Tam v Tang [2013] NSWSC 708

Supreme Court New South Wales

Medium Neutral Citation: Tam v Tang [2013] NSWSC 708 Hearing dates: 09/05/2013 and 10/05/2013 Decision date: 05 June 2013 Jurisdiction: Equity Division Before: Young AJ Decision: Plaintiffs' suit be dismissed with costs Catchwords: EVIDENCE - corroboration - claim on deceased person's estate - where uncorroborated evidence of oral communications between the deceased and claimant - no rule of law against allowing uncorroborated oral communications with the deceased, but the court will treat such evidence with caution

EQUITY - equitable defences - laches Legislation Cited: Limitation Act 1969 (NSW) Conveyancing Act 1919 (NSW) Cases Cited: Ashton v Pratt (No 2) [2012] NSWSC 3 Re Hodgson (1878) 9 Ch D 673 Texts Cited: J D Heydon, Cross on Evidence (2010, 8th edition, LexisNexis Butterworths) Category: Principal judgment Parties: Hang Hing Tam (Plaintiff) Ya Dong Tang (Defendant) Representation: Counsel: JF Merkel (Plaintiff) IGA Archibald (Defendant) Solicitors: Legal Point Lawyers & Attorneys (Plaintiff) Ren Zhou Lawyers (Defendant) File Number(s): 2011/359159

Judgment 1HIS HONOUR: This is a dispute between a woman and her late brother's widow over the equitable title to real property in Rockdale. That property is Torrens land of which the defendant is the registered proprietor. She became the registered proprietor through an administrator's transmission application from her late husband. 2Without meaning any disrespect, it will be simpler to refer to the plaintiff as the 'seventh sister' (as she was so designated in the family) and the deceased as the 'ninth brother'. The eighth sister will also be mentioned in these reasons. The defendant is the widow of the ninth brother who died on the 27 June 2006. Letters of administration were granted to her on 18 January 2007. 3The ninth brother was the successful bidder at the auction for the Rockdale property. The purchase price was AUD$248,500.00. The ninth brother borrowed AUD$150,000.00 on mortgage and the balance was paid by three bank cheques plus the deposit. The purchase was settled on 20 May 1997. 4The seventh sister says that she paid her brother four amounts before the property was purchased namely; AUD$8,300.00 in September 1994: $10,000.00 in June 1996; $33,300.00 in August 1996; and $13,800.00 in December 1996. Basically, she says that she paid these monies pursuant to an arrangement between herself and her brother that the brother would purchase a property in Australia, which would be a secure asset for both parties' retirement. Following the purchase of the property, the plaintiff paid her brother a further; AUD$50,0000 on 26 May 1997; $21,000 on 28 August 1997; and $10,000 on 23 September 1997. Whilst the $50,000 was used to reduce the mortgage, there was no evidence as to how the later sums were deployed. 5The plaintiff's statement of claim pleads in essence: * The property was purchased for AUD$248,500.00; * The plaintiff contributed $65,400.00 to the purchase; * The plaintiff subsequently paid $81,000.00 in reduction of the mortgage; * The plaintiff and her deceased brother had a mutual intention that they would acquire a property as an investment to provide for their retirement; and * The property was acquired on the basis that the two siblings would share the burden and benefit of the property, which would provide an income for them both in their retirement. 6These "facts" were pleaded in different ways including that the brother had made representations on which the plaintiff had relied to pay him money. 7The defendant denies the allegation and also relies on the Limitation Act 1969 (NSW), laches and the absence of any writing. The proceedings came on for hearing before me on 9 and 10 May 2013. Ms Jane Merkel of Counsel appeared for the plaintiff and Mr Ian Archibald of Counsel appeared for the defendant. 8The plaintiff's case was based almost entirely on her own evidence. In paragraph 15 of the plaintiff's principal affidavits (dated 7 June 2012), she said that in September 1994 the ninth brother was in Hong Kong for their mother's funeral. There was a conversation about buying an investment property. The ninth brother said that they would need between AUD$200,000.00 and $260,000.00. 9The plaintiff says that she said to the ninth brother: "Our mother's illness and funeral costed me a large amount of money. This time, I can only give you HKD$50,000.00 to bring back to Australia and you have to prepare to buy a property as investment for us. In the near future, I will prepare more money and gave to you to accumulate for buying the property. Once we accumulate enough money for the initial deposit, everything will be easier." The ninth brother is then alleged to have said: "Yes, I will get myself familiar with the property market and buy a property for us". 10The plaintiff then says she gave her brother HKD$50,000.00 (equivalent to AUD$8,300.00 at that time). 11The plaintiff says there was a further conversation between them in Hong Kong on 14 June 1996, at which time the plaintiff gave her brother AUD$10,000.00 in cash. 12In mid August 1996, the plaintiff says that she withdrew HKD$200,000.00 from her husband's savings and sent that money (equal to about AUD$33,300.00) to Australia with relatives. She told her brother that she had to repay the money to her husband in due course. 13The plaintiff then says that around the end of December 1996 she gave the ninth brother a further AUD$13,800.00 and urged him to buy a property soon. 14The plaintiff says that at the end of April 1997 her brother rang her and told her that he had bought the property. The plaintiff claims she criticised him for buying an old property, which would cost more in repair and maintenance. 15On 22 May 1997, there was further conversation in which the plaintiff said she told her brother on the telephone that she would send another AUD$50,000.00 and further said: "so the property will be under our names as joint tenants." The brother is suppose to have replied: "because you are not an Australian permanent resident or citizen I am not allowed, by law, to put your name as joint tenants with me on the certificate of title on the property. But we can put a notation on the certificate of title showing that you have the interest on the property and the property will be yours if I passed away". I should say here that Ms Merkel puts no store on the words "joint-tenants" as being used in any technical sense. 16In about August 2002, the ninth brother transferred AUD$60,000.00 into the plaintiff's bank account. The defendant says that this was to repay a loan. The plaintiff says the transfer had nothing to do with the land transaction. 17Nothing much happened after this until after the death of the ninth brother. In March 2009, the plaintiff visited Australia and called into the Rockdale property. She says that she was told by her niece, Sally Xu Qin Tan (the defendant's daughter), that she was happy living with her mother and uncle and on further questioning, said the uncle was her mother's boyfriend. It would seem that the plaintiff became extremely distressed by this and solicitors' letters started flowing between the parties shortly thereafter. (The niece denies this conversation in her affidavit of 23 August 2012 at [15]). 18The plaintiff's evidence that I have set out may not be sufficient even if it was all accepted to make out her case. It must always be remembered that when one is suing a deceased estate the claim will not generally be allowed on the uncorroborated evidence of the claimant because, as is said in the Eighth Australian Edition of Cross on Evidence; "the absence through death of one of the parties to the transaction calls for caution" (J D Heydon, Cross on Evidence (2010, 8th edition, LexisNexis Butterworths) at 482 [15150]). However, there is no rule of law to this effect. It is merely a rule of practice (see, for example: Re Hodgson (1878) 9 Ch D 673). 19Ms Merkel referred me to the recent decision of Brereton J in Ashton v Pratt (No 2) [2012] NSWSC 3 (noted in: (2012) 86 ALJ 448) where the learned judge did find the plaintiff had proved an arrangement even though she was suing a deceased estate and there was no corroboration. However, one case decided on the facts, which surmounts the barrier really does not take the matter very much further. The principle behind the rule is that one must scrutinise with considerable care, conversations put up against a deceased person because the deceased person is not there to contradict them. 20It is clear that the plaintiff did not do at all well during the long cross-examination to which she was subjected. 21I know one must be very careful when assessing the evidence of a person who is giving evidence through interpreters and whose affidavits are presented to the court in English and then translated to her before they are sworn. I make all proper allowances for this, but even so the plaintiff's evidence did appear to me to be unreliable. 22First, I should refer to letters, which she wrote to her ninth brother and the defendant in August and September 2002. In the earlier letter the plaintiff says: "On the day when I remitted the money to you, I did not expect that you would make it so quickly. My happy congratulation on you." 23There is no mention of the transaction on which the plaintiff now sues. However, more significant is the letter of September which says: "I have received the money you have remitted me and thank you for your support. ... Congratulations on you for your paying off all the mortgage on your property within only a few years, which is great. I was always worried about your financial situation getting poor. ... I congratulate on you also because it is so very important in your life to have laid a solid financial foundation for your later years..." 24Again, there is no reference to the alleged arrangement, and indeed, the words "your paying off all the mortgage on your property" indicates that in 2002 the plaintiff was acknowledging that the Rockdale property belonged to her ninth brother only. 25On 15 February 2007, Mr Terry Zhang (a solicitor from Zhang Lawyers, purportedly acting on behalf of the plaintiff) sent a demand letter to the ninth brother's estate. The letter confirmed that the plaintiff had received AUD$60,000.00, "but she has not received any interest as Liang Sheng Tang had agreed to pay". This letter demanded $34,627.30 interest. 26The plaintiff says that Zhang Lawyers failed to understand the instructions that she and her eighth sister gave to them. She says she never intended to make any claim for interest on an alleged loan because there was no loan. Mr Zhang was not called. 27The plaintiff's niece and the defendant's daughter Sally gave evidence. She is 15 years old. She denies that she told the plaintiff that she lived with her uncle and the uncle was her mother's boyfriend. But says that there was a heated discussion between her mother and the plaintiff during which the plaintiff said to her mother: "you caused all of this you prostitute. Do you know half of this house was paid by me? You killed my brother and I will sue you for every last penny you have". 28I have mentioned that the plaintiff was extensively cross-examined. During that cross-examination she acknowledged that the conversations recorded in her affidavit were at least in some respects compilations of what was said in several conversations. 29It is not necessary to set out exhaustively all the problems with the plaintiff's evidence in cross-examination. As I have said, I discount some of these problems because of with the difficulties associated with her first language being Cantonese. There are always problems when questions, answers and documents are translated. However, the problems with the plaintiffs' testimony went well beyond this. 30One matter was that the plaintiff insisted that the purchase money of the Rockdale property was paid in cash. When she was shown the copies of three bank cheques she still maintained her evidence. She clearly had convinced herself of that fact and nothing was going to change her mind. That however, is the relevantly minor manner. 31She was cross-examined on paragraph 15 of her first affidavit (dated 7 June 2012), which was one of the vital paragraphs. She said in cross-examination that she understood 90 percent of the paragraph. She subsequently stated however that she understood "half half. I mean some of that I understood but later I did not understand". The next question was (T35.10 - .15): Q: "So you are only saying you understood some of it when you signed the affidavit but you understand 90 percent of it now, is that right? A: I mean 70 or 80 percent. Q: When you signed the affidavit? A: I don't know how to answer." 32Later counsel put (T36.26 - 37.1): Q: So in this paragraph 15 have you tried to create what was in your minds? A: Well, you ask me so many questions all I can say is it is indeed the plan of our three people to purchase a property altogether. Q: Yes, you thought the plan was in your three minds, is that correct? A: I suppose that is the case that the three of us thought like this and also would contribute money in this way. Q: Yes and paragraph 15 reflects what you consider was in your three minds? A: Well, I took care of this younger brother and younger sister until they grow up. Q: Yes, but what you have set out in paragraph 15 is what you have created to reflect what you considered the agreement to be? A: We thought about that and then we did carry out our plan step by step in the future and I so I gave him $50,000 Hong Kong. ... Q: No I am not asking a question about the $50,000, I am asking a question about the record of the conversation in paragraph 15 of your first affidavit and in relation to what you have included there does that set out what you consider was in the minds of you and your brother and your sister? A: Yes Q: And it doesn't reflect any individual conversation with your late ninth brother? A: But I did pay him the money. 33The cross-examination continued with much the same non-responsive answers, the plaintiff saying that (T37.35 - .36): "It is just that you keep asking questions sideways but I am telling the truth". 34Although the plaintiff admitted that the conversations detailed in paragraph 15 were in a part a reconstruction of multiple different conversations, and although she eventually admitted she could only understand 70 to 80 percent of their content (given difficulties with translation), the plaintiff nevertheless continued to insist that the conversation set out in the paragraph occurred and that the words detailed therein were said. 35There were questions put to the plaintiff about the letters that Mr Zhang had written purportedly on her behalf. She maintained that her eighth sister was the person primarily in communication with Mr Zhang, that she had never received any copy of his letter, and that she did not understand why he had written what he did. She contended Mr Zhang was not acting on her instructions (T66.41-.42): Q: So you're saying the solicitors made this letter up without instructions. A: Yeah. 36The plaintiff was cross-examined on the events surrounding her visit to Australia in March 2009 (to which I have referred to at [17] above). During her testimony, she claimed that her niece Sally had invited her into the Rockdale property, whereupon she had noticed two pairs of men's shoes. When quizzed on the matter, the plaintiff claims her niece informed her that the shoes belonged to her mother's boyfriend. 37The plaintiff says she was then left in the backyard of the Rockdale property until 10pm that evening without any food or drink. That incident is completely denied by Sally. Sally says that the plaintiff came to the house and said "your mother killed your father. She is the one to blame for your father's death." The plaintiff then went to Sally's room and said: "your room seems messy. I will clean it up for you." Sally told her not to bother but the plaintiff began to clean the room. 38Sally says that the plaintiff then travelled through the house, looking through documents. So Sally went to the backyard and telephoned the defendant. She denies; that her mother was with a man; that the plaintiff had been left in the backyard by herself until 10pm; and that she ever said that she lived with an uncle. However, she does agree that when her mother returned at about 9pm, the plaintiff said in a loud voice; "you caused all of this you prostitute. Do you know half of this house was paid by me, you killed my brother and I will sue you for every last penny you have." 39Shortly after the plaintiff left. The only challenge to Sally's evidence was in respect of the conversations in paragraph 16 when her mother returned. It was put to her that as that conversation was in Cantonese and Sally spoke English and Mandarin she didn't understand it. Sally replied: "I still understand it. Just because I don't speak it doesn't mean I don't understand." She wasn't cross-examined about paragraphs 12 to 15 of her affidavit where she described the plaintiff's behaviour on the afternoon inside the house. 40Although there is not that much to go on it it seems to me that given the uncontradicted elements of Sally's evidence and my observation that she appeared to give credible evidence in a calm manner (in contrast to the plaintiff who gave the impression that she had reconstructed what she now firmly believes to be the truth) it would seem to me more likely that Sally's account is an accurate reflection of the truth. 41The defendant was also cross-examined. Whilst she is the administrator of her husband's estate, she was not directly involved in most of the events of which the plaintiff gave evidence. 42Much of the cross-examination was directed to one of the plaintiff's central points: that the ninth brother had such a small amount of income and so little capital that the plaintiff's story that she had advanced him virtually half the money for the house was more likely to be correct. So the defendant was cross-examined on the plaintiff's work and shown his group certificates from his principal job and asked how a man of such limited means could afford to buy the Rockdale property. 43The defendant said that he was working hard and that in addition to his main job he was working as a waiter in various Chinese restaurants. It was put to the defendant that there was no documentary evidence to show any additional income. She acknowledged that that was true. However, it does not seem to me that that the lack of documentary evidence of employment irrevocably impugns the veracity of the defendant's claim. . It would hardly be the first time a waiter had been paid in cash and 'off the books.' 44I do however accept that a wife usually knows when her husband is going out to work at night as a waiter. 45Another one of the plaintiff's propositions is that although AUD$60,000.00 was paid to her by the ninth brother and the defendant, the payment was not a repayment of loans, but rather a contribution to the mother's care and gravesite. 46She was shown the letter that I referred to at [23] above, in which the plaintiff says "thank you for your support." It was put to her that it was significant that the plaintiff was not describing the money as repayment of a loan. That comment can rightly be made, but it is not a particularly strong one. 47Having read the evidence and listened to the cross-examination, I came to the view that; the plaintiff's evidence is to a great degree reconstructed; that the defendant is not really in a position to counter it because she was not directly involved; but that Sally's evidence was credible and provided grounds to doubt the accuracy of the plaintiffs' account. 48I have little doubt that the plaintiff is telling me what she honestly believes occurred. However, her version of events involved (by her own admission) the collation of different conversations into paragraph 15 of her affidavit, and thus a fair degree of reconstruction. 49It is significant that the plaintiff did not take any action with respect to her alleged investment until after the ninth brother's death in 2006, even though the mortgage had been paid off as early as 2002. One would have expected the plaintiff to have wanted some income, or at least some input into her so called investment. Yet nothing happened until after the brother's death and even then only after the plaintiff got it into her head that the ninth brother's widow was closely associated with a new man. 50However, it does seem to me that on the evidence it is more likely than not that the plaintiff did send AUD$65,400.00 between September 1994 and December 1996 to the ninth brother. She also sent a further; $50,000.00 on 26 May 1997; $21,000 on 28 August 1997; and $10,000 on 23 September 1997. I find that the $60,000 sent back to Hong Kong in 2002, was a repayment of the $50,000 payment of 26 May 1997, together with one of the $10,000.00 payments (either the one of June 1996 or one of September 1997). 51The plaintiff says that that AUD$60,000.00 was reimbursement for the care of the mother and her tombstone. There is no mention of that allegation in any of the contemporaneous documents and it seems to me that it is more likely than not that it is the repayment of the loan. 52As to the transfer of AUD$65,400.00, the plaintiff's story has some credibility in that the payment was made in 1997, when the lease to the British of Hong Kong was coming to an end and people who lived in Hong Kong, like the plaintiff, were fearful as to the future, despite assurances being given by the Chinese Government. It is credible that she would have wanted to move her money out of Hong Kong into Australia to keep it more secure. These matters add credence to the plaintiff's story that she wanted an investment for her retirement in Australia. 53However, there is another possibility. The plaintiff clearly acknowledges that as an older sister has always been a quasi mother to her ninth brother. She thought that the ninth brother needed support because of his low income and so she may have provided monies out of natural love and affection. 54She may well have expected that in due course the brother would return the favour but there does not appear to be anything concrete in the contemporaneous documents as to his obligation to do so. There is nothing in writing on the plaintiff's side and indeed the plaintiff's story does vary from time to time. When one finds that there is a dealing between close family members that is rather vague, and has not been put in writing, it is very easy to form the inference that the arrangement was purely a familial one, lacking any intention to create legal relations. 55The onus is on the plaintiff. The plaintiff needs to establish her case and because she is suing a deceased estate and there is no one able to provide contrary evidence to oral conversations, the authorities tell me that I must proceed with great care. In my view, the plaintiff has not made out her case. 56The defendant apart from filing denials makes three specific defences: (a) Laches; (b) Limitation Act 1969 (NSW); and (c) Section 23C of the Conveyancing Act 1919 (NSW) (being the absence of writing). 57Whilst the Limitation Act defence was not pressed, laches was. Mr Archibald says this is a clear case of laches. The plaintiff did not commence her attack until after both her brother and eighth sister's deaths, when both siblings could no longer respond. The monies were allegedly advanced, or alternatively, devoted to the common purpose before 1997 and it was 10 years before the plaintiff started making her claims for their recovery. 58It would seem to me to be a classic case in which the defence of laches applies. The plaintiff's inaction for such an extended period of time, coupled with the loss of the evidence of the eighth sister and the ninth brother, means that it is now inequitable to grant the plaintiff any relief. 59Again the s 23C point was not elaborated upon and I would have great doubt as to whether I would uphold that defence to the present claim, which is really based on the equitable doctrine of proprietary estoppel. 60Accordingly, either on the merits, or alternatively, because the defence of laches succeeds, the plaintiff's suit must be dismissed with costs and I so order.