Bunney v Holt - [2019] SADC 145

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BUNNEY v HOLT
[2019] SADC 145
Judgment of His Honour Judge O'Sullivan
2 October 2019
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS
RESTITUTION - MISTAKE: RESTITUTION ARISING FROM A PLAINTIFF'S MISTAKEN ACTIONS - RECOVERY OF MONEY PAID UNDER MISTAKE
On 11 April 2013 and 14 April 2013, the plaintiff transferred the sums of $100,000 and $4,999 respectively to the defendant.
The plaintiff alleges the $100,000 was a loan ("Loan") to assist the defendant in completing renovations to his domestic residence in circumstances where the defendant was having cash flow problems.
The defendant alleges that he entered into a contract with the plaintiff, for the plaintiff to purchase an Aston Martin Virage from the defendant at a price of $105,000.
The plaintiff further alleges that he advanced the sum of $4,999 as a deposit against the potential purchase of the Virage and in the event that the plaintiff decided to purchase the Virage, the remaining one dollar was to be paid after applying the $100,000 previously advanced as a loan towards the purchase.
At all material times, the plaintiff was suffering from a psychiatric illness and as part of that was experiencing Hypomania.
The plaintiff alleges, in the alternative, that if he did enter into a contract for the purchase of the Virage, which he denied, he did so at a time where he lacked capacity to contract.
The defendant is currently storing a Triumph 2002 Centennial Edition 955i Daytona Motorcycle ("Triumph") at the defendant's premises at Sevenoaks, Kent, England. The plaintiff seeks the return of the Triumph.
Held:
1. The plaintiff had capacity to contract.
2. The parties were not ad-idem and the evidence does not establish an objective intention by the parties to be contractually bound in relation to either the Loan or the purchase of the Virage.
3. The plaintiff is entitled to recovery of the sum of $104,990 plus interest.
4. The defendant is to make the Triumph available for collection by the plaintiff at the defendant's premises where the Triumph is currently being stored within 28 days.
District Court Civil Supplementary Rules r 208, referred to.
Gibbons v Wright (1954) 91 CLR 423; Dalle-Molle (by his next friend Public Trustee) v Manos (2004) 88 SASR 193; Pacific Carriers Pty Ltd v BNP Paribas (2004) 218 CLR 451; Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd (2004) 219 CLR 597; Brambles Holdings Ltd v Bathurst City Council (2001) 23 NSWLR 153; Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309; Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540; Masters v Cameron (1954) 91 CLR 353; Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560, considered.

BUNNEY v HOLT
[2019] SADC 145
Contents
Introduction
Non-Contentious Matters
Issues
Capacity to contract - summary
Witnesses
Background
The parties’ dealings with each other
The cost of renovations to Mr Holt’s premises
Mr Bunney arranges $100,000
Mr Bunney and Mr Holt meet at Carey Gully on 4 April 2013

Mr Bunney’s Evidence
Mr Holt’s Evidence
Mr Bunney makes inquiries of Aston Martin (UK)

Findings for the period up to and including 9 April 2013
The dinner at the Stirling Hotel on 10 April 2013 and other subsequent events
Mr Bunney’s Evidence
Mr Holt’s Evidence
The emails from Mr Bunney dated 11 April 2013
Mr Bunney transfers $4,999

Findings for the period from 10 April 2013 – 16 April 2013
Mr Bunney’s Mental Health
Mr Bunney is admitted to the Royal Adelaide Hospital and the email dated 29 April 2013

Events after Mr Bunney was discharged from Hospital
The 29 April 2013 Email
Mr Bunney prepares a draft contract for the purchase of the Virage

Findings for the period 16 April 2013 – September 2013
First Issue: Did Mr Bunney lack capacity to contract?
Cross-Examination of Dr Champion
Consideration
First sub-issue: Did Mr Bunney understand the nature of a transaction to purchase the Virage?
Second sub-issue: Mr Holt’s knowledge
Ms Catherine Bunney
William Elliot
Andrew Christopherson
Third sub-issue: Assuming that Mr Bunney lacked mental capacity and that Mr Holt was aware of that lack of capacity, has Mr Bunney avoided any contact to purchase the Virage?

Third and Fourth issues: Was there a contract formed and if so for what?
Evidence going to whether or not the contract to purchase the Virage was formed
John Dyson-Harvey
Janine Kitson
David John Williams

Consideration
The Virage
The Loan
Conclusion

Issue five - Relief
Mistake
$100,000 payment
Change of position and Detrimental Reliance
$4,999 payment

Interest
Conclusion
Introduction

In this matter the plaintiff (“Mr Bunney”), seeks the repayment of the sum of $104,499 paid by him to the defendant (“Mr Holt”).
In summary, Mr Bunney alleges that:
1On 11 April 2013, he advanced the sum of $100,000 to Mr Holt for the purposes of enabling Mr Holt to renovate his premises at 1070 Greenhill Road, Summertown, South Australia (“Loan”);
2The balance of $4,999 was paid by Mr Bunney to Mr Holt in contemplation of the purchase by Mr Bunney of a 1992 Aston Martin Virage motor vehicle (“Virage”) owned by Mr Holt at a cost of $105,000. Mr Bunney alleges he never agreed to purchase the Virage and the sum of $104,999 was a deposit with an option to complete the purchase exercisable by payment of the remaining one dollar;
3Further, and/or in the alternative, when he advanced the Loan and the sum of $4,999 he was suffering from Bipolar Disorder Type 1 such that he was incapable of entering into or creating a binding contractual relationship;
4He is entitled to:
4.1repayment of the sum of $100,000 advanced to the defendant for the Loan; and
4.2repayment of the sum of $4,999, on the basis that:
4.2.1no contract was formed for the purchase of the Virage either on the basis that the plaintiff lacked capacity; or
4.2.2alternatively as a matter of fact and/or law; or
4.2.3in the further alternative that any contract for the sale and purchase of the Virage is void for uncertainty.
In his defence, Mr Holt, alleges that:
1 There was no agreement for Mr Bunney to advance the Loan to Mr Holt; and
2 There was a contract for sale of the Virage for the sum of $105,000. The sum of $104,999 was paid by Mr Bunney to Mr Holt as part of that contract.
Mr Bunney also claims the return of a Triumph 2002 Centennial Edition 955i Daytona motorcycle (“Triumph”), currently stored at Mr Holt’s premises at or near Sevenoaks, Kent, England. There is no dispute between the parties that Mr Bunney owns the Triumph, nor is there any dispute between the parties that Mr Bunney is entitled to possession of the Triumph.
Non-Contentious Matters
There is no dispute between the parties that:
1On 11 April 2013, Mr Bunney transferred the sum of $100,000 to Mr Holt’s bank account;
2On 14 April 2015 Mr Bunney transferred the sum of $4,999 to Mr Holt’s bank account;[1] and
3Mr Bunney had glued a $2 coin to his kitchen bench, such sum representing the remaining dollar of the $105,000 said to be payable for the Virage, with Mr Holt to give Mr Bunney one dollar in change upon Mr Bunney giving Mr Holt the $2 coin.
[1] The plaintiff made the transfer that day but it was not affected by the bank until 15 April 2013. Nothing turns on that.
Issues
The issues arising in this matter are as follows:
1Did Mr Bunney lack the capacity to contract?
2If yes, what is the effect of that?
3If no to issue 1 above, was a contract entered into between Mr Bunney and Mr Holt for Mr Bunney to loan Mr Holt $100,000?
4If no to issue 1 above, was a contract entered into between Mr Bunney and Mr Holt for Mr Bunney to purchase the Virage?
5To what relief (if any) is the plaintiff entitled?
Capacity to contract - summary
On the basis of the matters I set out later in these reasons, although Mr Bunney suffers from Bipolar Disorder Type 1 and was experiencing an episode of hypomania associated with that disorder at the relevant times, nonetheless I find he had the capacity to contract.
Witnesses
I deal with the various witnesses called in the course of these reasons. Both Mr Bunney and Mr Holt gave evidence. In so far as they are concerned, I formed the view that both were genuinely attempting to tell the truth although both witnesses understandably approached their case from their own particular perspectives. In both cases I consider that by virtue of the passage of time both witnesses engaged in a certain degree of reconstruction or alternatively were simply mistaken about the events that occurred. In circumstances where I prefer the evidence of one over the other I make that clear in these reasons.
Background
Mr Bunney is a 62-year-old retiree/pensioner who worked previously for both the State and Commonwealth Governments and is in receipt of a Commonwealth superannuation pension.
In or about 2000, he was employed by the South Australian Government in the Education Department as a project officer. He suffered a workplace injury comprising depression and anxiety and was on WorkCover from approximately 2003. He attempted to return to work on a number of occasions and at one stage, spent a year working for the State Government Information Technology Section before returning to the Education Department.
Between approximately 2005 and 2015 he remained on WorkCover before being deemed totally and permanently incapacitated. He took a redundancy package in 2015 based upon his claim for depression and anxiety. He has some superannuation, but is not able to access that superannuation without taxation consequences until he is aged 65.
The parties’ dealings with each other
Mr Bunney said he first met Mr Holt in late 2011 or early 2012 at a party at the house of a woman who lived across the road from Mr Holt in Summertown, in the Adelaide Hills. They talked socially with each other. Mr Holt was renovating his house in Summertown, and in particular was adding a second story. Mr Bunney took a great interest in the house as it had been owned previously by two of his friends, and Mr Holt offered to show Mr Bunney the work he was doing to the house.
Initially, Mr Bunney and Mr Holt did not see much of each other until later in 2012. On that occasion Mr Bunney was driving through Summertown, he saw Mr Holt and stopped to have a chat with him. Either on that occasion or slightly later, Mr Bunney mentioned to Mr Holt that he had been cutting down some trees for some friends. Mr Holt asked Mr Bunney to cut down some trees for him at the back of his house in Summertown. Mr Bunney agreed to do so but during the process of cutting down the trees, injured himself by cutting his arm with a chainsaw. After he recovered, he returned to complete the job and started associating with Mr Holt, this time through a circle of friends in the art world. He described his relationship with Mr Holt at that stage (that is, late 2012/early 2013) as ‘…he sort of all of a sudden became my best friend…’[2]
[2] T55.2-.4.
Mr Holt said that Mr Bunney used to drop in for coffee sometimes. He thinks Mr Bunney came to the property probably half a dozen times or so, maybe more, in the six months leading up to March – April 2013.[3]
The cost of renovations to Mr Holt’s premises
[3] T432.21-.27.
Mr Holt has an interest in Aston Martin vehicles.
In early 2013, Mr Holt anticipated spending another $150,000 on his Summertown property and intended to fund the renovations to the premises from the 2005/2006 sale of a property he had owned in Western Australia. However, he ran short of money with which to fund the renovations because he had purchased two Aston Martin motor vehicles in the period 2011-2013. One was purchased locally in about 2011 or 2012 and the other from the United Kingdom. As a result, Mr Holt said in evidence he was running low on money to fund the renovations but he had some cars to sell.[4]
[4] T436.1-.19.
On one occasion in or about February/March 2013, Mr Bunney was at Mr Holt’s house. Mr Holt was working on the renovations and told Mr Bunney that it was a costly exercise especially the balcony and decking.[5] At that time, Mr Holt showed Mr Bunney an Aston Martin DBS V8 motor vehicle that Mr Holt was working on. Mr Bunney gave evidence that this was the first time he had seen an Aston Martin and that Mr Holt explained some of the details of a hand-built car to him. Mr Bunney said in evidence that he was quite intrigued by it. According to Mr Bunney, on that occasion Mr Holt told Mr Bunney that he had purchased the Aston Martin on his credit card because he did not have enough money to pay for it and he was restoring it for the purposes of sale. In response, Mr Bunney suggested to Mr Holt that he could have obtained a mortgage to get the funds to purchase the car rather than pay such a high interest rate on a credit card. According to Mr Bunney, Mr Holt explained to him that he didn’t have any income so the bank would not give him a mortgage.
[5] T249.14-250.3
Whilst at the Summertown property on that occasion, Mr Bunney also saw a green Aston Martin Virage in Mr Holt’s garage.[6] Mr Holt told Mr Bunney he was going to sell the Aston Martin DBS V8. When Mr Bunney saw the Virage in the garage he asked if he was going to sell that vehicle as well which Mr Holt said ‘no’.[7]
[6] T437.31-438.2.
[7] T438.38-439.3.
Mr Bunney gave evidence that during the same discussion with Mr Holt at Mr Holt’s house in February/March 2013, Mr Holt explained to him his plans to lease out the bottom section of the premises in Summertown which was zoned commercial, but told Mr Bunney he had to finish the upstairs renovation first so he could live there.
Mr Bunney said that Mr Holt told him that since the premises had been zoned commercial, Mr Holt was not allowed to live on the lower floor, hence the construction of the upper floor. According to Mr Bunney, Mr Holt said that he intended to lease out two units on the ground floor on a commercial basis so as to generate sufficient income to obtain a loan or a mortgage to finish off the upper floor.[8] Mr Bunney said he inquired of Mr Holt as to how much was required to finish off the second story and was informed by Mr Holt that a sum of approximately $100,000 would be required.[9] There was no further discussion between the two about the cost to complete the remaining building work on that occasion or at all.[10]
[8] T57.27-.38.
[9] T59.14-32; T436.20-25.
[10] T159.9-.25.
When this conversation took place, it was in the back garden of the Summertown property and Mr Bunney and Mr Holt were standing near the Aston Martin DBS V8 that Mr Holt had just bought.[11]
[11] T437.14-.20.
Page 1 of Exhibit P1 is an email from Mr Bunney to ‘Terrance’ sent Friday, 5 April 2013 with a picture of a green Aston Martin Vanquish with the subject line ‘Don’t suppose you know where I could buy one of these?’. Mr Bunney said that the conversation about the cost of the renovations being approximately $100,000 occurred prior to this email and likely in mid-March 2013.[12]
Mr Bunney arranges $100,000
[12] T163.7-165.8.
Prior to mid-March 2013, Mr Bunney had been formulating a plan to assist his brother with re-structuring his brother’s finances. Mr Bunney said in evidence that having been informed by Mr Holt that he was unable to raise funds for a mortgage, Mr Bunney, of his own volition, began looking at various schemes by which he might be able to raise $100,000 for lending to Mr Holt.
Mr Bunney’s evidence on this topic is as follows:[13]
[13] T166.8-167.37.
HIS HONOUR
QIn or about mid-March, did you offer to lend Mr Holt $100,000.
AI undertook to raise $100,000 and lend that to him.
QHad you reflected on that for some time after establishing that Mr Holt needed $100,000.
AYes.
XN
QJust picking up on his Honour's questions, had you agreed any arrangements or terms with Mr Holt in relation to the provision of the $100,000 that you had you were going to raise.
ASorry, could you repeat that question?...
XN
QLet's take it step by step. I think we've dealt with the discussion in the garden at the back of the house.
AYes.
QWhich I think you've identified was some time in February. You've also identified that there were subsequent discussions in or about March in relation to you offering to Mr Holt to raise $100,000.
AYes.
QAt the time of either the garden discussion, or at the subsequent discussions in March, did you discuss with Mr Holt any terms or conditions or basis for the arrangement by which you would provide him with the 100,000.
ANo, I didn't. I did discuss how I intended to raise the $100,000, but I didn't do - there were no terms or conditions attached to it.
QDid you discuss repayment of it.
ANo, I did not.
QWhat was your understanding of when repayment would be made.
AOnce he could obtain an income from the downstairs premises and get a mortgage from the bank.
QDid you discuss that understanding with Mr Holt.
AI don't believe I did. Well, it was inferred in the -no, I didn't that I can recall.
QI think you were about to make mention of an inference; can you just elaborate on that.
AAs I mentioned before, he discussed his financial dilemma with me at the time about why he couldn't obtain a mortgage until he had an income and he wouldn't have an income until he'd vacated the premises downstairs and was able to lease those premises out.
QSo, in the discussions that you had had with him when you were talking about providing the 100,000 had you agreed or discussed repayment by him when he was leasing the premises.
ANo, I didn't. My relationship with Mr Holt at that time was very casual and I thought that I could trust him and that I would be looked after in due course. As I said before, I regarded him as my best friend, I spent most of my time with him personally, more so than with any of my friends, and I involved him in all of my art Exhibition openings, took him out - went out to dinner with a couple of his girlfriends and took him out to dinner on two occasions, so I was - we were very close and I - just like lending someone $50, but it was a little bit more than that.
QDid you ever say to him that you were giving it to him.
ADefinitely not.
Mr Bunney used the word “undertook” in his evidence, but I do not understand that to mean he undertook to Mr Holt that he would raise $100,000 for him, rather I understand it as being Mr Bunney taking steps to raise $100,000. I deal with this issue later in these reasons.
Mr Bunney and Mr Holt meet at Carey Gully on 4 April 2013
On 4 April 2013, Mr Bunney attended with Mr Holt at a storage shed used by Mr Holt at Carey Gully in the Adelaide Hills. It seems that Mr Bunney had lent some woodworking books to a friend who had a storage shed adjacent to Mr Holt’s storage shed. Since Mr Bunney wanted to retrieve the books, Mr Holt suggested that it may be possible to access the friend’s storage facility through Mr Holt’s storage shed. Mr Holt and Mr Bunney met at Carey Gully on 4 April 2013 for this purpose, however it was not possible to access Mr Bunney’s friend’s shed.

The evidence of Mr Bunney and Mr Holt about what occurred on that occasion differs.
Mr Bunney’s Evidence
Mr Bunney gave evidence that whilst at the storage shed, Mr Holt showed Mr Bunney the Virage. Mr Holt was restoring it and according to Mr Bunney, he and Mr Holt had quite a long discussion about the car with Mr Holt explaining to Mr Bunney that it was No. 400 and was the last hand-built Virage made.[14] The Virage was described as No. 50338 (400). It had damaged paint work and required some further work. Mr Bunney gave evidence as to the conversation on that occasion in these terms:[15]
…I asked him how much a car like that would be worth and he said ‘about 120-125,000, once it was fixed up’. I said ‘how much would it be worth in its current state?’ and he said ‘about 105,000 but you could have it for 100,000’. I replied that I didn’t want to – I didn’t want to confuse the loan, the $100,000 loan with the purchase of a car. So if I decided to purchase the car, I would pay him an additional $5,000 which doesn’t seem to make a lot of sense. That was possibly due to my state of mind. I should have been negotiating a lower price rather than a higher price.
[14] T161.25-35.
[15] T162.3-14.
Mr Bunney said it was Mr Holt that raised the subject of the sale and purchase of the car. Later he said in relation to the same conversation:[16]
At the risk of repeating myself, I asked Mr Holt how much a car like that would be worth and he stated - I'm not sure whether it was 120 or $125,000 when complete, when painted basically and ready for the road. I said, 'What about the way it is now?' and he said, 'About $105,000 but you could have it for $100,000'. I said, 'I don't want the price of the car to be confused with the agreement to loan you $100,000, so if I decide to buy the car, I'll pay you an additional $5,000'.
[16] T163.7-.15.
When referring to the loan, Mr Bunney was referring to the loan of $100,000 to help Mr Holt continue the renovations on his house. Mr Bunney said in evidence that loan had already been discussed between him and Mr Holt by this time, although he was unable to recall when,[17] nor could Mr Bunney recall what had been discussed in any detail other than a loan of $100,000.
[17] T163.16-.29.
Later in his evidence however, Mr Bunney agreed that up until September 2013 he had never said to Mr Holt that the money he ultimately advanced to Mr Holt was a loan.[18]
[18] T332.18-335.20.
Mr Bunney said in evidence that when they were discussing the value of the Virage, Mr Holt proposed to Mr Bunney that if he did not want to buy the vehicle, it might form some form of surety against the Loan. Mr Bunney explained that Mr Holt was going to put the Virage up as a guarantee against repaying the Loan of $100,000 and Mr Bunney assumed that is what the Virage would be worth. According to Mr Bunney, it was Mr Holt who suggested it could be some form of surety.
Mr Bunney was cross-examined about the meeting at Carey Gully on 4 April 2013. He agreed that he had a discussion with Mr Holt at the Carey Gully storage shed about the work that needed to be done to bring the Virage up to a roadworthy condition. That work included:
·A rear child-restraint anchor point needed to be fitted;
·Various things had to be put back together for example, the rear seat was out and the passenger side door needed to be repainted;
·Bits and pieces needed to be done; and
·There was a problem with the radiator fan.[19]
[19] T263.3-.33.
He also agreed that Mr Holt told him that the car would be worth about $120‑130,000 once it was finished, painted and those items fixed, and that he asked Mr Holt how much the car was worth in its current state and was told $105,000.
Mr Bunney denied asking Mr Holt whether he would sell the Virage for $105,000 and that Mr Holt said that he would let it go for $105,000. He also denied asking Mr Holt ‘would you sell it for that?’.[20]
[20] T262.2-.34.
Mr Bunney said in his evidence that he was not intending to purchase the Virage, but he was exploring the possibility of converting the $100,000 that he said he had offered to lend to Mr Holt into a part payment on the Virage.[21]
[21] T266.7-.26.
It was also suggested to Mr Bunney in cross-examination that at the meeting in Carey Gully there was no discussion with Mr Holt about any loan to Mr Holt. That suggestion was denied by Mr Bunney but he agreed Mr Holt had never asked for the Loan. He also disagreed that he had never said to Mr Holt that he would lend him the money and insisted he had told him and had discussed that with him.[22]
[22] T264.28-265.7.
Mr Bunney agreed that he told Mr Holt during this conversation that he (Mr Bunney) had mechanical engineering qualifications, that he could build a garage at his (Mr Bunney’s house) property to store the Virage and that if Mr Holt would sell the car as it was, he could restore the vehicle under Mr Holt’s supervision.
Mr Holt’s Evidence
In his evidence about the meeting at Carey Gully on 4 April 2013, Mr Holt said that in April 2013 he had five cars in his storage shed at Carey Gully. That included a Jaguar, three Aston Martins, and a Bentley. The Aston Martins were a 1977 V8 Vantage, the Virage and a 1982 V8.[23]
[23] T440.7-.16.
He said that he met Mr Bunney at the Carey Gully storage facility in April 2013 because Mr Bunney was looking for a book in the adjacent storage facility but he could not get in. Whilst at the Carey Gully storage shed, Mr Bunney saw the Virage in the garage and asked about it. The vehicle had been brought in from the UK after having panel and chassis work done, it needed finishing off and putting back together but it was driveable.
Mr Holt said that Mr Bunney asked if it was a prototype to which Mr Holt said no. Mr Bunney asked if Mr Holt would sell this one and he replied no. Mr Holt explained to Mr Bunney he could sell it but it was a private import and he had to register it. Further, Mr Holt said it needed to be put together and painted and he was going to do that before he sold it, if he decided to sell it.
Mr Holt also explained in evidence that he was not interested in selling the Virage because it was not a car that could be easily restored.
Mr Holt gave evidence that Mr Bunney asked what it would be worth once put together and on the road to which Mr Holt replied he did not know, probably $125,000. In answer to the question by Mr Bunney of how much would it be worth as it is, Mr Holt replied that it was probably worth $105,000.
Mr Holt said in evidence that the figure of $105,000 he gave to Mr Bunney came about by taking the ‘on the road’ figure of about $125,000, less $20,000 to get everything done to get it on the road, leaving $105,000. He said he did not take Mr Bunney’s interest in the Virage seriously.[24]
[24] T447.16-.21.
According to Mr Holt, Mr Bunney then asked, ‘so you would sell it at $105,000?’ to which Mr Holt replied that he could not sell it because it is a personal import which means he has to register the vehicle and to do that he needed to finish restoring the car.
Mr Holt said in evidence that Mr Bunney told him he always wanted a high‑performance English sportscar and that Mr Bunney went to some length in explaining he was a mechanical engineer, however he did not take him seriously because Mr Holt was of the view that one did not just buy a car like the Virage without really understanding the complexity of it.[25]
[25] T443.3-446.15.
Mr Holt said Mr Bunney then said he (Mr Bunney) could put it together if Mr Holt helped, to which Mr Holt replied in words to the effect of ‘I suppose with my guidance you could do so but it is not the car for you’.[26]
[26] T445.14-15.
Mr Holt said that Mr Bunney showed a very keen interest in the Virage so they decided to catch up later.
They finished the discussion at the Carey Gully storage facility by agreeing to meet for dinner at the Stirling Hotel. Mr Holt said there was no discussion at Carey Gully about Mr Bunney providing a loan to Mr Holt.[27]
[27] T447.30-.38.
Mr Holt did not speak to Mr Bunney again before they had dinner at the Stirling Hotel.
Mr Bunney makes inquiries of Aston Martin (UK)
Mr Bunney said that Mr Holt had shown him some Aston Martin books and had told him that he had a spare one if Mr Bunney was to buy the Virage but did not say when that occurred.[28] In any event, on 9 April 2013, Mr Bunney emailed a Mr Antony Forshaw of “Aston Service Dorset”, an Aston Martin specialist, in Dorset, England.[29] In that email he advised Mr Forshaw that he was intending to purchase a 1992 V8 Vantage and sought more information about the vehicle. He also enquired as to the price of a number of Aston Martin books. The emails to Mr Forshaw are included in Exhibit P12 which continues the email string. Mr Bunney said in evidence that his email sent 9 April 2013 was an attempt to try to obtain some information on the Virage because he was somewhat confused about the model.
[28] T265.35-266.6.
[29] Exhibit D9, Exhibit P12.
He received a reply to his email dated 9 April 2013, on 10 April 2013 from Mr Forshaw. Mr Forshaw identified that he needed the last six digits of the chassis number. [30]
[30] Exhibit P12.
Some three months later, on 8 July 2013 Mr Bunney replied[31] in which he informed Mr Forshaw that the vehicle was a 1992 Virage, that it still belonged to Mr Holt, and speculated as to the chassis number but indicated that he would check with Mr Holt when he next called. There is no doubt that Mr Holt and Mr Bunney did meet and speak after this time but there is no evidence that Mr Bunney inquired as to the chassis number.
[31] Ibid.
Mr Forshaw replied to Mr Bunney’s email sent on 8 July 2013 the same day in which he attached a record from Aston Martin and made some observations about the numbering of the vehicle. Mr Bunney responded again on 9 July 2013 and, in particular, noted some apparent anomalies with the chassis number. He confirmed that he had declined to drive the Virage until he took possession of the vehicle.[32]
[32] Exhibit P12.
Findings for the period up to and including 9 April 2013
I find that Mr Bunney and Mr Holt had a conversation at Mr Holt’s property at Summertown in or about mid-March 2013, about the cost to complete the renovations to Mr Holt’s Summertown property and that the cost was estimated by Mr Holt at $100,000.
I find that Mr Bunney and Mr Holt discussed the concept of Mr Holt obtaining a mortgage but that Mr Holt informed Mr Bunney that he could not borrow money against a building site. That conversation took place in the back garden of the Summertown property in or about mid-March 2013 when Mr Bunney and Mr Holt were standing near an Aston Martin DBS V8 that Mr Holt had just bought.
Although Mr Bunney says there were discussions in mid‑March in relation to him offering to raise $100,000 for Mr Holt to complete the renovations to the Summertown property, I do not accept that evidence. I accept that Mr Bunney is highly likely, in his philanthropic state of mind as part of his then manic state to which I make reference below, that he wanted to help Mr Holt by lending him the sum of $100,000 nonetheless no such offer was made.
I find that at no time did Mr Holt ask for Mr Bunney to advance him $100,000 for the purposes of renovating Mr Holt’s house at Summertown.
I find that to the extent that Mr Bunney began looking at various schemes in which he might be able to raise $100,000 for lending to Mr Holt (with which I also deal below), he did so as a consequence of his then manic state. That is consistent with there being a lack of any discussion between Mr Holt and Mr Bunney as to any terms or conditions as the basis for the loan including any repayment arrangement.
As to the meeting at Carey Gully on 4 April 2013, I find that Mr Bunney enquired as to whether the Virage was for sale and that Mr Holt indicated it was not but that if he was to sell it, the price was $105,000 for the reasons he explained.
To the extent that Mr Bunney said that he did not want to confuse the loan of $100,000 with a purchase of a car and therefore he would pay an additional $5,000, I reject that evidence. I accept Mr Holt’s version of how the figure of $105,000 was reached in, preference to Mr Bunney’s version of adding $5000 to a $100,000 sale price to differentiate between the loan transaction and the purchase of the Virage. As to the Virage being surety for the loan, I do not accept that evidence, although I accept that Mr Bunney was likely to have had the concept of the Virage being used as security in mind.
As to Mr Bunny’s evidence that he was exploring the possibility of converting the Loan that he had offered to Mr Holt into a part payment on the Virage, since I have found that Mr Bunney did not offer the loan to Mr Holt, I do not accept that evidence however again, I accept that such a scenario was in Mr Bunney’s contemplation.
I find that at the meeting at Carey Gully on 4 April 2013 Mr Bunney indicated to Mr Holt that because he was a mechanical engineer he could work on the Virage under Mr Holt’s guidance and that Mr Holt agreed, at least in principle, that such an arrangement might work.
On 9 April 2013 Mr Bunney made enquiries with Mr Forshaw, an Aston Martin specialist in Dorset, England as revealed in the emails exhibits D9 and P12.
The dinner at the Stirling Hotel on 10 April 2013 and other subsequent events
On 10 April 2013, Mr Bunney and Mr Holt had dinner at the Stirling Hotel. Following that dinner, Mr Holt sent an email to Mr Bunney (Exhibit P1, p2) in which he provided Mr Bunney with his (Mr Holt’s) banking details.
There are conflicting accounts of what was said about the Virage during the dinner.
Mr Bunney’s Evidence
Mr Bunney does not recall the exact details of the conversation that occurred at the Stirling Hotel that evening, but he said in his evidence that he told Mr Holt that if he would forward his bank details, he would arrange to transfer $100,000, being the Loan that Mr Bunney said had already been discussed. He was unable to recall any other discussions on that evening at the Stirling Hotel, although accepted that he ‘…would have discussed the car and the possibility of purchasing it. Because I was quite excited about that, that possibility.’ However, Mr Bunney said that they did not agree on the terms on which he might possibly purchase the car.[33]
[33] T170.31-171.14.
Mr Bunney maintained the position that rather than intending to purchase the car, it was only a possibility of purchasing the car.[34]
Mr Holt’s Evidence
[34] T267.7-.10; see also T267.11-.29.
Mr Holt gave evidence that he and Mr Bunney were at the Stirling Hotel for probably 3-4 hours during which a lot of the time was spent talking about Aston Martins. He said the two of them talked about the Virage and Mr Bunney asked if Mr Holt would sell it for $105,000 to which Mr Holt said he would consider it. Mr Bunney asked Mr Holt for his bank details.
Mr Holt said in evidence he thought it was getting a bit silly because he formed the view Mr Bunney did not need to buy a car like the Virage as he did not really understand what it involved and did not have the money anyway. In any event, Mr Holt agreed to send Mr Bunney his bank details.
Mr Holt had to prepare an article for a magazine for the Aston Martin Club in the UK that evening. He sent his bank details to Mr Bunney by email the same night.
The emails from Mr Bunney dated 11 April 2013
Consideration of the emails tendered in this matter show that Mr Holt sent his bank account details to Mr Bunney late in the evening on 10 April 2013.[35] Thereafter Mr Bunney sent a number of emails. The first email Mr Bunney sent was sent on Thursday, 11 April 2013 at 1.44 am to Mr Holt and refers to the sum of $100,000.[36] In that email, Mr Bunney explains how he would arrange transfer of $100,000 to Mr Holt’s account the following day.
[35] Exhibit P1, p2.
[36] Exhibit P1, p3.
The terms of the email sent at 1.44 am on 11 April 2013 are important and I set it out in full below:
Sorry Terry,
I’ve spent an hour or more trying to talk some sense into my indebted brother to little avail. For some reason he didn’t appreciate me suggesting that he could and should have resolved his mortgage with my credit union the day he decided to explore the possibility.
I have decided to resort to my original idea, which I didn’t get a chance to put to him before communication broke down over solar stuff.
Anyway I will, as discussed, do the following:
Arrange for the transfer of $100,000 to your account tomorrow, to reach it by Friday. Sorry, I forgot that I can only transfer 5k online except by prior arrangement, which is a bit late now.
Draft a document regarding the sale tonight (this morning) and forward it with some other unrelated matter. If you would peruse it and make any appropriate amendments before signing after all monies are received except for the final $5000 payment to complete transfer (i.e. legal release of vehicle and responsibility for insurance.) I would however like to discuss whether the current cover, for a total loss, should be raised to reflect any value above the sale price, and improved or real value.
To arrange the money my brother owes me, I will email my Member Relationship Consultant at the credit union, and arrange for her to speak to my stubborn brother and arrange a mortgage for him, whereby he doesn’t need to provide any proof of income. My current plan is, if I can convince him of the merits with a suitable contract, to assign his house to me, without actually going through with a transfer, whereby I (instead of him) register the mortgage with the credit union on his title, which remains his, subject to the assignment. This should effectively remove the property from the reach of anyone but him, at the same relieving him of any immediate debt and possibly enable him to rent the property from me, with a range of benefits for both parties, until his finances return to normal.
On a final note, my brother David seems to have heard a rumour about an ‘Aston Martin’ on which I made. If possible, I would like to try to keep this just between us for the time being, especially as it could only exacerbate other misconceptions associated with my mood/personality changes.
‘Til the next email/call/visit,
Regards
Paul
A consideration of that email reveals in the first two paragraphs a change in strategy on the part of Mr Bunney for obtaining money from his brother, to resorting to what he describes as his ‘original idea’. It is not clear what the ‘original idea’ was, however it is apparent from the email that Mr Bunney was going to arrange for $100,000 to be transferred to Mr Holt’s bank account, as well as draft a document regarding the ‘sale’ and forward it to Mr Holt with some other unrelated matter. The only ‘sale’ in contemplation was the sale and purchase of the Virage. So much so is apparent from the sentence set out below, taken from the paragraph following the second dot point in the email:
If you would peruse it and make any appropriate amendments before signing after all monies are received except for the final $5,000 payment to complete transfer (i.e. legal release of vehicle and responsibility for insurance) I would however like to discuss whether the current cover, for a total loss, should be raised to reflect any value above the sale price, and improved or real value.
It is significant that the email records “…after all monies are received except for the final $5000 payment to complete transfer (ie: legal release of vehicle and responsibility for insurance).”
The penultimate paragraph of the email reads:
On a final note, my brother David seems to have heard a rumour about an ‘Aston Martin’ on which I made (sic). If possible, I would like to try to keep this just between us for the time being, especially as it could only exacerbate other misconceptions associated with my mood/personality changes.

Consistent with the penultimate paragraph of the email from Mr Bunney to Mr Holt sent 11 April 2013 at 1.44 am,[37] Mr Bunney agreed in evidence that he wanted to keep the purchase or potential purchase of the Virage a secret from others.[38] He explained the reason for this as being that his doctor had diagnosed him as being hypomanic. He said in evidence he was concerned about that diagnosis, but did not appreciate the severity of his illness and was trying to disguise it from other people. He said he cannot recall if he discussed with Mr Holt the issue of his mood and personality changes to which he made reference in the email sent 11 April 2013 at 1.44 am, but observed that he had become unshaven and was not looking after himself.[39]
[37] Exhibit P1, p3.
[38] T177.1-21.
[39] T 177.17-33.
In Mr Holt’s evidence, he explained that Mr Bunney had previously said to him ‘we’ll keep this between ourselves’. Mr Holt said the last paragraph in the email dated 11 April 2013 at 1.44 am, reiterated what Mr Bunney had told him previously.
Mr Holt said in evidence that he thought this had come up because at an art gallery he had mentioned to a friend of Mr Bunney’s that Mr Bunney had purchased a car from him and this must have got back to his brother. He said Mr Bunney said ‘I just want to keep it quiet until we do the final settlement and I don’t want anyone to know that I have purchased it’.[40]
[40] T457.7-.25.
I do not accept that evidence. It is common ground that no agreement to purchase the Virage was reached at the meeting in Carey Gully on 4 April 2013.
According to Mr Holt, the only time after 4 April 2013 there was discussion about Mr Bunney actually purchasing the Virage as opposed to the possibility of purchasing it was at the dinner at the Stirling Hotel on 10 April 2013. On the next day, 11 April 2013, the email from Mr Bunney to Mr Holt at 1.44 am is sent in which the paragraph about keeping the matter secret is raised.[41]
[41] Exhibit P1, p3.
Whereas it may have been that between 4 April and 10 April Mr Holt had attended at an art gallery and mentioned that Mr Bunney was interested in purchasing the Virage, I do not accept that between the end of the dinner on 10 April 2013 and the sending of the email on 11 April 2013 at 1.44 am that Mr Holt attended an art gallery, saw a friend and mentioned Mr Bunney was purchasing the Virage. Accordingly, Mr Holt is mistaken when he says in his evidence that he had mentioned to a friend of Mr Bunney’s that Mr Bunney had purchased a car from Mr Holt and that is the reason for the last paragraph in the email sent 11 April 2013 at 1.44 am.[42]
[42] T457.7-.25.
Later, on 11 April 2013 at 3.54 pm, Mr Bunney sent an email to Ms Colleen (sic Carolyn) Cunneen of CPS Credit Union.[43] Ms Cunneen is Mr Bunney’s Relationship Manager at CPS Credit Union.[44]
[43] Exhibit P1, p5.
[44] T158.31-37.
I note that the screen shot of that email refers to a ‘DTH Loan against BR50400.pdf’.[45] The reference to “BR50400” is a reference to the Virage and “DTH” to Mr Holt.[46]
[45] See Exhibit P1, p8.
[46] T63.1-8.
Mr Bunney said in evidence that the description of the attachment ‘DTH loan against BR 50400.pdf’ was consistent with Mr Holt offering the Virage as security for the $100,000 loan for the renovations to Mr Holt’s house at Summertown in the event that he did not buy the Virage.[47] I do not accept that evidence. I have found that Mr Holt did not request a loan from Mr Bunney and Mr Bunney did not raise the topic of him providing a loan to Mr Holt. On that basis, there is no reason for Mr Holt to offer the Virage as security. Rather, I find that it is consistent with Mr Bunney’s intention to keep secret from his family the potential purchase of the Virage and Mr Bunney put that description on the email not only for that purpose but also because Mr Bunney considered he was lending $100,000 to Mr Holt and the Virage was available as security against the loan albeit without any suggestion to that effect from Mr Holt.
[47] T168.5-17.
The email is rambling and sets out a proposal for a financial arrangement between Mr Bunney and his brother David. I note that in the third paragraph of the email commencing ‘Paul is preparing a draft contract for sale…’, the ‘Paul’ to which Mr Bunney is referring is Paul Cunial, the CPS Credit Union conveyancer[48] who is copied in on the email. The balance of the email is a convoluted and almost incomprehensible financial structure, which Mr Bunney said he could not recall writing[49] and which he himself described as outlining a bizarre plan.[50]
[48] T62.2-22.
[49] T172.32-175.4, T273.21-22 and .28-30.
[50] T62.18-30, T158.31-37.
On 11 April 2013 at 3.54 am[51] Mr Bunney sent an email to Ms Cunneen, signed by him above the signature block describing him as ‘Pragmatic Philanthropy and Personal, Professional Services’. That signature block does not appear on all of Mr Bunney’s emails and he explained that he had four or five email signature blocks.[52]
[51] Exhibit P1, p5.
[52] T178.38-179.5.
The 11 April 2013 email[53] to Ms Cunneen was copied to Mr Bunney’s brothers David and Andrew Bunney, his mother Judy Bunney, Mr Holt and Paul Cunial. The email attaches a one off external transfer authority for $100,000 to Mr Holt.[54]
[53] Exhibit P1, p5.
[54] There is no issues that Mr Bunney had transferred $100,000 of his mother’s money from an investment account to his savings account and then on 12 April 2013, transferred that amount to Mr Holt; Exhibit P1, page 8.
The reference number on the one-off transfer authority is given as ‘BR 50400 (338)’. There was some confusion as to whether this is the Virage’s chassis number or not, but in any event, there is no doubt that, that descriptor applies to the Virage.[55]
[55] T62.2-63.8.
Mr Holt said in evidence he was astonished to receive $100,000 from Mr Bunney, and he understood the $100,000 was a payment towards buying the Virage, and the chassis number on the transfer confirmed that.[56] Mr Holt said in evidence he had a telephone conversation with Mr Bunney after the transfer who said ‘I have transferred $100,000 to your account for the Virage and I will pay you $5,000 balance when I want you to deliver the car to my premises’.[57]
[56] T454.16-455.3.
[57] T455.6-16.
Mr Holt said in evidence that Mr Bunney had told him that he withheld the $5,000 until the car was to be delivered as he did not have room for the car at his home and he was building a new garage, a fact of which Mr Holt was aware.[58]
[58] T456.25-.38.
On 13 April 2013, Mr Holt took Mr Bunney for a drive in the Virage out to Macclesfield in the Adelaide Hills.
Mr Holt is unsure when this occurred but thinks it was a weekday. Mr Bunney is certain it was on the weekend on 13 April 2013 – I accept Mr Bunney’s evidence on that point because Mr Holt put some fuel in the Virage at a service station at Stirling in the Adelaide Hills for which Mr Bunney paid and there is a bank entry in Mr Bunney’s bank account for fuel on that day in the sum of $93.
In his evidence, Mr Holt said that Mr Bunney said he would fill the Virage with fuel and insisted in doing so saying ‘it’s my car I’ll fill it up’.[59] That was not put to Mr Bunney but in any event, I do not accept it. I accept that Mr Bunney put fuel in the car but I do not accept that he said, ‘it’s my car I’ll fill it up’.
[59] T459.25-35.
It is common ground that Mr Holt offered to let Mr Bunney drive the Virage. Mr Bunney’s evidence is that he replied to the offer to drive the Virage in words to the effect that he would not drive it until he decided to buy it.[60] Mr Holt said that Mr Bunney did not want to drive the Virage and that Mr Bunney could ‘understand what the car was like with me driving it’.[61] Mr Bunney’s evidence is supported by a statement by him in an email to Mr Forshaw sent 9 July 2013[62] in which he states “I declined a drive until I take possession…”.
[60] T184.1-7.
[61] T580.8-12.
[62] Exhibit P12.
I find that Mr Bunney said words to the effect that he would not drive the car until he decided to buy it. At this time, Mr Bunney had not transferred the $4,999.
Mr Bunney transfers $4,999
On 14 April 2013, Mr Bunney’s sister, Ms Catherine Bunney and her partner, Mr William Elliott, attended Mr Bunney’s house. Mr Bunney said that after they left, in his words, ‘I think I was quite excited after a ride in the car and I decided to for some obscure reason tease myself by transferring part of the $5,000, so that it left an almost insignificant amount outstanding. I can’t explain the logic behind it’. When asked to explain what he meant by ‘tease yourself’ he replied:[63]
Well I’ve been fantasising about what it would be like to have a very expensive sports car which is quite out of character, considering that I was driving around in a $400 Toyota Corona station wagon and I had two wrecks of cars in my driveway plus in a 1985 Honda Accord and a 1985 Toyota ute, really this was quite – it was absurd to even contemplate that having a car like that notwithstanding the fact that there was no room for it.
[63] T185.4-18.
He continued that he transferred $4,999:[64]
Because I wanted to leave a dollar outstanding so that if I decided to purchase it I would give Terry that extra dollar and to remind me that (sic) I glued a $2 coin onto my – with superglue onto my kitchen counter and shared that with Terry and said, you know, that I think I commented on occasions that I might prise it off and he would give me a dollar in return in change when I decided to buy the car or if I decided to buy the car.
[64] T185.24-31.
On 14 April 2013, Mr Bunney transferred the sum of $4,999 from his savings account to Mr Holt.[65] On page 10 of Exhibit P1, the transfer details record a lodgement reference as ‘deposit-AM 50338400’. Mr Bunney was unable to explain why he used the word ‘deposit’,[66] but as I have found, the reference 50338400 is the descriptor for the Virage.
[65] See Exhibit P1 pp 10, 18.
[66] T186.35-187.5.
Mr Bunney said in evidence that he had not discussed formal terms with Mr Holt in relation to the purchase of the Virage upon payment of the outstanding one dollar, nor had he discussed making any deposit against the Virage, nor did he consult Mr Holt before he transferred $4,999 to him.
Mr Holt said he had a conversation with Mr Bunney (although he does not say when) about the payment of $4,999 and Mr Bunney retaining the sum of one dollar. According to Mr Holt, during that conversation, Mr Bunney said he would hold back a dollar to which Mr Holt replied that was a bit unusual and to which Mr Bunney said he virtually owned the car apart from a dollar.
The conversation in relation to the $4,999 was not put in those terms to Mr Bunney. That apart, I find there was a conversation about the dollar because it is a natural and logical matter to discuss given its peculiarity. I also find Mr Bunney said words to the effect that he ‘virtually owned the car apart from a dollar’. Such a statement is consistent with Mr Bunney’s view of whether he had purchased the Virage and his view that the Virage constituted security for the loan.
On 15 April 2013, Mr Bunney sent an email to Mr Holt at 11.48 am. That email is Exhibit P1, P10 and is also Exhibit D22, although Exhibit D22 contains more attachments in the form of part of a contract for the sale and purchase of land. The documents had been sent to Mr Bunney by the CPS Conveyancer, Paul Cunial, on 11 April 2013 at 4.41 pm and on-sent to Mr Holt by Mr Bunney on 15 April 2013. The documents are consistent with both a loan but also as the email states, consistent with the purchase of a car.
Findings for the period from 10 April 2013 – 16 April 2013
There seems little doubt that the Virage was the subject of considerable discussion between Mr Holt and Mr Bunney at dinner at the Stirling Hotel on 10 April 2014 and I find that Mr Bunney and Mr Holt discussed the potential purchase of the Virage at that time.
Thereafter, Mr Bunney engaged in email correspondence with both Mr Holt and with CPS Credit Union about the transfer of $100,000 from Mr Bunney’s account to Mr Holt. I find that Mr Bunney, in his then manic state, wanted to help Mr Holt by advancing the sum of $100,000.
I accept that upon receiving this money, Mr Holt formed the view that Mr Bunney intended to purchase the Virage. For reasons which I explain below, although Mr Bunney sent $100,000 to Mr Holt following a discussion about him potentially purchasing the Virage, nonetheless I find that Mr Bunney was in a manic state, with which I also deal below, and as part of that manic state although obsessed with his desire to own the Virage nonetheless had an element of common sense that he did not need it and should not buy it. I find that Mr Bunney considered the possibility of purchasing the Virage as well as being of the view that the Virage was security against the loan but did not convey the latter to Mr Holt.
Mr Bunney’s Mental Health
Mr Bunney has been under the care of Dr Andrew Champion, psychiatrist, for a Major Depressive Disorder since 2004. In February 2013, Dr Champion changed Mr Bunney’s anti-depressant medication in an attempt to alleviate the side‑effects of his then current medication.
In a report dated 1 October 2018,[67] Dr Champion opined that the change in medication appears to have precipitated the emergence of manic symptoms such that he diagnosed Mr Bunney as suffering from a Bipolar Disorder Type 1. The assessment and treatment of bipolar disorder has been a core element of Dr Champion’s public psychiatric practice and has formed a significant component of his private practice.[68]
[67] Exhibit P3.
[68] Exhibit P3, p2.
In evidence, he referred to his report dated 1 October 2018[69] before describing bipolar disorder in the following terms:[70]
Bipolar disorder used to be known as manic depression. It is one of the psychiatric conditions that's been recognised for the longest time and it has been retained in current diagnostic classifications. It is first described towards the beginning of the 19th century. It involves both sustained periods of depressed mood associated with disturbances of sleep, appetite, concentration, perhaps suicide ideation, which can last for weeks or months, alternating with periods of mania…
[69] Exhibit P3.
[70] T66.27–35.
Dr Champion then referred to page 2 of his report, Exhibit P3 before continuing:[71]
… a little later on that page there are the current diagnostic criteria from DSM5. To summarise those periods of sustained periods of days or weeks of unusually elevated, or irritable, or expansive moods which are associated with increased talkativeness, the subjective experience of thoughts proceeding rapidly, increased energy, reduced need for sleep, and impairment of concentration and attention, a characteristic disturbance. Flow of speech and which ideas jump from one to another to another or proceed off in tangents. Typically people, the criteria on p.3 of the report describe colder interactive activity. Typically people have multiple plans.
They describe many, many ideas racing through their thoughts. They have plans and schemes on which they are working, each of which seems foolproof and guaranteed of success. They might be working on multiple ideas simultaneously. The final dot point under the DSM criteria involvement in high risk activities is often of a financial nature. So spending money recklessly, investing imprudently. In practice people will typically, when manic, spend money in ways they wouldn't when well. Their ability to delay gratification is greatly impaired. Their ability to weigh the likely outcome of a course of action is impaired and they are essentially only capable of seeing that any decision or choice or absence they take can end in a positive way.
[71] T66.36-67.24.
Dr Champion reported[72] that at an appointment on 21 March 2013, Mr Bunney demonstrated emerging symptoms of mania such that Dr Champion diagnosed Bipolar Disorder Type 1 with hypomanic episode. As I have noted, prior to that appointment, Dr Champion had changed Mr Bunney’s medication. At the appointment on 21 March 2013, Mr Bunney told Dr Champion that he had recently been spending more than usual. Dr Champion recommended Mr Bunney reduce the dose of his new medication and scheduled a review for him two weeks later.
[72] Exhibit P3, p3.
At the appointment on 4 April 2013,[73] Dr Champion observed[74] no improvement in Mr Bunney’s mental state since reducing the dose of his new medication. He noted Mr Bunney’s demeanour to be mildly irritable and his manner accusatory, both of which Dr Champion considered out of character for him but in keeping with the experience of a hypomanic episode.
[73] Exhibit P3.
[74] Exhibit P3.
On 10 April 2013, Dr Champion spoke with Mr Bunney’s general practitioner, Dr James Allen, who had also made a diagnosis of mania following an appointment with Mr Bunney on 9 April 2013. Dr Allen had prescribed a mood stabilising antipsychotic medication.
That same day, Dr Champion received an email[75] from Mr Bunney which he said was written in a way consistent with a characteristic pattern of speech of an individual experiencing a manic episode. In the email, Mr Bunney had said that his “…closest friends and family are concerned, worried and scared”. He had previously indicated to Dr Champion on 4 April 2013 that people around him were “shit scared” on his behalf.[76]
[75] Exhibit P3, p4.
[76] Exhibit P3, p3.
On 11 April 2013, Mr Bunney failed to attend a scheduled appointment with Dr Champion and on 16 April 2013, Dr Sharma, a doctor at the General Practice clinic Mr Bunney attended, visited Mr Bunney at his home with a mental health care nurse. At that time Dr Sharma made an Inpatient Treatment Order pursuant to the provisions of the Mental Health Act 2009 (SA). Ambulance and police attended at the plaintiff’s residence and he was admitted to the Royal Adelaide Hospital.
Mr Bunney is admitted to the Royal Adelaide Hospital and the email dated 29 April 2013
Exhibit P5 is the Royal Adelaide Hospital Separation Summary (“Separation Summary”).
It records that upon presentation in the emergency department of the Royal Adelaide Hospital on 16 April 2013, Mr Bunney presented with increased aggression, agitation and abusive behaviour and made racist comments towards both the assessing psychiatric registrar and the doctor who initially placed him under an Inpatient Treatment Order. The Separation Summary records that Mr Bunney admitted to poor sleep (a few hours per night) in the preceding two weeks, and that he had felt ‘on the go’ and had ‘many plans and ideas’. It records further that in the Royal Adelaide Hospital emergency department Mr Bunney presented with a ‘…marked pressure of speech and tangential conversation’. It notes that Mr Bunney was questioned about a recent increase in spending and it was observed there was a marked grandiosity to his presentation. The Separation Summary records that ‘it was felt his overall insight and judgement were acutely impaired secondary to an acute manic episode’.
The notes also record that Mr Bunney,
…reported he regarded himself as a ‘philanthropist’ and had had business cards printed that stated ‘Paul Bunney ‑ philanthropist.[77]
[77] The business card is Exhibit P11.
The Separation Summary states that during the week following his admission, Mr Bunney improved and that his ‘speech returned to a normal rate, and there was an increased ability to engage him in conversation. It was noted that he remained grandiose to a degree, however his insight was noted to improve significantly’.
The Separation Summary continues:
…as such inpatient order was revoked with discharge plan for 24/4. There was a noted deterioration in mental state immediately following this, with Mr Bunney leaving the ward for an extended period of time without notification. During this time Paul displayed ongoing manic symptoms; becoming over involved in another patient’s affairs (essentially tried to find another patient who had gone AWOL from the ward, locating him at this patient’s ‘squat’ at Henley Beach and driving him back to the ward). Ultimately Mr Bunney absconded from ward C3 at the Royal Adelaide Hospital on 27 April 2013 after 24 hours was discharged from acute inpatient care.

I find that from at least 21 March 2013 and continuing, Mr Bunney was suffering manic symptoms arising out of his Bipolar Disorder Type 1.
Events after Mr Bunney was discharged from Hospital
The separation summary records that Mr Bunney discharged himself from the Royal Adelaide Hospital on 25 April 2013.
The 29 April 2013 Email
After he had been discharged from hospital, Mr Bunney sent an email dated 29 April 2013 to his mother, Mrs Judy Bunney, Mr Holt and two friends named Jan and Anne.[78] The email is somewhat rambling and was described by Mr Bunney as not his usual manner of writing in that he wouldn’t ordinarily share the sort of information in the email with the people it was addressed to. In particular, he was not at all close to Jan and Anne yet he was reciting part of his life story for that period of time.[79]
[78] Exhibit P1, p14.
[79] T195.23-.38.
In the same email,[80] Mr Bunney writes that he has only one dollar to go and he could have a car like the one below. The “one below” contains a link to an Aston Martin and on page 16 of Exhibit P1 he describes the passengers he intends to take for a drive and the order in which he intends to take them. He records that his mother has lent him $100,000 towards the purchase of the Virage, albeit unknowingly.
[80] Exhibit P1, p11.
The email continues with a paragraph on page 16 which reads as follows:
…I’ve ordered 2 car covers from the U.S.A. for Terry, as a present, to protect his 2 Virages. He has one of the 4 pre-production prototype Virages, as well as the last (No: 50338 aka 50400). As I understand it, 50338/50400 was one of his favourites (out of his 6), until the Factory offered him the prototype. When confronted about the prospective sale of 50338/50400 he said he had ‘liquidity’ problems associated with his ‘Pink Geranium renovations’, and couldn’t justify two cars that were essentially the same. He preferred the prototype Virage to the ‘last’. That was the beginning of my ‘fantasy’, and offer to assist him in his ‘temporary’ liquidity dilemma. That fantasy is now only $1.00 away from reality, assuming Terry’s agreement remains afoot… (emphasis in the original).
Mr Holt was shown the email dated 29 April 2013[81] in examination‑in‑chief.
[81] Exhibit P1, p14.
Mr Holt said he remembers reading it and that he may have had a discussion with Mr Bunney at the time but was unable to say what that discussion was. He said that Mr Bunney paid the $4,999 because Mr Bunney had said to him that owing one dollar was amusing to him (Mr Bunney). When Mr Holt first read the email and the reference to ‘assuming Terry’s agreement remains afoot’ he said that as far as he was concerned it was and that all Mr Bunney had to do was call him and say words to the effect of ‘got the garage finished, bring the car over’.[82]
[82] T469.24-.37.
There was no response to this email by Mr Holt.
The reference in the email to the ‘Pink Geranium renovations’ refers to Mr Holt’s house at Summertown which previously housed a café named the ‘Pink Geranium’.
Mr Bunney prepares a draft contract for the purchase of the Virage
On 6 May 2013, Mr Bunney sent an email to Mr Holt in which he enclosed a draft contract for his (Mr Holt’s) perusal.[83] That draft contract was a bespoke document prepared by Mr Bunney and titled ‘Contract for Purchase of Used Vehicle’ (“draft contract”). It identifies the purchaser and the vendor as Mr Bunney and Mr Holt respectively, the Virage, and sets out the VIN/chassis number ‘AMSLR50400 (338)’,[84] the reference number which was being used by the parties to identify the Virage.
[83] Exhibit P1, p25,26. It is agreed between the parties that the form of contract for sale that was attached to the email at Exhibit P1, p 25 was in fact the document Exhibit D17.
[84] T199.23-200.17.
The draft contract records the payment of a deposit of $104,999 with a balance of payment due of one dollar to make a total of $105,000. The delivery/contract date is “TBA” and the “Due Date” is “not applicable”. I note that the reference to “Due Date” as “not applicable” and the delivery date as “TBA” is consistent with Mr Bunney’s view that the Virage constituted security for the loan.
Mr Bunney said in evidence that Mr Holt never replied to the email and that he never received a signed document for the purchase of the used vehicle.
Mr Holt said that he signed and returned the document.
No signed contract has been produced by either party. The absence of the signed document does not mean a contract does not exist. Nonetheless, by this date, Mr Bunney had recently been discharged from hospital, a fact of which Mr Holt was aware because Mr Holt visited Mr Bunney in hospital.
The covering email dated 6 May 2013 also refers to joining ‘the club’. That refers to the Aston Martin Owners’ club because Mr Bunney was considering joining Mr Holt on an overseas trip to the United Kingdom for the Aston Martin Centenary celebrations. It seems it was not necessary to be an owner of an Aston Martin to join the Aston Martin Owners’ club.[85]
[85] T198.6-8.
Also on 6 May 2013, Mr Bunney sent an email (page 27 Exhibit P1) to Ms Cunneen at CPS Credit Union, his mother and his brother, David Bunney in which he refers in the second paragraph to a $100,000 withdrawal for transfer initially to an account and finally a loan to Mr Holt. In the fourth paragraph of that email, Mr Bunney refers to his desire to take out a mortgage on his house to repay his mother the sum of $100,000 that he borrowed from the term deposit.
As I have noted, the reference to a loan to Mr Holt is consistent not just with Mr Bunney’s view of the purpose of the transfer of $100,000 to Mr Holt in order to allow Mr Holt to complete his renovations of the Summertown residence, but is also consistent both with him wanting to keep secret from his mother and brother the fact that he was interested in buying the Virage and his view that the Virage was security for the Loan.
On 26 May 2013, Mr Bunney sent an email to a friend named Jennifer Bundey (pages 28-36 Exhibit P1) in which he indicated he was picking up a new Diesel Civic Hatch the next day.[86] He continued on page 30 of Exhibit P1 by inserting a photograph of a Virage and referring to Mr Holt as owning two of that model and colour. Once again, Mr Bunney said that the email was in a form he would not ordinarily have typed as it deals with a number of different topics in the one document and is shared with a diverse range of people as is apparent from the addresses on page 28 of Exhibit P1.
[86] Exhibit P1, p29.
The reference to the new Civic Hatch was a spontaneous purchase by Mr Bunney and one which he subsequently considered was inappropriate.[87] Mr Bunney agreed in cross-examination that he understood the legal nature of an agreement to purchase a vehicle and that he knew about buying cars because of the process he was engaged in of buying a Honda Civic from the Barossa Valley.[88] I note in passing that Mr Bunney still has the Civic Hatch and never attempted to return it.[89]
[87] T228.15-32.
[88] T300.21-301.34.
[89] T300.1-.5.
On 10 June 2013, Mr Bunney sent an email to Mr Holt (Exhibit P1, p37) in which, amongst other things, he asked for Mr Holt to email him the chassis and engine numbers for the Virage at which point he would prise off the $2 coin from the counter. By that, he was referring to the payment he was withholding for the purchase of the Virage, for which he would pay with the $2 coin and receive one dollar change.
The reference to the ‘application’ in that email is the application by Mr Bunney to join the Aston Martin Owners’ club. He explained that he was of a mind to actually purchase the car by giving Mr Holt the $2 coin in exchange for a dollar.[90] At no time did Mr Bunney give the $2 coin to Mr Holt.
[90] T188.2-4.
Between 12 July and 28 July 2013, Mr Bunney travelled to the United Kingdom in company with Mr Holt. Whilst there, he attended two Aston Martin owners’ club Centenary functions.
Upon his return to Australia, Mr Bunney suffered a severe depressive illness.[91]
[91] T217.34-.36.
In September 2013, there was a conversation between Mr Holt and Mr Bunney. Both parties gave evidence about that conversation and although their evidence is in different terms the effect is the same. In examination‑in‑chief, Mr Bunney said that Mr Holt visited him, he thinks in early September 2013, and that after Mr Holt had heard everything that Mr Bunney had been through said that Mr Holt said:
I’ll take the deal with the car off the table, and I might even buy your bike from you if you don’t bring it back.[92]
[92] T218.10-15.
Mr Holt’s evidence on the topic was that he saw Mr Bunney at his Summertown residence in September 2013 and that Mr Bunney told him he had a terrible time since he had returned to Australia. He then gave the following evidence:[93]
A… he said that, you know, it was great to go to the UK and meet all my friends and different people over there, and then he said 'I can't go ahead with the purchase of the car'.
QWhat did you say when he said that.
AI said 'Oh, right. Well, -', I said, '- interesting you should say that, because I know noticed (sic) in the UK when they were talking about costs and things of these cars, you were a bit shocked'. And so I said 'Fair enough'. I said 'Well, I will have to either resell it or buy it back from you', 'cos I had two cars for sale, so that wasn't going to be an issue. And that's when he said 'But I didn't actually buy the car, did I?' And that was the start of this.
QWhat did you say.
AI said 'Of course you bought the car. You actually produced an invoice for it', I said.
QAnd how was that conversation left.
AWell, I was absolutely staggered, because, I said 'You've bought the car, and I'm prepared to buy it back, but you must own it, because you have a contract signed from me stating that you have bought this vehicle, and I need you to understand that you own the vehicle, and then I can buy the vehicle back'. It's quite straightforward.
[93] T481.6-31.
Neither version is conclusive as to whether or not a contract for the purchase of the Virage had been entered into and represents subjective views. Nonetheless, the conversation is important in that it indicates that irrespective of whether a contact had been formed or not, Mr Bunney was not going to proceed with the purchase of the Virage.
Although Mr Holt refers in his evidence to a signed contract, I have found Mr Holt did not sign and return the draft contract.
Findings for the period 16 April 2013 – September 2013
I find that Mr Bunney was admitted to the Royal Adelaide Hospital under a mental health Inpatient Treatment Order on 16 April 2013 and was discharged from the Royal Adelaide Hospital on or about 25 April 2013.
The email from Mr Bunney on 29 April 2013 to various people was described by Mr Bunney as not being his usual manner of writing and that he would not ordinarily share the information in the email with the people it was addressed to. I accept that evidence and find that Mr Bunney was still suffering the effects of the mania due to his bipolar disorder at that time. I find that Mr Bunney sent the draft contract to Mr Holt on 6 May 2013 but Mr Holt was aware Mr Bunney had recently been discharged from hospital and did not sign and return it, or for that matter, any contract for the sale and purchase of the Virage to Mr Bunney. Further, I find that in providing a draft contract to Mr Holt, Mr Bunney did so in contemplation of the possibility that he might purchase the Virage but had not decided to do so.
The email sent by Mr Bunney to Mr Holt[94] on 10 June 2013 in which he asked Mr Holt to email him the chassis and engine numbers at which point he would prise of the two-dollar coin from the counter is, in my view, a continuation of Mr Bunney’s ongoing consideration of purchasing the Virage.
[94] Exhibit P1 p37.
I find that in September 2013 Mr Bunney and Mr Holt had a conversation at Summertown during which Mr Bunney told Mr Holt he was not going to proceed with the purchase of the Virage.
First Issue: Did Mr Bunney lack capacity to contract?
The first issue is whether in any event, Mr Bunney lacked the capacity to enter into a contract, whether it be to loan money to Mr Holt or to purchase the Virage. Dr Champion expressed the view that Mr Bunney can be considered to have experienced symptoms of hypomania escalating into mania from at least 21 March until he was admitted to the Royal Adelaide Hospital on 16 April 2013.
As to Mr Bunney’s capacity to contract, Dr Champion opines:[95]
During a manic episode, individuals experience impairment of judgement. They overestimate the likelihood that any decision will end well, and are impaired in their ability to contain impulsive behaviour.
An individual suffering from a manic episode is likely to lack capacity to enter into financial transactions, particularly transactions of the scale in question (over $100,000). The overestimation of success inherent to mania impairs the individual’s capacity to weigh up potential adverse consequences. The impairment of impulse control leads to decisions being made hastily, before relevant factors can be identified or considered.
[95] Exhibit P3, p5.
Dr Champion described someone in a hypomanic state in these terms:[96]
Somebody in a hypomanic state or approaching a manic state is usually preoccupied with their own thoughts, they have the subjective experience of racing thoughts, they have a strongly positive affect or emotion associated with these thoughts and this leads to a conviction that whatever they're thinking or planning is right and is bound to end well. Much as in conversation, it becomes very difficult to interrupt them because the flow of their speech reflects the flow of their thoughts. It becomes difficult for them to take in external information because their thoughts are so busy and there's subjective experience of pressure of thoughts. So there's the combination of their head just being too full to take in other information, there's the expectation that whatever action they take can only inevitably end well and so, for example, in entering into a financial transaction or being offered a contract, it's likely that such an individual would skim read the contract, if they read it at all, because this is detail, this is below the level that their elevated thoughts should be directed towards and there's no reason to read it because things are going to invariably turn out well anyway, so in all likelihood if they were offered a contract, they'd skip through it, flick to the bottom and say 'Where do I sign?', rather than absorbing the detail.
[96] T83.7-.32.
Dr Champion continued[97] that people suffering from mania or hypomania tend to ignore detail and that it is a consequence of the symptoms of hypomania or mania that an ordinary, prudent, cautious person who gave great consideration to how well or poorly any decision might turn out, would simply push on with it. In particular, the likelihood of somebody spending money in ways in which they later come to regret is “massively, massively amplified when somebody has a manic episode”. In essence, that is an overestimation of the positive outcome and the underestimation of negative outcome and the disregard for detail.[98]
[97] T83.33-85.2.
[98] T84.37-85.2.
As to whether Mr Bunney’s condition would be obvious to the ordinary person engaging in contractual dealings with him, Dr Champion said[99] that as at 21 March 2013, a person who did not know Mr Bunney might not have noticed his behaviour to be unusual but by 4 April 2013, Mr Bunney’s speech was so rapid and so prone to go off on tangents and his emotional tone so intense, that it was much more likely that even somebody who hadn’t met him before might have thought something was not quite right.
[99] T81.34-82.2.
In his report dated 1 October 2018,[100] Dr Champion was of the view that when unwell, Mr Bunney:
…had grandiose ideas and plans for spending that appear excessive and incautious, but he has not in my experience had bizarre or overtly delusional beliefs that would be immediately apparent as such to someone who had not previously met him.
In the days leading up to his admission to the RAH, the rapidity of Mr. Bunney’s speech, his abundance of plans and ideas, and his high degree of optimism about the value and likelihood of success of these plans would have been apparent to anyone who interacted with him. It is not necessarily the case that an individual with no familiarity with mental illness, who had not previously known Mr. Bunney, would have recognised signs of mania, or would immediately have concluded that Mr Bunney was incapable of entering into a financial contract…
[100] Exhibit P3, p6.
Dr Champion did not see Mr Bunney on 16 April 2013 however his notes record the contents of a telephone call from a mental health nurse who worked in the general practice that Mr Bunney attended.[101] The notes record that Dr Champion was informed during the telephone call that Mr Bunney was swearing, he was pressured, he was tangential in his speech, he pushed both the mental health nurse and the attending doctor out of his (Mr Bunney’s) door which, in Dr Champion’s view, reflected a marked deterioration in Mr Bunney’s mental state from when he saw him on 4 April. As I have noted, the general practitioner ended up making an Inpatient Treatment Order under the Mental Health Act (SA) on 16 April 2013.
[101] T87.31-88.14.
As I have also noted previously, on 10 April 2013, at 1600 hours, Dr Champion had a telephone conversation with Dr Allen, Mr Bunney’s general practitioner. During that telephone conversation Dr Allen described his observations on Mr Bunney’s behaviour, agreed with Dr Champion that Mr Bunney was hypomanic, and told Dr Champion that he prescribed a mood stabilising antipsychotic medication. Dr Champion considered that to be appropriate.[102]
[102] T88.24-37, T89.23-34.
Dr Allen was not called but the significance of his communication with Dr Champion on 10 April 2013 is that, that was the day of the dinner between Mr Holt and Mr Bunney at the Stirling Hotel.
Dr Allen’s report to Dr Champion is hearsay. No objection was taken to the evidence, nonetheless, it seems to me that the significance of Dr Allen’s observations are not necessarily as to the truth of the matter but as to the fact that there was a report concerning Mr Bunney’s behaviour from his GP to the treating psychiatrist that day.
Dr Champion recorded that the view of both he and Dr Allen that Mr Bunney’s mental state was deteriorating and that it was possible that the mood stabilising medication may be sufficient to control these symptoms and to bring the episode under control. They both agreed that Mr Bunney was likely to end up being detained.[103]
[103] T90.11-21.
Dr Champion was asked some questions about an appointment he had with Mr Bunney on 1 March 2018. The notes of that appointment were tendered by the plaintiff without objection.[104]
Cross-Examination of Dr Champion
[104] Exhibit P4.
Dr Champion said in evidence that it was unlikely that during the period March to August 2013, Mr Bunney was capable of understanding and entering into contracts.[105]
[105] T93.11-28.
In cross-examination however, he confirmed that the test he applied when expressing his opinion that Mr Bunney did not have the legal capacity, or was unlikely to have the legal capacity to enter into contracts, was the ability to reason about the likely consequences of an action and the ability to know the nature of an action that was being undertaken, that is: was he purchasing something, was he entering into a contract?[106]
[106] T99.10-28.
Although Dr Champion identified the DSM‑5 criteria in his report dated 1 October 2018, he accepted in cross-examination that he had obtained the criteria from the Internet and had not cross-checked this information against the list of criteria for hypomanic and manic episodes within Bipolar Disorder Type 1 in DSM‑5.

The third sub-issue is whether Mr Bunney has avoided the contract. The question does not arise in view of my findings but again, I deal with the issue. In September 2013 after Mr Bunney became unwell following his return from England, Mr Bunney told Mr Holt he could not proceed with the purchase of the Virage. Subsequently, Catherine Bunney contacted Mr Holt to discuss repayment of the money that had been transferred by Mr Bunney to Mr Holt. There was no agreement reached about repayment.[132]
[132] T397.19-399.33.
In the event Mr Bunney lacked capacity, and that a contract to purchase the Virage was formed, I find that Mr Bunney avoided the contract in September 2013.
Third and Fourth issues: Was there a contract formed and if so for what?
Since I have found Mr Bunney had the capacity to contract the second issue does not arise. Consequently, the third and fourth issues arise, namely:
·If no to issue 1 above, was a contract entered into between Mr Bunney and Mr Holt for Mr Bunney to loan Mr Holt $100,000?
·If no to issue 1 above, was a contract entered into between Mr Bunney and Mr Holt for Mr Bunney to purchase the Virage?
It is trite law that for parties to contract they must be ad‑idem and intend to contract. The question of whether a contract has been entered into between the parties is an objective test.
The Court’s task is to ascertain from the dealings between the parties whether they intended to make a concluded bargain or not. That intention is tested objectively by reference to what a reasonable observer would have concluded.[133]
[133] Cheshire and Fifoot Law of Contract, 11th Australian Edition [3.9], Pacific Carriers Pty Ltd v BNP Paribas (2004) 218 CLR 451, 461-462; Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd (2004) 219 CLR 597, 589.
It is apparent from a review of the authorities and as noted by Cheshire and Fifoot:[134]
Where dealings have been informal there is often a problem in ascertaining exactly what the parties may have agreed, that is, there is uncertainty of terms.
…
In cases where the intention of the parties is equivocal, it has been established that conduct or correspondence subsequent to the alleged offer and acceptance can be used as evidence to show whether or not a contract was concluded, though subsequent events cannot be used to show that there was no contract when the court could otherwise conclude that there was one.
…
Conversely, if the court concludes that the dealings between the parties did not result in a contract, then subsequent events or statements cannot be used to show that there was a contract.
None of these statements is hard-and-fast because so much depends on the interpretation of the particular facts…
(citations omitted)
[134] Ibid.
It is clear from the authorities that where the intention of the parties is equivocal, a court may have regard to conduct and correspondence subsequent to the alleged offer and acceptance as evidence to establish whether or not, objectively, a contract was concluded.[135]
[135] Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, [25] per Heydon JA.
On a number of occasions during his evidence, Mr Bunney gave evidence that he did not consider that he had entered into a contract to buy the Virage and had not bought it.[136] That is evidence of Mr Bunney’s subjective intention, and I give it no weight. In Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd[137] the New South Wales Court of Appeal considered whether a contract had been formed when parties signed a document which was ambiguous. The Court of Appeal considered how the objective test should be applied and what evidence could be considered.
[136] See for example T229.16-17.
[137] (1985) 2 NSWLR 309.
The issue in that matter was whether an agreement had been entered between the parties at all, if so whether it was solely written and whether, on the evidence, it had been abandoned by all parties. In considering the issue of whether the existence of the contract was limited to a document, Hope JA considered that regard could only be had to the document which had been signed. Only once that had been done was it permissible to have recourse to extrinsic evidence to construe the contract, and in relation to intention, only for the purposes for ascertaining a presumed intention.[138]
[138] Ibid [319].
Mahoney JA and McHugh JA (as he then was) held that regard to extrinsic evidence may be admitted to disprove contractual intention.[139]
[139] Ibid [332]–[334].
McHugh JA observed that in principle:
…I see no reason why the intention to create a legal relationship cannot be proved by material outside the document, including the statements of the parties.
…
The intention to create a legally binding contract although a matter to be proved objectively, may, nevertheless, in my opinion, be proved by what the parties said and did as well as by what they wrote. The intention may be proved in that way even in a case where the document is intended to comprise all the terms of their bargain. This is because the intention to be bound is a jural act separate and distinct from the terms of their bargain.
I do not think that anything said in the decisions of the High Court in Masters v Cameron …is inconsistent with the views which I have expressed.
McHugh JA’s observations are consistent with the current state of the law.[140]
[140] Brambles Holdings Ltd v Bathurst City Council (2001) 23 NSWLR 153.
In Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd[141] Gleeson CJ said:
“…In a case where a court is required to make a judgment concerning the intention of the parties in relation to what might broadly be described as a Masters v Cameron ((1954) 91 CLR 353) dispute, it will normally be of importance that the court have an understanding of the commercial context in which the dispute arises, and a most significant feature of that context will relate to the subject which the parties regard, or would ordinarily be expected to regard, as matters to be covered by their contract. In some cases, such as transactions involving the sale and purchase of land, or leases, courts may properly feel well equipped to form a view on such matters without the need for much evidence. In many cases, however, of which the present is a good example, there is a need for evidence in one form or another as to what subjects would be regarded as requiring agreement between the parties. In this case the best evidence on that subject is to be found in the actual communications between the parties and, in particular, in the issues which they in fact addressed when they set about drafting their detailed contract.
It is to be noted that the question in a case such as the present is expressed in terms of the intention of the parties to make a concluded bargain: see, eg, Masters v Cameron (at 360). That is not the same as, although in a given case it may be closely related to, the question whether the parties have reached agreement upon such terms as are, in the circumstances, legally necessary to constitute a contract. To say that parties to negotiations have agreed upon sufficient matters to produce the consequence that, perhaps by reference to implied terms or by resort to considerations of reasonableness, a court will treat their consensus as sufficiently comprehensive to be legally binding, is not the same thing as to say that a court will decide that they intended to make a concluded bargain. Nevertheless, in the ordinary case, as a matter of fact and commonsense, other things being equal, the more numerous and significant the areas in respect of which the parties have failed to reach agreement, the slower a court will be to conclude that they had the requisite contractual intention.
Reference has earlier been made to “intention”. Cases which typically give rise to problems of the kind presently under consideration are cases in which there is no doubt that the parties had a common intention that at some stage, and by some means, they would enter into contractual relations. They have entered into negotiations for that specific purpose. The problem which arises is that they have exchanged communications which, on the one hand, use the language of agreement but, on the other hand, disclose an expectation that at some future time a document embodying the terms of their contractual arrangement will be brought into existence. Where, as in the present case, the communications which the parties have exchanged are in writing, the question of their “intention” is, prima facie, to be resolved objectively, and as a matter of construction of the relevant documents. Thus, in Sinclair Scott Co Ltd v Naughton (at 317), dealing with precisely such a problem as arises in the present case, the majority in the High Court said:
“… We think, as a matter of construction, that the execution of the further contract was a condition or term of the bargain and not a mere expression of the desire of the parties as to the manner in which a transaction already agreed to will in fact go through …. The case is not one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms.”
Evidence going to whether or not the contract to purchase the Virage was formed
[141] (1988) 18 NSWLR 540, 548-549.
There is evidence which is consistent with a contract for the purchase of the Virage being formed on the evening of 10 April 2014.
First, there is evidence of the discussions between Mr Bunney and Mr Holt in the period leading up to the dinner at the Stirling Hotel on 10 April 2013.
Second, there is the email from Mr Bunney to Mr Holt sent 11 April 2013 at 1.44 am.[142] There are two dot points in that email. The first dot point concerns the transfer of $100,000 to Mr Holt’s account. That is also consistent with Mr Bunney, in his manic and philanthropic state, transferring $100,000 to Mr Holt as a loan notwithstanding Mr Holt not asking for it.
[142] Exhibit P1 p3.
The second dot point in the email states an intention on the part of Mr Bunney to draft a document ‘…regarding the sale tonight (this morning) and forward it with some other unrelated matter. If you would peruse it and make any appropriate amendments before signing after all monies are received except for the final $5,000 payment to complete transfer (i.e. legal lease of vehicle and responsibility for insurance.)’.
The statement in the second dot point of that email is consistent with a number of scenarios.
(a) It is consistent with the parties having agreed orally that Mr Bunney would purchase the Virage from Mr Holt; and
(b) It is consistent with the first and third categories in Masters v Cameron.[143]
[143] (1954) 91 CLR 353, 360-361.
The first category in Masters v Cameron is that the parties may intend to be bound immediately, although expressing a desire to draw up their agreement in a more formal document at a later stage. The “draft document” is consistent with the first category.
The third category is that the parties intend to postpone the creation of contractual relations until a formal contract is drawn up and executed.
There has since been added a fourth category which is when parties intend to be bound immediately by terms which they have agreed upon whilst expecting to make a further contract in substitution for the first contract containing, by consent, additional terms.[144]
[144] Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149, [66].
Third, there is the forwarding of the draft contract to Mr Holt by Mr Bunney on 6 May 2013[145] which refers to vehicle pricing and settlement details requiring a balance of payment of one dollar in cash, when taken with Mr Bunney’s statement in the email dated 11 April 2013, that he would ‘draft a document regarding the sale tonight (this morning) and forward it with some other unrelated matter’ is also suggestive of the third category in Masters v Cameron.
I have found that Mr Bunney sent the draft contract to Mr Holt on 6 May 2013 but Mr Holt did not sign it and return it. Sending a draft contract to Mr Holt on 6 May 2013 is, on one view consistent with an intention to purchase the Virage however on another view, it is consistent with Mr Bunney moving towards a point where he would ultimately have to decide whether to purchase the Virage either because he wanted to purchase it and/or because he was exercising his rights over what he considered to be security for the loan.
[145] Exhibit P1 p25, Exhibit D17.
Fourth, there is evidence that on a number of occasions Mr Bunney was introduced by Mr Holt as someone who just purchased an Aston Martin from him. That reflects a subjective view on the part of Mr Holt however there is no suggestion that Mr Bunney corrected Mr Holt.
The evidence to which I refer was led from Mr John Dyson-Harvey, Ms Janine Kitson and Mr David Williams.[146]
John Dyson-Harvey
[146] T567.27-19; T568.3-15.
Mr Dyson-Harvey is a long-standing member of the Aston Martin Owners Club. He gave evidence that he was introduced to Mr Bunney by Mr Holt at a meeting of the Aston Martin Owners Club in or about May 2013. He said that Mr Holt introduced Mr Bunney as someone who had just bought an Aston Martin from him and that Mr Bunney was very enthusiastic about having acquired a car from Mr Holt.[147] Later in his evidence he said that it was both Mr Bunney and Mr Holt who said that Mr Bunney had bought a car[148] although he also said that he did not know if the transaction had taken place.[149]
[147] T414.35-415.22.
[148] T422.1-25.
[149] T424.4-11.
I accept Mr Dyson-Harvey’s evidence.
Janine Kitson
Ms Kitson worked at an Art Gallery. In the course of her employment she met both Mr Holt and Mr Bunney. She gave evidence that Mr Bunney had told her in or about 2013/2014 that he had purchased a car from Mr Holt. Again, I accept Ms Kitson’s evidence.
David John Williams
Mr Williams has been a friend of Mr Holt for over 40 years.
He gave evidence that he attended a party at Mr Holt’s house at Summertown at which Mr Bunney was present. He said that he had a conversation with Mr Bunney in which Mr Bunney said he had bought an Aston Martin from Mr Holt and had paid for it apart from one dollar. He also said the reason he had not paid the full amount was that he wanted Mr Holt to keep it in his garage because he did not have a garage at home to put it in.[150] Mr Williams’ evidence was, given the passage of time, understandably a little vague however he was certain as to the matters I have allowed above and I accept his evidence.
[150] T204.24-205.12, 206.13-18.
The failure by Mr Bunney to correct Mr Holt and the volunteering by Mr Bunney of his purchase of the Virage is equally consistent with Mr Bunney’s grandiose plans formed as part of his manic state. I do not consider that the evidence of Mr Dyson-Harvey, Ms Kitson and Mr Williams is such that it leads to the conclusion or contributes to the conclusion on the balance of probabilities that a contract for the sale and purchase of the Virage was entered into.
Equally, there is also evidence which is against a contract being formed.
First, correspondence in the form of emails after 10 April 2018 support the position that Mr Bunney did not intend to contract to purchase the Virage. In particular:
(a)The email from Mr Bunney to Mr Holt sent 11 April 2013 at 1.44 am where Mr Bunney indicates that he would draft a document regarding the sale;[151] is contrary to an intention to be bound immediately;
(b)The email from Mr Bunney to Mr Holt dated 15 April 2013 at 11.48 am in which he enclosed documents which he says could probably be applied to the sale of any car;[152]
(c)The email from Mr Bunney to ‘Jan & Anne’ copied to Mr Holt and Mr Bunney’s mother, Judy[153] in which Mr Bunney says, referring to Mr Holt’s Aston Martins:
He has one of the 4 pre-production prototype Virages, as well as the last (No: 50338 aka 50400). As I understand it, 50338/50400 was one of his favourites (out of his 6), until the Factory offered him the prototype. When confronted about the prospective sale of 50338/50400 he said he had ‘liquidity’ problems associated with his ‘Pink Geranium renovations’, and couldn’t justify two cars that were essentially the same. He preferred the prototype Virage to the ‘last’. That was the beginning of my ‘fantasy’, and offer to assist him in his ‘temporary’ liquidity dilemma. That fantasy is now only $1.00 away from reality, assuming Terry’s agreement remains afoot…(emphasis in original)
The reference to “Terry’s agreement remains afoot” indicates an option to purchase is to be exercised. Having said that, I accept the email refers to an agreement, however I consider that refers to an agreement to agree to sell the Virage.
(d)Mr Bunney’s email to Mr Forshaw dated 9 April 2013[154] in which Mr Bunney advises Aston Martin Services in Dorsett, England that he is intending to purchase a 1992 V8 Vantage; i.e. He has not done so
[151] Exhibit P1 p3.
[152] Exhibit P1 p10, Exhibit D22 (with attachments).
[153] Exhibit P1 p14,16.
[154] Exhibit D9, Exhibit P12.
Second, there is the unchallenged evidence of Mr Bunney attaching a two‑dollar coin to a bench in his kitchen which he would prise of and give to Mr Holt if he decided to buy the car.[155]
[155] T192.22-27.
Consideration
It has often been said that it is difficult in some cases to ascertain when and if a contract has been formed. That is particularly so in cases where the parties may not be ad‑idem.
The Virage
Objectively, although there is material which is consistent with Mr Bunney considering whether to complete the purchase of the Virage, including the transfer of all except one dollar, there is also objective evidence that Mr Bunney did not intend to and did not enter into a contract to purchase the Virage from Mr Holt. Hence the reference to Mr Bunney to ‘teasing himself’ to which I have referred above and attaching a $2 coin to his kitchen bench.
There was no discussion between Mr Bunney and Mr Holt about the payment of a deposit for the purchase of the Virage, nor any communication from Mr Holt that confirmed the purchase of the Virage or the terms of any such purchase. That is inconsistent with the parties entering into a contract.
The lack of an intention to be bound on the part of Mr Bunney also explains why there were two payments, one for $100,000 and one for $4,999 each representing a separate transaction. I entertain no doubt that Mr Bunney was seriously contemplating purchasing the Virage, that he did not want people to know about it and that he also considered the Virage as security for the Loan.
I have noted that in the email to Mr Holt sent on 11 April 2013 at 1.44 am, Mr Bunney refers to a final $5,000 payment “to complete transfer (i.e. legal release of vehicle and responsibility for insurance)”. This also indicates to me, on an objective basis, that Mr Bunney understood that a further payment was required to complete the purchase of the Virage.
As to the sum of $4,999, I find Mr Bunney transferred that sum in anticipation of the possibility that he might purchase the Virage. However, I find that Mr Bunney intended to loan $100,000 to Mr Holt and although in his manic state and with grandiose plans he clearly contemplated the purchase of the Virage, nevertheless he specifically held back the extra dollar.
Accordingly, I find that at no stage did Mr Bunney intend to enter into a contract to buy the Virage notwithstanding he transferred all but one dollar. In his manic state, possibly contributed to by his philanthropic state within that mania, Mr Bunney had the common sense to realise that he should not buy the Virage and hence withheld the one dollar considering that by not paying, then no contract had come into existence. Looking at the issue objectively in relation to the intention to enter into contractual relations, I find that Mr Bunney did not intend to purchase the Virage on the evening of 10 April 2013 at the Stirling Hotel, or indeed at any time thereafter.
The Loan

The objective evidence also reveals that Mr Bunney considered he was advancing $100,000 to Mr Holt as a loan for the purposes of Mr Holt renovating his house in Summertown. Whereas Mr Bunney may well have had in his mind in his philanthropic state which formed part of his hypomania, that he was advancing a loan of $100,000 to Mr Holt for the purpose of completing the renovations to Mr Holt’s house, I find that he had not communicated that fact to Mr Holt as at 11 April 2013.
I find that at no time did Mr Holt intend to enter into a contract with Mr Bunney to borrow $100,000.
I find that by describing the advance of the money as a “loan” in the email to Ms Cuneen sent on 11 April 2013, Mr Bunney was acting in accordance with his perception that he was advancing money as a loan to Mr Holt but also using it as a disguise for his contemplation that he might purchase the Virage for the sum of $105,000.
Conclusion
In those circumstances, whilst accepting it is not always easy to classify a party’s action, Mr Bunney’s actions were consistent with the third category in Masters v Cameron whilst Mr Holt’s were consistent with a simple offer and acceptance, by the payment to him of $104,999 with one dollar left to pay.
I have found that Mr Holt did not at any stage ask for a loan to be advanced from Mr Bunney to Mr Holt to carry out the Summertown renovations.
Having reviewed the documentation and heard all the evidence, it is clear to me that the parties were never ad‑idem as to the particular transactions that they were both contemplating, albeit simultaneously.
There is no suggestion the payment of $104,999 to Mr Holt was a gift and to the extent that issue was raised, albeit fleetingly, I reject it.
Issue five - Relief
The plaintiff seeks relief on five bases: [156]
1No certainty of contract;
2Mistake;
3Failure of consideration;
4Illegality;
5Constructive Trusts.[157]
[156] Plaintiff’s submissions on relief dated 20 February 2019.
[157] Plaintiff’s closing submissions on relief [49-56].
I have found that the parties were not ad‑idem. Accordingly, relief on the basis of a failure of consideration, illegality and no certainty of contract do not arise.[158] I do not consider a Constructive Trust arose.
[158] Defendant’s submissions concerning final relief dated 1 March 2019 [4].
Mistake
The plaintiff claims relief as a consequence of there being no contract between the parties applying equitable and common law rights of recovery.[159]
[159] Plaintiff’s closing submissions on relief [15-48].
The defendant submits that relief based on a payment made by mistake is not available to the plaintiff on the basis:[160]
[160] Defendant’s submissions concerning Final Relief dated 1 March 2019 [4].
“4. It is not open to the plaintiff to pursue a claim based on mistakes as:
4.1.    no such claim has been pleaded;
4.2.    a claim based on mistake (either unilaterally or mutual) would involve making findings with respect to the plaintiff’s subjective     state of mind at the time of the payments;
4.3.    the trial was conducted on the basis that evidence of the plaintiff’s state of mind was irrelevant and inadmissible, except in so far as it related to the question of legal capacity;
4.4.    during opening addresses, the defendant submitted that the question of the existence of a contract had to be determined objectively and objection was taken during the course of trial to questioning directed at adducing evidence of the plaintiff’s subjective belief about the characterisation of his dealings with the defendant as well as to cross examination about the defendant’s subjective belief;
4.5.    at no point did counsel for the plaintiff make any submission to    the effect that the plaintiff’s state of mind was relevant to the grant of final relief, or that it was relevant for the purpose of establishing a claim founded on a payment by mistake;
4.6.    insofar as cross-examination of the plaintiff was directed at his subjective understanding, it concerned the question of mental     capacity, and his ability to understand the nature of various legal concepts and understand what he was doing at the time;
4.7.    other questioning about the plaintiff’s understanding at the time related to credit issues;
4.8.    the defendant had no notice of any claim based on mistake. Had notice of such a claim been given, the plaintiff would have been cross-examined about       his state of mind, for example, whether he would have proceeded with the transaction in any event, irrespective of any mistake (e.g., on the basis of a gentleman’s agreement). It would not be fair to the defendant to determine the case on the basis of an unpleaded claim based on mistake.”
My finding that the parties were not ad‑idem but had different views as to the transaction that was being entered has the consequence that the payment of $100,000 to Mr Holt was made under a mistake of fact and/or law.
True it is that mistake was not pleaded with each party putting forward its own particular transaction, however I do not accept that the case would have been conducted any differently by the defendant, even if the plaintiff had pleaded mistake.
In particular, and as to the submissions of the defendant at 4.3 of his written submissions on final relief,[161] although the trial was conducted on the basis that evidence of the plaintiff’s state of mind was irrelevant and inadmissible except in so far as it related to the question of legal capacity, nonetheless the defendant confuses the question of the objective ascertainment of whether or not a contract was entered into between the parties with the consequence that flows if a finding is made that the parties were not ad‑idem and yet one party advanced money. That consequential issue of mistake does not involve a consideration of the plaintiff’s subjective state of mind. Objectively, payment was made in circumstances that gave rise to a mistake of fact and/or law. That mistake emerges from the evidence adduced. I do not accept that it is unfair to the defendant to determine the case for relief on the basis of what it describes as a ‘unpleaded claim based on mistake.’[162] The issue of mistake necessarily arises out of the evidence and as a consequence of my findings.
[161] Defendant’s submissions concerning Final Relief dated 1 March 2019 [4].
[162] Defendant’s submissions concerning Final Relief [4.8].
Further, I specifically raised with the parties during the course of the trial the possibility that the parties may have not been ad‑idem as to either transaction. I expect that it is for that reason that the parties expressly addressed the issue of mistake in their respective submissions on relief. Having regard to the way the trial was litigated, with both parties attacking the other party’s position as to that party’s alleged transaction the issue whether payment was made under a mistake was litigated.
$100,000 payment
In paying the sum of $100,000 to Mr Holt, the plaintiff proceeded under a mistake of fact and/or law, the mistake being that he considered that he was advancing that sum of money to the defendant as a loan.
The prima facie position is that where money is being paid under a mistake of fact the recipient is bound to repay the amount received.[163] In David Securities Pty Ltd v Commonwealth Bank of Australia,[164] the High Court considered the question of whether the money paid under a mistake of law was recoverable. After noting the general rule at that time was that payment made under a mistake of law was not recoverable, the Court held that the rule precluding recovery of monies paid under a mistake of law should be held not to form part of the law in Australia.[165]
[163] David Securities Pty Ltd v Commonwealth Bank of Australia (1991-1992) 175 CLR 353, 376.
[164] Ibid.
[165] Ibid.
The Court continued that money paid under a mistake of law is also prima facie recoverable.[166]
[166] Ibid.
The question of the circumstances in which money paid under a mistake is not recoverable was also considered by the High Court in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd.[167]
Change of position and Detrimental Reliance
[167] (2014) 253 CLR 560.
The plaintiff advances his submissions based on unjust enrichment however as the Court made clear in both David Securities[168] and Australian Financial Services and Leasing Pty Ltd unjust enrichment is not a definitive legal principle.
[168] (1992) 175 CLR 353 [74][75].
In Australian Financial Services and Leasing Pty Ltd the Court observed:
In Australia, the equitable roots of the action for money had and received were early recognised in Campbell v Kitchen & Sons Ltd. There, Barton J observed that recovery “depends largely on the question whether it is equitable for the plaintiff to demand or for the defendant to retain the money”. In National Commercial Banking Corporation of Australia Ltd v Batty, Gibbs CJ said:
“Whether the action is based on an implied promise to pay, or on a principle designed to prevent unjust enrichment, the emphasis on justice and equity in both old and modern authority on this subject supports the view that the action will not lie unless the defendant in justice and equity ought to pay the money to the plaintiff.”
This is not to suggest that a subjective evaluation of the justice of the case is either necessary or appropriate. The issues of conscience which fall to be resolved assume a conscience “properly formed and instructed” by established equitable principles and doctrines. As was said in Kakavas v Crown Melbourne Ltd, “[t]he conscience spoken of here is a construct of values and standards against which the conduct of ‘suitors’ – not only defendants – is to be judged” (footnotes omitted).
The question then becomes as to who should properly bear the loss and why, which inquiry is to be conducted by reference to equitable principles.[169]
[169] Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560, 78.
As to change of position and detrimental reliance, having referred to David Securities Pty Ltd v Commonwealth Bank of Australia[170] the Court said:[171]
81. In David Securities, reference was made to what was said in Lipkin Gorman concerning the defence. It was observed that in Lipkin Gorman, Lord Bridge of Harwich, Lord Ackner and Lord Goff said that the defence should be recognised by English law but declined to define its scope. However, in David Securities the “central element” of the defence was identified as being “that the defendant has acted to his or her detriment on the faith of the receipt” (emphasis in original). Whether English cases subsequent to Lipkin Gorman have taken a wider view of the defence, one which eschews a requirement of detrimental reliance in favour of a mere causal link, cannot alter what was said in David Securities regarding the defence. Whether the conclusion reached in the English cases, including Lipkin Gorman, is different from that which would be reached by reference to equitable principles is a moot point. In any event, consistently with an inquiry as to whether it is unconscionable for the recipient to retain the moneys, it is necessary in cases such as the present to consider what was done by the recipient in reliance upon the receipt.
82. In David Securities, in the passage in which reference is made to a recipient acting on the faith of the receipt, it was said that a common element in cases in Canada and the United States, where the defence has been accepted, is that it is necessary that the defendant point to “expenditure or financial commitment” which can be ascribed to the mistaken payment. The passage does not provide precise direction as to the resolution of the issue in this case, but it is tolerably clear that their Honours did not suggest that the defence was available only to a recipient who was able to demonstrate monetary disenrichment on the faith of the mistaken payment.
[170] Ibid.
[171] Ibid 81-82, 84, 88.
The Court continued:
84. More importantly, under Australian law, a mathematical assessment of enduring economic benefit does not determine the availability of restitutionary remedies. The equitable doctrine which protects expectations, with which the notion of “detriment” is associated, is not concerned with loss caused by a wrong or a breach of promise. As Deane J observed in The Commonwealth v Verwayen “[e]quity has never adopted the approach that relief should be framed on the basis that the only relevant detriment … is that which is compensable by an award of monetary damages”. The equitable doctrine concerning detriment is concerned with the consequences that would enure to the disadvantage of a person who has been induced to change his or her position if the state of affairs so brought about were to be altered by the reversal of the assumption on which the change of position occurred. On this view, the injustice which precludes such a result lies in the disadvantage which would result to the recipient if the payer were to be permitted to recover payments as mistakenly made where they have been applied by the recipient.
88. … In the context of mistaken payments, the question is whether it would be unconscionable for a recipient who has changed its position on the faith of the receipt to be required to repay (footnotes omitted).
There is evidence that the defendant applied the money to paying off some debts and as the renovations of the Summertown property. Mr Holt said that by September 2013 the funds had been significantly diminished. Mr Holt continued by saying he had a car in the United Kingdom which he could have sold to provide the funds to buy back the Virage but because Mr Bunney refused to acknowledge the fact that he owned the Virage, it sat in the warehouse.[172] I do not accept Mr Holt was not in a position to sell the vehicle in the United Kingdom because Mr Bunney refused to acknowledge he owned the Virage.
[172] T604.6-25.
In my view, there was nothing to prevent Mr Holt from taking steps to raise the money to repay Mr Bunney and any evidence to the contrary is both convenient and disingenuous.
The defendant retains possession of the Virage which on the defendant’s evidence, fully restored, has a value in the order of $120,000 to $125,000 and in its state as it was in April 2013, a value of $105,000.
Notwithstanding that Mr Holt may have applied the monies, at least to the extent of $100,000 he nonetheless maintains possession of the Virage and in my view, there is no evidence Mr Holt changed his position in any way to his detriment. I note that the defendant does not contend in his Submissions Concerning Final Relief that the defendant has done so or that he seeks to re-open his case and call further evidence in relation to that issue.
$4,999 payment
As to the sum of $4,999, on one view that sum falls into a different category. Arguably, the amount was not advanced by Mr Bunney under a mistake but in contemplation of a transaction exercisable by the payment of a further dollar to complete the purchase of the Virage either because Mr Bunney formed the view he was going to purchase the Virage per se or in exercising his rights over what he perceived to be security for the Loan. There is no mistake as to the payment of that amount however the transaction did not proceed and there being no terms of any potential transaction, there is no reason why the plaintiff should not recover that sum.
Accordingly, in my view the plaintiff has established an entitlement to be repaid the sum of $104,999.
Interest
The plaintiff seeks interest and is clearly entitled to it. Mr Holt has had the use of the money from 11 April 2013 in the case of $100,000 and $104,999 as from 14 April 2013.
Applying rule 208 of the District Court Civil Supplementary Rules 2014, the plaintiff is entitled to pre-judgment interest in the sum of $40,543.41.
Conclusion
1In the circumstances, there will be judgment for the plaintiff in the sum of $104,999 plus pre-judgment interest in the sum of $40,584.94 giving a total of $145,583.94 to the period ending 2 October 2019.
2As to the Triumph, there is no reason why the plaintiff is not entitled to the motor cycle and I order that the defendant permit collection of the Triumph from the defendant’s premises where it is currently being stored within 28 days of today.
3I will hear the parties on the question of costs.