Sirinoglu v Maden[2015] QDC 116

DISTRICT COURT OF QUEENSLAND

1. [1]
   This proceeding was concerned with a claim brought by the plaintiffs against the defendant for monies had and received or, in the alternative, for the return of money held on trust by the defendant for the benefit of the plaintiffs. For the reasons set out below the orders of the Court are:

1. The judgment of the Court is that the defendant pay to the plaintiffs the sum of $118,474.97, including the sum of $23,474.97 interest to 8 May 2015, and their costs of the proceeding to be assessed on the standard basis.

Introduction

2. [2]
   This matter was heard by me on 8 May 2015. The plaintiffs were represented by Mr H Scott-Mackenzie of counsel. There was no appearance on the part of the defendant who had returned to her home country, Turkey after liquidating her assets. Having regard to the history of this matter I considered it appropriate to grant the relief sought and indicated that I would give reasons for the orders made as quickly as was practicable. These are those reasons.

Background

3. [3]
   The plaintiffs are a married couple. Gulsah Sirinoglu is the daughter of the defendant and Ayhan Sirinoglu is the son-in-law of the defendant. All of the parties were born in Turkey but the defendant migrated to Australia some 25 years ago. The first and second plaintiffs married in Turkey and thereafter formed the intention to also immigrate to Australia. By that time the defendant had established a successful business known as “Grab-a-Kebab” located in the Indooroopilly Shopping Centre, Chermside and elsewhere. It was intended that the plaintiffs would live with the defendant at 43 Bottlebrush Drive, Regents Park and that the first plaintiff would work for her as head chef at the Indooroopilly Shopping Centre business.

4. [4]
   Prior to migrating to Australia the plaintiffs between them had saved the equivalent of $55,000 AUS which they intended to use as a deposit to purchase a house in Australia in due course. The plaintiffs migrated from Turkey to Australia on 28 April 2008 and they began to live with the defendant and the first plaintiff commenced to work for her, initially in her shop at Indooroopilly and later at Chermside. Sometime after April 2008 the defendant suggested to the plaintiffs that they save $100,000 which they could then use as the deposit for a house. The defendant also suggested that that money would be held by her for their benefit in one account until the total amount of $100,000 had been accumulated. The first plaintiff’s evidence was that he and the second plaintiff not only trusted the defendant because of the family relationship but also believed her to be an astute business woman.

5. [5]
   In furtherance of that plan the plaintiffs arranged for the transfer from the Ziraat Bank located in Turkey the sum of $64,656.50 of Turkish Lira (TL). That money was then to be deposited into an account identified as being “Maden Family Trust”.^[1] Despite disclosure being completed no document evidencing the creation of such a trust was revealed. Two things seem tolerably clear, first, that the monies went into an account under the control of the defendant, and second, it is more likely than not that no “Maden Family Trust” in reality ever existed, at least not in any formal sense.

6. [6]
   Following those funds being transferred into that account the plaintiffs continued to reside with the defendant at a discounted rent of only $100 per week and the first plaintiff continued to work for her. By 14 May 2009 the plaintiffs had saved a further $30,230.63 including interest which was then kept in a Suncorp account in the name of the first plaintiff. The first plaintiff’s evidence was that on 25 June 2009, in accordance with the plan to keep all future deposit monies under the control of the defendant until it reached $100,000, he arranged for the transfer of $30,000 from his account into an account held by the defendant under her own name with the St George Bank. That was a different account to the one in which the initial amount of $55,000 had been deposited into.^[2]

7. [7]
   Over the next two years the plaintiffs saved a further $10,000. The first plaintiff gave evidence to the effect that on 9 May 2011 he withdrew $10,000 from the Suncorp Bank and paid it into a bank account at St George Bank.^[3] In paragraph 9 of the Statement of Claim it was pleaded that that account was held in the name of Gulselen Pty Ltd. That company was, most probably a corporate trustee established by the defendant for business purposes.^[4]

8. [8]
   In April/May 2011, the plaintiffs had moved out of the defendant’s residence but the first plaintiff continued to work in the shop at Chermside. According to the first plaintiff, but there is no document to support this, on or about May 2011 he and his wife sent the defendant a text message demanding the repayment of the amount of $95,000. By this time it was tolerably clear that tensions were creeping into the family relationship. According to the first plaintiff the defendant denied receiving the money. Relationships continued to deteriorate and on 8 March 2012 the plaintiffs’ then lawyers wrote to the defendant demanding the payment of $95,000 together with interest at 10% and, in the event that such money was not paid, legal proceedings would be commenced “immediately”.^[5]

9. [9]
   According to the first plaintiff, they did not receive any response to that demand. On 18 February 2013 the plaintiffs commenced proceedings seeking the return of the money on the basis that it was money had and received by the defendant or, in the alternative, was money held on trust by the defendant for their benefit.^[6]

10. [10]
    In what could only be described as unusual pleadings in defence, various allegations were made in respect of the three payments. As to the $55,000 transfer it was asserted that that amount was received by the defendant for the benefit of one Ibraham Sirinoglu (Halil) as part payment for an “unrelated debt”. According to the defence, the amount of $100,000 was owed to Halil by the first plaintiff’s cousin and his wife, Selma Sirinoglu (Selma). The alleged debt was said to arise out of accumulated rent and profits associated with the sale of wheat that had been grown on Halil’s land for 25 years in Turkey and which was part of a long standing estate dispute concerning real property situated in Turkey.^[7]

11. [11]
    In respect of the sum of $30,000 it was asserted on behalf of the defendant that she allowed the first plaintiff to use proceeds from the business to deposit into his account to “obtain a reasonable credit rating”. According to her defence the transfer of the sum of $30,000 was simply the return of that money owed by the first plaintiff to the defendant.^[8]

12. [12]
    As to the payment of $10,000 it was asserted that that was a part payment of a total debt of $22,500 owed to the defendant’s business. That debt was alleged to have arisen as a consequence of dishonest conduct on the part of the first plaintiff.^[9]

13. [13]
    None of those purported defences were supported by any affidavit material filed on behalf of the defendant and, as far as I can tell, not in any of the disclosed material which Mr Scott-Mackenzie described as being very limited.

14. [14]
    By May 2014 the plaintiffs were clearly suspicious that the defendant was likely to leave the jurisdiction, her partner already having returned to Turkey by that time. On 14 May 2014 an application was filed in this court in effect seeking to freeze certain assets of the defendant. That application failed according to Mr Scott-Mackenzie^[10] because the defendant filed affidavit material stating that she had no intention of leaving the jurisdiction due to family and business ties and that the imposition of a freezing order would adversely impact on her ability to efficiently run her business. 

15. [15]
    Unfortunately, as already indicated above, the defendant did in fact liquidate all her assets and left Australia for Turkey where she still remains. On 16 January 2015 the defendant’s then solicitors sought and were given leave to withdraw as solicitors on the record, and on 12 January 2015 Judge Rafter SC made orders including that the signature of the defendant on the request for trial date be dispensed with.

Discussion and conclusions

16. [16]
    There are some disquieting features of the plaintiffs’ case. Somewhat consistent with the defence the transfer of the $64,656.50 TL came from the bank account of Selma Sirinoglu and not that of the plaintiffs.^[11] However, according to the first plaintiff, he and his wife left their savings with Selma when they came to Australia but it was to be forwarded on when requested.

17. [17]
    That Selma might be trusted with that money is not inexplicable in circumstances where she was the wife of a first cousin of the first plaintiff. Also, the first plaintiff’s oral testimony^[12] was supported by the facsimile sent to Selma on 20 June 2008.^[13] On the other side of the coin there is no support for the bizarre circumstances of the debt as alleged by the defendant nor for the allegation that the funds were not transferred to Halil as debtor but instead directed to be paid into an account controlled by the defendant because of a debt owed by Halil to the K Maden “Family Trust”^[14]

18. [18]
    At first blush one might also wonder why two adults would put funds into the hands of a third party. However, that was explained by the first plaintiff as being as a consequence of the family relationship, the apparent business acumen of the defendant and it being a form of forced savings. What is not so clear is why, if all the savings were to be kept in one account, was $40,000 banked with St George into two different accounts under different names?

19. [19]
    Finally in this regard, the plaintiffs’ ability to save $30,000 in 13 months from his salary of $1,000 per week, gifts, presents and “governments payments”,^[15] even when paying rent of only $100 per week seems quite an achievement. Particularly so when it took them 2 years to save the next $10,000.^[16]

20. [20]
    However, in circumstances where none of the unusual defences raised are supported by any evidence and where the defendant, despite assertions to the Court to the contrary, left the jurisdiction, I can see no warrant for rejecting the evidence of the first plaintiff. In this context it is also of some relevance that the first plaintiff’s task was made more difficult because it was very obvious that English was not his first language.

21. [21]
    In Lipkin Gorman v Karpnale Ltd^[17] Lord Templeman cited with approval an earlier judgment of Lord Ellenborough C.J.^[18]:

“… But an action for money had and received is maintainable wherever the money of one man has, without consideration, got into the pocket of another. Here the money of the plaintiffs has got into the pocket of the defendant; and the question is whether this has been without any consideration. …”

22. [22]
    In King v Brown^[19] the High Court stated:

“The action for money had and received lay whenever the defendant had received money which in justice and equity belonged to the plaintiff and when nothing remained to be done except pay over the money. Even in the case of an express trust, if nothing remained to be done but pay over money, the trustee by his conduct, as for instance by admitting that he had money to be paid over, might make himself liable to this action. When money is paid by one person to another to be retained by him until the happening of a given event and no longer, an implied obligation arises to repay it when that event happens. This may be called a ‘trust’ in one sense. But it is none the less a legal obligation to pay the money, and may be enforced as such. I do not know any definition of debt that does not include such an obligation.” (References omitted).

23. [23]
    On balance, despite the reservations expressed above, I am sufficiently satisfied that the first plaintiff on behalf of himself and the second plaintiff paid into the bank accounts of the defendant the sum of $95,000 by way of three separate transactions. I also accept the first plaintiff’s evidence that the money was to be held by the defendant for the benefit of the plaintiffs. There is no probative evidence that the defendants gave any consideration for the payment of that money into her accounts.

24. [24]
    The amount of $95,000 was paid to the defendant and should have been returned to the plaintiffs on demand. It was not, and the plaintiffs ought to be entitled to recover those monies as money had and received.

25. [25]
    As was discussed in King v Brown in such circumstances it may well be that a “trust in one sense” arises. However, having regard to my determination on the plaintiffs’ claim of money had and received it is not necessary for me to finally decide the alternate claim.

26. [26]
    For the reasons given, the orders of the Court are:

1. The judgment of the Court is that the defendant pay to the plaintiffs the sum of $118,474.97, including the sum of $23,474.97 interest to 8 May 2015, and their costs of the proceeding to be assessed on the standard basis.