Grant v Ram [2006] NSWSC 947

New South Wales Supreme Court

CITATION : Grant v Ram [2006] NSWSC 947

HEARING DATE(S) : 30 - 31 May 2006

JUDGMENT DATE : 15 September 2006

JUDGMENT OF : Simpson J

DECISION : Verdict and judgment in a sum to be ascertained for the plaintiff; defendant to pay the plaintiff's costs.

CATCHWORDS : dispute whether payment loan or gift - jurisdiction - defendant's assets in New Zealand - competing accounts of transaction

PARTIES : Francis Peter Grant - Plaintiff Saras Wati Ram - Defendant

FILE NUMBER(S) : SC 12260/05

COUNSEL : MK Rollinson - Plaintiff H Packer - Defendant

SOLICITORS : Ramrakha Jenkins - Plaintiff Doherty Partners - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Friday 15 September 2006

12260/05 Francis Peter Grant v Saras Wati Ram

JUDGMENT 1 HER HONOUR: By statement of liquidated claim filed on 30 May 2005, the plaintiff, Francis Peter Grant, claims from the defendant, Saras Ram, the sum of $82,810.88, together with interest accumulating at the rate of $15.12 per day until judgment. The plaintiff claims that, on 6 August 2001, by telegraphic transfer to the defendant's bank account, he "lent and advanced" to her the sum of AUD61,404.95, or NZD75,000.00; he now requires repayment of that sum together with interest. 2 There is no dispute that the plaintiff did indeed provide (to use a neutral word) that sum for the defendant's use; but the defendant claims that it was a gift. 3 The proceedings thus call for the determination of a very simple question of fact: did the plaintiff lend the money to the defendant, in circumstances requiring its repayment, or did he give it to her unconditionally? 4 There is, apparently, an explanation for a matter involving a relatively small amount of money, turning on a simple factual issue, being heard in this court. The defendant is resident in and owns assets in New Zealand, but not in this country. I was told that some doubt exists as to the capacity to enforce a judgment of the District Court or Local Court in that jurisdiction. If these doubts are well founded, it is desirable that, so far as it is possible, steps be taken to remedy the situation. Not only is there an unnecessary drain on the resources of this court; other litigants are delayed, and unnecessary costs are incurred in the prosecution of this relatively small and simple claim. 5 The evidence in the proceedings was, in the first instance, given by way of affidavit. Both parties were cross-examined, as was one other witness. It was common ground that both parties are of Fijian Indian origin. Both lived in Fiji, the plaintiff until 23 December 1997, when he migrated to Australia; the defendant until 1995, when she moved to New Zealand. At the time they first knew each other in Fiji each was married to another partner; the defendant's husband died in 1990, leaving her with a house and a business. She had two sons aged 13 and 10 years. The plaintiff's marriage failed in January 2000. This was after his migration to Australia. 6 While living in Fiji the two were acquainted. After his migration to Australia, the plaintiff kept in touch with the defendant in Fiji, and this continued after she migrated to New Zealand. 7 Eventually the relationship developed into an intimate one, and the two discussed, and then made plans for, the defendant to move to Australia to live with the plaintiff. Marriage was discussed. 8 The defendant had purchased a house in New Zealand, pursuant to an agreement called (in the evidence) "a rent to buy" arrangement. Precisely what this means is not disclosed, but it is sufficiently plain that the defendant owed money on the property. There are some mysterious features concerning her purchase of the property. She told the plaintiff that the property in fact had been purchased in the name of the husband of a very dear friend, a Mr Singh. This was done, she told the plaintiff, because she was not at the time in employment and did not qualify for a bank loan. 9 As I have indicated, it was common ground that the plaintiff had advanced (again, using a neutral term) money to the defendant, which she used to pay out the loan. 10 However, how that came about is the subject of divergent evidence by the two. 11 In his affidavit the plaintiff deposed that he visited the defendant in New Zealand in either June or July 2001, and stayed with her at her home for two days. It was during this period that they discussed a future together. 12 He claimed that the defendant told him about the house she had purchased, what she had paid, and what she owed, that the house was not in her name and the reason for that. He said that she told him she was selling property in Fiji, which should be sold by Christmas, but that the market in Fiji could be very slow. She said that she would prefer to have the property in New Zealand in her name and was seeking a loan of $75,000 in New Zealand currency. She could then pay off the mortgage, Mr Singh could transfer the property to her, and she could take a mortgage in her own name and pay it off in instalments. When the Fiji house was sold, she expected to pay off the mortgage completely. 13 The plaintiff claims that he said to the defendant: "I have funds and I can lend you $75,000."