Antoinette v Burford No. DCCIV-02-432

Jeanne Marie Monique Antoinette v Rodger David Burford
[2003] SADC 94
Judge Clayton
Civil

The circumstances giving rise to this claim extend back to 1990.
The plaintiff claims an amount which is the balance of eight cheques which she paid to the defendant. The defendant denies that some payments were made and asserts that the other payments were gifts. The plaintiff, on the other hand, says that the amounts were paid to the defendant to be invested on her behalf. The plaintiff asserts that the defendant was fiduciary. In the alternative, she claims there was a contract pursuant to which he was obliged to invest the money and she also makes a claim based on assumpsit.
The plaintiff was born on 25 September 1941 in Mauritius. She came to Australia in 1968 and settled in Perth. She obtained work in clerical positions, first with the Egg Marketing Board and then with the Taxation Department. In 1974 she suffered a knee injury which has never resolved. She requires the use of a walking stick. Associated with that injury, she has suffered depression. In 1986 she was diagnosed as a manic depressive and has received psychiatric treatment. She takes medication for her depression.
The plaintiff’s medical condition is relevant to this action in a number of ways. First, the plaintiff has received a lump sum by way of compensation which forms part of the monies paid to the defendant. Secondly, there was a suggestion by her counsel that the plaintiff’s mental condition made her more vulnerable to the influence of the defendant. I can dispose of that suggestion quickly. There is no reliable evidence of any lack of capacity. I do accept that because of the loneliness of the plaintiff, she may have been more vulnerable than others to an offer of friendship. While that may explain apparently naïve conduct on the part of the plaintiff, I am not satisfied that the plaintiff was not responsible for her actions or that there was any undue influence on the part of the defendant. The evidence shows that the plaintiff was capable of managing her affairs and made informed decisions.
The defendant described the plaintiff in the following way :
“She would often ring me and spend up to three or four hours at a time talking to me. She seemed a lonely person and I was glad to offer my friendship. I used to get a little bit sick of her telephone calls, but it was obvious that she was a lonely person and needed some friendship, so I was happy to reciprocate.”
The defendant is a single man born in 1962. He is about twenty years younger than the plaintiff. There is evidence that he has worked as a plumber, but there is no evidence of him being engaged in any significant full time employment.
The plaintiff and the defendant met on a cruise in 1990. They had a casual conversation on board the ship. Shortly afterwards, they met by chance at Circular Quay, Sydney, where they exchanged telephone numbers. They remained in touch thereafter. The plaintiff refers to a “relationship”. Ironically, the defendant denies that there was a “relationship”. He describes a “friendship”. One would have expected the defendant to have alleged an intimate relationship in order to explain the payments which the plaintiff made to him, but he did not do that.
Over a period of almost nine years the parties mainly communicated by telephone or mail. The plaintiff sold her home in Perth and moved to Adelaide on 22 February 1999. From when they first met until the plaintiff moved to Adelaide, the plaintiff visited Adelaide on seven occasions. The defendant visited the plaintiff in Perth on three occasions; first in 1991 for the plaintiff’s birthday, secondly in 1992 when the plaintiff made a will and thirdly when the defendant went to Perth on a “mystery flight”.
The first meeting of the parties after the cruise was in July 1991 when the defendant travelled to Perth at the plaintiff’s invitation and expense for the plaintiff’s fiftieth birthday celebrations.
After that the plaintiff travelled to Adelaide at the defendant’s invitation “for Easter” between 1 April 1992 and 14 April 1992. That year, Good Friday was on 17 April 1992. Accordingly, the evidence as to the date of the visit may be wrong or the visit occurred prior to Easter.
The plaintiff stayed at the defendant’s house at Maylands and met his family. During conversation over meals the need for a will and power of attorney was raised. On one occasion the plaintiff and defendant had a discussion about a safe place to keep the plaintiff’s bank book and house key. In a way which is not entirely clear, the defendant saw the entries in the plaintiff’s bank book.
The plaintiff gave evidence that the defendant said she should not keep too much money in an ordinary savings account and he could invest her money for her in an investment that would get a bigger return. She said the defendant made such statements more than once. Those statements explain both the subsequent actions of the plaintiff and also provide the basis for the causes of action which the plaintiff now relies.
The defendant gave evidence in cross examination that he could not remember the occasion. On this critical topic he said :
“There is no point in me denying something or agreeing with something if I can’t remember. I can’t recollect.”
If the payments were gifts from the plaintiff to the defendant, as the defendant claims they were, one would have expected the defendant to have vehemently denied that the conversation ever took place.
For the reasons which are discussed below, I prefer the evidence of the plaintiff whenever there is a dispute between her evidence and that of the defendant. Both parties were required to recall events and conversations which took place many years ago. The evidence of the defendant that the payments were gifts is, on its face, improbable. That fact by itself is not determinative of the dispute but in some cases, the defendant’s evidence is inconsistent with contemporaneous documentation. Those inconsistencies throw doubt on the evidence of the defendant generally. All things considered, I have no difficulty in preferring the evidence of the plaintiff.
Eight separate cheques were paid by the plaintiff to the defendant. The circumstances in which each cheque was paid are different and each payment must be considered separately.
The First Cheque - $2,500 in April 1992
As I have mentioned, the plaintiff came to Adelaide at about Easter 1992. I accept the plaintiff’s evidence that the defendant said to the plaintiff that she should not keep too much money in an ordinary savings account and that he could invest her money for a bigger return.
While she was in Adelaide the plaintiff gave the defendant a bank cheque made payable to the defendant for $2,500. The defendant said that the plaintiff gave him an Easter egg for Easter Sunday “and wrapped around the Easter egg was a Commonwealth Bank cheque in the sum of $2,500”. He said that he thought it was a bit of a joke and he said it was the most expensive Easter egg he had ever seen. The defendant said the plaintiff did not say much more about it other than to say it was a gift to him for Easter.
The defendant gave evidence that he later said that he would like some sort of receipt from the plaintiff so that the taxation office would not think the cheque was undeclared income. For that reason, the plaintiff gave him the customer’s record of the bank cheque which is in evidence at page 42 of exhibit “P2”. The record shows that the cheque was drawn on 9 April 1992 which was the Thursday before Maundy Thursday. On the customer’s record the plaintiff wrote in hand “Happy Easter Rodger” and added her signature. The letter “O” in the defendant’s Christian name was drawn in the shape of a love heart.
The plaintiff gave evidence that when she gave the cheque and the Easter egg to the defendant, she said “the Easter egg is an Easter present and the cheque is to be invested”. She agreed the defendant asked for a receipt so that he could prove that he did not earn the money and that was why he requested her to write on the customer record of the cheque and sign it. She did not agree that the cheque was wrapped around the Easter egg. She thought she either put the cheque in the card or she gave him the cheque after Easter, because the defendant went with her to the bank in King William Street to withdraw the cheque.
The writing on the customer record suggests that the cheque was an Easter gift. However, both the plaintiff and defendant agree that the plaintiff wrote on the customer record at the defendant’s request for the purpose of establishing that the cheque was not income. In those circumstances the writing on the customer record can be explained and the inference that the cheque was an Easter gift can not be drawn.
After the plaintiff had returned to Perth the defendant wrote to the plaintiff on 30 April 1992. One sentence in the letter reads “The bank subject is all in order”. In cross examination the defendant agreed that the “bank subject” was the sum of $2,500 which the plaintiff had paid to him. If the cheque had been a gift, there would have been no reason for the defendant to report that the “bank subject” or $2,500 was “all in order”. In fact, there would have been no need for the defendant to report at all.
There is no evidence of any reason why the plaintiff would have been motivated to make a gift of $2,500 to the defendant in April 1992. It was only the third occasion on which the parties had met. At that time the defendant had not provided any assistance or favours to the plaintiff which could explain why the plaintiff would want to reward the defendant. There is evidence that the defendant had made a sexual advance to the plaintiff but that was rejected. A sexual relationship between the parties did not begin until about six months later.
The report by the defendant that “the bank subject is all in order”, is consistent with the plaintiff giving the cheque for $2,500 to the defendant for the purpose of investment. The defendant’s report that the “bank subject is all in order” is inexplicable if the cheque had been a gift.
I find that the plaintiff gave the cheque for $2,500 to the defendant for the purpose of investment.
The Second Payment - $10,500 on 14 July 1992
A second cheque for $10,500 was sent by the plaintiff to the defendant with a letter dated 14 June 1992. The plaintiff gave evidence “I just sent him, I sent him like the first one I gave him”. She did not tell him that she wanted it invested. She said “I didn’t have to because that was the purpose”.
The accompanying letter said “I’m at the GPO to send you the enclosed which will be followed by the receipt next time”. Presumably the “receipt” was required in case the defendant needed to show that the money was not income.
The defendant gave evidence that the plaintiff had telephoned a day or so beforehand to say there was a surprise on its way and that he should watch the mail box. When he received the card it contained a Commonwealth Bank cheque for $10,500 made out in his favour. He said he was “shocked to receive this money from her”, and he rang her on the night he received the card, 16 July 1992. He asked what the money was for and the plaintiff responded that the defendant “had been very good to her and she wanted to give (him) the money”. He said he protested saying he had not done very much for her and she told him that he “had been the first kind person that had come along in a long time in her life and she wanted to reward (him)”. He accepted the gift.
The defendant wrote on 16 July saying :
“Received your welcome card and enclosure today. Thanks. I will find a good place to put it.”
There was a contest as to what the “enclosure” was. The plaintiff claimed the enclosure was the cheque for $10,500. The defendant asserted that the enclosure was a photograph of Elle MacPherson. The defendant said that the reference in the letter to an “enclosure” was a reference to the photograph, not the cheque.
As I have mentioned, the plaintiff’s letter advised she was at the GPO “to send you the enclosed which will be followed by the receipt”. The reference to a receipt only makes sense if the enclosure was the cheque. In the circumstances, I cannot accept the defendant’s interpretation that in his letter he was informing the plaintiff that he would find a good place to put a photograph of Elle MacPherson. I find that in the letter of 16 July the defendant was telling the plaintiff he would find a good place to put the money sent by the cheque.
There was no reason why the plaintiff should have made a gift of $10,500 to the defendant in July 1992.
If the defendant believed that the cheque for $10,500, which was sent on 14 July 1992, was a gift, as he claims, it is remarkable that his letter of 16 July 1992 did not contain a more explicit expression of gratitude than the single word “thanks” which was part of his acknowledgement of the receipt of the card and enclosure. The statement that the defendant would find “a good place to put it”, is more consistent with an obligation to invest the monies than it is with the cheque being a gift. The letter of 16 July was a full page of general chit chat. If the cheque had been a gift, one would have expected the defendant to refer to the plaintiff’s generosity. There is no such comment. Indeed, on the defendant’s interpretation of his letter, there is no reference to a gift of money at all.
I accept the plaintiff’s evidence that the second cheque was to be invested on the plaintiff’s behalf. I reject the defendant’s claim that the cheque was a gift.
The Third Payment - $22,181 on 7 September 1992
In order to put this payment into context, it is necessary to consider the preceding events in August 1992.
During her visit to Adelaide in April 1992, the plaintiff and defendant had discussed the need for the plaintiff to have a will and power of attorney. The defendant’s letter of 16 July 1992, which acknowledged the cheque for $10,500, discussed arrangements for the defendant to travel to Perth. The defendant confirmed that he had made a booking to fly to Perth arriving on Tuesday 28 July and discussed the need to make an appointment with solicitors. Amongst other things, the letter said :
“Remember to ask what identification you need to take with you and do I need any. We both realise I am not needed to be at the solicitors. But I will be there, for moral support. I’ve worked out your phone bill, it’s quite large. You had better get a part time job so you can pay me. If you have told anyone I am coming over, that’s ok. But the least people that know of my arrival, in the early stages of the trip, the better it will be. We must have privacy while you’re informing me of your wishes. I can explain this more clearly when I see you.”
The defendant’s requirement for privacy while the plaintiff was informing the defendant of her wishes was not explained satisfactorily in evidence.
The defendant did travel to Perth as planned. Before he departed, the defendant knew that he was to be the executor of the plaintiff’s will. He gave evidence that he was surprised when the plaintiff instructed the solicitor that she wanted him to receive all of her estate after paying off her debts.
The defendant said the need for “privacy” which was alluded to in his letter arose because the plaintiff did not want her family to know that she was making the will. He justified his statement that “the least people who know … the better”, on the basis that on his previous visit to Perth, the plaintiff had :
“… lugged me to all her friends and they had given me a big feed and things and made a fuss of me and I didn’t want any of that so that is one of the reasons why I said ‘If you have told people when I am coming over, that’s okay’ but I didn’t want her to tell everyone that I was coming over because it would be what happened previously when I previously visited. As I said, I didn’t want all the attention, I was solely going over there to help her as best I could so that she could - her wishes could be carried out. I didn’t really want to go over there like when she invited me for the party.”
That evidence is inconsistent with the plain words of the letter. The defendant was clearly anxious that his involvement in the preparation of the will should be kept confidential. His explanation that he wanted privacy in order to avoid social contact with the plaintiff’s friends is unlikely. However, if the defendant did have a sinister motive for seeking privacy with the plaintiff that is of no consequence in the context of this case. As I have mentioned, the evidence does not establish undue influence.
The objective facts are that the plaintiff made a will in which the defendant was named as executor. A relatively small legacy was given to some members of the plaintiff’s family and the balance of her estate was left to the defendant. In addition, the plaintiff gave an enduring power of attorney to the defendant. There is uncertainty on the evidence as to whether the power of attorney only operated in the event of the plaintiff’s incapacity, but that dispute is of no consequence. By August 1992 the plaintiff had clearly placed her trust in the defendant.
The plaintiff appears to have been under a misapprehension about the role of the defendant as her attorney. The plaintiff believed the defendant “would take care of everything, he would look after me, my statements and everything or most of the things, anyway, what I’m - mostly what I’m incapable of doing”. In a note addressed “To whom it may concern”, the plaintiff wrote :
“I have nominated Mr R.D. Burford to be my executor. Rodger and I understand each other very well, as we both live alone for several years. We experienced a lot of being independent. I am positive the duties involved will be fully performed with your corporation (sic), which is gratefully acknowledged. Good luck to him as well as my sincere thanks.”
During August of 1992 the plaintiff was in the course of negotiating a settlement of a compensation claim with Comcare. The defendant was aware of the negotiations and conscious of the fact that upon settlement the plaintiff would receive a lump sum.
The defendant wrote to the plaintiff on 28 August acknowledging a parcel which the plaintiff had sent him and discussing his duties as executor.
On 7 September 1992 the plaintiff wrote to the defendant. The envelope was addressed “Mr The Executor”. The text of the letter commenced :
“Mr Dear Mr the Executor,
Congratulations on your official title the Executor and Power of Attorney. Long time ago I told you being very kind and good to people you should be rewarded. We are far from each other. I could not get you down on your knees and proclaim you a knight but through the law we succeeded that you are granted of the award. You must wait a bit longer to receive a medal, when you will be entitled you will obtain it from the Red Cross. Thanks a million for offering your help and accepting such a big responsibility. Good luck forever …”
Enclosed with the letter was a cheque for $22,181.
The plaintiff’s evidence as to this payment was :
"AI had investment and had what you call ‘dividends’, so that’s when I put in my book and so that’s when he mentioned ‘Don’t leave too many big amount in your book’, and he also say that I can leave only about five to seven thousand, don’t leave any more and just send it to him and he will invest it for me.
QWhat you were doing here was sending him everything over and above the five to seven thousand you were going to leave in your account.
A      Yes.
Q      That was again to invest on your behalf.
A      Yes, I always believed that.”
I accept that evidence.
In cross examination the defendant acknowledged that the plaintiff had told him that a lump sum payment was to be made to her by Comcare.

The defendant gave evidence that he telephoned the plaintiff upon receipt of the letter of 7 September. He said the plaintiff was on the phone for some four hours. He asked what she meant by stating in the letter that he “should be rewarded”, that is, in reference to the cheque she had sent. The plaintiff replied “It’s my way of rewarding you”. The defendant gave evidence that he told the plaintiff he was not her employee and did not get paid wages and he said that he hoped the plaintiff was not trying to buy his friendship. The plaintiff replied “Oh no, of course not. I just appreciate your friendship”. Nothing more was said about the cheque apart from the fact that the plaintiff said she would provide the usual receipt in a couple of days time.
The defendant said that the plaintiff did not mention that she was sending the money to invest on her behalf.
The plaintiff wrote again on 9 September. She wrote that a psychiatrist had reduced her tablets to three because she could no longer cope on four. In the letter she said, “It seems everyone I deal with makes me wait for ages even they are paid for it. Except you. I have much more satisfaction though it’s free of charge”. The letter concluded, “Hope your cheque arrived and sending you the receipt. Best wishes …”.
Between April and September 1992 the plaintiff had forwarded to the defendant three cheques totalling more than $35,000. When asked to comment on what he had done which warranted Ms Antoinette making gifts of that magnitude, the defendant said :
“I couldn’t quite understand it at the time, and after a while I just didn’t try to understand it. ….. Cheques were made in my name. It was said they were a gift for all the help I’d done, and, I mean, about that time the only help I’d given her was on the phone, you know, if she had any little problems, or anything, she would get on the phone and I would talk her through them, if I could. And, no, I can’t explain it.”
At that time the plaintiff and defendant had only spent four relatively short periods together. First, on the cruise, secondly, in Perth at the time of the plaintiff’s 50^th birthday in 1991, third, at Easter 1992 and fourth, in Perth in August 1992 when the plaintiff executed the will and the power of attorney. The parties did not commence a sexual relationship until November 1992.
I find that the third cheque for $22,181 was sent to the defendant for the purpose of investment on the plaintiff’s behalf.
If the money was a gift, the defendant was not doing anything for the plaintiff for which he needed to be rewarded.
The plaintiff’s expectation that the defendant would invest the money on her behalf is consistent with the plaintiff having placed her trust in the defendant and appointing him her executor and attorney.
The Fourth Cheque - $20,000 - 18 April 1994
The plaintiff visited Adelaide again from 30 October to 11 November 1992, from 5 April to 14 April 1993 and from 14 December 1993 to 5 January 1994.
On 31 January 1993 the defendant wrote to the plaintiff referring to her letter of 26 January. The plaintiff’s letter is not in evidence. The defendant wrote, “Thanks for your letter of 26^th January. And for the much welcome enclosures. The donation is always a welcome surprise and put to good use”.
What the “donation” was has not been revealed by the evidence.
The defendant wrote on 20 May 1993 saying, amongst other things, “The woolies business starts in early June so I will be in touch”. The “woolies business” was a reference to a share issue.
On 18 June 1993 the defendant wrote to the plaintiff referring to a letter of 14 June (which was not in evidence). He wrote, amongst other things, “I don’t think this Woolworths thing is a good idea. I think at this time we should just sit tight and if things improve, a term deposit is the way to go”. The letter concluded, “I will look forward to the thousands of dollars you are going to send me for my house. I hope it arrives before I leave for the US”. There is no evidence explaining that statement.
On 9 December 1993 the Claims Services Manager of Comcare wrote to a Dr Tannenbaum referring to an earlier report which described Ms Antoinette’s condition “as a chronic depression”. The defendant obtained and read the letter. On the back he wrote in his hand a definition of the plaintiff’s condition as “mental disorder with alternating periods of elation and depression”.
On 1 February 1994 the defendant wrote to the plaintiff noting the progress of her claim against Comcare. On 4 April 1994 the defendant wrote saying, “Might pay you to send entire lump sum to Switzerland for safe keeping”. The reference to a lump sum was a reference to the money to be paid by Comcare.
Switzerland or the expression “the Swiss” are mentioned in a number of the letters which passed between the defendant and the plaintiff. The exact use by the parties of the expression “the Swiss” is obscure. It is not clear whether it is meant to be a reference to a secret bank account or a reference to an investment. While the plaintiff said that she took the reference to “the Swiss” to be a joke, the term obviously had some meaning in the dialogue between the parties.
On 18 April 1994 the plaintiff sent a cheque for $20,000 to the defendant being the proceeds of the settlement with Comcare. The defendant said the cheque arrived with a blank card which he no longer has. He said the plaintiff had not even written on the card. The defendant gave evidence :
“A couple of days later I received the Commonwealth Bank cheque receipt, I rang her a day or so later and asked her what the cheque for $20,000 was for. She just laughed over the phone and said it was a gift to me. I didn’t question it as by this stage I just couldn’t work out what she was on about. I was just at the stage where I thought ‘Oh well, I won’t question it and will accept it if that’s what she wanted to do’. In the conversation I had with her a couple of days after receiving the 18 April 1994 cheque, I said to Ms Antoinette something along the lines ‘That I was not holding money in trust for her, because of the way that I banked with the Commonwealth Bank in Adelaide, and had put the money in my own account’. She replied stating ‘It’s your money, it’s your reward’. She always used to use that word ‘reward’. I was certainly starting to feel uncomfortable by this stage as I had not asked her to send me the money and I felt morally as though I was under an obligation to help her because she had given me all this money.”
That evidence was never put to the plaintiff for her comment. However, in her evidence in chief, the plaintiff said she sent the whole amount she had received from Comcare to the defendant because the defendant had said “send the whole amount”. That request had been made by the defendant in his letter of 4 April 1994.
The defendant was cross examined about the letter of 4 April. He denied that the “entire lump sum” was a reference to the Comcare money. When asked what the lump sum was, the defendant answered “That was written in jest. It still refers to what she terms as the Swiss account and that was always the $50 she sent across”.
I do not accept that evidence. Is inconsistent with the plain words in the letter. I find that the defendant suggested in his letter of 4 April that the amount which the plaintiff was about to receive from Comcare should be invested “for safe keeping!”.
The defendant was invited to explain how the statement was written in jest. His answer, which referred to pavers and the use of artificial grass, was both illogical and unconvincing. I do not accept the defendant’s evidence that the cheque for $20,000 was unsolicited or that the plaintiff told the defendant that “it’s your money, it’s your reward”. The defendant’s evidence is inconsistent with the statement in his letter - “might pay you to send entire lump sum to Switzerland for safe keeping!”.
For a period of time the plaintiff sent the defendant monthly payments of $50, which were gifts. The first payment was made in December 1994. The plaintiff gave evidence that she commenced sending monthly payments of $50 so that the defendant could buy birds for his aviary. Initially, she offered to pay one dollar a day or $30 a month which the defendant refused because the amount offended him. She then agreed to send monthly payments of $50. In a letter of 1 December 1994 the defendant said, “Thank you very much for the chocolates and I feel sure the canary can feather his nest with your ‘first new note’”. The “first new note” was a payment of $50. The monthly payments of $50 continued until the plaintiff came to live in Adelaide in 1999.
On the 12^th December 1994 the defendant wrote to the plaintiff advising that he needed a new stove. The cheapest he could find would cost $655. At that time, the plaintiff had made payments to the defendant over the previous two years totalling $56,186. Additionally, the plaintiff had given many presents to the defendant, and she had commenced the monthly payments of $50. In the letter of 12 December the defendant wrote that he would have to save up for the stove. He said that would be hard to do because he had no work.
If the plaintiff had made gifts totalling approximately $56,000, as the defendant claims she did, it is unlikely that the defendant would have been in a position where he could not find $655 to purchase a stove. If the payments by the plaintiff had been a gift to the defendant he would have had the money to buy a stove. Of the money sent to him by the plaintiff the defendant still had at least the sum of $20,000 which he subsequently repaid to the plaintiff.
The defendant’s letter of 12 December 1994 is an indication that the payments by the plaintiff were not gifts and that the defendant understood the money was not his. That was acknowledged in the following cross examination :
“QThe money sitting in the term deposits, you knew, was Ms Antoinette’s money and you knew that because what you were saying in this letter is ‘If I need to find $655 I have got to find it out of my own disposable income because I can’t touch other people’s investments’. That’s the plain meaning of that sentence, isn’t it.
A It appears to be.”
On its face that evidence is an answer to the defence that the payments were gifts.
I find that the plaintiff sent the fourth cheque to the defendant in accordance with the defendant’s suggestion that it be invested “for safe keeping”.
The fact that the defendant was advising the plaintiff with respect to her affairs is evidenced by the letters of 20 May 1993 and 18 June 1993 in which he discussed the Woolworths share issue.
The Fifth Payment - $5,555.55 on 31 July 1995
During 1995 the parties continued to correspond and there were occasional references to the monthly payments of $50.
The defendant denied that the plaintiff paid an amount of $5,555.55 to him.
The plaintiff could recall attending at the bank to obtain a bank cheque for $5,555.55 and she could recall physically sending that cheque to the defendant. The plaintiff’s bank book shows a withdrawal of $5,555.55 on 31 July 1995.
When asked whether he received a cheque for $5,555.55 the defendant said he could not recall. However, in evidence he did concede that “if Ms Antoinette has a record it’s taken out of her bank account, then chances are it did come across to me …”.
The defendant wrote to the plaintiff on 7 August 1995. His postscript reads :
“PS Your letter of 2/7/95 arrived a short time ago. The Swiss are grateful for your donation and the receipt arrived safely. …”
It was agreed that the reference to 2 July 1995 should have been a reference to 2 August 1995. The statement that “the Swiss were grateful for the donation” is an obvious reference to a cheque. The defendant was cross examined about the letter :
"QWhat I want to put to you is that it reads ‘Your letter of 2/7/95, assuming 2/8/95 arrived a short time ago, the Swiss are grateful for your donation’.
AYes.
QAnd that’s when you read, that is, that you received some time before 7 August and some time after 2 August 1995, the cheque for $5,555.55; that’s right, isn’t it.
AYes.”
I have no difficulty in finding that the plaintiff wrote to the defendant on 2 August 1995 enclosing a cheque for $5,555.55.
Because he denied receiving the amount, the defendant was not in a position to assert that the payment of $5,555.55 was a gift.
I find that the payment of $5,555.55 by the plaintiff was part of the practice whereby the plaintiff sent amounts to the defendant for the purpose of investment on her behalf.
The Sixth Payment - $7,000 on 9 April 1996
This payment was also denied by the defendant.
The plaintiff’s bank book shows that a withdrawal of $7,000 was made on 9 April 1996. The plaintiff gave evidence that the money went as a cheque to Mr Burford. The defendant’s bank book is in evidence. It shows the deposit of a cheque for $7,000 on 17 April 1996. I have no difficulty in finding that the plaintiff made the payment of $7,000 to the defendant.
The plaintiff was asked why she kept sending money to the defendant. Her response was “because he is my power of attorney”, and “because I had all my trust in him. Believe he is honest, as I am”. She also said “He was helping me. … Looking after my affairs. My finance”.
The plaintiff was asked about her belief as to what the defendant was doing with the money :
"QAt any time, in that period, did you ever believe that he was doing anything except investing that money for you.
ANo, except when he mentioned in conversation that had pavers in the backyard at his father’s place, and I said ‘Why?’, he said ‘Don’t worry, he has already paid back’ and I didn’t even know this was going.
QDid he tell you that he had used some of your money to pay for his father’s pavers.
AHe told me already, after he paid back.
QAfter he paid back.
AYes, the same as a car for his brother. I had no knowledge of it.”
In cross examination the defendant’s attention was directed to the entry in his own bank book and he agreed that the entry related to the sum of $7,000 which Ms Antoinette sent him.
The payment of $7,000 was denied in the Defence. The defendant did not mention the payment of $7,000 while giving his evidence in chief by reading from a prepared statement. When he was first asked about the payment of $7,000, the defendant said “I can’t recall this other one”; but later in cross examination he did agree that payment of $7,000 had been sent to him.
Again, the defendant was not in a position to assert that the payment of $7,000 was a gift, because he did not accept that the payment had been made. His lack of candour in refusing to accept that the payment had been made is a matter which must be taken into account in considering the general reliability of his evidence.
I find that the sum of $7,000 was sent by the plaintiff to the defendant for investment.
The Seventh Payment - $3,000 on 5 August 1996
The defendant admits receiving a payment of $3,000 in August 1996 but he claims that it was a gift.
The customer’s record of the bank cheque for $3,000 is in evidence. The plaintiff said that the $3,000 was an amount that she sent over to the defendant at that time. She did not give more detailed evidence about the circumstances.
The defendant’s evidence was :
“….. On about 5 August 1996, Ms Antoinette gave me a cheque for $3,000 when she was visiting me in Adelaide. She used to come over about once a year and stay with me in the later years. She used to give me $50 a week towards housekeeping, and on this occasion, after she had been with me for a while, she handed me this cheque for $3,000. I asked her jokingly whether this was for housing keeping and she replied ‘yes’; she appeared quite serious. …..”
The defendant was cross examined to the effect that a payment of $3,000 for housekeeping expenses for a period of about one month was an absurd proposition. He said :
“No, the money was given to me. I never set that price for staying in my home, and that’s why I said, it was like a joke, she had a big grin on her face when she told it to me. It is absurd. Of course it sounds absurd. I had to live through it.”
In 1996 the plaintiff visited the defendant from 12 June to 13 July. She was not in Adelaide on or about 5 August 1996. she had departed from Adelaide more than three weeks before the cheque for $3,000 was drawn. The evidence of the defendant that he asked the plaintiff, while she was visiting him in Adelaide, whether the money was for housekeeping and that the plaintiff had a big grin on her face when she told him it was, cannot be correct. I reject that evidence.
I find that the payment of $3,000 was a further payment in accordance with a pattern which had been established, whereby the plaintiff paid amounts to the defendant for the purpose of investment on her behalf.
The Eighth Payment - $10,000 on 5 November 1997
The defendant denied receiving this payment. He therefore could not claim that the payment was a gift.
The plaintiff came to Adelaide in November 1997 for the defendant’s birthday. She was in Adelaide from 30 October 1997 to 22 November 1997.
The plaintiff’s bank book shows that a withdrawal of $10,000 was made on 5 November 1997. The plaintiff said that the sum of $10,000 was withdrawn and given to Mr Burford while she was in Adelaide. She could not recall whether he accompanied her to the bank.
The defendant said he had no record of the sum of $10,000 and that he had no recollection of going with Ms Antoinette to her bank when she took out a sum of $10,000.
There is an imprecise suggestion that the defendant gave the sum of $10,000 to his brother for the purpose of buying a car. The plaintiff had no knowledge of a payment to the defendant’s brother.
I find that the plaintiff did withdraw $10,000 from her bank account and give that sum to the defendant. I also find that the payment was a continuation of the practice whereby the plaintiff paid monies to the defendant for the purpose of investment on her behalf.
The Plaintiff’s Move to Adelaide
In about 1995 the defendant suggested that the plaintiff should sell her house in Perth and move to Adelaide. It took the plaintiff approximately four years to sell the property. After selling the Perth property, the plaintiff moved to Adelaide and stored her furniture with the defendant for about two months from 22 February 1999. She lived at the defendant’s house until about 30 April 1999. The relationship between the parties soured. For some reason, the plaintiff was required to go to Sydney and stay with her brother while the defendant had other house guests in Adelaide.
The defendant said that by 30 April 1999 he had had enough. He had attempted to help the plaintiff find a house in Adelaide but she would always find some fault and not proceed with a particular purchase. Eventually, the plaintiff did purchase a property at auction. The defendant bid on her behalf. The property cost more than the amount which she had received for her home in Perth.
The defendant gave the plaintiff $15,000 for the deposit on the house. He withdrew that sum from his account on 30 April 1999.
The fact that the defendant paid $15,000 to the plaintiff is an indication that he realised that the plaintiff retained the beneficial interest in the monies which she had been paying to him over the years.
The Request for an Accounting
After the plaintiff moved to Adelaide she started to make demands upon the defendant and requested an accounting in respect of the monies which she had paid. She put notes in the defendant’s letterbox and she left messages on his telephone answering machine.
The plaintiff gave evidence on many occasions that between June 1999 and June 2000 she asked for the return of the money that had been sent to Mr Burford. His response was “go back to work”, and he said that he would not give the money back. She said the defendant never claimed that the payments had been gifts to him until he filed the pleadings in this action.

By August of 2000 the defendant’s practice was to ignore the plaintiff’s requests for an accounting.
The plaintiff wrote to the defendant on 2 October 2000. The letter includes the statement “… You did not respond to my notes and messages for a statement of my money which you invested for me. …”. The plaintiff gave evidence of the posting of the letter. The defendant did not admit having received the letter. However, in a letter of 31 October 2000, which the defendant did receive on 3 November 2000, the plaintiff said “None of my letters of 2^nd and 17^th October has been replied yet”. If the defendant had not received the letter of 2 October, why did he not say so when he received the letter of 31 October? I find that the defendant did receive the plaintiff’s letter of 2 October 2000, but by that time he was ignoring the plaintiff’s requests.
In the letter of 17 October, the plaintiff said :
“No communication from you at all. Let me know the name of the banks you invested all the money I passed on to you during the last few years.”
The letter created a situation in which it would have been appropriate for the defendant to claim that the monies had been gifts. The defendant’s failure to respond to the plaintiff’s letters and assert that the payments were gifts is significant. If the payments had been gifts, one would have expected the defendant to have mentioned that fact immediately.
The defendant agreed that at the time she purchased her home in Adelaide, the plaintiff started to say “Mr Burford, I want my money back, I want the money back that I have been sending you over all these years”. He agreed she was asking for a statement and an up to date balance so that she could apply for a health care card.
The defendant said that whenever the plaintiff started complaining, he replied that she had told him the payments were gifts and he reminded her that he had given her $15,000 for the purchase of the house. He said she would then go quiet, go away and then come back some time later. There is no document which supports the defendant’s evidence. The documents that were put in evidence all support the evidence of the plaintiff. There is no document which suggests that the payments were gifts.
The defendant said that on 5 June 2000 he decided that he wanted to get the plaintiff off his back because she was continually coming around to ask for money. He therefore withdrew the sum of $5,000 which he gave to her. The defendant said that was the last he heard from the plaintiff apart from her acknowledging receipt of the cheque for $5,000. The next correspondence he had was from the plaintiff’s solicitors.
I have already mentioned the plaintiff’s letter to the defendant of 22 January 1999. In that letter, the defendant had written, “Swiss under control! (As advised)”. That statement is a representation by the defendant as at January 1999 that the investments which the defendant had made on the plaintiff’s behalf were in order. The statement is not consistent with the payments being gifts.
Was there a Change of Attitude by the Plaintiff?
The defendant gave evidence that when he met a former girlfriend his friendship with the plaintiff changed. However, there is no evidence upon which I could find that Ms Antoinette changed her attitude to the moneys paid to Mr Burford because of a rejection of her.
More importantly, the letter of the 22 January 1999 in which the defendant wrote “Swiss under control”, is confirmation that both parties believed that the monies were invested on the plaintiff’s behalf before the plaintiff moved to Adelaide.
The Present Position
As I have mentioned, a total of $20,000 has been repaid by the defendant to the plaintiff. The defendant has spent the balance of the money. He said his current bank balance was $61.
Findings
I reject the defendant’s evidence that the payments were gifts.
I accept the plaintiff’s evidence that all eight payments were made by the plaintiff to the defendant for the specific purpose of investment on the plaintiff’s behalf.
The plaintiff was a lonely person and the defendant offered her friendship. However, the time they spent together was limited. There is no evidence of an intimate relationship. The defendant was a friend who offered to assist the plaintiff to manage her financial affairs. There was no reason why the plaintiff should have made significant monetary gifts to the defendant.
The plaintiff’s evidence was on occasions vague, but I think that is a consequence of her personality and her command of the English language. Also, she was giving evidence of events that had occurred many years ago. She provided no reason to doubt her truthfulness.
The defendant was not represented by counsel. His evidence in chief consisted of him reading from a statement apparently prepared by his former solicitors. In isolation, the prepared statement was plausible; but it cannot co-exist with the evidence of the plaintiff which I prefer. Additionally, contemporaneous documentary evidence does not support the defendant’s evidence but does corroborate the plaintiff’s evidence.
The defendant’s attempts to explain the references to “the Swiss” as references to the monthly payments of $50 were illogical and unconvincing. The references to “the Swiss” in the letters from the defendant can only be interpreted as a reference to investments made by the defendant on the plaintiff’s behalf.
The statement in the defendant’s letter of 18 June 1993 in connection with the Woolworths float that “at this time we should just sit tight and if things improve a term deposit is the way to go”, inferred that the defendant was involved in investments in which the plaintiff retained an interest. If the defendant had not made investments on the plaintiff’s behalf there was no reason for the defendant to write in the terms that he did.
Similarly, the statement in the letter of 4 April 1994 that it might pay the plaintiff to send the entire sum received from the settlement with Comcare to Switzerland for safekeeping indicates that the defendant was advising the plaintiff on the investment of her money. It also indicates that when the plaintiff subsequently sent the proceeds of the Comcare settlement to the defendant the money was not intended to be a gift by the plaintiff to the defendant.
The statement almost five years later in the letter of 22 January 1999, namely, “Swiss under control! (as advised)”, is consistent with the defendant having helped the plaintiff with her investments for the whole of the period up until then.
The Consequences of the Factual Findings
In cases such as this, the plaintiff has the onus of establishing that the money was not a gift. Hayden v The Perpetual Executors and Agency Co. (WA) Ltd (1930) 45 CLR 111.
Mr Slattery, for the plaintiff, submitted that the defendant held the money paid to him by the plaintiff subject to an implied or resulting trust in favour of the plaintiff. He submitted that when the plaintiff delivered the money to the defendant, she never intended to transfer beneficial ownership. I accept those submissions.
An implied trust arises where the settlor has transferred property to the trustees, but does not dispose of the beneficial interest in the property. Jacobs, Law of Trust in Australia, Sixth Edition, paragraph 1,201.
At a more fundamental level, the payments were monies had and received by the defendant for the benefit of the plaintiff. If the plaintiff’s evidence is accepted there was an implied promise on the part of the defendant to repay the money. Moses v MacFerlan (1760) 2 Burr. 1005; Sinclair v Brougham (1914) AC 398, 415, 453.
Accordingly, the plaintiff is entitled to judgment for the balance of the monies which she paid to the defendant after giving credit for the sum of $20,000 which was repaid.
The Claim for Interest
Mr Slattery submitted that the defendant was in breach of his fiduciary obligations. He referred to Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, where Mason J outlined the features of a fiduciary relationship. He also referred to the reasons of Street J (as he then was) as to the liability of a defaulting fiduciary to effect restitution as set out in Re Dawson (deceased) (1966) 2 NSWR 211, where His Honour said :
“The obligation of a defaulting trustee is essentially one of effecting a restitution to the estate. The obligation is of a personal character and its extent is not to be limited by common law principles governing remoteness of damage. In Caffrey v Darby (1801) 6 Ves 488; 31 ER 1159, trustees were charged with neglect in failing to recover possession of part of the trust assets. The assets were lost and it was argued by the trustees that the loss was not attributable to their neglect. The Master of the Rolls, in stating his reasons, asked ‘Will they be relieved from that by the circumstances that the loss has ultimately happened by something that is not a direct and immediate consequence of their negligence?’ His answer to this question was that, even supposing that ‘they could not look to the possibility’ of the actual event which occasioned the loss, ‘yet, if they have already been guilty of negligence they must be responsible for any loss in any way to that property; for whatever may be the immediate cause the property would not have been in a situation to sustain that loss if it had not been for their negligence. If they had taken possession of the property it would not have been in his possession. If the loss had happened by fire, lightening, or any other accident, that would not be an excuse for them, if guilty of previous negligence. That was their fault.’ Caffrey v Darby (1801) 6 Ves 488; 31 ER 1159 is consistent with the proposition that if a breach has been committed then the trustee is liable to place the trust estate in the same position as it would have been in if no breach had been committed. Considerations of causation, foreseeability and remoteness do not readily enter into the matter. To the same effect is the case of Clough v Bond (1838) 3 My and Cr 490; 40 ER 1016. It was argued before Lord Cottenham LC that ‘the principle of the court is to charge persons in the situation of trustees as parties to a breach of trust, wherever they have acted irregularly, however well intended, has in the result enabled their co-trustees to commit a breach of trust, or has been, however remotely, the origin of the loss.’ … The principles embodied in this approach do not appear to involve any inquiry as to whether the loss was caused by or flowed from the breach. Rather the inquiry in each instance would appear to be whether the loss would have happened if there had been no breach … The cases to which I have referred demonstrate that the obligation to make restitution, which courts of equity have from very early times imposed on defaulting trustees and other fiduciaries, is of a more absolute nature than the common-law obligation to pay damages for tort or breach of contract. It is on this fundamental ground that I regard the principles in Tomkinson’s case [1961] AC 1007 as distinguishable. Moreover the distinction between common law damages and relief against a defaulting trustee is strikingly demonstrated by reference to the actual form of relief granted in equity in respect of breaches of trust. The form of relief is couched in terms appropriate to require the defaulting trustee to restore to the estate the assets of which he deprived it. Increases in market values between the date of breach and the date of recoupment are for the trustee’s account: the effect of such increases would, at common law, be excluded from the computation of damages but in equity a defaulting trustee must make good the loss by restoring to the estate the assets of which he deprived it notwithstanding that market values may have increased in the meantime. The obligation to restore to the estate the assets of which he deprived it necessarily connotes that, where a monetary compensation is to be paid in lieu of restoring assets, that compensation is to be assessed by reference to the value of the assets at the date of restoration and not at the date of deprivation. In this sense the obligation is a continuing one and ordinarily, if the assets are for some reason not restored in specie, it will fall for quantification at the date when recoupment is to be effected, and not before.”
On the basis of those principles, the defendant as a trustee has an obligation to make restitution to the plaintiff in respect of this failure to invest the plaintiff’s moneys in the way that he had promised that he would.
The plaintiff called evidence from Mr K.C. Thyer who had made an interest rate calculation. His calculation was based on an average compound growth rate of 5 per cent assuming twelve month term deposits rolled over each year. The Commonwealth Bank rate for term deposits was as low as 4 per cent for some of the period but the interest rates shown in exhibit “P6” indicate that 5 per cent was a conservative average rate. The calculation in exhibit “P5” calculates interest from year to year and makes allowance for the defendant’s payments to the plaintiff of $15,000 in April 1999 and $5,000 in June 2000.
When interest is added to the claim the total amount becomes $102,464. The calculation of Mr Thyer, which I have accepted, is annexure “A” to these reasons.
There will be judgment for the plaintiff against the defendant for the amount of $102,464.

[2003] SADC 94

20 June 2003