District Court New South Wales Medium Neutral Citation: Huang v Muse Beauty Salon Waterloo Pty Ltd (No 3); Muse Beauty Salon Waterloo Pty Ltd v Huang (No 3) [2021] NSWDC 575 Hearing dates: 19 October 2021 Date of orders: 19 October 2021 Decision date: 19 October 2021 Jurisdiction: Civil Before: Dicker SC DCJ Decision: In respect to the Notice of Motion filed on 18 October 2021: (1) The Notice of Motion is made returnable instanter. (2) Leave is granted to the Huang interests to file in court the affidavit of James Hui dated 18 October 2021. (3) Leave is granted to the Huang interests to read, subject to any rulings, the affidavit of James Hui dated 18 October 2021. (4) Leave is granted to the Huang interests to read in reply, if required, the affidavit of Yuk Yee Lo dated 6 October 2021 at paragraphs 6 to 12, subject to any rulings. (5) Leave is granted to the Huang interests to lead further oral evidence from Ms Lo as to the circumstances of Exhibits 2 and 8 and which document was forwarded by her to Mr Hui on 29 November 2017. (6) The costs of the Notice of Motion filed on 18 October 2021 are to be costs in the cause. Catchwords: PRACTICE AND PROCEDURE – leave sought to call further oral and affidavit evidence – documents go to credit – delay and costs of further hearing – documents admissible although going only to credit – whether documents should be excluded under s 135 of the Evidence Act 1995 (NSW) although otherwise admissible – factors relevant to the exercise of the discretion Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Dyldham Developments Pty Ltd v Jones [2008] NSWCA 56 Huang v Muse Beauty Salon Waterloo Pty Ltd (No 2) [2021] NSWDC 562 Category: Procedural rulings Parties: Yi-Ching Huang (Plaintiff 2018/00117938; Defendant 2018/00364820) Muse Beauty Salon Waterloo Pty Ltd (Plaintiff 2018/00364820; Defendant 2018/00117938) Representation: Counsel: G Campbell (Plaintiff 2018/00117938; Defendant 2018/00364820) F Santisi (Plaintiff 2018/00364820; Defendant 2018/00117938) Solicitors: Goh Lawyers (Plaintiff 2018/00117938; Defendant 2018/00364820) W B Legal (Plaintiff 2018/00364820; Defendant 2018/00117938) File Number(s): 2018/00117938 2018/00364820 Publication restriction: No EX TEMPORE Judgment 1. HIS HONOUR: Before the Court is a Notice of Motion filed on 18 October 2021 by the Huang interests, seeking various orders, including that leave be granted to the Huang interests to lead evidence from Mr James Hui, solicitor, concerning the document which is annexed as "JH-1" to his affidavit dated 18 October 2021. It was clarified that, in effect, what was sought was leave to read the affidavit of Mr Hui in the proceedings proper. It has also been made clear in the course of submissions by Mr Santisi, who appears on behalf of the Huang interests, that some short supplemental evidence will need to be obtained from Ms Lo to clarify the circumstances in which Exhibits 2 and 8 were seen by her or held by her, in their original form. 2. On the application, Mr Santisi read the affidavits of Mr Hui dated 18 October 2021 and part of the affidavit of Ms Yuk Yee Lo, also known as Kitty Lo, dated 6 October 2021. Mr Campbell, who appears for the Xie interests, read on the application the affidavit of Mr Gen Li, solicitor, also known as James Li, dated 29 September 2021. It is noted that the Lo affidavit I have referred to, replies to the Li affidavit. 3. The application is opposed by the Xie interests. 4. Credit is, and will be, a significant issue in the final determination of the present proceedings. It is clear from the cross‑examination of all of the witnesses so far, that the credit of all witnesses, being Ms Xie, Ms Bai, Ms Lo, Ms Huang and Mr Nam, will be in issue. This case, although it has involved many factual issues, involves a large number of credit issues. 5. Recently, on 13 October 2021, I gave an extensive ex tempore judgment in relation to another application to lead evidence relevant to the credit of Ms Lo, Ms Xie and Ms Bai: Huang v Muse Beauty Salon Waterloo Pty Ltd (No 2) [2021] NSWDC 562. This judgment should be read with that judgment. In the reasons for decision of 13 October 2021, I go through, in extensive detail, the factors relevant to the discretionary rulings of the Court on the evidence sought to be lead. 6. It is submitted by Mr Santisi, who appears on behalf of the Huang interests, that the issues relating to the present application are far narrower than the earlier application. In substance, it is said that the issue is: what did Ms Lo send, if anything, to Mr Hui on 29 November 2017. It is submitted that, if leave is granted, Mr Hui, in his affidavit, is able to give evidence that the screenshot, which is document "JH-1" to his affidavit, was forwarded to him by Ms Lo, for whom he acted on 29 November 2017. 7. It is submitted by Mr Santisi that this is a significant matter which goes to the credit of Ms Lo, Ms Xie and Ms Bai, as on 29 November 2017 there was no dispute between the parties and the fabrication of the document is highly unlikely. Accordingly, it is said to be significant as to the credit of Ms Lo, Ms Xie and Ms Bai, because, in substance, it shows that the evidence given by Ms Lo in her affidavit and oral evidence, as to the handing over of $60,000 to Ms Xie and Ms Bai, and receiving a receipt for it, is correct, and that the denials of that by Ms Xie and Ms Bai are incorrect and that essentially, that significantly undermines the credit of Ms Xie and Ms Bai. 8. It is submitted that the range of the evidence sought to be led is very limited because it is sought that only Mr Hui gives evidence of what he received and Ms Lo has already indicated in her evidence that she did send a photograph of the receipt to Mr Hui on 29 November 2017. 9. Mr Campbell, who appears for the Xie interests, submits, in summary, as follows: 1. That the material sought to be led goes to credit, not an issue in dispute and accordingly, the probative value of it is not high; 2. That it does not go to one of the main factual matters in dispute between the parties including the claim for the return of the $68,000, nor the injurious falsehood claim; 3. That it would require further evidence from Mr Hui and Ms Lo; 4. That it would open up "a can of worms" because when one looks at the affidavits of Ms Lo, Mr Hui and Mr Li, they are at odds with each other as to various aspects of what occurred on 29 November 2017 and, particularly, whether Mr Li was aware that the document was being sent to Mr Hui. In addition, it is noted that in the affidavit of Mr Li dated 29 September 2021, in paragraph 14, Mr Li indicates that to the best of his recollection the receipt contained in Exhibit 8 was not seen by him, nor did any one of Ms Xie, Ms Lo or Ms Bai mention to him the payment of the $60,000 as he would have included it in the summary email he sent to Mr Hui at 12.48pm on 29 November 2017, which is Exhibit C to his affidavit. 1. Mr Santisi submits that: 1. The evidence is limited; 2. Mr Campbell has exaggerated the other issues that would arise if it was permitted; 3. The further clarification evidence of Ms Lo would be limited; and 4. The evidence sought to be led goes to a fundamental credit issue which can affect the credit of Ms Xie and Ms Bai overall in the proceedings. 1. In my decision handed down on 13 October 2021, I rejected leave being granted in relation to two sets of documents and granted it as to one document. I set out the background to the application. I referred to the relevant applicable legislation in that judgment and I set out a number of factors which needed to be taken into account in exercising the discretion. I also referred to the decision in Dyldham Developments Pty Ltd v Jones [2008] NSWCA 56. I take the matters referred to in that judgment into account and I also take into account the submissions which were made by Mr Campbell of counsel on behalf of the Xie interests in opposing leave in the consideration of this application. 2. In relation to the legislative position, s 101A of the Evidence Act 1995 (NSW) relates to credibility evidence. As I indicated in my judgment dated 13 October 2021, generally speaking, credibility evidence is not admissible: s 102 of the Evidence Act. There are exceptions if the evidence could substantially affect the assessment of the credibility of the witness and if, depending on the situation, ss 103 or 106 of the Evidence Act is satisfied. It seems to me that the evidence sought to be led could substantially affect the assessment of the credibility of Ms Xie and Ms Bai having regard to the evidence which was given. 3. It is important to set that evidence out in summary. A summary of the evidence is as follows: 1. In her affidavit dated 15 May 2020, commencing at Court Book p 213, Ms Lo states in paragraph 17 that Ms Xie said to her that she would not be getting back $60,000 which she had invested; 2. In Ms Xie's affidavit dated 10 June 2020, commencing at Court Book p 390, Ms Xie in paragraphs 37 and 46 but particularly at paragraph 46, denied that Ms Lo invested $60,000; 3. In Ms Lo's affidavit dated 16 May 2021, commencing at Court Book p 219, at paragraphs 16 to 24, Ms Lo gives a detailed background to the alleged payment by her of $60,000 and the acceptance of a receipt for that amount signed by Ms Xie and Ms Bai. See in particular paragraph 18 and Annexure "YYL-1". In paragraph 24, Ms Lo gives evidence that she paid the $60,000; 4. In Ms Xie's affidavit dated 26 May 2021, commencing at Court Book page 664, in paragraphs 4 and 5, Ms Xie denies that Ms Lo paid her the $60,000 and denies signing the receipt as alleged; 5. In her affidavit dated 26 May 2021, commencing at Court Book page 748, Ms Bai at paragraphs 4 to 5 denies receiving the $60,000 payment from Ms Lo or providing or signing a receipt. 1. This issue was also the subject of extensive oral evidence as follows: 1. Ms Xie denied signing the receipt or receiving the $60,000: see T147 and T159 ‑ 160; 2. Ms Bai denied receiving the $60,000 or signing the receipt: see T478 ‑ 479; 3. Ms Lo gave detailed evidence as to paying the $60,000 and receiving the receipt in her cross‑examination: see T652.49; T653.20; T656.24 (Ms Xie wants Ms Lo to invest $60,000); T661.20 ‑ .23; T662.44; T683.9; T700.34; T706.35 (Ms Lo gave Ms Xie and Ms Bai the $60,000); T688.40 ‑ T689.2; T709.20 – 27 (the receipt is given to Ms Lo); T692.3 ‑ 697; T700.44 (Ms Lo denies fabricating her evidence). Evidence was also given by Ms Lo in relation to sending the receipt to Mr Hui; particularly in re‑examination: see T706.44; T726.10 ‑ 728.6. 1. I now turn to consider the application of s 106 of the Evidence Act. In my view, having regard to the evidence I have referred to in the cross‑examination of Ms Xie and Ms Bai, the substance of the evidence was put to those witnesses that the money was paid by Ms Lo and they signed a receipt. Secondly, both witnesses denied or did not admit or agree to receiving the money or providing and signing the receipt. In my view, on its face, the provision of the receipt for the $60,000 is a prior inconsistent statement under s 106(2)(c) of the Evidence Act, being a statement which is inconsistent and prior to the oral evidence of the witnesses and their affidavit evidence. However, even if I am wrong as to that, the question under s 106(1)(b) is whether the Court would give leave to adduce the evidence. 2. I take into account the decision in Dyldham, above, and whether I should exercise the discretion under s 135 of the Evidence Act. I refer to the factors which I took into account in relation to the other documents in my judgment dated 13 October 2021: see at [21]. 3. In my opinion, this proposed evidence falls in a different position to that considered in the 13 October 2021 judgment. The evidence sought to be adduced by the Huang interests is far more limited than the potential evidence considered in that application. Ms Xie and Ms Bai have made their position clear: they deny receiving the money and deny signing the receipt. Effectively, evidence as to the receipt of the document from Ms Lo is given by Mr Hui, who discusses in his affidavit the circumstances of his receipt of it as recorded on his telephone. 4. Mr Campbell submitted that it will also give rise to Mr Li giving evidence and also cross‑examination of Ms Lo. However, it does not appear, on its face, to involve Ms Xie or Ms Bai, as their position is clear. The application does not therefore involve the unusual circumstances of Ms Bai, who had travelled to Macau to give her earlier evidence. 5. I accept the submission of Mr Santisi that this is a significant matter going to credit. I take into account Mr Campbell's submissions that it does not go to a central issue in the case. However, much time and effort was expended by both counsel in the cross‑examination of Ms Xie, Ms Bai and Ms Lo as to this matter. Very clear and unequivocal denials have been given by Ms Xie and Ms Bai as to the receipt of the $60,000 from Ms Lo and the provision of a receipt by them. 6. In my view, it is significant credit evidence. I am satisfied that it could substantially affect the assessment of the credibility of Ms Xie and Ms Bai. 7. In considering whether leave should be granted, I take into account the matters set out in s 192 of the Evidence Act, including the extent to which giving leave would likely add to the length of the hearing, the extent it would be unfair to a party or witness, the importance of the evidence and the nature of the proceedings, and the power of the Court to adjourn. 8. In my view, this evidence, even with the cross‑examination foreshadowed, would not be likely to add unduly to the length of the hearing, and certainly far less than the documents referred to in the 13 October 2021 judgment. I do not consider it would be unfair to the Xie interests to give leave, as they have the evidence of Mr Li on the issue and would have the right to cross‑examine Ms Lo and Mr Hui. Although the evidence only goes to credit, it is a significant matter. I take into account the amount in issue in the proceedings. I do not consider that an extensive adjournment would be needed, having regard to the witnesses having already provided affidavits. 9. I also take into account the matters referred to in my earlier judgment in the analysis of the Dyldham case. I do not consider that those factors are present in the current application to the same extent as in the earlier application. 10. For all of the above reasons, I give leave to the Huang interests to lead the additional evidence in the affidavit of Mr James Hui dated 18 October 2021 and in the affidavit of Ms Lo at paragraphs 6 to 12, in the event that the Xie interests seek to read the affidavit of Mr Li dated 29 September 2021. 11. I also give leave to the Huang interests to clarify the relevant receipts with Ms Lo, being satisfied that the time that it would take to do this would be limited. Orders 1. In respect to the Notice of Motion filed on 18 October 2021: 1. The Notice of Motion is made returnable instanter. 2. Leave is granted to the Huang interests to file in court the affidavit of James Hui dated 18 October 2021. 3. Leave is granted to the Huang interests to read, subject to any rulings, the affidavit of James Hui dated 18 October 2021. 4. Leave is granted to the Huang interests to read in reply, if required, the affidavit of Yuk Yee Lo dated 6 October 2021 at paragraphs 6 to 12, subject to any rulings. 5. Leave is granted to the Huang interests to lead further oral evidence from Ms Lo as to the circumstances of Exhibits 2 and 8 and which document was forwarded by her to Mr Hui on 29 November 2017. 6. The costs of the Notice of Motion filed on 18 October 2021 are to be costs in the cause. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2021