Durran & Durran v Turner (Civil Dispute)
[2015] ACAT 75
•13 November 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DURRAN & DURRAN v TURNER (Civil Dispute) [2015] ACAT 75
XD 14/1372
Catchwords: CIVIL DISPUTE – debt application – oral agreement – implied agreement – promissory note – quantum
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 16
Tribunal: Ms E. Symons – Presidential Member
Date of Orders: 13 November 2015
Date of Reasons for Decision: 13 November 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL XD 14/1372
BETWEEN: SHERIDEN DURRAN &
COURTNEY DURRAN
Applicants
AND: JULIANNE TURNER
Respondent
TRIBUNAL: Ms E. Symons – Presidential Member
DATE:13 November 2015
ORDER
The Tribunal Orders that:
Judgment for the applicants in the sum of $7,500.00 plus pre-judgment interest in accordance with the Court Procedures Rules 2006 from 11 June 2014 to 13 November 2015, namely $681.88 and the filing fee of $135.00, which total $8,316.88.
The respondent pay to the applicants $8,316.88 by close of business 11 December 2015.
………………………………..
Ms E. Symons – Presidential Member
REASONS FOR DECISION
The proceedings
The applicants filed a debt application on 3 October 2014 seeking $7,836.00 from the respondent. They sought the amounts of $7,500.00 which the applicants alleged they had loaned to the respondent for renovations to her property when it was deemed unsafe to live in and for which they and the respondent had signed a promissory note, and $336.00 for medical costs paid for the respondent in Bali.
The respondent filed a response on 5 November 2014 in which she denied the loan of $7,500; she denied signing the promissory note; and she denied having made promises to the applicants or either of them to repay the amount of $7,500. In relation to the claim for medical costs the respondent admitted that Courtney Durran had paid the respondent’s medical expenses in Bali and the respondent had agreed to Courtney Durran paying these expenses but denied receiving any money from either or both of the Applicants by way of a loan for medical expenses. She stated that a claim had been lodged against Australia Post Insurance for the medical expenses and the sum of $302.67 was paid by Australia Post Insurance to Courtney Durran.
On 11 December 2014 Hill & Rummery, Solicitors, filed a notice of representation for the respondent.
On 2 December 2014 the preliminary conference was adjourned to 3 March 2015.
On 3 March 2015 Legal on London, Solicitors, filed a Notice of Representation on behalf of the applicants.
On 3 March 2015 the respondent requested a further adjournment of the preliminary conference.
At a directions hearing on 4 June 2015, a timetable was set for the filing and serving of witness statements, and other materials and the matter was set down for hearing on 28 July 2015.
On 30 June 2015 the applicants filed affidavits from Courtney Durran, Wendy Durran, Colin Durran, Sheriden Durran and witness statements from Annette Haworth and Stacey Hellwig.
On 8 July 2015 the applicants filed an amended debt application seeking $9,855.14 for “a debt owing by the respondent for costs incurred in assisting the respondent with renovations to her house at 31 Pavonia Street Rivett.”
The respondent filed her affidavit on 17 July 2015.
The applicant subsequently filed affidavits by Courtney Durran dated 7 July 2015 and 28 July 2015 and an affidavit by Necia Wearne, Solicitor, on 24 July 2015.
Jurisdiction
The Tribunal is a statutory body established by the ACT Civil and Administrative Tribunal Act 2008 (‘ACAT Act’) and has only such jurisdiction and powers as are conferred on it by the Legislature.
The Tribunal has jurisdiction over this matter by virtue of it being a civil application in relation to a contract[1] and a debt.[2]
The hearing
[1] ACAT Act section 16(a)
[2] ACAT Act section 16(c)
The matter was heard on 28 July 2015 and 18 September 2015. Ms Wearne, solicitor, represented the applicants and Mr Carroll, solicitor, represented the respondent at the hearings.
Sheriden Durran, Courtney Durran, Wendy Durran and Colin Durran gave evidence for the applicants and were cross examined.
The applicants tendered the following documents:
Exhibit A1 Affidavit Courtney Durran 30 June 2015 Exhibit A2 Affidavit Courtney Durran 7 July 2015 Exhibit A3 Affidavit Courtney Durran 28 July 2015 Exhibit A4 Affidavit Wendy Durran 30 June 2015 Exhibit A5, Affidavit Colin Durran 30 June 2015 Exhibit A6 Witness Statement Annette Haworth 29 June 2015 Exhibit A7 Witness Statement Stacey Hellwig 29 June 2015 Exhibit A8 Letter of demand 3 September 2015 Exhibit A9 Promissory Note Exhibit A10 Bundle of receipts Exhibit A11 Statutory Declaration Salvatore Cacopardo 2 July 2015 Exhibit A12 Letter from ACDC (ACT) Pty Ltd 5 September 2015 Exhibit A13 Kennards Hire, Customer Payment Details 17 September 2015 Exhibit A14 Affidavit Necia Wearne 24 June 2015 Exhibit A15 Affidavit Sheridan Durran 30 June 2015
The respondent, Julianne Turner, gave evidence and was cross examined. Her affidavit affirmed 17 July 2015 was Exhibit R1.
After hearing submissions from the solicitors for the parties the Tribunal reserved the decision.
The applicants’ claim
The applicants contend that:
(a)the respondent orally requested the applicants to supervise and pay for renovations to her house at 31 Pavonia Street, Rivett (‘the house’) while she and her children were in Western Australia between 31 October 2013 and 27 November 2013;
(b)on 30 October 2013 the respondent provided Courtney Durran with her bank card and pin number so she could withdraw money from the respondent’s account and pay for the renovations to the house while the respondent was away;
(c)if the costs to be paid were greater than the respondent’s daily withdrawal limit the applicants requested from the respondent and the respondent made direct transfers to Courtney Durran’s bank account for these amounts;
(d)when some of the tradespeople arranged by the respondent failed to attend the house the applicants sought advice from the respondent and the respondent verbally requested the applicants to arrange for alternate tradespeople, to supervise them and to pay them;
(e)they sought and obtained verbal approval from the respondent for all of the work undertaken and the costs they incurred;
(f)when the respondent told the applicants she had run out of money the applicants offered to the respondent to loan her the monies owing for the remainder of the work so that the house renovations would be finished by the time she returned to Canberra; the respondent accepted the applicants’ offer and agreed to repay the applicants on her return to Canberra;
(g)the applicants paid for the remainder of the renovations from their own monies;
(h)the respondent failed to repay the applicants’ loan on her return to Canberra, notwithstanding the requests from the applicants;
(i)after multiple requests for repayment of the loan were not met, on 11 December 2014 the applicants and the respondent signed a promissory note for the loan of $7,500.00 to the respondent from the applicants;
(j)the respondent offered to pay the applicants part of the monies loaned on a number of occasions and failed to pay any money;
(k)in proceedings in the ACT Magistrates Court on 16 September 2014 the respondent gave evidence on oath that she was not denying that she may owe the money; and
(l)despite repeated requests from the applicants, the respondent has not repaid the money loaned by the applicants.
The respondent’s claim
The respondent contends that:
(a)she did not receive any loan monies from the applicants;
(b)she did not sign the promissory note;
(c)she did not make any promise to either or both applicants to repay them $7,500.00;
(d)in relation to the medical expenses claimed, she had not received any moneys loaned by the applicants for medical expenses; and
(e)Courtney Durran had paid for medical expenses in Bali, a claim had been made against Australia Post Insurance and on approval of the claim the payment of $302.67 was paid to Courtney Durran.
Issues
The issues for determination by the Tribunal are:
(a)Was there an agreement between the parties which related to the renovation of the respondent’s house? If so, what are the terms of this agreement?
(b)Did the parties sign the promissory note?
(c)If the Tribunal finds that there was an agreement between the parties, was the work carried out in accordance with the agreement? If so, what is the quantum of the applicants’ claim?
The evidence
Courtney Durran
Courtney Durran told the Tribunal that she, her parents, Colin and Wendy Durran and her sister, Sheriden Durran had been close family friends of the respondent and her husband, Terry, for some years prior to his death on 27 February 2013. During this time the Durran family members assisted the respondent’s family. This help included lending them amounts of money up to $5,000.00 which the respondent and her husband had always repaid.
After Terry Turner’s death the Durran family continued to assist the respondent.
A structural engineer had inspected the respondent’s house and advised the respondent it was unsafe. Underneath the floor the brick pillars were crumbling, the house was unlevel and there were cracks though out the rooms.
The respondent had talked to the Durran family about renovating her house and said she hoped the renovations would be done while she was in Perth. She had planned a trip there from late October 2013 to late November 2013.
On 29 October 2013 the respondent, Wendy Durran and Courtney Durran attended the police station at Woden in the ACT. The respondent told the officer, in the presence of Wendy Durran and Courtney Durran, she was going away and leaving the property in the care of Wendy and Colin Durran and that she did not want her son, Kenneth Turner, to attend the property at any time while she was away.[3]
[3] Exhibit A3 at [8]
The respondent had asked Colin Durran and Wendy Durran and the applicants if they would be able to assist with the repairs. Subsequently she asked if they could be at her home to open it up for a builder who was due to attend the house on 4 November 2013. The respondent also asked her, Courtney Durran, if she would pay the tradesmen if she gave her ATM card and pin number to her. The respondent had told Courtney Durran “the tradesmen wanted cash and this was the best way.”[4] The respondent told her not to worry about receipts.
[4] Exhibit A1 at [4]
Before the respondent left for Perth, Colin Durran had asked her what the builder’s instructions were and the respondent had said they were in the blue book on the table inside. Courtney Durran said there was nothing written in the blue book.
Wendy Durran had driven the respondent and her children to the airport for their flight to Perth on 31 October 2013.
Courtney Durran and her father were at the respondent’s property on 4 November 2013 as requested by the respondent. When the builder and engineer organised by the respondent did not turn up on 4 November 2013, Courtney Durran said she telephoned the respondent to let her know. The respondent requested that she contact the builder, which she did. The builder and an engineer attended the house the next day and advised that the house should be knocked down.
Courtney Durran said she telephoned the respondent and passed this information on to her and the respondent asked her to do what she could to make the house habitable.
Courtney Durran contacted other builders and obtained a quote from one of them on 5 November 2013 and engaged that builder to do the work.
Courtney Durran said that at every step of the way someone from the Durran family kept the respondent up to date with what was going on by texts, phone calls and emails. While the work was being carried out, other defective work was discovered at the house which needed replacing such as finding rotten wood when a door was removed and faulty wiring which had to be redone. The respondent also requested extra power points in the kitchen, pantry, laundry and bathroom
On 16 November 2013, Courtney Durran said she had telephoned the respondent as Colin Durran had sent an email drafted by Wendy Durran and the applicants to the respondent on 12 November 2013. The email contained a description of the work that had to be done together with a rough calculation of what it might cost. In the telephone call the respondent told her “to do whatever I could to make the house habitable.”[5]
[5] Exhibit A1 at [7]
Courtney Durran said she had also discussed with the respondent the difficulties she was having paying the tradesmen when the daily limit on withdrawing money from her account was $1,000.00. She told the respondent that, at times, she had to use her own money. The respondent said she would transfer money to her. Courtney Durran told the respondent that she had recorded every item of expenditure in the blue book.
On 16 November 2013 Wendy Durran had fallen while working at the respondent’s house and fractured her hand. Courtney Durran rang the respondent later that day to tell her what had happened to Wendy Durran but the respondent did not respond to this call.
Courtney Durran told the Tribunal that her parents, her sister and she were all assisting with the physical work on the house renovations. They were also left with the responsibility of looking after the respondent’s pets. This included responding to a request from the RSPCA about the dog when the respondent had left Canberra and led to her taking the dog to the vet and the dog being put down on the advice of the RSPCA and a vet and in consultation with the respondent. Courtney Durran offered to pay and paid the veterinary fees and the respondent agreed to repay Courtney Durran when she returned to Canberra. The applicants are not claiming repayment of the veterinary fees.
Between 16 November 2013 and 25 November 2013 Courtney Durran said she continued to keep the respondent informed of the work being undertaken and the cost, but the respondent mostly did not return her calls.
When the respondent had not transferred money to Courtney Durran during the week of 25 November 2013, Courtney Durran had spoken with her as tradesmen were waiting to be paid and the respondent said she had no money or available assets. In that telephone call the respondent asked Courtney Durran “to do what I could to make the house habitable or she would have to come over to us to cook and shower when she returned.”[6]
[6] Exhibit A1 at [12]
Courtney Durran said she discussed the situation with her sister, Sheriden, and her parents and they agreed to use the money Courtney and Sheriden Durran had been saving to buy a trip for their parents as their father’s birthday present, to finish the respondent’s renovations. Courtney Durran said she rang the respondent and offered to use their savings (‘their savings’) as the amount still needed to pay the tradesmen was about $7,500. Courtney Durran said that she told the respondent the sum of $7,500 did not include money that she and Sheriden Durran had already paid out of their own accounts for the house renovation. She said “Julianne said that would be great and that she would pay the money back as soon as she returned.”[7]
[7] Exhibit A1 at [13]
Courtney Durran said that she and Sheriden offered to loan the respondent this money because the respondent and her late husband had previously repaid loans from the Durran family. Courtney and Sheridan Durran paid the outstanding bills for the respondent’s renovations with their savings.
Courtney Durran said that the applicants organised for the following work to be done at the respondent’s house and paid for –subfloor repaired, house leveled, new floor installed, new laundry, bathroom, toilet, kitchen, front door moved, a butler’s pantry built, two bedrooms renovated and the demolition prior to this work being done. Neither of the applicants had charged the respondent for their labour doing this work.
Wendy Durran collected the respondent and the children from the airport on 27 November 2013.
When the respondent arrived at the house, the respondent told the applicants and their parents that she was delighted with the renovations and asked how much she owed them. Courtney Durran told the respondent she owed them around $7,500.00 and that the details were in the blue book.
A few days later Courtney Durran met with the respondent and went through all the details of what had been done to the house setting out what the tradesmen had done and what the Durran family had done and the cost.
On 11 December 2013 Courtney Durran met the respondent by chance at Woden and went shopping at Big W. Courtney Durran said when the respondent bought clothes for one of her daughters she apologised to her for buying clothes when she owed Sheriden and Courtney Durran money. After a discussion Courtney Durran suggested drawing up a written loan agreement with the respondent allowing her to repay the debt over time and the respondent agreed.
On 11 December 2013, Courtney Durran said that the respondent also offered to pay her 10% of the sale proceeds of her orchids, to which Courtney reluctantly agreed.
On 11 December 2013, when the respondent attended their home, Courtney and Sheridan Durran ‘Googled’ promissory notes and asked the respondent what time frame she wanted in the promissory note to repay the loan. She said six months. The respondent then said that she wanted to make a call to check if what we were doing was legal. She made that call and told them it was legal. They then printed off the promissory note and the three of them signed it. The respondent told Courtney and Sheriden Durran that she was going to Balranald and she would repay them when she returned in January 2014.
Courtney Durran said that her mother had been at home when the promissory note was signed.
Courtney Durran said that, when she went to the respondent’s house on 25 December 2013, the respondent apologised for not paying the money back.
On 29 January 2014 the respondent told Courtney Durran she had $1,000 which she would give her in Sydney, where they were to see The Lion King. While in Sydney, Courtney Durran asked the respondent for the money. The respondent said that she would “get it out when she could.” The respondent did not pay the $1,000.00.
In March 2014 the respondent said she would sell the motorbikes which were stored at the Durran house and pay the applicants what she owed them.
On 12 April 2014 Courtney Durran found out that the respondent had been selling orchids on eBay and ascertained that the money she earned from the sales was almost the same amount as she owed them.
Her sister, Sheriden, sent a text to the respondent, which she showed to Courtney, asking the respondent for the money. The respondent replied that she only had $200.00 and no food for the children.
In August 2014, Courtney Durran noticed a post on the internet which confirmed that the respondent had sold the motor bikes. On 26 August 2014 her sister, Sheriden, sent the respondent a text, which she showed Courtney, asking for some money because she had bills to pay. On 28 August 2014 the respondent told Wendy Durran she would pay the money as soon as the cheque cleared.
On 2 September 2014, when Courtney Durran told the respondent she knew she had sold the motor bikes, the respondent said Courtney Durran would have the money by the end of the week. Annette Haworth, Stacey Hellwig and Wendy Durran had been present when this conversation took place.
On 10 September 2014 the respondent told Courtney Durran and her sister that she had deposited $42,000 into Courtney’s bank account and that Colin Durran’s estimate was about $31,000. There was a discussion about the estimate, what work had been done and how much it had all cost and that the total was much more than the estimate.
On checking her account Courtney Durran discovered that the respondent had deposited $24,500 and not $42,000. At that stage, Courtney Durran believed that the respondent still owed her $7,836.00.
After signing her first Affidavit on 30 June 2015 Courtney Durran said she had found further receipts relating to the house renovations. She had paid $9,855.14 from her own and her sister’s money for the electrician and the tiler and at Magnet Mart.
In cross examination Courtney Durran said that the respondent had told her ‘no receipts, cash in hand jobs, as cheaply as possible’ when she was organising the trades people and she did exactly what the respondent told her to do. She said she had left the blue book in the kitchen which recorded what work had been done and what it had cost. The money she and her sister had been saving for their father’s birthday gift was held in a safe at their home. When the respondent had told them she had no more money and agreed to accept their offer to loan her the money to pay for the work to make the house habitable on her return to Canberra the applicants had used their savings to pay for the work. She had receipts for the money she had paid out from their savings but not for the building work the respondent had requested.
Courtney Durran denied that she and her sister were now claiming for expenses they had not incurred. She also said that the respondent had not told them to stop the work when her money ran out.
Courtney Durran vehemently denied that the promissory note was forged.
Courtney Durran also told the Tribunal that the respondent had given her son her secondary card attached to her bank account and he had access to the respondent’s account during the time Courtney Durran had access to the account. She was unable to tell if all of the cash withdrawals listed by the respondent in her affidavit dated 17 July 2015 were made by her as there was insufficient information provided.
Sheridan Durran
Sheridan Durran corroborated Courtney Durran’s evidence. She said that the blue book did not have anything written in it when the respondent left for Perth. She and Courtney Durran had recorded everything they did at the house in this book. She said that they asked for receipts for the expenses they paid for. Courtney was the record keeper. The blue book was left in the kitchen.
She had been at the respondent’s house daily and had overheard the telephone conversations with the respondent. She had paid the electrician and the tiler, Kennards Hire, Fantastic Furniture and for paint trays and brushes.
Because of the dispute at the hearing on 28 July 2015 about the electrician’s, ACDC Pty Ltd, account not being paid, she had obtained a statement from the electrician dated 5 September 2015 (Exhibit A12) which confirmed that the company had been paid $6,688 in cash in November 2013 for their work at the respondent’s house. She also said that the respondent had wanted her laundry enclosed so the electrician had to install an exhaust which the respondent did not pay for.
Colin Durran
Mr Durran corroborated his daughters’ evidence.
He confirmed that the respondent had discussed her house renovation with him over many months in 2013. He had helped her draw up the changes she wanted on existing plans and advised her to see ACTPLA.
The respondent had said that she wanted the house renovation undertaken while she was in Perth. She had asked Mr Durran and Courtney if they could be present at her house on 4 November 2013 when the builder and engineer were to attend. She had also given Courtney her bank card. The respondent had told him the instructions for the builder were in the blue book. When he looked in the blue book there was nothing written in it.
He had been present when Courtney had spoken to the respondent on speaker phone when the builder and engineer did not turn up on 4 November 2013.
He told the Tribunal that he and Courtney had drafted the email to the respondent which they sent on 12 November 2013 because of “things blowing out”. It set out some quotes, their estimates for the various trades engaged in the renovations, information about the discovery of rotten walls which had not been included in the builder’s quote and which needed replacing, that the cost of the unexpected work had to be worked out and listed ‘incidentals yet to be purchased’ namely bench top, plumbing drains and pipes, splash back, cupboard for stove surround, new wiring for cooktop, skirting boards, door paint, bathroom ceiling paint , tiles for laundry cavity and ‘?door to toilet’ as well as incidentals which they had already purchased.
When it became clear that more money was needed to pay for the work than the respondent had available, Mr Durran confirmed that his daughters had discussed the situation with he and his wife and they agreed that the applicants could cover the costs of the renovations as a loan to the respondent. They did this because previously the respondent and her late husband had always repaid money borrowed from the Durran family and because there was some urgency in having the respondent’s house fit to live in when she returned from Perth.
He said that they had put notes in the blue book in relation to the work done at the house and Courtney had put receipts and invoices into that book.
Mr Durran said that on 11 December 2013 Courtney had told him that she and Sheriden had agreed they needed to make a written arrangement with the respondent regarding the loan.
In cross examination Mr Durran said that the blue book had recorded the payments made by his daughters.
Wendy Durran
Mrs Durran said that she had known the respondent over a number of years and they had been really close friends over the last four to five years when the respondent’s husband became ill and then passed away.
Just after Mr Turner had passed away on 27 February 2013 the respondent had been at Mrs Durran’s home and talked about painting and renovating the house. She and Mr Durran had suggested to the respondent that they do the painting. She talked about the renovation to the house just about every day. She asked Mr Durran to assist with demolishing the floor and asked she and Mr Durran to oversee her renovations.
Mrs Durran told the Tribunal that the respondent had asked them to play the ‘Terry card’ when getting quotes. Mrs Durran explained that this meant that they had to say that Terry had cancer and had died and had left the respondent with the house which needed fixing up.
Mrs Durran told the Tribunal that she had driven the respondent and the children to the airport on 31 October 2013.
All of the family had helped with the house renovation while the respondent was away.
Mrs Durran said she had direct knowledge of how Courtney and Sheriden had spent their money on the respondent’s renovations. She said it was used to pay the trades, namely the tiler and the electrician and for other bits and pieces. She particularly recalled a telephone conversation at the respondent’s house when Courtney spoke to the respondent on speaker phone about the work and the monies needing to be paid and hearing the respondent say she did not have the money to finish the house so just make it liveable.
She knew from discussions with the applicants before they offered to loan the money to the respondent that they had decided to offer to loan the money to the respondent to finish off the work and to get the house habitable. The Durran family had previously loaned money for food, medicine and a car and the respondent and her late husband had repaid it.
She collected the respondent and the children from the airport on 27 November 2013 and drove to the house. The respondent was delighted with the renovations. Mrs Durran heard the respondent ask her daughters, Courtney and Sheriden Durran, how much she owed them and also heard her daughters say to the respondent that she owed them about $7,500.00. She said she heard Courtney tell the respondent that the details of the renovations were in a blue exercise book. She also heard the respondent tell Courtney and Sheriden they would be paid by Christmas.
Mrs Durran said that the respondent told her on 11 December 2013 that she had signed a note agreeing that she owed the applicants $7,836 and would pay the money back as soon as she could.
On 29 January 2014 Mrs Durran heard the respondent tell Courtney she had $1,000 for Courtney and Sheriden and would give it to Courtney when Courtney and Mrs Durran were in Sydney. Around 3 February 2014, when they were in Sydney, Mrs Durran said she had heard the respondent say she would give Courtney the money later that day.
Mrs Durran also said that the respondent had come to the Durran’s house in April 2014. The respondent was very upset and crying. She told Mrs Durran her (the respondent’s) sister had said that the girls could go to hell before they would get paid. The respondent told Mrs Durran that the girls would get paid. On a subsequent school day the respondent had called in to the Durran’s home and told Mrs Durran she had sold the bikes and the girls would get their money.
On 2 September 2014 the respondent had aggressively barged into the Durran’s house and asked for details of the electrician who had worked on the house. Colin Durran, Wendy Durran, Courtney Durran, Stacey Hellwig and Annette Haworth were present in the Durran house at that time. On that occasion, the issue of her not repaying the girls’ loan came up. The respondent said the bikes had been sold and the girls would have their money by Friday when the cheque cleared.
Around 13 September 2014 the respondent had invited Mr Durran and herself to her house to discuss the matter. When they attended her house a friend of the respondent had come to the door and told them that the respondent would not come to the door as they had ripped her off. On 16 September 2014 the respondent applied for a personal protection order against Mrs Durran. Mrs Durran had not seen the respondent since.
Annette Haworth and Stacey Hellwig
In their witness statements, Ms Haworth and Ms Hellwig, corroborated Mrs Durran’s evidence in paragraph 87 above.
Salvatore Cacopardo
Mr Cacopardo stated in a statutory declaration dated 2 July 2015:
I was at Jules Turners Place at Rivett in the ACT late August 2013 to help with the orchid collection. The Durrans had just got 2 containers placed in the backyard to store all the gear out of the house as they were going to renovate the house for Jules.
Jules was taking the 2 girls to WA in October to visit family and the Durran family were going to renovate the house which desperately needed a lot of work. Jules was going to send money as needed and pay what was spent on the house as agreed. Upon her return she decided not to repay Courtney and Sheriden Durran the moneys they spent out of their savings on her behalf ….Julianne Turner
Ms Turner told the Tribunal that the Durrans were good friends; she saw them as family. She trusted the applicants’ family.
Ms Turner agreed that she had asked the applicants to look after the house while she was in Perth. This included, but was not limited to the works, the glass houses and her pets. She said that this meant coordinating the renovations with the builder, plumber and electrician she had hired. She said she had asked the Durrans to get reasonable quotes, not cheap quotes. She agreed that all of the work that the applicants had given evidence of had been done. However, she added she wanted the work done by a builder.
She agreed that before she left Canberra for Perth she had given Courtney Durran her bank card and had authorised her to make withdrawals and pay for the works in her absence. She said in her affidavit that she given the card to Courtney while she, the respondent, was in Perth.
Ms Turner also agreed that whenever the applicants needed funds for the works they would withdraw the money from her NAB account or call her and she would make a direct transfer to Courtney’s account if her daily cash withdrawal limit was exceeded.
In relation to the telephone calls to her when she was in Perth and the conversations with Courtney Durran, Ms Turner said she was unable to remember how many telephone calls she had received from the applicants while she was away. She agreed that she had been told on the telephone that the builder did not turn up and she had asked Courtney to get another builder. However, she denied telling Mr Durran to ‘just fix it’.
In her evidence Ms Turner did not deny on her return to Canberra that the applicants told her she owed them $7,500. She said she asked for receipts, the blue book or proof. She said - at no stage have the applicants provided her with invoices for how much money was spent, nor have they told me which tradesmen were used for the works, except for the plumber.[8]
[8] Exhibit R1 at [13]
She had calculated that between 1 November 2013 and 27 November 2013 $25,839.57 had been withdrawn from her account and she had transferred from her late husband’s NAB account $14,500 to Courtney Durran. This totaled $40,339.57. In the email to her dated 12 November 2013 Colin Durran had estimated the quotes for work to the house to be approximately $31,750.00. Ms Turner said that what she had paid exceeded Colin Durran’s estimate. She had concerns as to how the $40,339.57 was incurred and whether the applicants spent this money solely on the works to her house.
Ms Turner denied that the applicants had loaned her $7,500.00. She had never received this money from the applicants. She was unable to say whether this amount was paid on her behalf as the applicants have failed to provide her with any documentation proving payment for the works was incurred by them personally.
She denied that she signed the promissory note. She also denied that she had said she would pay Courtney Durran $1,000 in Sydney, or that she said she would pay 10% from the sale of her orchids to the applicants, or that she said in a telephone call that she only had $200.00 but no food for the children, or that she had asked Courtney and Sheriden Durran how much she owed them or that she had told Wendy Durran that she had signed a note about repayment of the loan or that she had told Wendy Durran in September 2014 she would pay the money when she sold the motor bikes or as soon as possible or by the end of the week. She disputed that Wendy Durran, Annette Haworth and Stacey Hellwig had heard her say that about the bikes because she had not said it.
Ms Turner also denied that she had invited Colin and Wendy Durran over to her house in September 2014 to try and solve the dispute.
In relation to the applicants’ evidence that she had said she had transferred $42,000 to Courtney Durran’s bank account, she said that the total cost of what she had paid Courtney Durran was the $24,500 that she did transfer to her account and $16,000 which Courtney had accessed from her bank account and this totaled $42,000.
Ms Turner agreed that she had previously given her credit card to her son but not when it was being used by Courtney Durran.
When asked if she had gone to the police with Courtney Durran before she went to Perth and told the police she would be leaving the property in the care of Colin and Wendy Durran she said she did not remember.
When asked about her evidence in the ACT Magistrates Court on 16 September 2014:
All that I will say is I’m not denying that I may owe them money. I can actually prove what I’ve paid for with the house and if they would actually give me some documentation with what they’re saying I owe them I am more than happy to sit down, work out if I owe them, fine, I’ll pay them.[9]
Ms Turner said the applicants had not given her the documentation. She denied in cross examination that she had seen the receipts when she signed the promissory note. She told the Tribunal that she had not seen any documentation to show how the $42,000.00 had been spent.
Consideration/Findings
[9] Exhibit A14 Affidavit Necia Wearne annexure A, Transcript of Proceedings 18 September 2015 page 3, lines 19 - 23
The applicants’ have brought a debt application against the respondent based on an agreement between them. They contend that the agreement was partly oral and partly implied from the conduct of the respondent and themselves. The applicants also rely on a promissory note signed by the parties on 11 December 2013 and which the respondent has not complied with.
Having considered all of the evidence the Tribunal is satisfied and finds that the parties entered into an oral agreement in October 2013. The respondent needed someone to look after her house and the work she had arranged to be carried out to the house while she was in Perth from 31 October 2013 and 27 November 2013. She wanted this work completed while she was away.
The Tribunal is satisfied and finds that the respondent asked the applicants to do this and the applicants agreed. The Tribunal is further satisfied and finds that the respondent asked the applicants to pay cash for the work being undertaken. To facilitate this, the respondent gave Courtney Durran her bank card and her pin number. In mid-November 2013 Courtney Durran advised the respondent that due to the daily limit on cash withdrawals she had had to use her own money to pay various tradesmen. The respondent then transferred money into Courtney Durran’s account.
The Tribunal is satisfied from considering the evidence and finds that each of the parties willingly entered into this arrangement. The Tribunal is satisfied that the parties’ intention to enter into a legally binding contract can be implied from how the applicants and the respondent behaved; namely the applicants used their time and skill to organise, supervise and pay the tradespeople and the respondent made available the money so that the applicants could pay for the work and she would have the benefit of the applicants’ endeavours. As well, from time to time the applicants themselves paid for some of the expenses for the house renovation. The Tribunal is satisfied and finds that the applicants kept the respondent informed of the progress of the renovation and of the cost and that they were making some of the payments from their own money.
The Tribunal is also satisfied that part of the agreement between the parties was for the applicants and their parents to undertake some of the physical work associated with the renovation. There does not appear to be any doubt that the house was in a poor condition when the respondent left for Perth. In this regard the structural engineer arranged by the respondent described the building as unsafe.
When the respondent ran out of money around 25 November 2013 the Tribunal finds that the applicants then offered to the respondent to loan her about $7,500.00 to finish the renovations and the respondent accepted the applicants’ offer. The Tribunal is satisfied and finds from the evidence that the applicants did pay from their own monies a sum in excess of $7,500.00 so that the renovation would be finished when the respondent returned to Canberra on 27 November 2013.
While the respondent denied that she owed this money or that it had been paid by the applicants on her behalf, the Tribunal is satisfied and finds that the respondent had accepted the applicants’ offer and knew that the applicants had paid this money to tradesmen who were working on her renovations and that it was a loan to her. The applicants never claimed and there was no evidence that the applicants had paid this money directly to the respondent. The applicants and Wendy Durran gave evidence, which the Tribunal accepted, that the respondent asked the applicants how much money she owed them when she returned to Canberra on 27 November 2013 and that the applicants told her it was about $7,500.00.
There was no question that all of the parties to the contract were adults and had the legal capacity to contract. The Tribunal is satisfied from considering the evidence that there was a meeting of minds. The Tribunal finds that:
(a)the respondent wanted the house renovations carried out in her absence;
(b)she asked the applicants to look after this for her and the applicants agreed;
(c)the respondent asked the applicants to pay for the work in cash;
(d)the applicants supervised the work, arranged for the tradesmen and paid the tradesmen with money provided by the respondent and from their own money;
(e)when the respondent ran out of money the applicants offered to loan about $7,500 to the respondent to be used by the applicants to pay for the renovations so that the renovations would be finished before she returned to Canberra;
(f)the respondent accepted this offer;
(g)the applicants organised and paid for this work from their own money;
(h)the respondent offered to pay the sum of $7,500.00 to the applicants on numerous occasions and failed to pay the money.
While each of the parties referred to a blue book which was said to have had information in it about the work the respondent wanted the builder to do and the work which the applicants had organised and the costs which the applicants had incurred, the blue book was not tendered into evidence. The applicants said they had left it in the respondent’s kitchen when she returned to Canberra. The applicants’ parents corroborated the applicants’ evidence in relation to the blue book. The respondent alleged that the blue book was not left in the kitchen.
Where the evidence of the applicants and the respondent differed the Tribunal preferred the evidence of the applicants. The applicants’ evidence was credible and corroborated by their witnesses. The respondent’s evidence was not corroborated. The respondent’s answers to questions were at times vague and unhelpful.
The Promissory Note
The evidence between the applicants and the respondents in relation to the promissory note differed starkly. The applicants tendered the promissory note (Exhibit A9). It has signatures purporting to be by the respondent and each of the applicants.
The applicants gave evidence of the circumstances immediately prior to their preparing the promissory note; of the discussion with the respondent about the time for payment she wanted in the promissory note; of the respondent telling them she wanted six months and she wanted to get advice about the legality of the promissory note; of the respondent making a telephone call and then telling the applicants after that telephone call ‘it was legal’; of their printing off the promissory note and of the respondent and the applicants signing it.
Mrs Durran gave evidence that she had been present when the respondent and the applicants had all been at her home on 11 December 2013 and the respondent had told her that day that she had signed a note agreeing that she owed the applicants $7,836 and would pay the money back as soon as she could.
The respondent maintained that she never signed the promissory note and that her signature was forged. The respondent did not produce any expert evidence or any other evidence in support of her claim that her signature was forged.
The Tribunal has already found that where the evidence of the applicants and the respondent differed the Tribunal preferred the applicants’ evidence for the reasons set out in paragraph 114 above.
The Tribunal is satisfied from the evidence and finds that the respondent did sign the promissory note.
Quantum of the applicants’ claim
Having considered all of the evidence that Tribunal finds that the respondent requested the applicants to pay cash for the work associated with the renovations to the house and not to get receipts. The Tribunal finds that the applicants complied with her instructions.
The applicants and their parents gave evidence that receipts for moneys they paid from the applicants’ savings were put into the blue book and left in the kitchen for the respondent to look at on her return from Perth. The evidence in relation to the blue book was less than satisfactory as the blue book, which the Tribunal is satisfied was left by the applicants at the respondent’s house on her return from Perth, was not produced in evidence.
The applicants’ evidence of the quantum of their claim was that they offered to loan $7,500.00 to the respondent so that her renovations could be completed and the respondent accepted this offer. The applicants had been saving this money for a birthday gift for their father. The money was located in a safe at their home. It was not withdrawn from a bank account. Their evidence of the amount they spent following the respondent’s acceptance of their offer to loan this money varied from $7,500.00 as discussed with the respondent between 1 November 2013 and until 10 December 2013. On 11 December 2013 the amount of the loan recorded in the promissory note was $7,836.00 and this was also the amount claimed in the application lodged with the tribunal on 3 October 2014.
In the amended application lodged 8 July 2015 the amount claimed increased to $9,855.14 plus $336.00 for medical insurance costs.
The respondent gave evidence that she had directly transferred from her late husband’s estate account $14,500 to Courtney Durran between 15 November 2013 and 20 November 2013 and that $25,839.57 had been withdrawn from her own bank account between 1 November 2013 and 27 November 2013. This amount included $10,000.00 which the respondent had directly transferred to Courtney Durran and cash withdrawals totalling $13,200.00. The remaining amount of $2,639.57.00 was for various identified withdrawals for the renovations.
The respondent also said that Colin Durran had estimated the renovations cost at approximately $31,750.00 whereas she had already paid the applicants, including the amounts referred to in the previous paragraph, a total of $40,339.57. It is apparent from reading the email from Colin Durran[10] that the figures in that email were not fixed. At best they were estimates and the email referred to incidentals yet to be purchased.
[10] Annexure A of the respondent’s affidavit - Exhibit R1
The Tribunal is satisfied from the evidence that the respondent had received this email before she accepted the applicants’ offer to make available $7,500.00 as a loan to her to enable the work on the respondent’s house to be carried out to bring the house to being ‘liveable’ on her return from Perth.
The Tribunal is also satisfied and finds that the respondent entered into the oral agreement to accept the applicants’ loan offer of $7,500.00 unconditionally. It was not part of the agreement that the monies would be repaid upon production of any or any particular documentation.
Although the time for repayment of the moneys was not identified as a particular date the Tribunal is satisfied that the agreement between the parties was for the respondent to repay the money ‘as soon as she returned (from Perth).’[11] The Tribunal is satisfied from the evidence that the respondent’s understanding of and acceptance of the time for repayment can be implied from the respondent’s conduct following her return when she made arrangements to repay the loaned money and when she signed the promissory note.
Conclusion
[11] Exhibit A1 Affidavit Courtney Durran affirmed 30 June 2015 at [13]
The Tribunal is not satisfied, having considered all of the evidence, that the agreement between the parties included the extra expenses claimed by the applicants in their amended application.
Nor is the Tribunal satisfied, having considered all of the evidence, that there was any agreement between the respondent and applicants that Canberra Sheds and Outdoor Storage were to be engaged to carry out and charge the respondent for the labour the details of which are set out in the five page invoice[12] (‘the invoice’). While Colin Durran’s email to the respondent dated November 12, 2013[13] states that he had sent it from [email protected] the Tribunal is not satisfied that the use of this email address in this email in any way supports a claim for the labour the subject of the invoice.
[12] Attachment B to Exhibit R1 Affidavit of Julianne Turner affirmed 17 July 2015
[13] Attachment A to Exhibit R1 Affidavit of Julianne Turner affirmed 17 July 2015
The applicants have claimed pre-judgment interest in accordance with the Court Procedures Rules 2006 from 22 November 2013. The Tribunal is satisfied that the monies the subject of the agreement were to be repaid upon the respondent’s return from Perth. The parties subsequently agreed to monies being repaid within six months of 11 December 2013. Six months from 11 December 2013 is 10 June 2014. The Tribunal is satisfied that interest should not commence until 11 June 2014. It is to be added to the judgment.
Accordingly, the Tribunal will enter judgment for the applicants in the sum of $7,500.00 plus interest of $681.88 and filing fee of $135.00 which total $8316.88.
………………………………..
Ms E. Symons
Presidential Member
HEARING DETAILS
FILE NUMBER: | XD 14/1372 |
PARTIES, APPLICANT: | Sheriden Durran & Courtney Durran |
PARTIES, RESPONDENT: | Julianne Turner |
SOLICITORS FOR APPLICANT | Necia Wearne, Legal on London |
SOLICITORS FOR RESPONDENT | Joshua Carroll, Hill & Rummery |
TRIBUNAL MEMBERS: | Ms E. Symons – Presidential Member |
DATES OF HEARING: | 28 July 2015, 18 September 2015 |
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