SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

A167/10

		JUDGMENT
		in causa
		MISS MARIA MERCEDES DIAZ FERNANDEZ, residing at 11 Corunna Place, Bridge of Don, Aberdeen, AB23 8DA.
		Pursuer
		against
		PAUL ODIACHI, residing at 304 Queen's Road, Aberdeen, AB15 8DT.
		Defender _________________________

Act: Murray

Alt: McKenzie

ABERDEEN, 23 March 2011.

The sheriff, having resumed consideration of the cause, Finds the following facts to be admitted or proved.

(1) The pursuer is Miss Maria Mercedes Diaz Fernandez. She is 35 years of age, a Venezuelan national and is employed by Shell UK Aberdeen as an environmental specialist.

(2) The defender is Paul Odiachi. He is 43 years of age, is a United States citizen and is employed by Shell UK Aberdeen as an engineer. He is now domiciled in Aberdeen.

(3) The Sheriff Court of Grampian Highland and Islands at Aberdeen has jurisdiction.

(4) In 2007, both parties were resident in Venezuela and in the employment of Shell Venezuela S.A.

(5) As part of the defender's employment benefits package, he had an allowance which entitled him to exchange local currency for United States Dollars, being the currency of his home country.

(6) The pursuer had no equivalent entitlement.

(7) When in Venezuela, the parties were well known to one another and socialised together. At that time, the currency in Venezuela was Bolivares. The exchange rate and limits for currency transactions was strictly controlled by the country's central bank. The alternative method of currency exchange involved the purchasing of bonds, which method provided a very poor rate of exchange.

(8) The defender advised the pursuer of his currency exchange benefit and offered to assist her with currency exchange in respect of any excess allowance available to him.

(9) In 2006, the defender carried out a small currency exchange for the pursuer. She transferred Venezuelan currency to his bank account and he handed her, in cash, the appropriate US Dollar equivalent.

(10) The defender banks with People's Trust in Houston, Texas, USA. Document production 6/3/1 is a heavily redacted photocopy of his bank statement dated 31^st May 2007. Document production 6/2/2 is a redacted photocopy of duplicate check No. 216 which duplicate has been completed by the defender.

(11) In or around mid-2007, Shell Venezuela S.A. was nationalised and the defender, after due application, was successful in obtaining a transfer to a position with Shell UK Limited in Aberdeen. The pursuer also sought transfer and was ultimately successful in obtaining a transfer to Shell UK Limited in Aberdeen. The defender was to take up his new post in August 2007. The pursuer was to take up her new post in December 2007.

(12) To facilitate her move, the pursuer sold her flat and motor car and sought a way to transfer the proceeds of sale to the United Kingdom. The defender offered to assist the pursuer with this task to the extent of any surplus allowance available to him.

(13) It was agreed between the parties that the pursuer would transfer monies to his bank account which he would exchange for US Dollars or Great British Pounds. It was agreed that the defender would pay the appropriate sum to the pursuer after both had transferred to Aberdeen.

(14) The initial sum agreed between the parties was 20,000,000 Bolivares, which sum the pursuer transferred by electronic transfer to the bank account of the defender on 12 July 2007.

(15) The defender then confirmed that he could facilitate the exchange of a further sum of 30,000,000 Bolivares. On 19 August 2007, the pursuer transferred by electronic transfer the sum of 19,000,000 Bolivares to the bank account of the defender. On 29 August 2007, the pursuer transferred by electronic transfer the sum of 11,000,000 Bolivares to the bank account of the defender. The total sum transferred by the pursuer to the defender was 50,000,000 Bolivares.

(16) Both parties were present at the defender's flat when the final transfer was made on 29 August 2007. The pursuer was unable to gain electronic access to her second bank account using office facilities and required to use the defender's internet connection for that purpose. Her earlier payments had been facilitated using the office internet connection and a different bank account.

(17) The US Dollar equivalent of 50,000,000 Bolivares calculated at the rate applicable between the defender and his employers was $23,255.81.

(18) The defender has made no payment to the pursuer in respect of this transaction.

(19) In the interim period, the pursuer has made a number of attempts to obtain payment from the defender. He initially stalled such attempts and then denied any liability.

Finds in fact and in Law

(1)         The parties contracted whereby the defender would exchange 50,000,000 Venezuelan Bolivares for United States Dollars in the sum of $23,255.81.

(2) Payment of said sum remains outstanding and due to the pursuer.

Accordingly,

Sustains pursuer's plea-in-law 1; Repels defender's plea-in-law 3

And therefore,

Grants decree against the defender for payment to the pursuer of the sum of TWENTY THREE THOUSAND TWO HUNDRED AND FIFTY FIVE UNITED STATES DOLLARS AND EIGHTY ONE CENTS ($23,255.81) with interest thereon at the rate of eight per centum per annum from 5 April 2010 until paid or the Sterling equivalent of said sum and interest calculated at the date of payment or at the date of extract, whichever is the earlier;

Finds the defender liable to the pursuer in the expenses of this action as taxed; Allows an account thereof to be lodged and remits the same, when lodged, to the auditor of court to tax and report.

NOTE

[1] This is an action of payment raised in March 2010. After sundry procedure, it called before me for a proof on 8 February 2011. The defender was ordained to lead at the proof. The defender gave evidence on his own behalf and was supported by affidavit evidence from Hans Mann. The pursuer gave evidence on her own behalf. Although there are certain factual complexities in this action, it falls to be decided entirely on the issue of credibility and reliability of the parties. There is no dispute about the nature and value of the contract entered into by the parties. The dispute relates to whether or not the defender paid the agreed sum to the pursuer. He claims that he did. She claims that he did not. One of the parties is being truthful, the other is not.

Defender's submission

[2] The solicitor for the defender submitted that the court should find, on the balance of probability, that the defender had repaid the sum due to the pursuer. He referred to Melville v Ritchie, Aberdeen Sheriff Court, 9 June 2010 wherein it was stated that the appropriate approach in determining where the balance of probability lies is to look at how inherently probable is the scenario put forward by the party who has the onus of proof. He accepted that onus lay with the defender. The facts were not disputed. He outlined his proposed findings in fact. He accepted that the only fact in dispute was whether or not the pursuer had been repaid as claimed by the defender. He submitted that this was not a case where either party could be mistaken. One was telling the truth, the other lying. The defender's position had been consistent throughout the proceedings, starting with the terms of his letter to the pursuer's agent (production 5/1/5). He had given evidence about the type of transaction being undertaken, that he had undertaken previous similar transactions, albeit for smaller sums, and that he had held the money in cash, which statement was supported by the evidence of his bank statement. His evidence about where he had kept the cash in his flat showed his honesty. He could have said the cash was held in a large safe, which position would have been more difficult to challenge but had been honest about the true position. He was supported by the signed affidavit from his line manager which it was accepted was of limited evidential value but vouched his good character and the unlikeliness of his coming to court to tell lies.

[3] On the other hand, the pursuer's evidence was clearly not plausible. The e-mails to which reference had been made showed that she had been friendly with the defender prior to coming to Scotland. The latter e-mails made no reference to a requirement for payment of money and indeed that on 1 July 2008 indicated that she had something to give the defender. This was a strange inclusion when she was seeking money from him. It was not credible that she, as a responsible employee, would need support before asking the defender for repayment. Her suggestion that she was not sure of her rights in the matter was simply not plausible. She appeared to retain meticulous records, being able to provide copies, but did not know what currency was to be repaid to her. The defender had confirmed that the usual practice was for payment by cash or cheque in return for the bank transfer and there had been no plausible reason demonstrated for that procedure not to be followed. The purpose of the transaction being in the defender's flat was so that he could witness it being done and then pay over the money. The pursuer was unclear on the terms of repayment. It was unlikely that payment would have been agreed in Great British Pounds. There was no such agreement. The pursuer had already been paid.

[4] He submitted that the court should draw a conclusion that the pursuer was not credible and reliable. Her credibility was not enhanced by the delay of two years before raising her claim. The pursuer's assertion that the third payment had been made to the defender from a different bank had not been supported by any evidence. He submitted that the court should follow the proposed findings in fact, adding that it should be accepted that the pursuer had withdrawn $20,000 with the intention to use it for holidays, that his holiday plan had changed when he required to find new employment, that he had made the payment of $23,250 to the pursuer, with the pursuer agreeing that he need not make the further payment of $5.81 and that there was therefore no further requirement for the defender to make a payment to the pursuer. He submitted that the court should find in favour of the pursuer and having done so should award expenses in her favour.

Pursuer's submission

[5] The pursuer's solicitors emphasised that the burden of proof lay with the defender, that the money had been paid over. He questioned the credibility of the defender's position that he had withdrawn 20,000 US Dollars in May for the purpose of holidays, brought that back to Venezuela in cash and then held that in a box in a container in his flat for a period of three months. The flat which had previously been broken into. He pointed out that although the pursuer claimed that the scheme involved payment of the dollar equivalent immediately, that had not happened at the first point of transfer. It was accepted that the pursuer had delayed raising her action. She felt emotionally unable to do so, partially through lack of support and partially through embarrassment. She felt that her trust of, and friendship with, the defender had been abused. She now chose to pursue the claim as a matter of principal. With reference to the quoted case of Melville v Ritchie, the defender's evidence had not been credible. It lacked specification and the dates did not properly match. The bank statement lodged by the defender could be anything and was not helpful. Similarly, the duplicate check, with a date different to the bank statement, was no more than a worthless piece of paper which had been written on by the defender. There was absolutely no evidence to support the position that the defender had paid the pursuer. Irrespective of the issue of credibility, he admitted that the sum was due and had no proof that it was repaid. He submitted that the court should find in favour of the pursuer. In that event, the pursuer should be awarded expenses as taxed.

My decision

[6] In their presentation and evidence to the court, both parties appeared to me to be respectable individuals, each holding good employment with a major oil company and each, given their respective transfers to Aberdeen, valued employees of that company. The affidavit evidence from Mr Mann confirms that in the case of the defender. It is unfortunate therefore that this case comes before the court on the basis that one or other of these individuals is not telling the truth.

[7] There can be no certainty in this type of case. In my opinion, it is appropriate for the court to assess both accounts in order to establish where lies the balance of probability. Thereafter, and in the event that it is not possible to find one party has established his position on the balance of probabilities, then the party who has the onus of proof will fail.

[8] I cannot be certain as to which of the two differing versions of events is correct. I have, however, come to the view that the pursuer's version is inherently more probable than the defender's. I have therefore found in her favour. The same result would have been achieved had I been unable to decide between the two versions and the matter had then proceeded on the issue of onus alone.

[9] I found certain elements of the defender's position to be unsatisfactory. I think it incredible that he would conduct a transaction of this nature and value without obtaining a receipt for the money which he claims to have paid over. In evidence, he accepted that to have been a mistake. I found his evidence about the withdrawal of cash from his account to be unsatisfactory. The amount involved appears far in excess of that required for a reasonable single person's holiday. The document purported to be his bank statement and the document purported to be a copy check are both completely unsatisfactory. The first of these may well be a copy bank statement but it has been so heavily redacted that no sensible conclusion can be drawn from its remaining contents. The second document, the duplicate check, has also been partially redacted, has a different date from that on the bank statement and appears to have writing suggesting that the sum withdrawn may have been other than $20,000 only. I agree with the pursuer's agent that it is certainly strange that the defender would hold such a sum of money in such an insecure way over a period of three months, but I do not take the view that he necessarily did not do so.

[10] The most telling point against the credibility of the defender is his evidence about the transactions themselves. It was his clear evidence that the way in which these transactions were normally undertaken involved payment of the cash equivalent on transfer of the Venezuelan currency by currency exchange or to a bank account. I was a little surprised that there was a normal way of undertaking what, on any view, is an irregular transaction. He could not adequately explain why, given that he claimed to have the cash readily available, he had not made an appropriate cash payment to the pursuer in return for the first payment on 12 July 2007. It is to be remembered that at that point although there was some suggestion that he might be able to assist further there had been no specific agreement for any further transaction to be undertaken. Secondly, when the second tranche of the second payment was made to him by transfer taking place from his flat, he then claimed to have made the full payment due notwithstanding that he would not have known at that point whether the transaction had necessarily been successful and the payment actually received by his bank. There was no evidence that he had taken any step to check that position before, as he claimed, paying over the full sum. On his version the pursuer would have required and intended to carry $23,500 in cash on a lengthy journey and through security checks. These are significant improbabilities in his position rendering his account less probable.

[11] By contrast, the pursuer's position was more credible. She had not received an immediate payment for the first transfer because that was not expected until she had moved abroad. She had gone to the pursuer's flat to make the final payment because she required to do so to get the appropriate internet connection. She had given no receipt as she had received no money. The fact that she delayed in taking formal proceedings against the defender is certainly a point against her position. I do, however, accept her explanation for that. She had not expected there to be any difficulty in receiving payment. When it became apparent that there was to be such a difficulty, she found herself in a difficult and embarrassing situation. I can understand that she did not want to become embroiled in a dispute with a more senior employee of the same company. I can understand that she found the whole situation acutely embarrassing. I can understand and accept that she chose to seek to avoid confrontation. I thought her evidence about the efforts she had made, including her explanation about why she had sought to engage the defender by offering to return a small item of property, to be entirely credible. I do accept that an individual in her position would feel vulnerable and reluctant to pursue a claim such as this without support from others. I also considered her evidence that she would not have wished to carry such a substantial amount of cash out of Venezuela to be entirely credible.

[12] The defender has not satisfied me on the balance of probabilities that he made the payment to the pursuer. I prefer the evidence of the pursuer who has satisfied me that the payment was not made. I accordingly have found in favour of the pursuer.

[13] Both parties sought an award of expenses in the event of their being successful. The pursuer has been successful and accordingly I have awarded expenses in her favour.

Sheriff of Grampian Highland and Islands at Aberdeen.

ABERDEEN, 23 March 2011.