Assoum v Barrett

[2021] NSWDC 641

District Court

New South Wales

Medium Neutral Citation:

Assoum v Barrett [2021] NSWDC 641

Hearing dates:

25 – 27 August 2021; 30 August 2021 – 1 September 2021; 17 September 2021 (written submissions); 21 September 2021 (written submissions); 14 October 2021 (oral submissions)

Date of orders:

23 November 2021

Decision date:

23 November 2021

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) Judgment for the plaintiff.

(2) The parties are to bring in agreed short minutes of order within seven days reflecting these reasons for decision.

(3) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

(4) Liberty is granted to the parties to apply within 14 days for a different costs order to that set out in (3) above.

Catchwords:

PERSONAL PROPERTY - whether advances of moneys by deceased person constituted absolute gifts, conditional gifts or a loan - relevance of deceased signing a letter to a financial institution indicating the main advance was a gift - relevance of later entry by deceased and defendant into a deed

DEEDS - proper construction of deed - whether executing the deed could alter the status of a prior advance of money

RESTITUTION - whether remedy available for money paid in the event that advances were determined to be a conditional gift – whether moneys paid under a mistake of fact or law

ESTOPPEL - whether alleged estoppels were established on the facts

Cases Cited:

Barton v Armstrong (1973) 2 NSWLR 598

Braam v BBC Hardware Ltd [2020] VSCA 164

Ecosse Property Holdings Pty Ltd v G D Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7

Flourentzou v Spink [2019] NSWCA 315

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161

McKay v National Australia Bank [1998] 4 VR 677

Mei Zhang v Ye Chang [2018] NSWCA 299

Mei Zhang v Ye Cheng [2018] NSWDC 147

Moubarak v Holt [2019] NSWCA 102

Spink v Flourentzou [2019] NSWSC 256

Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24

Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgerson [2019] WASCA 114

Troncone v Aliperti (1994) 6 BPR 13,291

Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429

Watson v Foxman (1995) 49 NSWLR 315

WLD Practice Holdings Pty Ltd v Sara Stockham [2020] NSWSC 1488

Category:

Principal judgment

Parties:

Barea Assoum (Plaintiff)
Linda Jayne Barrett (Defendant)

Representation:

Counsel:
N Condylis (Plaintiff)
R Freeman (Defendant)

Solicitors:
Crichton-Brownes Solicitors (Plaintiff)
Christopher C Freeman & Co (Defendant)

File Number(s):

2020/00193472

Publication restriction:

No

Judgment

1. In these proceedings, the plaintiff, Ms Barea Assoum in her capacity as Executor of the estate of the late Michael Robert Stainton (“Mr Stainton” or the “Deceased”) seeks the payment by the defendant to her of either $145,000 or, alternatively, $146,000, together with interest. Ms Assoum relies on either a money count in restitution for money had and received or money paid under a mistake of fact or law or a claim in damages for breach of a deed. Alternative claims in contract and in estoppel are also pleaded.

2. The defendant, Ms Linda Jayne Barrett, denies liability and asserts that certain moneys advanced to her by Mr Stainton in 2014 constituted absolute gifts of money. Further, the defendant claims that the deed entered into between the parties in 2017, on its proper construction, either is void for uncertainty or does not apply to the moneys advanced by Mr Stainton to her in 2014. It is claimed by the defendant that the advances were made in 2014 in the context of an intimate personal relationship between Mr Stainton and her in circumstances where she required assistance to purchase real property chosen by Mr Stainton and which was beyond her own financial means to purchase.

3. Accordingly, the issues before the court mainly revolve around the proper status of the advances made in 2014 and the effect of the deed entered into in 2017 on those advances.

The pleadings

4. The plaintiff commenced the proceedings by a Statement of Claim filed by her on 30 June 2020. In an Amended Statement of Claim filed on 4 November 2020, the plaintiff pleads causes of action against the defendant arising from moneys transferred by Mr Stainton to the defendant between April and June 2014 totalling $151,000. Actions are pleaded as follows:

1. An action arising from a deed of loan entered into by Mr Stainton and the defendant on or around 29 March 2017 (“the Deed”) allegedly requiring the defendant to repay the amount of $150,000 on demand. There was no issue between the parties that a demand has been made by the plaintiff for that sum less certain alleged repayments constituting a residue amount said to be owing of $145,000 (paragraphs 3-14);

2. An action in contract pursuant to a contract allegedly entered into in April 2014 by Mr Stainton with the defendant pursuant to which the deceased Mr Stainton lent to the defendant $151,000 repayable by the defendant upon demand by Mr Stainton. It is pleaded that the defendant has only repaid $5,000 to Mr Stainton or the plaintiff and has therefore retained $146,000 in breach of the loan agreement (paragraphs 15-19);

3. An action for breach of contract arising from an agreement entered into between March 2016 and June 2018 between Mr Stainton and the defendant pursuant to which the defendant promised to repay the amounts owing of $146,000. Damages are sought for breach of this agreement (paragraphs 20-24);

4. An action for breach of contract arising from an alleged instalment agreement entered into on or around 3 June 2018 between Mr Stainton and the defendant requiring the defendant to repay amounts owing by instalments commencing in June 2018 involving monthly payments and pursuant to which $146,000 remains to be paid by the defendant (paragraphs 25-29);

5. A cause of action in estoppel relying on representations made by the defendant to Mr Stainton that she would repay the amounts owing if proceedings were not commenced (paragraphs 30-32);

6. A cause of action in restitution seeking the repayment of $146,000 as money had and received in circumstances where the moneys were paid under either a mistake of fact and/or law or in circumstances where the defendant has no lawful basis to retain the balance of the moneys transferred. It is pleaded that the defendant would be unjustly enriched at Mr Stainton's expense if she were permitted to retain the amounts transferred that she is yet to repay (paragraphs 33-35).

5. In an Amended Defence filed by the defendant on 2 December 2020, the defendant denies any liability as alleged. First, she claims that the moneys advanced in 2014 to her by Mr Stainton were absolute gifts, relying on a letter signed by the Deceased on 3 April 2014 to the Commonwealth Bank of Australia. Secondly, the defendant asserts that the Deed entered into in 2017, on its proper construction, does not apply to the defendant in the circumstances. Additionally, it is pleaded that the Deed was not signed voluntarily but was signed under duress, intimidation and following threats by Mr Stainton.

6. In a detailed Reply to the Amended Defence filed on 19 March 2021, the plaintiff:

1. Joins issue on all allegations in the defendant’s Amended Defence filed on 2 December 2020;

2. States that the letter asserting a gift addressed to the Commonwealth Bank of Australia signed by the deceased, Mr Stainton, did not reflect the true position between Mr Stainton and the defendant, having regard to later acknowledgements by the defendant;

3. Pleads that even if the moneys advanced were a gift, the terms of the Deed on its proper construction meant that the defendant could not rely on it;

4. Pleads further, that if the advances were a gift they were not an absolute, unconditional or unqualified gift but were rather conditional upon and qualified by Mr Stainton continuing to reside at the property purchased and/or remaining in any relationship with the defendant;

5. Pleads that the defendant repeatedly acknowledged her liability to make the repayments sought by Mr Stainton in the period between 2016 and 2019;

6. In any case, pleads that the true position was that the transfers of moneys made in 2014 were by way of loan but, further and in the alternative, were conditional and qualified.

Summary of affidavit evidence relied upon

7. The plaintiff read in the proceedings three main affidavits as follows:

1. An affidavit of the plaintiff Executor Ms Assoum dated 19 March 2021 giving the background to the proceedings and giving evidence of discussions with Mr Stainton before his death and the history of demands by the plaintiff for a payment of the moneys allegedly owed;

2. An affidavit of Teresa Mary Briscoe dated 4 February 2021. Ms Briscoe was a bank manager at the Baulkham Hills branch of Westpac Banking Corporation on 29 March 2017 when she witnessed, as a Justice of the Peace, the execution of the Deed by Mr Stainton and the Deceased; and

3. An affidavit of Philip Daniel Kolimar dated 23 March 2021. Mr Kolimar is the stepson of the Deceased Mr Stainton and gives detailed evidence in relation to his relationship with Mr Stainton, Mr Stainton's financial position and his dealings with Mr Stainton and care of him in the few years before the death of Mr Stainton on 26 October 2018.

8. The defendant relied on three affidavits in the proceedings:

1. Two affidavits of hers dated 12 April 2021 and 4 June 2021 setting out detailed evidence in relation to the matters in dispute in the proceedings and her lengthy relationship with Mr Stainton;

2. Affidavit of Jeffrey Clive Purcell dated 12 April 2021. Mr Purcell was a mortgage broker who assisted the defendant Ms Barrett in 2014 to secure a loan from the Commonwealth Bank of Australia for the purchase of her house at Glenhaven Road, Glenhaven in New South Wales. Mr Purcell had dealings with the Deceased, Mr Stainton, in relation to Mr Stainton’s provision of money towards the purchase of the house registered in the name of the defendant. This evidence, which will be considered in further detail, is alleged to support the contention that the intention of the Deceased at the time was to advance the moneys transferred by way of gift. The Deceased signed a letter addressed to “The Manager Commonwealth Bank” in which he confirmed “that the gift is interest and repayment free”.

9. In addition, the parties tendered various documents including important emails between Mr Stainton and the defendant in the period from 2014 to 2018.

10. The various affidavits and many of the documents tendered were in a paginated court book (“the Court Book”) which will be referred to.

Background facts

11. Many of the facts, particularly relating to the advances of the moneys by Mr Stainton to the defendant in 2014 and the dealings between them relating to the execution of the Deed and the correspondence relating to the payments by the defendant to the Deceased, are strongly in issue. This will require the court to make a number of factual findings. However, a number of other factual matters are not in dispute between the parties and it is helpful to set these out. What follows constitutes the court’s factual findings in the matter, unless it is indicated to the contrary. Other factual findings on the main issues in dispute will be set out further below.

12. The Deceased, Mr Stainton, had known the defendant, Ms Barrett, for many years prior to 2014. Their relationship had initially been a business one. Mr Stainton was involved in running the franchise for the large Harvey Norman store situated in Auburn in New South Wales. At one stage, the defendant Ms Barrett worked for a company which supplied goods to the Auburn store. Thereafter, I accept the evidence of Ms Barrett that a close personal friendship developed between Mr Stainton and her which involved them contacting each other frequently and meeting for lunch or dinner for birthdays and similar occasions. Throughout the relevant period up to at least 2012, both Mr Stainton and the defendant were separately married to other persons.

13. The defendant, Ms Barrett, has three daughters. Mr Stainton had children from an earlier marriage as well as stepchildren arising from a second marriage: Exhibit C. At some time in 2012, both Mr Stainton and the defendant separated from their respective spouses: T96-97. I reject the defendant’s submission that Mr Stainton maintained a usual married relationship with his wife until the end of 2015. There is no cogent evidence to support that. In due course, Mr Stainton, who was a person of substantial means, entered into a financial settlement with his wife. Throughout the course of the relevant period, the plaintiff, Ms Assoum, was Mr Stainton's accountant and taxation agent and advisor and worked with him closely.

14. In due course, a personal and intimate relationship developed between Mr Stainton and the defendant. This was in 2013. At this time, Mr Stainton remained in the matrimonial home but was separated from his wife who also continued to reside there. The evidence suggests that there had been advances of moneys by Mr Stainton to the defendant in 2013-14 by way of a gift to assist the defendant in the difficult financial circumstances in which she found herself upon her separation from her husband. A gift of $25,000 was also apparently made in 2013: Exhibit 1; Court Book page 234. There was thus a history of some gifts by the Deceased to the defendant. The evidence establishes that at all relevant times, the defendant Ms Barrett was a successful corporate sales manager and/or executive: Exhibit E.

15. In early 2014, following the finalisation of a property settlement with her husband, Ms Barrett began looking to purchase a house suitable for her and her daughters in the price range of $950,000-$1million. She did not wish to commit all her financial resources due to other commitments including private school fees. At the time, Mr Stainton lived in the Inner West of Sydney, initially with his second wife and then later in a unit owned by him.

16. There were discussions between the defendant and Mr Stainton in relation to Mr Stainton moving in with the defendant and her daughters with the possibility in due course of marriage: Barrett first affidavit paragraphs 36-38 and 57. The Deceased had a very close and supportive relationship with Ms Barrett’s daughters: Barrett first affidavit paragraphs 16-24. One property identified by the defendant as within her price range at Cherrybrook in Sydney was regarded by Mr Stainton as being unsuitable to him. He preferred another larger and more expensive property at Glenhaven, where the defendant continues to reside, which he regarded as being more suitable to his needs: Barrett first affidavit paragraphs 30-33. The defendant indicated that she could not afford the property. I am satisfied that the property ultimately purchased at Glenhaven, where the defendant now resides, was only able to be purchased by her having regard to the advances of money which were made by Mr Stainton to her. I am satisfied that the Glenhaven property was only purchased because of Mr Stainton’s desire for a larger and better property. In addition, Mr Stainton undertook considerable renovation and improvement work at the Glenhaven property following its purchase with the objectives of making the property more presentable and more suitable to him, the defendant and her daughters: Barrett first affidavit paragraphs 48-49.

17. On 1 April 2014, Mr Stainton transferred the sum of $135,000 to the defendant. On 26 May 2014, a further sum of $10,000 was transferred by Mr Stainton to the defendant. On 2 June 2014, a further sum of $6,000 was transferred by Mr Stainton to the defendant. See Court Book pages 75-76. The latter two advances were to the benefit of Ms Barrett and may have been used to meet legal costs or expenses or, alternatively, other expenses.

18. The defendant Ms Barrett sought a loan for the purchase of the property at Glenhaven with the assistance of a mortgage broker, Mr Purcell. The broker indicated that the Commonwealth Bank of Australia, the lender, would require a letter from Mr Stainton, as a person advancing moneys towards the purchase price, confirming that he would be providing money and that it would be a gift. A version of the required letter dated 31 March 2014 was forwarded by the defendant to Mr Stainton on 3 April 2014 (Exhibit A, Court Book pages 168-169). Mr Stainton indicated that he would attend to the letter. Mr Purcell, the mortgage broker, gives evidence in his affidavit that he made direct contact with Mr Stainton to verbally confirm that he was providing $134,500 as a gift to assist Ms Barrett to purchase the property and that he was providing a signed letter to that effect confirming it. Mr Purcell states in his affidavit that Mr Stainton orally confirmed that he was gifting the amount to Ms Barrett to complete the purchase “as I will be living there with her and her three daughters”: Purcell affidavit paragraph 12.

19. In due course, a letter was received by Mr Purcell dated 31 March 2014 signed by Mr Stainton with the date 3 April 2014 beneath the signature in the following terms:

“Home Loan Application in the name of: –

Linda Jayne Barrett

I hereby confirm that I will be providing the sum of $134,500 (one hundred and thirty four thousand five hundred dollars) as a gift towards the purchase of [xx] Glenhaven Road Glenhaven NSW 2156.

I further confirm that the gift is interest and repayment free.” (Court Book page 146)

20. Mr Purcell gives evidence in his affidavit that he later met with Mr Stainton during which meeting Mr Stainton said that he was happy with the Glenhaven property as it “best suits my needs”. He told Mr Purcell that the defendant had selected a different home to purchase in Cherrybrook but he rejected that property “as I was going to live in the house with her and her three daughters and it did not serve my requirement or all our needs”. Mr Purcell gives evidence that Mr Stainton said that he “convinced” the defendant to buy the Glenhaven home and that was why he was giving the additional funds to complete the purchase. Mr Purcell states that Mr Stainton also said to him: “I love the three girls and consider them to be my daughters and will marry Linda…It was a lovely home in a bush setting on a large block of land and will be a very comfortable family home.”

21. Ms Barrett gives evidence in her affidavit, which I accept, that Mr Stainton had a set of keys to the Glenhaven house and frequently attended the house after completion, spending considerable time with the defendant and her daughters.

22. Whilst the relationship was successful for a time, there is no evidence Mr Stainton actually moved in to the house. The oral evidence of Mr Kolimar supports that conclusion. See also Barrett first affidavit paragraph 51. In paragraphs 47 and following of her first affidavit, Ms Barrett sets out the information about the handling by Mr Stainton of details relating to the purchase during the sale period and Mr Stainton undertaking renovations and the purchase of new items for the house. She also gives evidence of Mr Stainton spending much time with her extended family and assisting Ms Barrett when her mother passed away in selling her mother's house. Mr Stainton also went with Ms Barrett and her children on a family holiday which he paid for. In the end, the romantic relationship ended between Mr Stainton and Ms Barrett. Ms Barrett gives evidence in her first affidavit that she began to “move back” from her relationship with Mr Stainton in about February 2015 and she made the decision to end the relationship: first affidavit paragraphs 61-66. Ms Barrett gives evidence, which I accept, that Mr Stainton was very upset with the termination of the relationship. He later apparently said he felt “used”: Exhibit B page 178, email dated 14 June 2016.

20. Following the termination of the relationship between Ms Barrett and Mr Stainton by Ms Barrett, Ms Barrett's children urged her to attempt a reconciliation with their father. This was attempted and Ms Barrett's husband moved into the Glenhaven property. This reconciliation lasted several months before permanently ending. Ms Barrett gives evidence, which I accept, that Mr Stainton was very angry and bitter in relation to the reconciliation and particularly when Ms Barrett's husband moved into the Glenhaven home that she had purchased and for which Mr Stainton had provided some of the moneys. There was a period where there was no contact between Mr Stainton and Mrs Barrett. Mr Stainton apparently believed that the period in the Glenhaven house would enable the husband to make a claim on the Glenhaven property.

21. Ms Barrett gives evidence that the advances in 2014 by Mr Stainton constituted gifts and points to the letter signed by Mr Stainton addressed to the Commonwealth Bank dated 31 March 2014. Ms Barrett gives evidence that in early 2016 Mr Stainton started demanding that she repay him the “gift” being the moneys previously transferred by him to her. These were the amounts that the plaintiff asserts were not gifts but were loans. In her affidavit, Ms Barrett refers to the period from March 2016 to January 2018 during which Mr Stainton according to her, continued to demand that she pay back “the gift”. Ms Barrett claims that the continued demands by Mr Stainton scared her and constituted threats and intimidation and harassment.

22. There is before the court substantial documentation by way of emails between Mr Stainton and Ms Barrett in this period: see Exhibits A and B. This email evidence confirms that Ms Barrett attempted to get a loan to repay the moneys advanced by Mr Stainton, then attempted to sell the Glenhaven property without success and finally informed Mr Stainton that she could not repay him by his deadline but would repay him when she could. Ms Barrett in her affidavit evidence continues to assert that the advances by Mr Stainton in 2014 were gifts. However, in the emails between her and Mr Stainton there appears to be a clear acknowledgement by her that she would repay the amounts advanced. She claims that this was due to the continuous pressure of Mr Stainton following the termination of the relationship. The plaintiff asserts that this was because the moneys advanced in 2014 were not gifts as claimed by the defendant, but were, on a proper analysis, loans.

23. Ms Barrett gives evidence in her first affidavit in relation to the execution of the Deed. She claimed that prior to the execution of the Deed, Mr Stainton was in several meetings “domineering” and “aggressive” as well as being “incredibly bitter, vindictive and threatening”: first affidavit paragraph 82. Ms Barrett states that on 29 March 2017 she executed the Deed “to avoid the enormous emotional upheaval and to stop [Mr Stainton] haranguing me about this situation in the hope that we might sort things out when time had passed and his feelings of “being thwarted” had calmed”: paragraph 84 first affidavit.

24. The background to the execution of the Deed shows that Mr Stainton had been to see his solicitor who had drawn up a draft of the Deed “recognising the loan between us”: Exhibit A page 175. Mr Stainton records in an email dated 10 March 2017, that he had reduced the amount from the original figure of $153,926 to $150,000. In an email dated 27 March 2017, Ms Barrett appears to have reviewed the draft Deed carefully and provided her comments. The comments are detailed and include a reference to advice which she says she obtained from the Commonwealth Bank. Ms Barrett claims in her oral and affidavit evidence that she did not have the means to obtain legal advice in relation to the draft Deed. Nevertheless, the comments made suggest a careful and thorough consideration by her of the draft Deed: Exhibit A page 175. Following her comments, it appears Mr Stainton or his solicitor amended the Deed. Ms Barrett agreed in her oral evidence that the amended version incorporated all her comments.

25. As indicated above, the Deed was executed by Mr Stainton and Ms Barrett on 29 March 2017 and was witnessed by Ms Briscoe, who has provided an affidavit of the circumstances of her witnessing as a Justice of the Peace. Ms Briscoe gives evidence that Ms Barrett said to her words to the effect: “We just really need this document to be signed and witnessed”. She also has Mr Stainton claiming to have “terminal cancer”. Although Mr Stainton later died of cancer there is no suggestion that he was aware of it at this stage. It seems his cancer was diagnosed in March 2018. Why Mr Stainton said this is unclear. However, I accept Ms Briscoe that he said it.

26. As indicated, between March 2016 and 2018 Mr Stainton made many email demands for repayment by Ms Barrett. In an email dated 31 March 2016, Ms Barrett indicated that she wished to “settle” the matter by 30 June 2016 through funding or the sale of the Glenhaven property. Apparently the property had difficulties selling and in May 2016 Ms Barrett indicated that she would likely require another 12 months to settle the repayment and sought a deadline of 30 May 2017.

27. Following the execution of the Deed by the parties, a caveat was registered by Mr Stainton on the Glenhaven property. In June 2017, Mr Stainton obtained a loan from Westpac for $150,000. There is differing evidence as to the purpose of the loan. It seems it was obtained for the purposes of meeting his property settlement with his former wife in circumstances where he did not wish to use funds from his self-managed superannuation fund: oral evidence of Ms Assoum.

28. In 2018, Mr Stainton and Ms Barrett had congenial and polite email correspondence. In about March 2018, Mr Stainton was diagnosed with terminal cancer. On 30 May 2018 and on 3 June 2018, Ms Barrett forwarded emails to Mr Stainton setting out a repayment plan with repayments commencing in early June 2018 followed by regular $1,000 repayments around the middle of the month: Exhibit A page 177.

29. The evidence establishes that there are a number of payments in June and August/September 2018 by Ms Barrett and then the payments ceased. The payments in total constituted $5,000. Ms Barrett claims these are not repayments of any loan but gifts by her to Mr Stainton to help with the purchase of medicinal cannabis to assist with his pain.

30. As indicated above, on 26 October 2018 Mr Stainton died. Ms Barrett gives evidence that she and her daughters visited him in hospital which I accept. I also accept that the relationship between Mr Stainton and Ms Barrett was good immediately before Mr Stainton's death. I accept Mr Kolimar was Mr Stainton’s main carer in the period before he finally entered hospital.

31. By letter dated 12 February 2019 to Ms Barrett, the solicitors for the plaintiff noted that the plaintiff had been appointed the Executor of Mr Stainton's estate and referred to the belief that Mr Stainton had advanced to Ms Barrett by way of loan the sum of $150,000. The caveat lodged on the Glenhaven property was referred to. It was indicated that once probate was granted the Executor would be entitled to call upon the debt as part of administering the estate. Ms Barrett was invited to inform the solicitors for the plaintiff as to her current circumstances “and ability to repay the loan in the near future”.

32. By email dated 13 February 2019 to the solicitors for the plaintiff, Ms Barrett indicated that the sum claimed of $150,000 was incorrect due to repayments and the “sum owing would be reduced accordingly”. Ms Barrett indicated that she would obtain independent legal advice.

33. On 1 April 2019, the plaintiff obtained a grant of probate in respect of Mr Stainton's will: Exhibit C. The inventory of property referred to a personal loan to the defendant of $150,000.

34. On 3 October 2019, the plaintiff's solicitors sent a letter of demand to Ms Barrett seeking the repayment of $150,000 and enclosing a certificate of debt stated to be in accordance with the Deed stipulating the moneys presently due and payable by Ms Barrett to be $145,000. Litigation was threatened unless the sum of $145,000 was repaid within 14 days.

35. The sum was not repaid and on 30 June 2020 proceedings were commenced in this court.

The Deed

39. As indicated, the Deed between Mr Stainton and the defendant was executed on 29 March 2017. The circumstances in which the Deed was executed are set out in the affidavit of Ms Briscoe dated 4 February 2021. In the Deed, the defendant is described as “the Mortgagor” and Mr Stainton is described as “the Mortgagee”: Court Book page 87. Why that is so is unclear. It may be because the Deed refers in clause 4.1 to the Mortgagor (Ms Barrett) granting to the Mortgagee (Mr Stainton) a caveatable interest in the Glenhaven property: Court Book page 88.

40. The recitals to the Deed provided as follows:

“A.  The Mortgagee has agreed to lend to the Mortgagor and the Mortgagor has agreed to borrow from the Mortgagee the sum of One Hundred and Fifty thousand Dollars ($150,000.00)(“the Principal Sum”) subject to the terms and conditions referred to in his Deed.

B.  The Mortgagor has agreed to pay to the Mortgagee the Principal Sum on or before the completion date for the sale of [xx] Glenhaven Road, Glenhaven NSW 2156.” (Court Book page 87).

41. The relevant clauses of the Deed are as follows:

“2.  REPAYMENT

2.1  The Mortgagor has agreed to pay to the Mortgagee the Principal Sum on or before the completion date for the sale of [xx] Glenhaven Road, Glenhaven NSW 2156 or prior to the completion date whereupon the caveatable interest of the Mortgagee referred to in Clause 4 will cease.

3.  CAVEAT

4.1  In consideration of the advance by the Mortgagee to the Mortgagor, the Mortgagor grants unto the Mortgagee a caveatable interest in the property situated at [xx] Glenhaven Road, Glenhaven NSW 2156

4.  DEMAND

5.1  Subject to clause 2.1 the Mortgagor covenants to pay to the Mortgagee all monies due and payable pursuant to this Deed upon written demand being made to the Mortgagor by the Mortgagee and a certificate by the Mortgagee shall be conclusive evidence of the amount due and payable by the Mortgagor to the Mortgagee.

…

6.  GENERAL PROVISIONS

6.1  Each party to this Deed shall do all things and sign all Deeds and other documents as may reasonably be required by the other Parties so as to carry out and give effect to the terms and intentions of this Deed and to perfect, protect and preserve the Rights of the other Parties to this Deed.

…

6.3  This Deed contains the entire agreement between the Parties with respect to its subject matter. It sets out the only conduct relied on by the Parties and, to the full extent permissible by law, supersedes all earlier conduct made by or existing between the Parties with respect to its subject matter.”

42. The Deed was entered at a time when Ms Barrett was either contemplating a sale of the Glenhaven property or its refinance: see Exhibit A pages 173-175 especially the email dated 27 March 2017.

Evidence of Ms Briscoe

43. The plaintiff read in the proceedings an affidavit of Ms Teresa Briscoe sworn 4 February 2021. As at 29 March 2017, Ms Briscoe was employed as a bank manager by Westpac Banking Corporation at the Baulkham Hills Branch. On that date, when she was working at the Baulkham Hills Branch, two persons entered the Branch who she later identified as the defendant and the Deceased, Mr Stainton, and requested that Ms Briscoe witness in her capacity as a Justice of the Peace, their execution of the Deed. Ms Briscoe gives evidence in her affidavit that the defendant and Mr Stainton signed the Deed in her presence and she witnessed their signatures. She also gives evidence in her affidavit that the defendant said that they “really need this document to be signed and witnessed”.

44. In cross-examination, Ms Briscoe confirmed the contents of her affidavit and stated that she recalled Mr Stainton saying to her that he had “terminal cancer”. She also recalled him asking whether the document was now “legal” as she corrected him as set out in paragraph 11 of her affidavit.

45. In her cross-examination, Ms Briscoe rejected the possibility that she became aware of Mr Stainton’s terminal cancer after 29 March 2017, as this was her only dealing with them. It is therefore surprising that there was an apparent reference by the Deceased to cancer in 2017. Why that occurred is unclear.

46. Ms Briscoe impressed the court as a careful and honest witness. I accept her evidence, despite the period which has passed since the execution of the Deed.

Evidence of Ms Barea Assoum

47. The plaintiff read in the proceedings the affidavit of Ms Barea Assoum sworn 19 March 2021. Ms Assoum is a chartered accountant and the plaintiff in the proceedings. The accounting firm by which she was employed had been acting as tax agents for Mr Stainton since 1982 and Ms Assoum gives evidence in her affidavit that she was the Deceased’s accountant for a period of approximately 12 years prior to his death. She states that she met with the Deceased on many occasions and had many telephone conversations with him during and after business hours in relation to his affairs. In paragraph 6 of her affidavit, she states that she acted for Mr Stainton in relation to his personal income tax returns, his self-managed superannuation fund, general accounting and financial advice from time to time and the accountancy aspects of his divorce property settlement with his ex-wife.

48. Ms Assoum gives evidence in her affidavit of her personally obtaining Mr Stainton’s bank records from Westpac which record the transfers from Mr Stainton, the subject of the proceedings. Ms Assoum gave oral evidence of obtaining numerous emails between Mr Stainton and the defendant from Mr Stainton’s email account.

49. In various paragraphs in the affidavit, Ms Assoum records Mr Stainton telling her that he wanted her to pursue the defendant for repayment of moneys which he had loaned her: paragraphs 16, 18 and 20.

50. In the affidavit, Ms Assoum sets out the Deceased’s financial circumstances in 2017 and 2018. The Deceased had substantial assets including a property in Sydney and a self-managed superannuation fund with extensive assets. The Deceased’s property was encumbered by a registered mortgage to Westpac in an amount of $150,000. Ms Assoum gave oral evidence that the Deceased required $150,000 to meet his obligations as part of his property settlement with his former wife and that he did not wish to withdraw that amount from his cash reserves in his self-managed superannuation fund as this would alter the status of the money and he could not make further contributions into the fund. I accept that this conversation occurred.

51. Ms Assoum in paragraph 26 of her affidavit states that prior to his death, Mr Stainton told her that he and the defendant had executed the Deed dated 29 March 2017 which was prepared by Mr Stainton’s solicitor.

52. Ms Assoum identified as emails obtained by her from Mr Stainton’s email account, various emails which became Exhibits A and B in the proceedings which were located at pages 168-188 of the Court Book.

53. The emails include:

1. Emails between the defendant and Mr Stainton relating to the letter to the Commonwealth Bank of Australia required in April 2014 (Exhibit A pages 168-169);

2. Emails between Mr Stainton and the defendant in the period 2016-2018 (Exhibit A pages 170-184). These emails include:

1. Email from Mr Stainton to Ms Barrett dated 31 March 2016. This email makes references to: “the amount owing”, “I have sought payment only on those amounts that are relative to your time when purchasing Glenhaven” and “can you please confirm when the amount of $153,926 will be paid into my bank account…”;

2. Email from Ms Barrett to Mr Stainton dated 28 April 2016 referring to her exhausting avenues to “settle the funds with you”. Ms Barrett states: “Should you require the full amount by June 30^th, I have no option other than to list the home for sale”;

3. Email from Mr Stainton to Ms Barrett dated 28 April 2016 which includes: “I would therefore need the full amount owing from you to facilitate”;

4. Email from Mr Stainton to Ms Barrett dated 22 May 2016 referring to “your repayment of the money you owe”;

5. Email from Ms Barrett to Mr Stainton dated 24 May 2016 including:

“I have been exploring options to redress the financial situation between us … when you and I entered into this informal arrangement there was no agreement as to any repayment deadline. There was perhaps an unstated possibility of an ongoing future between you and I which was unfortunately not to be”;

6. Email from Ms Barrett to Mr Stainton dated 31 May 2016 including:

“I am therefore asking that you give me another 12 months to settle with you in which time I will have hopefully knocked the health situation on the head again, the house will be fixed, and I can refinance. I will endeavour to pay you something in the interim … regardless of all of this – which sounds somewhat like a sob story I realise – I will have the moneys repaid to you by May 30 next year in full”;

7. Email from Mr Stainton from Ms Barrett dated 10 March 2017 headed “Deed of Loan” which includes:

“I have been to see my solicitor and as agreed I have drawn up the attached document recognising the loan between us … you will note that I have reduced the amount from my original figure of $153,926 to $150,000”;

8. Email from Ms Barrett to Mr Stainton dated 8 January 2018 which included the following:

“The house [at Glenhaven] did not sell. … I have investigated options to refinance the house and roll in a cash sum which would allow me to pay you back… My primary aim in these next six months is to return my family to a position of financial balance and to work to secure financing to pay back the money I owe you. I know this is again dragging out the repayment time frame and I am continuing to explore every option but rest assured that the mortgage is covered and therefore the house is not at risk in the interim”;

9. Email from Ms Barrett to Mr Stainton dated 14 June 2016 which includes:

“I have stated that I will either refinance or get a second mortgage to settle with you in the coming 12 months. I have, as you are also experiencing, enormous regret at allowing myself to accept the money from you but I didn’t realise there was a time stamp on its repayment … that you feel somehow “used” – I really do not know how best to respond to that …”;

10. Email from Mr Stainton to Ms Barrett dated 10 March 2017 referring to the Deed and stating that the document recognised “the loan between us”;

11. Email from Mr Stainton to Ms Barrett dated 9 January 2018 referring to a mortgage which a bank holds over Mr Stainton’s property which he had since May 2016:

“It’s not great given it doesn’t pay down the loan so you’re offer to secure financing assuming you take on a full time position with WINC would be very much appreciated”.

54. In her oral evidence, Ms Assoum confirmed that she had a close professional relationship with the Deceased over a lengthy period of time. She said she first became aware that he was diagnosed with terminal cancer in about March 2018 but was not sure of the date.

55. Ms Assoum was asked a number of questions about the email dated 31 March 2016 and the further email dated 24 March 2016 at page 234 of the Court Book: Exhibit 1. Ms Assoum stated that she did not deal with Mr Stainton’s personal accounts as they had no bearing on his tax obligations. She stated that she would not be informed at the time by Mr Stainton if moneys were paid out of his personal accounts as these were for private purposes. In particular, Ms Assoum confirmed that she was not told by Mr Stainton in 2013-2015 in relation to advances to Ms Barrett as these were private arrangements. As to various transactions in 2013-2014 (see Court Book page 234 – Exhibit 1), Ms Assoum confirmed that she was not told that these were gifts or loans. These included advances on 31 March 2014, 26 May 2014 and 2 June 2014.

54. Ms Assoum was asked questions about paragraph 6 of her affidavit where she states that she was involved in “the accountancy aspects of [Mr Stainton’s] divorce property settlement with his ex-wife”. Ms Assoum said that she looked at the accounting aspects relating to the whole asset portfolio of Mr Stainton and his ex-wife and put the items on a spreadsheet to determine the value of the assets. She confirmed that she did not record on the spreadsheet whether the three advances from 2014 to Ms Barrett were gifts or loans. She also confirmed that at no time in her dealings with Mr Stanton did he ever say that any of the advances to Ms Barrett were subject to a condition that he be permitted to live in the property at Glenhaven, that he and the defendant marry or that the intimate personal relationship which he had with Ms Barrett continued. Ms Assoum stated that in 2013-2015 she was not aware Mr Stainton was in an intimate personal relationship with Ms Barrett.

55. A number of questions were asked of Ms Assoum about Mr Stainton’s financial resources as at 2014-2018. Whilst confirming that Mr Stainton had considerable financial resources in this period, Ms Assoum stated that he did not have substantial liquid assets apart from his self-managed superannuation fund including available cash to pay out the property settlement with his former wife. She said that if he had cash available personally he would not have needed to borrow the money to pay his wife and pay interest on it. She stated that Mr Stainton had indicated that he did not want to take the $150,000 out of his superannuation fund and was willing to borrow the amount required including the payment of interest. Ms Assoum indicated that Mr Stainton had to borrow the funds as he was put in a position where he needed them as Ms Barrett had not repaid him the amount he was owed. Ms Assoum stated that she had subsequently been informed by Mr Stainton that the amounts advanced to Ms Barrett were a loan.

56. Ms Assoum confirmed that in relation to the emails at Court Book 234 which became Exhibit 1 in the proceedings, she was not told by Mr Stainton in the period from 2013 to 2016 that any of the advances referred to were by way of loan, gift or conditional gift to Ms Barrett. Ms Assoum stated that the first time Mr Stainton informed her of the advances to Ms Barrett and that they were by way of loan was in about March 2018 when he told her she was appointed Executor of his will. At that time, he also told her to look in his emails where the loan document was present. She confirmed that she was never told by Mr Stainton in 2017 that there were any advances of the funds as shown in Exhibit 1 to Ms Barrett by way of loan or a conditional gift. When instructions were given to Ms Assoum, she agreed that there were no instructions by Mr Stainton to pursue a claim against Ms Barrett because of a gift or a conditional gift. The instructions were to pursue the advances as they were loans.

57. Later, Ms Assoum amended that evidence to say that she was given instructions by Mr Stainton to pursue the advances by way of a loan or a conditional gift. Such a conversation is not referred to in her affidavit. In my view, if these were his instructions, Ms Assoum would have mentioned that in her affidavit. I am not satisfied that instructions to pursue to the advances by way of a conditional gift were given by Mr Stainton. This is inconsistent with the content of the various emails between Mr Stainton and Ms Barrett from 2016 where he always asserted that the advances were by way of loan.

58. Ms Assoum gave evidence about the property settlement between Mr and Mrs Stainton. She said that as far as she could recall they separated in 2013 and the property division was finalised in 2017. She said her involvement was to attend one or two meetings with Mr and Mrs Stainton and to prepare a spreadsheet of assets and to engage in email correspondence to arrive at an agreement between the parties. She said the final payment to Mrs Stainton from Mr Stainton was in about June 2017 with the final resolution between the parties also being arrived at about that time. Ms Assoum said that there was a shortfall of funds that Mr Stainton would be required to have to meet the property settlement with Ms Stainton and that was in the sum of $150,000 which Mr Stainton borrowed from the bank close to the time of the final resolution. Ms Assoum said that the agreement resulted in Mrs Stainton receiving a settlement of between $2.5m and $3m.

59. Ms Assoum confirmed that in the period 2013-2016, Mr Stainton did not inform her that he had an intimate personal relationship with Ms Barrett. She said that she knew of Ms Barrett and that they had had a lengthy friendship but she was not aware of that relationship being intimate at any time in the period 2013-2016 through being told by Mr Stainton.

60. Ms Assoum was taken to the letter signed by Mr Stainton addressed to the Commonwealth Bank dated 31 March 2014 at page 146 of the Court Book. She said that she was never provided a copy of this letter by Mr Stainton and was unaware of the existence of the letter prior to the commencement of proceedings. She said she was aware of the Deed dated 29 March 2017 as Mr Stainton had told her that the Deed was in his email records. She agreed that she got access to the Deed and was given instructions by Mr Stainton to enforce the Deed. She said she needed to review the Deed for the purposes of probate. Ms Assoum agreed that Mr Stainton never used the words “conditional gift” in providing instructions to her.

61. Ms Assoum impressed the court as a careful, thorough, diligent and honest witness who was doing her best to recall her dealings with her client Mr Stainton. I reject the defendant’s submissions to the contrary. I accept her evidence apart from her assertion that Mr Stainton had given instructions to pursue the advances as a conditional gift. Ms Assoum accepted that Mr Stainton never used those words and I think it unlikely that he gave such instructions in the light of the email evidence where he firmly was of the apparent view in 2016-18 that the advances amounted to a loan to the defendant, Ms Barrett.

Evidence of Mr P Kolimar

64. The plaintiff relied on an affidavit of Mr Philip Kolimar dated 23 March 2021. Mr Kolimar is the stepson of Mr Stainton. In his affidavit, Mr Kolimar describes the close relationship which he had with Mr Stainton during which he contacted him almost daily. He stated that he also visited Mr Stainton regularly whilst he was living at his Glebe property with Mrs Stainton and later when he moved to his new property at Forest Lodge in Sydney. I accept this evidence.

65. Mr Kolimar gives detailed evidence about the financial circumstances of Mr Stainton and his caring for Mr Stainton in 2018 while he was receiving treatment and during the progress of his terminal cancer.

66. Mr Kolimar, who is the biological son of Mrs Stainton, gave evidence in cross-examination that Mr and Mrs Stainton separated in about 2012 but continued to live together for a long time, until November 2015. He said he did not know the date of their divorce and in particular did not know whether they were divorced whilst they continued to live together but said they had separated. Mr and Mrs Stainton continued to live until November 2015 at their Glebe house. He stated that his brother Daniel also lived at the Glebe house until November 2015 when he moved with Mr Stainton to Mr Stainton’s unit at Forest Lodge where he lived until 2018 until the death of Mr Stainton.

67. Mr Kolimar gave evidence that he was told by Mr Stainton on the day that he was diagnosed of cancer of that fact in, he believed, early March 2018. Mr Kolimar agreed that between 2013 and November 2015 as he understood it, Mr Stainton’s permanent place of abode was at the property at Glebe where he lived with Mrs Stainton although they were separated.

68. Mr Kolimar agreed that between 1993 and 2008 he lived with Mr Stainton and Mrs Stainton and confirmed that in that period Mr Stainton was not in a de facto relationship with the defendant, Ms Barrett.

69. Mr Kolimar agreed that Mr Stainton was never in financial hardship up to the date of his death and he was well off with substantial cash reserves. He agreed that because of these reserves, Mr Stainton did not have to borrow. However, he agreed that he was not aware whether the cash reserves were in a personal account or a superannuation account. Mr Kolimar agreed that as he understood it, Mr Stainton was able to draw on his cash reserves for the purposes of $150,000 without needing to obtain a loan and that he had advanced small sums to Mr Kolimar at various stages.

70. Mr Kolimar agreed that in 2018 he was the primary carer of Mr Stainton and that Mr Stainton had used medicinal cannabis oil for a short period as set out in his affidavit.

71. Mr Kolimar agreed that Mr Stainton never told him that he had made a “gift” of money to Ms Barrett. He said that Mr Stainton had told him that he had made a “loan” to Ms Barrett which he regarded as repayable in full. He said the term “gift” was not used by Mr Stainton. Similarly, he gave evidence that Mr Stainton never used the words “conditional gift” in describing his advances to Ms Barrett.

72. In relation to the Deed, Mr Kolimar confirmed that Mr Stainton told him that it had been prepared by his solicitors and that it reflected a loan which had been agreed verbally. He said he understood that the verbal loan was confirmed by the Deed.

73. Mr Kolimar agreed that Mr Stainton never told him that he had been in an intimate relationship with Ms Barrett. He also said that he had never been told by Mr Stainton that he had advanced money to Ms Barrett to purchase a property at Glenhaven but had only been told that he had made a loan to her which was repayable. He said Mr Stainton did not indicate what the loan was for. He also stated that Mr Stainton did not tell him that he intended to reside with Ms Barrett and had advanced the money to her to buy the property so as to go and live with her.

74. Mr Kolimar impressed me as an honest and straightforward witness who was doing his best to tell the truth. I accept his evidence. It is clear that while they were very close, Mr Stainton did not reveal to him all his personal and financial details.

75. The plaintiff tendered a part of a property profile report relating to the house at Glenhaven which became Exhibit D in the proceedings. The part of the property profile report included a Property Activity Summary which showed that the Glenhaven house had been sold on 30 March 2014 for $1,385,000, had been placed for sale in September 2017 for $1,999,000 but had not been sold that time. The summary showed that the property was rented in November 2017.

Evidence of Mr J Purcell

76. The defendant relied on and read an affidavit of Jeffrey Clive Purcell sworn 12 April 2021. As stated above, Mr Purcell was the mortgage broker engaged by the defendant Ms Barrett to arrange finance relating to her purchase of the Glenhaven property in March-April 2014. Mr Purcell was initially retained by Ms Barrett to seek a loan for another property at Cherrybrook but was informed by Ms Barrett that Mr Stainton had rejected the choice of the Cherrybrook property and selected the property at Glenhaven which was more expensive. Mr Purcell gives evidence of his dealings with Mr Stainton in relation to his alleged gift to Ms Barrett and the signing by Mr Stainton of the letter addressed to the Commonwealth Bank dated 31 March 2014 at Court Book page 146. The purchase of the Glenhaven property required a substantially higher loan by Ms Barrett at the limit of her borrowing capacity in the amount of $1,047,000. The affidavit of Mr Purcell sets out conversations which he had with Mr Stainton as referred to above. Mr Stainton expressed a preference for the Glenhaven property which he regarded as being on a large block of land and a very comfortable family home. Mr Purcell states that Mr Stainton said to him: “I’m gifting this amount to Linda to complete the purchase, as I will be living there with her and her three daughters”: see paragraphs 12 and 16 of the affidavit.

77. In his evidence in chief, Mr Purcell indicated that he was now retired as a mortgage broker.

78. In cross-examination, Mr Purcell agreed that he was acting as a broker in March 2014 and asserted that he was acting as the lender’s agent. This is inconsistent with paragraph 10 of his affidavit where he states that he was retained by the defendant. It seems clear that Mr Purcell was assisting Ms Barrett in the identification of a suitable loan for her at the time.

79. Mr Purcell agreed that he was assessing Ms Barrett’s credit worthiness and her ability to afford the Glenhaven property. He agreed that he asked Ms Barrett for proof of her ability to purchase and service the loan that she would need. He agreed that he was not satisfied that she could afford the loan for the Glenhaven property without other financial assistance. Mr Purcell stated that Ms Barrett said that she had enough funds to purchase the property as Ms Barrett told him she had a friend who was willing to gift to her the further money which she needed. He agreed that he needed confirmation that the amount was to be advanced by Mr Stainton as Ms Barrett’s friend by way of gift. He said this was because he was of the view that Ms Barrett could not afford to repay the loan that was required unless there was a gift which was repayment and interest free.

80. Mr Purcell gave evidence that it was a common practice to require a single page document as at March/April 2014 to confirm the status of the advance similar to that dated 31 March 2014 which is at Court Book page 146. He said this was a normal document sought when a gift was to be provided and was required by the Commonwealth Bank at the time. He accepted that the document did not provide a lot of information and said that it explained that the funds were a gift and they were repayment and interest free. Mr Purcell said that he typed the draft document out himself based on pro-forma documents that were used a lot at the time by the Commonwealth Bank for gifts. I accept that evidence.

81. Mr Purcell said he prepared the document on 31 March 2014 and sent it to Ms Barrett for delivery to Mr Stainton. He agreed that the form he prepared was as set out at Court Book page 169: see Exhibit A. He said the document was a simple letter in confirmation of a gift. In relation to paragraph 16 of Mr Purcell’s affidavit, he said that he was confident that Mr Stainton stated to him that he had convinced Ms Barrett into buying the home and that he used the word “giving”. He said he was “100% certain” that this word was used by Mr Stainton: T131.11. He said he had a conversation with Ms Barrett to the effect that if there was to be a gift, Mr Stainton had to sign a form to confirm it. He accepted that the conversations referred to with Ms Barrett were not in his affidavit but he confirmed that there was a conversation with Ms Barrett to this effect at the time of the loan application.

82. Mr Purcell stated that Ms Barrett said to him that Mr Stainton wanted a larger property and the Cherrybrook property was not big enough for him. He stated that the home at Glenhaven was stated to suit both Mr Stainton and Ms Barrett’s needs and was a much larger home. He stated that they were looking for a home which they proposed to live in together “at some time”: T131.41-T132.27.

83. In re-examination, Mr Purcell agreed that the Glenhaven property was more expensive than the Cherrybrook property and as part of his function he had to assess Ms Barrett’s borrowing capacity. With the cheaper Cherrybrook property, he recalled Ms Barrett would have surplus funds for contingencies in an amount near $100,000 but that even with the gift from Mr Stainton, Ms Barrett would not have surplus funds if she acquired the Glenhaven property.

84. Mr Purcell impressed the court as an honest and careful witness who was doing his best to recall the circumstances of the advance of moneys from Mr Stainton and his meetings with him 2014. I accept his evidence as to the circumstances of his meetings with Mr Stainton and the execution of the letter by Mr Stainton addressed to the Commonwealth Bank dated 31 March 2014.

Evidence of the defendant, Ms Barrett

85. As indicated above, the defendant relied on two affidavits sworn by her in the proceedings, the second being a responsive affidavit to the affidavit of Ms Assoum, the plaintiff. In paragraphs 17-25 of the second affidavit, Ms Barrett refers to the alleged “nature” of emails from Mr Stainton and the fact that she felt very threatened by them. She also refers to Mr Stainton’s alleged assertion that the letter to the Commonwealth Bank dated 31 March 2014 was invalid as it was not prepared by his solicitors. In paragraphs 19 and 22 of the second affidavit, Ms Barrett states that she attempted to make changes to the draft Deed “which kept me and my children in our home” and to the fact that she “kept changing the Deed to give me time to try and maintain a roof over my family’s head …”. She refers to being confronted by Mr Stainton, including at her work, who she said was acting in “a most bullying way”.

86. In relation to the preparation of the CBA letter, Ms Barrett states that she played “no part in the process” and states inter alia the following in paragraph 28 of her second affidavit:

“I agreed to go ahead with this purchase as Mike and I were already discussing marriage and this would become our home and I accepted it had to be up to his standards and a more salubrious suburb such as Glenhaven. I was also accepting that once the divorce was finalised the mortgage would transition into both our names”: Court Book page 158.

87. With leave, Ms Barrett expanded on her affidavit evidence in chief. She referred to a conversation with Mr Stainton at about the time the Glenhaven property was purchased when he stated that as his divorce was not settled he did not want his involvement in the purchase of the Glenhaven property to be known. See also paragraph 28 of Ms Barrett’s second affidavit (he “insisted that both our relationship and this advance of funds be kept secret”).

88. Ms Barrett referred to a later conversation after the relationship with Mr Stainton had been terminated and when she had reconciled with her husband where Mr Stainton stated that because Ms Barrett had reconciled with her husband for a period of six months, Mr Stainton was worried that there may be grounds for him (the husband) to make a claim on the Glenhaven property. She states that Mr Stainton said that he wanted to protect the property and did not want Ms Barrett’s husband to benefit in any way from the amount gifted to her to purchase the property.

89. In relation to references to “harassment” and “being scared”, Ms Barrett stated that Mr Stainton was extremely demanding, would turn up at her then place of employment unannounced, would drive past her property, would continually call her and was engaging in constant harassment: T152-3. She stated that Mr Stainton was very bitter and angry at the reconciliation which had occurred for a period with her ex-husband: T153.41.

90. In relation to the oral evidence of Mr Kolimar concerning Mr Stainton’s residence with his wife but in a separated state up to November 2015, Ms Barrett said that this was a complete surprise to her as she was in an intimate relationship with Mr Stainton in that period. She said she would not have purchased the Glenhaven property with him in 2014 if she had known that he continued to live with his wife.

91. In cross-examination, Ms Barrett agreed that in early 2014, she and Mr Stainton were progressing their relationship slowly as they were coming out of separate marriages and she wanted to be cautious, with Mr Stainton having the same mindset: T159. This was the reason that they did not live together at that time: T159.28. However, Ms Barrett agreed that the Glenhaven property was intended by both her and Mr Stainton to be their eventual home together: T159.32. Ms Barrett stated that although they did not live together at that time it was always the plan between them to move in together in the future: T159.44.

87. Ms Barrett gave evidence that although the Glenhaven property was in her name and she would be paying the mortgage, the plan was that once the divorce between Mr Stainton and Mrs Stainton was finalised the mortgage over the Glenhaven property “would transition into both [their] names” with Mr Stainton becoming a joint owner of the Glenhaven property: Barrett second affidavit paragraph 28 and T161.23-.33. This was in the context where money was being advanced by Mr Stainton to Ms Barrett towards the deposit for the property: T161.43.

88. Ms Barrett accepted that Mr Stainton had advanced to her three sums being $135,000, $10,000 and $6,000 and as the owner of the Glenhaven property she had obtained the benefit of the contributions: T162.20; T163.44; T164.1-.11; cf Exhibit 1. It seems that, however the later two advances were used, they were used for the benefit of Ms Barrett.

89. Ms Barrett agreed that she intended to purchase a property at Cherrybrook whereas Mr Stainton insisted on purchasing the property in Glenhaven. She agreed that it was a joint decision to use the funds advanced to purchase the Glenhaven property: T164.30. Ms Barrett also agreed that there was never any agreement between her and Mr Stainton to use the moneys advanced for another property other than the Glenhaven property and if she had used the moneys to buy the Cherrybrook property that it would have been the “wrong thing to do”: T164.38. She accepted that the understanding between them was that in time they would become the joint owners and joint mortgagors of the property: T164.43.

90. Despite stating in paragraph 28 of her second affidavit that she played “no part in [the] process” of the preparation of the “gift letter” to the Commonwealth Bank, Ms Barrett accepted that by way of email she sent a draft of the proposed letter to Mr Stainton on 3 April 2014: Exhibit A page 168, Court Book page 168. She accepted that she had seen a copy of the proposed draft letter before it was signed by Mr Stainton.

91. In relation to the draft letter, Ms Barrett accepted that it made no mention of their intention to live together in the property in due course or what would happen if the relationship did not continue and Mr Stainton did not reside in the property. She accepted that to that extent, the letter to the Commonwealth Bank did not state the true character of the contributions made by Mr Stainton to her in 2014: T166.36-T167.17. Ms Barrett said that she understood that there had been discussions between Mr Stainton and Mr Purcell before the letter was drafted.

92. Ms Barrett confirmed paragraph 3(k) of the Defence to the Amended Statement of Claim, that she and Mr Stainton separated in March 2015. She gave evidence that Mr Stainton never handed back his set of keys to the property: T169.49 cf paragraph 3(h) of the Defence to the Amended Statement of Claim. In her oral evidence, Ms Barrett said she instigated the cessation of the relationship at that time while leaving open the possibility of a relationship later: see also paragraph 66 of her first affidavit. Ms Barrett agreed that the relationship truly ended between her and Mr Stainton when she reconciled with her ex-husband later in 2015. Thus, when Mr Stainton made the contribution to the Glenhaven property there was a mutual hope that the relationship would continue and that he would reside in the property fulltime at some point and become a joint owner of the property (T170.30-.49) but following the reconciliation with Ms Barrett’s husband she agreed that there was no possibility of a continuing relationship with Mr Stainton at that point. She gave evidence that Mr Stainton became bitter at that point because of the reconciliation and at about that time started demanding repayment of the moneys advanced. Ms Barrett agreed that Mr Stainton’s demands were understandable as at that time there was no prospect of the relationship continuing with her: T172.2.

93. Ms Barrett referred to Mr Stainton making references in 2014 to the advances being a gift and this was her understanding of the advances made at the time. She said she viewed herself as having an entitlement to keep the benefit of the advances regardless of what happened in the future between them: T172.29.

94. Ms Barrett was then cross-examined in relation to a number of emails sent in the 2016-2017 period between her and Mr Stainton commencing with the 24 March 2016 email which was part of Exhibit 1: Court Book page 234. Ms Barrett agreed that in her various email responses in the period (Court Book pages 78 and 171 (Exhibit A), and page 173 (Exhibit A)) which were written in response to demands for payment from Mr Stainton, she made no mention that the advances in 2014 were a “gift” and also made no mention of the 31 March 2014 letter to the Commonwealth Bank. However, Ms Barrett referred to there being many telephone calls and texts with Mr Stainton in which this was asserted by her: see the conversations referred to in paragraphs 76 and 82 in her first affidavit (Court Book pages 131-133). Ms Barrett denied that the reason that she did not take the opportunity in her email responses to assert that the advances were a gift was because she always believed she had an obligation to repay the advances if the relationship did not continue with Mr Stainton and the money was not a gift but was an interest free loan: see T174.38-T176.9 and T177.21-.34. Ms Barrett accepted that Mr Stainton was pressing her to repay moneys which he felt she owed him.

95. In her affidavit evidence, Ms Barrett refers to Mr Stainton’s conduct which she regarded as threatening, intimidating and bullying. Despite this, she agreed that Mr Stainton’s correspondence to her by way of emails was courteous and polite: see for example Exhibit A page 172, T180.28, Exhibit A page 173, T183.15-.19, Exhibit B page 179 and T192.41. Despite her agreement that the communications were courteous and polite, Ms Barrett asserted that Mr Stainton was haranguing and pressuring her at the time to repay what he regarded as a loan. She accepted that he was not behaving in a haranguing fashion in the emails and that she made no mention of any harassment or intimidation by Mr Stainton in her email responses at the time: T195.34. See also Ms Barrett’s evidence at T196.24.

96. Ms Barrett was then asked about the circumstances of her signing the Deed: see her first affidavit at paragraphs 79-84. Despite asserting that Mr Stainton was very threatening and intimidating at the time and constantly was insisting for her to sign the Deed, Ms Barrett accepted that she had adequate time to consider the draft of the Deed proposed but said she did not have sufficient financial resources to obtain legal advice. She accepted that she did the best she could in relation to the Deed, including making enquiries at the Commonwealth Bank: see Exhibit A page 175, being her 27 March 2017 email and T192.3-T194.14. Ms Barrett accepted that by this email she was able to provide her comments for the changes which she sought to the draft Deed: T193.14. Ms Barrett asserted that despite seeking to restrict the right to place a caveat only on the Glenhaven property, she was not sure what was meant by a caveat at that time: T194.34. Ms Barrett also gave evidence that she understood that the changes she sought were actually made to the final version of the Deed: T195.34-.47.

97. When it was put to Ms Barrett that she had a choice whether to sign the amended version of the Deed, Ms Barrett said that she felt she had no choice but stated that she “needed to make sure that the Deed was some way, in some form palatable to me” while claiming that she signed it under “enormous duress”: T196.2-.7. This, however, was not mentioned by her in the emails relating to the Deed as Ms Barrett said she believed it was “completely obvious” to Mr Stainton how she was feeling: T196.24. It should be noted that the curriculum vitae on Ms Barrett’s LinkedIn profile before the court, established that she held a number of senior executive/marketing positions in commercial entities during the course of her career: Exhibit E.

98. Ms Barrett rejected the suggestion that she displayed her choice by providing her comments on the draft Deed: T199.1-.9. Ms Barrett referred to having a number of serious family problems with one of her children at this time. Ms Barrett described the position in her evidence as follows: “There was a lot going on with life at that point and I just wanted Mike out of my hair to be honest. I just, I just needed to stop the harassment, stop the texts, stop the constant pressure. So in the end I just gave up and signed the thing”: T201.28. Ms Barrett accepted that she did not voice any of these concerns to Mr Stainton in her email response of 27 March 2017 at Exhibit A page 175: T200.41 and T201.6.

99. Ms Barrett was asked questions about paragraph 71 of her first affidavit: Court Book page 131. Ms Barrett confirmed that she reconciled with her former husband for a period of eight months in 2015 from late March/early April to October 2015. She confirmed that during this period, Mr Stainton drove past her house very regularly and almost every time she was home but never called in.

100. Ms Barrett was asked about paragraph 21 of her second affidavit where she asserts that Mr Stainton made threats and demanded that she borrow money or sell the Glenhaven property at a substantial discount. Ms Barrett accepted that the emails that she had been taken to in cross-examination did not show that but made reference to telephone conversations and texts. Ms Barrett said that these were not in the evidence and she did not keep copies of the text messages as she did not know that she would need them for the future. Ms Barrett was unable to point to any material in evidence where there is a reference to Mr Stainton making telephone calls or text messages constantly demanding that she sign the 2017 Deed.

101. In relation to the Deed, Ms Barrett rejected the suggestion that she made a decision to sign the Deed rather than face legal proceedings brought by Mr Stainton. She said she signed the Deed due to the enormous conflict which had arisen with Mr Stainton concerning her ex-husband returning to live in the Glenhaven property.

102. Ms Barrett was then asked questions about her email dated 8 January 2018 (Exhibit A page 176) and, in particular, her statement that she was working to secure financing “to pay back the money I owe you”. Ms Barrett agreed that in the email she sought another six months for repayment in order to secure financing. Ms Barrett also agreed that if the property had been sold or refinanced she would have paid the $150,000 to Mr Stainton due to the Deed and the existence of the caveat. She agreed that there was no allegation that the Deed had been obtained by duress in the email but asserted that Mr Stainton knew how she felt. She also agreed that there was no mention in the email of the advances in 2014 being a gift or of the CBA letter. Ms Barrett, in answer to a question from the court, said she had “no neat answer” as to why her case that it was a gift and not a loan was not mentioned in the emails and she said that she felt she did not need to do so at the time: T215.27. Ms Barrett agreed that Mr Stainton’s reply dated 9 January 2018 (Exhibit B page 184) was polite and courteous but said this was inconsistent with his telephone and text conduct.

103. Ms Barrett confirmed that she had placed the Glenhaven property on the market in 2017 but could not recall the exact date. When shown Exhibit D, the property activity summary, Ms Barrett agreed that the property had been listed for sale and later listed for rent as there were no reasonable offers. She also agreed that she had not relisted the property since the end of 2017.

104. Ms Barrett confirmed that Mr Stainton informed her of his cancer diagnosis in early 2018 and said that she was “stunned” but very sympathetic. She agreed that they met at about this time: see the email dated 30 May 2018 at Exhibit A page 177. Ms Barrett claimed that the payment plan referred to in this email was due to her advancing money for Mr Stainton to take medicinal cannabis. She thought this was part of ongoing treatment. She denied that Mr Stainton did not need financial assistance to her knowledge. She also claimed that the payment plan was not in connection with the debt. This was despite her assertion in her 13 February 2019 email (Court Book page 108) that she had been paying Mr Stainton “a sum of money each month post his diagnosis … as such any sum owing would be reduced accordingly”.

105. In re-examination, Ms Barrett confirmed that she had received threatening and abusive telephone calls and texts from Mr Stainton. She said she no longer had the texts but one aspect of abusive language which she recalled was him accusing her of living “a lavish lifestyle”: T226.46. This was an alleged text in response to the email from Mr Stainton referred to in Ms Barrett’s email dated 14 June 2016 at Exhibit A page 178. Ms Barrett said that she could not give any further details of the content of the text message.

106. Ms Barrett also stated that at no time did Mr Stainton contribute to the mortgage repayments on the Glenhaven property.

107. In re-examination, Ms Barrett also gave evidence about sending an email to the solicitors for the plaintiff one or two days after 16 February 2019 in which she set out her assertions that the advances were a gift and referred to the Commonwealth Bank 31 March 2014 letter. The email which became Exhibit 2 in the proceedings, also referred to the payments made by her in 2018 being paid at the request of Mr Stainton for the purposes of him acquiring medicinal cannabis.

108. Leave to further cross-examination on this email was granted to the plaintiff. It was put to Ms Barrett that the email was not sent one or two days after 16 February 2019 but in fact was sent during the course of the hearing on 27 August 2021 as is shown in the relevant email which is part of Exhibit 2. Ms Barrett indicated in her evidence in re-examination, that the email date had changed when accessed by her early in the morning on 27 August 2021.

109. In reply, the plaintiff led evidence from the solicitor for the plaintiff with carriage of the matter, Mr Lo Presti, that the email was received by him on 27 August 2021 and that he thoroughly searched his email records and could find no receipt by him of an email the same or in substance the same as that claimed to have been sent by Ms Barrett in February 2019.

110. The email Exhibit 2, in substance, sets out the defendant’s case as reflected in her affidavits filed in the proceedings and in the submissions made on her behalf. The crucial point is that there was no reference in the emails which were exchanged between Mr Stainton and Ms Barrett in the period from 2016-2018 that the advances in 2014 made by Mr Stainton were gifts and that support was gained for that proposition by the Commonwealth Bank letter which he had signed in April 2014 (dated 31 March 2014).

111. Accordingly, other than as to credit, when the email in Exhibit 2 was sent does not appear to be particularly significant. Whether Ms Barrett raised the issues with the solicitors for the defendant in February 2019 or through her solicitors in March 2019 (which was conceded by Mr Lo Presti) is not determinative. The real issue is why the matters were not raised by her in emails in the period 2016-2018. The plaintiff says because Ms Barrett was aware that the advances were loans and not gifts. Ms Barrett asserts that it was because these matters were raised in oral conversations and text messages with Mr Stainton but were not referred to in the email correspondence.

112. Overall, Ms Barrett appeared to be an intelligent and careful witness who made concessions where appropriate while maintaining her central position that the advances made by Mr Stainton in 2014 were as gifts and not as a loan or that there was any condition attaching to the gifts. She was also consistent in her evidence that the execution by her of the Deed was as a result of threats and aggressive and intimidating conduct by Mr Stainton. The email correspondence in evidence from Mr Stainton appeared at all times to be courteous and polite while still asserting a right to repayment. The email correspondence is also consistent with Ms Barrett feeling an obligation to repay the advances to Mr Stainton. The contemporaneous material suggests, in my view, that there was no duress as alleged. Ms Barrett’s allegations will need to be considered carefully in the context of the evidence before the court, including the email correspondence and the circumstances in which the Deed was executed.

Comment on the evidence

118. The main persons involved in the facts underlying these proceedings are Mr Stainton and the defendant, Ms Barrett. Mr Stainton is, of course, deceased and cannot give his version of events other than through emails which he sent and other contemporaneous documents which were signed or executed by him. In some ways, there is not a witness from the plaintiff’s camp able to contradict much of Ms Barrett’s evidence.

119. In relation to the issue of the reliability of the evidence of Ms Barrett, many facts turn on alleged conversations with Mr Stainton or the conduct of Mr Stainton. A number of important conversations occurred in 2014-15, several years ago. Memories of witnesses such as Mr Purcell, Ms Briscoe and Ms Barrett herself, may be influenced by perceptions as to what should have occurred. It is, of course, always important to consider the evidence in the light of any independent evidence or any contemporary documentary evidence which makes one version of events more likely than the other version. The court must consider all the surrounding circumstances to determine what is more likely.

120. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31], the majority of the High Court stated as follows:

“31.  Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”

121. I also refer to the important warning comments of McLelland J in Watson v Foxman (1995) 49 NSWLR 315 at 319. Caution should be exercised in relation to evidence of conversations which occurred many years ago. See also Moubarak v Holt [2019] NSWCA 102 per Bell P at [77]. In general terms, where available, contemporaneous documents usually provide a surer guide.

Relevant principles relating to the construction of the Deed

122. In Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161, the Court of Appeal applied the usual principles relating to the construction of a commercial contract, to the proper construction of a Deed: see Bathurst CJ at paragraph 228 and following. Bell P and McCallum JA agreed with the reasons of the Chief Justice. See also WLD Practice Holdings Pty Ltd v Sara Stockham [2020] NSWSC 1488 at [10] per Sackar J.

123. Although Mr Stainton and the defendant had been in an intimate personal relationship in 2014-2015, by the time the Deed was entered into in March 2017 that relationship had ceased and Mr Stainton was pressing for the recovery of his money. Although the parties remained, on one level, friends, there is nothing to suggest that the Deed should not be construed in accordance with normal contractual principles. However, the context in which the Deed was executed and the purpose sought to be achieved by its execution is particularly important.

1. The affidavit evidence of the defendant, Ms Barrett. However, she has, of course, a clear interest in the outcome of the proceedings;

2. The affidavit of Mr Purcell in relation to conversations with Mr Stainton where he confirms the advance was to be a gift. Mr Purcell was an independent witness;

3. The important letter dated 31 March 2014 from Mr Stainton to the Commonwealth Bank, the institution providing the funds for the purchase by Ms Barrett of the Glenhaven property, in which Mr Stainton uses the word “gift” and also confirms “that the gift is interest and repayment free”: Court Book page 146. However, in doing so, Mr Stainton used the wording of the letter forwarded to him by Ms Barrett on 3 April 2014 which had been prepared, I find, by Mr Purcell: Court Book page 169, Exhibit A;

4. Mr Stainton having made unconditional gifts of money to Ms Barrett earlier when she needed assistance: Barrett first affidavit paragraph 9; Exhibit 1. I accept this evidence.

136. Evidence which supports a conditional gift by Mr Stainton includes the following:

1. The relationship between Mr Stainton and Ms Barrett at the time of the transfers being a personal and intimate one with the aim in due course of him moving into the house to be purchased, and the property and mortgage then “transitioning” into both their names: Court Book page 158, paragraph 28;

2. The evidence that Mr Stainton had originally rejected the house Ms Barrett wished to buy as it was unsuitable to his needs and his preference for the Glenhaven house as being suitable to his needs. This adds further support to the fact that he intended to move into the house in a continuing relationship with Ms Barrett;

3. The affidavit evidence of Ms Barrett supporting the relationship and the intention of Mr Stainton to move in with her and possibly marry her in the future: first Barrett affidavit paragraphs 14-15, 36-38 and 57;

4. The fact that Mr Stainton had a set of keys to the Glenhaven property and effectively seemed to treat it as a house that he had access to during the relationship;

5. The important conversations between Mr Stainton and Mr Purcell as set out in paragraphs 12 and 16 of Mr Purcell’s affidavit where Mr Stainton stated to him that he was gifting the amount to Ms Barrett to complete the purchase as he will be living there with her and her daughters and that the Glenhaven property best suited Mr Stainton’s needs. I accept that evidence;

6. Ms Barrett’s significant concessions in her oral evidence in relation to the purchase, the nature of the relationship with Mr Stainton and the advance of funds: T159.30-.45; T160.21; T161.23-.48; T164.13-.43; T167.3-.17; T170.43-T171.15; T182.6;

7. See also the significant pleadings by the defendant in the Amended Defence at paragraphs 3 and 15 (e): Court Book pages 36-7 and 43. These were not contested relevantly in the Reply.

137. In my view, considerable weight should be given to the letter to the Commonwealth Bank and the Deceased’s statements to Mr Purcell. Whilst the description in the entry in Mr Stainton’s bank records was his own description made at the time of the main advance, he was going through a divorce/property settlement at that time where financial matters would have been significant: see Barrett first affidavit paragraphs 43-44; second affidavit paragraph 28. He had no reason to believe that the letter to the Commonwealth Bank or his discussions with Mr Purcell would come to the attention of his wife and therefore it is more likely that he would be frank and honest in these discussions. Ms Assoum and Mr Kolimar were not aware at this time of the advances or the intimate relationship with Ms Barrett. He was keeping these matters “secret” from them. Accordingly, I reject the submission that the advances were loans pursuant to a contract entered into between Mr Stainton and Ms Barrett.

138. The evidence of Ms Barrett strongly supports the conclusion that the gifts were made because Mr Stainton in due course intended to move into the property which was more suitable to his needs as part of his continuing relationship with Ms Barrett and her children. At the time, he saw this as his future. That is supported by the fact he became bitter when Ms Barrett terminated the relationship. See also the matters raised in paragraph 105 of the plaintiff’s written submissions.

139. In Flourentzou v Spink [2019] NSWCA 315 Barrett AJA (with whom Bathurst CJ and Gleeson JA agreed) stated as follows at paragraphs 16 to 22:

“16.  Before the grounds of appeal and the submissions of Dianne and Mario are addressed, it is desirable to make brief reference to some propositions of law. If two persons contribute the whole of the purchase price of property and title is taken by only one of them who thereby becomes the sole legal owner, it is generally presumed that that legal owner holds beneficially for both persons in the proportions in which they provided the purchase money; but if the co-contributor stands in one of several relationships to that legal owner (say, a parent), a different presumption will prevail, namely, that the co‑contributor’s contribution was solely for the benefit of the legal owner who therefore enjoys the entire beneficial interest.

17.  These presumptions, while sometimes cast as legal principles, are in truth no more than prima facie conclusions as to parties’ intentions indicated by bare facts. Where the bare facts are that two persons have contributed the purchase moneys, the prima facie conclusion is that there existed a common intention that they are to enjoy beneficial ownership in proportion to their contributions unless the existence of a particular kind of relationship between them indicates an overriding and unilateral intention of one of them (the assumed parent, in this discussion) that the other alone will benefit, which unilateral intention is destructive of any such common intention.

18.  Either or both of the prima face conclusions as to intention indicated by bare facts may be displaced by proof that the particular intention indicated at a prima facie level is inconsistent with the intention in fact existing. Indeed, it has been said that the so-called presumptions are merely “legal tools which assist in determining” the relevant intention.

19.  Intention is also central to the question whether a particular transfer of money or property is a gift. A transfer is a gift if it is made voluntarily and without receipt by the transferor of any material advantage in return. Words of present gift show an intention to give over property to another, and not to retain it in the donor’s own hands for any purpose, fiduciary or otherwise.

20.  It is thus of the essence of “absolute” or “unqualified” gift that the donor intends that the donee should have enjoyment of the subject matter to the entire exclusion of the donor. The intention of the donor is that the donee shall have full ownership “without any implied reservation of a right to an ultimate refundment”. Where the donor reserves any such right or otherwise qualifies enjoyment of the subject matter by the donee, the case is sometimes described as one of “conditional gift”.A gift in contemplation of marriage is sometimes found to be “conditional”, with the consequence that, if the party who has received the gift refuses to fulfil the condition of marriage, that party must return the property given; while if the party who has made the gift refuses to fulfil the condition of marriage, that party loses the right to claim return of the property given.

21.  Where money or property is transferred by way of conditional gift, a consequence may be that the transferee holds the money or property as a trustee. In McDonnell v Loosemore [2007] EWCA Civ 1531, for example, it was said of circumstances very similar to those of this case that a finding of conditional gift would have meant that the money transferred by the parent was transferred “on a form of trust to hold it for the donor if certain conditions (such as allowing [the parent] to live in the house) were not fulfilled”. Yet again, the issue is one of intention; and the relevant intention is that of the transferor. The question is whether the circumstances in which the transfer is made show an intention of the transferor (or putative donor) to create a trust which is binding upon the conscience of the donee. Regard is to be had to the whole of the relevant circumstances to discover the intention manifested by the words and actions comprising those circumstances.

22.  Different considerations attend the creation (or imposition) of constructive trusts according to principles explained in Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78, and Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59, cases to which the primary judge referred in the part of his judgment in which he identified Mrs Spink’s equity in the Casula property. Such a constructive trust is imposed to prevent an unconscionable assertion of legal title, but even in that kind of case, the intentions of the parties may be relevant to delineation of the relationship in the context of which the question of unconscionability is to be addressed. That point was made by Campbell J in a passage in West v Mead (2003) 13 BPR 24,431; [2003] NSWSC 161 quoted by the primary judge in the same part of his judgment.”

140. Applying the principles set out in Flourentzou v Spink, I am unable to come to the conclusion, in accordance with the submissions of the defendant, that the moneys advanced by Mr Stainton to the defendant amounted to an absolute or unconditional gift. To use the wording in paragraph 23 in Flourentzou, it could not be conceived that having received the advances from Mr Stainton, Ms Barrett was free to spend them (or any part of them) on holidays or lottery tickets or possibly at a casino without thereby invading any legal right of Mr Stainton. The money was clearly advanced on the basis that Mr Stainton would be moving into the house in due course in the context of an intimate relationship and would continue to reside there once he moved in. In my view, it is inconceivable that he would have advanced the money in these circumstances purely as an absolute gift. The context of the advances was his close and intimate relationship with Ms Barrett and his intention to move in with her. He had rejected the first house which she had chosen which was more affordable to her and had chosen the Glenhaven house to which he had agreed, because it was more suited to him. He spent considerable time and effort improving the house. In my view the circumstances do not support an absolute gift. Within paragraph 19 in Flourentzou, it was expected that Mr Stainton would receive a “material advantage in return” being the right to reside in the property in due course and eventually becoming a joint owner of it. This intention to become a joint owner was conceded by Ms Barrett in her oral evidence: T161.29; T166.47. See also the matters pleaded in Ms Barrett’s Amended Defence at paragraphs 3 (a) to (j) and 15(e).

141. The facts here are, of course, different to Flouentzou, as counsel for the defendant submitted orally in some detail. There, Mrs Spink had no-where else to live except the house being purchased partly with her money. This tended to negate an absolute gift. The statutory declaration supplied by Mrs Spink did not refer to a gift although it was requested. Here, Mr Stainton had the means to purchase a property after his divorce was finalised, as he did. The wording in the letter to the Commonwealth Bank is also different to the statutory declaration given by Mrs Spink. However, the wording in the Commonwealth Bank letter was, I find, proposed by Mr Purcell not Mr Stainton. Mr Stainton was also at all times an experienced businessman but there is no evidence he had any legal knowledge.

142. It is also true that the last line in the letter to the Commonwealth Bank dated 31 March 2014 confirms that the gift “is interest and repayment free”. In my view, this phrase must be seen in its context. It was drafted by Mr Purcell. It was used by Mr Stainton because he expected to remain in the property in a long term relationship with Ms Barrett after the property’s purchase. I do not consider that the presence of the phrase is inconsistent with the intention to make a conditional gift or by itself negates a conditional gift. The advance was “repayment free” on the basis of the existing relationship with an intended right to reside in the property. This is consistent with Mr Stainton’s reaction when the relationship was terminated. The condition relevantly was that the relationship continued and Mr Stainton had the right to reside in the property. See Flouentzou in the Court of Appeal at [41]. There was no unqualified donative intention by Mr Stainton and he was to obtain a right to reside in the property which he had chosen and which suited his needs.

143. Ms Barrett’s first affidavit establishes, which evidence I accept, that it was her decision to terminate the relationship with Mr Stainton which prevented him residing in the property in the context of an ongoing relationship. I am satisfied that Mr Stainton within paragraph 20 of Flourentzou, did not intend that Ms Barrett as the donee should have enjoyment of the money used to buy the Glenhaven property to the entire exclusion of him as the donor. In my view, the circumstances imply a reservation to him of a right to an ultimate refund of the advances if the condition of the gift failed. As the conditional basis of the gift failed, in my view there was imposed an obligation on the defendant to repay the moneys advanced to Mr Stainton.

144. This obligation is consistent with the first instance decision of Robb J in Spink v Flourentzou [2019] NSWSC 256 at [323]. In essence, the entire substratum of the relationship between Ms Barrett and Mr Stainton failed. The circumstances as to the relationship are supported by the affidavits of Ms Barrett herself and her oral evidence. See also Flourentzou at first instance at [237]-[239].

145. I can see no basis for the estoppel pleaded in the Amended Defence at paragraph 12. The Commonwealth Bank is not a party to the proceedings. Ms Barrett was aware at all times of the circumstances in which the gift was made by Mr Stainton. See paragraph 138 above.

The proper construction of the Deed

146. What affect does the Deed have on this conclusion? Does it alter the nature of the advances in 2014?

147. The defendant submits that the Deed is void for uncertainty or alternatively should be construed strictly.

148. First, it is submitted by the defendant that on its proper construction as seen in the context of the recitals, the Deed was to be applicable to a potential future advance of $150,000 by Mr Stainton to Ms Barrett, not to the existing advances which had been made in 2014 (written submissions, paragraph 121).

149. The plaintiff submits that this is an uncommercial and unrealistic construction of the Deed which must be reviewed and construed in its context in relation to the previous advances which had been made by Mr Stainton to Ms Barrett in 2014.

150. In my view, the submissions of the plaintiff should be preferred on this issue.

151. In relation to the recitals, these strictly do not form part of the Deed but refer to the context in which the Deed was executed. There is no suggestion on the evidence that there was ever any possible intention as at March 2017 of Mr Stainton making a future advance of $150,000 to Ms Barrett. The whole context of the Deed was that it was executed in circumstances where Mr Stainton was seeking the repayment of the moneys which he had advanced in 2014. Accordingly, the wording in the recitals is inaccurate to the extent it refers to a future intention to lend money and can only realistically refer to the amount of money which was previously advanced in 2014. However, for the purposes of the Deed this sum, described as “the Principal Sum”, was limited to $150,000.

152. Secondly, reference was made in the course of the hearing to the parties being described as “Mortgagor” and “Mortgagee” and that as no mortgage was created by the Deed, the Deed, or alternatively clauses 2.1 and 5.1, must be void for uncertainty. A deed, like any contract, can be void for uncertainty but the courts will attempt to give the agreement a meaning as objectively intended by the parties: Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 436-437. As Barwick CJ stated, no “pedantic or narrow approach” is warranted or should be adopted.

153. In my view, the Deed is not void for uncertainty despite the description used for the parties. These titles may be related to the right set out in Clause 4.1. However, in its context in my view the Deed can be construed so as to ascertain its objective intention.

154. The Deed may have been intended to create a limited equitable interest in the Glenhaven property by granting a right to caveat: see Troncone v Aliperti (1994) 6 BPR 13,291; cf Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 at [92]-[98]. It is unnecessary to decide this issue.

155. Thirdly, in my view it would be wrong to interpret Clause 2.1 as effectively giving Ms Barrett a right to remain in the property indefinitely without giving rise to an obligation to repay following a demand (plaintiff’s written submissions, paragraph 121). Although this is one possible interpretation of Clause 2.1, in my view it is not a commercial construction having regard to the context in which the Deed was entered into. At this time, Ms Barrett was attempting to either refinance or in due course sell the Glenhaven property after repairs were completed: see the 27 March 2017 email at point 2 at Exhibit A page 175. It was thus expected by the parties that she would be in a position to repay the money upon the refinance or sale. For various reasons explained in the correspondence between the parties, what was intended at the time could not occur because the property did not sell as it required substantial work before being placed in a poor market: see the 8 January 2018 email at Exhibit A page 176. To leave to Ms Barrett to decide whether the property should be placed on the market and a right to repay arise, would in my view negate the purpose of the Deed and be an uncommercial construction which would stultify Mr Stainton’s rights. This approach gains some support from Clause 6.1 of the Deed which obliges each party to the Deed to do all things as may reasonably be required by the other parties so as to carry out and give effect to the terms and intentions of the Deed.

156. Fourthly, the defendant submits the Deed was a “fraud” on the CBA. The CBA was not a party to the proceedings. The question to be determined is the proper construction of the Deed entered into between the Deceased and the defendant and the rights it created between them.

157. In my view, on its proper construction, Mr Stainton was entitled to demand the repayment of the moneys up to $150,000 under Clause 5.1 as he did in the email correspondence. Ms Barrett then had a reasonable time to repay the money. I do not find the Deed is void for uncertainty as claimed by the defendant.

158. There is an issue whether, if the advances in 2014 were either absolute gifts or conditional gifts (as I have found), the Deed could alter the characterisation of the advances. The defendant submits it cannot: written submissions paragraphs 3, 121-123 and 136. In my view, parties can by deed enter into obligations which are potentially inconsistent with the true circumstances surrounding the initial advances of moneys. Essentially the Deed, which of course does not require consideration to be effective, imposed a new obligation on the defendant to repay the sum of money referred to of $150,000 on demand. No defence relying on mutual or unilateral mistake was pleaded: see Amended Defence paragraphs 4-9. Clause 6.3 also evinces an intention to be the entire agreement of the parties and to supersede all earlier conduct of the parties with respect to the subject matter of the Deed. The evidence establishes that a demand for repayment was made under the Deed.

146. If I am wrong in this construction of the Deed or the Deed is void for uncertainty, then the obligation of the defendant to repay the moneys outstanding pursuant to the conditional gift continue to exist.

Duress

160. In her affidavit and her oral evidence, Ms Barrett claims that she entered into the Deed because of bullying conduct by Mr Stainton combined with threats and intimidation. See the Amended Defence at paragraph 4. Duress is pleaded.

161. The correspondence between the parties clearly indicates that Mr Stainton was pressing for recovery of the moneys. However, the correspondence does not suggest threats or intimidation of the sort normally held to give rise to duress. Ms Barrett agreed that the email correspondence from Mr Stainton was courteous and polite. She claims that the relevant conduct was in phone conversations, texts and during meetings or unannounced visits to her work. However, such conduct is not even mentioned or referred to by her in the emails between the parties. Further, Ms Barrett, in what appears to be a confident and careful consideration, sought amendments to the draft Deed: Exhibit A page 175, email dated 27 March 2017. The email refers to a desire to avoid a second registered mortgage but then asserts that Ms Barrett does not believe it is in their interests “to go to those lengths to record our agreement though.” This is inconsistent with duress. The claims of duress made by the defendant were vague and not cogent.

162. The affidavit of Ms Briscoe also does not support the fact that the Deed was entered by Ms Barrett under duress.

163. In Mei Zhang v Ye Cheng [2018] NSWDC 147 I stated the following in a different context at paragraphs 34-37:

“34.  In relation to the defence of economic duress, the Court of Appeal case of Australia and New Zealand Banking Group v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 considered economic duress in detail and found it to be a vague defence. It held that the vagueness of the concept of illegitimate pressure in economic duress could be avoided by treating the concept of duress as limited to threatened or actual unlawful conduct, not illegitimate pressure through the threatening of lawful conduct: at [66].

35.  The question here is whether what was threatened by the plaintiff on the evidence of the defendant was the threat of unlawful conduct. The plaintiff submits that all that was threatened was to say “bad things” and this could have either been a threat of defamatory matters or the expression of legitimate commercial grievances by the plaintiff such that through his conduct she had lost her very considerable investment. The plaintiff refers to [51]-[52] of Dunwoodie where McColl JA referred to a fear “which could be assumed to some extent to paralyse the will”, referring to Barton v Armstrong [1973] 2 NSWLR 598 at 607. It is said that this is absent in the present case.

36.  The defendant submits:

(i)  Dunwoodie and Barton v Armstrong involved threats of physical violence, and here, economic duress only is relied upon by the defendant;

(ii)  For economic duress to be established, the threat of tortious conduct alone is sufficient. This submission appears to have some force because it is accepted that economic duress can be established in relation to conduct which could only be tortious. See Karam, above, at [48] and at [61]-[62]. At [66] in Karam, the court appeared to accept that a threat in relation to the victim’s property was sufficient, which may be tortious;

(iii)  The conversation relied upon in paragraph [15] of the defendant’s 20 April 2018 affidavit refers to the plaintiff saying bad things sufficient to cause the destruction and failure of the defendant’s business not merely bad things at large related to the failure of the investment; and

(iv)  What is relied on here is a continuing fear as a result of the threats: see paragraphs 17, 23 and 27 of the defendant’s 20 April 2018 affidavit.

37.  How should one reasonably read paragraph 15 of the defendant’s 20 April 2018 affidavit? While there are various interpretations of the conversation in it potentially available, I read the limited evidence of the conversations in the defendant’s affidavit for the purposes of the current interlocutory proceedings as conveying the threat of saying matters by the plaintiff which were likely to be defamatory and importantly destructive of the defendant’s reputation and business. In my view, on the limited evidence before me, that reaction to the conversation set out was a reasonably open one for the defendant to take at the time. Accordingly, it appears to me that a tort was threatened and the defence of economic duress, while not strong on its face, is at least arguable. Reliance issues, which are important as a number of documents were signed by the defendant over more than a year, cannot be determined at this stage.”

164. This decision was upheld by the Court of Appeal: Mei Zhang v Ye Chang [2018] NSWCA 299.

165. The onus rests on Ms Barrett to establish duress.

166. In my view, there is no compelling evidence of conduct by Mr Stainton sufficient to establish duress being a fear “which could be assumed to some extent to paralyse the will” within Barton v Armstrong (1973) 2 NSWLR 598 at 607. There were no threats of physical violence referred to. There were no threats to damage the Glenhaven property referred to. In my view, all that occurred was pressure through the threatening of lawful conduct being to require payment of the money, not by threatened or actual unlawful conduct including tortious or criminal conduct. There is no clear suggestion of any of that in the present case. Ms Barrett could not give clear evidence of abusive conduct in text messages other than a criticism by Mr Stainton of her alleged lavish lifestyle. In McKay v National Australia Bank [1998] 4 VR 677 Tadgell JA (with whom Batt JA agreed) stated at 690: “The proper use of legal process does not constitute duress. Thus, the threat to institute a civil action in good faith cannot constitute duress.”

167. See also the analysis by the Victorian Court of Appeal in Braam v BBC Hardware Ltd [2020] VSCA 164 at [81]-[83]. In my view, there is no cogent evidence of the will of Ms Barrett being overborne or deflected. As she states in her oral evidence, Ms Barrett was trying to protect her position in relation to the Deed (T193.19) and make the terms of the Deed to be in a form “palatable” to her: T196.1.

168. In his oral submissions, counsel for the defendant appeared to suggest duress by unconscionable conduct or undue influence. There is no pleaded case relating to these causes of action. They are also not established on the evidence. There is also no cogent evidence to establish, as counsel for the defendant submitted, that in 2017 Ms Barrett remained under the Deceased’s “control”.

169. Conduct amounting to deceit by the Deceased is alleged in the defendant’s written submissions: paragraph 131. Any failure by the Deceased to reveal to the defendant that he was still living with Mrs Stainton, although separated under the one roof (see T96-7), occurred in 2014 not before or around the time of the execution of the Deed. The claimed deceit, even if established, is not relevant and does not establish duress.

170. To the extent required, having regard to the email evidence, the evidence of Ms Briscoe and the comments on the draft Deed made by Ms Barrett, I reject any assertion by Ms Barrett of unlawful or threatening conduct of the type which gives rise to duress by overbearing or deflecting a person’s will. I find this whilst accepting Ms Barrett’s evidence that she could not afford to obtain proper legal advice on the draft Deed. In her comments she successfully sought to limit the scope of the Deed.

171. In my view, the defence relating to duress, intimidation and bullying by Mr Stainton should be rejected.

Other agreements pleaded

172. In paragraphs 20-24 of the Amended Statement of Claim an “acknowledgment agreement” is pleaded. In paragraphs 25-29 of the Amended Statement of Claim an instalment agreement is pleaded.

173. In my view, it is unnecessary to consider these alleged agreements in the light of my findings in relation to the gift being conditional and the validity of the Deed. However, having reviewed the correspondence, I do not consider that objectively it was intended by the parties to enter into a new agreement which would replace or vary the Deed. The correspondence clearly indicates that the defendant intended to repay the amount in the Deed less any repayments. Contrary to paragraph 21 of the Amended Statement of Claim, I do not consider it amounted to a new promise or a new agreement relating to the payments of instalments.

Estoppel

174. It is also unnecessary to consider the estoppel pleading in paragraphs 30-31 of the Amended Statement of Claim in the light of my earlier findings. However, I accept that on the evidence and I find, that the defendant acknowledged an obligation to repay the amounts advanced and Mr Stainton relied on that by not further pressing for repayment immediately: see the emails in Exhibit A pages 171-177. Accordingly, in my view the defendant should be estopped from retreating from her promise. Clearly, Mr Stainton acted to his detriment by not taking further action on the basis that the payments would be made as promised. However, any such detriment is limited as the payments were made up to September 2018: Court Book pages 103-105.

Restitution

175. In my view, and in accordance with my findings, Mr Stainton did not act under any mistake of fact and/or law that the moneys transferred operated as a loan that Ms Barrett would repay or that there was an advance that was binding and enforceable. However, having regard to my findings as to the conditional nature of the gift there is no lawful basis for Ms Barrett to retain the balance of the transferred moneys.

Conclusion

176. For the above reasons, I find:

1. That the initial transfers were conditional gifts and that the condition failed giving a right of recovery of the amounts transferred;

2. The parties entered into the Deed which replaced any existing obligations and which obliged Ms Barrett to repay the moneys upon demand. A demand was clearly made by Mr Stainton. The moneys have not been fully repaid and therefore there has been a breach of the Deed giving rise to a right to recovery.

177. On the facts, I find that Ms Barrett has repaid the sum of $5,000 to Mr Stainton. I reject the evidence of Ms Barrett that the repayments were made to assist Mr Stainton in the purchase of medicinal cannabis during his terminal cancer. This is inconsistent with the evidence of Mr Kolimar, which I accept, that Mr Stainton had been prescribed cannabis oil which he did not like and which Mr Kolimar had paid for. The payments made by Ms Barrett are clearly consistent with the emails dated 30 May 2018 and 3 June 2018 relating to repayments: Exhibit A page 177. I find that the moneys advanced were repayments and not gifts by Ms Barrett. The evidence of Ms Assoum clearly establishes than as at May-September 2018, Mr Stainton had the financial means to afford medicinal cannabis if required. He had substantial resources in his superannuation fund. See also the inventory of property as at the date of his death: Exhibit C page 188.

178. Accordingly, Ms Barrett has repaid the amount of $5,000.

179. As $5,000 has been repaid of the $150,000 referred to in the Deed, Ms Barrett is obliged to repay the balance.

180. Having regard to the emails between the parties in May and June 2018, in my view interest should be allowed on the balance from mid-October 2018. This takes account of the email exchange between the parties at this time and the fact that the last payment made was in September 2018. Mr Stainton had earlier in his 2016-2017 emails allowed extensions on the timing of any repayment. If necessary, I will hear further submissions from the parties on this issue.

181. As the plaintiff has been successful, my view is that she would be entitled to a costs order.

Determination

182. I therefore make the following orders:

1. Judgment for the plaintiff.

2. The parties are to bring in agreed short minutes of order within seven days reflecting these reasons for decision.

3. The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

4. Liberty is granted to the parties to apply within 14 days for a different costs order to that set out in (3) above.

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Decision last updated: 29 November 2021