Zhang v Zhang - [2022] NSWSC 924 - NSWSC 2022 case summary — Zoe

NSWNSWSC

Zhang v Zhang

[2022] NSWSC 924

Supreme Court of NSW|2022-06-30|Before: Meek J, McLelland J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-06-30

Before

Meek J, McLelland J

Catchwords

[1963] HCA 59 DZAAA v Minister for Immigration and Citizenship [2011] FMCA 434
[1989] HCA 4 Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd [2004] NSWSC 56 Peters v Lithgow Forge Pty Ltd [2011] NSWSC 1185

Source

Original judgment source is linked above.

Catchwords

[1963] HCA 59 DZAAA v Minister for Immigration and Citizenship [2011] FMCA 434[1989] HCA 4 Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd [2004] NSWSC 56 Peters v Lithgow Forge Pty Ltd [2011] NSWSC 1185

Judgment (54 paragraphs)

[1]

ments Pty Ltd v Ngunya Jarjum Aboriginal Corporation [2020] NSWCA 144 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133 New South Wales Crime Commission v Nguyen [2018] NSWSC 1858 Ogilvie v Adams [1981] VR 1041 Orr v Ford (1989) 167 CLR 316; [1989] HCA 4 Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd [2004] NSWSC 56 Peters v Lithgow Forge Pty Ltd [2011] NSWSC 1185; (2011) 15 BPR 29,611 Rogers v Rogers [2020] NSWSC 392 Rogic v Samaan [2018] NSWSC 1464 Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964 West v Mead [2003] NSWSC 161 Xia v Santah Pty Ltd [2003] NSWSC 807 Zhang v Zhang [2022] NSWSC 752 Texts Cited: Henry Thomas Banning, Statute Law of Limitation of Actions (2nd ed, 1892, Steven & Haynes) Judicial Council on Cultural Diversity, Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017) M Barnett, "Mind Your Language Interpreters in Australian Immigration Proceedings" [2006] UWSLawRw 5 Practice Note SC Gen 10 Practice Note SC Gen 21 Ritchie's Uniform Civil Procedure NSW Category: Principal judgment Parties: Ran Zhang (Plaintiff) Jian jian Zhang (First Defendant / First Cross-Claimant) Jing Yang (Second Defendant / Second Cross-Claimant) Representation: Counsel: P Reynolds (Plaintiff) Y Gao (solicitor) (First Defendant) In person (Second Defendant) Solicitors: JC Legal Practice (Plaintiff) Novolaw (First Defendant) File Number(s): 2020/332753

[6]

Some procedural issues

In the period (March 2022 to June 2022) leading up to the hearing of the proceedings there was extensive correspondence by email as between Jing and the solicitor for Ran, Mr Zhu, and the Court, including the Equity Registrar and my staff relating to various Court applications, listings and directions.
One interlocutory matter can be mentioned briefly. There was a Notice of Motion filed by Jing on 12 January 2022 against Jian jian to seek to have funds released from a freezing order. On a number of directions hearings Jing sought to have access to the funds and the freezing order discharged. Ultimately, Jing's notice of motion for release of funds under the freezing order was heard and dismissed by Parker J on 3 June 2022. His Honour provided reasons for judgment: see Zhang v Zhang [2022] NSWSC 752.
The main hearing was originally listed for three days on 20-22 June 2022. Due to difficulties arising out of various matters including connection issues, time taken in the interpreting and providing explanations regarding the Court procedure, the hearing was not completed within three days. The matter was listed for directions on 29 June 2022 to ascertain availability of the parties to continue the hearing. I determined that the matter continue for hearing on 30 June 2022 and if need be 1 July 2022. Jing had indicated that she had difficulties in appearing on 1July 2022 due to matters with her daughter: T 8 (29 June 2022). As events occurred, the hearing continued and was completed on 30 June 2022. On that day the Court sat late with the goodwill of the parties, sound recordist and my staff: e.g. T187, 205.
It is relevant to address two other procedural and logistical aspects of the proceedings in a more detailed way, namely: 1. an issue as to whether Jian jian's cross-claim would be determined at the hearing or otherwise dealt with; and 2. logistical issues relating to Jing appearing by audio visual facility at the hearing of the proceedings.

[7]

Jian jian's cross-claim and potential transfer to the District Court

The issue regarding Jian jian's cross-claim was regrettably vexed.
The initial cross-claim had been filed on 10 February 2021. On 15 February 2021 Parker J directed Jian jian to file and serve his cross-claim against Jing by 26 March 2021. On 9 April 2021 Ward CJ in Eq extended the time for compliance to 16 April 2021.
On 23 April 2021 Slattery J granted leave for Jian jian to file and serve a statement of cross-claim by 5 May 2021. On 15 September 2021 Rein J ordered Jian jian to file and serve a statement of cross-claim by 4:00pm on 24 September 2021. On 17 November 2021, Registrar Walton extended time for compliance to 4:00pm on 23 December 2021. It is unclear what, if any, further order was made. In any event, an amended form of cross-claim was filed at 1:37 AM on 16 February 2022 in advance of the directions hearing to take place before the Equity Registrar on that day. Later on 16 February 2022, Registrar Walton ordered "Cross claim is to be rejected".
Mr Gao took no steps to rectify the rejection of the cross-claim.
The matter was listed before me on 30 May 2022 for pre-trial directions. On that occasion Mr Gao did not appear.
Consequently, I listed of the matter for further mention on 1 June 2022 to address a number of matters in and, in particular, the status of the cross-claim.
On that occasion Mr Gao apologised for his prior non-attendance stating that his understanding was that "the hearing was principally as between the plaintiff and the second defendant" but noted that "I should have attended": T1.
I questioned Mr Gao regarding the cross-claim. He indicated (T1-2): "It was an active claim in the proceedings, however, there are effectively two ways to dispose of that matter and those issues. The intention was that once the main proceedings between the plaintiff and the second defendant were concluded, I was then to file a separate summons recommencing that exact matter and orders were made to dispose that issue. There was a cross‑claim that I sought to file but because it was filed out of time I think it was disallowed and it didn't go in as evidence and that was already prepared and it would have dealt with those issues, but the judicial registrar indicated that it wasn't part of the Court orders, being that it was filed out of time. It was only filed, from memory, about an hour out of time. But rather than waste the Court's time, I thought it would be in everyone's interests if the main proceeding between the plaintiff and the second defendant was dealt with so that it didn't delay that proceeding and then whatever issues remained or lingered afterwards, we could deal with that in a separate pleading. Or if your Honour deems it appropriate, that orders should be made to dispose of it now, we can also do that as well."
The difficulty with Mr Gao's proposed approach (as I noted at T2) is that hearing of cases do not ordinarily proceed in such a manner. Ordinarily a claim and a cross-claim are heard together and not in a staggered or piecemeal way. If a party does not wish a particular claim to proceed at a hearing (for whatever reason) that fact must be brought to the Court's attention, and to the attention of the other party affected, in a prompt way and addressed by some appropriate order whether that be by dismissal of the claim or by means of a separate order for determination of the issue raised by the claim, or by some other order.
The mere fact that an amended form of cross-claim has been rejected for filing does not of itself dispose of the initial form of the cross-claim.
On 3 June 2022, during the hearing of Jing's Notice of Motion to lift or otherwise discharge the freezing order obtained by Jian jian, Parker J raised with Mr Gao issues regarding the cross-claim.
His Honour questioned Mr Gao regarding the nature of the cross-claim: T8, 20-21.
Mr Gao in substance agreed with the proposition that Jian jian's claim against Jing was a money claim that could be dealt with by the District Court.
Parker J on that occasion made an order that the cross-claim by Jian jian against Jing be heard after the hearing of Ran's claim against Jing.
That was an order for separate determination of the proceedings on the cross-claim: r 28.2 Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
It is apparent from the transcript of the hearing before Parker J that Mr Gao was seeking to establish whether he would be permitted to rely upon the amended form of cross-claim that had been filed but rejected: T22.
His Honour ultimately noted that the Court proposed on the completion of Ran's claim that the cross-claim would be transferred to the District Court.
A difficulty with the consideration of whether to transfer the cross-claim to the District Court is that Jian jian did not take any steps between 3 June and 20 June to seek leave to amend the initial form of cross-claim.
During the hearing I sought to clarify with Mr Gao the nature of the cross-claim asserted by Jian jian against Jing to enable consideration to be given as to whether a transfer order to the District Court ought to be made: T36-39; 62-64 (Day 2) and T88-92; 145 (Day 3).
Because the District Court is a court of limited jurisdiction, when a judge of the Supreme Court is asked to transfer proceedings to the District Court, the judge would need to be satisfied that the District Court has jurisdiction to hear and determine the proceedings.
In my view, when a question arises in proceedings regarding potential transfer of the proceedings from the Supreme Court to the District Court (whether a transfer is sought by a party expressly by notice of motion, or whether it is raised in discussion as between a judge and a party), a legal practitioner, particularly when some prior notice to address the issue has been given, should stand ready to assist the Court in respect of the jurisdictional question.
At least part of the assistance that ought to be provided to the Court is identification of (a) the jurisprudential nature of the claim and (b) by reference to the District Court Act 1973 (NSW) (for example ss 44, 134) or other legislation the statutory provisions which enable the District Court to have jurisdiction to hear and determine such a claim.
Ultimately, I directed that Mr Gao provide a draft of the form of amended cross-claim and gave Jing an opportunity to oppose the filing of that document.
On 24 June 2022 Mr Gao emailed to my Associate (copied to Jing and the representatives for Ran) a form of amended statement of cross-claim (amended cross-claim).
The form of amended cross-claim seeks various declarations. In particular declarations that (a) Jing holds an amount of $250,000 on trust for Jian jian; and (b) that at the time of sale of the property Jian jian and Jing were owners as joint tenants of the property and are entitled to a division of the net proceeds of sale equally between them.
On 27 June 2022, Jing emailed to Mr Gao (copied to my Associate) a form of defence to the proposed amended cross-claim .
Without in any way determining the merits of the amended cross-claim, it is not clear that it adequately explains the entitlement to the relief sought in light of the existence of the joint tenancy and the fact that it is not pleaded as to whether the joint tenancy was severed.
I did not have any express application before me by Mr Gao to transfer the proceedings to the District Court. In the above circumstances, particularly in light of the lack of clarity as to whether the claim as framed (or potentially sought to be framed) is clearly within the jurisdiction of the District Court, I declined to make any order or directions regarding the transfer of the proceedings to the District Court.
I permitted the proposed amended cross-claim and Jing's defence to it to be filed and stood the proceedings on the cross-claim over for directions before the Registrar in Equity.

[8]

Mode of appearance at the hearing

Proceedings in Supreme Court are generally held in person: see e.g. Xia v Santah Pty Ltd [2003] NSWSC 807 at [9] per Palmer J. In proceedings commenced by statement of claim, subject to the rules of court and the Evidence Act 1995 (NSW) (Evidence Act), evidence must be given orally at Court: r 31.1(2) UCPR. The Court may direct that all or any of a witness's evidence in such a trial be given by affidavit: r 31.3(3) UCPR.
However, the Court may permit parties or witnesses to the proceedings to give evidence and make submissions by telephone, audio visual link or other form of communication: r 31.3(1) UCPR.
Such a decision, as to whether to permit the giving of evidence and making of submissions by telephone, audio visual link or other form of communication, is "for the management of proceedings" within the meaning of s 58 Civil Procedure Act 2005 (NSW) (CPA).
The Court in deciding whether to make any order for the management of the proceedings, must seek to act in accordance with the dictates of justice: s 58(1)(a)(ii) CPA.
For the purposes of determining what the dictates of justice are in a particular case, the Court must have regard to the provisions in ss 56 and 57 CPA and may have regard to the matters set out in s 58(2)(b) CPA to the extent which the Court considers them relevant.
The provisions of s 58(2)(b) CPA are as follows: "(2) For the purpose of determining what are the dictates of justice in a particular case, the court - … (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case."
A consideration of some significance to be taken into account in determining whether to permit a witness to give evidence by telephone, audio visual link or other form of communication is whether the issues in the case will involve assessing the credibility of the witness: Xia v Santah Pty Ltd at [2]-[6] per Palmer J.
On 14 June 2022 (12:43 PM), Jing sent an email to my Associate (copied to the solicitors for Ran and Jian jian) which included an assertion that she could not appear by video link due to a network restriction or firewall in China and referring to difficulties in arranging an interpreter.
On 15 June 2022 (10:32 AM), my Associate sent an email to the parties noting inter alia that the Court proposed to make available both an audio visual link and a telephone link to enable Jing to participate in the proceedings subject to any fair objection by any other party to the proceedings.
On 15 June 2022 (4:18 PM) Jing emailed my Associate, copied to the other parties, providing submissions and objections to affidavits. The email further stated: "In addition, do I need to submit any other letters? [F]or the telephone appearance on 20 June 2022?"
On 16 June 2022 (2:38 PM), Mr Wong on behalf of Ran sent an email to my Associate as follows: "We would like to raise a fair objection pursuant to point 4 of your email below ("The Court proposes to make available audio-visual link and telephone link to enable the second defendant to participate in the proceedings, subject to any fair objection by another other party to the proceedings"). We note from experience that it is possible to get on an AVL link from China. We have had cases in the FCFCOA where people have done it using Teams, and other cases where it was done using a VPN (Virtual Private Network). We note that it is extremely difficult to cross-examine over the telephone and there may be procedural unfairness for our client, the plaintiff, if this is allowed. If our objection is upheld by His Honour, we are willing to get in contact with the second defendant to facilitate her in getting access to the AVL link from China using either Teams or a VPN if required. If it may facilitate the court, we are willing to attend an interlocutory proceeding tomorrow morning to aid His Honour in making a decision on our raised objection. We look forward to His Honour's orders on this matter."
On 16 June 2022 there were further communications by email as between my Associate and the parties leading to the listing of the matter on 17 June 2022 at 9:30 AM to address audio visual link options for the hearing.
On 16 June 2022 (8:04 PM) Jing sent an email to my Associate (copied to the other parties) which indicated that whilst she was using a VPN she could not open the Court session link. She further indicated a preference to use the internet "to save on expensive long-distance phone bills".
On 17 June 2022 the directions hearing proceeded.
I made the following orders: "1. Order pursuant to r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW), subject to any further order of the Court, that the second defendant, Jing Yang, be permitted to conduct the hearing of these proceedings at the trial due to commence on Monday 20 June 2022 at 10:00am by Audio Visual Link provided by the Court, including by giving evidence, submissions and conducting cross examination. 2. Direct the parties to provide any submissions at the commencement at the hearing on Monday, 20 June 2022 as to whether China is a 'participating State' for the purposes of Part 1A of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). 3. Direct the plaintiff and the second defendant to take all reasonable steps to communicate with the legal representatives of the plaintiff and to use their best endeavours for the purpose of establishing by means of the Court's Audio Visual Link, a working link for the purposes of Order 1, for the hearing in the proceedings due to commence on 20 June 2022. 4. Note, without it being prescriptive, that the parties and the legal representatives of the plaintiff are to co-operate to establish that link by whatever reasonable means necessary, including the use of a virtual private network (VPN) or Microsoft Teams facility. 5. Direct that for the purpose of conducting the hearing the parties are to use all reasonable steps to have available to them during the hearing a copy of the Court Book that has been prepared and provided to the Court either in electronic form or hard copy form. 6. Direct that during the hearing and for purposes of the hearing the second defendant have available a working email facility, such as the email address […]@139.com used [by] the second defendant to communicate previously with the Court, for purposes of communicating at the hearing. 7. Note that the parties agree that the only claims for relief that will be listed for hearing on Monday, 20 June 2022 are the claims in the plaintiff's statement of claim filed on 1 March 2021. 8. Direct that a proposed order for transfer of the first defendant's cross claim to the District Court to be provided by the first defendant to my Associate, and copied to the other parties, by the commencement of the hearing on Monday, 20 June 2022."
On 17 June 2022 (2:29 PM) Mr Reynolds on behalf of Ran sent to my Associate a submission in relation to the direction in respect of Pt 1A of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (Evidence (Audio and Audio Visual Links) Act).
The submission was to the effect that China is not a "participating State" for the purposes of Pt 1A of the Evidence (Audio and Audio Visual Links) Act, because: 1. The word "State" used in the legislation refers to a state within the Commonwealth of Australia. 2. Section 21(1) Interpretation Act 1987 (NSW) (IA) states that, in any Act or instrument, "State" means a State of the Commonwealth. This is in contrast to "foreign country" which is defined in the IA as meaning any country (whether or not an independent sovereign state) outside Australia and its external Territories. Notably the reference to a foreign country as a 'state' uses lowercase (not the defined expression, "State"). 3. There is nothing in the Evidence (Audio and Audio Visual Links) Act that would suggest that the IA meanings are not applied. 4. The word "State" is defined non-exhaustively in s 3(1) as including a Territory. 5. The phrase 'participating State' is defined as meaning another State in which provisions of a law in terms substantially corresponding to Parts 2 and 3 are in force (which would suggest a polity of a similar type as NSW). 6. The phrase "foreign country" is also used in the Evidence (Audio and Audio Visual Links) Act as well. 7. A number of the provisions (e.g. s 11, which entitles a legal practitioner in a participating State to practice as a barrister or solicitor in relation to the NSW proceedings and ss 14-18, which grant "recognised courts" (defined as a court or tribunal of a participating State that is authorised under their corresponding legislation to direct evidence via audio or audio visual link) certain powers and authority in NSW) make more sense if the definition is limited to States within Australia.
It seems to me that it is prima facie correct that China is not a "participating State" for the purposes of Pt 1A of the Evidence (Audio and Audio Visual Links) Act and accordingly, an order for the hearing of the proceedings could also have been made pursuant to the provisions of s 5B Evidence (Audio and Audio Visual Links) Act.
Nonetheless, without particular submissions from Jing addressing the matter, in light of the fact that I had already made an order pursuant to r 31.3 UCPR, there was no particular necessity to make any alternative or additional order pursuant to the provisions of s 5B Evidence (Audio and Audio Visual Links) Act.
On 17 June 2022 (7:11 PM) Jing sent an email to my Associate copied to the other parties in the following terms: "I saw the letter from the plaintiff's lawyer below. I think the law has to be based on facts, and the law is not an empty book. I also tried to link the video of the court with the help of one of the lawyers of the plaintiff through wechat video. I've connected to the VPN and re-downloaded the latest version of the browser. I did exactly what the documents suggested. I even installed A VPN on my MAC and tried it with apple's own system. I spent the whole day working on it. But it's still not available. I have tried all approaches I could try. With the help of one of the plaintiff's lawyers, I've been working on this all day. But the video link is still unavailable. On the day of the court session, can I connect to the court by Zoom or wechat video? But I still have to call the court, because I booked a telephone interpreter. And TIS National, the translation company, had to call the phone number and ID number that day. Thank you."
Despite the attempt by directions to enable the trial to proceed smoothly by audio visual link, there were issues at the commencement of the hearing listed on 20 June 2022.
To enable a satisfactory audio visual link my Associate arranged for the hearing to be conducted via Microsoft Teams and provided the link to enable that to occur.
The hearing was able to proceed on 20 June 2022 by use of Microsoft Teams and on the subsequent three days of hearing. However, the use of Microsoft Teams, being the only suitable connection by which Jing was able to connect visually to the Court, gave rise to issues associated with Jing's arrangements for an interpreter as noted below.
For reasons that are not entirely clear, whilst Jing was able to connect visually over Microsoft Teams, the Court could not hear her through Microsoft Teams, although it appeared that Jing could hear the Court. This issue was addressed by use of a mobile phone which was placed adjacent to the interpreter on each day of the hearing so that Jing could see the Court and be seen by the Court via Microsoft Teams and hear the Court and be heard by the Court via the mobile phone connection which was amplified.
On occasion it appeared that Jing's connection to the Court had dropped out and the Court paused for a period of time until the connection was re-established: e.g. T15, 171. I clarified on these occasions what part of the process Jing had observed and updated her on what had been done: T 16, 171.
I paused at appropriate occasions during the hearing to enable dialogue to be interpreted to Jing. I established that people in the Court had been able to see Jing's picture on the screen and that she had been able to hear the Court and what had been said in Court: T30, 173. Jing indicated that she had been able to hear most of the time although sometimes voices got a little faint or blurred: T31. At one point there was an echo in the audio connection however that also resolved: T43.
There was an initial connection issue for Jing on the second day of the hearing: T32. There was also a connection issue following the luncheon adjournment on the third day: T111. However, on each occasion, eventually a satisfactory connection was re-established. Jing confirmed that she could see and hear the proceedings in court: T148.

[10]

Pre-hearing issues regarding arrangements for and cost of an interpreter

Logistical issues arose relating to Jing arranging an interpreter for directions listings and the hearing.
Often issues that arise regarding interpreters in legal proceedings involve the question of whether the person or party who seeks assistance of an interpreter has sufficiently good English to continue in English rather than having an interpreter interpret.
There was no dispute in the proceedings that Jing did not have sufficiently good English to be able to give evidence in English.
Thus, the issue in these proceedings was not in essence a discretionary decision regarding whether a witness required an interpreter or not but rather the practical question of who should arrange an interpreter and who should bear the cost of doing so.
A recurring theme in the history of the proceedings particularly in period leading up to the hearing was assertions by Jing in emails that she had difficulty in affording interpreters, and requests by Jing for interpreters to be provided to her: emails dated 13 April 2022 4:06 PM; 25 May 2022 at 11:52 AM; 25 May 2022 5:11 PM.
On 25 May 2022 (10:40 AM), my Associate emailed the parties indicating the matter would be listed for pre-trial directions on 30 May 2022 at 9:30 AM. The email indicated both audio visual and telephone links to join the hearing.
On 25 May 2022 (4:37 PM), my Associate emailed the parties, noting that the matter would remain listed for the pre-trial directions hearing on 30 May 2022.
The email noted: "The Court does not organise interpreters for parties. If the Second Defendant believes her English in not adequate, she will need to organise an interpreter herself. The interpreter should be a NAATI accredited interpreter and can be organised through: https://www.naati.com.au/. It is noted that the Second Defendant has appeared with the benefit of an interpreter previously."
On 1 June 2022 at 9:30 AM, the matter was further listed for directions. Mr Zhu appeared for Ran. Mr Gao appeared for Jian jian. Jing dialled in by telephone link and appeared with a Mandarin interpreter. During the course of the directions listing the interpreter announced that she was only booked until 10:00 AM and would have to go. There was some further discussion as recorded by the transcript. However, at almost precisely 10:00 AM the interpreter terminated the telephone link and Jing also disconnected the link.
I directed my Tipstaff to correspond with all parties and in particular Jing to request an attendance with an interpreter to attend at 12:00 PM that day and for the interpreter to be present for whatever time is required for the matter to be dealt with.
At 12:00 PM on 1 June 2022, there was a further listing. Jing appeared with an interpreter.

[11]

Interpreter arrangement and cost issues persist into the hearing

Issues in respect of arrangements for and payment for an interpreter persisted into the hearing, with the result that at some points of the hearing there was some doubt as to how the matter would proceed.
I have already recited the relevant details regarding the attempts to enable the hearing to proceed in a satisfactory way by means of an audio visual connection.
Following emails on 20 June 2022 between my Associate, Jing and the interpreting service arranged by Jing namely Lili Bollen of Translating and Interpreting Service (TIS National), Ms Bollen advised that the interpreter was unable to use the Microsoft Teams link to connect to the hearing as it is prohibited on the TIS National departmental system.
The interpreting service sought to connect to the proceedings by telephone only. However, the Court's audio visual link facility did not have the functionality to simultaneously accommodate a telephone link as well a Microsoft Teams audio visual link connection.
As it turned out, Ran had separately arranged to have available an interpreter for the first two days of the hearing, essentially for her own purposes on the basis that she might be giving evidence on those days.
As the proceedings unfolded, logistical issues with the mode of appearance at the hearing interplayed with questions regarding the arrangements for interpreters.
Legal principle and the practical realities of forensic decision making often intersect in interesting ways.
As recited above, Ran's legal representatives organised an interpreter essentially to facilitate her giving evidence in the matter. What confronted them at the commencement of the hearing was a defendant litigant who on any view did not have sufficiently good English to engage in the proceedings without an interpreter.
Despite significant pre-trial attempts to ensure Jing, who required remote connection facilities and an interpreter, would be able to connect appropriately and be assisted by an interpreter, that did not occur.
During the process of dealing with opening remarks and objections on the first day, Ran without objection by her, simply made the interpreter she had engaged available for those purposes: T1.
The interpretation in the proceedings proceeded by consecutive rather than simultaneous interpreting, the differences as to which I briefly note below.
On 21 June 2022, the second day of the hearing, there were further preliminary issues with Jing connecting by audio visual link to the hearing. Mr Reynolds indicated that his instructing solicitor had communications with Jing to the effect that Jing's internet had stopped working or modem had stopped working.
Jing made arrangements to attend at the house of a neighbour with a working internet connection.
Mr Reynolds' instructing solicitor had arranged for a NAATI accredited interpreter, Ms Wang, to be available to interpret for Ran and Ms Wang was sworn in and interpreted for all purposes on the second day of the hearing.
That there might be problems with knowing who would interpret for the second day was expressly raised at the end of the first day. The following exchange occurred (T31): "REYNOLDS: I just wanted to give the second defendant as much notice as possible that the plaintiff has booked the interpreter for tomorrow but not for the third day, and it's not envisaged that cross-examination of the plaintiff would go over to the third day, so if the matter continues on to the third day, the second defendant will need to organise her own interpreter. I thought it best to say something about it now. HIS HONOUR: Can you please translate that? INTERPRETER: Today I've already organised my own interpreter, and I've paid them the fee, and they told me that my interpreter can only attend by telephone. There's no way that they can connect via video, so I cannot organise my own."
The issue regarding the availability of an interpreter and who would arrange it and be responsible for the cost of doing so came to a head late on the second day, after Ran had given evidence and whilst Jing was part way through being cross-examined (T82) as follows: "HIS HONOUR: We'll clearly not finish today. The matter is listed for tomorrow. Before I adjourn, I had asked Mr Gao to come back to me. Can I ask what the arrangements are for tomorrow? The matter is listed for hearing tomorrow. There has been a translator, Ms Ren yesterday, a translator, Ms Wang today. Is it expected there will be another translator tomorrow? Are you able to tell me what the position is? REYNOLDS: From the plaintiff's end, no. The interpreter was only booked for yesterday and today, being the days on which it could be possible that the plaintiff might be giving evidence, and she sort of then volunteered to provided assistance to the second defendant while she's here; but there's been no booking made for tomorrow. I understand at least for yesterday made her own arrangements, which didn't quite work out, but she seems to be able to organise interpreting services."
After some discussion the following exchange took place (T84-86): "HIS HONOUR: Sorry. Ms Yang, are you able to make an arrangement for an interpreter to physically attend at court? Or alternatively, dial into court in order to be able to interpret for tomorrow? Sorry. The dial in option is not going to work because the audio visual is via Teams and it's not going to work that way. REYNOLDS: Yes. Well, the two options would appear to be for Ms Yang to engage the company independently and retain an interpreter from that company for tomorrow. Or alternatively, to pay the money to those instructing me who will take on the burden and make that arrangement. HIS HONOUR: One way or another, there will need to be some interpretation done tomorrow. What I direct is for the legal representatives for the plaintiff to speak with Ms Yang and to work out, however it is done, a workable arrangement for an interpretation to be done for tomorrow. Well, firstly, can you translate that?" .. .. HIS HONOUR: Mr Reynolds, there are two issues that seem to me that need to be addressed. REYNOLDS: Yes. HIS HONOUR: One is the fact that an interpreter is required. REYNOLDS: Yes. HIS HONOUR: But the second issue is the question of cost. REYNOLDS: Yes. HIS HONOUR: Can you please translate? The question of cost is a question that it seems to me that can be dealt with as a part of the determination of the outcome of the proceeding. .. .. HIS HONOUR: Without making any determination about the matter, at the moment I do not have a degree of confidence that Ms Yang is able to make the necessary arrangements for tomorrow morning. Please interpret. INTERPRETER: No, I can't. Yes. HIS HONOUR: Mr Reynolds, if the plaintiff is able to arrange for interpretation tomorrow morning in a similar way that has happened for yesterday and today, that seems to me to be the more secure option of facilitating the matter being able to proceed in an orderly way tomorrow. If I put aside the question of costs so that that will be determined as part of the case, do you have anything to say about what I have just said in terms of arrangements? REYNOLDS: Just pardon my back a moment. What I'm instructed is they'll make some enquiries with the interpretation firm that's been providing services yesterday and today, but certainly the plaintiff would be wanting in terms of costs, those costs on an indemnity basis either way as they're effectively bearing the second defendant's burden at this stage for costs they'd have to pay but that can be dealt with the cost stage. HIS HONOUR: Without making any determination on the question of costs right here and now, it is evident that translation has been and will be required and that it is further evident that that will be a reasonable expense in relation to the hearing of the matter. Please translate. I think that is all I can say at the moment. Please translate. I will adjourn until 10 am tomorrow morning."
The question facing Ran and her legal representatives was whether they would make available the interpreter they had retained for a limited purpose to enable the hearing to proceed or potentially run the gauntlet of facing the consequences of the hearing being unable to proceed without any interpreter (whether arising from an adjournment application or otherwise).
On 22 June 2022, the third day of the hearing, another NAATI accredited interpreter, Ms Xu, engaged by Ran, was sworn in and interpreted for all purposes during the day of the hearing.
On 30 June 2022, the fourth and final day of the hearing, Ms Wang, who had interpreted on the second day of the day, engaged again by Ran, was sworn in and interpreted for all purposes during the day of the hearing.
The decision made by Ran's legal representatives to make an interpreter available on each day of the hearing was ultimately (as acknowledged by Mr Reynolds) an accession to "the practical realities" and "she elected not to go down" the "avenue" of making no interpreter available: T200.
Thus, in these proceedings, I did not need to make any ultimate determination as to directions regarding the engagement of an interpreter having regard to the fact that independent NAATI accredited interpreters, engaged by Ran's solicitors, were, in the exigencies that I have described above, ultimately made available to assist not merely Ran, but also Jing and the Court, in interpreting for all purposes during all the days the proceedings were listed for hearing.
At the conclusion of the hearing on the fourth day, I directed Ran and Jing to provide submissions on the obligations of parties to organise an interpreter for the purposes of Court processes and who bears the cost of the interpreter by 4pm Tuesday, 5 July 2022.
Jing provided a brief submission on 30 June 2022 as follows: "As for the translation fee for these four days, I obey the law and respect the arrangement of his Honor. But NOW I really have no money to pay, because my money was taken away by the first defendant, the money in Australia was frozen. If I have to pay half, it can be deducted from my frozen account. Thank you so much".
Mr Reynolds provided submissions on 5 July 2022 to which I refer below.

[12]

Principles regarding arrangements for an interpreter

Kunc J observed in Rogic v Samaan [2018] NSWSC 1464 at [158]: "Being bilingual is not the same thing as being an interpreter (spoken words) or translator (documents). Interpreting and translating are highly skilled occupations, often now undertaken with the benefit of specialist tertiary study. Furthermore, reputable interpreters adhere to a professional code of ethics which emphasises the importance of professional competence, accuracy and independence."
For convenience, I will generally use the expression 'interpreting' (and variations of it) to cover the conversion of evidence from one language to another, although during the hearing the qualified interpreter sometimes interpreted dialogue and at other times translated documents.
There is a distinction between simultaneous and consecutive interpreting which has been referred to in DZAAA v Minister for Immigration and Citizenship [2011] FMCA 434; (2011) 250 FLR 423 at [42] (DZAAA) citing M Barnett, "Mind Your Language Interpreters in Australian Immigration Proceedings" [2006] UWSLawRw 5 (at pp 10 and 11 of the Austlii print out), namely: "Consecutive interpretation means that the interpreter translates after the speaker has finished the communication. This is the most commonly used form of interpretation to interpret a witnesses' evidence. This form of interpreting requires the interpreter to listen carefully and remember what was said, perhaps even taking written notes to help with the task. Simultaneous interpretation is interpreting almost immediately after a statement is spoken. It is made while the speaker continues to speak. Generally simultaneous interpretation, where it is utilised in immigration proceedings, will be undertaken by the interpreter translating, usually in a whisper to the applicant, what the Tribunal member is saying to other witnesses and where appropriate what other witnesses say. There is no information available about the frequency of the use of simultaneous interpretation."
In 2017 the Judicial Council on Cultural Diversity published Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017) (RNSWICT Publication). The RNSWICT Publication includes not only National Standards (National Standards) and Model Rules (Model Rules) but also comprehensively addresses various issues which arise in relation to interpreters in proceedings.
The RNSWICT Publication includes comment in relation to the engagement of interpreters to ensure procedural fairness in proceedings: pp 94, 105.
It is clear that rules for engagement of interpreters vary as between both the type of proceedings that occur, and as between differing courts and tribunals. In some proceedings, courts or tribunals may be responsible for the engagement of interpreters, and there are provisions or at least guidance regarding how the cost of the provision of the interpreter is to be borne.
The Supreme Court resolved to implement and apply the National Standards.
As part of that implementation the Court introduced UCPR Pt 31 Div 3 (based on the Model Rules prescribed by the National Standards).
On 4 March 2020 the Supreme Court of New South Wales issued a Practice Note dealing with interpreters in civil proceedings, Practice Note SC Gen 21 - Interpreters in Civil Proceedings.
Practice Note SC Gen 21 - Interpreters in Civil Proceedings applies to these proceedings.
The Practice Note and UCPR Pt 31 Div 3 are to be read together: Practice Note SC Gen 21 at [4]; r 31.55(c) UCPR.
The Court takes into account and, unless the Court considers it for any reason impractical or undesirable in the circumstances of the particular case, gives effect to the National Standards when the Court is construing and applying UCPR Pt 31 Div 3: Practice Note SC Gen 21 at [5].
The general position regarding interpreters in civil proceedings in the Supreme Court in respect of whether they are permitted, and who is responsible for engaging interpreters can be summarised as follows: 1. There are various statutory provisions and general law which inform and explain the use of interpreters for court proceedings. 2. Proceedings in the Supreme Court are to be conducted in English, subject to Div 3 Pt 31: r 31.57 UCPR; (see also Standard 2.1 'Recommended Standards for Courts' RNSWICT Publication). 3. By r 31.58(1) UCPR, if the Court is satisfied that a witness cannot understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put to the witness, then the witness may give: 1. oral evidence in the other language that is interpreted into English by an interpreter in accordance with this Division, or 2. evidence by an affidavit or statement in English that has been sight translated to the witness by an interpreter in accordance with r 31.62 UCPR. 1. At common law, whether an interpreter should be used is a matter for the discretion of the trial judge. The discretion will generally be exercised according to an assessment of whether the party seeking the use of an interpreter would without such use be placed at an unfair disadvantage: Aslan v Shehadie [1998] NSWCA 19 at 4-5 citing Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 464; [1963] HCA 59; Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 at 78, 81, 84 (Adamopoulos). 2. The Evidence Act provides that a witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact: s 30 Evidence Act. 3. It is not entirely clear whether s 30 Evidence Act modifies the common law position, by affecting the discretionary nature of the use of an interpreter or the matters relevant to the discretion: Aslan v Shehadie at 5. However, Div 3 Pt 31 applies subject to the provisions of the Evidence Act: r 31.64 UCPR. 4. The party calling a witness requiring an interpreter is responsible for engaging an interpreter who meets the standards and requirements imposed by Div 3 Pt 31: r 31.58(2) UCPR; see also Model Rule 1.4. 5. If the Court is satisfied that a party cannot understand and speak the English language sufficiently to enable the party to understand and participate in the proceedings, the Court must permit the party to use an interpreter who meets the standards and requirements imposed by this Division so as to communicate with the court (but for no other purpose): r 31.58(3) UCPR; see also Model Rule 1.6. 6. The provision of the rules in this respect follows the general law in that ordinarily in civil proceedings the parties must provide any interpreter required for the purpose of proceedings. That is in contrast with the position in criminal proceedings where, if an accused person or a witness called by the accused requires an interpreter, that is arranged by the Court: New South Wales Crime Commission v Nguyen [2018] NSWSC 1858 at [4] per McCallum J (as her Honour then was); Model Rule 1.5. 7. The Court's decision regarding permitting an interpreter is clearly made in the context of facilitating a fair trial: Adamopoulos at 80G-81A per Mahoney JA. 8. A person must not act as an interpreter in proceedings or proposed proceedings unless the person: 1. is currently an accredited interpreter for the other language concerned or otherwise satisfies the Court that the person is qualified to act as an interpreter, and 2. has read and agreed to comply with the code of conduct, and 3. takes an oath or makes an affirmation to interpret accurately to the best of the person's ability: r 31.59(1) UCPR. 1. The Court may, where it is in the interests of justice, grant leave for a person to act as an interpreter despite not complying with the requirements: r 31.59(4) UCPR. 2. An "accredited interpreter" means an interpreter who is accredited, registered or recognised as an interpreter for the language by a recognised agency, being the National Accreditation Authority for Translators and Interpreters (NAATI), or any other organisation approved by the Chief Justice to be a recognised agency for the purposes of Div 3 Pt 31: r 31.56 UCPR. 3. To facilitate the orderly conduct of the hearing, the accredited interpreter or ideally the parties' legal representatives should be in a position to provide to the presiding judge's Chambers a copy of the front and back of the interpreter's certification/registration card prior to the hearing. 4. If the accredited interpreter is to appear via Audio Visual Link, she or he should at the commencement of the hearing, be ready to display the details of her or his registration or certification to the presiding judge when requested. 5. The Court Interpreters' Code of Conduct is set out in Sch 7A UCPR. 6. In addition to compliance with UCPR Pt 31 Div 3 and the provisions of the Practice Note, each party must, to the extent it is reasonably practicable, conduct proceedings in accordance with and so as to give effect to the National Standards: Practice Note SC Gen 21 at [10]. 7. Interpreting accurately for the purposes of UCPR Pt 31 Div 3 "involves skilled and sophisticated judgments on the part of the interpreter. An accurate interpretation does not equate to a literal or 'word for word' translation. The Court recognises that, in general, the obligation to interpret accurately is not intended to compel, and will not necessarily be satisfied by, literal or 'word for word' interpretation": Practice Note SC Gen 21 at [11].
Mr Reynolds provided helpful submissions (on 5 July 2022) as to the provisions regarding the National Standards, Model Rules and UCPR.
Not merely ideally, but generally, proceedings should not have to commence or (as happened in this case) continue with everyone in the Courtroom not the least the presiding judge uncertain as to whether the valuable court time allocated to hear the proceedings, which in this case was 3 days, would be practically stymied by the unavailability of a qualified person to interpret in the circumstances that prevailed.
The logistical issues in the lead up to the hearing made it highly likely that unless some specific arrangement was made for the provision of an interpreter to work with the exigencies of an audio visual mode of appearance some further logistical issues would occur at the hearing.
The notion that the party calling a witness requiring an interpreter is responsible for engaging an interpreter who meets the prescribed standards and requirements (r 31.58(2) UCPR) on one view only speaks to a limited part of the proceedings, relating to a witness. However, proceedings are not compartmentalised and when a party requires an interpreter that requirement will normally not be limited to the giving of evidence but extend to all aspects of the party's involvement in the proceedings.
Where issues arise in civil proceedings regarding responsibility for engaging a qualified interpreter and payment for the interpreter, those decisions are made, as noted above, in the context of the court facilitating a fair hearing.
When the issue of provision of an interpreter arises particularly close to or in the midst of a court hearing, consideration may need to be given to whether the proceedings are adjourned to enable a proper interpreter to be available.
The prospect that civil proceedings might be adjourned, to enable an interpreter to be available to facilitate a fair hearing was the subject of comment in Adamopoulos at 81D-G per Mahoney JA. His Honour clearly admitted the possibility that civil proceedings may be adjourned for some time although indicated that whether civil proceedings could be indefinitely delayed for such reason would require (future) consideration: at 81F.
As to the question of who is responsible for engaging in interpreter, there are clearly aspects of a hearing where a number of parties involved in hearing may need interpretation for any given witness that is called. Is the party who calls a witness who requires an interpreter, to give evidence in chief, responsible for arranging an interpreter when the time comes for the witness, who has given evidence in chief, to be cross-examined?
Conceptually there may be many different parties in the proceedings who each call a witness and there may be a number of counsel for other parties who each wish to cross-examine the witness (subject to the rules regarding multiple counsel cross-examining: e.g. GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 22-23; Ritchie's Uniform Civil Procedure NSW [29.5.95]).
Does that mean that each different party who calls a witness needs to each arrange for interpreter to be available? If five witnesses are called by different parties to give evidence on a given day do five different interpreters need to be arranged to be available to interpret?
Mr Reynolds understandably distinguished a multi-party case from the present case as being "really the engagement of an interpreter to enable the second defendant to participate in the process": T199.
However, contemplation of other scenarios serves to address consideration of the issues that arose in this case.
Whilst the general position is that the party calling a witness requiring an interpreter is responsible for engaging an interpreter who meets the standards and requirements imposed by Div 3 Pt 31, the general position must give way to the particular requirements of any given hearing having regard to practical efficiencies in the conduct of the hearing and difficulties faced by one or more of the parties in arranging interpreters or difficulties faced by the Court in ensuring that a hearing progresses in a satisfactory way.
Without limiting the Court's powers to control its own procedures, r 31.63 UCPR provides that the Court may at any time give directions concerning the involvement of interpreters in the proceedings including: "(b) the number of interpreters required in any proceedings and whether relay interpreting should be used, … (n) the payment of interpreters."
Mr Reynolds submitted, and I accept, that the Court can depart from the position established by UCPR r 31.58(2) and (3) in an appropriate case.
However, apart from the power of the Court to give directions, the parties themselves have a responsibility for the conduct of the proceedings. Section 56(3) CPA provides: "A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court".
In my opinion, properly construed, (in light of s 56(3) CPA, Practice Note SC Gen 21 at [7] and r 31.63 UCPR), the responsibility referred to in r 31.58(2) UCPR for engaging an interpreter is not a fixed requirement to be understood as merely and only ever individual party decisions irrespective of the nature of the case.
Rather, as is evident from Practice Note SC Gen 21 at [7], when any party might require an interpreter, there ought to be an expectation that the parties themselves and legal representatives liaise with each other prior to the hearing co-operatively to ensure that appropriately qualified interpreters are available as may be necessary for all parts of the hearing, rather than a partisan approach in which each party only considers their own interests in engaging and making available an interpreter for a witness.
Generally speaking practitioners should assess the nature of the case and adopt (as might be appropriate) a co-operative approach to ensure that a single accredited interpreter can be available to interpret rather than the prospect of having a number of different interpreters being engaged and deployed during the hearing as different witnesses who might require interpreters for different parties are called to give evidence.
If such co-operative arrangements are not possible, for whatever reason, the matter ought to be listed for directions.
Lest it be thought otherwise, my comments in this regard are not intended to be critical of the parties in this case. Whilst there was a messiness in the way interpreting arrangements worked out in this case, the purpose of my comments is expressly not to assert (let alone attribute) blame but simply to ensure that future proceedings are conducted as smoothly and efficiently as circumstances can reasonably permit.

[13]

Principles regarding the cost of an interpreter

The question of who is to pay for the interpreter in the first instance is separate to the question of who is to ultimately bear the costs associated with the provision of an interpreter.
In addressing this issue, I expressly limit my remarks to the hearing of civil proceedings in the Supreme Court. Clearly there are other considerations that apply in relation to hearings in other courts and tribunals and other types of proceedings including for example proceedings for judicial review of asylum seekers in immigration detention regarding their refugee status: see DZAAA.
When I asked Jing in submissions whether there was any reason why she should not equally share the costs associated with the cost of engagement of the interpreters for the Court hearings she indicated that "if I need to share the cost, this cost can be taken out of the money that's currently under the freezing order": T196.
Mr Reynolds submitted (T197) that in terms of the cost of the interpreter, Ran would be seeking all the costs to be paid by Jing: "the plaintiff would be seeking all the costs be paid by the second defendant, she only organised for herself an interpreter as a backup in case she struggled in cross-examination, which as it transpired, she did not really need and the interpreter's organised by her have almost entirely been for the benefit of the plaintiff who really ought to have organised her own.
Subsequently, Mr Reynolds submitted in relation to the application of the Model Rules and UCPR to the facts of this case (submissions 5 July 2022) that: "[8] ….the Second Defendant had a responsibility for arranging the interpreter for her witnesses (i.e. herself) and the Second Defendant had to be permitted to engage an interpreter to facilitate her own participation in the proceedings as a party. She had a right to participate in the proceedings via interpreter, but not to have the interpreter paid for by the Plaintiff. It is a right to participate that is contemplated in the context of civil proceedings, not a cost free right to participate. [9] The Court can depart from the position established by UCPR rule 31.58(2) and (3) in an appropriate case. However, there is nothing unusual in the circumstances of this case that would bring it outside the metes and bounds of what was contemplated by the National Standards or UCPR rule 31.58(2) and (3). [10] It may be accepted that the removal of language barriers to enable parties to participate in proceedings in their own language is essential to ensuring access to justice and procedural fairness. Indeed, this was the stated purpose of the National Standards (see the preamble for example), as well as the inferred purpose of SC Gen 21 and UCPR Part 31 Division 3 via the adoption of the National Standards. However, that object is achieved via the regime established by the National Standards and the UCPR; viz Model Rule 1.4 and 1.6. In terms of the present case, the object was achieved via the Plaintiff arranged the interpreter to address the language barrier when the Second Defendant's arrangement as to an interpreter was unsuccessful. [11] That objective does not collide with the usual approach concerning the payment of costs (i.e. that costs follow the event). First, as stated above, the Model Rules and the UCPR contemplate the party calling the witness requiring an interpreter to give evidence and the party requiring an interpreter to participate in the hearing bearing responsibility for that interpreter. Second, the fact that there is an intent to facilitate a party participating in a hearing via an interpreter does not gainsay the proposition that, if that party is unsuccessful, they should pay the costs of the other party (which would extend to all expenses including interpreters). Third, whilst it might be said that it is a necessary cost that needs to be incurred to achieve justice, the same could be said of many other expenses in the course of litigation, such the cost of preparing and printing the court book or arranging for the cost of necessary overseas telephone calls (where remote attendance by telephone is permitted), amongst other costs. Ultimately, they are all costs that need to be paid for by someone to facilitate the orderly and procedurally fair conducts of the proceedings, but that does not undercut the ordinary approach that the unsuccessful party should be responsible for them. The propositions that the costs are necessary to achieve justice and that the unsuccessful party should pay the costs of the event are not mutually exclusive concepts."
Whilst it is technically true that under r 31.58, Jing had the responsibility for 'engaging' the interpreter for the witnesses (i.e. herself) I do not accept the submission that "there is nothing unusual in the circumstances of this case that would bring it outside the metes and bounds of what was contemplated by the National Standards or UCPR rule 31.58(2) and (3)".
Leaving aside the question of the ultimate liability for costs of the interpreters in these proceedings, the ad hoc arrangements that were worked out in these proceedings for interpreters were not ideal.
The concept of a party 'engaging' or 'providing' an interpreter in civil cases for the purposes of r 31.58(2) UCPR might prima facie involve or give rise to an expectation that that party, in the first instance, be responsible for paying for an interpreter they require for themselves or their witnesses. However, the rule whilst referring to 'engaging' an interpreter, does not at least expressly deal with costs.
In a society which is multicultural and the occasions for parties and witnesses coming before the Court to require interpreters are not insignificant, the need for the parties to address arrangements for provision of interpreters and for the initial cost of interpreters is important and should not be left to the vagaries of ad hoc or partisan decision-making.
As I have mentioned above, proceedings should not have to commence with everyone in the Courtroom wondering not merely who is going to interpret in the proceedings, but how the initial cost will be borne. Again, lest anyone considers I am casting blame on the parties for the uncertainty that occurred in this case, that is not the case.
The provisions of s 56(3) CPA, Practice Note SC Gen 21 at [7] and r 31.63 UCPR inform decisions regarding the bearing of costs in the first instance (as distinct from the ultimate liability for costs), such that some sharing of costs as between parties should be considered for the purpose of ensuring that a matter when fixed for hearing will actually proceed smoothly.
Some insight on the costs issue is to my mind gleaned by the Court's approach to expert witnesses. In years past, experts were often engaged in a partisan way by parties.
Legislators and the Court have for some time now recognised that experts rather than being partisan are essentially performing a role of assisting the court in administering justice.
The practice of the Court in relation to the payment of fees for single expert witnesses is that when a "single expert direction" is made, in the first instance, a single expert witness's fee for preparation of the report and any supplementary report and for attending court, if required to do so, is to be paid by the parties equally, subject to other agreement or direction and subject to any later order concerning the costs of the proceedings. A single expert witness's fee for answering questions put by a party is to be paid by the party, subject to the same qualification: Practice Note SC Gen 10 - Single Expert Witnesses at [7(k)].
The appointment of single party experts can often occur in a context in which one party might seek to lead expert evidence and the other does not. Nonetheless, the costs of the expert are often shared.
In circumstances where it will be rare that the interpreter will be solely or principally for the benefit of one party only, it is difficult to see why the costs of an interpreter should not, in the first instance, been seen as simply part of the cost of ensuring an orderly hearing.
On any view of the matter, the costs associated with making available an independent NAATI accredited interpreters, not merely for the purpose of assisting a party and her, his or its legal representatives, but in assisting the Court to interpret for purposes of the proceedings is clearly a reasonable expense for the purposes of the proceedings.
Often the question of the engagement of and payment of the costs of an interpreter will be able to be agreed by the parties or the subject of directions by the Court prior to the commencement of the hearing.
For the purposes of rulemaking and law reform, some consideration should be given to reviewing the rules to provide for sharing costs of an interpreter in the first instance subject to any ultimate order for costs in the proceedings, to avoid the type of logistical difficulties which occurred in this case.
I reiterate that my comments in this regard are directed to ensuring that hearings are able to proceed from the outset in an orderly and smooth way.

[14]

Jing's pre-trial familiarity with procedure and participation in the proceedings

In pre-trial email communications with the Court and the other parties leading up to the hearing of the matter, it was evident that Jing, despite language difficulties, was able to readily communicate with the Court and the other parties by email facility in English. It appeared from email communications that she had translation software which facilitated her being able to communicate that way: e.g. emails sent to the Court and other parties on 13 April 2022 at 4:06 PM; 25 May 2022 at 11:52 AM.
Jing at the hearing stated that she had quite basic English and was assisted by translation software in translating documents although indicating that she did not "100% understand them": T10. She also stated "my English is not good" (T 115) "but I have learnt English before. I know translating from English to Chinese is easy but from Chinese into English is more difficult": T185. On one occasion she used her phone to take a photo of the English text in the court book and used a translation tool on her phone to translate the text into Mandarin: T115.
Jing had (as is clear from both emails sent to the Court and other parties and from the transcript of the hearing) clearly prepared for the hearing by various methods including prior to the hearing: 1. providing an affidavit affirmed by her (before Jiong Shi described as a "Chinese barrister" located in Tianjin, China) for the purposes of the hearing of her notice of motion: email 2 June 2022; 2. clarifying the purpose of written submissions: email 9 June 2022; 3. clarifying the timing of the Court hearing for each day for the purpose of booking an interpreter: email 10 June 2022; 4. providing detail of the defence and copies of affidavits on which she relied: email 13 June 2022; 5. providing a list of objections to Ran's affidavits: email 15 June 2022; 6. providing responses to objections to her affidavits: email 15 June 2022; 7. providing written submissions: email 15 June 2022; 8. providing a revised and final version of submissions: email 17 June 2022; and 9. providing notice to the Ran's representatives of witnesses, or specifically Ran, to be available for cross-examination: (as noted at T41).

[15]

Unrepresented litigants

The approach of the Court in assisting an unrepresented litigant is properly understood and to be considered in the context of the Court's obligation to ensure a fair trial according to law for all of the parties in the proceedings.
In Bauskis v Liew [2013] NSWCA 297 Gleeson JA (Beazley P and Barrett JA agreeing) addressed the question of the Court's duty to unrepresented litigants in the context of procedural fairness. His Honour referring to the decision of Beazley JA (as her Honour then was) in Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] stated the following propositions in respect of the Court's duty: "The Court's duty to unrepresented litigants [66] The appellants' submissions raise the issue of the role of the court in ensuring a fair hearing. The court's duty to unrepresented litigants was examined in Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] by Beazley JA (as her Honour then was) where the authorities are collected. The following propositions emerge from those authorities relevant to the present case. [67] First, the court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae‐Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135 ; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500 ; (2005) 94 SASR 154. [68] Secondly, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337 ; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666 ; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]-[53]. [69] Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406 ; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. [70] Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corp Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14."

[16]

Information provided regarding Court processes

Jing was informed by me of various aspects of the stages of the hearing and the rights that parties had to participate and engage in the hearing at those stages.
I indicated to Jing (and the other parties) (T41-42) that: 1. I could provide a litigant (Jing) with information as to the practice, and to the procedure of the Court, to ensure that there is a fair trial to both parties; 2. how much information is provided to a litigant will depend upon the circumstances of each case; 3. the Court's duty in providing information to a party who is not legally represented is to ensure that there is a fair trial for all parties; 4. in providing a litigant with information, it is not the Court's role to advise the litigant how her or his rights should be exercised; 5. it is not the function of the Court to give the litigant advice, or to conduct the case on the litigant's behalf; 6. what I described regarding the provision of information and the stages of the hearing and description of the purposes of those stages was not intended to be a complete setting out of the limits of such stage (e.g. cross-examination), rather it was intended to give the litigant (in this case Jing) sufficient information regarding the purposes or the main purposes of each stage to enable her to make her own choices; 7. it is a matter for a litigant (here Jing) to choose for herself the extent to which she availed herself of or participated in the Court's procedures as explained; 8. the parties to the proceedings have a responsibility to use the Court time in a manner to ensure that a fair hearing of the matter occurs within the allotted time, and to focus on the real issues in dispute.
For the purposes of the hearing Jing confirmed, in response to my question, that she had an electronic copy of the court book with her: T8.
The information regarding participation in the hearing and aspects of procedural fairness which I provided to Jing included informing her of and in respect of the following matters: 1. the people who were present in Court: T2, 3, 88, 148; 2. the fact that an interpreter, who was NAATI accredited, had been sworn in and had promised to faithfully interpret the dialogue in Court: T3, 33, 148; 3. that everything that is said needs to be interpreted to the party or parties requiring interpretation: T46 4. the fact that there is a transcript of the proceedings, being a typed record of the recording of the dialogue that takes place in Court, and that if the parties seek to have access to the transcript they can apply to the Court Reporting Branch to obtain a copy: T34; 5. that counsel for Ran would make an opening statement in support of Ran's claim: T3; 6. that Jing had an opportunity to and may make a response regarding what Mr Reynolds had said and to confirm or otherwise indicate to the Court the nature of her defence to the claim: T 6; 7. that I would deal with the objections to the affidavits and make rulings in respect of the objections to clarify what material was admitted into evidence and what was not admitted, and to ensure that each party knew what evidence was in the proceeding and what evidence had been rejected: T10, 11; 8. that despite a litigant's (Jing's) frustration in dealing with objections one by one, and suggestion that the objection process be terminated to move onto the next stage of the hearing, that the purpose of ruling on objections was not really a matter of saving time. Rather it is a matter of ensuring that the hearing of the proceedings is conducted in a fair manner for all of the parties to the proceedings, including the litigant in person: T11-12; 9. that rulings in relation to admissibility of evidence clarified what evidence was before the Court, and that if she wished to make some submission about the evidence in the proceedings at a later point of time that that was a matter for her, but I would give her an opportunity to do so: T19; 10. following rulings in relation to objections to evidence I would provide the parties with two documents being a written record of the rulings in respect of Jing's objections to Ran's evidence (MFI-2) and rulings in respect of Ran's objections to Jing's evidence (MFI-3): T37; 11. pre-trial directions were made in relation to each side providing lists of affidavits on which they intended to rely, and that as a matter of fairness each side must disclose the affidavits on which they intend to rely, rather than reserving to themselves the opportunity to later make decisions to rely upon other material: T27; 12. that after rulings on the evidence each witness (required for cross-examination) would be called for cross-examination and once that process was completed there would be re-examination and a time for the parties to make submissions on the evidence before the Court: T11; 13. that Jing would have an opportunity to place submissions before the Court orally in addition to the submissions that she had already sent to the Court: T11; 14. Jing had a right, if she chose to do so, to cross‑examine Ran's witnesses: T41, 159; 15. the purposes of cross‑examination, briefly stated, are to permit a party to: challenge or test the reliability or credibility of the witness being cross-examined; obtain information about the facts in issue in the case; obtain information about matters that the person might consider is favourable to their case; obtain admissions from the witness: T41, 160; 16. that (generally) cross-examination is for asking questions rather than making statements: T49; 17. the manner of asking questions will depend upon the nature of the cross-examination: T50, 160; 18. if the examiner (Jing) wished to submit to the Court that the evidence of the witness should not be accepted, she needed to fairly put that matter to the witness: T53, 160; 19. that whilst a witness may be recalled for cross-examination during the hearing after cross-examination had been completed, it is not fair to permit that to happen multiple times and that the questioner should reflect whether they have any further questions to ask the witness before concluding the cross-examination: T59-T60. 20. that whilst Jing was being cross-examined she should listen to the examiner's (Mr Reynolds') questions, and respond to questions unless she objected to the questions, in which case I would make a ruling or unless I rejected the question (of my own volition): T65,67; 21. that the examiner (Mr Reynolds) may ask her questions as he considers appropriate to conduct his cross-examination: T67; 22. unless there was a proper objection to the question and I rejected the question (as being inappropriate or not permissible) I would allow the question to be asked and she ought to respond to the questions: T67, 69; 23. that it is not a valid objection that the witness could not guess or detect the purpose of the questioning: T69; 24. the witness' (Jing's) assessment of whether the question of the cross-examiner was relevant or not was not conclusive of whether the question would be permitted: T67, 71, 73, 79-80, 98; 25. Jing as a party could object to a document sought to be tendered (assuming a proper basis of objection): T39, 121; 26. that following cross-examination there is an opportunity for a witness to make a statement in re-examination on matters arising out of the cross-examination: T123; 27. the purposes of re-examination included clarifying or explaining any unclear answer given in cross‑examination and to clarify or explain an answer given in cross‑examination, which unless supplemented or explained, might leave the Court with an impression of the facts which distort the truth or be an incomplete account of the truth as the witness is able to present it; T123-124; 28. that ultimately it was a matter for the witness (Jing) to reflect on her evidence in cross‑examination to decide whether she wished to make any statement to the Court to clarify part of her evidence in the manner I had explained: T124; 29. a party may, following the conclusion of evidence, make submissions, putting before the Court arguments as to how the Court should determine the case by reference to the law and to the evidence: T144, 161; 30. without telling a litigant what, if anything, the litigant should submit, submissions may address (a) evidence the litigant contends the judge should accept or reject, (b) matters which a defendant litigant says may cast doubt on or defeat the plaintiff's claim and (c) matters which the litigant says may support the defences that the litigant has put forward: T144, 161.

[17]

Jing's participation in the proceeding in light of the information provided

Jing availed herself of the opportunity to make an opening statement: T6-8.
Jing confirmed that she relied upon the defences in the defence filed on 26 April 2021 (T 8) and also the affidavits filed by her incorporated in the court book: T8.
In relation to cross-examination Jing, after the process was explained to her, appeared mindful to save time or "legal resources". I indicated to her that there was time within the court day for her to cross-examine if she wished to do so: T41-42.
Jing availed herself of the opportunity to object to documents being tendered (T39-40, 121-122) and to cross-examine Ran: T48. Jing indicated that Ran was the only witness she desired to cross-examine: T54. Later in the proceedings on the fourth day, Jing declined the opportunity to further cross-examine Ran, after some additional affidavit evidence from Ran was admitted: T159.
Jing availed herself of the opportunity to make a statement in re-examination (T124) and tendered documents as part of the re-examination: T124-130. Jing also at points objected to certain evidence being received: T158, 159.
It was evident that Jing was aware that: 1. evidence would need to be adduced in order to prove or establish facts: T49.5-.6; 2. in answering questions under oath there were consequences for providing false information: T49.6-.8; and 3. there were forensic risks in cross-examining on material that had been rejected (in particular I have in mind the memorandum/IOU document): T58.1-.10.
On occasion, Jing referred to the divorce agreements as proving matters and I reminded her that the fact that the divorce agreements existed was in evidence, but the contents of the agreements were not in evidence: T96.8-.24.
During the hearing at some points Jing indicated that she was nervous and accordingly forgot to do certain things, for example in cross-examination: T55, 60. Having regard to the circumstances and in attempting to achieve a fair hearing I permitted some further cross-examination after Jing had initially indicated that she had completed cross-examination.
A document attached to the written submissions was, during the hearing, established to have been a copy of a civil judgment in China. Jing indicated that the purpose of the document was to prove that Jian jian had forged her signature and said many lies and that a court in China had "ruled over his lies": T127-128. I rejected the tender of the judgment. This was more particularly on the basis of relevance having regard to Jing's asserted purpose in putting it forward, but in any event because there was no translation of it: T128.24-.33.
Jing on the fourth day asserted that the interpreter had not informed her that submissions may refer to relevant laws and asked whether it was compulsory for her to do so: T162.
I reminded Jing that: 1. prior to the hearing of the proceedings commencing, she corresponded with my tipstaff regarding submissions, and that my tipstaff, on behalf of myself emailed the parties, indicating that submissions can include reference to matters of law and evidence; and 2. she provided to my staff an initial form of submissions, and then a revised final form of submissions.
On the third day of the hearing prior to the time for submissions I informed those in the Court and Jing that the submission process involved putting before the Court arguments as to how the Court should determine the case by reference to the law and to the evidence: T144.
The pre-hearing correspondence regarding submissions was that on 9 June 2022 (11:02 AM), Jing sent an email to my Tipstaff, as follows: "I am sorry. My English is very poor. What can I do before the hearing please? I should provide written submissions in Word format, no later than 4pm on 15 June 2022. Written submission means new affidavit and evidence? I look forward to your reply. Thank you so much."
On 9 June 2022 (12:56 PM), my Tipstaff responded (to all parties) as follows: "Any evidence, including affidavits, that you seek to rely on at the hearing should have already been served in accordance with directions previously made by the Court. You will require leave to rely on any evidence that has not been so served. Written submissions, should you choose to provide them, may contain your arguments as to how the Court should determine the case by reference to the law and the evidence before the Court, noting that each party will have some time, but not unlimited time, to make oral submissions at the hearing. The Court is unable to provide legal advice as to how you should conduct your case, including whether you should provide any written submissions, and if so, what they should contain."
Further in relation to submissions I informed Jing (T162) that: 1. I understood she is not a lawyer nor trained as a lawyer; 2. by reason of (1), there may be limitations in respect of the extent to which she can assist the Court in relation to questions of law; 3. if she wished to do, so she had the opportunity to assist the Court in relation to questions of law, to the extent that she is able to do so; 4. apart from what the parties submit to the Court in relation to submissions on questions of law I, as the judge hearing the matter, have a responsibility to look at the law relevant to the case and to apply the relevant law to the case; and 5. I have that responsibility regardless of whether the parties assist me in any significant respect or at all.
Jing indicated that she understood what I had said in this regard: T162.

[18]

Issues

There is no dispute in the proceedings that there were discussions between the parties in relation to Ran agreeing to lend monies to the defendants for the purchase of the property.
Ran's case is simply that there was an oral loan agreement reached on particular terms: T163.
Ran claims that although there were discussions earlier in 2018 that the relevant discussions regarding the loan took place in August 2018. Ran states that the loan was for a year with interest to be payable at 3.95% per annum.
Ran in her statement of claim sought a declaration that the defendants held the property on a resulting trust for her for the amount of $245,795.50 plus interest.
Ran's written submissions pre-hearing did not propound the claim as being a claim of resulting trust, but on the basis that the property was charged by the defendants with repayment of the loan amount. The fact that this was the way the case was put was confirmed by Mr Reynolds in submissions on the hearing: T165.
Mr Reynolds put an alternative case that in the event that the Court found that there were no agreed terms as to repayment, the loan funds were repayable immediately citing Ogilvie v Adams [1981] VR 1041 and referring to my decision in In the matter of Black Tie Holdings Pty Ltd [2022] NSWSC 781: T164.
As I noted in In the matter of Black Tie Holdings Pty Ltd at [223]-[225]: "223. Generally, where monies are advanced from one party to another the monies are regarded as being instantly owing without necessity to actually make a formal demand. The law in this regard was explained by Fullagar J in Ogilvie v Adams [1981] VR 1041 at 1043. 224. In order to prevent a cause of action for recovery arising instantly, the parties must expressly contract out of that situation by words clearly inconsistent with it: Ogilvie v Adams at 1043. 225. It then becomes necessary to look at the arrangements between the parties said to give rise to the loan agreement".
In the result, there is no need to determine the alternative case because I have found that there was an express arrangement as alleged by Ran for timing for repayment.
Mr Reynolds put an alternative case (T164-165) that in the event that the Court found that there were no agreed terms as to the interest payable that the Court would nonetheless ordinarily make an order for payment of interest on money lent citing Falkner v Bourke (1990) 19 NSWLR 574 at 576A-B.
I address the question of interest below.
Jing admits that there was an agreement to lend monies but asserts that it occurred between April 2018 and 1 May 2018: CB 12[4a]. She disputes that she was aware of and consented to Jian jian sending the memorandum dated 30 August 2018.
During the course of submissions I raised directly with Jing whether she disputed the fact that a conversation occurred as asserted by Ran in early August 2018 giving rise to the loan arrangement (alleged agreement conversation). She said that she did dispute that submitting "No, it did not take place": T193.
In particular I sought to understand from Jing in submissions precisely what communications she said gave rise to the admission in her defence that the parties had entered into the loan agreement between around April 2018 and 1 May 2018:CB 12[4a].
Jing was noncommittal in that regard and ultimately appeared to indicate that there was no communication in that time giving rise to any agreement on terms of the loan as alleged by Ran, though Jing did assert that no monies would be repayable until sale of the Chinese property: T194.
Jing claims that the loan was interest-free and that each of herself and Jian jian would contribute equally towards repayment of the loan and that it would become due and payable only upon sale of the Chinese property such that the sale of the Chinese property was a condition precedent to repayment of the loan.
Jing's defence referred to and pleaded the terms of the divorce agreements as between herself and Jian jian dated 1 May 2018 and 31 October 2018.
I admitted evidence of Jing's claim that there were such agreements on those dates. However, I rejected evidence of the contents of those agreements as there is no evidence that Ran was a party to those agreements, and despite the assertion in Jing's defence, there was no evidence that the terms of those agreements were negotiated with any involvement by Ran or that she agreed in some way to be bound by the terms of those agreements.
Apart from those disputes regarding the terms of the loan agreement, Jing also in her defence raises defences of estoppel, waiver, acquiescence and election.
In opening remarks regarding the claim, Jing indicated (T6-8) that: 1. the ground for lending monies were based on the divorce agreements that she reached with Jian jian; 2. that there was a difference between the amount claimed to have been lent ($250,000) and the amount of money actually advanced; 3. that the property was not agreed to be used as a charge or security for lending; 4. that the term of the loan was not one year but rather conditioned upon sale of what she described as the "small property" in China; 5. that a one-year loan term was unlikely to have been agreed because Ran would have sued her once the (one-year) loan term matured rather than after learning of the sale of the property; 6. the reason why Jing and Jian jian needed to borrow money from Ran was because Jian jian had lost money in the stock market.

[19]

Evidence

In Ran's case affidavits were read as follows: 1. affidavits of Ran sworn 20 November 2020, 29 September 2021 and 9 June 2022 (9 paragraphs in length), paragraphs 3, 4 and 7 of a second 9 June 2022 affidavit (26 paragraphs in length), and an affidavit sworn 29 June 2022; 2. an affidavit of Di sworn 29 September 2021; and 3. an affidavit of Yi Chen a NAATI accredited interpreter affirmed 10 June 2022.
Mr Gao on behalf of Jian jian did not read any material and had, in effect, a form of watching brief of the hearing. Mr Gao also as I note below addressed the Court in relation to the nature of Jian jian's cross-claim against Jing and the issue of whether the cross-claim should be transferred to the District Court.
Jing read and sought to rely upon five affidavits, being affidavits affirmed by her on 14 September 2021, 16 November 2021, 11 January 2022, 14 April 2022 and an affidavit sworn by her on 13 June 2022.
There was an exhibit JY-1 to the affidavit affirmed on 14 September 2021.
I made rulings in respect of the objections to the affidavits made by each of Mr Reynolds on behalf of Ran and by Jing.
I marked for identification MFI-2 the rulings in respect of Jing's objections to Ran's affidavits and marked MFI-3 the rulings in respect of Ran's objections to Jing's affidavits.
After the affidavit evidence was concluded Mr Reynolds indicated that he would seek to adduce some evidence in relation to Ran's income: T28. The relevance of that was discussed, and I noted that I needed to be mindful that Jing did not appear to have been given prior notice of the fact that he would ask such questions and that there may be a question of her ability to respond to the evidence: T29-30. Mr Reynolds indicated that he would reflect on the matter and consider overnight the possibility of a documentary tender: T29.
As events transpired, Mr Reynolds did the next day seek to tender the notices of assessment: T39-40. After establishing that Jing had an objection essentially as to relevance I admitted the notices of assessment (which became Ex P1): T40.
On the final day of the hearing I permitted some additional affidavits that have been mentioned above to be read by Ran, despite objection by Jing, though expressly on the basis that Jing had the opportunity to further cross-examine Ran in respect of the additional material. Jing declined that opportunity.

[22]

Browne v Dunn

For reasons which are not entirely clear there was some lack of pre-trial response by each party to parts of the other side's evidence.
I raised for the consideration of all parties the fact that Ran had sworn two affidavits (29 September 2021 and 9 June 2022) after Jing's 14 September 2021 affidavit and that neither of them responded to the conversation that Jing said had taken place in February 2018: T97.
Ran had not replied to conversations which Jing said occurred in February 2018 (CB 105[22]) and in late April 2018: CB 107[29].
Jing on the other hand had not responded to Ran's 20 November 2020 affidavit and accordingly did not directly respond to the alleged agreement conversation which Ran says took place in early August 2018.
In an indirect way, there was some evidence from Ran which bore upon the likelihood of Jing's asserted conversation with Ran in February 2018, in that Ran had independently indicated that at the time of her family's visit to China in December 2017 to January 2018 their itinerary was very full and nothing was discussed in relation to the property: CB 51[34].
Further, consequent upon my raising with the parties that there had not been some particular responses to conversations said to have been made, Mr Reynolds read three paragraphs of a second affidavit of Ran sworn on 9 June 2022 which relevantly denied that (a) she had had conversations with the defendants about their marital troubles, (b) she had stated that interest would not be charged on her advance of funds to the defendants and (c) that she had agreed to accept repayment of the loan only when and if the Chinese property was sold.
Mr Reynolds raised the question where in putting to Jing disputed evidence and "it's fairly evident that .. she's effectively disagreeing", doubting what purpose of fairness was served in putting the material until Jing expressly agreed or disagreed: T96. I indicated that ultimately it was a matter for Mr Reynolds to decide what he would cross-examine on and that my task was to ensure a fair trial for all the parties: T96.
In Cahn v Kosmin [2022] NSWSC 751 I made reference to the decision Campbell J (as His Honour then was) in West v Mead [2003] NSWSC 161 in application regarding application of the principles in Browne v Dunn (1893) 6 R 67 in the context of a hearing in which the evidence in chief has been adduced by affidavit evidence prepared as part of the pre-trial preparation process. I stated at [634]-[635]: "[634] Campbell J (as his Honour then was) noted (in the context of the obligation of procedural fairness), that if it is intended to impeach the credibility of a witness on a particular matter, whether the cross-examiner ought to give the witness an opportunity whilst he is giving evidence, to make any explanation which is open to him on the matter, will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the Court: at [98]. [635] His Honour noted that even where there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case: [99]".
However, it should be noted that the rule in Browne v Dunn is not to be mechanically applied, particularly for a witness who is self-represented and whose primary language is not English. The fact that a witness might giving evidence does not expressly agree or disagree with a proposition that is put does not deprive the rule of utility. The purpose of the rule is to provide the witness with an opportunity to give an explanation, which explanation need not necessarily be confined to a decisive binary Yes/No or Agree/Disagree answer.

[23]

Events

The following facts, drawn from the affidavit, documentary and narrative evidence from both Ran and Jing, are, except as I otherwise indicate, either uncontested or not seriously in dispute.
Jing did not see Ran on the occasion that she married Jian jian and since the time of her marriage to Jian jian in 2010 she lived in China and Ran lived in Australia: T66.
The first time Jing met Ran in person was in 2012 in China. The second time she met Ran was in July 2015 on a holiday to Australia: T66. The third time she met Ran was on a trip by Ran to China in December 2017 to January 2018, during which Ran saw Jing and Jian jian for about six days or a week: T67. The fourth time Jing met Ran was in December 2018 on a trip organised by Jing to Australia: T67.
Jing's evidence in cross-examination made it apparent that she was not close to Ran (T70, 110), they had met only a few times (T70) and Jing did not have much to talk with Ran about: T68 (in context other than the arrangements in respect of the monies lent).
In June 2015, the defendants and Ruihan came to Australia for a holiday for approximately 3 months. Ran hosted them at her property with her family during this time: CB 44[4]; 75[3]; 104[15].
During the trip Jing says she fell in love with Sydney and she and Jian jian decided to purchase the property off the plan: CB 104[16].
The vendors agent (AHL Real Estate Pty Ltd) introduced Jing to Ms Ching Pang (Ms Pang) then employed by the firm GJ Fong & Co to be the defendants' conveyancing lawyer: CB 104[17].
Jian jian stayed in Sydney for two weeks or so and went back to China prior to the end of July. Meanwhile, Jing and her daughter stayed in Sydney for a much longer time, almost up to 3 months: CB 104[18].
On or about 31 July 2015, according to Jing she and Ran went to Ms Pang's office together and Jing signed a contract for the purchase of the property: CB 104[19].
The contract for sale is dated 31 July 2015 and discloses the vendor as Discovery Point Pty Ltd and the purchasers as being Jing and Jian jian. The purchase price being $840,000.00 with a 10% deposit of $84,000.00 leaving a balance of $756,000.00 to be paid. The front page and signing page of the contract is in evidence: CB 121 - 122.
Those pages do not disclose the nature of the joint holding of the defendants as purchasers. However, Jing states that she purchased the property as a joint tenant with Jian jian: CB 104[19].
At the end of 2016, a friend suggested to Ran that it would be a good time for her to invest in property. It appears at that time that Ran and her husband Di had an existing home loan. Ran spoke with someone at the ANZ Bank (ANZ): CB 49[23]-[24].
On 1 September 2016, the ANZ offered Ran and her husband a home loan: CB 60.
The refinancing was for a total amount of $464,000 at an interest rate of 3.95% per annum. The refinance resulted a net amount of approximately $300,000 being credited to Ran's offset account with the ANZ bank: CB 49[25]-[27].
Between 18 December 2017 and 23 January 2018, Ran visited China with her family to see their parents. Ran saw the defendants on or around 16 January 2018 for approximately six days: CB 51[34].
Jing agrees there was a visit by Ran and her family to China in early 2018 although places the timing of the visit from late January to mid-February 2018. Jing says that they stayed with Jing and Jian jian at a unit in Hebei Province where they were cohabiting at that time (CB 105[21]) for about six or seven days: T67.
There is dispute in the proceedings regarding what if anything was said in early 2018 relevant to potential lending as between the parties.
Ran says that their itinerary was very full and nothing was discussed in relation to the property: CB 51[34].
Leaving aside the timing issue (whether it be mid-January or early February 2018) Jing states that during that stay she and Jian jian began arguing and states that there was a conversation between the parties in the following terms (CB 105[22]): "Me: Big sister, you can be the judge of us. He promised me that he would stop trading stocks a few years ago but he has opened a stock trading account behind my back. How is it fair for me? He is going to lose everything we have to the stock market. He has already lost ¥2 million RMB! Our Sydney's property's settlement is comping up soon this year, and I don't know where we are going to come up with the funds. We will have to sell our small property for this or else we will lose the deposit! I need to divorce this man right away! R Zhang: Please clam down, sister-in-law. Please think about your daughter, divorce is bad for children. I am sure my brother will repent for his mistake. If you guys are short of funds for the settlement, I can help you out. Jian jian Zhang: That's very nice of you, sister. R Zhang: I don't know how much you need for the settlement, but I can probably offer no more than AUD$250,000. It's Chinese New Year now so consider it as my blessing to you two. I won't charge you interest because both of you are my family. I hope you two can work thing out soon. Nothing is more important than family harmony. Me: Thanks, big sister. If we can sell the small property in time should be fine, but we will keep your kind gesture in mind. We appreciate your offer."
I refer to this dispute below.
In around late February 2018, Jing states she approached several agents about listing what she describes as the "small property" which in September 2021 was her current address, also in Hebei Province (Chinese Property), to put it on the market for sale: CB 106[23].
Specifically, on or about 25 February 2018, Jing approached Sanhe Lianjia Real Estate Brokerage Co Ltd (Sanhe Lianjia) to list the Chinese Property for sale again for ¥1.28 million RMB (approximately $269,020.59): CB 109[41].
On 11 March 2018, Jing entered into what she describes as a house sale entrustment agreement with an agent (Sanhe Lianjia) for the sale of the Chinese Property with a continuing authority until the property sold: CB 106[24]; 124.
Ran states that in early 2018, the defendants spoke with her in relation to the purchase of the property to the effect that they may need additional funds to complete the purchase. She states that Jian jian was aware from previous conversations between them that she had an amount of approximately $300,000.00 sourced from the refinancing of her home loan: CB 45[11].
It is unclear precisely when this conversation is said to have taken place. The fact that Jing (as noted below) disputed that any conversations (when the parties were in separate countries), took place outside of WeChat communications suggests that Ran's claim regarding this may be disputed. Ultimately, it is not necessary to decide whether such a conversation actually occurred as it is not claimed on Ran's side that the conversation was material to the loan case propounded, at least not other than perhaps as some background to what was said to be the formative loan conversations.
On 26 March 2018, Ran states that she had a conversation with Jian jian in relation to their purchase of the property via WeChat in Mandarin in words to the following effect (CB 46[12]): "Myself: How is your loan? First Defendant: Jing Yang is arranging it. We may really need to use your $300,000.00. We will pay interest; and we can repay you in about a year. Myself: [Picture of Offset Account Balance] My account does not have this much money anymore. do you not have any options? I have not yet spoken to my husband. his business is not doing well this year and we are depending on my income only. I do not want to touch my savings unless there is no choice. First Defendant: I understand. Can you ask your husband please? How about $250,000.00. Myself: Ok ok."
The independent translation of the WeChat message (CB 88) is as follows: "Ran: How is your mortgage going? Jian: Yang Jing is doing it. Jian: Your 300,000 may be used for real, we pay the interest, and will repay it all to you in approximately one year. Ran: (Image) Ran: I don't have that much in my account. Don't you have any other way? I haven't discussed it with the brother-in-law yet. His business has been very bad this year and it is entirely my wage that pays for everything. Don't touch my money unless you have no choice. Jian: I understand. Jian: Then, can you discuss it with the brother-in-Iaw? How about borrowing 25? Ran: OK OK"
On 4 April 2018 Ran states she had a conversation with Jing via WeChat in Mandarin in words to the following effect (annexure 'A' affidavit 29 June 2022): "Jing: Zhang Jian doesn't want to have so much stress, and is afraid not being able to pay back the money. What I mean is, work and earn money in China in the right way, and refrain from gambling with colleagues and investing in stocks, and work hard and earn money. Even if the business is not good, as long as we go there and have the qualifications, we can apply to mortgage the property's loan and repay everyone's money and earn money step by step to repay the bank loan. If, at the time, we could not apply for loan, once we're there, we'd sell the Chinese property and repay everyone's money. If, at the time we're not there, we list the property in the market then, and sell the property and repay the money. The money is here after all, and there're many ways of repayment. Ran: It makes sense, once there, the property can be refinanced and the money can be used. Ran: The money I have now is from refinancing save money by one's own and the next life."
Jing was equivocal as to whether this occurred, and I address this below.
On 20 April 2018 Ran states she had a conversation with Jing via WeChat in Mandarin in words to the following effect (CB 46[13]): "If we get a mortgage for the property, we can first sell the property here [in China]. If we really can't sell the property m the next two months, we may need to tomorrow from you first. We will repay interest first, and repay the principal as fast as possible. If we can't sell the property here, we will reduce the selling price of the small house [the Chinese Property]. We first listed it for RMB1,590,000 and we have reduced it to RMB1,400,000. If this is not enough. we will reduce further. We will sell it as soon as possible to repay your money. If the small house [the Chinese Property] really cannot sell, whatever income we have, we will first repay the loan to you. We will repay within half a year, or a year, all the principal and interest. Very indebted to you, thank you. We will still try to sell the small house [the Chinese Property]."
The independent translation of the WeChat message (CB 91) is as follows: "Yajing (YANG Jing): If ZHANG Li has the loan ready, we will start with selling the property here first. I will borrow from you first if it cannot be sold in these two months. TI1e interest will be paid first and the principal amount will be paid as soon as I can. The small property can be sold even with a cheaper price if there is no better option. It was listed for 1.59 million and now is reduced to 1.4 million. If this doesn't work, the price can be even cheaper so that your money can be repaid as soon as possible. The small property is not popular in the market for real. Your money will be paid first anyway. Will try to pay the full balance of the principal and the interest in 6 or 12 months. Yajing (YANG Jing): (Emoji) So grateful for your help. Still try to sell the small property"
Ran states that this time they did not agree on any loan as the defendants were still hoping to source the shortfall for their purchase of the property by selling the Chinese Property: CB 47[13].
Jing states that as the settlement of the property was scheduled at the end of August 2018 that from April 2018 onwards, she and Jian jian started looking for a home loan to finance the balance of the purchase price: CB 106[25].
Contact was made with a finance broker Mr Li Zhang (otherwise referred to as Henri Zhang) in Sydney to help Jing and Jian jian with loan applications: CB 106[26].
Jing states that due to the foreign residency status of herself and Jian jian the broker advised them that they would not be able to secure a home loan from any banks and that a private lender would be a more realistic option who would be likely to approve a loan of around $300,000.00 to them: CB 106[27].
Jing was cross-examined in relation to funding provided by BC Securities Pty Ltd (BC Securities). In cross-examination she referred to a loan which she said had actually been approved for $336,000: T 72. In re-examination she referred to and tendered various documents including a loan offer from BC Securities.
The loan was in fact proposed by a lender AMAL Trustees Pty Ltd to both defendants. The loan offer is undated, although it refers to information prepared by the lender and is said to be current as of 12 July 2018 with an amount of credit proposed of $336,000: Ex D2.
The loan offer document proposes interest applying to the loan at the standard variable rate less a margin of 1%, with the standard variable rate being described as the honeymoon margin of 5.95% per annum, with that margin to apply for a period commencing on the settlement date until 4 February 2019 (the honeymoon period) with interest to increase at the end of that period to 6.95% per annum: page 1, loan offer (Ex D2).
The loan offer is described as having the purpose of being a loan to be used for the purchase of the property with various charges by the lender and the property to be held as security by means of a Real Property Act mortgage.
As the balance of the purchase price payable was $756,000.00, Jing says it became clear to her that she and Jian jian would require Ran's financial assistance of $250,000.00 plus some additional private funds in order to complete the purchase: CB 106[27].
Jing states that she commenced a loan application process in April 2018 and eventually obtained a loan for $330,000.00 from a BC Securities secured by way of mortgage over the property in or around August 2018: CB 106[27].
In or around April 2018, Jing says her relationship with Jian jian continued to deteriorate to the point where they were to divorce and enter into a divorce agreement: CB 106[28]. There is dispute in the proceedings as to when and to what extent the defendants or either of them made Ran aware of the difficulties in their marriage.
In or around late April 2018, Jing states that after obtaining a loan from BC Securities the parties had a conversation with one another with words to the following effect (CB 107[29]): "Me: This marriage is not working, big sister. I am sorry but Jianjian and I are separating. R Zhang: I am sorry to hear that. Jian jian Zhang: But we still need your help with our Australian Property's settlement. If you are still keen to lend us the AUD$250,000 without interest, we will be truly grateful. Me: I have put our small property on market for sales for ¥1.28 million RMB (approximately, $269,020.59). This is our agent's estimated price. We will be able to repay you once it's sold. R Zhang: Of course. I am still Ruihan's (our daughter) aunt; you are still my family regardless. Don't worry about the interest, just repay me when you sell the small property. Me: Thanks, big sister. I will ask my conveyancing lawyer how should you advance the money in August when the settlement date is closer. R Zhang: What's your plan, then, Jing? Me: I don't know, big sister. I think I will move to Australia with Ruihan. We can move into the Wolli Creek property. Your brother and I agreed that I will get the Australian Property. Jian jian Zhang: Jing and I are preparing a divorce agreement. We will acknowledge your Joan and put all of these arrangements into that agreement."
On or around 1 May 2018, Jing and Jian jian executed what Jing describes as the first divorce agreement: CB 107[30]; 147[10]. The first divorce agreement was not admitted in evidence following objection by Ran's counsel.
Ran states that from conversations with the defendants in early and middle 2018, she was aware that completion of their purchase of the property was due in or around August 2018: CB 44[7].
Throughout July 2018, Ran states that she and the defendants kept in contact in relation to their loan for the purchase of the property, although states that nothing was finalised and she understood that they were still exploring the options, including selling their property in China: CB 47[14].
On 18 July 2018, Ran states that after hearing from the defendants that completion of their purchase of the property was due she had a conversation with the defendants via WeChat in Mandarin in words to the following effect (CB 47[15]): "Myself: Do you still need my money? Have you found tenants yet? First Defendant: Will need to use your money. Myself: Can you calculated approximately how much the interest will be? On $250,000.00. First Defendant: Let the bank calculate it? Second Defendant: If on 4%, half a year is around $4,900 AUD. If more than 4%, then more than this amount."
The independent translation of the WeChat message (CB 94) is as follows: "Ran: 1. My money, do you still need it? 2. Have you found a tenant? Jian: @Ran need to use our money. Ran: Ask ZHANG Li to roughly calculate how much the interest will be? 250,000 Jian: @Ran How about asking the bank to calculate Jing: If the interest rate is 4%, it would be above 4900 Australian dollars for half a year. If it is more than 4 points, it would be more than this amount."
Ran states that the rate of 4% was used as the funds she planned to loan to the defendants was the amount then currently deposited in her home loan offset account with ANZ, offsetting the interest she was then playing to ANZ at the rate of 3.95%: CB 47[15].
At the beginning of August 2018 Ran states that the defendants, then in China, telephoned her and they had the alleged agreement conversation in Mandarin with words to the following effect: "Jing YANG: We are overseas buyers so the banks will only lend us $300,000. Can you lend us $250,000 to pay the shortfall? Otherwise we won't have enough money to settle. Jianjian ZHANG: I know you have some money after refinancing the loan for your property. If you lend us the money, we can repay you after a year. We can also pay you interest. I am your brother, so don't charge me too much… can we just pay your current loan interest rate? Me: OK. I'm right now paying 3.95%. But this is also my husband's money, please make sure you will repay it. Jing YANG: Don't worry, we are going to sell our property in China next year. After we sell that property, we can pay you back. If you are worried, both the China property and this property will be security. Me: OK. That sounds good. Jianjian ZHANG: Good, thank you. Do not worry." (CB 27[6])
Jing ultimately disputed that this conversation occurred.
Ran's husband Di states that in or around July or August 2018, one evening after dinner, Ran told him that her brother and his wife required a loan for the purchase of the property, but they would repay it very quickly and that he did not have any objections to this. He understood that the funds being approximately $300,000 in the ANZ offset account would be the monies to be loaned: CB 75[4]-[5]
In or around August 2018 Jing received a figure of $430,995.50 from her conveyancing lawyer, which was the outstanding balance required to be paid to complete the purchase of the property. Jing states that she provided this figure to Ran: CB 107[31].
Jing states that the parties agreed that it would be easier if the defendants first transferred their private funds to Ran who would then write a cheque to Jian jian and her conveyancing lawyer upon the settlement at the end of August: CB 108[32].
Between 7-24 August 2018, Ran states the defendants transferred four sums totalling $185,200.00 to Ran's ANZ account: 1. On 7 August 2018, the amount of $9,990.00; 2. On 14 August 2018, the amount of $57,010.00; 3. On 22 August 2018, the amount of $66,000.00; and 4. On 24 August 2018, the amount of $52,200.00: CB 29[8].
Jing states that throughout August 2018 she directed her mother to transfer $67,000 from her Chinese bank account to Ran's Australian bank account: CB 108 [33]. It can be readily seen that the first two amounts referred to by Ran, namely $9,990 and $57,010, total $67,000.
Jing states that she was told by Jian jian that he transferred about $52,200 to Ran. Jing says she personally transferred $66,000 from her Chinese bank account to Ran's Australian bank account: CB 108 [33].
On 26 August 2018 Jing received a message from Ran on WeChat enquiring as to whom she should write the cheque and states she would ask her conveyancing lawyer the next day: CB 108 [34].
A copy of the WeChat conversation (CB 131) is relevantly as follows: ".. .. R Zhang: I've got time to write a cheque tomorrow. Who should I write to? J Yang: The lawyer asked us to wait for her further notice. I'll ask her tomorrow"
On 29 August 2018 there was WeChat communication between Ran and Jing: (CB 109 [39], 131, 138) as follows. "R Zhang: You guys still don't have money to exchange currency with Chengqing brother. J Yang: I lower the selling price of the small property again. However, nobody seems to be interested in it. R Zhang: I don't know how you plan to transfer the money to Australia. The [government's] control is so stringent now. J Yang: Just like the last time".
On 30 August 2018 Ran states that Jian jian sent her a memorandum partly in the Chinese language signed by him setting out the terms of the loan. The memorandum itself was not admitted into evidence following objection by Jing.
On 31 August 2018, Ran caused a bank cheque to be issued from ANZ from the funds held in her ANZ account in favour of "FRASERS PROPERTY LTD (FP OPERATING ACCOUNT)" as directed by the defendants for the amount of $430,995.50 comprising the amount of $185,200 transferred by the defendants and $245,795.50 of Ran's funds. Ran delivered this bank cheque (CB 59) to Amy Cheng of GJ Fong & Co, solicitors acting for the defendants on the purchase: CB 29 [9]; 45 [9b]; 48 [17] 59; 96 (RZ-6).
Later on 31 August 2018 there was completion of the purchase of the property: CB 29 [11]; 45 [10].
There is in evidence a copy of extract of a BC Securities statement for the account name of Jian jian and Jing which has an issue date of 12 November 2020 but discloses the settlement date of 31 August 2018: CB 53.
There is also an evidence and extract of Ran's ANZ account for the period 29 March 2018 to 27 September 2018 showing an opening interest rate as of 30 March 2018 on borrowings of 3.90% and an interest rate on the borrowings as of 27 September 2018 changed to 4.06%: CB 81.
On 31 October 2018 Jing states that she and Jian jian reconsidered and amended the terms of their May 2018 divorce agreement and executed another divorce agreement (October divorce agreement): CB 108[36]; 147[10]. The October divorce agreement was not admitted in evidence following objection by Ran's counsel.
In December 2018 Jing visited Australia with Ruihan: CB 51[35], CB67-72 (RZ-9); 157[31].
On 27 May 2019 Ran states that Jian jian repaid to her the sum of $12,000 by giving cash to a church friend in China who then gave the cash to Ran after returning to Australia: CB 29[12]; 48[18]. There is no dispute in the proceedings that Jian jian made the payment.
Jing does not seemingly dispute that the repayment occurred. There is dispute as to whether Jing knew about the payment at the time and the significance to be attached to it as impacting upon the rights of the parties in respect of the loan.
Jing says that she did not know that Jian jian was going to pay the $12,000 amount on his and her behalf and that Jian jian had not discussed it with her nor sought her consent at any time prior to 29 May 2019 to do that and only informed her sometime after that he had made such a payment to Ran: CB 110[47]
On 20 July 2019 Ran states that Jing while on holidays to Australia transferred to her ANZ account by repayment of the loan the amount of $5,000: CB 29[13]; 48[19]. There is no dispute that such payment was made. There is dispute between the parties as to the purpose of the payment and whether it was done in part repayment of the loan.
Jing agrees that she did on 29 July 2019 make a transfer of $5,000 to an Australian bank account but states that she understood it to be the account of Ran and Jian jian's mother, being Jing's mother-in-law: CB 111[48].
Ran says that she has received no other repayments of the loan: CB 29[14].
In July 2019 Jing separated from Jian jian: CB 147[11].
On 29 August 2019, Ran states that she contacted Jian jian by telephone and asked if he and Jing would be repaying the balance of the loan as previously agreed sometime soon. Ran states that Jing was in the presence of Jian jian when she called him, and that Jing said to her in Mandarin words to the effect (CB 30[15]-[16]; 49[21]-[22]): "Sorry we do not have the money to repay you yet as we have not yet sold the China property or the Wolli Creek Property. But we will sell or refinance the loan of the Wolli Creek Property soon and then we will have the money to repay you."
Jing disputes that any such conversation took place and disputes that she was "in the presence of" Jian jian when Ran called him, asserting that she was residing with her daughter in Langfang City (Hebei Province) and asserts that Jian jian was in Zhengzhou City (Henan Province): CB 111[49].
On 31 March 2020, Jing states that Ran sent a message to her via WeChat and says that the conversation was to the following effect (CB 154 - 155[28(d)]): "The Plaintiff: Younger sister, please pay attention to your rented house in Australia (Australian property). Do not have any change about this. The tenant may not pay the rent, for it is under the special condition and the government has related policies. Please check whether they sign the contract and write to the agent to pay attention to the rent. The Plaintiff: If the tenant cannot pay the rent, the landlord cannot chase the tenant away. That's the case. Me: Ok, the deadline of our contact (the lease contract) is till July. I'll contact the agent."
Jing separately translated the WeChat message as follows (CB 185): "Ran: Younger sister, please pay attention to your rented house in Australia (Australian property). Do not have any change about this. The tenant may not pay the rent, for it is under the special condition and the government has related policies. Please check whether they sign the contract and write to the agent to pay attention to the rent. Ran: If the tenant cannot pay the rent, the landlord cannot chase the tenant away. That's the case. Jing: Yes, the deadline of our contract (the lease contract) is till July. I'll contact the agent."
On 15 June 2020, Jing states that she contacted Jessica Pung (Ms Pung) the rental agent via WeChat and the following day consulted her about the property and selling procedures for sale of the property: CB 149[19]. Copies of the WeChat between Jing and Ms Pung are in evidence: CB 179 - 180. Further correspondence between them was tendered as an exhibit by Jing.
On 9 July 2020, Jing states that Ms Pung received the email of a sales agreement: CB 149[19].
On 4 November 2020, the sale of the property was settled: CB 30 - 31[19].
On the same day, GJ Fong & Co wrote to Jing and Jian jian by email confirming settlement of the sale of the property and attaching a settlement sheet: CB 38 - 40; 62 - 64. The settlement sheet shows sale of the property for the price of $855,000.00 with a deposit of $85,500.00 having been paid, leaving an amount due as being $769,500.00. After adjustments, the proposed settlement figure was $771,729.83. An amount of $328,268.97 was directed to be paid to "Bank" which I take to be BC Securities and an amount of $438,170.29 to be paid to Jing: CB 40, 64.
The sum of $438,170.29 is shown as having been deposited to Jing's NAB bank account the same day (CB 40 - 41, 64 - 65) and various sums being transferred out of the account, including the sum of $500,000.00 on 5 November 2020: CB 41, 65. Jing admits by her defence that she transferred the sum of $500,000 from the joint bank account of herself and Jian jian to an account in her sole name: CB 5[12] and 16[12].
On or about 16 November 2020, Jing states that Jian jian sued her in China by means of a form of civil complaint: CB 156[29c] and 186.
On 17 November 2020, Ran states that Jian jian provided her with the settlement statement dated 4 November 2020 and an extract of Jing's NAB account: CB 30 - 31[19]; 50[30] and 62 - 66 (RZ - 8).
On 20 November 2020, Ran commenced these proceedings. Jing states (though Ran disputes) that up until this time Ran had not made a demand for repayment of the monies: CB 109[40].
On 28 June 2021, Jing states that she divorced Jian jian upon the conclusion of Chinese family law proceedings at first instance and that Jian jian appealed insofar as a financial settlement was concerned to superior court which heard the appeal on 12 November 2021: CB 147[7].

[24]

Principles in relation to credit and disputed facts

There are disputes as between Ran and Jing regarding whether conversations occurred and the content of conversations. A summary of the principles in relation to credit and making findings where facts are disputed was very helpfully collected and summarised by Kunc J in Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964 at [464]-[473]. I respectfully agree with and adopt his Honour's summary as follows: "464 First, at the forefront of the Court's approach has been the oft cited statement of McClelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 318-319: Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction (1995) 49 NSWLR 315 at 319 rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, 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. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712. 465 Second, the concept of actual persuasion was elucidated by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56: 48. Under s 140(2) of the Evidence Act 1995 (Cth) (the Evidence Act), the Court must, in deciding whether it is satisfied that a case has been proved to the requisite standard, take into account: ● the nature of the cause of action or defence; ● the nature of the subject matter of the proceeding; and ● the gravity of the matters alleged. When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2). 466 Third, there is the statutory successor of the rule in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in s 140 of the EA: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 467 Fourth, evidence is to be preferred which is inherently probable in the circumstances or is given by a witness against their interest. 468 Fifth, evidence of independent witnesses, i.e. persons who have no reason to be partisan, may be decisive in resolving the conflicting evidence of interested parties. 469 Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness' evidence in its entirety. This approach was expressed by O'Loughlin J in Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1: 118 Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions. … 121 A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected. 470 Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings: 155 There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. 156 Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]. 471 Eighth, disbelieving a witness that "X" was the case does not mean that "not X" has been proven. The Court respectfully adopts what fell from Gibbs J (as his Honour then was) in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694 (citations omitted): The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd [1911] HCA 34, (1911) 13 CLR 230, at p 241 ; Hobbs v. Tinling (C.T.) & Co. Ltd. (1929) 2 KB 1, at p 21 . It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail [1905] HCA 25, (1906) 2 CLR 684, at p 698 ; Malzy v. Eichholz (1916) 2 KB 308, at p 321 ; Ex parte Bear; Re Jones [1945] NSWStRp 50, (1945) 46 SR (NSW) 126, at p 128 ), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King [1924] HCA 9, (1924) 34 CLR 153, at p 158; Tripodi v. The Queen [1961] CHA 22, (1961) 104 CLR 1. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell (1961) WAR 103, at p 109. 472 Ninth, for reasons set out in Saravinovski (No 5) at [76] and following, the Court gave leave for certain of Chris' affidavits to be relied upon, notwithstanding that his loss of mental capacity meant that he could not be cross-examined. The way such evidence should be treated was considered by Hallen J in Fulton v Fulton [2014] NSWSC 619: 111. However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35, [1972] VR 327, per Anderson J, at 333 - 334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 86, per Hamilton J, at [5]. 473 Tenth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced. This case has many similarities to the family dispute considered by Robb J in Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044. Of the evidence in that case, his Honour said: 187. The principal evidence relating to these issues consisted of the uncorroborated evidence of the witnesses, or alternatively the only corroboration available was the testimony of other witnesses. The evidence distilled into the word of one witness against the word of one or more other witnesses. Most of the events relevant to the issues occurred many years ago. The evidence relevant to the issues generally consisted of a series of assertions, and counter-assertions by various witnesses. Evidence of the objective context was generally not available, so it has not been feasible to test the versions of events that were in contest by reference to the objective probabilities, based upon uncontroversial contemporary circumstances. Though the issues are not entirely irrelevant, their significance is limited, and their resolution has not been necessary for the purpose of determining the real issues in the case. Any attempt to resolve the issues by making judgments about the relative credibility of the individual witnesses on an issue-by-issue basis was likely to be based on illusory foundations."

[25]

Ran's cross-examination

Jing sought to cross-examine Ran on various topics including suggesting or putting to Ran that: 1. Ran had either not asked the defendants to repay the money or delayed in doing so beyond the period of the alleged term of the loan prior to commencing the proceedings: T48, 50, 52; 2. Jing was not with Jian jian at the time that Ran called him on 29 August 2019: T49-50: 3. the defendants had not promised Ran that they would sell the property in order to repay Ran, and asserting that Ran was more concerned about the defendants being able to rent the property than the sale of it: T56; 4. the difference between the amount of money proposed to be borrowed and the amount of money actually lent was significant (and cast doubt on Ran's credibility): T56-58; 5. there was doubt about what if any interest was to be charged: T59.
To attempt to achieve the above concessions or admissions achieve Jing sought by questions in cross-examination to: 1. ascertain when Ran had requested the defendants to repay the funds: T48-51; 2. ascertain when the defendants told her that they were going to sell the property in Australia to repay her: T51, 56; 3. discover why Ran had waited for beyond the period of a year to commence proceedings: T52; 4. suggest that Ran had not discussed with Jing sale of the property (prior to the commencement of the proceedings) or was not concerned about sale of the property, but rather Ran only reminded her to pay attention to the rent for the property: T56, 60-61; 5. suggest there was some doubt as to Ran's veracity as a witness because of the difference between the amount of money proposed to be borrowed and the amount of money actually lent: T56-58; 6. assert that Ran lent the money to both defendants principally because of her relationship with Jian jian being Ran's brother, and that she would not have lent the money if Jing was not married to Jian jian: T58-59; 7. assert that Ran's evidence regarding the interest rate was variable, seemingly with the intent of showing that no interest or no specific rate was agreed: T59; and 8. suggest that in the WeChat correspondence Ran never asked the defendants to sell the property and repay her: T60-62.
Ran's evidence on these contested matters was as follows: 1. Ran became aware of the precise amount required for the loan closer to the time of settlement and then took a photo of the cheque which she sent to both of them immediately after the settlement day: T57; 2. Ran lent the money to both defendants and, as I understood it, would not have lent the money only to Jing if the defendants were not married: T58-59; 3. the amount of interest Ran nominated for the purposes of the loan was dependent upon the ANZ interest rate, and that the rate of interest that she told the defendants was 3.95% (per annum): T59; 4. the defendants kept promising Ran to repay the money as soon as possible: T48-49; 5. Ran waited until she commenced the proceedings when she did because the defendants kept promising to repay the money as soon as possible (T50, 53) and because she needed them to repay the money: T50; 6. The defendants had told Ran that they were selling the property but she had not received any money and that she could not afford to keep paying high interest: T51; 7. that when the loan was due (in about September 2019) Ran asked them (to repay) and her brother promised that they were going to sell the property and repay her money: T52; 8. when she called her brother on 29 August 2019, Jing was present and she heard her voice and the discussion was about repayment of Ran's money (T49) and Ran understood that her brother was at his home on that occasion albeit that she did not know the address of her brother in China: T50; 9. after the loan year, the defendants kept in contact with Ran and she with them and they said they would pay her as soon as possible and that they were selling the Chinese property as well: T53. 10. the defendants or Jing had told her that they were already chatting with the estate agency to sell the property and that in relation to the concern regarding rental that she wanted to help the defendants not lose money (T56, 60), because during Covid the tenant had moved out of the property: T61. 11. the defendants had already in April 2020 informed Ran that they had put the property on the market, and that the defendants (or Jing) told her that once the property was sold they would pay her money as soon as possible: T61-62; 12. in response to the suggestion that Ran cared more about selling the property rather than renting the property, Ran just cared about the defendants repaying "my money": T61.

[26]

Jing's cross-examination

Jing contended that the contact between her and Ran was mostly on WeChat and that she never called (independently of WeChat communication) Ran and that Ran never called her (T67), nor did she ever facilitate the audio call function on WeChat with Ran to communicate with Ran: T68.
Jing was cross-examined in relation to the borrowing from BC Securities: T71-74. There was some debate about how much had been actually borrowed ($AUS 330,000 or $AUS 336,000). The essential relevance of the questioning related to the contention being put that there was a limit on what Jing could independently borrow from a third-party financer to complete the purchase of the property (T74).
Jing indicated that there were a number of proposals for properties to purchase in Australia one being a house in Rhodes and the other being the property, which was an apartment. They compared rental appraisals and found that the rent for the apartment was actually higher than house and accordingly decided to buy the property thinking that the rent for the apartment would be able to cover the repayment for the loan amount: T74.
Jing suggested that initially the defendants did not plan to borrow to complete the purchase of the property, at least not prior to 2016. However, once Jian jian lost money in the stock market and the loan agent indicated that loans may no longer be available to overseas buyers, they started to save money (for the purchase): T 75.
Jing accepted that at least by the beginning of 2018 she understood that she needed to come up with the money to complete the purchase of the property (T75). Jing initially claimed that it would be Jian jian who would have to borrow the money (T75), but accepted that one of Jian jian or herself would need to borrow the money to be able to settle the purchase: T76.
In terms of timing as to when there were particular discussions regarding borrowing from Ran, Jing denied that it was only in about April 2018 that she started to look with Jian jian for a loan to be able to complete purchase of the property and indicated that that she had a conversation with Ran at the start of 2018 or an early point of time in 2018 when Ran had gone to China and was staying at the home of Jing and Jian jian: T76.
Mr Reynolds put to Jing that the evidence was inconsistent with her affidavit that she and Jian jian started looking for a home loan to finance the balance of the purchase price from April 2018 onwards (CB 106[25]): T76-77. There appeared to be some confusion in Jing's mind as to what the question related to (T76-77) and for my part I did not, and do not, regard her answers at this point as conceding her affidavit evidence (at least in that respect) was incorrect.
However, ultimately her evidence was to the effect that she had discussions with Ran at the beginning of 2018 and in April 2018 formally obtained a loan from BC Securities: T79. That is contrary to Ex D2 showing the BC Securities loan offer as being in July 2018
There was some questioning of Jing as to whether her foreign residency status could limit the amount that she was able to borrow from BC Securities: T80-81 In the process of the cross-examination she disagreed on the basis that she did apply to BC securities and did obtain a loan which was unrestricted: T81.
She intimated that she had doubts about the accuracy of information provided to her as to whether she was in fact restricted from being able to borrow money from a bank in Australia. Her asserted basis for doubting the information being that the finance broker providing it was associated with Ran (Mr Li Zhang was Di's niece's colleague's husband) and introduced to her by Ran: T81-82.
Jing accepted in cross-examination that Mr Zhang informed her that a private lender was likely to approve a loan of around $300,000 to the defendants (T82).
Jing indicated that BC Securities charged interest at different rates in different periods. At the beginning of a honeymoon period the amount was about 5.999%: T93 (cf 5.95%: Ex D2). Jing understood that if she borrowed money from any commercial lender to buy the property they would charge interest on the loan and require regular repayments towards the loan: T93.
Jing accepted that no later than February 2018 she had decided to sell the Chinese property and on 11 March 2018 entered into an agreement with an agent to sell the Chinese property at a price of 1.59 million RMB: T94-95 (CB 124).
Jing was cross-examined on the discussion she said she had with Ran and Jian jian in February 2018 (CB 105[22]). It was put to her in various ways that she had not said what she had claimed to have said to Ran: T95-97.
Specifically, it was put that she had not referred to the alleged loss by Jian jian of monies in the stock market. Jing disagreed and indicated that it was at this time (early 2018) that she mentioned to Ran that the defendants did not have enough money to purchase the property in Australia: T96.8-.12; 97.14-.17.
In responding to Mr Reynolds' questions regarding this, Jing intimated that she did mention to Ran that Jian jian had lost money on the stock market, claiming that that was why Ran "gave us the money or she wouldn't give us the money": T96.42-97.4.
Mr Reynolds put that Jing had not mentioned to Ran she needed to divorce Jian jian: T97-98. She denied that.
Mr Reynolds put that in no conversation did Ran say to Jing that she would not charge interest on a loan to Jing and Jian jian. She disagreed: T99.
On the disputed premise that Jing had a conversation with Ran to the effect as alleged by Jing (CB 105[22]) Mr Reynolds put to Jing that at no point had she accepted any (alleged) offer by Ran (either in relation to interest or the loan itself): T99.
I noted that there was arguably a point of construction regarding the concluding part of the conversation at CB 105[22] and that the words "Thanks, big sister. If we can sell the small property in time should be fine, but we will keep your kind gesture in mind. We appreciate your offer" could on one view constitute an acceptance.
Essentially, Jing contended that the passage above did constitute an acceptance: T100.
I noted that language being a fluid thing, words that are exchanged between people can convey a meaning that is not necessarily tied to the use of particular words in order to convey the meaning. Different words can be used in a context to convey the same meaning: T 101.
Mr Reynolds cross-examined Jing regarding the conversation she said had taken place in April 2018 (CB 107[29]): T102.
Jing appeared to accept that the conversation was "Maybe" over the telephone: T102-103. She denied the suggestion that she told Ran at this point that she was separating from Jian jian: T103.
Mr Reynolds put to Jing that the conversation by Jian jian "But we still need your help with our Australian Property's settlement. If you are still keen to lend us the AUD$250,000 without interest, we will be truly grateful" and Jing's alleged statement "I have put our small property on market for sales for ¥1.28 million RMB (approximately, $269,020.59). This is our agent's estimated price. We will be able to repay you once it's sold" was not true. She disagreed: T103.
Jing accepted that she currently lives in the Chinese property and had been trying to sell it since even before March 2018: T106.
Ultimately, Jing denied that the suggestions that: (a) at no stage did Ran suggest to her that the only circumstance in which the loan had to be repaid was upon her selling the Chinese property; (b) any reference (in communications) to the sale of the Chinese property for repayment of the loan was simply one of a number of possible ways in which one could be repaid, and (c) that at no point did Ran indicate that Jing did not have to worry about interest or suggest that interest was not payable: T107-109.
Mr Reynolds sought to challenge any likelihood of the terms of the loan being as Jing suggested by putting to Jing that if she chose to simply live in the Chinese property forever the loan would never have to be repaid. Jing's responses were unclear in respect of this, with her seemingly referring back to what she claimed was agreed in the divorce agreement: T107-108. However, the contents of the divorce agreements were excluded from evidence.
Jing disagreed with the proposition put that any statement as to selling the Chinese property to repay the loan was a statement of intention by her as to how she intended repay the loan rather than a statement of the only circumstance in which the loan had to be repaid: T109.
Jing appeared to distinguish between lending from BC Securities and lending from Ran in the sense that borrowing from a family source might not give rise to an obligation to pay interest as distinct from borrowing from a commercial source: T110.6-.15.
Jing seemingly accepted that there had been discussion between the parties regarding payment of interest but claimed that they never reached agreement regarding interest: T110.21-.32.
Mr Reynolds sought to challenge the likelihood of the April 2018 conversation occurring as alleged by Jing on the basis that if Jing had told Ran that she was separating from her brother and that she was getting the Australian property Ran would not have offered Jing the loan, especially on the basis that no interest would be payable: T111-112. Jing nonetheless held to her version claiming essentially that the money was lent because of Ran's relationship with Jian jian and because of Jian jian's "mistakes": T112 (which I understood to be a reference to Jing's earlier comments regarding Jian jian losing money on the stock market).
Mr Reynolds then confronted Jing with the text of the WeChat conversation on 20 April 2018 with reference to payment of interest and payment of the amount in a time period specifically the words "Will try to pay the full balance of the principal and the interest in 6 or 12 months": CB 90-91.
Jing attempted to distance herself from the content of the message claiming that the document was faked: T113.21-.23. Jing then appeared to indicate that even if the message was real it was only a matter of discussion not agreement: T113.30-.32. A bit later she indicated that she could not recall sending messages to Ran on 20 April 2018: T113.46-.49.
Jing was cross-examined in relation to the WeChat conversation between herself Ran and Jian jian on 18 July 2018: CB 93-94. She accepted that the group chat communication took place and that she had done an interest calculation: T 114.
It was put to her that the reason she done the calculation was that she understood that it been agreed that she would be paying interest on the amount borrowed from Ran. She denied that: T114. She also denied that she knew that the interest rate would be similar to the amount of interest that Ran would have to pay the bank for withdrawing the money from her account: T114.
Jing attempted to proffer an answer about interest rates in Australia dropping down. The questioning was not persisted with: T114.
It was put to Jing that at the beginning of August 2018 she and Jian jian had a telephone conversation with Ran. She denied that: T114. However, it transpired that she was confused about the dates and thought the question related to 2019: T115.
When her attention was directed to Ran's evidence regarding the August 2018 conversation (CB 27[6]) she accepted that a conversation had occurred. However, she denied Ran's version of the conversation in its relevant respects including that she had asked Ran to lend $250,000 to make up the shortfall in the purchase, and denied there was discussion about interest and the Chinese property and the property being a security (for the loan): T115-116.
Jing was cross-examined regarding the alleged repayment amount. She claimed that she did not know that an amount of $12,000 had been paid by Jian jian on 27 May 2019 at that time and had only heard about it later from Jian jian: T116. She refused to commit to whether she accepted that the payment of the $12,000 amount could have been a payment of the loan stating (T117) "I think it doesn't matter" and "I don't think it's very important" and: "I think it's not important, it doesn't matter, because it is a thing that happened between the first and second defendant's - sorry, the first defendant and the plaintiff. So, whether it was a gift to the plaintiff or it was a repayment, it doesn't matter"
Jing's response in this regard is in one sense consistent with her version of events. In terms of the outcome of the matter, Ran has accepted the amount as being a repayment by Jian jian.
Jing was asked about the payment of $5,000 that she had in fact made on 20 July 2019 to Ran's mother.
Jing's response was (T117): "It's only the first defendant and the plaintiff asked me to transfer that amount of money to their mother, and I only did the transaction. And also, at the time, my NAB account was connected with the plaintiff's telephone number and to make that transaction, I needed the verification code on the plaintiff's telephone and there was evidence to support that."
When pressed in relation to the matter the following exchange occurred "Q. Ms Yang, what did you make the payment for? A. INTERPRETER: It's just the first defendant asked me to make the transaction and I just followed the instruction, because in their families there were usually thing happening, like, I give you something and you give me something. In our marriage it has been respecting that. Q. I thought by July 2019, you said you'd separated from the first defendant, but you say now, do you, that you just make repayments that he asks you to make to his mother, without trying to find out what it's for? A. INTERPRETER: Because I went to Australia at the time, and he asked me to do the transaction and I did."
Finally, Jing was questioned about the conversation which Ran states had occurred on 29 August 2019 between herself and Jing and Jian jian: T117-118.
Jing claimed it was "impossible" to have occurred that she had evidence to prove that during these days she and Jian jian were not staying together with her being in the Hebei Province and Jian jian being in the Henan Province. In this regard she pointed to a WeChat message dated 30 August 2019 on CB 181: T114, 118.
When the difference between the dates of 30 August 2019 and 29 August 2019 were put to Jing she did not accept that it was possible for herself and Jian jian to have been together on 29 August 2019: T119. She claimed she had evidence that they were not staying together on 29 August 2019 but had not submitted the evidence previously seemingly because the cost of translation: T119.
Jing stated following the conclusion of her cross-examination, in response to a question by me that her affidavit evidence - that in or around August 2018 the defendants and Ran had decided that it would be easier if the defendants transferred their private funds to her and then Ran would write a cheque (CB 108[32]) - was in fact the communication that she said took place by WeChat on 25-26 August 2018 (CB 131): T122-123.

[27]

Ran

Ran is able to speak English. Mr Reynolds noted that given the formal nature of the proceedings there may possibly be points at which she might struggle and had arranged for an interpreter to be a backup for her. I indicated that it would be preferable that initially, if she was able to give evidence in English she should do so, and if there were difficulties then that could be addressed as and when the difficulties arose: T43.
Mr Reynolds submitted that Ran answered questions that were put to her directly, her answers were consistent with both her other evidence and contemporaneous records and her account was plausible. He further submitted that Ran simply gave evidence as to her recollection as to what occurred, whether it helped her or hindered her: T166.
Ran gave her evidence in a considered and straightforward way and other than as I note below, I accept Mr Reynold's submission regarding Ran's evidence. I accept Ran as a witness of truth. I have, as I note below, some doubt as to whether Ran spoke with Jing precisely on 29 August 2019 regarding repayment. That doubt goes not to her general credibility or veracity as a witness but simply goes to the reliability of the dating of a conversation regarding repayment.
On occasion Jing made comments to the effect that Ran: 1. was dishonest (for example in opening remarks regarding the amount of the loan (T6-7) and objections to evidence regarding the claimed interest rate (T19)); 2. was lying in responding to questions: T49; 3. had been taught by her solicitor regarding responding to questions: T53; 4. had deceived her in relation to the difference of about $5,000 in relation to the amount proposed to be lent and the amount actually lent (T73) and that this bore upon Ran's credibility: T185, 191; 5. had told her that she would be unable to obtain a loan from Bank and that she was not sure whether that was true or not and did not know because she had been deceived many times: T82; 6. had submitted "many fake documents": T122, 124.
I reject those allegations. There is no evidence to support them.
Jing states that she only realised when reading Ran's affidavit (dated 20 November 2020) that instead of $250,000 Ran had only advanced to the defendants about $245,795.50: CB 108[35].
I reject the claim that Jing was misled by the difference between a proposed borrowing of an amount of $250,000 and the amount actually lent of $245,795.50, particularly having regard to Jing's evidence that she had in or around August 2018 received the specific figure of $430,995.50 from her conveyancing lawyer and that she knew that there had been transferred to Ran the sum of $185,200, leaving a balance of $245,795.50 to make up the difference to total $430,995.50.
Jing submitted that Ran's handwritten amendment to the interest rate in paragraph 6 of Ran's 9 June 2022 affidavit, changing the interest rate from 3.95% to 3.90% (CB 78[6])) means that "she wasn't clear about the exact interest rate, which also indicates that she is not incredible [sic]": T186. I reject that submission. The focus of that paragraph was to identify the prevailing rate charged by the ANZ, not to identify what had been agreed in the alleged agreement conversation.
Jing claimed she had doubts about whether she was told correctly about foreign borrowing limits: T81-82. I reject the assertion that Jing was misled by Mr Li Zhang or Ran as to limitations on borrowing.

[28]

Jing

Jing's cross-examination was generally difficult in terms of it being earmarked by some translation issues, some halting communication, some communication that was at cross purposes, some frustration on the part of Jing to expedite the process, and some frustration on her part regarding what she regarded as being relevant or not.
Mr Reynolds submitted that Jing's recollection seemed to be very good when it came to matters that helped her case, citing that she had a very good grasp as to exactly how the interest rate for her BC Securities loan worked: T167. Jing disputed this example: T184.
Mr Reynolds submitted (T166-168) that I should find that Jing was not a credible witness because: 1. she was concerned to discern why the questions were being asked in cross‑examination before answering them and, in fact, objected to answering to questions when she could not work it out; 2. she gave many long, mostly non‑responsive answers to some very simple questions; 3. her account was not corroborated by contemporaneous documents and was inconsistent in many instances; 4. she made frequent unfounded allegations of forgery and misconduct on the part of people, that ultimately were unproven; 5. her account as to what the relevant conversations were, is objectively unlikely and overly convenient to her position; and 6. she made many claims that she failed to make good on, citing "The whole saga in terms of exhibit D3 and P2".
I wondered whether Jing's hesitation in responding at times was simply due to her being self-represented and as a result of connection and interpretation issues.
Jing claimed there were cultural issues which to some extent explained her repetitive responses during the hearing: T185. I can readily say I did not regard Jing's language or cultural issues as weighing against her credit.
Mr Reynolds submitted that Jing's way of answering questions went well beyond, what could be explained with reference to her being self‑represented or audio visual link style or interpreter style difficulties: T167.
It was difficult to detect in the process whether some occasions where Jing's answers were non-responsive to the question were as a result of her attempting to avoid being confronted with important issues and having to telling the truth as distinct from unfamiliarity and frustration with the cross-examination process.
Generally speaking in relation to undisputed events, I had no particular reason to doubt the veracity of Jing's responses.
However there were a number of matters particularly regarding discussions in early 2018, late April and August 2018 where I did not regard Jing's responses as being a reliable or credible account of the events.
I hesitate to find that Jing was being consciously untruthful, and do not make that general finding. However, a constant theme in her evidence was her assertions of misconduct by Jian jian and it seemed that Jing regarded that she had been hard done by and was innocent in the arrangements between the parties. Jing in this regard submitted that (T191): "Back then, we had to borrow money because the first defendant lost money in the stock market. So, we had difficulty purchasing the property in Wolli Creek. And looking at the reasons, I am innocent, and it was because of the first defendant."
I had the impression that Jing was or felt stressed by what she claimed to financial woes and as a result of that had convinced herself of the righteousness of her claims (T191, 192) and accordingly convinced herself of what she claimed had occurred. Some her claims in this regard were against the objective evidence and I reject as set out below.
One example, which Mr Reynolds says bears upon Jing's credibility (T182) which I refer to below relates to the issue regarding payment of interest. It is clear beyond doubt that the contemporaneous WeChat Communications raised that topic. Yet Jing steadfastly denied that the borrowings involved any interest payment.
I deal below with the issue regarding Ex D3 and P2.

[29]

Findings regarding the disputed communications

Mr Reynolds submitted that conversations between the parties prior to early August 2018, whilst providing context for the alleged agreement conversation which Ran says took place in early August 2018, did not provide the terms for the arrangement: T163.
Mr Reynolds submitted that the WeChat communications, as contemporaneous records, bore no contractual significance but were relevant to the Court's assessment of the objective likelihood of Ran's version of the alleged agreement conversation in early August 2018: T164.
Jing's evidence was to the effect that her only communication with Ran was on WeChat and that she only facilitated the function of WeChat by using text and voice messages: T 69.
As I understood Jing's evidence, she indicated that she did not speak with Ran by means of audio call over WeChat or by other telephone or audio communication means (at least in relation to any discussion they had touching or bearing upon the issues the subject of these proceedings): T 68-70. In particular, Jing's evidence was as follows: "A. INTERPRETER: No, never. This is because WeChat calls is free. So we never called her, neither did she call us. Q. Madam, can I ask you this. You said you didn't speak over the telephone because WeChat is free. Are you suggesting that you had conversations by voice over the WeChat facility? A. WITNESS: No. A. INTERPRETER: No. We all - no. A. WITNESS: Never. A. INTERPRETER: No. Because the records on WeChat are available, and I can show that to the judge, that we made any call on WeChat. Because it is quite awkward, and I've - I don't have much to talk to her about. Most of the time, I would type a message or send a voice message, but we never use audio call. … Q. Ms Yang, do you mean to indicate that the only conversations you had with the plaintiffs were conversations either by text message on WeChat or audio message on WeChat but not by audio call? A. WITNESS: Yes - yes." (T 68.13-.26; 70.18-.21)
Time and again Jing referred to the WeChat communications between the parties suggesting that if terms of the agreement existed they would be recorded in the WeChat history between the three parties: T7:13-.15; T60.41-.42; T68.22-69.4.
Jing asserted that the only function of WeChat which Jing facilitated as between herself and Ran, was using text and voice messages and not by audio call and that all the contents of the communication (i.e. text and voice messages) can be found on the record in WeChat: T69.47-70.2; 70.10-.21. She accordingly denied that there had been discussions with Ran by audio call either via WeChat or otherwise: T70.25-.30; T70.45-.48; 71.4-.7.
In this regard Jing essentially was contending that the WeChat communications were a form of conclusive evidentiary determination of the terms of the arrangements between the parties and their dealings with each other: T69.14-.17.
The implication being that if there was no mention in the WeChat communications of a term of the alleged loan agreement or an event said to have occurred between the parties that the term did not exist or the event did not occur: T7:13-.15; T8.1-.5, T69.14-.17.
Jing made submissions as to Jian jian's conduct in commencing court proceedings against her (T184) and sought to persuade me that case "by the look of it it's between the plaintiff and me but in essence it's the first defendant and me": T185. Whilst I can accept that Jing is grieved by what she claims to be Jian jian's conduct (about which I make no express finding), I do not find the submissions of assistance in determining the issues on Ran's claim and Jing's defences to it.

[30]

Discussions in January-February 2018

In relation to the dispute regarding whether there were discussions regarding the loan in January or February 2018, there is no doubt that Ran stayed at the defendants' house at about this time.
Ran makes no mention of the visit or any conversation in her initial affidavit.
Jing on the other hand in her 14 September 2021 affidavit (CB 105[22]) outlines a detailed conversation in which reference was made to the settlement of property coming up "soon this year" and an alleged statement by Ran that she did not know how much would be needed for the settlement but could probably offer no more than $AUD 250,000 and not charge interest.
Ran in her 29 September 2021 affidavit does not expressly respond to this part of Jing's affidavit but does incidentally say in a part of the affidavit dealing with the "Defendants Relationship" their itinerary (during the early 2018 trip) was very full and nothing was discussed in relation to the property: CB 51[34].
Mr Reynolds submitted that Jing's version of the conversation was implausible because her relationship with Ran was not close, and it was unlikely that Ran would have offered to lend money without interest as a Chinese New Year blessing if she was being told that Jing needed to divorce Jian jian: T175. Jing countered the submission with the fact that she had lived with Ran's family for 3 months: T192. However, Jing had accepted in cross-examination that she was not close to Ran: T70, 110.
There is no need to make a determination specifically as to whether there was an acceptance regarding the loan or interest on the loan arising out of this conversation as it is Ran's case that the discussion that gave rise to an enforceable obligation in respect of loan occurred in August 2018, and Jing in her submissions stated that the parties did not reach any agreement at that (early 2018) stage: Jing's written submissions [12].
However, because Mr Reynolds relies upon the pre-30 August 2018 conversation history and providing context for the terms of the loan and as bearing upon Jing's credibility I find as follows.
I doubt, as Ran states, that there was no mention at all of the property. I am inclined to think that there was likely to have been some mention of the fact that the settlement of the purchase of the property was to occur later that year.
However, I do not accept that there was any detailed discussion of how much was to be borrowed at the point of time nor do I accept (as asserted by Jing) that there was a suggestion by Ran that any borrowings would be on the basis that no interest would be charged, particularly in light of what Mr Reynolds has submitted above as to the implausibility of the alleged content of the discussion, coupled with I find below regarding the communications between the parties in March-July 2018.

[32]

Communication 4 April 2018

During her cross-examination, Mr Reynolds asked Jing to look at three PDF documents which had been emailed to Jing during the earlier lunch adjournment: T120-121. The documents related to a WeChat message between Jing and herself on 4 April 2018, the terms of which are as set out earlier in this judgment.
Jing came very close to accepting it as being a message that did occur "It looks like so" (T120) and at one point accepted that she had sent it saying "I can't find the record, this record, in my phone but it looks very like, so yes" [I sent it]. But ultimately Jing retreated to being noncommittal as to whether she had messaged on this occasion, asserting that it was not recorded on her phone: T120, 121, 186.
Jing in submissions whilst stating again she did not have the messaging on her phone argued that assuming even if "it's true", (i.e. was sent), the content of the messaging created no agreement between Ran and her: T186-187.
The screenshot bears the hallmarks of other WeChat messages with Jing in terms of the picture icon accompanying the message text.
Despite Jing's noncommittal stance in respect of whether the messaging had taken place, I accept that on 4 April 2018 there was texting as between Ran and Jing.
The relevance of the text in a general sense is that it provides further background to what Ran says was the early August 2018 alleged agreement conversation.
Mr Reynolds submitted that Jing was conveying to Ran that both properties would effectively be a form of security for the loan from Ran: T178.
I do not accept that submission. It seems to me that it is reading too much into it as a proffering of the property as security for repayment.
Jing submitted that the wording "repay everyone" was not a promise to repay Ran or Ran specifically: T187. I accept it was not a contractual promise to repay Ran.
However, the text in particular appears to raise concern even at this early stage, prior to the alleged agreement conversation, that Jian jian held concerns that any monies borrowed might not be able to be repaid and Jing was seemingly seeking to provide some comfort to Ran that if they (Jian jian and Jing or at least Jian jian) worked hard and Jian jian did not waste money they would be able to repay the loan to Ran and that the property or the Chinese property could be sold to repay the money. It was emphasised that "there are many ways of repayment".

[34]

Conversation late April 2018

Jing (as indicated above) refers to a conversation with Ran in late April 2018: CB 107[29]. I understood that Jing asserted that this was a separate conversation other than the WeChat message on 20 April 2018. However, if that is the case then it is contrary to the evidence that there were no communications outside WeChat text or voice messages.
Ran does not in her 29 September 2021 affidavit, expressly address the conversation which Jing says took place at CB 107[29]. Nonetheless, as I have indicated, some additional affidavit evidence was read by Mr Reynolds, to the effect that Ran denied that she had had any conversations regarding the defendants' marital issues and disputing in particular that she offered to provide the loan without interest or to accept repayment of the loan only when and if the Chinese property was sold.
Because there was no direct response to this part of Jing's evidence (T181), I sought to clarify with Mr Reynolds in submissions whether there was dispute that any such conversation as asserted by Jing at CB 107[29] had occurred.
Mr Reynolds accepted there were conversations at or around the time (late April) concerning a loan but submitted that Jing's asserted content of it was disputed by Ran: T180-181.
He submitted that Jing's claimed content is objectively implausible having regard to the surrounding circumstances and also highly implausible having regard to the provable objective communications at that time, particularly the 4 April 2018 WeChat message: T179.
I accept that a conversation did take place in late April 2018 as between Jing and Ran. The issue, as noted, is as to the content of the conversation.
Mr Reynolds does not dispute Ran's brother indicated they needed a loan, but does dispute that (a) Jing told Ran she was separating from Jian jian, (b) Jing told Ran that Jing would get the Australian property, (c) there was any reference to divorce agreement and (d) Ran offered a loan without interest: T180-181.
Mr Reynolds did not dispute the sale of the Chinese property was one of several ways discussed as to how the loan would be repaid but Ran disputes that that was an exclusive means that had been agreed between the parties, as to the repayment: T180.
Findings in relation to the conversation in late April 2018 are in one sense not critical having regard to the fact that the alleged agreement conversation is said to have taken place in August 2018.
However, elements of the conversation did form a part in the plank of Mr Reynold's submissions regarding Jing's credibility and for that reason it is necessary to address it.
In cross-examining Jing regarding the conversation Mr Reynolds seemingly sought to challenge the likelihood of the content of the conversation as alleged by Jing occurring by reference to the fact that: 1. Jing had listed the Chinese property on the market on 11 March 2018 for 1.59 million RMB (T103); 2. documents Jing had provided regarding listing amounts at CB 140-142 refer to neither the specific house number nor that listing price (T103-105); and 3. Jing listed the Chinese property on 3 July 2021 for 1.05 million RMB: 106-107.
Clearly the document at CB 142 does not contain a record of Jing's house number. However, the translation of the communication with the agent appears to be the communication by Jing to the agent noting that her house number was not shown on the form and requesting that "the sale date of my house be recovered to the previous sale date". The documentation does not demonstrate that there had been no listing at 1.59 million RMB. Indeed, Mr Reynolds himself ultimately indicated that there was very little that could be gleaned from the document in relation to Jing's property: T105.
Jing indicated that she was "not that sensitive to figures" (T106.47-.48) and "not very sensitive to figures": T107.13. In context, I understood her evidence to be that she could not recall figures precisely: T106.47-.48.
If the suggestion be that the lack of documentary proof regarding various listing prices in relation to the property in some way collaterally proves or casts doubt on the likelihood of the April 2018 conversation occurring in the manner as alleged by Jing, I am not persuaded that the mere fact of lack of documentary proof supports any such submission.
Mr Reynolds points to the fact that Jing states that the (late April) conversation took place "after obtaining the loan from BC Invest" (CB 107[29]) which he says occurred in July 2018: T179. However, Jing had also in affidavit evidence referred to lending occurring in or around August 2018: CB 106[27]. It seems to me that misstatement as to the lending date does not necessarily cast doubt upon the content of the conversation.
However, separately to those matters, I regard Jing's evidence in relation to the content of the conversation said to have taken place in late April 2018 (CB 107[22]) as unlikely having regard to the following matters.
First, it is evident from the 26 March 2018 and 20 April 2018 WeChat communications that the expectation of the parties was that the defendants would attempt to sell the Chinese Property in order to fund the purchase, but if they needed to borrow funds from Ran that they would do so with the expectation of repaying the principal and interest to be charged within a year.
I doubt there was contemplation at that stage that the repayment of the borrowings was only to be sourced from the sale proceeds of the Chinese Property.
It seems at that stage that the defendants were still working out whether they could fund the purchase by sale of the Chinese Property.
Secondly, it is unlikely that that Jing would have at that stage expressly discussed a loan without interest, and that Ran would at least at that stage have agreed to not worry about payment of interest, or to confine the source of repayment to funding from the proceeds of sale of the Chinese Property.
That is particularly so in circumstances in which the late April 2018 conversation must have taken place no later than two weeks or less from the date of the 20 April 2018 WeChat conversation (CB 91), which expressly referred to interest being paid and timing for payment of both interest and principal being in 6 or 12 months.
Thirdly, the supposed content of the conversation does not sit easily with the content of the subsequent communication, which is documented in the WeChat text on 18 July 2018, which does expressly discuss the question of interest.
Fourthly, Jing points to the fact that Ran had said she was willing to lend the money without interest and upon terms for repayment upon sale of the Chinese property. However, as submitted by Mr Reynolds, it seems to me highly unlikely that the conversation would have been as Jing asserted having regard to the fact that: 1. Jing was (allegedly) informing Ran that she was separating from Jian jian and that the defendants had agreed that Jing would receive the defendants' interest in the property (thus any benefit of lending would be entirely or at least substantially for Jing's benefit rather than for the benefit of Jian jian); 2. Jing was admittedly not close to Ran; 3. the alleged "no interest offer" is contrary to the other communications before and after the conversation; and 4. Ran had earlier expressed reluctance to make funds available at all unless the defendants were unable to otherwise borrow.

[36]

Alleged agreement conversation early August 2018

Ran in her 20 November 2020 affidavit sets out the alleged agreement conversation with Jing at the beginning of August 2018: CB 27[6].
Ran does not in her 29 September 2021 affidavit provide any further version of the alleged agreement conversation rather, she simply states that on 30 August 2018 that Jian jian sent a memorandum (CB 48[16]) - the content of which was not admitted into evidence.
Jing's 16 November 2021 affidavit replied to Ran's reference to the memorandum: CB 48[16].
Leaving aside her response to the memorandum which Jing states that she has never seen and which in any event was not admitted into evidence, relevantly Jing does say that: "b. The Plaintiff never told me that the term was one year and that I had to pay the money before 29 August 2019. From 29 August 2019 to the time of litigation, the Plaintiff never required me to pay the money."
Given that the settlement of the purchase of the property was coming up in August 2018 and up until that point neither Ran nor Jing assert that there had been any specific agreement regarding borrowings or the terms of such borrowings, it seems to me that it is inherently likely that there would have been a conversation in or about August 2018, if for no other reason than to clarify what was being borrowed and the basis of such borrowings.
Jing has not expressly responded to Ran's evidence in her 20 November 2020 affidavit. Jing's response in her 16 November 2021 affidavit to the evidence regarding the memorandum does not expressly deny that there was any conversation about borrowings.
I asked Jing about the alleged agreement conversation in submissions. She denied that there was any such conversation: T193.
A difficulty with that denial is that in cross-examination when her attention was directed to Ran's evidence regarding the August 2018 conversation (CB 27[6]) she accepted that a conversation had occurred. However, she denied Ran's version of the conversation in its relevant respects.
I regard Jing's evidence regarding the alleged agreement conversation as being not credible. She accepted in cross-examination that a conversation had taken place at a time proximate to the actual point of lending of monies but, denied that any of the material aspects of the conversation which Ran claimed, had occurred. Significantly, she did not proffer any alternative content as being the subject of the conversation.
Mr Reynolds submitted I would be satisfied that this conversation occurred as Ran says, having regard to his submissions as to the respective credibility of Ran and Jing, the surrounding circumstances - particularly the nature of the relationship, the state of Ran's income and the content of the preceding WeChat communications: T182-183.
On balance, I am persuaded by Ran's evidence that such a conversation occurred and that its contents were as she asserts.
I am persuaded that in light of the WeChat communication on 26 March 2018 that Ran had conveyed that she would not lend money except as a last option and that Di's business had not done well such that the couple were relying upon her income.
There is separate evidence that Di had no assessable income for the financial year ended 30 June 2018: Ex P1.
Mr Reynolds also made submissions by reference to a calculation of Ran's income for the financial year, suggesting that interest repayments on $250,000 would be approximately $10,000 and consume something approaching one-third of Ran's net income: T174.
Precision of calculations giving rise to alleged financial hardship in offering the loan is not to my mind necessary. Mr Reynold's point, which I accept, is that it would have been of some financial burden to Ran to offer the funds by way of loan and it is unlikely that she would have done so without some certainty regarding payment of interest, a defined time for repayment and some security.
When one has regard to that fact and the fact that the WeChat communications dated 20 April 2018 and 18 July 2018 expressly refer to interest, I am persuaded on the balance of probabilities that the conversation did take place in all respects regarding payment of interest, loan period and Ran wanting some security for payment.

[37]

Conversation on 29 August 2019

Ran in her 20 November 2020 affidavit sets out what she states was a telephone conversation regarding repayment which took place between herself and Jian jian and Jing: CB 30[15]-[16]. Ran repeats this version in her 29 September 2021 affidavit: CB 49[21]-[22].
Jing does not respond to the 20 November 2020 affidavit but does reply to Ran's version in her 29 September 2021 affidavit. Not all of the reply was admitted into evidence but the following part of the reply was admitted (see CB 152[27]): "I've never said that I would sell the Australian property to pay back the money. … On 29 August 2019, I lived apart with the First Defendant. I lived in my house in Hebei and he lived in his house in Zhengzhou, Henan. With a distance of 800km, we couldn't call the Plaintiff together. …"
Jing's efforts to dispute the possibility that any such phone call could have taken place on 29 August 2019 were increased during the hearing.
Jing adduced during re-examination text messages relating to the days of 28-30 August 2019. The Mandarin version became Ex D3 (August 2019 messages). The interpreter on the third day was asked to translate the text of the August 2019 messages.
Mr Reynolds subsequently sought to adduce a further translation of the August 2019 messages which initially were marked MFI-5, and ultimately tendered by him over the objection of Jing and became Ex P2.
Of the nine pages of the August 2019 messages the first page includes an entry on 28 August 2019, the first 8 pages includes text for 29 August 2019 and the final page includes an entry for 30 August 2019 which was already in evidence at CB 181.
Jing asserted that the particular messages had varying relevance but were all directed to proving that that she was not with Jian jian on the 28-30 August 2019 as "if we were together we wouldn't have used such tools to communicate": T151.37-.39.
Jing ultimately submitted that if Ran did call them on 29 August 2019 Ran "surely would be able to provide evidence of the phone call happened on that day, or any record on WeChat. However, she provided none": T186.
Whilst it is possible Ran could have adduced evidence of a phone call to her brother on 29 August 2019, given that Jing's submissions regarding Ran's evidence of a 29 August 2019 phone call related to Jing being not present with Jian jian, it is not obvious to me what documentary record would be available to Ran to address the critical issue of whether Jian jian and Jing responded together, or were together at the same time and responded to Ran using the same phone device: T204.
The message on the first page of Ex D3 and Ex P2 was said by Jing to be relevant to the extent that she said that she was with her daughter in the supermarket and the daughter sent a message purportedly to Jian jian on 29 August 2019 to the effect: "Dad, we are buying fruits at the supermarket. You don't need to buy for us. Thank you Ok"
Jing said that messages on pages 2 to 8 of Ex D3 and Ex P2 being messages also on 29 August 2019 were in terms of content irrelevant (being a conversation as between her and Jian jian about the work in relation to the two business that they have in China) as "it has nothing to do with this case": T150. It simply demonstrated messaging between herself and Jian jian, with the implication being they were in separate locations.
In relation to the final message (page 9) on 30 August 2019, eventually there were several translations of this messaging, including as follows: Jing's version In-court translation Speaker affidavit 16 November 2021 22 June 2022 Ex P2 CB 152[27]; JY-6 CB 181 Jing Hum Yes, do you come back home this weekend? Hmm Are you going home this weekend? Are you going home this weekend? Jian jian No No No Jing In Zhengzhou? In Jung Jou [sic]? In Zheng Zhou? Jian jian Yes Yes Yes Jing I want to talk to you. Could you please go back? There is something I want to say, can you come back? Need to tell you something. Can you come back? Jian jian Next week. Next week. Next week. We may talk about it via WeChat. Or you can stay here. You can tell me here. Jing Let's finish the negotiation as soon as possible and do ti [it] according to the negotiation Finish the talking as soon as possible to go over which stat and then we can go with stat. Finish the negotiation as soon as possible. Then do whatever needs to be done.

[38]

On the fourth day of the hearing there was further translation by the interpreter and also comment by Jing. The interpreter translated the opening part of the message by Jing as being "are you coming back home" [this weekend]: T153.
Following further discussion the interpreter indicated that there are different ways that the opening Mandarin characters can be said in English including "Going home. Returning home. Come back home": T155. Ms Wang clarified in response to a question from Mr Reynolds that "returning", implies a returning to somewhere: T155.
Ms Wang translated Jing's third response in the message as "I've got things to say. Can you come back?" and in light of that chose a translation for the first line of the message as being "come back home" or "going home" as conveying the same meaning, namely a request for return: T156.
For completeness, I record that Jing said "hmm" (first line of the message) means "yes" in China: T154.
Considerable time was taken up regarding the significance of these messages.
Further, during submissions on the fourth day Jing sought to tender a screenshot of a document purportedly demonstrating that she was not in Zhengzhou at that particular time as she had purchased an item at McDonald's at Beijing on 29 August 2019: T170, 188. In light of the lateness of the proposed adducing of evidence, I declined to receive the evidence: T170, 188, 189.
Jing fervently submitted that the various messages demonstrated that she and Jian jian were not present together on 29 August 2019: T186, 188, 189.
Mr Reynolds made a number of submissions regarding the significance of the August 2019 messages.
Mr Reynolds submitted (T165-166) that: 1. the Court would accept Ran's evidence that that conversation occurred; 2. whether there was a demand or not is not relevant having regard to the fixed duration of the loan contract contended for by Ran; and 3. on neither parties' case was there a requirement that there be a demand before the loan had to be repaid.
Mr Reynolds submitted that all one can tell from that is, they are not together at the time the text is sent, whereas they were together at some point prior to that text being sent: T172.
Mr Reynolds submitted that Jing's actions in only putting forward the WeChat message of 30 August 2019 prior to the hearing bore upon her credit in that she had ignored the message on the relevant day (29 August 2019) and "put forward the patently implausible explanation that she couldn't get an interpretation of the one dated the 29th": T168.
Jing had two explanations for not earlier putting forward the 28 and 29 August 2019 texts. The first related to the cost of translation "because I don't have the money to translating so many documents": T119, 189. The second was (T190): "the reason why I only submitted one page is that I think that one page is sufficient enough to indicate the location. The reason eight pages are conversation between me and the first defendant about work so I didn't think it is relevant to our case."
Whilst the way the evidence came out in a piecemeal manner might to some minds not be ideal, I do not regard the later attempts to produce screenshots of the documentation on 28 and 29 August 2019 as being necessarily demonstrative of lack of credibility. Clearly the entry on 30 August 2019 referred to the location of "Zhengzhou". As Jing herself rightly understood, the conversation between herself and Jian jian on 28 and 29 August 2019 was of itself in terms of actual content of discussion, irrelevant to the loan repayment question before the Court.
Mr Reynolds submitted (T170) that the text on the first page of Ex D3 was instructive as to the defendants' relationship, namely "Now, this places the second defendant with the daughter, apparently, at a supermarket, with one of them, presumably the daughter calling up via WeChat and leaving a message for the first defendant to not buy fruit for them. If [they] were 800 kilometres‑plus apart, it's not really the sort of message that one would be sending, because the message appears to have an expectation the person might actually return to the same location with some fruit for them had they not made or left that message."
Mr Reynolds also pointed to the text on 30 August 2019 indicating that (T170): "the suggestion on page 9 or the statement on page 9, or the question, as to whether or not the first defendant is coming back home or going home or the like, this weekend, suggests they're living together in a home rather than as contended for, they're living separately in the normal course …"
Mr Reynolds submitted that Jing did not cross-examine Ran in relation to this phone call to dispute that such a call did take place on 29 August 2019: T157. I do not accept that submission in that stark form.
The context needs to be considered. Jing questioned Ran regarding repayment. Ran made reference to a call on 29 August 2019: T50.12.
Jing, clearly sought to challenge that she was not with Jian jian at the time (see her submissions T186). This included by asking "Where was your brother at the time?" The exchange was as follows (T50): "WITNESS: He's at home. SECOND DEFENDANT Q. INTERPRETER: Which home? HIS HONOUR: As you understood it, which home was he at? WITNESS: I'm not sure which home-- SECOND DEFENDANT: Address. WITNESS: --he has. SECOND DEFENDANT Q. INTERPRETER: Don't you know the address of your brother? A. WITNESS: No."
The clear tenor of the questioning was in light of the pre-trial affidavit evidence that Jing was asserting Jian jian was not with her at the time of the call.
Whilst Jing did not actually put to Ran that she did not make a call on 29 August 2019, she did clearly question Ran to the effect that Ran had either not asked the defendants to repay the money or delayed in doing so beyond the period of the alleged term of the loan prior to commencing the proceedings: T48, 50, 52. Ran for her part said the defendants kept promising to repay the money as soon as possible (T50, 53), though without specifying in cross-examination that one such instance was on 29 August 2019.
Mr Reynold's point in this regard has some force namely that the absence of specific putting in cross-examination that the alleged conversation did not occur on 29 August 2019 deprived Ran of the opportunity to give an explanation regarding the likelihood of the call occurring.
Strictly speaking the text messages on 29 August 2019 do not refer to any actual location of either Jing and Jian jian and do not of themselves strictly demonstrate that it was impossible for them to be together at some point of time on 29 August 2019 to receive a call from Ran.
Nonetheless, it does seem to me that the first page of Ex D3 containing the message from Ruihan to her father on 29 August 2019 and the last page on 30 August 2019, suggestive that Jian jian was in Zhengzhou, do admit of the real possibility that they were not together on 29 August 2019.
Given that I have accepted Ran's evidence that the term of the loan was a year and that 29 August 2019 was the date due for repayment of the monies, I consider that it is likely that Ran, as she asserts, would have made contact with the defendants if not specifically on 29 August 2019 then at a time proximate to that date.
In light of the text messages, I am prepared to accept that there is doubt as to whether Ran did speak with the defendants on 29 August 2019.
However, I accept Mr Reynolds submission that clearly there were some closeness of contact between Jian jian and Jing and there was an expected "return" by Jian jian, whether to discuss matters with Jing or even if only for the benefit of their daughter.
I can take judicial notice of the fact that 29 August 2019 was a Thursday and accordingly 30 August 2019 was a Friday. The reference to "next week" on page 9 of Ex D3 admits of the possibility that, if Jian jian was away from Hebei Province, he may be back there on or about the start of the "next week".
Thus, even accepting Jing's evidence and submissions that she and Jian jian were not together on 29 August 2019, it does not to my mind cast doubt on all aspects of Ran's evidence in respect of this.
It seems to me possible that Ran was mistaken that the discussion took place exactly on 29 August 2019. That is so because as I have noted Ran (in cross-examination) nominated that the loan was due in about "January" before correcting herself and saying "September 2019" and says she asked "them" (the defendants) and her brother promised that they were going to sell the "Sydney property" and repay her money: T52
Given that the timing of end of August was a year on from the date of the lending, it seems to me inherently likely that Ran would have called the defendants to speak with them about repayment.
Whilst I accept that a conversation might not have occurred specifically on 29 August 2019, I reject Jing's assertion that no such discussion occurred at or around that time and prior to 20 November 2020.
I accept Ran's evidence that a conversation did take place it between herself and the defendants. I find that more probably it occurred on a date after but nonetheless proximate to 29 August 2019, perhaps the Monday or Tuesday of the following week which would have been 2 or 3 September 2019 - which is consistent to the "September 2019" date Ran nominated in cross-examination as being when the loan was due: T52.

[42]

Interest

There is no doubt that that there were discussions between the parties regarding how the defendants proposed to fund the purchase of the property. The WeChat message 20 April 2018 refers to options for funding the purchase of the property and if funding were required from Ran that it would be repaid within half a year or a year, with interest: CB 91.
The WeChat message dated 18 July 2018 clearly includes messaging regarding interest: CB 94.
Jing in submissions argued that the fact that the lending was between family members explained why I should find that no interest was payable: T190.
However, apart from accepting Ran's evidence, having regard to the WeChat messages showing that interest was being discussed prior to the alleged agreement conversation I am reinforced in my finding that the terms of the loan arrangement included payment of interest at a rate of 3.95% per annum.
There is evidence that between 30 March 2018 and 27 September 2018 the rate of Ran's borrowings from ANZ changed as between 3.90% and 4.06% per annum. I consider it inherently likely that Ran had sought to cover the costs at least of her own borrowings as a result of lending monies and that interest was to be charged on the loan at 3.95% per annum.
Whilst I accept that a rate of 3.95% was agreed, there is a lack of clarity regarding the duration of the application of that rate.
The Statement of Claim claims interest up to 5 November 2020 at the agreed rate thereafter at the UCPR pre-judgment rate: CB 2. The date of 5 November 2020 appears referable to the fact that on 4 November 2020 there was settlement of the sale of the property and the net proceeds of sale were transferred to the defendants' joint bank account: CB 5.
Mr Reynolds in the pre-trial written submissions has calculated interest at 3.95% from the time of the loan until 4 November 2020 and thereafter at the UCPR pre-judgement rate.
Mr Reynolds in oral submissions stated (T164-165): "REYNOLDS: ….Likewise, in terms of interest, the plaintiff says that the parties agreed in early August 2018, that the rate of 3.95% would apply. However, if the Court was not satisfied, and of course the plaintiff contends, it's her case, the Court should accept her evidence as to the conversation, However, if the Court were not positively satisfied that agreement was reached as to an applicable interest rate, then interest should be - prejudgment interest ought to be ordered pursuant to section 100(1) of the Civil Procedure Act. And in this regard, while there's a discretion to grant interest if there is no specific contractual provision dealing with it, it was established in Falkner v Bourke, referred to in the commentary at 100.10, that interest will almost invariably be ordered. HIS HONOUR: Thank you. REYNOLDS: That's a very short decision, the page reference is 576B. And interestingly, were it to apply, your Honour would find the rates set out in the annotations, sorry, the commentary at 36.7.10. And it would, in fact, be a higher rate than what the plaintiff says was agreed. But the plaintiff, of course, says against their interests, the court should find her account of the conversation occurred, and order interest in accordance with what she says was agreed."
The conversation between the parties was (as I have found): "Jianjian ZHANG: I know you have some money after refinancing the loan for your property. If you lend us the money, we can repay you after a year. We can also pay you interest. I am your brother, so don't charge me too much… can we just pay your current loan interest rate? Me: OK. I'm right now paying 3.95%. But this is also my husband's money, please make sure you will repay it."
It is not clear to me that the term as to interest was to operate on the basis that interest at 3.95% per annum would be charged only for the period until the property was sold and that the agreed rate would cease to apply once the property was sold.
Section 100(3)(b) CPA provides that the section does not authorise the giving of interest on a debt in respect of any period for which interest is payable as a right, whether by virtue of an agreement or otherwise. Accordingly, if a loan agreement provides for interest at an agreed rate beyond the repayment dates, s 100 will have no application: see e.g. Chu v Haddad [2014] NSWSC 1720 at [5] per Davies J.
In Chu v Haddad (see at [7]) there was a specific term under the heading "Repayments" in which the word "interest" appeared and the agreement read: "Monthly interest is to be paid at the beginning of each month period in advance, (that is, on or before 19th of each month) starting on 19 September 2006 and henceforth each month for the duration of the loan periods." (emphasis added)
I have the impression that on the facts here the proper construction of the interest term is that interest was to be repayable at the particular rate identified until the loan was repaid.
Nonetheless, as there were no specific submissions on this issue, I will permit the parties an opportunity to briefly further address on this issue.

[49]

Acquiescence

Jing claims that further to the matters pleaded as waiver that Ran acquiesced to a set of circumstances whereby the defendants had agreed and acknowledged that repayment of the loan was conditional upon sale of the Chinese property such that she would be estopped or otherwise prevented from seeking to enforce any such right.
Mr Reynolds apprehended that Jing's defence of acquiescence indicated that it was apparent that she intended to raise the matter in a sense of another estoppel and made reference to the decision of the Full Court of the Federal Court in Knott Investments Pty Ltd v Winnebago Industries Inc (2013) 211 FCR 449; [2013] FCAFC 59 at [147]-[148].
Use of the terminology of acquiescence requires some precision.
In Permanent Trustee Co Ltd v Bernera Holdings Pty Ltd [2004] NSWSC 56, Young CJ in Eq at [59] quoted from the judgment of Deane J in Orr v Ford (1989) 167 CLR 316 at 336-337; [1989] HCA 4. Deane J said (omitting reference to authority): "There has, over the years, been considerable criticism of the loose use of the word 'acquiescence' as a broad conjunctive or disjunctive companion to 'laches'. Such criticism has obvious force in that, so used, the word has a chameleon-like quality which adds little besides confusion to an already vague area of equity doctrine. Strictly used, acquiescence indicates the contemporaneous and informed ('knowing') acceptance or standing by which is treated by equity as 'assent' (i.e. consent) to what would otherwise be an infringement of rights. The word is commonly also used to refer: (i) to a representation by silence of a type which may found an estoppel by conduct; or (ii) to acceptance of a past wrongful act in circumstances which give rise to an active waiver of rights or a release of liability; or (iii) to an election to abandon or not enforce rights." Deane J then adopted a phrase from Henry Thomas Banning, Statute Law of Limitation of Actions (2nd ed, 1892, Steven & Haynes) p 269 saying: "A plaintiff may, however, lose his right to relief by an 'inferior species of acquiescence' which does not amount to assent, waiver or election or give rise to an estoppel. In these cases, acquiescence may be used in at least one of three ways. First, it is sometimes used as an indefinite overlapping component of a catchall phrase also incorporating 'laches' or 'gross laches' and/or 'delay' … . Secondly, acquiescence is used as a true alternative to 'laches' to divide the field between inaction in the face of 'the assertion of adverse rights' ('acquiescence') and inaction 'in prosecuting rights' ('laches') … . Thirdly, and more commonly, acquiescence is used, in a context where laches is used to indicate either mere delay or delay with knowledge to refer to conduct by a person, with knowledge of the acts of another person, which encourages that other person reasonably to believe that his acts are accepted (if past) or not opposed (if contemporaneous)."
It is not entirely clear how Jing uses the defence.
However, on any view of the matter the claim of acquiescence appears connected to the pleading of waiver and the assertion that Ran did not make any demand for the defendants to sell the property and was somehow aware of and bound by the terms of the May 2018 and November 2018 divorce agreements.
For reasons which I have indicated above, I do not accept that Ran made no demand for repayment nor do I accept that Ran was in any way bound by the divorce agreements as between Jing and Jian jian.

[52]

Charge

In support of Ran's claim in respect of a charge over the proceeds of sale, Mr Reynolds referred the Court to the decisions of Slattery J in Peters v Lithgow Forge Pty Ltd [2011] NSWSC 1185; (2011) 15 BPR 29,611 and of Darke J in Rogers v Rogers [2020] NSWSC 392.
In particular Mr Reynolds referred to passages in Rogers v Rogers at [56]-[62] as follows: "[56] An equitable charge may take the form either of an equitable mortgage, or of an equitable charge not by way of mortgage (see Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584 at 594 per Buckley LJ, in the Court of Appeal). It was not suggested that an equitable mortgage was created in the present case. Accordingly, the issue is whether a binding and enforceable charge not by way of equitable mortgage was created. [57] The authorities establish that, whatever the form, there are certain requirements that must be met in order for an equitable charge to arise. [58] In Roberts v Investwell Pty Ltd (in liquidation) [2012] NSWCA 134 at [26] Bathurst CJ (with whom Beazley JA and Tobias AJA agreed) stated that in order to create an equitable charge it is necessary: …that property of the chargor is appropriated to the chargee for payment of a debt and the chargee has a present right to have it made available for payment of its debt. The availability of equitable remedies to enforce that right gives the chargee a proprietary interest by way of security in the property charged. [59] The Chief Justice proceeded to refer (at [27]) to the judgment of Buckley LJ in the Court of Appeal in Swiss Bank Corporation v Lloyds Bank Ltd (supra) at 594-5, including where his Lordship stated: An equitable charge which is not an equitable mortgage is said to be created when property is expressly or constructively made liable, or specially appropriated, to the discharge of a debt or some other obligation, and confers on the chargee a right of realisation by judicial process, that is to say, by the appointment of a receiver or an order for sale… [60] The Chief Justice also referred (at [27]) to the dictum of Atkin LJ in National Provincial and Union Bank of England v Charnley [1924] 1 KB 431 at 449 -450 to the following effect: …. I think there can be no doubt that where in a transaction for value both parties evince an intention that property, existing or future, shall be made available as security for the payment of a debt, and that the creditor shall have a present right to have it made available, there is a charge, even though the present legal right which is contemplated can only be enforced at some future date, and though the creditor gets no legal right of property, either absolute or special, or any legal right to possession, but only gets a right to have the security made available by an order of the Court. [61] After referring to further authorities in which these principles have been approved or adopted, Bathurst CJ stated (at [29]): What is clear from the authorities is that for either an equitable mortgage or equitable charge to come into existence there must be an intention to create an immediate proprietary interest or immediate right of recourse to identifiable, present, or in the case of a charge, future property. [62] It is clear from these authorities that the intention of the chargor is of cardinal importance (see also Morris Finance Ltd v Free [2017] NSWSC 1417 at [30] per Ward CJ in Eq). It is also clear that an equitable charge is a proprietary interest granted by way of security, which entitles the chargee to resort to the property only for the purpose of satisfying some liability due to the chargee, whether from the person providing the security or a third party (see Re Bank of Credit and Commerce International SA (No 8) [1988] AC 214 at 226 per Lord Hoffman, cited with approval by the High Court in Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liquidation) (2000) 202 CLR 588; [2000] HCA 25 at [6])."
I think it is inherently likely that the conversation Ran said took place on 30 August 2018 assured her to provide the loan monies.
It is distinctly arguable (and I accept) that the conversation was in terms of the authorities intended by the defendants to be a special appropriation of the property to the discharge of the debt, which intention and proposal was accepted by Ran as the basis for lending.

Zhang v Zhang

At a glance

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Catchwords

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Catchwords

Judgment (54 paragraphs)

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Legislation Cited (9)

Cases Cited (69)

Cited By (7)