. Ms Jiang pleads that the sale of the Property to her was settled on 1 March 2016 and that her lender (being the incoming mortgagee) registered the Transfer, together with the discharge of Mr Li's mortgage and the new mortgage entered into by Ms Jiang, on 7 March 2016.
24. Ms Jiang denies Mr Li's allegations that the signature of the transferor on the Transfer is a forgery.
25. Ms Jiang accepts that, if the Court finds that part of the purchase price for the Property remains owing by her to Mr Li, then Mr Li has a vendor's lien over the Property for that amount found to be owing and the Court should make a declaration to the effect that Mr Li has an equitable charge over the Property to secure that amount. [6] However, Ms Jiang denies that she owes Mr Li $685,000, or any amount of the purchase price for the Property. Ms Jiang pleads that she has paid the agreed price for the Property (being $1,070,000) and that Mr Li surrendered possession of the Property to her on receipt of that price.
26. Ms Jiang denies the allegations of unconscionable conduct.
27. In her defence filed in the 2020 proceeding, Ms Yin maintains that the $95,000 payment was a loan made by her to Mr Li.
28. Ms Jiang has filed a cross-claim against Mr Li in the 2020 proceeding claiming damages for Mr Li's failure to repay a sum of $159,700 plus interest allegedly owing pursuant to an oral loan agreement made between them in or about December 2015. Mr Li denies the alleged loan.

Fundamental inconsistencies within Mr Li's pleaded defences and claims

1. It is convenient to note the following inconsistencies, to which it will be necessary to return later in these reasons.
2. The case ultimately leaded by Mr Li in the 2020 proceeding that he entered into an agreement to sell the Property to Ms Jiang on terms that she would pay a purchase price of $1,500,000 for the Property and its contents is fundamentally inconsistent with his pleaded defence in the 2018 proceeding that the agreement was for the sale of the Property and the price was $1,150,000.
3. The figure of $1,150,000 pleaded in the 2018 proceeding is no mere typographical error. It appears throughout Mr Li's Further Amended Defence. It also appears in two statements that he made for the 2018 proceedings on 18 February 2020 and 20 April 2020. Those statements were prepared after Mr Li's solicitor, Ms Shelly Sun of Pancific Legal, interviewed Mr Li. The interview was conducted in the Mandarin language. In each of those statements, Mr Li stated that he had ultimately agreed a purchase price of $1,150,000 for the Property with Ms Li after valuations were obtained. Those statements, which were tendered by Ms Jiang at the hearing, are referred to in more detail below. [7]

Introductory observations

1. The following section of these reasons summarises the evidence in chronological order, drawing on: 1. the affidavit of Mr Li sworn on 4 March 2021, Mr Li's two affidavits sworn on 8 March 2021 and Mr Li's affidavit sworn on 26 November 2021, each of which was read at the final hearing; 2. the witness statements of Ms Jiang dated 16 January 2020, 17 February 2020 and 19 March 2020 that were made for the 2018 proceeding and tendered at the final hearing of the 2018 and 2020 proceedings and the affidavits of Ms Jiang 9 April 2021, 28 April 2021, 16 September 2021, 23 December 2021 and 6 October 2021; [8] 3. the witness statements of Ms Yin dated 16 January 2020 and 19 March 2020 that were made for the 2018 proceeding and tendered at the final hearing of the 2018 and 2020 proceedings and the affidavit of Ms Yin affirmed on 26 March 2021; 4. the affidavits of Mr Wen Tao Lu (also known as Nathan Lu) sworn on 17 January 2020 and 18 March 2020 that were read by Ms Yin; 5. evidence given by witnesses in cross-examination; 6. a report of Ms Melanie Holt, forensic document examiner, tendered by the parties; and 7. other documents tendered by the parties. My assessment of the credibility of each witness and my findings of face are included in the section of these reasons entitled "Consideration and determination" commencing at [239] below.
2. Mr Li gave evidence that his command of written and spoken English is poor. [9] He gave evidence at the final hearing through an interpreter.
3. Ms Jiang has lived in Australia since 2001 and became an Australian citizen in 2009. She graduated from Macquarie University with a Bachelor of Applied Finance in 2012 and a Master of Applied Finance in 2016. All of the course work for her two degrees was in English and Ms Jiang did all of that work herself and achieved a credit average for both degrees. Ms Jiang described herself as having a reasonably high level of fluency in spoken and written English. In 2017 and 2018, Ms Jiang worked for an ASX-listed funds management company where part of her role was to write performance reports in English. Although Ms Jiang said in cross-examination that her job involved "mostly Excel work, not a lot of writing", she agreed without hesitation that she communicated with her colleagues in English and that the reports that she prepared together with other members of her team contained analysis written in English and she would typically be responsible for parts of those reports. [10] Ms Jiang gave evidence under cross-examination without requiring the assistance of an interpreter, although an interpreter had been arranged for her in case she should need it for part of her evidence.
4. Ms Yin gave evidence without an interpreter.

Background matters: Relationship between Mr Li and Ms Jiang prior to October 2015 and the college operated by Vin International Pty Ltd

1. It is common ground that Mr Li and Ms Jiang first met in Australia in 2012. [11]
2. From mid-late 2014, Mr Li and Ms Jiang were associated with the establishment and operation of an educational college in Australia.
3. Vin International Pty Ltd was registered on 10 October 2014 for the purpose of establishing and operating the college (Vin International).
4. According to Ms Jiang, Mr Li invited her to join and invest in Vin International. Ms Jiang gave evidence that Mr Li offered her the position of Chief Executive Officer of Vin International and that she was employed in that role from June 2014 to July 2017. [12] Mr Li gave evidence that it was Ms Jiang who suggested that she be appointed as Chief Executive Officer and that she commenced on 10 October 2014 and concluded in October 2017. [13] It is not necessary to resolve these disputes for the purpose of these proceedings. It is likely that Ms Jiang is mistaken about the timing of her appointment as Chief Executive Officer because it is improbable that she was appointed to that role in June 2014 before the company was even established.
5. According to Australian Securities and Investments Commission (ASIC) records tendered at the hearing, Mr Li was the sole director of the company when it was registered on 10 October 2014 and a Mr Yunxiang Cao became a director on 1 April 2015. [14]
6. Australian Skills Quality Authority (ASQA) records tendered at the hearing establish that Vin International was registered as a NVR Registered Training Organisation (RTO) under the National Vocational Education and Training Regulator Act 2011 (Cth) on 24 December 2015. [15]
7. On 8 January 2016, Mr Li ceased to be a director and Ms Jiang was appointed as a director of Vin International.
8. Mr Cao, Mr Li and Ms Jiang were shareholders in Vin International. Ms Jiang gave evidence that her shares were transferred to her after the company was registered as a RTO. [16]
9. There is a dispute between the parties about whether Mr Li or Mr Cao funded Vin International's acquisition of the premises from which the college operated and funded other business expenses of the college. Nothing turns on that in these proceedings.
10. The college encountered problems with ASQA in about August 2017. I do not find it necessary to resolve the disputes between the parties about the nature or causes of those problems. The problems resulted in Ms Jiang being dismissed from her role as Chief Executive Officer. According to ASIC records, Ms Jiang ceased to be a director of Vin International on 11 October 2017. Mr Li was re-appointed as a director of Vin International on 10 August 2017. Mr Cao remained a director throughout. [17]
11. The registration of Vin International as a RTO was cancelled on 27 March 2019 with effect from 22 August 2019. [18]
12. Mr Li gave evidence that his relationship with Ms Jiang ceased in about November 2017 and they have had only limited communications since that time. [19]
13. Mr Li gave evidence that, in the period between 2012 and November 2017, he had a very close relationship with Ms Jiang and that he regarded her as his confidant and came to depend and rely on her to manage many of his personal and business activities due to her command of English. [20] Mr Li gave evidence that he put a great deal of trust in Ms Jiang during the period in which she was the CEO of Vin International and was very impressed with her performance in that role. Mr Li gave evidence that, when asked by Ms Jiang to sign documents in English, he would do so without reading them because he trusted her and because he would not have understood most of the contents of the documents in any event. Mr Li gave evidence that he was "dazzled" by Ms Jiang's "ability to organise resources" and "for that reason, my trust and reliance became blind, and I started to allow her to manage my personal issues." [21]
14. Mr Li also gave the following evidence: [22] "[Ms Jiang] was also entrusted with many arrangements in my personal life especially where English is required or involved. For example, [Ms Jiang] arranged for my purchase of a caravan and renovations at my home in Haymarket. [Ms Jiang] and I had an arrangement where she would be responsible for all matters, she would then tell me where to make fund transfer or payment and I would make the relevant payment. I am aware that [Ms Jiang] knew of my bank account details due to her ongoing and continuous dealings with me and her making arrangements for me in my personal life."
15. Whatever difficulties Mr Li may have had with the English language at the time of the events in 2015 and 2016 that have given rise to these proceedings, he had no difficulty in reading numerals in English. [23]
16. Ms Jiang gave evidence that she regarded herself as a business associate and friend of Mr Li, but nothing more. [24] It was put to Ms Jiang in cross-examination, and she agreed, that she trusted Mr Li until the end of 2016 and that she understood that Mr Li trusted her "because we are colleagues for - in the same business". [25]
17. Ms Jiang denied ever managing Mr Li's personal affairs. [26] Ms Jiang gave evidence in cross-examination to the effect that she had some involvement in the purchase of the caravan because she understood that it was being purchased for the purpose of the college and, as the Chief Executive Officer of Vin International, it was her job help with this purchase for the college. [27]
18. Ms Jiang did not regard herself as having a far superior ability in English compared to Mr Li. She did not know Mr Li's fluency in written English, but she heard him conversing with Australian friends in English from time to time. Within the Chinese community, they always spoke in Mandarin. [28]
19. There is a dispute between Mr Li and Ms Jiang about whether they were in a romantic relationship and whether Ms Jiang lived together with Mr Li for a period of about four months from the end of 2013. I do not find it necessary to resolve that dispute for the purpose of determining the issues raised by these proceedings.

Background matters: Mr Li's purchase of the Property and refinancing in 2015

1. Mr Li purchased the Property in 2012 for approximately $700,000 with a loan from Bank of China that was secured by mortgage against the Property. Ms Sun of Pancific Legal acted for Mr Li on the purchase of the Property. In about March 2015, Mr Li refinanced by borrowing $920,000 from National Australia Bank (NAB) that was secured by mortgage against the Property. Mr Li paid interest only on that loan and the principal amount secured by the mortgage remained at $920,000 at all times until settlement of the transfer of the Property to Ms Jiang on 1 March 2016. [29]
2. In about July 2015, Mr Li purchased another property at 3507 Liverpool Street, Sydney. Ms Sun also acted for him in relation to that purchase. [30]

October 2015

1. Mr Li gave evidence to the effect that he decided in about early October 2015 to sell the Property with a view to buying a home in Hunters Hill. In his affidavit sworn on 4 March 2021, Mr Li deposed that he had a conversation with Ms Jiang in about mid-October 2015 in which he told her of his intentions and asked her to arrange a real estate agent to sell the Property. Ms Jiang agreed to do so. However, a few days after that initial conversation, they had a further conversation to the following effect: [31] "[Ms Jiang]: 'Do you want to sell the property to me? If you sell it to me, we do not need a contract, or an agent and it will be a quicker transaction. You can reduce the legal costs and there will be no commission to an agency' [Mr Li]: 'What price would you like to purchase the property?'

[Ms Jiang]: '$1.5 million but if I buy it for this amount, I want you to include all of the items currently in the house including furniture and paintings as it has good feng shui. I think the property will bring me a lot of luck like it has brought luck to you.' [Mr Li]: 'Ok. My solicitor is Shelly Sun from Pancific Legal.'"

1. Mr Li's evidence of his initial conversation with Ms Jiang concerning the Property is irreconcilable with statements that he prepared and signed for the 2018 proceedings on 18 February and 20 April 2020. Mr Li did not tender those statements at the final hearing, but Ms Jiang did tender them. In his statement dated 18 February 2020, Mr Li stated: [32] "In or around later 2015, I had an informal meeting with Ruochen Jiang, where we discussed Ruochen Jiang potentially purchasing the property from me. I was intending to get married and wanted to sell the property to help finance the purchase of a new property at Hunter's Hill, where I wanted to live as a married man with my wife. At around this time, Ruochen Jiang and I had a conversation in words to the following effect: - [Mr Li]: 'As you know, I have purchased a new property at Hunters Hill as the future matrimonial home with my fiancé. I am planning to sell my current apartment. Are you interested in buying my current home at 381?' Ruochen Jiang: 'I am definitely interested in it but I will need to check with my bank about my borrowing capacity first. What is the selling price?' [Mr Li]: 'I am not sure about the market value of my property. Can you find out the valuation from the bank and we can add some on top of the bank's valuation to settle our sale price. You know, bank's valuation is usually lower than the actual market price.' Ruochen Jiang: 'Okay.' We had further conversations about the sale price that Ruochen Jiang would buy the property from me, and at one stage the figure of $1.5 million was discussed between us."
2. In his statement dated 18 February 2020, Mr Li also described a subsequent conversation that he says he had with Ms Jiang in January 2016 in which she asked to renegotiate the price because her bank had valued the Property at $1.18 million and would only lend her up to 80 per cent of that amount. Mr Li stated that he told Ms Jiang: "If this is the case, I will sell the property to you at $1.15 million and nothing less". According to Mr Li's 18 February 2020 statement, Ms Jiang agreed with that price. [33]
3. In his 20 April 2020 statement that Ms Jiang tendered at the final hearing, Mr Li stated that "the final agreed price is $1.15m and I have never agreed to sell the property for less that [sic] this figure". [34]
4. In cross-examination, Mr Li agreed that he had said to Ms Jiang during their initial conversation that he did not know what the market value of the Property was. That is consistent with Mr Li's 18 February 2020 statement referred to at [83] above and inconsistent with his 4 March 2021 affidavit referred to at [82] above. However, Mr Li denied in cross-examination that he told Ms Jiang during their initial conversation that he would sell the Property to her for fair market value. Mr Li maintained that Ms Jiang offered a price of $1,500,000 in their initial conversation. [35]
5. According to Mr Li, he had a further conversation with Ms Jiang a few days after their initial conversation referred to at [82]-[83] and [85]-[86] above in which Ms Jiang told him that Ms Sun would charge too much money and suggested that it might be quicker and cheaper to use one solicitor. Mr Li says that Ms Jiang asked him whether it would be okay to use her solicitor and Mr Li agreed and asked Ms Jiang to arrange all the paperwork because he was very busy planning his wedding at that time. Ms Jiang told Mr Li that she was yet to speak to her bank about a loan for her to purchase the Property. [36] Mr Li gave evidence that he had always left "paperwork related matters" to Ms Jiang because "I have always been dependent on her in regards to that. My English further prevented me from being able to understand sufficiently the contents which may be in the relevant documents in any event." [37]
6. Mr Li gave evidence that he did not instruct a solicitor to act for him in relation to the sale of the Property because of his long-standing professional relationship with Ms Jiang and because he trusted her with his personal and business affairs. According to Mr Li, he allowed Ms Jiang to "arrange all necessary processes for the Haymarket property to be sold to her" and did not ask her for further information "as I trusted her and I believed that the sale would be finalised because we had agreed on the price" and because he believed that Ms Jiang "would voluntarily raise any relevant issue with me if they arose". [38]
7. Ms Jiang gave a different account of her conversations with Mr Li in early-mid October 2015 in her witness statements and affidavits. According to Ms Jiang, she had a conversation with Mr Li in early October 2015 to the following effect: [39] "Tao Li: 'I want to buy a new house, an expensive one, as I want to move my mother to Australia from China to live with me and I want to marry my girlfriend. I am selling a home unit in the City to help me buy the house. I have an agent already.' Ruochen: 'That's a coincidence. I am interested in buying a unit in the City so I can be close to work. Yours is a good one. Maybe you can get your agent to send me a contract.' Tao Li: 'No problem. I will sell it to you at a fair valuation price because of our friendship.' Ruochen: 'Okay, I will wait for the contract.'"
8. In cross-examination about her initial conversation with Mr Li concerning the Property, Ms Jiang denied that Mr Li agreed to sell the Property to her for $1,500,000 and maintained that "we only talk about sell at valuation price, never talk about any prices". [40] Ms Jiang gave the following further evidence about this in cross-examination: [41] "Q. And is it your evidence that there was discussion, and the agreement was, I will sell you this property on a market valuation, is that what you're saying? A. That's what he said, that's what Tao Li said, yeah. Q. So, Mr Li told you, I will sell this property to you on the basis of a market valuation, is that what you're saying? A. Well, with a fair market valuation price."
9. According to Ms Jiang, she contacted Mr Li again when she had not received a contract a few days after their conversation referred to above. Mr Li told her that a contract was yet to be prepared and said: "I don't know a good lawyer. Maybe you should find one." Ms Jiang told Mr Li that she would ask her accountant about a lawyer. Ms Jiang identified her accountant as Mr Bob Dong of HW Accounting & Taxation. She gave evidence that Mr Dong recommended Mr Nathan Lu of ABP Lawyers and also told her that it was possible to use a transfer document only without any contract and that this would be cheaper. Ms Jiang gave evidence that she then had a conversation with Mr Li to the following effect: [42] "Ruochen: 'I called my accountant and he referred me to a solicitor. He advised me we can proceed by way of a Transfer without a contract and we will need one solicitor.' Tao Li: 'That's ok.'"
10. Ms Jiang gave unchallenged evidence in cross-examination that, at the time, "I didn't realise what's the difference between a transfer and the contract, as he said so [referring to Mr Dong], I thought it's quite the same thing". [43]
11. Before setting out the evidence of Ms Jiang and Mr Lu concerning the instructions given by Ms Jiang to Mr Lu in October 2015, it is relevant to make the following observations about Mr Lu's evidence.
12. In his affidavit sworn on 17 January 2020, Mr Lu expressly described the nature of the evidence that he was able to give in relation to his involvement and the involvement of ABP Lawyers in the conveyancing transaction. Mr Lu deposed that, before swearing his affidavit, he had reviewed all of ABP Lawyer's business records in relation to Ms Jiang's purchase of the Property from Mr Li (which Mr Lu referred to as "the conveyancing matter"). Mr Lu then deposed that: [44] "In this Affidavit, wherever I have referred to specific documents, my evidence in respect of such documents is based on my personal knowledge unless indicated otherwise. In the latter case, my evidence is based on my information and belief, in which case the source of my information and basis of my belief consist of (i) relevant ABP business records and (ii) my inferences based on the ABP business records and (iii) my usual conveyancing practice."
13. In substance, the process by which Mr Lu describes having prepared his evidence that is not based on personal knowledge is a process of reconstruction that is not based on any recollection of relevant events and conversations but is derived solely from his review of business records and inferences drawn from those records informed by his usual conveyancing practice. Mr Lu does not describe what his usual conveyancing practice is.
14. In her witness statement dated 16 January 2020 and in her affidavit sworn on 9 April 2021, Ms Jiang gave evidence that she telephoned Mr Lu on or about 9 October 2015 and that, during that conversation, she "informed him that the purchase price would be determined after a valuation was obtained". Ms Jiang gave evidence that she requested Mr Lu to obtain a valuation. [45]
15. Mr Lu gave the following evidence in his 17 January 2020 affidavit, which he identified as falling into the reconstruction category referred to above: [46] "5. On or about 8 October 2015 Ruochen Jiang, also known as Kate Jiang, telephoned me and gave me instructions to act for her on the purchase of a property which was the subject of the conveyancing matter between her as purchaser and Tao Li, the Defendant, as vendor. Ruochen Jiang requested that the purchase proceed by way of a Transfer instead of a Contract because she and Tao Li the vendor had agreed that a Contract was not necessary. I asked Ruochen Jiang to send me the details of the property, the parties, the sale price and a Council rates notice. I advised her that a valuation would be necessary because it would be required by the Office of State Revenue at the time of stamping the Transfer due to there being no Contract. 6. On 9 October 2015 I received an e-mail from Ruochen Jiang, a copy of which is annexed and marked 'A, with the details requested and a copy rates notice."
16. The email referred to by Mr Lu was sent by Ms Jiang at 8.18am on 9 October 2015. The email attaches council rates notice for the Property and states: [47] "seller name Tao Li buyer name Ruochen Jiang price 1,500,000"
17. As I have already mentioned, Mr Lu described paragraphs 5 and 6 of his affidavit extracted above as being based on his review of business records, inferences drawn from them and his usual conveyancing practice. The 9 October 2015 email referred to immediately above is the only business record identified in Mr Lu's affidavit as having any relevance to his reconstructed account of his 8 October 2015 conversation with Ms Jiang in paragraph 5 of his affidavit.
18. Mr Lu gave the following evidence concerning the 8 October 2015 conversation in cross-examination: [48] "Q. You were contacted by Ms Jiang on about 8 October 2015. Do you remember that? A. Yes. Q. She called you on the telephone, correct? A. I believe so, yes. Q. When she called you, she told you that she was going to purchase a property, an apartment in the city, correct? A. I believe so, yes. Q. And she told you that she was going to purchase that property from a friend call Mr Li, correct? A. Yes. Q. She told you that she wanted the transaction to take place by way of a transfer without a contract for sale, correct? A. That's correct. Q. You told her that was possible in circumstances where the parties knew each other, correct? A. Yes. Q. She told you that the purchase price for that property was $1.5 million, correct? A. I think - yeah, she sent that in an email; I don't know whether it was part of the conversation. Q. Did you ask her to confirm her instructions by emailing you after the call? A. I would have, yes. Q. You then subsequently received an email from her that contained the details of the purchaser, her details? A. Yep, from my records, yep. Q. And the details of the property? A. Yes. Q. She sent you a council rates notice as well for it? A. That's right. Q. She told you that the price in that email was 1.5 million, correct? A. Yes. … Q. Ms Jiang certainly didn't tell you anything during that phone call about an agreement to purchase the property subject to a valuation being obtained, did she? A. I think I would have advised her that a valuation would be required for stamp duty purposes. Q, But before you advised her of that, she didn't tell you that she needed you to obtain a market valuation of the property, did she? A. Not to my recollection. … Q. If Ms Jiang had advised you that she had an agreement with Mr Li whereby the purchase price would be determined by an independent valuation, would you have advised her that that would be something that could be done by way of a transfer? A. Possibly. It depends on the circumstances. Q. But she didn't tell you anything about such an agreement when she spoke to you, did she? A. To do a valuation? Q. When she called you on 8 October 2015, she didn't tell you anything about an agreement where the purchase price was subject to an independent expert determining the purchase price, did she? A. I can't recall."
19. In cross-examination, Ms Jiang said that she asked Mr Lu whether it was possible to sell the Property by transfer and without a written contract for sale and Mr Lu said that it was. Ms Jiang denied that she told Mr Lu that the purchase price was $1,500,000 and said that she told Mr Lu that she and Mr Li had an agreement to sell the Property at fair market valuation. [49] Ms Jiang said that she told Mr Lu that they needed to get a valuation and Mr Lu also said that they would need to do a valuation for stamp duty purposes. Ms Jiang had bought and sold property in Australia previously and it was her understanding that a valuation for stamp duty purposes would be a valuation of the market value of the Property. [50]
20. In cross-examination, Ms Jiang said that she sent the email referred to at [98] above to Mr Lu on 9 October 2015 "because from the first, the conversation with Nathan, we both wanted a valuation, and, at that time, he told me then to do a valuation application, I need to fill out this information on the application form, including an estimate price". Ms Jiang said that the reference in her email to "price" was "just a shorter writing of the estimate price". [51]
21. In her witness statement dated 17 February 2020, Ms Jiang gave evidence that her conversation with Mr Li in which he estimated the value of the Property as $1,500,000 occurred shortly before she completed and returned to Mr Lu a DK Property Professionals Purchase Instruction Form. [52] Contemporaneous emails show that Ms Jiang first received the Purchase Instruction Form at some time after 2pm on 9 October 2015 and that she completed and returned the form on 14 October 2015. [53] The section of the form entitled "Your estimation of the property Value" was completed: "$1,500,000". [54]
22. According to Ms Jiang's witness statement dated 17 February 2020, the conversation that she had with Mr Li "shortly prior" to completing the DK Property Professionals Purchase Instruction Form was to the following effect: [55] "Ruochen: 'I need to put an estimate of the value of the property in a form for the valuer.' Tao Li: 'I re-financed my property through National Australia Bank about a year ago and their valuation was $1,250,000 and property prices have gone up since then so it's probably worth around $1,500,000.00 now.'"
23. According to Ms Jiang's affidavit affirmed on 9 April 2021, the conversation was to the following effect: [56] "RJ: Nathan just sent me a [sic] evaluation application form. It appears that this form it needs a valuation of the property which means how we think the property is worth now. I am not sure how much your property is worth now? TL: I did a refinance with NAB last year valuation was 1.25 million, and the housing price had been growing up, you can write 1.5 million, these guys do the evaluation professional anyway, in the end they will definitely give a fair and current market valuation to us, they won't be affected by the price we have in our minds. RJ: OK, I tell him now write 1.5 million, later this evaluation report will be compared with the surrounding properties. Only if the price is close to the surroundings, I will consider buying. TL: Yes, let's see how he values it. I am in a hurry to sell now, the house I'm looking at hunters hill is almost ok. This evaluation must be based on the current market price. When I bought the property it between $700,000 - $800,000. There has been good growth in these years."
24. Prior to the time that Ms Jiang puts on that conversation, Ms Jiang had sent Mr Lu the email referred to at [98] above stating a "price" of $1,500,000. As Ms Jiang acknowledged in cross-examination, this casts doubt on the reliability of her recollection of the timing of her conversation with Mr Li in which they discussed a potential value or estimated price of $1,500,000. Ms Jiang said that she could definitely remember the conversation with Mr Li in which he had suggested the estimate of $1,500,000 and acknowledged that "I might get a few days wrong on the date". [57]
25. Ms Jiang gave evidence that she thought that Mr Lu was acting for her and also for Mr Li and that Mr Lu was speaking to Mr Li as well as to her throughout the transaction. [58] However, it is clear from Mr Lu's evidence and email correspondence throughout the period from October 2015 until settlement on 1 March 2016 that Mr Lu proceeded on the basis that he was acting for Ms Jiang alone.
26. In his 18 February 2020 statement that Ms Jiang tendered, Mr Li referred to Ms Jiang's 9 October 2015 email to Mr Lu and stated that he and Ms Jiang had further conversations in which a sale price of $1.5 million was discussed "at one stage". Mr Li stated that he had a conversation with Ms Jiang "around this time" during which Ms Jiang said that "I would like to attempt to get a loan from the bank with the purchase price being $1.5 million, so that I can get all the funds due payable to you from the loan. I do not have much funds at hand." Mr Li stated that he told Ms Jiang: "Just do what to [sic] help yourself in getting funds to settle". Mr Li stated that Ms Jiang then told him "[a]t some point around this time" that her bank had valued the Property at $1.18 million. Mr Li stated that he then had a conversation with Ms Jiang in January 2016 in which she asked to re-negotiate the price because "[m]y bank can only lend me up to 80% of $1.15 million." Mr Li stated that he then told Ms Jiang: "If this is the case, I will sell the property to you at $1.15 million and nothing less". Mr Li stated that Ms Jiang replied: "Ok". [59]
27. Ms Jiang gave evidence that, at about the same time that she engaged Mr Lu, she also approached the Commonwealth Bank of Australia (CBA) for finance for the purchase of the Property. [60]
28. Mr Lu gave evidence that, on 16 October 2015, he sent a copy of a draft transfer to CBA. Mr Lu deposed that the draft transfer "indicated a purchase price of $1,500,000-00 in accordance with Ruochen Jiang's instructions in her initial e‑mail dated 9 October 2015". [61] Neither the email nor the "draft transfer" formed part of the evidence in these proceedings. Mr Lu did not give any evidence about the reason why he sent a "draft transfer" to CBA, save that it was put to him in cross-examination that he did so "for the purposes of preparing for the transaction" and he answered: "I believe so, yes". [62] The evidence does not reveal how the sending of a "draft transfer" to CBA would meaningfully advance the preparation for the transaction in circumstances where CBA had not even approved Ms Jiang's loan application as at 16 October 2015 and would (according to the usual course of things) obtain its own valuation of the Property before deciding whether to make a loan to Ms Jiang on the security of the Property and, if so, in what amount.
29. Mr Lu gave the following evidence in cross-examination in relation to the 16 October 2015 email and "draft transfer" described in his affidavit: [63] "Q. Had she told you the purchase price was to be determined by an independent valuer, you would not have included the $1.5 million in the transfer price, would you? A. Probably not. Q. The reason you included the $1.5 million in the transfer price is because the only thing that Ms Jiang had told you about the purchase price was in her written email to you with the price, correct? A. Yeah, I would assume so, yeah. Q. Had she told you that the sale was to be conducted by way of an independent expert determination of valuation, you would have waited until you got the valuer's report before preparing the transfer, wouldn't you? A. Yes."
30. I note that it is plain from Mr Lu's evidence about his 16 October 2015 email to CBA that Ms Jiang had told him at some time between 8 October and 16 October 2015 that she had applied to CBA for a loan to finance her purchase of the Property. I note that Mr Lu's account of his conversation with Ms Jiang on 8 October 2015 includes no reference to Ms Jiang informing him that she either intended to apply or had applied to CBA for a loan. Nor does Mr Lu's account include any reference to Ms Jiang providing any other information to Mr Lu about how she was intending to finance the purchase. Mr Lu does not give any evidence of any other communication that he had with Ms Jiang prior to 16 October 2015 in which such information was conveyed to him. I infer that Mr Lu's account in his affidavit of his communications with Ms Jiang during the period from 8 October to 16 October 2015 is incomplete. I do not suggest that Mr Lu has deliberately or improperly omitted any communications. Rather, Mr Lu's process of endeavouring to recall or reconstruct conversations that occurred five years earlier in the context of one transaction in his practice as a solicitor, supplemented by reconstruction from business records, has obvious limitations.
31. On 28 October 2015, API Property issued a valuation report in respect of the Property to CBA in connection with a proposed loan to Ms Jiang. API Property ascribed a market value of $950,000 to the Property. [64]
32. On the evening of 28 October 2015, DK Property Professionals sent an email to Mr Lu attaching a copy of a draft valuation report in respect of the Property dated 28 October 2015. The draft report referred to the definition of "market value" and referred to three sales of apartments within the same building as the Property in May, June and September 2015. The draft report stated that the "current dutiable market value" of the Property "for Stamp Duty purposes" had been assessed as $1,070,000. The email stated that a signed copy of the valuation report would be sent upon payment of the invoice. The signed report was later issued on 17 December 2015. [65]
33. Ms Jiang gave evidence that she received the draft DK Property Professionals valuation report from Mr Lu and the API Property valuation report from Mr Dong on 29 October 2015. [66] It is not clear from the evidence which of the two reports Ms Jiang received first on 29 October 2015.
34. In her witness statement dated 16 January 2020 served in the 2018 proceeding, Ms Jiang gave evidence that she had a conversation with Mr Li to the following effect shortly after receiving the DK Property Professionals draft valuation report: [67] "Ruochen: 'The valuation has come in at $1,070,000.00. I'm ok with that price if you are.' Tao Li: 'That's fine.' Ruochen: 'Okay, now we can proceed. I'm just waiting for my loan approval.' Tao Li: 'That's good.' Ruochen: 'And once I know how much the bank will lend me then I will know how much I have to pay you to make up the balance.'"
35. In her affidavit affirmed on 9 April 2021 and served in the 2020 proceeding, Ms Jiang gave an account of this conversation that included her describing to Mr Li the contents of the report and the comparable sales referred to in the report and telling Mr Li that "1.07 million is a relatively high price, in this building" and that "this looks like the best price for now. I think this is also the highest price I can accept". In this more detailed account of the conversation, Mr Li told Ms Jiang that he agreed to use the price of $1,070,000 and added "I also need money urgently to buy the new house". [68]
36. Ms Jiang gave the following evidence in cross-examination: [69] "Q. You never provided the CBA valuation to Mr Li, did you? A. I told him on the phone when I called him about the valuation and its price. Q. But you never actually gave him a physical copy or emailed him a copy of the valuation from CBA, did you? A. Maybe not. He didn't ask for it. Q. And you never emailed or gave him a physical copy of the DK valuer's valuation either, did you? A. Maybe not because when I called him and told him the valuation price, he was happy with it and he didn't ask to see the actual report, and I think Nathan was talking to him about this as well. So I didn't thought that was my responsibility. Q. You gave some evidence previously that you thought Mr Lu was acting for both yourself and Mr Li, is that correct? A. That's what I understood on that time. Q. You're lying about your understanding as to that, aren't you? A. No."
37. Mr Li gave evidence that he had no knowledge of the DK Property Professionals report. In cross-examination, Mr Li gave evidence that Ms Jiang did not tell him about a market valuation of $1,070,000 and said that the first time that he heard about the figure of $1,070,000 was from his former solicitor, Ms Sun. I understood Mr Li to be referring to a communication from Ms Sun in the context of the 2018 proceeding. Mr Li denied that he was lying about having first heard the price of $1,070,000 from Ms Sun. [70] Mr Li gave the following further evidence in cross-examination: [71] "Q. You said to [Kate], when she told you about the valuation of 1.07, 'Okay then, use this price. I need money urgently to buy the new house', didn't you? A. INTERPRETER: No, no, not at all. At that time I didn't need money urgently. What I need was to discharge the loan quickly, so actually I was not - I didn't care that when she paid me the money, I didn't need the money urgently. Q. You say you didn't need the money urgently, correct? A. INTERPRETER: Correct, I didn't need it, I just needed to buy a property, so that's why I wanted her to put all the money together. Q. You needed the money to discharge the loan over the Castlereagh Street property to NAB, didn't you? A. INTERPRETER: Correct. Q. You were going to use the money from the sale of Castlereagh Street to pay off the Castlereagh Street mortgage, weren't you? A. INTERPRETER: I didn't think that way. I was told at that time that if you want to discharge the loan quickly you need to sell that property, so that's why I sold that property. Q. You needed the proceeds of the sale of that property to discharge the mortgage, didn't you? A. INTERPRETER: I don't understand what you mean by 'the proceeds', 'sales proceed'. Doing the sale of the property, the, the new properties - the loan bank just used the money, and they just discharged the loan directly. Q. What I mean is, you didn't have an independent source of funds that you could use to discharge the Castlereagh Street mortgage, did you? A. INTERPRETER: Incorrect, because I didn't think at all that I would use the independent fund to discharge the loan. Q. My question was, you didn't have an independent source of funds to discharge the loan, did you? A. INTERPRETER: Because I didn't think in that way, so I didn't think of other means, because most of the money at that time were from my family, my mum supported me. If I thought in that way probably I will try my best - I will try my best to ask for help and this is the first reason. The second reason is why I wanted to sell that property was because I didn't have energy to look after many properties. The property - that property was for my residential purpose, so once I got a new one I would like to sell the, the current one. The reason was very simple."
38. Mr Li's denial that he told Kate that he needed money urgently to buy the new property at Hunters Hill and his answer that "I didn't care when she paid me the money" makes no sense and is inconsistent with his own evidence referred to at [168] below. Mr Li's suggestion that he could have financed the Hunters Hill purchase by obtaining funds from his mother is also inconsistent with his own evidence referred to at [168] below.
39. In his affidavit sworn on 26 November 2021, Mr Li maintained that the agreed purchase price for the Property was $1,500,000 and that he made no agreement with Ms Jiang to the effect that the purchase price would be limited to the valuation. [72] That is inconsistent with Mr Li's pleadings in the 2018 proceeding and his 18 February 2020 and 20 April 2020 witness statements referred to at [83]-[85] above.
40. Ms Jing Liu (also known as Amy Liu) of CBA was assisting Ms Jiang with her home loan application for her purchase of the Property. Ms Jiang gave evidence that Ms Liu telephoned her soon after she received the API Property valuation report on 29 October 2015 and told her that CBA would lend her 80 per cent of the $950,000 valuation (being $760,000). Ms Jiang gave evidence that, based on that advice, she felt confident that the purchase could proceed with the funds that would be available from CBA. [73]
41. On 29 October 2015, Mr Lu sent an email to Ms Jiang stating: [74] "We are now in a position to settle the Transfer of the property at 381/303-321 Castlereagh Street, Haymarket. In order to proceed we will require the following: 1. Transfer signed and witnessed by Tao Li; 2. Certified copy of your driver's licence; 3. BANK Cheque for payment of stamp duty being $44,360.00; 4. Cheque payable to L&L Legal Pty Ltd for $870.25 being payment of the attached invoice (please note I have included the cost of the valuer in the invoice so you will not need to pay the valuer separately)."
42. Mr Lu's email attached a transfer form naming Mr Li as the transferor and Ms Jiang as the transferee of the Property and stating a purchase price of $1,500,000. [75] However, the amount of the stamp duty referred to in item 3 of the email is the amount that would be payable on the basis of a price of $1,070,000, not a price of $1,500,000. [76]
43. The evidence does not explain the basis of Mr Lu's statement that the transaction was ready to settle. At the time of the email, Mr Lu was aware that CBA were financing Ms Jiang's purchase of the Property, [77] Ms Jiang had only received verbal confirmation of loan approval from CBA and CBA had not indicated that it was ready to settle. On any objective view, Ms Jiang was not in a position to settle the transaction as at 29 October 2015.
44. Ms Jiang gave the following evidence in relation to Mr Lu's 29 October 2015 email: [78] "I don't believe I checked the transfer at the time but assume the amount of $1,500,000.00 was inserted by Nathan Lu as that was the figure I initially instructed him to use as the sale price in early October 2015 until a proper valuation was done."

November 2015

1. On 3 November 2015, Ms Jiang sent Mr Lu a copy of the API valuation obtained by CBA that valued the Property at $950,000. [79]
2. Ms Jiang gave evidence that she instructed Mr Lu on 3 November 2015 that she had agreed with the vendor that the purchase price would be $1,070,000. That is consistent with Mr Lu's email sent to Ms Jiang on 4 November 2015 attaching a revised transfer form with a price of $1,070,000. Mr Lu's email stated that, on receipt of the original transfer executed by the vendor and a bank cheque payable to the Office of State Revenue in the amount of $44,350, "we will be able to settle this transfer". [80] Again, it is plain that the transaction could not be settled unless and until CBA provided formal approval for Ms Jiang's loan and was ready make the loan funds available to facilitate settlement.
3. Ms Jiang gave evidence that Mr Li visited her in about mid-November 2015 at the apartment at 3507 Liverpool Street, Sydney where she was living with Mr Hao Wang. Mr Wang was present on that occasion. Ms Jiang gave evidence that she handed Mr Li the revised transfer showing the price of $1,070,000 and said to him: [81] "This is the Transfer you need to sign. The price is $1,070,000 as we agreed. … You need to get a witness to sign as well."
4. According to Ms Jiang, Mr Li then asked Mr Wang to be his witness and sign after him. Mr Wang and Ms Jiang watched Mr Li sign the Transfer and Mr Wang then signed it as witness. Ms Jiang asked Mr Li to deliver the signed Transfer to ABP Lawyers the following day and he agreed to do so. [82]
5. In her witness statement dated 16 January 2020, Ms Jiang gave evidence that she and Mr Li then had a conversation to the following effect before Mr Li left her apartment: [83] "Tao Li: 'I'm a bit tight for money. Can you give me the purchase money now before settlement and I will try to settle as soon as I can.' Ruochen: 'I can't give you the whole amount as I have to get the loan amount first and then I only have to pay you the balance.' Tao Li: 'I have found a house and it's for sale by auction. So I need to have some cash on hand to be ready.' Ruochen: 'I can give you the balance of $310,000.00 now.' Tao Li: 'That's nice of you. I will make sure the settlement goes through as quickly as possible.' Ruochen: 'But if I pay you the $310,000.00 then I have nothing left to pay you because my loan will be $760,000.00 based on a valuation of only $950,000.00. My bank will pay you the money when we settle.' Tao Li: 'Okay, I know. I am surprised CBA valued the property so low. My bank valued it much higher when I refinanced. I will give you my bank account details so you can deposit the money into the account.'"
6. According to Ms Jiang, Mr Li then wrote his bank account details on a piece of paper that he handed to her. Those account details were for an account with NAB. Ms Jiang then told Mr Li that she would go to the bank in the next few days. [84]
7. In her affidavit affirmed on 9 April 2021, Ms Jiang gave a slightly more detailed account of a similar conversation that she had Mr Li at some time after the occasion on which Mr Li had signed the Transfer. [85]
8. On 20 November 2015, Ms Jiang attended the World Square branch of the NAB where she withdrew $310,000 from her NAB account number ending #481 and deposited that same amount into Mr Li's NAB account number ending #941. [86]
9. Ms Jiang gave evidence that the $310,000 that she deposited into Mr Li's account was part of a sum of $329,905 that she had received on 18 November 2015 on settlement of her sale of an apartment in Arncliffe. Those sale proceeds had been deposited into her NAB account #481 on 18 November 2015. Ms Jiang's evidence is corroborated by bank records, including copies of cheques drawn in favour of Ms Jiang on settlement of the Arncliffe sale and contemporaneous solicitors' correspondence concerning the settlement. The statement for Ms Jiang's NAB account #481 shows that the account had a credit balance of $1,349 prior to the deposit of the settlement funds of $329,905 on 18 November 2015 by the solicitors who acted for her on the sale of the Arncliffe apartment. Withdrawals and transfers equivalent to the whole of that deposit were made on 20 November 2015, including the withdrawal of $310,000 that was then paid into Mr Li's account. [87]
10. According to Ms Jiang, she telephoned Mr Li immediately after making the $310,000 deposit into his account and told him that they should settle their transaction as soon as her loan was finalised. Ms Jiang gave evidence that Mr Li telephoned her a few hours later confirming that the sum of $310,000 had been received into his account and saying that he would make sure that his bank was ready to settle their transaction soon. [88]
11. It was put to Ms Jiang in cross-examination that the $310,000 payment that she made to Mr Li was not part of the purchase price for the Property because she did not tell Mr Lu about the payment. Ms Jiang gave evidence that she had told Mr Lu about the $310,000 payment by telephone at some time after she made the payment and before settlement. Ms Jiang gave the following evidence about this subject: [89] "Q. … your evidence is that you told Mr Lu over the phone that you paid a $310,000 deposit in respect of this purchase? A. I told Nathan Lu on the phone I have paid all the money I need to pay to Tao Li, except my bank money, and nothing else I need to pay for the settlement. … Q By 1 January 2016, is it your evidence that you told Mr Lu that you'd paid $310,000 to Mr Li as part of the purchase? A. I remember there is a time on the phone he asked me about this, so I told him that. I can't remember the exactly [sic] date of it. Q. I want to suggest to you that if you'd paid the $310,000 as a deposit, you would've promptly told Mr Lu about it after you'd paid it. Do you accept that? A. Because the arrangement was asked by Tao Li to pay him earlier, and as the deal progressed, Nathan did ask me about it and I told him what I said, and Nathan said, 'Okay, he got that and we have our own arrangement, and he just only need to do the settlement.' Q. Mr Lu didn't know about the $310,000 as late as 29 February 2016, did he? A. Before the settlement, as I said, I told him on the phone once he asked. I can remember the conversation. Otherwise he, before the settlement, if he have any question he ask me, I will also, also answer him. Q. You're aware that the settlement occurred on 1 March 2016, correct? A. Yes. Q. When did you tell Mr Lu that you had paid $310,000 to Mr Li? A. As I said, after I made the payment and before the settlement. Q. But when you say after you made the payment and before the settlement, that's potentially a four month period. When in that period approximately did you tell Mr Lu? A. I said I can't remember the exact date now. But I remember the conversation because Nathan asked me once and I told him. Q. You would've told Nathan in 2015 about the $310,000, wouldn't you? A. I didn't tell him straight after I deposit the money. It was when he called me and asked me about it, and I told him. … Q. You would've told Mr Lu in 2015 about the 310,000 if it happened, wouldn't you? A. I said I can remember I told him when he asked me and it's between after I made the payment and before the settlement. Q. You're being deliberately vague on this issue, aren't you? A. No, because Nathan called me sometimes and I tell him what he needs to know. I can't remember what's, what date was each call happened."
12. Mr Li denies having ever met a person by the name of Hao Wang and denies signing the Transfer. [90]
13. Mr Li owned the apartment at 3507 Liverpool Street where Ms Jiang says that Mr Li signed the Transfer. Mr Li denies that Ms Jiang was ever renting or living in that apartment and denies meeting with Mr Wang there on any occasion. In cross-examination, Ms Jiang maintained that she was living in that apartment in late 2015. When pressed to be more specific about the dates, Ms Jiang said that she could not remember the exact dates but that it was in about October, November and December 2015. She had made an arrangement with Mr Li in about October 2015 that she could live there rent-free and Mr Li could remain in the Property he was selling to her rent-free for a couple of months until he was ready to move into his new home. Ms Jiang did not pay rent to Mr Li's letting agent, Belle Properties. [91] Ms Jiang's description of the apartment as a "dual apartment" comprising a separate studio apartment and a two bedroom apartment was not challenged in cross-examination. Ms Jiang said that it was the two bedroom apartment that she occupied and she believed that the studio apartment was rented out. Rental records tendered by Mr Li establish that the two bedroom component of the apartment was not rented through Belle Properties during the period from 11 November 2015 until January 2016. [92]
14. The parties jointly instructed Ms Melanie Holt, a forensic document examiner, to examine the signature on the Transfer and various specimen signatures of Mr Li and to opine as to whether the disputed signature on the Transfer was written by Mr Li or by a different writer. Ms Holt observed that the questioned signature displayed some level of pictorial similarity to Mr Li's specimen signatures and that there were both similarities and differences between the disputed signature and the specimen signatures. The main areas of difference lay in the initial portion of the signatures. The disputed signature appeared to be reasonably fluent and written in one continuous pen stroke, but it was not possible to determine the speed with which the disputed signature had been executed. Ms Holt concluded that the evidence available to her "provides roughly equal support" for the proposition that the disputed signature was written by the writer of the specimen signatures and for the proposition that the disputed signature was written by a different writer, "meaning that a conclusion regarding the authorship of the purported signature of Mr Li depicted on the questioned Transfer AK270647J could not be reached". [93]
15. In cross-examination, Ms Jiang readily acknowledged that she knew what Mr Li's signature looked like by November 2015 because she had seen him signing papers on other occasions. It was put to Ms Jiang that she had forged Mr Li's signature on the Transfer because she had agreed to pay $1,500,000 for the Property and, when she saw the valuations of $950,000 and $1,070,000, she felt that Mr Li had cheated her by specifying that price and by refusing to lower the price after the valuations came in. Ms Jiang denied these allegations and denied forging Mr Li's signature on the Transfer. [94]
16. In cross-examination, Mr Li said that he signed a document that Ms Jiang told him was a necessary document to transfer the Property. He said that Ms Jiang brought the document to the place where he was living and she took it away after he had signed it. Mr Li said that he did not know whether the document was the transfer, but that it listed a price of $1,500,000. Mr Li said that Ms Jiang had told him the price on the document was $1,500,000. Mr Li gave inconsistent answers as to whether he had "just had a quick look" at the document and had seen the numbers 1,500,000 or whether he had not looked at the document at all before signing it. [95] Mr Li had not referred to signing a transfer with a price of $1,500,000 in his affidavits that were read in these proceedings. It was put to Mr Li that this new evidence that emerged for the first time in cross-examination was false, and Mr Li denied that. [96] That new evidence is inconsistent with Mr Li's pleading in the 2018 proceedings and with his 18 February 2020 and 20 April 2020 statements referred to at [83]-[85] above.
17. Mr Li gave evidence that: [97] "… the $310,000 was the total sum Ms Jiang received or collected on my behalf for the purpose of my purchase of the Hunter Hill Property and the operation of my school. I directed Ms Jiang to collect them and then transfer to my account as directed. The amount of $310,000 had always been my money."
18. The "school" is the term used by Mr Li to refer to the college operated by Vin International.
19. Mr Li was cross-examined about his evidence that the $310,000 was money that Ms Jiang had received or collected on his behalf. Mr Li gave the following evidence: [98] "Q. You've put no documents before the Court explaining what [Ms Jiang] was to have received or collected on your behalf, have you? A. INTERPRETER: I'm not sure whether there are some available document in the court book, anywhere else, but I mentioned part of the information in this paragraph, and also I want to say that at that time most of the money were, most of the, most of my money came from China, so I need to transfer the money from China from time to time, and if I could use cash to change the, change it to Australian currency, I would have a better interest rate, I would have a better rate, exchange rate, so sometimes I use cash. And, but sometimes I, I wanted to avoid troubles, so I ask [Ms Jiang] to help. So the [Ms Jiang] sometimes used the money, but when I need, when I needed to use the money, I asked [Ms Jiang] to transfer the money to me. And also, some of the money, [Ms Jiang] collected through the school and also in some ways."
20. It is very difficult to make sense of that evidence. In particular, Mr Li does not identify any reason why he needed Ms Jiang to "help" by receiving money that was transferred from China to Mr Li. Nor does he offer any explanation as to why money "collected through the school" would be received by Ms Jiang (as opposed to being paid into the bank account of Vin International) and later be paid to Mr Li personally on his request.
21. On Mr Li's version of events, he did not ask Ms Jiang for the sum of $310,000 but asked her to "[t]ry to give me as much as you could" because he wanted to get all available funds together to buy the Hunters Hill property which was quite expensive. [99] Mr Li maintained his denial that the $310,000 payment was part of the purchase price for the Property. [100]
22. The $310,000 payment was made into Mr Li's NAB account #941. As the cross-examiner put to Mr Li, [101] the statement for that account shows that the sum was not applied, or at least not wholly applied, to Mr Li's purchase of the Hunters Hill property. Mr Li's NAB account #941 had a credit balance of $1.00 immediately prior to the $310,000 deposit on 20 November 2015. Mr Li made a series of withdrawals and transfers after the deposit, including a transfer of $80,000 to "duoname" and several withdrawals of rounded sums ranging from $5,000 to $90,000. These include the withdrawal of $40,000 on 15 December 2015 that was applied to the bank cheque to pay the stamp duty on Ms Jiang's purchase of the Property as referred to at [153] below. By 16 December 2015, the balance of Mr Li's NAB account #941 had been reduced to $403.20. Ms Jiang deposited the sum of $159,700 into the account on 21 December 2015, as referred to at [161] below. [102]
23. Ms Jiang denies that she ever received or collected money on behalf of Mr Li for his purchase of the Hunters Hill property and denies that she ever received or collected money on behalf of Mr Li for the operation of the college. [103]
24. On 24 November 2015, Ms Jiang received written confirmation from CBA of a loan of $760,000 to be secured by mortgage over the Property. CBA had also initiated a discussion with Ms Jiang about a potential refinancing by CBA of Ms Jiang's existing home loans with other banks relating to other properties. Ms Liu of CBA told Ms Jiang that a refinancing would provide her with a fund that she could deposit into her offset account to offset interest on her loans and that she would be able to draw on the fund when she wanted to invest in businesses or shares. [104]
25. Mr Lu gave the following evidence in cross-examination: [105] "Q. Ms Jiang never told you in 2015 that there had been a deposit of $310,000 paid in respect of the purchase, did she? A. Not that I can recall. Q. If she had told you that there was a deposit of $310,000, you would have accounted for that in the settlement figures, wouldn't you? A. I believe so."
26. The "settlement figures" to which the above question was directed are the figures prepared on 29 February 2016 that are referred to at [201]-[205] below. There is no evidence of "settlement figures" of the usual kind, accounting for the whole of the purchase price and any adjustments between the vendor and purchaser for council rates, strata levies and similar expenses. The evidence is limited to evidence of correspondence between NAB and ABP Lawyers concerning the amount that NAB required to be paid to discharge its mortgage over the Property and correspondence between ABP Lawyers and CBA's settlement agent (SAI Global) concerning the amount that CBA would be paying on settlement as incoming mortgagee. That correspondence was handled by a paralegal employed by ABP Lawyers, Ms Wily Lee. Mr Lu gave evidence that he "handed over carriage of the conveyancing matter" to Ms Lee on 26 February 2016 until settlement. [106]

December 2015

1. On 15 December 2015, Mr Li purchased a bank cheque for $44,350 payable to the Office of State Revenue. [107] There is no dispute that this was to pay the stamp duty on the transfer of the Property to Ms Jiang.
2. Mr Li gave evidence to the effect that he made this payment as a loan to Ms Jiang because she told him that she did not have enough money for stamp duty. [108]
3. Ms Jiang gave evidence that she had a conversation with Mr Li in early December 2015 in which Mr Li asked Ms Jiang to lend him all of the funds that would be available from the CBA refinancing that she had mentioned to him, so as to help his cashflow for a few months while he was in the process of selling his 3507 Liverpool Street apartment and also waiting for his mother to transfer money from China. According to Ms Jiang, she expressed concern that Mr Li had already borrowed a lot of money from her on previous occasions that she had not kept a detailed record of and that he had not paid that money back. Ms Jiang referred in particular to a cash loan of $15,000 that she had made to Mr Li for expenses relating to his wedding. Ms Jiang also expressed concern that she still had stamp duty to pay for her purchase of the Property and that she would have no money left if she were to lend more money to Mr Li. According to Ms Jiang, Mr Li replied: "OK then, I will pay the stamp duty, which means I have paid back all the money I owe you before, it should be enough to include interest as well. So when you get your refinance money, you can lend me as much as you get." Ms Jiang said: "So you pay the stamp duty first, which will be taken as your payback." [109]
4. Ms Jiang gave evidence that she had a further conversation with Mr Li a few days later to the following effect: [110] "TL: I have already written a cheque to Nathan to pay for the stamp duty, have you checked with Nathan? RJ: Yes, so now the money you owed me before has been paid off. TL: Yes, can you help me again to lend me your refinance money for me to turn over for a few months? I really like the hunters hill house, auction time is very close, I want to live there after I get married, and also bring my mother to Australia, you see we have known each other for so long, I'm just like your older brother, we are going to do business together later on. RJ: Ok, but you have pay me back immediately after your property is sold, must do so within 3 months. TL: That's no problem, I also will work out interest for you base [sic] on bank's interest rate. RJ: Ok."
5. In cross-examination, Ms Jiang denied that she lacked funds to pay the stamp duty and denied that she was making up her evidence that Mr Li owed her money that was repaid by his payment of the stamp duty for her purchase of the Property. The only basis on which the cross-examiner put to Ms Jiang that she lacked the money to pay stamp duty was that there were no funds in her CBA account #606 as at 15 December 2015. As Ms Jiang pointed out to the cross-examiner and as referred to in more detail below, the account had only recently been opened as part of Ms Jiang's refinance transaction with CBA and the refinance surplus funds of $158,897 were paid into the account just three days after Mr Li drew the bank cheque for stamp duty. Ms Jiang said that she had no need to pay the stamp duty on 15 December 2015, and it was her way of securing Mr Li's repayment of the miscellaneous amounts that she says he owed her before she would lend him further money that he had requested from her refinance funds. [111]
6. On 16 December 2015, Mr Lu and Ms Jiang received an email from Ms Liu advising that CBA was ready to proceed to settlement of her purchase of the Property. The email also stated that Ms Jiang's "refinance CBA has also completed certification, just waiting for St. George processing discharge at the moment." [112]
7. Although CBA was ready to proceed to settlement from 16 December 2015, neither Ms Jiang nor Mr Li gave evidence that they endeavoured to settle the transaction on or shortly after that date.
8. On 18 December 2015, the sum of $158,897.92 was deposited in Ms Jiang's CBA account ending in #606. This account had been opened on 10 November 2015 and the deposit on 18 December 2015 was the first transaction on the account. The statement describes the deposit as "Transfer in Admin SURPLUS". [113] Ms Liu subsequently sent an email to Ms Jiang congratulating her on the settlement of her refinance and advising that the first repayment date would be 18 January 2016. [114]
9. On 21 December 2015, Ms Jiang withdrew the sum of $159,715 from her CBA account #606 and obtained a bank cheque for $159,700 payable to Mr Li. The sum of $159,700 was deposited into Mr Li's NAB account #941 by cheque on the same date. [115] Ms Jiang gave evidence that she then telephoned Mr Li and informed him that she had transferred $159,700 to his account and again urged him to pay her back quickly. [116]
10. Mr Li gave the following evidence about the sum of $159,700 that was deposited into his account on 18 December 2015: [117] "… the $159,700 was also the sum Ms Jiang received or collected on my behalf for the purpose of my purchase of the Hunter Hill Property and the operation of my school. I directed Ms Jiang to collect them and then transfer to my account as directed. The amount of $159,700 had always been my money."
11. In cross-examination, Mr Li gave an entirely different explanation of the $159,700 transaction. Mr Li initially said (twice) that Ms Jiang had told him that she had obtained a loan of about $760,000, so he would need another $160,000 to discharge his NAB home loan. [118] Mr Li then said that Ms Jiang told him that "she had a [shortfall] of $160,000 to discharge the loan so she asked me to put the, the shortfall for her, not me" (emphasis added). [119] He later reverted to saying that Ms Jiang "told me that I was short of money, I just put the money into the account" (emphasis added). He agreed that NAB had told him "how much I needed to discharge the home loan" but maintained that Ms Jiang "also knew about this". [120]
12. Mr Li said that Ms Jiang borrowed the $159,700 from him and denied that he borrowed it from her. [121] It is very difficult to reconcile that evidence with the undisputed documentary evidence that Ms Jiang paid the $159,700 into his bank account. Mr Li said in cross-examination that he wanted the money to be paid into his account so that he could apply it to the settlement of the Property. [122]
13. As the cross-examiner put to Mr Li, the $159,700 paid into his account was not applied to the discharge of his NAB mortgage on settlement of the transfer of the Property to Ms Jiang. After the $159,700 deposit, Mr Li's NAB account #941 was depleted by a series of payments, transfers and withdrawals including insurance and strata levy payments and payments to Sydney Water, payments to "boxing", withdrawals of rounded sums between $4,000 and $10,000 and payments with the description "lone" (including one payment of $51,000 on 26 February 2016). By 26 February 2016, the balance of the account had been reduced to $75,397.17 before Ms Yin deposited $95,000 into the account on 29 February 2016 as referred to at [197] below. [123]
14. When reminded during cross-examination of his affidavit evidence referred to at [162] above, Mr Li reverted to his evidence that the $159,700 represented funds that Ms Jiang had collected on his behalf or on behalf of the school. Mr Li gave the following evidence: [124] "A. … Once she collected the money, I think I was there as well, and after she collected the money, she deposit the money into the school's account or in other ways. But I think if you really need this kind of information, it's possible to find this information. Q. So you're now saying that the money collected on behalf of the school was deposited into the school's account are you? A. INTERPRETER: Incorrect, because I just asked [Ms Jiang] once. [Ms Jiang] told me that she had her own way to deposit the money. For example, she would deposit the money into a small, in small amount and to school's account, and then she would transfer the money from that account to my account. But maybe not particular this transaction, but I'm not sure because it's been a while. But she told me that she had her own ways. Q. That's just a lie and you've just made that up, haven't you? A. INTERPRETER: No, no. Q. In fact, you're aware that the $159,700 came not from [Ms Jiang] collecting it for you, but from a refinance she undertook with her bank, aren't you? A. INTERPRETER: No, this is the first time I heard that today. Q. I put to you that [Ms Jiang] told you that she had some money available from her refinance and was prepared to lend it to you? A. INTERPRETER: No, no I never borrow money from [Ms Jiang]."
15. Ms Jiang denies ever receiving or collecting money on behalf of Mr Li in the sum of $159,700 or receiving or collecting any money on behalf of Mr Li for the operation of the college. [125]
16. In his affidavit sworn on 4 March 2021, Mr Li deposed that he had a conversation with Ms Jiang at Christmas in 2015 to the following effect: [126] "[Mr Li]: 'Has the property been transferred yet? I want to take out a new loan with NAB for the purchase of a property in Hunters Hill. I spoke to my banker, Upender from NAB, and he said that my loan can only be approved once the loan on the Castlereagh property is discharged.' [Ms Jiang]: 'I had problems with the bank getting a loan to purchase the property. I need to go to another bank. I will try and get the loan as quick as possible.' [Mr Li]: 'Yes, please go quickly to the bank to arrange the loan. I really need to purchase the Hunters Hill property before I get married.'"
17. In cross-examination, Mr Li gave evidence to the effect that it was the settlement of his Hunters Hill property that NAB would not proceed with until his loan secured over the Property was repaid. [127] This is inconsistent with Mr Li's affidavit evidence referred to above that NAB would not even approve a loan for his proposed Hunters Hill purchase until his loan secured over the Property was repaid and that mortgage was discharged. In any event, it was clear from Mr Li's evidence that Mr Parmar of NAB had impressed on Mr Li the need to repay the loan secured against the Property urgently if he wished to carry through with his plans to purchase a property at Hunters Hill. [128]
18. According to Mr Li, he and Ms Jiang had not had any further discussions about the price of the Property and it was his understanding at the time of the Christmas 2015 conversation that the purchase price remained at $1,500,000. [129]

January 2016

1. Ms Jiang lived at Ms Yin's home at Granville from January 2016 while she was waiting to settle her purchase of the Property. She gave evidence that she was waiting for settlement throughout January and February 2016, but settlement kept being delayed and Mr Li kept giving different reasons for the delay. [130]
2. On 4 January 2016, Ms Liu (CBA) sent an email to Mr Lu and Ms Jiang inquiring when settlement of the sale of the Property to Ms Jiang was planned. Mr Lu replied the same day attaching the stamped Transfer and stating that he and Ms Jiang were waiting for Mr Li's confirmation of his bank being ready to settle the transaction. [131]
3. Mr Li gave evidence that Ms Jiang told him in about January 2016 that her bank had valued the Property at about $1,180,000 and would only lend her up to 80 per cent of that valuation. According to Mr Li, Ms Jiang asked to renegotiate the price. Mr Li says that he replied that he could not sell the Property and its contents to Ms Jiang for less than $1,500,000. Mr Li gave evidence that he believed the contents of the Property were worth "well in excess of $300,000" because they included an authentic antique traditional Chinese painting from a well-known Chinese artist named Tong Guan dated circa 907 to 960, approximately three sets of calligraphy from the Qing Dynasty, two sets of calligraphy fans from the Qing Dynasty, Rosewood furniture and a pair of chairs that Mr Li says had previously been owned by movie star Jackie Chan. [132] There is no evidence of the value of the contents, other than Mr Li's statement of belief. Mr Li has no receipts, statements of authenticity or valuations in respect of the items that he claims to have agreed to sell to Ms Jiang together with the Property for the price of $1,500,000. [133]
4. Ms Jiang gave evidence denying that she had ever discussed with Mr Li purchasing the contents of the Property. [134]
5. As referred to at [113] above, Ms Jiang's bank (CBA) had in fact valued the Property at $950,000. It was Mr Li's bank, NAB, that had valued the Property at $1,180,000 in March 2015 for the purpose of assessing Mr Li's 2015 refinance application which resulted in his loans secured against the Property increasing from $560,000 to $920,000. [135] In cross-examination, Mr Li was shown NAB's records ascribing a value of $1,180,000 to the Property, the API valuation report addressed to CBA for $950,000 and the DK Property Professionals valuation report addressed to "Jiang" for $1,070,000. Mr Li was asked whether, having seen those documents, he accepted that he was mistaken in saying that Ms Jiang told him that her bank had valued the Property at $1,180,000. Mr Li answered: "No, impossible. Because when she told me, the valuation was 1.18, I was quite surprised." [136]
6. Mr Li gave evidence that he had a further conversation with Ms Jiang in about early 2016 in which she told him that she was short of money to pay stamp duty and asked to borrow $40,000 from him on the basis that "I will pay you back when I can". According to Mr Li, he went with Ms Jiang to the NAB branch in World Square after this conversation and transferred the sum of $40,000 from his account, but he cannot recall the details of the account that he transferred the money to. Mr Li gave evidence that this sum of $40,000 was a loan that he expected Ms Jiang to repay. [137] That evidence is consistent with Mr Li's pleading in the 2020 proceeding [138] but is plainly wrong. Contemporaneous documentary evidence shows that the stamp duty payment was made in December 2015, as referred to at [153] above.

February 2016

1. Mr Li gave evidence that he spoke with his NAB banker, Mr Upender Parmar, in February 2016 and told Mr Parmar that his loan would "definitely" be discharged in March 2016. According to Mr Li, Mr Parmar told him that the loan must be discharged as soon as possible otherwise the pre-approved loan for his proposed Hunters Hill purchase would expire. [139]
2. Ms Jiang had moved out of Mr Li's 3507 Liverpool Street apartment in January 2016. [140] It is clear from contemporaneous email correspondence that Ms Jiang was seeking to settle her purchase of the Property. From about 18 February 2016, Mr Lu (ABP Lawyers) and Ms Liu (CBA) contacted Mr Parmar (NAB) frequently on Ms Jiang's behalf seeking to arrange a time for settlement. Ms Lee (ABP Lawyers) also endeavoured to contact Ms Sun (Pancific Legal) in relation to the settlement but was told by Ms Sun that she did not act for Mr Li in relation to the sale of the Property to Ms Jiang. [141]
3. Mr Li gave evidence that he had a conversation with Ms Jiang in late February 2016 to the following effect: [142] "[Ms Jiang]: 'When can I move into the property?' [Mr Li]: 'If the transfer is finished, the earliest I can move out is at the end of March.' [Ms Jiang]: 'Ok. The transfer will be completed in the next few days. Can you please move out by the end of March?' [Mr Li]: 'Yes.'"
4. Mr Li gave evidence that: [143] "57 I was not aware when Settlement for the Haymarket property would occur, however I was aware that the NAB mortgage had to be discharged on settlement of the Haymarket property. I did not know how much the First Defendant's bank would pay to discharge my mortgage. Nevertheless, I did not have any concerns. 58 I understood the First Defendant had secured a loan with Commonwealth Bank Australia as she had mentioned it in passing but I did not know the amount of the loan as we never discussed this and I didn't think I needed to know.'"
5. On Friday, 26 February 2016, settlement was arranged for 2pm on Monday, 29 February 2016. [144]
6. Ms Jiang and Ms Yin have each given evidence of telephone conversations with Mr Li during the weekend of 27 and 28 February and on the morning of 29 February 2016.
7. In their first witness statements made for the 2018 proceeding, each of Ms Jiang and Ms Yin gave evidence to the effect that the first conversation in this series of conversations with Mr Li occurred on the evening of Sunday, 28 February 2016. [145] In subsequent witness statements made after they had each reviewed Mr Li's mobile telephone records that were produced on subpoena by Telstra, each of Ms Jiang and Ms Yin made a further witness statement acknowledging that her recollection of the date of that first conversation had been incorrect and stating that the conversation occurred a day earlier than she had originally said, on Saturday, 27 February 2016. [146] Each of those witness statements contains four paragraphs identifying the substance of the Telstra records reviewed, explaining why the witness now accepts that she was mistaken about the date of the first conversation being 28 February and states that she has a clear recollection of the conversation occurring over the weekend of 27-28 February 2016. Those four paragraphs are in almost identical terms in the two witness statements. Other evidence of Ms Jiang and Ms Yin concerning their conversations with Mr Li over the period from 27 to 29 February 2016 is not in identical or near identical terms. They each give an account of having had separate conversations with Mr Li (who was on the telephone) while they were together at Ms Yin's home (on 27-28 February) and while they were together at NAB's Auburn branch (on 29 February).
8. Ms Jiang and Ms Yin were each cross-examined about the near identical language used in the four paragraphs of their witness statements made on 19 March 2020 in the 2018 proceeding. Each of them denied that they had spoken to the other about the evidence that she would give. Each of them denied preparing their affidavits together, or in consultation with one another. [147] After being asked to read the four paragraphs in both affidavits, Ms Jiang agreed that they were "kind of identical" and said: [148] "The reason it's identical in some way because where I didn't write my affidavit word by word, from my hand, I answer my lawyers' question and he realise what was happen, in fact, and he draft this into the affidavit as the how, how the fact was happened, and how we, how the Telstra records remind me of what actually what was happened."
9. Ms Jiang denied that, after obtaining the Telstra records, she spoke with her mother and "concocted this version of events that would tie in with those phone records". Ms Jiang said: [149] "No, when I received the Telstra record, I see every line myself and I talk to my lawyer of what it reminds me, and that's how my affidavit was formed."
10. Ms Yin also denied speaking with Ms Jiang about the contents of her statement. Ms Yin said that her statement was prepared by her lawyer after he "hear all my story". In cross-examination, Ms Yin was asked to read the four nearly identical paragraphs, and the paragraph immediately following those four paragraphs. Ms Yin was then asked whether those five paragraphs were "almost identical" to Ms Jiang's statement. Ms Yin initially responded by asking "What do you mean identical?" and "You mean they are similar?". When asked whether they were similar, Ms Yin said: "The same story and from the, the, the same, the same time and to the same branch. So what do you mean?" The cross-examiner then put to Ms Yin: "… the words are the same, the sentences are the same". Ms Yin replied: "I don't think so. I don't agree with you." She was then asked: "You don't agree that there is a high level of similarity between those paragraphs?". Ms Yin replied: "I, I don't think so." She was also asked: "Those paragraphs are almost identical, aren't they?" Ms Yin answered: "No." Ms Yin denied that she was refusing to accept that they were identical because she thought that it would harm her case to do so. [150]
11. I note that the fifth of the five paragraphs that Ms Yin was asked about is not identical to Ms Jiang's statement. In that fifth paragraph, Ms Yin refers to what she did in order to make the $95,000 "loan payment" at the Auburn NAB branch whereas Ms Jiang referred to accompanying her mother to the branch for that purpose. The sentence structure is very similar, but the substance is not identical as the two statements are describing different actions by different people.
12. Ms Jiang gave evidence that Mr Li telephoned her on 27 February 2016. Ms Jiang was at home with her mother, Ms Yin, when she received Mr Li's telephone call. According to Ms Jiang, she had a conversation with Mr Li to the following effect: [151] "Tao Li: 'My bank is ready to settle tomorrow but I do not have enough money to pay out the mortgage. I have used the money you have already given me towards the purchase of the Hunters Hill property. Can I borrow some money for tomorrow's settlement to pay the bank?' Ruochen: 'I don't have much money' Tao Li: 'Can I borrow it from your mother?' Ruochen: 'You can talk to her.'"
13. In her affidavit affirmed on 9 April 2021, Ms Jiang gave a slightly more detailed account of this conversation in Mandarin, which was translated into English. There is no material difference of substance between the two accounts. The more detailed version included Mr Li saying to Ms Jiang: [152] "Otherwise if the bank didn't deduct enough for the mortgage, it won't let me settle this property. You already waited for a few months, right? if you don't lend me more money, this settlement won't go ahead."
14. Ms Jiang then passed her mobile phone to Ms Yin. During Ms Yin's conversation with Mr Li on Ms Jiang's phone, Ms Jiang heard Ms Yin say: "I can lend you the money". [153]
15. Ms Jiang gave evidence that, after Ms Yin concluded her conversation with Mr Li, Ms Yin said to Ms Jiang: [154] "Tao Li needs to borrow $95,000 tomorrow for the settlement because he does not have enough money to pay out his mortgage. We should go to the bank in the morning and I will deposit that amount into his account."
16. Again, Ms Jiang gave a slightly more detailed account of this conversation in Mandarin, which was translated into English, in her affidavit affirmed on 9 April 2021. There is no material difference of substance between the two accounts, save that the more detailed account included Ms Yin saying to Ms Jiang: "… he is selling his property now, and said he will return this money to me as soon as possible". [155]
17. Ms Yin gave evidence that she was at her home together with Ms Jiang on 27 or 28 February 2016 when she heard Ms Jiang's mobile telephone ring. She did not hear Ms Jiang's conversation with the caller, but after a few moments Ms Jiang handed her mobile telephone to Ms Yin and they had a conversation to the following effect: [156] "Ruochen: 'Tao Li needs to borrow some money from you.' Kehui: 'What for?' Ruochen: 'He has a problem. I gave him enough money for the purchase of my Haymarket unit but he spent it. He still owes a lot of money on his mortgage.' Kehui: 'What happens if the mortgage isn't paid?' Ruochen: 'The settlement for the purchase of my unit won't be able to go ahead tomorrow unless he has enough money to pay the mortgage.'"
18. Ms Yin gave evidence that she then took the mobile phone from Ms Jiang and had a telephone conversation with Mr Li to the following effect: [157] "Kehui: 'Hello?'

Tao Li: 'Hi. The settlement of the sale of the Haymarket unit to your daughter is tomorrow. I do not have enough money to pay the bank mortgage. Your daughter said you might be able to lend me some money.' Kehui: 'How much do you need?' Tao Li: 'I need $95,000.00.' Kehui: 'When do you need it?' Tao Li: 'Urgently. First thing tomorrow.' Kehui: 'I can lend you the money but when will I get it back?' Tao Li: 'After the settlement. Don't worry. I am selling another unit I own in the city.' Kehui: 'Good because I need the money too. You need to pay it back as soon as possible. Can I do an electronic transfer to you?' Tao Li: 'No. That will cause a delay. I need it sooner than that. The quickest way is for you to go to the bank, withdraw the money and deposit the cash into my account. Where do you bank?' Kehui: 'I only have enough money in my NAB account.' Tao Li: 'Good. I have an account there too. I will send you the details by text message to your mobile phone.' After I gave him the number of my mobile phone I said words to the following effect:

Kehui: 'OK. I will do this as soon as I can.'"

1. Ms Jiang gave evidence that she received a further telephone call from Mr Li on the morning of 29 February 2016 while she was having breakfast with Ms Yin. Mr Li told Ms Jiang: "Please go to the bank this morning otherwise the settlement may be delayed. I will text you my bank account details." Ms Jiang received a text message with Mr Li's bank account details immediately after that call. She and Ms Yin then went to the NAB branch at Auburn in order for Ms Yin to arrange the payment of $95,000 into Mr Li's account. [158]
2. Ms Yin also gave evidence that she attended NAB's Auburn branch together with Ms Jiang on the morning of 29 February 2016 where she deposited $5,000 cash into Mr Li's account and transferred a further $90,000 into Mr Li's account, the details of which he had sent to Ms Jiang by text message. Ms Yin had initially intended to withdraw the whole amount in cash and then deposit the cash into Mr Li's account but completed the transaction partly by cash and partly by transfer after the teller informed her that she could not withdraw more than $10,000 in cash without a booking. Ms Yin withdrew an additional $5,000 in cash which she gave to Ms Jiang. [159]
3. NAB records for Ms Yin's account and Mr Li's account #941 show that on 29 February 2016 a cash deposit of $5,000 was made into Mr Li's account and then a further sum of $90,000 was transferred from Ms Yin's account into Mr Li's account. [160]
4. Ms Jiang gave evidence that she telephoned Mr Li while she was at the NAB Auburn branch with Ms Yin and informed him that "the deposit has been done". Ms Jiang then handed her mobile telephone to Ms Yin and heard Ms Yin say to Mr Li: "I have deposited $95,000 into your account. You can check it." Ms Jiang also heard Ms Yin say to Mr Li: "Now everything should be fine, right? Please make sure that you return this money as soon as possible." When Ms Yin handed the telephone back to Ms Jiang, Ms Jiang asked Mr Li when he would be able to return the money to Ms Yin. Mr Li said: "I already have an agent for the sale of my other apartment. So, after it has been sold I can return the money." [161]
5. Ms Yin gave evidence that she had a conversation to the following effect with Mr Li on Ms Jiang's mobile phone immediately after making the transactions referred to above: [162] "Kehui Yin: 'I have just deposited the $95,000.00 into your account. Can you check that you have got it? [Tao Li]: 'Yes, I have received the money. Thanks very much.' Kehui Yin: 'Please return my money to me as soon as possible as I need it for my personal use.' Tao Li: 'Sure. I will pay it back as soon as I can after the settlement.'"
6. The statements for Mr Li's NAB account #941 show that, prior to Ms Yin's payments into the account on 29 February 2016, the balance of Mr Li's account was insufficient to pay the shortfall of approximately $160,000 between the $920,350 required to discharge the NAB mortgage and the sum of $760,000 that would be available from Ms Jiang's incoming mortgagee on settlement of her purchase of the Property. [163]
7. On 26 February 2016, Ms Sun (Pancific Legal) had sent an email to Ms Lee (ABP Lawyers) advising that she was not acting for Mr Li (as referred to above at [178]) and that she had provided ABP Lawyers' fax number to NAB "for payout figure to be sent to you on the day of settlement". [164] At 5.50am on 29 February 2016, NAB sent a fax to ABP Lawyers advising that the amount required to discharge the existing mortgage on the Property at settlement was $920,350. [165]
8. At 10.55am on 29 February 2016, Ms Lee sent an email to SAI Global (CBA's settlement agent) attaching a direction to pay $920,350 to NAB on settlement of the transfer of the Property from Mr Li to Ms Jiang at 2pm that afternoon. There is no evidence suggesting that Ms Lee sought instructions from Ms Jiang before issuing that settlement direction. [166] At 11.49am, Ms Lee sent an email to Mr Li (copied to Ms Jiang) stating that ABP Lawyers had not received any cheque direction from Mr Li and requesting his confirmation that "our cheque direction for your discharge mortgage is correct, there will be only a bank cheque for $920350.00 on settlement for you". [167] Thus, Ms Lee appears to have been proceeding on the understanding that Ms Jiang was not required to pay any amount on settlement over and above what was required to discharge Mr Li's existing mortgage and on the assumption that Ms Jiang (or her lender, CBA) would provide the whole of the amount stipulated by NAB as the payout figure for Mr Li's existing mortgage. It is not clear why Ms Lee assumed that CBA would be providing finance of $920,350 in circumstances where it had obtained a valuation of the Property at $950,000 and a copy of that valuation had been sent to on ABP Lawyers on 3 November 2015. [168]
9. In cross-examination, Mr Lu was asked about the settlement direction for $920,350 that his firm issued to SAI Global on 29 February 2016. He gave the following evidence after being taken to the settlement direction, which is on ABP Lawyers letterhead and bears Mr Lu's electronic signature, without being shown the covering email which indicates it was Ms Lee who sent the direction to SAI Global: [169] "Q. You're aware that this property settled on 1 March 2016? A. Yes. Q. The document here is a document created by you of 29 February 2016? A. Yes. Q. You'll see there that you have indicated that on settlement, there'll be a cheque paid by your client to the NAB in the sum of $920,350, correct? A. Yep, yes. Q. Had you been aware that a deposit of 310,000 had been paid, then you would not have included the figure of 920,350 there, would you? A. (No verbal reply) Q. If it helps, I can break this down? A. Well, yeah, so if, if the price - yeah, it depends on what the price was, but, yeah. Q. The price at this stage, to the best of your understanding, was 1.070, correct? A. Correct. Q. So if there had been a deposit paid of $310,000, you would not have been authorising a payment of any more than 760,000, correct? A. Yes. Q. The reason that you've got 920,350 there is because Ms Jiang had never told you about anything about a cash deposit of 310,000, had she? A. I don't remember, sorry. Q. If she had told you that she'd paid a cash deposit of $310,000, you wouldn't have had the figure of 920,000 there, would you? A. It wouldn't, it wouldn't be that figure, no. Q. The reason that the figure of 920,350 is there is because that was what you were instructed was the discharge amount required by the National Australia Bank, correct? A. At that stage I think my colleague was handling the matter. I don't recall."
10. By late morning on 29 February 2016, ABP Lawyers had learned that only $760,000 would be available from Ms Jiang's lender at settlement. At 12.13pm, Ms Lee (ABP Lawyers) sent an email to all involved in the settlement (including Mr Li). The email attached an amended settlement direction issued to SAI Global directing it to pay $760,000 to NAB on settlement. The email stated: [170] "Please find the amended cheque direction to attention for today settlement. As the client's funds available is only $760000, client need to draw a shortfall bank cheque to settlement. Dear Kate and Tao Li, Could you please give me a call as soon as possible refer to the cheque direction and shortfall, otherwise I have to cancel today settlement."
11. Mr Lu gave the following evidence in cross-examination: [171] "Q. By the time of the next day, the settlement cheque direction had changed from $920,350 to $760,000, correct? A. Yes. Q. That figure hadn't changed because Ms Jiang told you 'I have already paid a cash deposit to Mr Li and these settlement figures are wrong? A. She wouldn't have spoken - it would have been my colleague, yeah. Q. But to the best of your knowledge and understanding Ms Jiang never told anybody at your office about a $310,000 cash deposit? A. I honestly don't know. Q. No, no, just from your understanding. A. I don't know I'm aware of. Q. You haven't seen any emails or correspondence or file notes indicating that $310,000 had been paid by her as a deposit? A. Not to my recollection."
12. Ms Jiang gave evidence that, after receiving Ms Lee's 12.13pm email on 29 February 2016 referred to above and after learning from ABP Lawyers that the amount required by NAB to discharge the existing mortgage was in excess of $920,000, she immediately telephoned Mr Li and they had a conversation to the following effect: [172] "Ruochen: 'My solicitors say there is a shortfall for the settlement because the payout figure for your NAB mortgage is more than the loan advance from my bank.' Tao Li: 'That's why I borrowed money from your mother. I told my bank to pay the difference between the mortgage payout amount and the loan from CBA from my personal account. Just tell your solicitors that NAB will pay the shortfall.'"
13. Ms Jiang gave evidence that she then called Ms Lee (ABP Lawyers) and explained to her that the shortfall would be paid from Mr Li's personal account. [173]
14. Mr Li gave a very different account of his conversation with Ms Jiang on the morning of 29 February 2016. According to Mr Li, Ms Jiang telephoned him and they had a conversation to the following effect: [174] "[Mr Li]: 'What about the shortfall funds?' [Ms Jiang]: 'I do not have any funds at all now. I can only borrow some funds from my mother.' [Mr Li]: 'Can you pay me something just symbolically as a sign of auspiciousness in the Lunar New Year. Otherwise I will have to call off the settlement because I don't want to start this Lunar New Year with just giving and receive nothing in return as that would be a bad omen for the rest of the year.'" [Ms Jiang]: 'There was a lot of hard work dealing with two banks. I will borrow $95,000.00 from my mother to pay you first but if my mum ask you about this, please say you borrowed this money from her.' [Mr Li]: 'What about the rest?' [Ms Jiang]: 'I will transfer $95,000 into your account. Would you please make sure you receive it? Please allow me some time to work it all out. We can sort out the rest of the money in stages. [Mr Li]: 'Sure, I will check this in a moment.'"
15. In his affidavit sworn on 4 March 2021, Mr Li gave the following evidence: [175] "60 A part of the reason I agreed to tell [Ms Jiang's] mother I asked to borrow the money was because [Ms Jiang] had told me previously that she had transferred a large amount of money to her boyfriend in China to deal with his family emergency. [Ms Jiang] told me she never told her mother that she had done this and she did not want her mother to find out because her mother would be infuriated by this. 61 I never spoke with the [Ms Jiang's] mother about this and [Ms Jiang's] mother has never called me. 62 I did not bother checking at that time whether [Ms Jiang] transferred me $95,000.00 as I trusted her and we never had any issue with money leading up to that time. I just took her word for the transfer occurring. 63 Further, I was not in need of money at that time and I trusted that the First Defendant will pay me. 64 At that time, I had approximately eight (8) to ten (10) bank accounts with various banks and it was administratively very messy. I was not at all familiar with the amounts in each account and I effectively ignored my bank accounts. 65 Because of my private circumstances, $95,000.00 to me in 2016 was not a substantial amount of money. 66 The transfer to [Ms Jiang] of the Haymarket Property was only confirmed to my knowledge once the subpoena was returned in the Local Court matter as the documents showed that there were two lots of transfer being for $5,000.00 and $90,000.00. 67 I understood [Ms Jiang] transferred me $95,000 as part of the purchase price. 68 I understood that the mortgage I had with NAB with respect to the Haymarket property was discharged at some point. 69 My solicitor for the Hunters Hill conveyance, Shelly Sun, called me around April 2016. She asked for some money for the settlement of Hunters Hill property. I took that to mean that the loan I had with NAB for the Haymarket property converted to being for the Hunters Hill property. 70 As far as I was concerned, all arrangements regarding the Haymarket property were made by [Ms Jiang]. 71 I did not receive any correspondence from [Ms Jiang] or ABP Lawyers indicating that settlement had been effectuated. However, I understood settlement to be complete as [Ms Jiang] requested to move into the property. 72 I remained in the property until 28 March 2016 before giving the keys to [Ms Jiang]."
16. Mr Li gave evidence denying that he had ever spoken to Ms Yin about the $95,000 payment and denying that he had ever had any telephone conversation with Ms Yin about any subject matter. [176]
17. In his affidavit sworn on 8 March 2021, Mr Li deposed: [177] "I have never, at any stage, entered into any loan agreement with [Ms Yin]. I have always understood that the $95,000 was part of the purchase price of [the Property]."
18. In cross-examination, Mr Li suggested that he neither knew nor cared about the amount of the money that (on his account) Ms Jiang was to transfer to him at this time. Mr Li said that he asked Ms Jiang to pay some money because it was very important to him in Chinese culture at the time of Chinese New Year to have some money "no matter how much". Mr Li said: "… at that time, I was about to sell a property, but I didn't get any money at that time, so that means in the New Year I would just give, I would just giving without getting anything back, so it's not very good for a business person." According to Mr Li, "the purpose I asked her to give me some money is just kind of a sign of a, good luck for the Chinese New Year". [178] Mr Li acknowledged that, at this time, he had been told by Mr Parmar (NAB) that "if I don't discharge the mortgage on [the Property] I wouldn't obtain a loan for Hunters Hill" and he was aware that the mortgage had to be discharged on settlement of the transfer of the Property to Ms Jiang. [179] Mr Li was asked how, as at February 2016, he proposed to find the amount of $920,000 to discharge the mortgage over the Property. Mr Li answered: [180] "I had the money and also Ms Jiang told me she got the home loan for $760,000 and there was a shortfall of [$160,000], so I asked the money from China and then later on I asked Ms Jiang to transfer this money to me."
19. The bank statements for Mr Li's home loan account #848 and his NAB account #941 do not record any amount of $160,000 being paid to Mr Li from China into his NAB account #941 or into his home loan account in or about February 2016. No bank records from any other bank account of Mr Li were tendered. The sum of $160,444.96 was paid into Mr Li's home loan account #848 from Mr Li's NAB account #941 at settlement of the transfer of the Property on 1 March 2016. The principal sources of the credit balance in account #941 on 1 March 2016 were Ms Jiang's payment of $159,700 made into Mr Li's NAB account #941 on 21 December 2015 and Ms Yin's payments totalling $95,000 made into Mr Li's NAB account #941 on 29 February 2016. [181]
20. In cross-examination, Mr Li said that it was "impossible" that he had asked to borrow $95,000 from Ms Jiang and had accepted that payment as a loan from her mother because, at that time, Mr Li was in fact lending money to Ms Jiang in cash. Mr Li had not mentioned these alleged cash loans in his affidavits. [182]
21. Ms Jiang gave evidence that, after the conversation that she says she had with Mr Li concerning the shortfall as referred to at [206] above, she telephoned Ms Lee (ABP Lawyers) and informed her that the shortfall would be paid from Mr Li's NAB account. Contemporaneous email correspondence corroborates Ms Jiang's evidence. [183]
22. At 1.13pm on 29 February 2016, Ms Lee (ABP Lawyers) sent an email to Mr Parmar (copied to Mr Li) requesting Mr Parmar to "please confirm you are aware of the shortfall that Ms Jiang has transferred to Tao Li already, otherwise, I will call for cancel the settlement in case of issue". [184]
23. Settlement did not proceed on 29 February 2016 and was postponed to 1 March 2016. [185]
24. At 3.44pm on 29 February 2016, an email was sent from Mr Li's email address to Mr Parmar stating: [186] "I Tao Li confirmed that you can authoriz the shortfall of 160000 to be debited from my account in NAB. Thank you." [187] In cross‑examination, Mr Li denied that he had sent this email and suggested that Mr Parmar of NAB had used Mr Li's mobile phone to send the email from Mr Li's email account. Mr Li later acknowledged that the email did not appear to have been sent using his phone, but maintained that he did not send it himself and that Mr Parmar must have sent it. Mr Li gave evidence that Mr Parmar "kept chasing me" on 29 February 2016 and urging him to repay the loan so the mortgage could be discharged. However, Mr Li denied that Mr Parmar had mentioned a shortfall of $160,000. [188] Mr Li said: [189] "We didn't have a conversation regarding the shortfall $160,000, because he knew that I had sufficient funds for this charge already. At that time he just wanted to remined me one more time that if I don't discharge the home loan, my pre-approval for the Hunters Hill will expire."
25. The email contains spelling and grammatical errors of a kind that do not appear in emails sent from Mr Parmar's email address that were tendered in evidence. [190]
26. In his affidavit sworn on 8 March 2021, Mr Li gave evidence that he believed or assumed that it was Ms Jiang who had transferred the $95,000 to him at the end of February 2016, although he had not bothered to check at the time whether that sum had been transferred at all. Mr Li deposed that he first became aware that Ms Yin (rather than Ms Jiang) had made the $95,000 transfer when Ms Yin's bank records were produced on subpoena in the 2018 proceeding. According to Mr Li, he has never spoken with Ms Yin about the $95,000 payment and Ms Yin has never made enquiries with him about it. [191]

Settlement on 1 March 2016

1. Settlement was re-arranged for 2pm on Monday, 1 March 2016 [192] and proceeded on that date. [193] On settlement, Ms Jiang's incoming mortgagee (CBA) paid $760,000 to Mr Li's outgoing mortgagee (NAB) and the remaining $160,444.96 required to discharge Mr Li's mortgage was transferred from his NAB account #941 to his NAB home loan account #848, as referred to above at [213]. [194]
2. The Transfer was registered, and Ms Jiang became the registered proprietor of the Property, on or shortly after 1 March 2016.
3. In his affidavit sworn on 4 March 2021, Mr Li deposed that he saw the Transfer for the first time when it was produced during the 2018 proceedings, that he has never signed any transfer for the Property or any other document relating to the sale of the Property and that he did not agree at any stage to sell the Property for $1,070,000. Mr Li deposed that the signature under "transferor" is not his signature and he has never known or met a person named Hao Wang who is named as the witness to his signature on the Transfer. According to Mr Li, he was "completely unaware" until December 2019 that the Property had been recorded as having been transferred for $1,070,000. [195] Mr Li's affidavit evidence that he had never signed any transfer in respect of the Property is contrary to his evidence in cross-examination referred to at [142] above.

Mr Li vacates the Property at the end of March 2016

1. Mr Li did not move out of the Property until the end of March 2016, when he moved into a caravan before moving into the Hunters Hill property towards the end of May 2016. [196]
2. Ms Jiang moved into the Property at the end of March 2016.
3. Mr Li claims, and Ms Jiang denies, that the items referred to at [173] above were left in the Property when he moved out. Ms Jiang gave evidence that the only items left in the Property were some old items of furniture that Mr Li told her he did not want any more and that Ms Jiang could just throw them away if she did not want them. Ms Jiang described the items as from IKEA or of similar quality as IKEA furniture and gave evidence that she disposed of those items within six months of moving in. [197]

April 2016 to July 2017

1. In his affidavits, Mr Li made no mention of asking Ms Jiang to pay the balance of what he says she owed him for her purchase of the Property in the period after he moved out of the Property. Indeed, Mr Li gave evidence in his 8 March 2021 affidavit that he did not contact Ms Jiang at all after moving out of the Property as he was very busy with his wedding which took place in June 2016. [198]
2. According to Ms Jiang, she had frequent contact with Mr Li in the period between April 2016 and July 2017. Ms Jiang was working full-time for Vin International and Mr Li came into their offices at least twice a week and they also had frequent contact by telephone to discuss matters relating to Vin International. [199] Ms Jiang gave evidence that Mr Li did not ask her about any amounts that he now claims she owes to him. However, Ms Jiang frequently asked Mr Li about when he was going to repay the $95,000 to Ms Yin. Mr Li always replied to the effect that he would repay Ms Yin from the sale proceeds of his Liverpool Street property. Mr Li did not sell that property until November 2016, at which time he told Ms Jiang that he needed to repay other debts first and that he would repay Ms Yin "once I get organized [sic]". [200]
3. Ms Jiang gave evidence that Ms Yin informed her in July 2017 that Mr Li had denied for the first time owing any money to her. [201] Ms Jiang then telephoned Mr Li, who said that Ms Yin must have misunderstood him. Ms Jiang insisted there had been no misunderstanding and that she believed Mr Li was "simply a swindler". The conversation ended with Mr Li calling Ms Jiang "psycho" and terminating the call. Ms Jiang gave evidence that she and Mr Li had no further contact after July 2017. [202]

Relevant events after July 2017

1. Mr Li gave evidence that, in late 2017, he believed that Ms Jiang still owed him about $500,000. [203] Mr Li says that he told Ms Jiang in about November 2017 that he was "not too worried" about the outstanding money and that "you can just payment in your own time" because Ms Jiang had just been "let go from work". [204]
2. According to Mr Li, he took little or no interest in what had been paid to him for the Property until Ms Yin commenced the 2018 proceeding. As a result of inspecting subpoenaed documents in the 2018 proceeding, Mr Li says he has ascertained that the amount of $760,000 was transferred to him on settlement in addition to the $95,000 paid by Ms Yin. Mr Li maintains that the agreed purchase price was $1,500,000 and that the amount now owing to him is $685,000, calculated as follows: [205] " $1,500,000.00 (Sale Price) - $95,000.00 (Amount transferred by the First Defendant) - $760,000.00 (Bank Transfer for Settlement) + $40,000.00 (Money lent for stamp duty) $685,000.00"
3. Mr Li gave evidence that he delayed pursuing his claim in the 2020 proceeding because it was not until December 2019 that he became aware that the Property had been recorded as having been transferred to Ms Jiang for $1,070,000 rather than $1,500,000. Mr Li also claims to have been delayed as a result of personal circumstances, including the death of his father in August 2018, his involvement in divorce proceedings since January 2018 and his involvement since August 2017 in proceedings concerning Vin International. [206]
4. In cross-examination, Mr Li gave evidence suggesting for the first time that he had sent emails, text messages or WeChat messages to Ms Jiang requesting payment of the money that he claims she owes him, but these messages had been lost because he lost his phone. Mr Li also gave evidence to the effect that he believed that the money that he claims Ms Jiang owed him could be deducted from moneys payable in relation to a purchase of a farm in Queensland. In his affidavits read at the hearing, Mr Li had advanced the explanations referred to immediately above for his delay in taking steps to recover the moneys that he claims Ms Jiang owes him for her purchase of the Property. Those affidavits made no mention of any transaction concerning a Queensland farm. Mr Li's suggestion that the moneys allegedly owing were to be repaid by some adjustment relating to a Queensland farm transaction emerged for the first time in cross-examination. [207] The alleged Queensland farm transaction is the subject of separate proceedings that were commenced in this Court in 2021. The pleadings in those proceedings, which were tendered at the hearing of the present proceedings, reveal that the parties to the alleged transaction were Yue Family Investment Pty Ltd and Ms Yin. Neither Mr Li nor Ms Jiang are said to have been parties to the alleged transaction. [208]
5. It was put to Mr Li in cross-examination that the only reason that he is now claiming that Ms Jiang owed him money was because Ms Jiang's mother had commenced proceedings against him. Mr Li denied this. [209]
6. On 31 August 2018, Ms Yin sent an email to Mr Li demanding repayment of the $95,000 loan within 7 days "as it has already passed your committed payback date for a very long time". [210] There is no evidence of any specific "committed payback date".
7. On 15 April 2021, Ms Jiang's solicitors sent a letter to the solicitors then acting for Mr Li stating that Ms Jiang had lent Mr Li the sum of $159,700 in the circumstances set out in paragraphs 59 to 63 of her affidavit affirmed on 9 April 2021 in the 2020 proceedings. The letter stated: "The loan has not been repaid." The letter did not expressly demand repayment of the loan. [211]

Mr Wang

1. Mr Hao Wang arrived in Australia on 29 September 2015. His incoming passenger card, which was tendered in evidence, gave his intended address as an address in George Street, Sydney. Mr Wang did not specify 3507 Liverpool Street as his intended address. [212] Ms Jiang gave evidence that Mr Wang did live at another address before she made her arrangement with Mr Li in about October 2015 in relation to the 3507 Liverpool Street property, and that Mr Wang moved into 3507 Liverpool Street at the same time that she did. [213]
2. Ms Jiang gave evidence that Mr Wang returned to China in or about late 2015 after completing his degree in Sydney. Ms Jiang remained in contact with him through WeChat for a short period of time thereafter, but their contact soon ceased as they had little in common. Since the commencement of the 2018 proceeding, Ms Jiang says that she has made many attempts to contact Mr Wang using WeChat and an email address that she had for him. Those attempts have been unsuccessful. [214] Ms Jiang did not tender the unanswered emails and WeChat messages.

Submissions

1. I have considered all of the written and oral submissions made by all parties, irrespective of whether they are expressly referred to in these reasons.

Witnesses

1. Mr Li, Ms Jiang and Ms Yin have each given evidence of events and conversations that occurred approximately four and a half years before the final hearing of these proceedings. In assessing their evidence, it is necessary to be mindful of the following well-known observations of McLelland CJ in Eq in Watson v Foxman: [215] "… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
2. The factors referred to by his Honour require primary emphasis on the objective surrounding facts that are either undisputed or established by contemporaneous documents, and the inherent probabilities and improbabilities: Fox v Percy; [216] Re Colorado Products Pty Ltd (in prov liq); [217] Moubarak by his tutor Coorey v Holt. [218] In any commercial litigation, contemporaneous documents "generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony". However, notwithstanding the fallibility of human memory, witness testimony may still be of value and importance, including by providing evidence of the context in which relevant documents and events must be understood: ET-China.com International Holdings Ltd v Cheung. [219]
3. The following observations of Hammerschlag J (as the Chief Judge in Equity then was) in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [220] are also directly relevant to the assessment of the evidence in the present case: "Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. … Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences … The sensation of feeling an actual persuasion, after a contest, that an event has happened or that something exists is one which is well known and recognised by experienced trial judges for what it is."
4. Of course, the requirement for the Court to feel actual persuasion applies to all disputed facts and not merely to disputed conversations: Warner v Hung, in the matter of Bellpac Pty Ltd (recs and mgrs aptd) (in liq) (No.2). [221]
5. In Sergienko v AXL Financial Limited, the Chief Judge in Equity had occasion to observe: [222] "A party asserting, and seeking to rely upon, the terms of an alleged, undocumented commercial transaction said to involve the transfer of very large sums of cash, ought not to be taken by surprise when he, she or it fails to persuade the Court of its existence."
6. The facts in Sergienko were very different from those of the present, but his Honour's observation is nevertheless apposite. Contrary to the submissions made by counsel for Mr Li, the observation is equally applicable in the present case to the alleged terms of the oral sale agreement as to the existence and terms of the alleged oral loan agreements.
7. Mr Li was a most unsatisfactory witness.
8. Mr Li gave evidence in his affidavit sworn on 4 March 2021 and in cross-examination to the effect that he had a conversation with Ms Jiang in early October 2015 in which she offered to purchase the Property and its contents for $1,500,000 and he accepted that offer. [223] That evidence, which underpins all of Mr Li's claims for relief in the 2020 proceeding, is a recent invention as counsel for Ms Jiang submitted. It is wholly irreconcilable with Mr Li's pleadings in the 2018 proceeding. [224] Witness statements signed and served by Mr Li in the 2018 proceeding up until April 2020 are consistent with Ms Jiang's evidence that they agreed in early October 2015 that she would purchase the Property at market value. [225]
9. The lengthy oral submissions made by counsel for Mr Li in relation to the credibility of witnesses failed to grapple with the fundamental problems referred to immediately above. Counsel initially submitted that the inconsistency lay only in "one iteration of the pleadings". That is wrong. The inconsistency lies in the current iteration of Mr Li's defence in the 2018 proceeding, [226] as counsel for Mr Li subsequently acknowledged on the second day of his closing submissions.
10. Even after accepting that the current iteration of Mr Li's pleaded defence of the 2018 proceeding is wholly inconsistent with his evidence that he and Ms Jiang agreed on a price of $1,500,000 in early October 2015, counsel for Mr Li made no submissions that meaningfully addressed that inconsistency. The 2018 proceeding had commenced in the Local Court before being transferred to this Court. Counsel for Mr Li noted that pleadings in the Local Court are not verified by affidavit and invited this Court to infer that Mr Li's solicitor may have made an error when preparing his defence that was filed in the 2018 proceeding. [227]
11. I reject that submission, which invites the Court to speculate about the existence of an alleged error that Mr Li has never identified, much less sought to correct or explain. The history of the pleadings in the 2018 proceeding and the 2020 proceeding, and Mr Li's pleading of an agreed price of $1,150,000 in the current iteration of his defence filed in the 2018 proceeding, was canvassed in detail in Ms Yin's written opening submissions served prior to the commencement of the final hearing and prior to Mr Li providing his written opening submissions. Notwithstanding that this fundamental inconsistency was expressly highlighted for Mr Li and his legal representatives in those opening submissions, Mr Li made no attempt to give any evidence explaining the inconsistency.
12. In any event, it is plain from the repeated references to $1,150,000 throughout Mr Li's defence in the 2018 proceeding and from the substance of Mr Li's signed witness statements referred to at [247] above that this was no error.
13. In closing submissions, counsel for Mr Li endeavoured to divert attention away from Mr Li's defence filed in the 2018 proceeding by focussing heavily on Mr Lu's evidence and criticisms of Ms Jiang's credibility and evidence. The criticisms of Ms Jiang's evidence lack substance for the reasons explained in more detail below. Counsel for Mr Li clung to Mr Lu's evidence as providing independent corroboration of Mr Li having agreed to a price of $1,500,000 with Ms Jiang in early October 2015. For the reasons explained in more detail below, Mr Lu's evidence lacks the weight and significance that counsel for Mr Li endeavoured to attach to it.
14. On several occasions during his cross-examination, Mr Li gave evidence that was inconsistent with his affidavit evidence, either by introducing material matters that had not been mentioned in any of his four affidavits read at the final hearing or by contradicting his evidence in those affidavits. For example: 1. Mr Li gave evidence in cross-examination denying that he told Ms Jiang that he needed money from the sale of the Property urgently to buy the new property in Hunters Hill, contradicting his own affidavit evidence; [228] 2. Mr Li's account of having signed a transfer document with a price of $1,500,000 at Ms Jiang's request emerged for the first time in cross-examination and is contrary to his affidavit evidence; [229] 3. Mr Li gave inconsistent evidence in relation to the sum of $159,700 that Ms Jiang paid into his account on 18 December 2015; [230] 4. Mr Li gave evidence in cross-examination that, as at late February 2016, he had been making various cash loans to Ms Jiang. Those alleged loans had not been mentioned in Mr Li's affidavits; [231] and 5. in cross-examination, Mr Li referred for the first time to messages that he claims to have sent to Ms Jiang in the period after mid-2017 seeking repayment of the monies that he now claims she owes him. [232]
15. The contemporaneous documentary evidence shows that other aspects of Mr Li's evidence are plainly wrong. In particular: 1. the documentary evidence shows that CBA had approved Ms Jiang's loan application on 24 November 2015, yet Mr Li gave evidence that Ms Jiang told him during a conversation at Christmas 2015 that "I had problems with the bank getting a loan to purchase the property. I need to go to another bank"; [233] and 2. the documentary evidence shows that CBA had valued the Property at $950,000, yet Mr Li gave evidence that Ms Jiang told him in January 2016 that her bank's valuation was $1,180,000. [234] Mr Li adhered to that evidence, even when confronted with the contrary documentary evidence, refusing to acknowledge the objective facts presented to him.
16. In one instance, inconsistencies within Mr Li's evidence rose to the level of absurdity. On the one hand, Mr Li gave evidence that he urged Ms Jiang at Christmas time in 2015 to obtain a loan to purchase the Property quickly so that her purchase could be settled and his mortgage discharged as soon as possible because "I really need to purchase the Hunters Hill property before I get married". [235] On the other hand, Mr Li gave evidence that, as at late February 2016, he did not know when settlement of his transaction with Ms Jiang would occur or how much her lender would pay on settlement to discharge his mortgage secured against the Property, but "I did not have any concerns". [236] Mr Li knew that his mortgage secured the $920,000 that he had borrowed from NAB when he refinanced in March 2015. [237] Mr Parmar had told him that the mortgage must be discharged before he could proceed with his proposed purchase of the Hunters Hill property. [238] The notion that Mr Li simply left it to Ms Jiang to arrange settlement, did not know how much would be paid against his mortgage on settlement and therefore did not know whether or not his mortgage would be discharged and "did not have any concerns" about that, is so implausible that it is absurd. Even assuming in Mr Li's favour that he may have not understood that failure to discharge his mortgage on settlement would mean that the settlement could not proceed at all, it is clear from his own evidence that he understood that failure to discharge the mortgage would mean that he could not proceed with the purchase of the Hunters Hill property that he says he was in a hurry to buy before his impending marriage. Moreover, Mr Li's evidence of his lack of knowledge of the amount that Ms Jiang had borrowed from her bank for the purchase and his lack of "concerns" about how much would be paid on settlement is wholly inconsistent with other evidence that Mr Li gave in cross-examination that Ms Jiang had told him the amount of her loan, that he knew there was a shortfall of $160,000 and "so I asked the money from China and then later on I asked Ms Jiang to transfer this money to me". [239]
17. For all of those reasons, I do not accept Mr Li's evidence unless it is corroborated by reliable evidence of another witness, consistent with objective surrounding facts that are either undisputed or established by contemporaneous documents, consistent with the inherent probabilities and improbabilities, or contrary to his own interests.
18. In contrast to Mr Li's evidence, the evidence of Ms Jiang was internally consistent and largely consistent with the contemporaneous bank records. As Ms Jiang readily acknowledged in cross-examination, she is plainly mistaken about the timing of her conversation with Mr Li in which $1,500,000 was discussed as the estimated value of the Property. Such errors are examples of the fallibility of human memory rather than lack of credibility.
19. The same observations apply to Ms Yin's evidence, although her evidence was much narrower in scope.
20. Counsel for Mr Li submitted that Ms Jiang was "not a witness of the truth". Counsel identified four grounds for that submission.
21. First, it was submitted that the credibility of Ms Jiang and Ms Yin was "entirely destroyed" because they have "identical affidavits". [240] Counsel for Mr Li later modified that submission by recognising that only parts of one witness statement of each Ms Jiang and Ms Yin were identical. I reject the submission for the following reasons.
22. As explained at [182]-[199] above, four paragraphs of one witness statement of each of Ms Jiang and Ms Yin are in almost identical terms. In those paragraphs, each witness explains how her review of Telstra records has led her to accept that she was mistaken about the precise date on which a particular telephone conversation with Mr Li had occurred. On the occasion in question, each witness describes a different telephone conversation with Mr Li. That is to say, Ms Jiang did not participate in Ms Yin's conversation with Mr Li (although she overheard parts of Ms Yin's side of the conversation), and Ms Yin did not participate in Ms Jiang's conversation with Mr Li. The parts of their respective witness statements and affidavits that describe the conversations are not identical or nearly identical.
23. The language in which the four contentious paragraphs were drafted does not sit well with the manner in which each of Ms Jiang and Ms Yin used language when giving their evidence in English under cross-examination. The four paragraphs read more like a submission than evidence. They have clearly been drafted by a solicitor (as Ms Jiang said in cross-examination) who has not taken the trouble to convey in an authentic manner the evidence of each witness concerning the date of the relevant conversation. The four paragraphs are an illustration of the "oft unspoken reality" referred to by Nettle and Gordon JJ in Queensland v Estate of the late Masson that "lay witness statements are liable to be workshopped, amended and settled by lawyers". [241] Contrary to the submission made on behalf of Mr Li, the four contentious paragraphs are not evidence of collusion between Ms Jiang and Ms Yin, either in relation to the substance of their evidence in the four paragraphs or their evidence more generally. I accept the evidence of Ms Jiang and Ms Yin that they did not collude with one another in preparing their witness statements and affidavits. Ms Jiang's explanation of how the four paragraphs were prepared [242] is inherently plausible having regard to the language of those paragraphs.
24. I reject the submission that Ms Yin's credit as a witness is undermined by her denial that the paragraphs were "almost identical". I observed that Ms Yin was given adequate time to read the paragraphs before those questions were put to her. However, it is clear from her answers that she struggled with the concept of the paragraphs in each witness statement being "identical" in circumstances where each statement gives an account of related events that happened at the same time and in the same location. [243] Moreover, as I have already noted at [187] above, these questions were put to Ms Yin in relation to five paragraphs (not four) and the substance of the fifth paragraph in Ms Yin's witness statement cannot fairly be described as identical to the equivalent paragraph in Ms Jiang's statement.
25. In submitting that the four paragraphs were evidence of collusion that undermined the credit of Ms Jiang and Ms Yin, counsel for Mr Li relied on the judgment of Kunc J in Lucas v Salman. [244] In that case, his Honour was not persuaded on the balance of probabilities that the terms of an oral agreement were as alleged by the two plaintiffs because their evidence about the terms and the language they had used in describing their recollections of their conversations with the other party to the agreement (who was deceased) was "near identical". Referring to the observations of Nettle and Gordon JJ in Queensland v Estate of the late Masson that I have cited above, Kunc J said at [185]: "While the use of a few similar terms by lay witnesses may be perfectly explicable … where two witnesses provide accounts that are virtually identical, it raises the probability that collusion has occurred between them. Even if no collusion has occurred, '[a]t the very least it demonstrates that there has been no genuine, independent attempt to recollect critical evidence so as to give the Court a truthful rather than reconstructed account'. … Without independent corroboration, such evidence is generally not to be accepted." Those observations have no application to the very different circumstances of the present case in which the four contentious paragraphs relate to the process by which two witnesses reviewed the same telephone records and recognised their error concerning the date of a conversation, the precise date (27 or 28 February 2016) is irrelevant to the matters to be determined in these proceedings and the striking similarity between the language and structure of the four paragraphs is attributable to the lawyer who drafted them rather than collusion between the witnesses for the reasons that I have already explained.
26. Second, it was submitted that Ms Jiang gave dishonest evidence in "downplaying" her relationship with Mr Li. That submission was put on several bases, each of which involved accepting Mr Li's uncorroborated evidence and rejecting Ms Jiang's evidence to the contrary. For example, it was submitted that Mr Li's evidence that he would sometimes meet Ms Jiang after work when she was working in the Defence Plaza building had "a real air of believability about it" because Mr Li was able to describe the camera shop opposite the building where he would wait for Ms Jiang. It was submitted that the Court should therefore reject Ms Jiang's denial of these meetings and that this was one reason why the Court should accept Mr Li's evidence that he and Ms Jiang were in a romantic relationship for a period of time prior to the transactions that are the subject of these proceedings. I do not accept that Mr Li's uncorroborated evidence about the alleged meetings had an "air of believability". The fact that Mr Li was able to describe a location in the Sydney CBD says nothing about whether he in fact met Ms Jiang at that location, as he claims to have done. This aspect of the evidence and other aspects of the evidence in respect of which counsel for Mr Li submitted that Mr Li's evidence should be accepted [245] are not directly relevant to the disputed transactions. In each instance, the submission that Mr Li's evidence should be accepted and Ms Jiang's evidence rejected amounted to nothing more than an assertion that Ms Jiang had given untruthful evidence or "downplayed" matters because her evidence was inconsistent with Mr Li's evidence. I reject those assertions. For the reasons already explained at [246]-[256] above, I do not accept Mr Li's uncorroborated evidence about those matters.
27. Third, it was submitted that Ms Jiang "downplayed" her fluency or proficiency in the English language by her evidence that her work for the ASX-listed company mostly involved Excel work. That submission singled out one answer given by Ms Jiang in the line of questioning about her proficiency in the English language and ignores the rest of her evidence about that subject. The whole of Ms Jiang's evidence about that subject is summarised at [59] above. The submission that Ms Jiang was endeavouring to "downplay" her proficiency in the English language is baseless and I reject it. The answer in question was simply a factual statement about the nature of Ms Jiang's work, which did not detract from Ms Jiang's evidence about the completion of her degrees in English and her use of the English language in her work. Ms Jiang made it abundantly clear in the answers that she gave, without hesitation, that she is fluent in written and spoken English.
28. Fourth, it was submitted that Ms Jiang "is a dishonest person who is willing to lie for her benefit" because she had provided information to CBA in connection with her application for the loan to purchase the Property to the effect that her base salary was approximately $150,000, contrary to her evidence that her base salary at the time was between $5,000 and $6,000 per month. It was submitted that this "undermines the entirety of [her] credibility". I accept that there is a discrepancy between Ms Jiang's salary figure in the email correspondence between Ms Jiang and Mr Li concerning information to be provided to CBA, and Ms Jiang's evidence that she was earning between $5,000 and $6,000 per month. However, Ms Jiang gave evidence in cross‑examination that Mr Li knew what her salary was because Mr Li was managing the accounts and the salaries for Vin International where she was working at the time. That aspect of Ms Jiang's evidence was not challenged. Mr Li could read English numerals. As counsel for Mr Li acknowledged, Mr Li was complicit in providing to CBA the inaccurate information about Ms Jiang's base salary set out in the email between Ms Jiang and Mr Li. I do not consider that the email provides a basis for preferring Mr Li's evidence to Ms Jiang's evidence in relation to the matters in dispute in these proceedings. Nor do I consider that untruthful information provided to a third party outside of court proceedings, without more, necessarily supports a conclusion that a witness has been "willing to lie for her benefit" when giving evidence under oath or affirmation in the proceedings. I do not consider that any such conclusion is warranted in this case.
29. For all of those reasons, the approach that I take to assessing the evidence of each of Ms Jiang and Ms Yin in relation to disputed matters is to consider their evidence against the objective surrounding facts that are undisputed or established by contemporaneous documents, and the inherent probabilities and improbabilities, consistently with the authorities referred to at [239]-[245] above.
30. Counsel for Mr Li submitted that "the most believable and the most reliable witness in this proceeding was Mr Lu". I accept that Mr Lu was an honest witness. However, I consider that the limited evidence that he gave has little weight and that the documents that were created by Mr Lu and his firm in relation to Ms Jiang's purchase of the Property do not provide a sound basis for drawing the inferences that counsel for Mr Li submitted should be drawn. I acknowledge that it is somewhat unusual for the evidence of a solicitor and documents from the solicitor's contemporaneous file to be treated with such caution. My reasons for doing so are explained below in the course of setting out my findings of fact and the reasons for those findings.

Terms of the oral agreement

1. Counsel for Mr Li correctly accepted that Mr Li bears the onus of demonstrating that the terms of the oral agreement were that Ms Jiang would purchase the Property from Mr Li for $1,500,000.
2. Ascertaining the terms of an oral contract is a question of fact. It is permissible to consider the full range of surrounding circumstances, including post‑contractual conduct, in determining that question of fact: County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [246] ; King v Adams. [247]
3. For all of the reasons explained at [246]-[256] above, I reject Mr Li's evidence that Ms Jiang offered and he accepted a price of $1,500,000 for the Property and its contents during their conversation in early October 2015. As I have already said, that evidence is a recent invention.
4. Contrary to the submissions made on behalf of Mr Li, neither Mr Lu's evidence nor the relatively contemporaneous documents establish or support Mr Li's contention that a price of $1,500,000 was agreed in his conversation with Ms Jiang in early October 2015.
5. As explained at [93]-[95] and [97]-[99] below, Mr Lu does not claim to have any independent recollection of the instructions that Ms Jiang provided to him about the transaction when she first contacted Mr Lu by telephone on about 8 October 2015. Mr Lu's evidence under cross-examination referred to at [100] above must be understood as based on the reconstruction process that he described in his affidavit. At times, he made that expressly clear in the terms of his answers. [248] Mr Lu's evidence in cross-examination was that he did not know whether Ms Jiang had told him in their initial conversation that the purchase price was $1,500,000 and he could not recall whether Ms Jiang had told him that she needed him to obtain a market valuation or told him anything about "an agreement where the purchase price was subject to an independent expert determining purchase price". Contrary to the submission made by counsel for Mr Li, that does not amount to evidence that Mr Lu could recall the conversation and had a positive recollection that it did not include Ms Jiang saying that she needed him to obtain a valuation or that she had agreed with Mr Li that the price would be as determined by an expert valuer. It is clear from the reconstruction process that Mr Lu described in his affidavit and from his last answer set out at [100] above that Mr Lu had no recollection one way or the other about whether Ms Jiang said those things during his initial conversation with her.
6. I accept that Ms Jiang's email sent to Mr Lu on 9 October 2015, referred to at [98] above, is some contemporaneous evidence from which it might be inferred that Ms Jiang did instruct Mr Lu in their 8 October 2015 conversation that she and Mr Li had agreed a price of $1,500,000. However, I consider that it is more probable that the reference to "price" in that email was a reference to an estimated price or estimated value of $1,500,000 that had been discussed between Ms Jiang and Mr Li on or about 8 October 2015. Ms Jiang gave evidence to that effect, albeit that she was unsure about the timing of that discussion compared to other events at about the same time. The contents of the DK Property Professionals Instruction Form provide some corroboration for Ms Jiang's evidence that Mr Lu told her that he required an "estimate price" in order to "do a valuation application" and the form as completed corroborates Ms Jiang's evidence that she and Mr Li had discussed an estimated value of $1,500,000. [249] A further reason why the second inference is more probable than the alternative inference for which Mr Li contends is that, if Mr Li and Ms Jiang had agreed on a price of $1,500,000 in their 8 October 2015 conversation as he now claims, it is glaringly improbable that Mr Li would have filed a defence in the 2018 proceeding pleading a price of $1,150,000 and served a witness statement setting out an account of that conversation in which he said to Ms Jiang: "Can you find out the valuation from the bank and we can add some on top of the bank's valuation to settle our sale price". [250]
7. Mr Li relied on Mr Lu's email sent to CBA on 16 October 2015 [251] and his email sent to Ms Jiang on 29 October 2015, [252] both of which attached a draft transfer that stated a purchase price of $1,500,000, as further evidence from which it might be inferred that Ms Jiang did instruct Mr Lu in their 8 October 2015 conversation that she and Mr Li had agreed on a price of $1,500,000. However, consideration of the substance of the 29 October 2015 email reveals that the emails do not provide a sound basis for drawing that inference on the balance of probabilities. That is because, as counsel for Ms Jiang identified in her closing submissions, the amount of stamp duty in the email has been calculated on the basis of a purchase price of $1,070,000, which corresponds with the market value of the Property according to the draft valuation report that had been received by DK Property Professionals on the same day (29 October 2015). I infer from the amount of the stamp duty identified in the email that Mr Lu or a solicitor or paralegal employed by his firm had calculated the stamp duty on the basis that the purchase price was $1,070,000 and that the reference to a price of $1,500,000 in the draft transfer attached to the email was an error. As I have referred to earlier in these reasons, the 29 October 2015 email also erroneously states that ABP Lawyers were ready to proceed to settlement. Those errors in the 29 October 2015 email and the attachment to that email give rise to doubts about whether other documents created by Mr Lu or his firm at the time provide a sound basis for drawing inferences that assume the correctness of statements made in those documents. For that reason, I do not consider that Mr Lu's evidence referring to his 16 October 2015 email (which was not tendered in evidence by any party) provides a sound basis for drawing any inference about the instructions that Ms Jiang gave Mr Lu about the purchase price between 8 and 16 October 2015.
8. Counsel for Mr Li submitted that the fact that the DK Property Professionals valuation report was not provided to Mr Li [253] supports an inference that Mr Li and Ms Jiang had not agreed that the Property would be sold to Ms Jiang at a fair market valuation price. I accept that, considered objectively, it is unusual that a vendor who had agreed to sell property at fair market valuation would not be provided with a copy of the valuation report. However, as counsel for Mr Li acknowledged in closing submissions, it is common ground that Ms Jiang and Mr Li had a certain level of trust in one another at this time. [254] Irrespective of whether the Court accepts the evidence of Mr Li or the evidence of Ms Jiang concerning the $310,000 payment, the stamp duty payment and the $159,700 payment, that trust extended to dealing with one another in tens or hundreds of thousands of dollars without recording those dealings in writing. In those circumstances, it is not inherently improbable that Mr Li trusted Ms Jiang in October 2015 to tell him the amount of the valuation and did not require a copy of the valuation report. The fact that the valuation report was not provided to Mr Li therefore does not support an inference that Mr Li did not agree to sell the Property to Ms Jiang for a fair market valuation price. Nor does it support an inference that Mr Li and Ms Jiang agreed on a price of $1,500,000. Any such inference would be contrary to Mr Li's defence in the 2018 proceeding. As I have already said, that defence renders it glaringly improbable that a price of $1,500,000 was agreed between Mr Li and Ms Jiang.
9. For all of those reasons, Mr Li has failed to discharge his onus of proving that a purchase price of $1,500,000 was a term of the oral agreement for the sale of the Property to Ms Jiang.
10. I accept Ms Jiang's evidence that Mr Li agreed to sell, and she agreed to purchase, the Property for a fair market valuation price during their conversation in early October 2015. [255] That evidence is broadly consistent with Mr Li's account of their conversation in his 18 February 2020 witness statement served in the 2018 proceedings. That statement was tendered by Ms Jiang at the final hearing subject to an order under s 136 of the Evidence Act 1995 (NSW) limiting its use to evidence of the contents of the statement and not as evidence of the truth of its contents. It is evidence that Mr Li made a statement in the terms set out therein. If Mr Li had not agreed to sell the Property to Ms Jiang for a fair market valuation price, it is highly improbable that he would have signed a witness statement setting out an account of the conversation in which Ms Jiang asked about the selling price and Mr Li replied: "I am not sure about the market value of my property. Can you find out the valuation from the bank and we can add some on top of the bank's valuation to settle our sale price. You know, bank's valuation is usually lower than the actual market price." [256]
11. Both Ms Jiang and Mr Li give evidence of a conversation that occurred after their initial conversation in October 2015, in which Ms Jiang told Mr Li about a valuation of the Property. [257] I reject Mr Li's evidence as wholly inconsistent with the contemporaneous documentary evidence. [258] I accept Ms Jiang's account of that conversation, which is consistent with the timing and amount of the DK Property Professionals valuation report.

Execution of the Transfer

1. Counsel for Mr Li correctly accepted that Mr Li bears the onus of proving forgery. [259] The standard of proof is the balance of probabilities. Given the seriousness of the allegation of forgery, clear and cogent proof is required to meet that standard. [260]
2. As I have explained at [140] above, the expert forensic document examiner's report was inconclusive about whether the disputed signature on the Transfer was written by Mr Li. I accept the submission made on behalf of Mr Li that this is not the end of the matter and I am obliged to consider the other matters relied on by Mr Li in support of the forgery allegation, namely: [261] 1. the implausibility of Mr Li signing a transfer with a price of $1,070,000 if the Court accepts Mr Li's evidence that he agreed a price of $1,500,000 with Ms Jiang; 2. Mr Li's denial that the signature of the transferor on the Transfer is his signature; 3. Ms Jiang's evidence that she knew what Mr Li's signature looked like; 4. Mr Li's denial that Ms Jiang was ever residing in the 3507 Liverpool Street apartment and his denial that he met Ms Jiang and signed the Transfer at the 3507 Liverpool Street apartment; and 5. Mr Li's denial that he ever met a person by the name of Mr Hao Wang and his denial that he signed the Transfer in Mr Wang's presence.
3. I also accept the submissions made by counsel for Mr Li and counsel for Ms Jiang that I am entitled to compare the disputed signature on the Transfer with non-disputed signatures of Mr Li. However, the authorities establish that I should pay particular attention and regard to the expert testimony concerning those signatures. [262]
4. I have referred to the expert report of Ms Holt at [140] above. Ms Holt identified limitations in her analysis that she described as "significant". The limitations included that only seventeen specimen signatures were provided for examination. Because Mr Li's signature is relatively simple and because the specimen signatures displayed considerable variation, Ms Holt was concerned about whether the specimens were fully representative of the range of Mr Li's signature. [263]
5. As I have already mentioned, Ms Holt identified that there were both similarities and differences between the disputed signature on the Transfer and the undisputed specimen signatures, with the main areas of difference being in the initial portion of the signatures.
6. Ms Holt identified two differences in the initial part of the disputed signature compared to the specimen signature: [264] 1. a "short, initial curved downstroke prior to extending in an upwards direction to form the top looped movement" that does not appear in the specimen signatures but that is not "too far off the range observed in some of the specimen examples"; and 2. a "large extra oval-shaped looped formation … that was not observed in any of the specimen examples" although a similar loop is displayed in Mr Li's signature in his passport. The loop in the passport signature does not overlap with other components of that signature, whereas the loop in the disputed signature does overlap.
7. The disputed signature together with the seventeen specimen signatures provided to Ms Holt were set out Annexure F to her report. The considerable variation between the specimen signatures identified by Ms Holt is readily apparent to my inexpert eye. The two differences in the initial part of the disputed signature identified by Ms Holt are also visible. To my untrained eye, those two differences appear to be minor having regard to the many variations within the range of specimen signatures. Neither the two differences identified by Ms Holt nor any other part of the disputed signature satisfy me that, contrary to Ms Holt's opinion, the disputed signature was not made by Mr Li on the balance of probabilities. That is all the more so taking into account the gravity of Mr Li's allegation that Ms Jiang forged his signature on the Transfer.
8. I return to the other five matters relied on by Mr Li in support of his allegation that his signature on the Transfer was forged.
9. Mr Li's evidence that he agreed to a price of $1,500,000 for the transfer of the Property to Ms Jiang has been rejected. I have accepted Ms Jiang's evidence that they agreed that she would purchase the Property at a fair market valuation price. There is nothing inherently implausible in Mr Li signing the Transfer stating the price of $1,070,000, being the market value of the Property as determined by the DK Property Professionals valuation of the Property. On the contrary, it is inherently plausible that Mr Li did sign the Transfer. For those reasons, and for the reasons at [246]-[256] above, I reject Mr Li's denial that the signature of the transferor on the Transfer is his signature.
10. Ms Jiang gave evidence that she knew what Mr Li's signature looked like in mid-November 2015. However, that does not support a finding that she was capable of reproducing his signature, much less that she did so by forging his signature on the Transfer. As I put to counsel for Mr Li in closing submissions, it is highly implausible that Ms Jiang would have forged Mr Li's signature in order to procure a transfer of the Property to herself at market value. That would have been implausible even if I had found that the orally agreed price was $1,500,000. Ms Jiang could have readily walked away from any such oral agreement had she wished to do so after receiving the DK Property Professionals valuation report. An oral agreement, with no acts of part performance as at mid-November 2015, would not have been enforceable by Mr Li.
11. For the reasons at [246]-[256] above, I reject Mr Li's denials that Ms Jiang ever resided in his apartment at 3507 Liverpool Street where Ms Jiang gave evidence that Mr Li visited her signed the Transfer in about mid-November 2015. Contrary to the submissions made by counsel for Mr Li, there is no documentary or other objective evidence that corroborates Mr Li's denial that Ms Jiang was living there. Ms Jiang's evidence that she was living there in late 2015 was credible and I accept it. Ms Jiang was asked in cross-examination to describe the apartment. She did so in some detail and was not challenged about any aspect of her description. Ms Jiang was unable to identify the precise dates during which she says that she was living there, but the period that she identified in approximate terms coincides with the period during which documentary evidence tendered by Mr Li established the Property was not rented through Mr Li's leasing agent. [265] I do not accept the submission made by counsel for Mr Li that Ms Jiang gave inconsistent evidence in her affidavit that she was "renting" the apartment and in cross-examination that she was living there without paying rent. The word "renting" is a term that is sometimes used by lay people to describe living in premises owned by somebody else. In cross-examination, Ms Jiang said that this was what she had meant by the word "renting" in her affidavit. [266] The issues raised by these proceedings did not call for Ms Jiang to clarify in her affidavit that she was not making any payment to Mr Li for this arrangement.
12. For the reasons at [246]-[256] above, I also reject Mr Li's denials that he ever met a person by the name of Hao Wang. Documentary evidence establishes that Mr Wang was in Australia at the time. Ms Jiang's failure to call Mr Wang is not unexplained. Ms Jiang did not adduce documentary evidence of unanswered emails and messages that she says she sent to Mr Wang in an effort to find him in China where he is now living and adduce evidence from him for the purpose of these proceedings. It was not put to Ms Jiang in cross-examination that she had lied about her attempts to make contact with Mr Wang. [267] In all the circumstances and contrary to the submission made by counsel for Mr Li, I do not consider that Ms Jiang's failure to adduce such documentary evidence warrants an inference that the documentary evidence would not have assisted her defence of Mr Li's claims in the 2020 proceedings. Nor does Ms Jiang's failure to adduce such documentary evidence support an inference that the documents, or any evidence that Mr Wang might have been able to give, would have been adverse to Ms Jiang's defence of Mr Li's claims. [268]
13. For all of those reasons, Mr Li has failed to discharge his onus of proving that his signature on the Transfer was forged. I accept Ms Jiang's evidence that Mr Li did sign the Transfer in her presence and in the presence of Mr Wang, and I so find. Ms Jiang's evidence is inherently plausible in light of my finding at [279] above that Mr Li agreed to sell and she agreed to purchase the Property for a fair market valuation price during their conversation in early October 2015 and in light of the evidence that DK Property Professionals determined $1,070,000 to be the market value of the Property in their draft report issued on 29 October 2015 on the basis that it would be finalised immediately upon payment of their fee. The alternative that Ms Jiang forged Mr Li's signature finds no positive support in the expert evidence or my examination of the disputed signature in comparison with Mr Li's specimen signatures and is highly implausible for the reasons explained above.

The purchase price

1. In closing submissions, counsel for Mr Li suggested that, if the Court did not find that the agreed purchase price for the Property was $1,500,000, it would be open to the Court to find that the agreed price was some unspecified amount that was more than $1,070,000. For the reasons explained above, I find that Mr Li agreed to sell and Ms Jiang agreed to purchase the Property for a fair market valuation price during their conversation in early October 2015, that the market value of the Property was subsequently determined by DK Property Professionals to be $1,070,000, that Mr Li and Ms Jiang had a conversation on or shortly after 29 October 2015 in which Mr Li confirmed his acceptance of the valuation amount of $1,070,000 as the price and that Mr Li then signed the Transfer in about mid-November 2015 stipulating the price of $1,070,000.

The $310,000 payment

1. There is no dispute that Ms Jiang paid Mr Li the sum of $310,000 on 20 November 2015.
2. I accept Ms Jiang's evidence that she paid this sum to Mr Li at his request that she make an early payment of part of the $1,070,000 of the purchase price. [269] That evidence is inherently plausible. The amount paid is the exact amount of the purchase price that Ms Jiang knew by the end of October 2015 would not be funded by her loan from CBA. [270] Contemporaneous bank records establish that Ms Jiang made the payment out of the proceeds of sale of her Arncliffe property, [271] corroborating her denial of Mr Li's story that the money was his own money that Ms Jiang had collected for him. Mr Li's bank statement shows that he burned through the $310,000 in a series of transactions in a little less than one month. [272] That pattern of conduct is broadly consistent with Ms Jiang's evidence that Mr Li told her when he asked for the payment that "I'm a bit tight for money". [273]
3. It was submitted on behalf of Mr Li that Ms Jiang's evidence should not be accepted because she did not tell Mr Lu about the $310,000 payment and that renders it implausible that the payment was made as part of the purchase price of the Property. I reject that submission. Ms Jiang gave evidence that she did tell Mr Lu about the $310,000 during a telephone conversation when Mr Lu contacted her "as the deal progressed" to discuss arrangements for settlement. Ms Jiang was unable to put a date on that conversation. Ms Jiang's evidence is consistent with the inherent probabilities. There was no need for her to tell Mr Lu about the $310,000 payment immediately or even promptly after it was made because it was irrelevant to the discharge of his role until settlement was imminent. It is probable that Mr Lu contacted her for instructions concerning settlement as the expected time for settlement drew closer, as Ms Jiang said. Contrary to the submission made on behalf of Mr Li, I regard Ms Jiang's inability to put a date on this conversation as entirely understandable given the seven years that have passed since these events occurred and given the relatively long period of time between the signing of the Transfer and settlement. [274] Mr Lu said he could not recall whether Ms Jiang had told him about a "cash deposit" of $310,000 and he did not know whether she had given that instruction to anyone else in his office. Mr Lu gave evidence that he had no recollection of seeing any email, correspondence or file note indicating that Ms Jiang had paid $310,000 towards the purchase price, but there is no evidence establishing when Mr Lu last reviewed his file prior to giving evidence at the final hearing.
4. Mr Lu accepted that, if Ms Jiang had made a payment of $310,000, then the first direction that Ms Lee issued to SAI Global on 29 February 2016 would not have directed SAI Global (as agent for CBA) to provide a cheque in favour of NAB for $920,350 on settlement. Mr Lu was unable to shed light on why Ms Lee had drafted the settlement direction in those terms. [275] It was submitted on behalf of Mr Li that the Court should infer from ABP Lawyers' direction to SAI Global to pay $920,350 to NAB on settlement that Ms Jiang had not in fact told Mr Lu about the $310,000. It was further submitted that the inference supported a finding that the $310,000 payment was not a payment of part of the purchase price of the Property.
5. I do not consider that the evidence supports the inferences for which Mr Li contends.
6. Although it is ordinarily to be expected that a settlement direction issued by a solicitor to their client's lender would be based on the client's instructions, or at least the solicitor's understanding of the client's instructions, the evidence strongly suggests that that was not so in the present case. ABP Lawyers knew that the purchase price was $1,070,000. They were in possession of the Transfer signed by Mr Li that stated that price. Indeed, they had prepared the Transfer. If Ms Jiang had informed ABP Lawyers of the $310,000 payment, the direction requiring a cheque from CBA in the amount $920,350 on settlement was wrong because it exceeded the $760,000 balance of the purchase price to be paid by or on behalf of Ms Jiang on settlement. If Ms Jiang had not informed ABP Lawyers about the $310,000 payment (or if Ms Lee was not aware of that payment), the direction was wrong because it required a cheque from CBA greater than the total amount of the funds that CBA was lending to Ms Jiang for the purchase of the Property. As I have said earlier in these reasons, ABP Lawyers knew that CBA had valued the Property at $950,000 and there is no evidence of any basis for ABP Lawyers to assume that CBA would be lending almost the whole of that amount ($920,350) to Ms Jiang. Thus, the proposition that the first settlement direction issued to SAI Global on 29 February 2016 is consistent only with Ms Jiang not having told Mr Lu (or ABP Lawyers) about the $310,000 payment is wrong. The settlement direction was erroneous, irrespective of whether ABP Lawyers had instructions about the $310,000 payment. There is no evidence that ABP Lawyers sought instructions from Ms Jiang about the first settlement direction before they sent it to SAI Global. Ms Jiang was not even copied in on the email to SAI Global attaching that erroneous direction. [276]
7. It appears that Ms Jiang was first alerted to the incorrect settlement direction by Ms Lee's emails sent at 11.49am and 12.13pm on 29 February 2016. Counsel for Mr Li placed great emphasis on Ms Lee's statement in the 12.13pm email that: "As client's funds available is only $760,000, client need to draw a shortfall bank cheque to settlement." I accept that the reference to "client" in that email appears to be a reference to Ms Jiang. However, I do not accept that this statement should be read as evidence of an understanding by Ms Lee, based on a detailed consideration of the file and after checking with Mr Lu, that Ms Jiang had not previously paid any amount towards the purchase price. Any such understanding would be inconsistent with Ms Lee's conduct in having issued the first settlement direction to SAI Global for $920,350 and having sought Mr Li's confirmation in her 11:49am email that this was the whole of the amount to be paid to him on settlement. Moreover, the statement in the 12.13pm email that "client need to draw a shortfall bank cheque to settlement" is immediately followed by a request for both Ms Jiang and Mr Li to contact Ms Lee about "the cheque direction and shortfall". That strongly suggests that Ms Lee required instructions about these matters that she had not yet obtained. [277] For those reasons, Ms Lee's statement in the 12.13pm email that "client need to draw a shortfall bank cheque to settlement" does not support an inference that Ms Jiang had not told ABP Lawyers about the $310,000 payment.
8. Mr Li's evidence that the $310,000 payment was money that "Ms Jiang received or collected on my behalf for the purpose of my purchase of the Hunter Hill Property and the operation of my school" is implausible in the absence of any evidence of those alleged transactions and in the absence of any evidence of any reason why it would assist Mr Li for Ms Jiang to receive money that was transferred from China and intended for him, rather than such money being transferred directly into Mr Li's account. The evidence is implausible in the absence of any evidence of any reason why money for the purpose of the school would be deposited into an account of Ms Jiang rather than into the bank account of Vin International, and why any such money would then be transferred to Mr Li who was only one shareholder of Vin International. It is implausible that, if the money was Mr Li's money, he would have asked Ms Jiang to "give me as much as you could" rather than simply demanding all of his money at a time when he was trying to gather all available funds to purchase an expensive property at Hunters Hill. [278] I reject Mr Li's evidence for those reasons and for the further reasons explained at [246]-[256] above.
9. For those reasons, I find that the sum of $310,000 paid by Ms Jiang to Mr Li on 20 November 2015 was a payment of part of the purchase price of $1,070,000 for the Property.
10. There is no dispute that Ms Jiang paid the balance of $760,000 to Mr Li on settlement on 1 March 2016. That sum was paid by Ms Jiang's incoming mortgagee (CBA) directly to Mr Li's outgoing mortgagee (NAB).
11. It follows that Ms Jiang has paid the whole of the purchase price of the Property to Mr Li and I so find.

The $159,700 payment

1. There is no dispute that Ms Jiang paid the sum of $159,700 into Mr Li's NAB account #941 on 21 December 2015. [279] This is the payment that is the subject of Ms Jiang's cross-claim. [280] It is common ground that Ms Jiang bears the onus of proving on the balance of probabilities that the payment was made as a loan to Mr Li.
2. Ms Jiang's evidence that she made this payment to Mr Li after agreeing, at his request, to lend him the surplus proceeds that she would receive from the refinancing that she was then undertaking with CBA [281] is corroborated by contemporaneous documents. Those documents show that Ms Jiang did receive the sum of $158,897.92 into her newly opened CBA account on 18 December 2015 and that her $159,700 payment to Mr Li three days later was funded by a withdrawal of that amount from her CBA account. The transaction description in the bank statement for Ms Jiang's account indicates that the 18 December 2015 deposit was made by the bank and represented "SURPLUS" funds paid into her account. The timing of that deposit coincides with the timing of Ms Liu of CBA advising Ms Jiang that her refinancing application had been approved and is also consistent with Ms Liu's subsequent advice to Ms Jiang that the first monthly interest payment for the refinance facility was due exactly one month after the $158,897.92 deposit. [282] Counsel for Mr Li submitted that the Court should not infer from those documents that the $159,700 payment was paid by Ms Jiang out of the surplus funds from her refinancing, but acknowledged that those inferences were available to be made and did not identify any reason why those inferences should not be drawn. I reject the submission.
3. Mr Li advanced two contradictory explanations for the $159,700 payment, one of which was irreconcilable with objective facts established by the contemporaneous documents and the other of which was inherently implausible. The first explanation and its inconsistencies with contemporaneous records is set out at [163]-[165] above. The second explanation is set out at [166] above and is implausible for the same reasons that I have explained at [302] above in relation to Mr Li's evidence concerning the $310,000 payment. Counsel for Mr Li did not submit that his evidence about the $159,000 payment referred to at [163]-[165] should be accepted. Rather, counsel for Mr Li submitted that his evidence concerning the stamp duty payment referred to below should be accepted, and it would then follow that Ms Jiang's evidence concerning the $159,000 is inherently improbable and should be rejected. I have rejected Mr Li's evidence concerning the stamp duty payment for the reasons explained below.
4. For those reasons and for the reasons at [246]-[256] above, I accept the evidence of Ms Jiang and reject the evidence of Mr Li concerning the $159,700 payment and find on the balance of probabilities that the payment was made pursuant to an oral loan agreement made by Ms Jiang and Mr Li in or about early December 2015 and by no later than 18 December 2015. I find that it was a term of that oral loan agreement that Mr Li would repay the principal within three months together with interest as discussed in their conversation referred to at [156] above. Ms Jiang did not adduce any evidence establishing the rate of interest referred to in the conversations by which the oral loan agreement was entered into, but she makes an alternative claim for interest under s 100 of the Civil Procedure Act on any damages awarded to her for breach of the oral loan agreement. Mr Li breached that oral loan agreement by failing to repay the sum of $159,700 to Ms Jiang by 18 March 2016. Mr Li is liable to Ms Jiang for damages for breach of contract in the sum of $159,700. The submissions made on behalf of Ms Jiang did not address her claim for interest under s 100 of the Civil Procedure Act. In circumstances where there is no evidence of any steps taken by Ms Jiang to recover the amount owing under the loan until 15 April 2021, [283] I consider that the period in respect of which interest should be awarded under s 100 of the Civil Procedure Act should be limited to the period from the filing of the cross-claim in the 2020 proceeding on 28 April 2021 to the date of judgment.

The stamp duty payment

1. Mr Li's evidence that he lent Ms Jiang the sum of $44,350 to pay stamp duty because she told him that she did not have enough money for stamp duty [284] is inconsistent with the objective contemporaneous documents that demonstrate that Ms Jiang could readily have paid stamp duty from the surplus proceeds of her refinance referred to above if she had not agreed at Mr Li's request to lend him those surplus proceeds. Neither Ms Jiang nor Mr Li have given evidence identifying any urgency about the payment of stamp duty as at mid-December 2015. In those circumstances, it is inherently implausible that Mr Li lent $44,350 to Ms Jiang before immediately borrowing $159,700 from her. It is equally implausible that Ms Jiang borrowed $44,350 from Mr Li rather than simply paying the stamp duty out of her refinance proceeds and then lending Mr Li the balance of those surplus proceeds.
2. Ms Jiang's evidence that Mr Li had borrowed and failed to repay various amounts to her [285] is broadly consistent with the pattern of dealings between them referred to above. Mr Li had secured a payment of $310,000 from Ms Jiang towards the purchase of the Property several months before settlement. His bank statement shows that he spent the whole of the $310,000 through a series of transactions in a little less than one month. [286] Mr Li's bank statement also shows that he spent approximately half of the loan of $159,700 made by Ms Jiang on 21 December 2015 within two months, leaving him with insufficient funds as at 26 February 2016 to proceed with the settlement of the sale of the Property to Ms Jiang. [287]
3. For those reasons, and for the reasons at [246]-[256] above, I reject the evidence of Mr Li and accept the evidence of Ms Jiang and find that Mr Li purchased the bank cheque for $44,350 on 15 December 2015 as a means of repaying moneys that he owed to Ms Jiang .

The $95,000 payment

1. There is no dispute that Ms Yin paid the sum of $95,000 into Mr Li's NAB account #941 on 29 February 2016. [288] Bank records and other contemporaneous documents show that those funds were applied to Mr Li's payment of the "shortfall" of $160,000 between the $760,000 balance of the purchase price that was payable by Ms Jiang on settlement and the $920,350 required to discharge Mr Li's NAB mortgage to enable settlement to proceed. Mr Li sent an email to Mr Parmar of NAB on the afternoon of 29 February 2016 authorising the deduction of the $160,000 shortfall from his NAB account. But for Ms Yin's deposit of the $95,000 earlier that day, there would have been insufficient funds in his account to pay that shortfall. [289] I reject Mr Li's denial that he sent that email to Mr Parmar. Mr Li's speculative suggestion that Mr Parmar accessed Mr Li's email account by some unspecified steps and sent the email from Mr Li's email account is implausible, particularly having regard to the grammatical and spelling errors in the email that do not appear in other email correspondence of Mr Parmar.
2. Those objective facts point overwhelmingly to the $95,000 being additional funds that Mr Li required over and above the $760,000 balance of the purchase price in order to facilitate the settlement of his sale of the Property to Ms Jiang and pave the way for his proposed purchase of the Hunters Hill property which he understood could not otherwise proceed. For those reasons, I accept the evidence of Ms Yin and Ms Jiang to the effect that Ms Yin paid the $95,000 into Mr Li's account after he asked for and Ms Yin agreed to provide a loan in that amount to facilitate his settlement of the sale to Ms Jiang. I accept the evidence of Ms Yin and Ms Jiang concerning their respective conversations with Mr Li during the period from 27-29 February 2016 in which he requested the loan and they confirmed that the loan had been made. I accept Ms Yin's evidence that she asked Mr Li when he would repay the money and he promised to repay it as soon as he could after the settlement of the sale of the Property to Ms Jiang. [290]
3. I reject Mr Li's evidence that the $95,000 payment was part of the purchase price. [291] I have found that the purchase price was $1,070,000 and that Ms Jiang had already paid $310,000 of that price. In circumstances where Ms Jiang had made arrangements to pay $760,000 on settlement, there was no call for any further payment for her purchase of the Property either prior to or at settlement. Mr Li's evidence that he had multiple bank accounts, that he was not in need of money at the time and that he was indifferent to the amount of the payment because it was "just a sign of a, good luck for the Chinese New Year" [292] is internally inconsistent, [293] uncorroborated by any documentary evidence or other reliable source and is contrary to the objective facts referred to above which show that he required the $95,000 in order to have the necessary funds to pay the shortfall of $160,000 and proceed with settlement. I reject those aspects of Mr Li's evidence. To the extent that Mr Li gave evidence suggesting that he did not even pay attention to when or how NAB's mortgage over the Property was discharged, [294] that is highly implausible and inconsistent with other aspects of his evidence and with his email authorising Mr Parmar to pay the shortfall out of his NAB account. [295] I reject that evidence of Mr Li. Mr Li's evidence that it was "impossible" that he borrowed $95,000 from Ms Yin because he was making cash loans to Ms Jiang at the time [296] emerged for the first time in cross-examination and is uncorroborated by any other evidence. I reject it for the reasons set out at [246]-[256] above.
4. For those reasons, Ms Yin has discharged her onus of proving that the $95,000 payments that she made into Mr Li's NAB account #941 on 29 February 2016 were a loan to Mr Li pursuant to an oral agreement made on or about 27 February 2016 whereby Ms Yin agreed to lend Mr Li the sum of $95,000 by depositing it into Mr Li's nominated bank account. For the same reasons, Mr Li has failed to prove the alleged representations on which his pleaded estoppel defence in the 2018 proceeding relies [297] and his claim for a declaration that the $95,000 payment was in part payment of the purchase price for the Property also fails. [298]
5. Ms Yin's evidence to the effect that Mr Li agreed to repay the loan as soon as possible after settlement does not establish that there was any express term of the oral agreement specifying a precise period of time or date for repayment of the loan. I accept Ms Yin's submission that the oral agreement included an implied term that Mr Li would repay the loan in full within a reasonable time. [299] On the basis of Ms Yin's evidence that she told Mr Li that she required the money to be repaid as she needed it for her own personal use, and that Mr Li indicated that he would be able to repay the loan once he had sold another property, I accept Ms Yin's submission that a reasonable time had expired by 6 November 2018 being one day prior to the commencement of the 2018 proceeding and a little more than two months after Ms Yin's demand for repayment on 31 August 2018. I do not consider that the evidence supports Ms Yin's alternative contention that a reasonable period of time had expired by 29 April 2016. [300]
6. Mr Li does not claim to have made any payment to Ms Yin, either in response to the 31 August 2018 demand or otherwise.
7. Mr Li's pleaded defence that the loan agreement is void for uncertainty [301] is taken to have been abandoned because counsel for Mr Li made no submissions in support of that defence.
8. For all of those reasons, I find that Mr Li failed to repay the sum of $95,000 to Ms Yin on or before 6 November 2018 in breach of their oral agreement made on or about 28 February 2016. Mr Li is liable to Ms Yin for damages for breach of contract in the sum of $95,000 and Ms Yin is entitled to interest on those damages from and including 7 November 2018 pursuant to s 100 of the Civil Procedure Act. It is not necessary to consider Ms Yin's alternative claim for money had and received.

Conclusion and orders

1. On the basis of my findings immediately above, the Court will enter judgment for the plaintiff against the defendant in the 2018 proceeding in the sum of $95,000 plus interest pursuant to s 100 of the Civil Procedure Act in respect of the period from 7 November 2018 to the date of judgment.
2. I have found that the agreed purchase price for the Property was $1,070,000, being the amount of the DK Property Professionals valuation. I have found that Ms Jiang has paid the whole of the purchase price of the Property to Mr Li. Mr Li's claim in the 2020 proceeding for a declaration that he has an equitable charge over the Property to give effect to a vendor's lien securing payment of unpaid purchase moneys fails.
3. Counsel for Mr Li accepted that, if the Court did not find that the oral agreement between Mr Li and Ms Jiang was for a sale of the Property for $1,500,000 (or at least something more than $1,070,000), then Mr Li could not succeed in his claims of unconscionability and estoppel. That is because those claims were founded on Mr Li's allegation that the purchase price was $1,500,000, that Ms Jiang made representations to him to that effect and that she acted unconscionably in placing before him for signature the Transfer specifying a price of $1,070,000. The unconscionability and estoppel claims fail as a consequence of my findings of fact set out above and Mr Li is not entitled to any declaration of constructive trust or equitable compensation.
4. I have found that the $95,000 payment made by Ms Yin to Mr Li on 29 February 2016 was not part of the purchase price payable by Ms Jiang for the Property. Mr Li is not entitled to the declaration sought in the 2020 proceeding that the $95,000 payment was a part payment of the purchase price for the Property.
5. Mr Li's remaining claims in the 2020 proceeding were not pressed.
6. The Court will therefore make orders dismissing all of the plaintiff's claims in the 2020 proceeding.
7. On the basis of my findings and conclusions set out at [309] above, the Court will enter judgment on the cross-claim in favour of the cross-claimant against the cross-defendant in the sum of $159,700 plus interest pursuant to s 100 of the Civil Procedure Act in respect of the period from 28 April 2021 to the date of judgment.
8. Within 7 days of the date of these reasons, the parties are to bring in short minutes of order to the above effect, including the calculation of the amounts of interest referred to at [321]-[327] above.
9. I will hear the parties in relation to costs.

Endnotes

1. An alternative claim for a declaration that Mr Li has an "equitable interest" in the Property to the amount of $685,000 was not pressed in closing submissions. Counsel for Mr Li clarified that the only equitable interest claimed by Mr Li was a vendor's lien secured by an equitable charge or as constructive trustee if the Court declares a constructive trust as a remedy for alleged unconscionable conduct.
2. [2008] NSWSC 1087.
3. [2005] NSWSC 1076.
4. [2016] NSWSC 1344 at [47]-[57]. No issue concerning that aspect of his Honour's reasons was raised in the subsequent appeal, although Macfarlan JA referred to elements of the statutory definitions of co-ownership and co-owners: Boyd v Thorn (2017) 96 NSWLR 390 at [20].
5. T300.1-300.35.
6. T301.37-301.44.
7. Exhibit 3, paragraphs 10-18; Exhibit 4, paragraphs 53 and 84; T41.35-43.15.
8. Ms Jiang also read an affidavit of Mr Shangzhi Dai affirmed on 31 March 2021, which is not referred to in these reasons because it was plain by the conclusion of the whole of the evidence that Mr Dai's affidavit had no relevance to the issues to be determined in these proceedings. No party referred to Mr Dai's evidence in closing submissions.
9. Mr Li (4/3/21), paragraph 6.
10. Ms Jiang (9/4/21), paragraphs 7-13; T146.40-149.1.
11. Mr Li (4/3/21), paragraph 5; Ms Jiang (9/4/21), paragraph 16.
12. Ms Jiang (9/4/21), paragraph 12; Ms Jiang (23/12/21), paragraph 9.
13. Mr Li (4/3/21), paragraph 20.
14. Exhibit 2, pp 504, 621-627, 643-644.
15. Exhibit 2, pp 504, 621-627, 643-644.
16. Ms Jiang (23/12/21), paragraphs 11-12.
17. Exhibit 2, pp 621-627.
18. Exhibit 2, pp 504, 621-627, 643-644.
19. Mr Li (4/3/21), paragraph 25.
20. Mr Li (4/3/21) paragraph 5.
21. Mr Li (4/3/21), paragraphs 19, 21; Mr Li (26/11/21), paragraph 17-24.
22. Mr Li (4/3/21), paragraphs 22-24.
23. T82.3-82.12.
24. Ms Jiang (9/4/21), paragraph 19.
25. T156.5-156.17.
26. Ms Jiang (23/12/21), paragraph 10.
27. T150.10-150.27.
28. T149.25-149.50.
29. T13.39-14.40, 23.27-24.4, 25.5-29.35; Exhibit 2, pp 419-423.
30. T25.5-29.35
31. Mr Li (4/3/21), paragraph 30.
32. Exhibit 3, paragraphs 10-12.
33. Exhibit 3, paragraphs 17-18.
34. Exhibit 4, paragraph 84.
35. T78.5-78.15, 79.6-79.19.
36. Mr Li (4/3/21), paragraph 31.
37. Mr Li (4/3/21), paragraph 33.
38. Mr Li (4/3/21), paragraphs 37-38.
39. Ms Jiang (16/1/20), paragraph 3; Ms Jiang (9/4/21), paragraph 20 and Exhibit 2, p 718.
40. T157.23-157.30.
41. T157.35-157.41.
42. Ms Jiang (16/1/20), paragraphs 5-7; Ms Jiang (9/4/21), paragraphs 22 and 28 and Exhibit 2, p 720.
43. T158.14-158.17.
44. Mr Lu (17/1/20), paragraph 4.
45. Ms Jiang (16/1/20), paragraph 6; Ms Jiang (9/4/21), paragraph 25.
46. Mr Lu (17/1/20), paragraphs 5-6.
47. Exhibit 2, pp 432-433.
48. T227.15-229.30.
49. T158.34-159.27.
50. T159.20-159.46, 177.9-177.40.
51. T160.1-160.25, 162.1-162.39. 166.27-167.4.
52. Ms Jiang (17/2/20), paragraph 4; Ms Jiang (9/4/21), paragraph 33.
53. Exhibit 2, pp 434-439.
54. Exhibit 2, pp 438.
55. Ms Jiang (17/2/20), paragraph 4.
56. Ms Jiang (9/4/21), paragraphs 32-33 and Exhibit 2, p 721; also T166.15-166.26.
57. T170.40-171.19.
58. Ms Jiang (9/4/21), paragraphs 26-27.
59. Exhibit 3, paragraphs 12-18.
60. Ms Jiang (16/1/20), paragraph 8.
61. Mr Lu (17/1/20), paragraph 8.
62. T229.50-230.4.
63. T229.35-229.49.
64. Exhibit 2, p 440.
65. Exhibit 2, pp 448, 492-494; Jiang (9/4/21), paragraph 35.
66. Ms Jiang (16/1/20), paragraphs 9-11.
67. Ms Jiang (16/1/20), paragraph 9.
68. Ms Jiang (9/4/21), paragraph 36 and Exhibit 2, p 722.
69. T174.18-174.39.
70. Mr Li (4/3/21), paragraph 43; T79.20-79.35.
71. T79.35-80.26.
72. Mr Li (26/11/15), paragraph 50.
73. Ms Jiang (16/1/20), paragraph 11; Ms Jiang (9/4/21), paragraph 44.
74. Exhibit 2, pp 452-453.
75. Exhibit 2, p 453.
76. Ms Jiang's closing submissions at T309.17-309.35. The accuracy of this submission was not disputed by counsel for Mr Li. The amount in item 3 of the email is the same as the amount of stamp duty ultimately paid on the Transfer with the price of $1,070,000.
77. Mr Lu (17/1/20), paragraph 8.
78. Ms Jiang (16/1/20), paragraph 10.
79. Mr Lu (17/1/20), paragraph 12.
80. Ms Jiang (16/1/20), paragraphs 12-13; Ms Jiang (9/4/21), paragraphs 41-42; Exhibit 2, pp 470-471.
81. Ms Jiang (16/1/20), paragraph 14; Ms Jiang (9/4/21), paragraphs 45-47 and Exhibit 2, p 723.
82. Ms Jiang (16/1/20), paragraph 14.
83. Ms Jiang (16/1/20), paragraph 16.
84. Ms Jiang (16/1/20), paragraph 16.
85. Ms Jiang (9/4/21), paragraph 51 and Exhibit 2, p 725.
86. Ms Jiang (16/1/20), paragraph 17; Ms Jiang (9/4/21), paragraphs 53-54 and Exhibit 2, p 726; Exhibit 2, pp 479, 481, 483, 770.
87. Ms Jiang (23/12/21), paragraphs 18-26; Exhibit 2, pp 380, 474-484.
88. Ms Jiang (16/1/20), paragraph 18; Jiang (9/4/21), paragraph 55 and Exhibit 2, p 726.
89. T188.5-190.5.
90. Mr Li (26/11/21), paragraph 51; T83.16-83.40.
91. T178.32-179.41, 181.31-184.26.
92. Exhibit 15.
93. Exhibit 1.
94. T173.43-174.2, 187.20-188.2.
95. T81.30-83.10.
96. T83.12-83.15.
97. Mr Li (26/11/21), paragraph 52.
98. T85.34-85.46.
99. T86.20-86.25.
100. T87.36-87.45.
101. T86.25-86.30.
102. Exhibit 2, pp 767-770.
103. Ms Jiang (23/12/21), paragraph 17.
104. Ms Jiang (16/1/20), paragraph 20; Ms Jiang (9/4/21), paragraphs 56-57; Exhibit 2, pp 485, 727.
105. T230.45-231.2.
106. Mr Lu (17/1/20), paragraph 26.
107. Exhibit 5.
108. T88.35-89.27.
109. Ms Jiang (9/4/21), paragraph 59 and Exhibit 2, pp 728-729.
110. Ms Jiang (9/4/21), paragraph 61 and Exhibit 2 p 730.
111. T193.10-196.47.
112. Ms Jiang (16/1/20), paragraph 21; Ms Jiang (9/4/21), paragraph 58; Exhibit 2, pp 490-491.
113. Exhibit 2, p 499.
114. Exhibit 2, p 525.
115. Exhibit 2, pp 499-501, 768.
116. Ms Jiang (9/4/21), paragraph 63 and Exhibit 2, p 731.
117. Mr Li (26/11/21), paragraph 53.
118. T92.40-93.20.
119. T93.35.
120. T94.12-94.27.
121. T93.32-93.41.
122. T93.45-93.48.
123. T93.50-94.11; Exhibit 2, pp 767-770.
124. T96.3-96.22.
125. Ms Jiang (23/12/21), paragraph 27.
126. Mr Li (4/3/21), paragraph 41.
127. T87.25-87.31.
128. T95.4-95.8.
129. Mr Li (4/3/21), paragraph 42.
130. Ms Jiang (16/1/20), paragraph 23; Ms Jiang (9/4/21), paragraphs 64 and 84.
131. Exhibit 2, pp 527-529.
132. Mr Li (4/3/21), paragraphs 44-45.
133. T59.26-63.25.
134. Ms Jiang (6/10/22).
135. Exhibit 2, pp 401-412 (especially at 403).
136. T67.3-T67.4
137. Mr Li (4/3/21), paragraphs 46-47; Li (8/3/21), paragraphs 18-19.
138. See [29] above.
139. Mr Li (4/3/21), paragraphs 53-55.
140. T206.25.
141. Exhibit 2, pp 535-537, 540, 541-554, 565-570.
142. Mr Li (4/3/21), paragraph 52.
143. Mr Li (4/3/21), paragraphs 57-58.
144. Exhibit 2, p 577.
145. Ms Jiang (16/1/20), paragraph 26; Ms Yin (16/1/20), paragraphs 3-4.
146. Ms Jiang (19/3/20), paragraphs 5-10; Ms Yin (19/3/20), paragraphs 5-10.
147. T171.20-173.41.
148. T173.18-173.35.
149. T173.36-173.41.
150. T211.15-217.36.
151. Ms Jiang (16/1/20), paragraph 26; Ms Jiang (19/3/20), paragraphs 5-10.
152. Ms Jiang (9/4/21), paragraph 67 and Exhibit 2, p 732.
153. Ms Jiang (16/1/20), paragraph 27.
154. Ms Jiang (16/1/20), paragraph 28.
155. Ms Jiang (9/4/21), paragraph 70 and Exhibit 2, p 734.
156. Ms Yin (16/1/20), paragraph 3; Ms Yin (19/3/20), paragraphs 4-10.
157. Ms Yin (16/1/20), paragraph 4.
158. Ms Jiang (16/1/20), paragraph 29; Ms Jiang (19/3/20), paragraph 11; Ms Jiang (9/4/21), paragraphs 71-74 and Exhibit 2, pp 735-737.
159. Ms Yin (16/1/20), paragraphs 5-7; Ms Yin (19/3/20), paragraph 11.
160. Exhibit 2, pp 572-575, 769.
161. Ms Jiang (19/3/20), paragraph 11; Ms Jiang (9/4/21), paragraphs 75-78 and Exhibit 2, pp 738-740.
162. Ms Yin (19/3/20), paragraph 12.
163. Exhibit 2, pp 769-770.
164. Exhibit 2, p 568.
165. Exhibit 2, pp 565-567.
166. Exhibit 2, pp 570-571; Mr Lu (17/1/20), paragraphs 29-31.
167. Exhibit 2, p 568.
168. Mr Lu (17/1/20), paragraph 12.
169. Exhibit 2, pp 570-571; T231.4-231.45.
170. Exhibit 2, pp 576-578.
171. T232.1-232.19.
172. Ms Jiang (16/1/20), paragraph 30; Ms Jiang (17/2/20), paragraphs 8-9; Ms Jiang (9/4/21), paragraphs 79-80 and Exhibit 2, p 741.
173. Ms Jiang (9/4/21), paragraph 81.
174. Mr Li (4/3/21), paragraph 59.
175. Mr Li (4/3/21), paragraphs 60-72.
176. Mr Li (8/3/21), paragraphs 26-30.
177. Mr Li (8/3/21), paragraph 24.
178. T109.30-110.32.
179. T111.3-111.14.
180. T111.15-111.20.
181. Exhibit 2, pp 422, 767-770.
182. T116.27-116.48.
183. Ms Jiang (16/1/20), paragraph 31; Exhibit 6.
184. Exhibit 6.
185. Ms Jiang (16/1/20), paragraph 32.
186. Grammatical and spelling errors in the original.
187. Exhibit 2, p 580.
188. T120.33-122.46.
189. T123.1-123.5.
190. Exhibit 2, p 552.
191. Mr Li (8/3/21), paragraphs 20-26.
192. Exhibit 2, p 581.
193. Exhibit 2, pp 584-585; Ms Jiang (9/4/21), paragraphs 82-83.
194. Exhibit 2, pp 587, 598, 769-770.
195. Mr Li (4/3/21), paragraphs 76-83.
196. Mr Li (8/3/21), paragraphs 11-14.
197. Ms Jiang (6/10/22); T202.38-203.7.
198. Mr Li (8/3/21), paragraph 15.
199. Ms Jiang (16/1/20), paragraph 34; Ms Jiang (9/4/21), paragraph 85.
200. Ms Jiang (16/1/20), paragraph 34; Ms Jiang (9/4/21), paragraphs 87-89.
201. Ms Jiang (9/4/21), paragraph 90 and Exhibit 2, p 745.
202. Ms Ji (16/1/20), paragraph 35; Ms Jiang (9/4/21), paragraphs 91-92 and Exhibit 2, p 746.
203. Mr Li (4/3/21), paragraph 73.
204. Mr Li (4/3/21), paragraphs 74-76.
205. Mr Li (4/3/21), paragraph 84; Mr Li (26/11/21), paragraph 50.
206. Mr Li (4/3/21), paragraph 85.
207. T69.9-70.5.
208. Exhibits 8 and 9.
209. T69.9-69.30.
210. Exhibit 2, p 634.
211. Ms Jiang (28/4/21), paragraph 4; Exhibit 2, p 692.
212. Exhibit 2, p 431.
213. T185.18-185.35.
214. Ms Jiang (16/1/20), paragraph 43; Ms Jiang (9/4/21), paragraphs 93-94.
215. (1995) 49 NSWLR 315 at 319.
216. (2003) 214 CLR 118; [2003] HCA 22 at [28]-[31] (Gleeson CJ, Gummow and Kirby JJ).
217. (2014) 101 ACSR 233; [2014] NSWSC 789 at [10]-[12].
218. (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77] (Bell P, Leeming JA and Emmett AJA agreeing).
219. (2021) 388 ALR 128; [2021] NSWCA 24 at [25]-[29] (Bell P, Bathurst CJ agreeing).
220. [2015] NSWSC 451 at [94]-[95] (citations omitted).
221. (2011) 297 ALR 56; [2011] FCA 1123 at [48].
222. [2021] NSWSC 297 at [1].
223. See [82] and [86] above.
224. See [15]-[16] and [22] above.
225. See [83], [85] and [89]-[90] above.
226. See [15]-[23] above.
227. T282.12-282.21.
228. See [119]-[120] above.
229. See [142] above.
230. See [162]-[166] above.
231. See [214] above.
232. See [233] above.
233. See [150] and [168] above.
234. See [113], [173] and [175] above.
235. See [168] above.
236. See [180] above.
237. See [80] above.
238. See [168]-[169] above.
239. See [212] above.
240. T241.10-241.15.
241. (2020) 381 ALR 560; [2020] HCA 28 at [112].
242. See [184]-[185] above.
243. See [186] above.
244. [2022] NSWSC 1301.
245. The other matters involved whether Ms Jiang sometimes made telephone calls on Mr Li's behalf and Ms Jiang's role in the purchase of a caravan.
246. [2008] NSWCA 193 at [7]-[27] (Spigelman CJ).
247. [2016] NSWSC 1798 at [65]-[69] (Sackar J) and the authorities there referred to.
248. For example: "she sent that in an email; I don't know whether it was part of the conversation", "Yep, from my records, yes" and "I think I would have advised her…".
249. See [101]-[107] and [126] above.
250. See [15]-[16], [22] and [83] above.
251. See [110]-[112] above.
252. See [123]-[126] above.
253. See [117]-[118] above.
254. See [76] above; T255.25-255.50.
255. See [89]-[90] above.
256. See [83] above.
257. See [116] and [173] above.
258. See [254] above.
259. T2.45.
260. Evidence Act 1995 (NSW), s 140; Musa v Alzreaiawi [2021] NSWCA 12 at [38]-[42] (Gleeson JA, Bell P (as the Chief Justice then was) and Macfarlan JA agreeing).
261. Jeans v Cleary [2006] NSWSC 647 at [155]-[156]
262. Jeans v Cleary [2006] NSWSC 647at [157].
263. Exhibit 1, paragraphs 14-21.
264. Exhibit 1, paragraphs 44 and 45.
265. See [139] above.
266. T186.45-187.5.
267. T184.28-185.14.
268. Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [63]-[64] (Heydon, Crennan and Bell JJ).
269. See [131] above.
270. See [122] above.
271. See [135] above.
272. See [148] above.
273. See [131] above.
274. Ms Jiang's evidence is set out at [137].
275. See [203] and [205] above.
276. See [201]-[202] above; Exhibit 2, pp 570-571.
277. See [204].
278. See [143]-[147] above.
279. See [161] above.
280. See [53] above.
281. See [155] above.
282. See [160]-[161] above.
283. And even then, no express demand for payment was made: see [236] above.
284. See [154] above.
285. See [155]-[157] above.
286. See [148] and [296] above.
287. See [163]-[165] above.
288. See [197] above.
289. See [165], [200] and [213] above.
290. See [188]-[199] above.
291. See [211] above.
292. See [209] and [212] above.
293. Mr Li said that he was "not at all familiar with" the amounts in the many bank accounts he claims to have had and that he "effectively ignored my bank accounts", and asserts that "I was not in need of money at the time", contrary to his own evidence at [168] and [147] above.
294. See [209] above.
295. See [168], [177] and [216]-[218] above.
296. See [214] above.
297. See [22] above.
298. See [45] above.
299. Codelfa Construction Pty Ltd v State Rail Authority (1982) 149 CLR 337 at 347.
300. See [235] above.
301. See [25] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2022