| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ALTERA -v- MONTGOMERY [2013] WADC 94 CORAM : FENBURY DCJ HEARD : 16-18 JANUARY 2013 DELIVERED : 19 JUNE 2013 FILE NO/S : CIV 3040 of 2011 BETWEEN : KEVIN ALTERA Plaintiff
AND
DEBRA MAY MONTGOMERY
Defendant
Catchwords: Contract - Gift or loan - Intention to create legal relations - Turns on own facts Legislation: Nil Result: Plaintiff's claim dismissed
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Representation: Counsel:
Plaintiff : Mr M Curwood
Defendant : Mr T C Young
Solicitors:
Plaintiff : Curwood & Co
Defendant : Birman & Ride
Case(s) referred to in judgment(s):
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
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The claim 1 The plaintiff (Mr Altera) is suing the defendant (Ms Montgomery) for the return of moneys he advanced to her, or others on her behalf, during their three year relationship. 2 Although there is some relatively minor dispute, in general terms, Ms Montogomery agrees that moneys were advanced to and received by her. The primary dispute is the nature of the payments. Mr Altera says each of the nominated payments was a loan to Ms Montgomery and not a gift as she asserts. Mr Altera says at the time of each payment he intended it to be a loan, interest free, and Ms Montgomery knew this and she knew he expected the loan to be repaid when she was able. 3 There was no documentation created on any of the occasions of payment that supports the view the moneys were being lent not gifted. The only contemporaneous documentation put in evidence was that which proves the movement of the moneys other than occasional post-facto emails from Ms Montgomery, expressing gratitude, love and a vague intention to repay. 4 The total sum involved is approximately $173,000. That sum was paid in varying amounts on about 40 occasions from 2008 to 2011.
Background 5 Neither Mr Altera nor Ms Montgomery was in a relationship when they met. Ms Montgomery lived in Tweed Heads near the border between Queensland and New South Wales. Mr Altera lived in Perth. 6 Each of these people spent short periods of time (a few days or weeks) staying with the other when business required, or when they so desired. However they did not live together in the sense of move in with each other, at any place, on a permanent basis. The evidence does not establish that they were in a de facto relationship. They did not live together as man and wife. 7 Mr Altera was involved in the boat building industry. His company built luxury motor yachts and sold them in Australia or overseas. 8 Ms Montgomery, when they met, was primarily occupied in starting up a glossy international yachting magazine. (Page 4)
9 Obviously these two people had similar business interests to the extent that they moved, and sought opportunity in, the world of international yachting and boating. Thus it was that they attended well known boat shows and exhibitions in America and Europe on occasions during their relationship. 10 Furthermore, and unsurprisingly, they sometimes 'piggybacked' personal holiday and leisure opportunities onto these 'business' occasions. 11 All of this was funded by Mr Altera. It included business class airfares and multistar hotel accommodations. 12 Mr Altera was a very generous lover, one might say, and I think he enjoyed showering the object of his affections with lavish expenditures. This is particularly so when the fact was, as Mr Altera well knew, that Ms Montgomery could not possibly have afforded to fund such a lifestyle herself. Mr Altera liked giving Ms Montgomery a taste of the high life. 13 On quite a number of occasions during the relationship, Ms Montgomery had personal financial problems that arose. These problems generally were that she was unable to pay her bills. 14 A pattern of Ms Montgomery telling Mr Altera about her expenses and troubles, and asking for his help in payment, developed. 15 Mr Altera most generously and kindly, obliged. He paid Ms Montgomery's bills when she requested him to do so. Most of these payments were made during the relationship; when these two people were in love with each other. 16 Again, overarching all of these payments, was the reality that Ms Montgomery had no means to pay the bills, she was looking to her lover to help, and he, wishing to please her, paid the bills. 17 Invariably a payment was received with gratitude by Ms Montgomery. She expressed this in her email communication. She appears to have felt guilty and somewhat inadequate at being so needy and occasionally she gave assurances to Mr Altera, after the advance that she would pay him back when she was able at some unnominated time. 18 However these assurances were always after the event when Ms Montgomery felt gratitude and relief. There was no evidence of any (Page 5)
occasion when any assurances were given by her about repayment before moneys were received or in order to secure the receipt of such moneys. 19 The evidence was that Mr Altera paid the bills because Ms Montgomery asked/begged him to do so. He wanted to help her; he loved her. 20 Of course, in the hindsight arithmetic, Ms Montgomery did very well financially in this relationship. She could not be described as deserving. But nor can she be criticised, I think, for accepting the largesse of an infatuated gentleman. She had an exciting and enjoyable experience for nearly three years for which she did not have to outlay any, or any significant, personal funds. 21 Needless to say, Ms Montgomery gave and received companionship. I have no doubt Mr Altera valued her company. They clearly both enjoyed the social opportunities that they had. However these matters do not have significance in the analysis because of the relevant legal principles to which I shall now turn.
Legal principles 22 For the monetary advances to be categorised as loans rather than gifts, an intention to create legal relations must be established. The courts attention was drawn to the decision of the High Court in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 in which it was stated that the issue of whether or not there was an intention to create legal relations must be decided on the basis of an objective assessment of the state of affairs between the parties, in a context in which they were dealing (their relationship), the subject matter of the agreement and the status of the parties to it. 23 As I have indicated there was no dispute about the frequency and amounts of moneys advanced by Mr Altera to Ms Montgomery. Mr Altera accepted the burden of proving there was an intent to create legal relations. 24 The sole question was whether Mr Altera intended to create legal relations. As I have already observed, there was very little, or no relevant documentation. The evidence related to oral conversations but, in the main, email traffic. (Page 6)
Intention to create legal relations 25 In my opinion a review of the contemporaneous email communications contraindicates an intention to create legal relations. 26 As I have mentioned, the relationship between the parties ran from early 2008 until early 2011. During that period on numerous occasions, Mr Altera advanced moneys to Ms Montgomery. According to the schedule of payments, and indeed the writ, the last payment was on about 10 December 2010. 27 As part of the circumstances of the case and perhaps a feature of the party's methodology, no payment was accompanied by any preliminary or contemporaneous documentation that suggested an intent to create legal relations. 28 On some occasions, in respect of some payments, Ms Montgomery, in conveying by email her appreciation for the payment, expressed a generalised intention to repay the money if she could, when she was able at sometime in the future, if her business ventures became profitable. 29 Post facto statements like that do not prove an intent to create legal relations. They are perhaps an acknowledgement of a moral obligation which is not sufficient. 30 It is also significant and supportive of his case that Mr Altera kept on making payments in spite of not receiving any repayment of those made earlier. 31 It is also significant that in the contemporaneous emails surrounding any particular payment, apart from there being a lack of evidence of any statement which suggested an intent to create legal relations, there were things said by both parties which suggest the contrary. Furthermore the sheer number of payments seems incompatible with Mr Altera's assertion each was a loan. 32 For instance, it is apparent from the email on page 24 of exhibit 1 dated 15 April 2008 that Mr Altera was quite infatuated with Ms Montgomery. Similarly, the emails on page 25 and then on page 27 in the email of 29 July 2008. From the preliminary exchanges it is clear that the parties are contemplating some quality time together overseas and in his email at 6.23 pm, Mr Altera says 'I will be more than happy to sort out your ticket … all I need are dates'. Mr Altera then sent the bold typed communications that appear in the following pages of exhibit 1. (Page 7)
33 Further communications appeared on 29 July which are reproduced at pages 36 and 37. At 10.54 am, Ms Montgomery, in speaking about the fees for a boat show application, states at page 37 'I personally want to be able to pay you back for this somehow'. 34 The fee being discussed is an application for membership of Superyacht Base Australia. The joining fee was $13,750. The tax invoice is reproduced at page 38. The amount paid towards it seems to have been $13,200. 35 Mr Altera paid for Ms Montgomery's membership in three instalments on 20, 22 and 25 August 2008.
Scott Schedule 36 Each of the parties, at the court's request, prepared a schedule of payments akin to a Scott Schedule. I do not think it necessary to deal with and make findings about each of the approximately 40 payments given the views I have expressed above. The most detailed of the schedules, prepared on behalf of Ms Montgomery with transcript references, is attached to these reasons. 37 As might be expected, each of Mr Altera and Ms Montomery has given sworn evidence in support of their respective cases. Mr Altera asserted that each advance was a loan and Ms Montgomery asserted that each was a gift, although she intended, if she was ever able, which she never was, to repay certain of those funds. 38 The evidence of each of the parties, though sworn, needs to be assessed against the background and context of the case. During most if not all of the critical period, the parties were in an intense romantic relationship. The relationship has faltered and died and now each seeks to be believed in giving evidence about matters when they do not love each other any more. Each has a powerful obvious need to be believed. Neither, based on oral evidence and alone, was utterly believable or unbelievable. 39 The contemporaneous written communications are much more probative than the sworn evidence in my view, both for what they contain and for what they do not contain. 40 By reference to the itemised payments dealt within the Scott Schedule prepared by counsel, I am unable to conclude that any of them, (Page 8)
for the moment apart from the payment on 14 December 2009, was made with an intention to create legal relations. 41 The payment on 14 December 2009 which was a lump sum of $50,000, does bear more detailed examination by reference to the transcript and the book of emails. 42 The relevant emails appear in the trial bundle at pages 104 – 111. 43 On page 104 Ms Montgomery sent an email on 30 November 2009 to Mr Altera in which she explained that she has a need for $50,000 which, somehow, is required to be paid to the 'administrator' somehow involved with her magazine by way of settlement of a dispute. She writes: I don't wish to have the magazine in any negative light so have agreed to the payment of 50K with the stipulation of the full history of the books from inception and the other parties who draw up the agreement in which the administrator/lawyer will make sure all is in order…and all my requirements are met and this issue to put to bed completely. 44 In response, apparently, Mr Altera writes on 30 November 2009 at 9.20 pm: 45 Then on page 106 there is an email from Mr Altera to Ms Montgomery 1.42 pm 8 December 2009: Thanks Babe You hang in there tough babe, just make sure you get what' yours then we will sort it, when you come to Perth you can meet Steve my accountant and he will look after you, I have known him a long time. To which Ms Montgomery replied about two hours later at 3.37 pm: (Page 9)
I can't wait to see you darling … love and miss you heaps … 46 On 14 December 2009 Mr Altera writes: Hi Babe Transfer is done, you should see it tomorrow. Just get it done babe…it would be nice to have a happy stress free christmas this year (TB108). 47 At TB109, 14 December 2009 Ms Montgomery to Mr Altera: … You know I'm going to meet with a lawyer and the accountant on Wednesday and will decide which way to move forward…either pay this guy out or sell the assets to another company. If I chose to sell the assets to another company would you be interested. I only want to do this with someone I totally trust naturally I would ask you first…if I did this it would have to be at arms length for me…confidentiality is the key here also…as I do want my company back at the end of the day on paper. If I chose to go this way I would have to give up my stake in the business until the dust settles and then get it back in say 12 months time on paper…until then I work for the new company however I'm not a Director of this and my position is totally removed for the time being…this in effect will only be on paper as nothing else would change… This is what the lawyer is advising me to do and in effect pay this guy almost nothing as the UBL company would be an empty shell to do with as he wanted ...sounds all good in principal [sic] however I just need to know this would be safe for the magazine and their [sic] would be no detriment effect on the magazine…the whole issue is keeping my magazine out of harms way…I do believe in this and in time I feel will be a great profitable business…its almost like a baby I have to protect in any way I can…does that sound strange to you? Anyway darling I thought I would let you know what is happening and your [sic] right I have to make my decision and go with it…I'm so up and down with my decision about this..it's like I have lost all control of this and I'm in a whirlwind and have a way out..it's just which way! If I don't take the 50k offer then it will be directed back to you of course. The accountant has said to just take the offer and get on and deal with the other shit after the fact…so will see what he says also… I thought I would put this to you and get your thoughts. (Page 10)
From what I have been told today I still may not get all the books…however that is the condition of the 50k so therein lies the problem. This is just on my mind and not knowing which way to move forward is frustrating for me to say the least. Either way I will make a decision on Wednesday and get on with it…D Day if you like. This has all happened because the Statutory demand was not lodged in time… That's all for now baby I just thought I would explain a little further…I really need to get this off my chest…and this is the best way for me to do this. 48 Mr Altera replied (TB109) on the same day: There is no issue with whatever you decide, if you want to pay the 50k that's fine if you decide on the other path I will do whatever you need. Just one thing who owns the name Ultimate Boating and Lifestyle magazine? I know the company is UBL Media but that don't mean shit really, just means a new email address and stuff. I have had to do a deal so I know what it feels like, you know that 50k is just change babe, so don't let that sway your decision. The main thing is really to get on with what you want to do and it might be easier for you to do the deal and forget it, all I ask is for a list of the names, I have a few comrades who will take care of the rest, you still might not get your books but they will pay dearly for that one way or an other. Rest easy babe and don't worry about a little bit of money that's easy to get really!! 49 Then the day on 15 December (TB111) Ms Montgomery to Mr Altera: Hi darling A quick question? If I use the 50K what are your repayment terms…darling I need to know so I can at least budget for this…I'm now getting a little nervous…it really is a lot of money for me anyway!. I would assume I set up another account and place your payments in their [sic] when I make money so it doesn't get touched… (Page 11)
Also will give you all the names you need without hesitation… 50 Mr Altera replied on the same day: There are no repayments terms babe, when all this is done we can sit down and look at everything together, given your last email I suggest that if you can get a clear path then just do the deal and forget the rest it will probably not cost a lot more in the long run. 51 Mr Altera's evidence-in-chief about this was at ts 59 – 61. 52 At ts 60: Q. What conversation, if any, did you have with Debra about what that payment represented? Was it something you expected back or was it - - -?---Yeah. You know, there was various - there was various emails, you know, where there was repayment terms talked about. I didn't have any repayment terms at that point. Debra was quite stressed about the whole thing. The last thing I was going to tell her is I'll lend you $50,000 if you pay back $1,000 a month for the next 50 months or whatever it was going to be. Basically I wanted her to get what she'd worked for and have the opportunity to further the magazine along, build up its client base, its advertising base and I said to Debra that, look, we'll just sort it all out altogether in one hit later on. Q. So by that did you want the money back or not?---Yes, I was expected at some point to - that that money would be repaid. Q. But did you say - was that discussed?---Yeah, it was. We actually discussed that a number of times and we discussed that, in fact, with Stephen McCloud, my accountant. 53 In cross-examination at ts 82 Mr Altera said he believed the $50,000 came from 'my Hong Kong bank account' which he then said was 'my company's being a company called 'KRC'. He said that the $50,000 was recorded in the books of the company as a loan. There was no documentary evidence tendered. 54 Mr Altera was pushed in cross-examination and at ts 130 he said: I don't think the repayment terms at that point in time would have swayed her decision too much. They would have been, you know, she was borrowing the $50,000 off me, I've - I'd told her before that, you know, basically I'd lend her the money and then when things came good and I'm sure they would that she could - we could sort all this out. That's why we went to the accountant. (Page 12)
55 And then later at ts 133. Q. At the time you advanced that money, there was no agreement as to what those repayment terms would be?---I had no repayment terms. I stated that in the email. I wasn't expecting to get paid back in two weeks. I knew it was going to take some time. Q. As with all of these transactions, as much time as Debra needed to get on her feet to be able to repay you?---That's correct. Q. And that was fine by you because you were in a long term partnership with her?---No, it was fine because I trusted her that she would do what she said at the end of the day. Q. You say you met with Steve in 2000 and – March 2010?---It was on around about that time. I can't actually remember the exact date. Q. You discussed the deed of acknowledgement of debt?---That's correct. Q. Your evidence was that deed of acknowledgement of debt was supposed to cover $50,000 and some other transactions?---It was supposed to cover all the moneys loaned to – up to that point. Q. There was no agreement as to what other transactions that deed would include/---No, the deed would have stated in that deed. Q. That deed never materialised, did it, Mr Altera?---No, I was travelling quite heavily at that point in time. I didn't spend much time actually really in Australia. Debra and I didn't see other from about May till September. There was ongoing payments made to Debra during that time. It – we'd all agreed that there would be a deed of acknowledgement arranged, and there was really no date put on to when that would be finalised. Q. So you weren't concerned in December 2009 as to when this amount would be repaid?---I wasn't. Q. You weren't concerned in March 2010?---I wasn't. Q. You weren't concerned at all throughout 2010?---I wasn't. Q. The first time you became concerned was when this relationship ended?---Actually when I first …my recollection of all this is after the relationship ended, I thought it would be a good time to strike the deed of acknowledgement at that point. … . Q. There was never any written loan agreement between the two of you?---No. (Page 13)
56 On the basis of the written and oral evidence in this matter I am unable to conclude that Mr Altera had an intent to enter into legal relations when he gave the $50,000 to Ms Montgomery. He thought she would pay it back when she was able. He hoped she would pay it back. It appears to be common ground that Ms Montgomery has never been able to pay it back and is still not able to do so. 57 It seems to me that Ms Montgomery has a significant moral obligation to return the money but not a legal one or one that is legally enforceable. 58 It is also to be observed that some of the payments, including the $50,000 payment but also the $13,200 for membership of Superyacht Base Australia were payments that would normally be expected to be tax deductable for Ms Montgomery and/or her business. 59 Yet there is no evidence at all that she ever claimed the deduction nor did she tell her accountant to do so (see ts 173 – 175). 60 I am unable to reach a conclusion in respect of any of the payments alleged that they were made to Ms Montgomery by Mr Altera in circumstances where he then intended to enter into legal relations. 61 Counsel for Mr Altera submitted that in the event that the assertion that the moneys were a loan failed, as in my view it must fail, and that there was no binding legal agreement to repay, then, as an alternative claim, the payments 'constitute money had and received by the defendant "for" the use of the plaintiff' (par 2(E) of the statement of claim). Counsel supported this claim in his written submissions 'on legal principles' from par 12 and referred to a number of authorities which relate to issues of unjust enrichment. 62 As Mr Curwood asserted a case based upon unjust enrichment must involve 'a qualifying or vitiating fact such as mistake, duress, illegality or failure of consideration, by reason of which the enrichment of the defendant is treated by the law as unjust'. 63 There is no doubt that Ms Montgomery was significantly 'enriched' by Mr Altera's repeated advancing to her of sums of money totalling more than $170,000. Mr Altera however gave those moneys to Ms Montgomery. I cannot see how it can be said that it would therefore be 'unjust' for her to retain them as she has done. (Page 14)
64 In my view Mr Altera has failed to prove his case. His claim should be dismissed. (Page 15)
IN THE DISTRICT COURT OF WESTERN AUSTRALIACIV 3040 of 2011
HELD AT PERTH
Between:
KEVIN ALTERA Plaintiff
and
DEBRA MAY MONTGOMGERY Defendant
Document date:
Filed on behalf of:
Filing date: | 31 January 2013
The defendant
31 January 2013 | | Prepared by: Birman & Ride 3/16 Irwin Street PERTH 6000 | Contact: Samuel Pack 9220 4403 [email protected] Please quote 5004.1 |
_____________________________________
In this Scott Schedule:
•Bundle means the Trial bundle tendered as Exhibit 1;
• Claim means the Plaintiff's amended statement of claim dated 14 January 2013;
• Defence means the Defendant's substituted statement of defence dated 16 January 2013;
• Debra means Debra Montgomery;
• Kevin means Kevin Altera;
• McCloud means Stephen McCloud;
• Papers means the Amended Papers for the judge filed 15 January 2013;
• XNC means Examination in chief; and
• XXN means Cross examination.
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| Date | Amount $ | Description | Pleading reference | Transcript reference | Bundle page reference | Pf comment | Df comment | | 19 Aug 2008 | $8,618.89 | Airfares paid for 2008 Monaco Boat Show | Claim paras 1 – 1B, 1E-1F (Papers pp 3-6), Defence paras 2, 3.3, 5-6. | Kevin XNC: 51 Kevin XXN: 92-101 Debra XNC: 169-170, 181-182, 190-191 Debra XXN: 222-225, 227-230, | 20-21, 23, 49-53, 56-58, 60-61, 87 | First overseas holiday as a couple. Debra able to fly economy. Kevin purchased business class airfares without discussion of repayment. Export marketing grant not discussed until at least January 2009 when UBL Magazine issue 3 exported. | | 20 Aug 2008 - 25 Aug 2008 | 13,200.00 | SYBA membership fee | Claim paras 1 – 1D (Papers pp 3-5), Defence paras 2, 5-6. | Kevin XNC: 50-51 Kevin XXN: 86-92, Debra XNC: 168-169, 172-175, 190, Debra XXN: 221-222, 226-227, 230-231 | 38, 47-48, 87 | Kevin's evidence inconsistent with plea. No discussion of repayment, paid at Kevin's insistence and direction. Mutual benefit to Kevin (and his related entities) and Debra (and her related entities). Part of Kevin's support for Debra and UBL Magazine. No evidence Debra claimed invoice as a business expense. | (Page 17)
| Date | Amount $ | Description | Pleading reference | Transcript reference | Bundle page reference | Pf comment | Df comment | | 10 Mar 2009* | 2,000 | Payments of $11,000 between March 2009 and 27 July 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (a) (Papers p 10), Defence paras 3-6. | Kevin XNC: 56 Kevin XXN: Debra XNC: 177, 191 Debra XXN:231-232 | 73-74, 229 | Advance not pleaded as recoverable. No claim by plaintiff for repayment. Counsel's attempt to suggest an administrative error not confirmed by Kevin's evidence. Other advances not claimed for. No discussion of repayment. Kevin's evidence of repayment terms inconsistent with pleadings and particulars. | | 26 Mar 2009 | 2,000 | Payments of $11,000 between March 2009 and 27 July 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (a) (Papers p 10), Defence paras 3-6. | Kevin XNC: 56 Kevin XXN: Debra XNC: 177, 191 Debra XXN:231-232 | 76 | No discussion of repayment. Kevin's evidence of repayment terms inconsistent with pleadings and particulars. | | 14 Apr 2009 | 2,000 | Payments of $11,000 between March 2009 and 27 July 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (a) (Papers p 10), Defence paras 3-6. | Kevin XNC: 56 Kevin XXN: Debra XNC: 177, 191 Debra XXN:231-232 | No discussion of repayment. Kevin's evidence of repayment terms inconsistent with pleadings and particulars. | (Page 18)
Date | Amount $ | Description | Pleading reference | Transcript reference | Bundle page reference | Pf comment | Df comment | | 27 Apr 2009 | 1,000 | Payments of $11,000 between March 2009 and 27 July 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (a) (Papers p 10), Defence paras 3-6. | Kevin XNC: 56 Kevin XXN: Debra XNC: 177, 191 Debra XXN:231-232 | 82 | No discussion of repayment. Kevin's evidence of repayment terms inconsistent with pleadings and particulars. | | 30 Apr 2009 | 1,000 | Payments of $11,000 between March 2009 and 27 July 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (a) (Papers p 10), Defence paras 3-6. | Kevin XNC: 56 Kevin XXN: Debra XNC: 177, 191 Debra XXN:231-232 | 83 | No discussion of repayment. Kevin's evidence of repayment terms inconsistent with pleadings and particulars. | | 14 May 2009 | 1,000 | Payments of $11,000 between March 2009 and 27 July 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (a) (Papers p 10), Defence paras 3-6. | Kevin XNC: 56 Kevin XXN: Debra XNC: 177, 191 Debra XXN:231-232 | 85 | No discussion of repayment. Kevin's evidence of repayment terms inconsistent with pleadings and particulars. | | 1 Jul 2009 | 500 | Payments of $11,000 between March 2009 and 27 July 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (a) (Papers p 10), Defence paras 3-6. | Kevin XNC: 56 Kevin XXN: Debra XNC: 177, 191 Debra XXN:231-232 | 86 | No discussion of repayment. Kevin's evidence of repayment terms inconsistent with pleadings and particulars. | (Page 19)
Date | Amount $ | Description | Pleading reference | Transcript reference | Bundle page reference | Pf comment | Df comment | | 16 Jul 2009 | 500 | Payments of $11,000 between March 2009 and 27 July 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (a) (Papers p 10), Defence paras 3-6. | Kevin XNC: 56 Kevin XXN: Debra XNC: 177, 191 Debra XXN:231-232 | No discussion of repayment. Kevin's evidence of repayment terms inconsistent with pleadings and particulars. | | 27 Jul 2009 | 1,000 | Payments of $11,000 between March 2009 and 27 July 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (a) (Papers p 10), Defence paras 3-6. | Kevin XNC: 56 Kevin XXN: Debra XNC: 177, 191 Debra XXN:231-232 | No discussion of repayment. Kevin's evidence of repayment terms inconsistent with pleadings and particulars. | | 12 Aug 2009 | 5,000 | Payment of $25,000 between 12 August 2009 and 21 August 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (b) (Papers pp 11-12), Defence paras 3-6. | Kevin XNC: 55-56 Kevin XXN: 79,119-121 Debra XNC: 182-184, 192, Debra XXN: 232-233 | Kevin wanted to pay Debra's debts following increase in salary. No discussion of repayment. | | 18 Aug 2009 | 7,500 | Payment of $25,000 between 12 August 2009 and 21 August 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (b) (Papers pp 11-12), Defence paras 3-6. | Kevin XNC: 55-56 Kevin XXN: 79,119-121 Debra XNC: 182-184, 192, Debra XXN: 232-233 | Kevin wanted to pay Debra's debts following increase in salary. No discussion of repayment. | (Page 20)
Date | Amount $ | Description | Pleading reference | Transcript reference | Bundle page reference | Pf comment | Df comment | | 19 Aug 2009 | 7,500 | Payment of $25,000 between 12 August 2009 and 21 August 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (b) (Papers pp 11-12), Defence paras 3-6. | Kevin XNC: 55-56 Kevin XXN: 79,119-121 Debra XNC: 182-184, 192, Debra XXN: 232-233 | Kevin wanted to pay Debra's debts following increase in salary. No discussion of repayment. | | 21 Aug 2009 | 5,000 | Payment of $25,000 between 12 August 2009 and 21 August 2009 | Claim paras 2-2E (Papers pp 6-9), Particulars para (b) (Papers pp 11-12), Defence paras 3-6. | Kevin XNC: 55-56 Kevin XXN: 79,119-121 Debra XNC: 182-184, 192, Debra XXN: 232-233 | Kevin wanted to pay Debra's debts following increase in salary. No discussion of repayment. | | 31 Aug 2009 | 5,756.19 | Airfares for 2009 Monaco Boat Show | Claim paras 2-2E (Papers pp 6-9), Particulars para (e) (Papers p 13-14), Defence paras 3-6. | Kevin XNC: 56-57 Kevin XXN: 117-119, 122-123 Debra XNC: 185-186, 190-191 Debra XXN: 234 | 90-92 | Kevin purchased business class airfares without discussion of repayment. Debra able to fly economy. | | 8 Sep 2009 | 2,500 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195 Debra XXN: 234 | 98 | No discussion of repayment. | (Page 21)
Date | Amount $ | Description | Pleading reference | Transcript reference | Bundle page reference | Pf comment | Df comment | | 6 Oct 2009 | 7,829.92 | Airfares for 2009 Fort Lauderdale boat show | Claim paras 2-2E (Papers pp 6-9), Particulars para (e) (Papers p 13-14), Defence paras 3-6. | Kevin XNC: 57-58 Kevin XXN: 119, 123 Debra XNC: 185-186, 190-191 Debra XXN: 234 | 96-97, 99 | Kevin purchased business class airfares without discussion of repayment. Debra able to fly economy. | | 10 Nov 2009** | 4,500 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124, 147-148 Debra XNC: 195 Debra XXN: 234 | 103 | No discussion of repayment. | | 26 Nov 2009 | 2,500 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195 Debra XXN: 234 | No discussion of repayment. | | 7 Dec 2009 | 2,500 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195 Debra XXN: 234 | No discussion of repayment. | (Page 22)
Date | Amount $ | Description | Pleading reference | Transcript reference | Bundle page reference | Pf comment | Df comment | | 14 Dec 2009 | 50,000 | Lump sum payment from HK to fund Legal | Claim paras 2-2E (Papers pp 6-9), Particulars para (g) (Papers p 14-15), Defence paras 3-6. | Kevin XNC: 59-61 Kevin XXN: 82-83, 125-136, 148 Debra XNC: 192-194 Debra XXN: 211-218 | 104-113 | Kevin explicitly denied that there were repayment terms. No legally binding agreement to repay. Considered to be a joint asset ("We have the cash") for use in a joint endeavour. | | 15 Mar 2010 | 2,500 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195 Debra XXN: 234 | No discussion of repayment. | | 30 Mar 2010 | 2,500 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195 Debra XXN: 234 | No discussion of repayment. | | 16 Apr 2010 | 1,720.03 | Paid to Lindisfarne Anglican School for the defendant's daughter's school fees | Claim paras 2-2E (Papers pp 6-9), Particulars para (h)(i) (Papers p 15), Defence paras 3-6. | Kevin XNC: 62 Kevin XXN: 76-77 Debra XNC: 166-167, 178, 195-196 Debra XXN: 235--236 | 125, 128-129, 234 | Relies upon the email at p 125 of the Bundle | Kevin wanted Holly to remain in her original school, contributed to school fees as part of the de facto / life partner arrangement. | (Page 23)
Date | Amount $ | Description | Pleading reference | Transcript reference | Bundle page reference | Pf comment | Df comment | | 26 Apr 2010 | 2,500 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195, 197 Debra XXN: 234 | No discussion of repayment. | | 24 May 2010 | 2,000 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195, 197 Debra XXN: 234 | No discussion of repayment. | | 22 Jun 2010 | 1,000 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195, 197 Debra XXN: 234 | No discussion of repayment. | | 8 Jul 2010 | 2,500 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195, 197-198 Debra XXN: 234 | 130 | No discussion of repayment. | (Page 24)
| Date | Amount $ | Description | Pleading reference | Transcript reference | Bundle page reference | Pf comment | Df comment | | 20 Jul 2010 | 2,000 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195, 198-200 Debra XXN: 234 | 132-134 | No discussion of repayment. | | 29 Jul 2010 | 1,000 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195, 200 Debra XXN: 234 | No discussion of repayment. | | 1 Sep 2010 | 15,808.28 | Airfares for 2010 Monaco and Fort Lauderdale boat shows | Claim paras 2-2E (Papers pp 6-9), Particulars para (f) (Papers p 14), Defence paras 3-6. | Kevin XNC: 62-63 Kevin XXN: 139 Debra XNC: 190-191 Debra XXN: 234-235, 237-238 | 135-138 | Kevin purchased first class airfares without discussion of repayment. Debra able to fly economy. | | 8 Sep 2010 | 1,500 | Payments of $29,500 between 8 September 2009 and 8 September 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (c) (Papers p 12), Defence paras 3-6. | Kevin XNC: 58-59 Kevin XXN: 124 Debra XNC: 195 Debra XXN: 234 | 139-140 | No discussion of repayment. | (Page 25)
Date | Amount $ | Description | Pleading reference | Transcript reference | Bundle page reference | Pf comment | Df comment | | 23 Sep 2010 | 1,952.84 | Hotel accommodation at Fairmont Hotel Monte Carlo for a writer engaged by the Defendant, Tom Isitt | Claim paras 2-2E (Papers pp 6-9), Particulars para (h)(ii) (Papers p 15), Defence paras 3-6. | Kevin XNC: 63-64 Kevin XXN: 139-141 Debra XNC: 187-188, 191, Debra XXN: 235 | 236 | At the Defendant's request made on or about 23 Sep 2010 | Paid at Kevin's initiative and insistence – Debra already had alternate arrangements in place. No request or discussion of repayment. | | 8 Dec 2010 | 3,500 | Payment of $5,000 between 8 and 10 December 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (d) (Papers pp 12-13), Defence paras 3-6. | Kevin XNC: 64-65 Kevin XXN: 142-144, 149 Debra XNC: 201-202 Debra XXN: 238-239 | 144, 146, 150-152, 154-160 | No discussion or intention of repayment. Transferred more than discussed in any event. | | 10 Dec 2010 | 1,500 | Payment of $5,000 between 8 and 10 December 2010 | Claim paras 2-2E (Papers pp 6-9), Particulars para (d) (Papers pp 12-13), Defence paras 3-6. | Kevin XNC: 64-65 Kevin XXN: 142-144, 149 Debra XNC: 201-202 Debra XXN: 238-239 | 144, 146, 150-152, 154-160 | No discussion or intention of repayment. Transferred more than discussed in any event. | Total: $175,386.15 * Assumes pleaded payment on 20 March 2009 refers to payment on 10 March 2009 (see transcript pp 231-232)
** Assumes payment on 10 November 2009 was $4,500 not $5,000 as pleaded (see Bundle p 103)
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