De L'Instant Parade v Banerjee

[1997] QCA 488

[1997] QCA 488 

COURT OF APPEAL

DAVIES JA
MOYNIHAN J
de JERSEY J

Appeal No 8022 of 1996

JOHN PAUL ALEXANDER de L'INSTANT PARADE       Appellant
  (Defendant)
and

MAUREEN JANET BANERJEE  Respondent
  (Plaintiff)

BRISBANE

..DATE 22/05/97

JUDGMENT

DAVIES JA:  On 29 August last year after a trial in the District Court judgment was given for the respondent in the sum of $54,862 which was in respect of two of a number of claims made by her against the appellant.  The appellant's counterclaim was dismissed.  The appellant appeals against part of the judgment being in respect of one of those claims for $42,280.  That sum was made up of a loan of $20,000 and interest at 20 per cent until the date of judgment of $22,280. 
The financial transactions between the parties arose out of a friendship between them which, on the respondent's side, blossomed into love but which, on the appellant's side, remained only a friendship though it involved for a time sexual relations between them.

The transaction the subject of the present appeal was entered into during that relationship.  It is unnecessary to say anything further about the parties or their relationship because that is fully set out in the reasons for judgment of the learned District Court Judge and there is no contest in respect of them before this Court.

The contest between the parties both below and in this Court was and is whether the transaction involving the $20,000 was a loan or a gift.  The learned trial Judge held that even assuming everything that Mr Parade said about the arrangement is perfectly true the transaction was not a gift.  His Honour was there referring to what the appellant said had occurred when the money was handed over to him not his later understanding of the effect of the transaction. 
As to the latter there is some inconsistency.  In his affidavit he described the transaction as an advance whilst in his evidence, at least at one point, he described his understanding of it as a gift.

There is no dispute that on 4 February 1991 the respondent used money she had with Westpac to obtain a bank cheque for $20,000 payable to the appellant and handed that cheque to him on that day.  There is also no dispute that at the same time she handed to him a short document which she had typed out headed "Promissory Note" in which the appellant acknowledged that he was indebted to her in the sum of $20,000 repayable on demand or after 12 months with interest at 20 per cent.  She asked him to sign it.  He then initialled it and she signed it.

It may seem surprising that notwithstanding those circumstances the appellant maintained that the transaction was a gift.  It is to say the least difficult to explain why she would have typed out this document and caused him to sign it if she intended simply to give him the money.  No satisfactory explanation for this was advanced by the appellant either below or in this Court.

The appellant's evidence as to what the respondent said when the money was handed over was as follows, and I quote:

"`I would like you to have the $20,000.  I want you to invest that whichever way you want because I know you take good care of it and when I pass away I want you to look after my two daughters and my son if you make any money off it.'  She wanted me to look after the children for that reason.  The reason was because she said, `You are a real human being for having got the trust of my daughter, now you've got my trust.  I have to have some documentation where my $20,000 is.  I will never enforce it because that is from you to me.'  She said she would never enforce it because she didn't want to have it witnessed.  `I know you will put it to good use.'"

There is nothing in that statement which would support a contention that the respondent intended to make a gift to the appellant of the $20,000.  On the contrary, the reference to needing to "have some documentation where my $20,000 is" and to the fact that she would never enforce it are consistent only with a loan together with her then present intention of not enforcing it through payment.  It is not at all surprising that at a time when the respondent believed she was in love with the appellant she would tell him that she did not intend to enforce its repayment but that does not change the character of the transaction which was plainly one of loan. 

It was not submitted either below or in this Court that there was any consideration for a promise not to enforce payment or that any question of estoppel arose or indeed that on any other basis the appellant was entitled to relief from repayment of a sum which he had borrowed.  The sole question below and in this Court was whether the transaction was one of gift or loan.  If it was of the latter kind the appellant did not contest his obligation to repay it.

It is unnecessary to discuss questions of credibility which caused His Honour some difficulty because, for the purposes of determining the character of this transaction, His Honour was prepared to accept the evidence of the appellant, which I have set out, read in the light of the important document which I have already described.  For the reasons which I have stated (the signing of the promissory note and the description by the appellant of what the respondent said), the transaction was a loan as His Honour held.  In my opinion, therefore, the appeal should be dismissed.

MOYNIHAN J:  I agree.

de JERSEY J:  I agree.

DAVIES JA:  The appeal is dismissed.

MR CAMPBELL:  I ask for costs, Your Honour.

DAVIES JA:  You can't oppose that, Mr Molloy.

MR MOLLOY:  Nothing to say, Your Honour.

DAVIES JA:  With costs.

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