Beronmont v Cubbins
[2003] VSC 491
•25 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8147 of 2000
| BERONMONT | Firstnamed Plaintiff |
| JOAN HENDERSON FAMILY PTY LTD | Secondnamed Plaintiff |
| JOAN HENDERSON | Thirdnamed Plaintiff |
| v | |
| SIMONE MARY CUBBINS | Defendant |
| STEPHEN ASHER | Secondnamed Defendant |
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JUDGE: | NATHAN J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 November 2003 | |
DATE OF JUDGMENT: | 25 November 2003 | |
CASE MAY BE CITED AS: | Beronmont and Ors v Cubbins and Anor | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 491 | |
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MONEY PAID, had and received and lent – Family dispute – Recovery.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A. Bristow | White Cleland Pty |
| For the Defendants | Mr P. Bravender-Coyle | Anthony Peterson & Co |
HIS HONOUR:
This matter is essentially a family dispute. It arises between an aunt, Joan Henderson, and her niece, the defendant Simone Cubbins. I will, however, isolate the various parties. Beronmont is a company controlled by Joan Henderson, as is the second-named plaintiff, Joan Henderson Family Pty Ltd. Joan is the third plaintiff The fourth plaintiff, Mark, is her son but has no part in these proceedings.
The defendant is, as I have said, Joan's niece, being the daughter of her sister. The second defendant, Steven Asher, is Simone's partner and de facto husband, although I generally eschew that term.
Joan is a land developer of some experience and success. Simone has had an indifferent employment record, being a single mother and a carer of her disabled sister. On any view, she does not have experience in land transactions or bookkeeping.
Although part of this action is mounted against both Simone and Asher, it is reasonable to regard their interests as confluent. I am satisfied that Steven had no independent part to play in the various transactions which have given rise to the dispute, although as I will come to observe, it was his interest in a house at View Street, Clayton, which was used as a pair of bootstraps to bring the defendants from a relatively poor state, in terms of wealth, to some degree of comfort.
The claim made by the plaintiff is for money lent, money had and received and an interest component. The plaintiff has abandoned the more esoteric of its claims, being a quantum meruit claim for work and labour done and for breaches of resulting trusts. Consequently, as this case proceeded, it became simplified into a direct conflict of evidence case between Joan and Simone. Joan on the one hand, asserted the money was lent and given to her niece on a pro tem basis and that the moneys in fact have not been returned. Joan does not ask for a proportion of the profits upon resale merely the return of moneys accrued.
Simone, on the other hand, says that all moneys that were accrued have in fact been repaid, that a due accounting has occurred and there is nothing outstanding. That simplifies a turgid and turbid family dispute which it is now necessary for me to detail.
The transactions commenced in October 1997 when members of Simone's family asked Joan to provide Simone with some form of employment. Joan did so. I am satisfied that the employment involved required running some errands, general girl Friday work and some bookkeeping. Joan at that time had an interest in a warehouse which was being renovated by a friend of hers, a Mr Wilkins. Mr Wilkins had under his control, a company, Trevian Pty Ltd, and Trevian was the vehicle which employed Simone to do these jobs. Trevian was the renovator, as I have said, of warehouse premises being the former Dunlop factory on the corner of Normanby and Montague Streets, in South Melbourne.
In July of 1998 Steven and Simone asked for and received funds from Joan in order to renovate View Street, the property owned by Steven. It was, I am satisfied, agreed between the parties that the funds lent for the purposes of renovation were to be repaid from the proceeds of sale. I should interpolate that Simone's employment with Trevian came to an end when the warehouse building project was completed, and after Joan had moved to Sorrento to care for other members of her family, including her son who had become the subject of a bitter matrimonial dispute.
It is said by the plaintiff that, as a net figure, some $15,100 was lent to Simone and Steven for the purposes of the View Street renovations. In the event, View Street was sold and settled on 24 November 1998. In July of that year a further property in Grange Road, Rye, became the subject of interest to the parties. It was agreed that Grange Road property would be purchased by Simone by way of various loan mechanisms which were to be repaid after two years and interest was to be repaid at the rate of $290 per month, that figure being set, I am satisfied, in relation to Simone's ability to repay rather than by reference to the then current market rates. In the event, Grange Road was renovated, including the construction of an outdoor staircase for which no building permit had been obtained.
The parties fell into dispute concerning the Grange Road property and on 15 May 2000 an "Acknowledgment Agreement" in relation to Grange Road was signed between the parties. This agreement was the product of some accounting investigations conducted by Mr Agostonilli, instigated by Joan upon her return from overseas to discover that money was missing from her account to which Simone had been given access. There was to be a re-purchase of the Grange Road property for $175,000. This occurred about the time that Simone evicted Joan's son, Mark, from those premises in what can only be described as a spiteful act. She says that she simply wished to obtain vacant possession of her own premises. But in what were convoluted family interrelationships, the matter of Mark's eviction from the Grange Road property, considering the funds had all been provided by Joan was an unnecessarily hurtful step.
In September of 1998 a third property at Garden Street became the subject of the parties' interest and it was purchased by Steven and Simone using the funds from View Street. The deposit was to be repaid from the View Street proceeds and in effect that was done. There were further purchases of other properties not the subject of dispute in Butler, Parson and Marvin Streets. In June of 1999 a further property was purchased by Simone at Flinders Street. I am satisfied she obtained the deposit for this property by withdrawing funds from Joan's accounts without her consent.
The moneys had and received count are spelt out in Exhibits P2 to P5. It must be noted that in respect of this accounting, reflected in the Acknowledgement Agreement prepared by Mr Agostonilli not only from Joan's records but also in part from Simone's, the various amounts due as moneys paid, and money had and received are detailed. There is some $17,000 due in respect - or so it is alleged - of Grange Road, some $20,000 in respect of Garden Street, some $5,000 in respect of Flinders Street and in relation to View Street there is said to be some $17,000 due.
However, this dispute centres on cash advances which were made by the various Henderson companies to Simone, and to Simone alone. Joan had given Simone authority to withdraw from the accounts but only in respect of her business interests not to allow Simone to launch herself onto the property market. In respect of those sums it is said the sum of $130,000 is due and owing. In all, the plaintiff now claims the sum of $272,400 compiled by arithmetic calculation on the moneys had and received and the moneys paid counts arising substantially, it must be said, by way of the cash advances. There is also the matter of $12,500, an amount due, or so it is said, in relation to a Mercedes Benz car to which I will return.
The only proper accounting I have in this case has been prepared by Mr Agostonilli. The challenges that are made to his accounting come from Simone in the most - one must say - bizarre way. On one occasion, she denied her own accounting and said that it was all a pack of lies. It was only when it was revealed that it was her figures that she so referred to did she resile from that proposition, and even then, grudgingly.
It is the plaintiff's obligation to establish its case on the balance of probabilities. I come to the accounting of the cash advances and on the money lent, I am satisfied that Mr Agostonilli's report, has produced the only evidence of credibility and sustainability. It was not, in my view, in any way meaningfully challenged by the assertions of Simone. That an accounting had been done and nothing was due. Her counsel's admission during the trial bolster that conclusion.
When I come to test this proposition I find that there are various incongruities and inconsistencies in Simone's evidence which compel me to reject it. There are the following inherent contradictions: she asserts that she and Asher being a couple with limited funds and only the View Street proceeds, they were able in a matter of years to aggregate property worth many hundreds of thousands of dollars. Indeed, there had been a number of purchases but they were all purchases facilitated with Joan's money and to suggest, as was done in part, that these were gifts is to deny credibility.
I have the alleged number of hours that Simone says she worked on these properties. She said she was working for 70 hours a week and she asserts that she did so pursuant to an employment contract. I find that claim incredible. I am satisfied that any employment that Simone had with Joan's interests was terminated when Trevian concluded the sale of the South Melbourne properties. Simone continued on, but she was able to do so through the beneficence of Joan, who at that time became distracted from her own financial management because of the demands of her family and also because she travelled overseas. Joan therefore, in my view, reposed trust and confidence in Simone and Simone's ability to manage her affairs. I am satisfied that Simone took upon herself a land development project and projects seeking to emulate her aunt in a way which was frankly beyond her capacities. Consequently land transaction, particularly Grange Road, were entered into by an inexperienced person who saw themselves as a land developer.
I further detail the inconsistencies in Simone's evidence. She gave incongruous evidence when she said she couldn't understand tax, yet she attempted to assert that she could understand complex land transactions. She asserted that she knew what the nature of guarantees were yet it was apparent from further questions that she did not fully comprehend those matters. She said that Joan never signed cheques and then she said that Joan did sign cheques. In her entire evidence there was not one direct answer to any question a fortiori in cross-examination. It was quibbles, equivocations and wild assertions delivered with immense hostility and one must say anger. When she asserted that she was working for 70 hours, she minimised the work she did on her own properties and maximised the work that she said she did on Joan, on wholly unlikely scenario.
I cannot accept the evidence of Simone and where the same is in conflict with that of Joan. I turn then to the other persons who gave evidence. The first after Mr Agostonilli was Steven Asher. I found him to be a witness of truth and he was able to say that he really did not comprehend what was occurring and merely went along as a passenger in Simone's various enterprises. But he did say that the family had operated as a unit and that they had had, until recently, convivial social occasions together.
The same can be said for Emma Cubbins. I found her evidence to be credible. It did not support Simone. It was evidence of a family enterprise in which the funds for that enterprise, except for the View Street surplus - and there was little of that - all came from Joan. Likewise, with Damian Jones.
I can say that I did read the statement of Mr Coad who was not called as I had to rule whether the defence case should be reopened. I observe, so that the parties may at least know this, that Mr Coad's statement was supportive of both cases. Should the defendant feel that a king-hit was denied her, that would be wrong. His narrative was equivocal and went in both directions. Of course, as it was not called, I disregard entirely what was in his statement but I make the observation in order to assuage the curiosity of the parties.
It follows then, that in this case which I forewarned the parties was black or white and was not susceptible to compromise, I needed only prefer one over the other to arrive at a conclusion. I have arrived at that conclusion, it is entirely in Joan's favour. I found her to be a witness of truth and probity. She delivered her evidence directly and to the best of her recall. I find she was the object of needless spite and anger from her niece in what must have been a very hurtful and damaging experience.
I am satisfied that the funds referred to in Exhibits 1 to 5 were lent and advanced to Simone and have not been properly accounted for. I am satisfied that her story of the gift rather than a loan for the Mercedes is a fiction. On the one hand she said that Joan was casual with her money, then she said in effect that Joan was tight with money and miserable, and then she said that Joan gave her a car quite unexpectedly. Even when Simone gave the story of the gift - in he terms - of the Mercedes, she managed to sneer at Joan and demean her. She minimised the gift and scoffed at the purported generosity in an exceedingly unattractive way.
I find that there was no gift of the Mercedes, that it was again a matter of money lent, which Joan was quite prepared to do, on the basis that out of the proceeds of the various sales the moneys would be repaid. They have not been.
Accordingly, I find that there were moneys advanced in respect of View Street to be repaid out of the proceeds of the sale, they have not been and there is some $17,000 outstanding. I am satisfied that in respect of Grange Road there is the sum of nearly $18,000 due from the renovation costs which have not been repaid. I am satisfied that in respect of Garden Street there is almost $20,000 which was used in the renovation expenses and has not been repaid. In relation to Flinders Street, I am satisfied that there are some $5,000 which were used in the renovation expenses and have not been repaid. I am satisfied that there were cash advances in respect of all of those properties in various combinations which have come from Joan's accounts and have not been repaid and accordingly there is the sum of $130,000 which is due and has not been repaid.
I propose to enter judgment for the plaintiff in the sum of $272,400. I will make appropriate orders as to the money in the escrow accounts and I will bring to an end this sad, tragic and ghastly piece of litigation. I might say that not all the Irish charm and wit in the world which Mr. Coyle mastered could convert this sow's ear into anything but a tattered purse.
Mr Coyle advanced many arguments, some of which were plausible and most not, on behalf of his client, he simply left no stone unturned, but the facts as I have found them have defeated him.
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