Erceg v Volonakis

[2020] NSWCA 253

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Erceg v Volonakis [2020] NSWCA 253

Hearing dates:

28 August 2020

Date of orders:

15 October 2020

Decision date:

15 October 2020

Before:

Bell P at [1];
Gleeson JA at [2];
Payne JA at [14].

Decision:

(1)   Appeal dismissed with costs;

(2)   Cross-appeal dismissed with costs.

Catchwords:

CIVIL PROCEDURE – debt recovery – loans – dispute arising over two undocumented loans between friends – whether primary judge erred in finding that the appellant authorised the appellant’s now-estranged husband to jointly borrow from respondents

JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable – whether primary judge erred in finding that the appellant not liable to pay interest on loan at rate of 48% per annum

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 100

Evidence Act 1995 (NSW), s 81

Supreme Court Act 1935 (SA), 30C

Cases Cited:

Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Bannatyne v MacIver [1906] 1 KB 103

Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142

City Bank of Sydney v McLaughlin (1909) 9 CLR 615; [1909] HCA 78

Clarke v Abou-Samra [2010] SASC 205

Falcke v Scottish Imperial Insurance Co (1886) 34 ChD 234

Hecimovic v Schembri (NSW Sup Ct, 28 June 1974, Holland J, unreported)

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27

O3 Capital Pty Ltd v WY Properties Pty Ltd (2016) 49 WAR 517; [2016] WASCA 82

Re Cleadon Trust Limited [1939] Ch 286

Volonakis & Ors v Erceg & Anor [2019] NSWSC 1875

Volonakis v Erceg(No 2) [2020] NSWSC 371

Category:

Principal judgment

Parties:

Ivancica Erceg (Appellant)
Patricia Volonakis (First Respondent)
Michael Volonakis (Second Respondent)

Representation:

Counsel:
J M Ireland (Appellant)
S A Lawrence with A R Jordan (Respondents)
Solicitors:
McGirr Lawyers (Appellant)
Korn MacDougall (Respondents)

File Number(s):

2020/147954

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2019] NSWSC 1875;

[2020] NSWSC 371

Date of Decision:

20 December 2019

Before:

Hallen J

File Number(s):

2017/387961

HEADNOTE

[This headnote is not to be read as part of the judgment]

In November 2015, Patricia Volonakis (the first respondent) and Michael Volonakis (the second respondent) lent an amount of $375,000 to Walter Erceg (the now-estranged husband of the appellant). There was no written loan agreement. Hallen J, the primary judge, found that this loan was jointly advanced to Ivancica Erceg (the appellant). The primary judge found that Ivancica knew about, and accepted, the borrowing of the $375,000 and had authorised Walter to borrow that sum on her behalf jointly with him. The primary judge found that the whole of the amount was used to fund part of the deposit for the purchase of a house in Cronulla which was registered only in Ivancica’s name. The primary judge also found that the appellant was not required to pay interest at a rate of 4% per month on the loan to which Walter had agreed. The primary judge found that there was no evidence that Ivancica knew about the rate at which interest on the loan of $375,000 which Walter agreed was to be paid, or that she had authorised Walter to agree, on her behalf, to that rate of interest.

There were two issues on appeal. First, Ivancica submitted that the primary judge should have found that the $375,000 loan had been advanced to Walter alone. The second issue, raised by a cross-appeal, was that Michael and Patricia submitted that the primary judge erred in rejected their claim that Ivancica was obliged to pay interest on the loan at a rate of 4% per month.

The Court held, dismissing the appeal:

Per Payne JA (Bell P and Gleeson JA agreeing)

1. Walter was purporting to act on behalf of himself and Ivancica, in circumstances where the knowledge and approval of Ivancica may fairly be inferred. Ivancica authorised Walter to act in the particular capacity as a joint borrower: [24].

Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142, applied.

2. Where there is evidence justifying an inference of authority, it justifies the further inference that the person has authority to do such acts as would be done, as a matter of ordinary business practice, by a person acting in such a capacity: [25].

Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142, applied.

3. Ivancica authorised Walter to borrow $375,000 in their joint names. Ivancica thereby authorised Walter to agree to terms which were a normal incident of that borrowing, including agreeing to pay interest. However, the Court was not satisfied that agreeing to pay interest at 48% per annum was a normal incident of borrowing in NSW in 2015: [26], [50].

4. The respondents were not entitled to payment of the interest agreed by Walter of 4% per month: [55]. The basis of the equity is one of recoupment: [56].

Bannatyne v MacIver [1906] 1 KB 103, considered. Clarke v Abou-Samra [2010] SASC 205, distinguished.

Per Gleeson JA (Bell P and Payne JA agreeing)

5. What is involved on the cross-appeal is the recognition of Patricia and Michael’s just claim to recoupment. It does not follow that Patricia and Michael could recover interest on their claim for recoupment of $375,000 at 4% per month: [11].

Re Cleadon Trust Limited [1939] Ch 286, applied. Clarke v Abou-Samra [2010] SASC 205, distinguished.

Judgment

1. BELL P: I agree with the reasons and orders proposed by Payne JA.  I also agree with the additional reasons of Gleeson JA.

2. GLEESON JA: I agree with Payne JA. Without detracting from his Honour’s reasons, I wish to add the following comments in relation to ground 2 of the cross-appeal relating to the claim by Mr and Mrs Volonakis against Ivancica Erceg (Ivancica) for interest at the rate of 4 per cent per month, which equates to 48 per cent per annum.

3. The context of ground 2 of the cross-appeal is the assumption, contrary to the finding of the primary judge, that Walter Erceg (Walter) was not authorised by Ivancica to borrow in their joint names $375,000 from Mr and Mrs Volonakis. For the reasons given by Payne JA this assumption is incorrect. Hence, ground 2 of the cross-appeal does not strictly arise.

4. Nevertheless, on the assumption referred to in [3] above, Mr and Mrs Volonakis contended relying upon Bannatyne v MacIver [1906] 1 KB 103 (Bannantyne), that they are entitled to “stand in the same position as if the money had been originally borrowed by” Ivancica, including as regards payment of the interest agreed by Walter at 4 per cent per month.

5. In Bannatyne, Romer LJ said at 109:

… Where money is borrowed on behalf of a principal by an agent, the lender believing that the agent has authority though it turns out that his act has not been authorized, or ratified, or adopted by the principal, then, although the principal cannot be sued at law, yet in equity, to the extent to which the money borrowed has in fact been applied in paying legal debts and obligations of the principal, the lender is entitled to stand in the same position as if the money had been originally borrowed by the principal.

6. The rule in Bannatyne is an equitable principle which is based in equitable estoppel: City Bank of Sydney v McLaughlin (1909) 9 CLR 615 at 624-625 (Griffith CJ and Barton J); [1909] HCA 78. What generates the equity is something more than knowledge by the debtor that the purported agent has requested the third party to advance money to pay the debt or that the third party has advanced the money for the purported agent to pay the debt. As explained by Clauson LJ (Scott LJ agreeing) in Re Cleadon Trust Limited [1939] Ch 286 at 322:

Let it be assumed that A requests B to advance money to C, A being a person who has no authority from C to make the request (whether because C is a company whose powers are limited in such a way as to make it ultra vires on C’s part to make such a request, or whether because A, though professing to act as C’s authorised agent to make the request, has in fact no such authority): let it be further assumed that B, in response to the request, in fact places the money under the control of C or C’s agents, and C, or an agent authorised by C to pay off C’s debt’s (sic) uses the money or procures the money to be used in or towards discharge of C’s debts. On these assumed facts a court of equity will treat B as entitled to be recouped by C a sum equal to the amount so used in or towards discharging C’s debts.

7. After referring to a number of authorities including Bannatyne, Clauson LJ continued at 322-324:

It is to be observed that the equity cannot operate against C (the company or the principal) merely because C has in fact received a benefit from B’s action in providing the money: that fact alone, as Falcke’s case [53] has settled (so far as this Court is concerned), would not set up an equity against C. The equity must, it would seem, arise from the fact that C, by himself or by a person authorised to act, in the matter of payment of C’s debts, for C, has used the money so as to obtain a benefit for C. The benefit has not been an unsought benefit conferred on C behind his back. It is a benefit which C has obtained for himself by using (either himself or by his agent) A’s money as his own. It is his conduct in so using A’s money which makes it unconscientious that he should retain the benefit while refusing recognition of A’s just claim to recoupment.

8. In the present case, there was unchallenged evidence given by Walter that he provided the bank cheque for $375,000 received from Mr and Mrs Volonakis to the solicitor for Ivancica on the purchase of the Cronulla property. And, it was conceded below that Ivancica knew that part of the money to pay the deposit had been obtained by Walter from Mr and Mrs Volonakis. Plainly Walter had authority to pay debts for which Ivancica was liable in respect of the purchase of the Cronulla property.

9. Applying the analysis in Re Cleadon Trust Ltd, Ivancica is to be equated with C, A with Walter and B with Mr and Mrs Volonakis who provided the money to Walter. Walter was invested with power to pay the debt owed by Ivancica to the vendors of the Cronulla property, that power stemming from authority given by Ivancica to do so. Like the party in the position of C in Hecimovic v Schembri (NSW Sup Ct, 28 June 1974, Holland J, unreported at 16), Ivancica did not spurn the benefit so obtained, she embraced it as partially satisfying her obligation to pay the deposit under the contract for sale of the Cronulla property. Adapting the language of Clauson LJ in Re Cleadon Trust Ltd at 324, it is Ivancica’s conduct (through her agent, Walter) in so using Mr and Mrs Volonakis’ money that makes it unconscientious that she should retain the benefit while refusing their just claim to recoupment.

10. It was submitted on behalf of Ivancica that the present case is distinguishable from Bannatyne given that Walter, as the person who arranged the transaction with Mr and Mrs Volonakis, is himself liable as a borrower. That is not to the point because it ignores what generates the equity of recoupment. It can be accepted that is not the bare fact of conferral of a benefit on Ivancica by Mr and Mrs Volonakis: Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27, where the joint judgment of Gummow, Hayne, Crennan and Kiefel JJ at [80] addressing a claim for unjust enrichment, cited the statement in Falcke v Scottish Imperial Insurance Co (1886) 34 ChD 234 at 248 that, “[l]iabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will”. Rather, it is the fact that Walter had authority to pay debts for which Ivancica was liable, that he did so using the bank cheque for $375,000 provided by Mr and Mrs Volonakis and it is unconscientious that Ivancica should retain the benefit by refusing their just claim to recoupment.

11. However, it does not follow that Mr and Mrs Volonakis could recover interest on their claim for recoupment of $375,000 at a rate of 4 per cent per month. What is involved, on the present hypothesis, is the recognition of Mr and Mrs Volonakis’ “just claim to recoupment”: Re Cleadon Trust Ltd at 324. Ivancica is only estopped from denying authority to the extent that the benefit she has retained is inconsistent with her denial of agency. There is no such inconsistency to the extent that the purported agent (Walter) agreed with Mr and Mrs Volonakis to pay interest at the rate of 4 per cent per month.

12. That interest was awarded in Clarke v Abou-Samra [2010] SASC 205 on a recoupment claim at the rate of 10 per cent does not assist Mr and Mrs Volonakis, as the reasons of Payne JA explain; the basis of the award of interest is not addressed in the reasons. The suggestion by Mr and Mrs Volonakis that the award of interest reflects the terms of the loan agreed to by the purported agent, being a period of one month at an interest rate of 10 per cent, suffers from the difficulty that the description of the loan terms at [37] of the reasons of Kourakis J is, with respect, ambiguous. It is not clear whether that was a monthly rate or a rate per annum. It is at least possible, that the award of interest on the recoupment claim in Clarke v Abou-Samra at a rate of 10 per cent is based on the power to award of pre-judgment interest under s 30C of the Supreme Court Act 1935 (SA). Section 30C(2) provides that interest will be calculated at a rate fixed by the court in respect of a period fixed by the court and is payable in accordance with the court’s determination, in respect of the whole or part of the amount for which judgment is given.

13. If it were necessary to decide the claim for pre-judgment interest, assuming the claim against Ivancica was for recoupment based on the rule in Bannatyne, the basis for any award of pre-judgment interest would be under s 100(2) of the Civil Procedure Act 2005 (NSW).

14. PAYNE JA: On 20 December 2019, the primary judge, Hallen J, delivered his reasons in Volonakis & Ors v Erceg & Anor [2019] NSWSC 1875. Although there were a multitude of issues litigated before the primary judge, the relevant issue for the purpose of this appeal was his Honour’s finding that Patricia Volonakis (the first respondent) and Michael Volonakis (the second respondent) had lent an amount of $375,000 to both the appellant, Ivancica Erceg, and Walter Erceg, the now-estranged husband of the appellant. The primary judge rejected a claim by the respondents that the appellant was required to pay interest at the rate of 4% per month on the loan. Without intending any disrespect, I will refer to the relevant participants by their given names.

15. The issue on the appeal was a narrow one. Ivancica accepted that there was a loan made in the amount of $375,000 by Michael and Patricia, but submitted that the primary judge should have found that the loan had been advanced to Walter alone. The second issue, raised by a cross-appeal, was that Michael and Patricia submitted that the primary judge erred in rejecting their claim that Ivancica was obliged to pay interest on the loan at a rate of 4% per month.

The decision of the primary judge

16. The witnesses before the primary judge were Michael, Patricia, Walter and a business associate of Michael and Walter, Frank Masci. Although affidavits sworn by Ivancica were served, she did not give evidence before the primary judge.

17. In relation to the $375,000 loan, the primary judge found that there was no dispute that Walter borrowed this amount from Michael and Patricia. There was no written loan agreement. The primary judge found the loan of $375,000 was made, in part, by Michael, as to $200,000, and as to the balance by Patricia and Michael. The primary judge found that the whole of the principal amount was used to fund part of the deposit for the purchase of a house in Cronulla which was registered only in Ivancica’s name. The primary judge found that Ivancica knew about, and accepted, the borrowing of $375,000 and had authorised Walter to borrow that sum on her behalf jointly with him.

18. In relation to interest, the primary judge found that there was no evidence that Ivancica knew about the rate at which interest on the loan of $375,000 which Walter agreed was to be paid, or that she had authorised Walter to agree, on her behalf, to that rate of interest.

19. The primary judge summarised his findings in his principal judgment about interest:

1. both Ivancica and Michael were liable to repay the amount of principal of the loan that remained unpaid;

2. Walter was liable to repay simple interest calculated at the rate of 4 per cent per month;

3. Ivancica may be liable for interest on the loan of $375,000 pursuant to s 100(2) of the Civil Procedure Act 2005 (NSW).

20. That question about the interest to be paid by Ivancica was resolved in the second judgment, Volonakis v Erceg (No 2) [2020] NSWSC 371, wherein the primary judge concluded:

“[58] Counsel for Patricia and Michael submitted that, in the circumstances of the present case, the appropriate date from which interest to compensate them should be calculated on the amount of $375,000 was 1 March 2017. To the extent that pre-judgment interest was to be awarded, Ivancica did not dispute that this was the appropriate date from which interest should be calculated: Tcpt, 13 March 2020, p 34(50). I see no reason not to award the Plaintiffs interest pursuant to s 100 of the Civil Procedure Act, against Ivancica, at the rate contemplated by Practice Note SC Gen 16 from that date. There was no submission made to the contrary as to the applicable rate.

[59]   The pre-judgment interest should continue to run until the date that orders are made.”

The notice of appeal

21. The appellant’s notice of appeal contained 10 grounds. All raise asserted difficulties with the primary judge’s reasoning and ultimate conclusion that the loan of $375,000 was made jointly to Ivancica and Walter.

22. There is no doubt that Walter borrowed $375,000. Michael’s written evidence about the loan of $375,000 was as follows:

“A conversation took place between Walter and me to the following effect:

Walter said: ‘You know this place at Cronulla that we have found. It is fantastic [i.e. the Cronulla [property]]. The one that I’ve been talking about, and Ivana and I have been looking at. Ivana has fallen in love with the place. She really wants it. We can get it for just over $8,000,000.The vendor will agree to a 5% deposit so we need about $400,000. Can you lend us $400,000? We really love the place. It’s the dream home that Ivana and I have been looking for a long time now.’

I said: ‘I can’t lend you $400,000 but I am prepared to help you out. I can get you $375,000. I will ask Patricia if she is okay for her company to lend you $375,000. Is that Ok?’

Walter said: ‘If you can lend $375,000, that will be great.’

I said: ‘How long will the loan be for? When will you pay us back?’

Walter said: ‘Maximum 12 months. I’ve negotiated a 9 month settlement. This will give us plenty of time to refinance everything, the investment properties, and get the money. Once I get that refinance, we’ll pay you back everything.’

[I understood at the time as I had been told by Walter many times previously that Walter and his wife had investment properties at Burraneer and [Caringbah].]

Walter said: ‘We will pay 4% per month interest if you can help us out.’

I said: ‘It should be OK. I’ll check with Patricia and get back to you.’”

The use of the plural personal pronoun “us” and the phrase “we’ll pay you back” in the fourth last paragraph and “We will pay” in the second last paragraph of this extract are significant.

23. Despite the large number of grounds of appeal, the central question raised by the notice of appeal was whether Walter had actual authority to borrow $375,000 on behalf of Ivancica. This was a question of fact. The primary judge was entitled to have regard to all the available inferences that arose, taking the evidence as a whole. So much was established by the oft cited passage in Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 at 149-150 where Jordan CJ said:

“The authority of an agent may be particular - to do a specified act or acts, or general - to do acts of one or more classes. An authority expressly given, whether it be particular or general, gives implied authority to do anything which is incidental to what is expressly authorised. Whether any authority has been given, and if so what is the scope of the authority, are questions of fact to be determined by evidence. Evidence that a person is purporting to do acts on behalf of a principal in some capacity in such circumstances that the knowledge and approval of the principal may fairly be inferred is evidence that the principal has authorised him to act in the particular capacity. If there is evidence justifying such an inference, it justifies the further inference that the person has authority to do such acts as would be done, as a matter of ordinary business practice, by a person acting in such a capacity. If there is no evidence as to what authority was in fact expressly given, or what the business practice is, the jury may draw inferences based upon their own knowledge of business and affairs. This may be done, for example, where there is evidence that a person is manager or superintendent of a business: Macauley v Bank of NSW; Citizens Life Assurance Co v Brown or occupies a less responsible position: Goff v Great Northern Railway Co; Mountney v Smith. Evidence that an agent was prohibited from doing an act which, apart from such a prohibition, might have been inferred to be within the scope of his [or her] authority is evidence which, if accepted, prevents it from being inferred that the act was in fact within the scope of his authority: Knowles v Southern Railway Co. If, however, a person ignorant of the prohibition is induced to act on the assumption that the agent possess an authority which such an agent would ordinarily possess, the doctrine of holding out may prevent the principal from disputing the agent’s authority.” (Footnotes omitted.)

24. Two matters of importance in resolving this appeal emerge from this passage. First, evidence that a person is purporting to do acts on behalf of a principal in some capacity in such circumstances that the knowledge and approval of the principal may fairly be inferred is evidence that the principal has authorised him or her to act in the particular capacity. The primary judge drew the inference that Walter was purporting to act on behalf of himself and Ivancica, in circumstances where the knowledge and approval of Ivancica may fairly be inferred. As I will explain, this is also the inference that I draw from all of the evidence. That is, Ivancica authorised Walter to act in the particular capacity as a joint borrower.

25. The second matter of importance arising from this passage is that where there is evidence justifying an inference of authority, it justifies the further inference that the person has authority to do such acts as would be done, as a matter of ordinary business practice, by a person acting in such a capacity. The submission at the heart of the appellant’s case was that there was an inconsistency between the finding that Ivancica had authorised Walter to enter into the loan agreement but not the agreement to pay interest at the rate of 48% per annum:

“So you have at one moment arising a contract fully formed between Walter and the Volonakises, if you like, to borrow money at a very high rate of interest, 48% per year or 4% per month, and that simultaneously apparently, by authority, he makes a contract on behalf of his wife, my client, but not for the interest. Intuitively one would have thought that was an odd result where the argument was based on or the legal liability is based [on] a contract for loan.”

26. There is, in the present case, no such inconsistency. As Jordan CJ explained, the question of “ordinary business practice” is important to the question of determining the extent of the authority conferred by the principal on an agent, here Walter. Walter had authority to do such acts as would be done, as a matter of ordinary business practice, by a person acting in such a capacity. Interest is no doubt incidental to borrowing but I would not conclude in this case that the incidental conferral of authority upon Walter in borrowing on behalf of Ivancica included authorisation to agree to interest at a rate of 4% per month as being “incidental in the ordinary course”. That is, the extent of Walter’s authority was conditioned by, in the language of Sir Frederick Jordan in Bonette, “ordinary business practice”. Michael and Patricia did not demonstrate that incurring annual interest of 48% on a private loan was, even arguably, an incident of “ordinary business practice”. I agree with the primary judge that the extent of Walter’s implied authority did not extend to agreeing that Ivancica pay interest at this exorbitant rate.

27. The primary judge accepted that the loan of $375,000 was one made to Walter and Ivancica:

“[238]   On balance, I find that the loan of $375,000 was one made to Walter and Ivancica whilst the loan of $100,000 was made to Walter alone. I do not accept the submission that the loan of $375,000 was made to Walter alone. The whole of the conversation between Michael and Walter was in relation to both. In this regard, the conversation was:

‘You know this place at Cronulla that we have found, it is fantastic, the one that I’ve been talking about and Ivana and I have been looking at? Ivana has fallen in love with the place. She really wants it. We can get it for just over $8 million. The vendor will agree to a 5% deposit, so we need 400,000. Can you lend us 400,000? We really love the place. It’s the dream home that Ivana and I have been looking for a long time now.’

[239]   Whilst the conversation between Walter and Ivancica to which reference has been made may have occurred after the conversation quoted above, it was before the handing over of the cheque for that amount, which she also knew came from Michael and Patricia. So much was accepted by counsel for Ivancica: Tcpt, 6 November 2019, p 247(46) – p 248(44).”

28. There was no error in his Honour so finding. The evidence was not challenged in cross-examination. The answers given by Michael in cross-examination were consistent with the agreement being one for a loan to Walter and Ivancica. The context in which the conversation occurred, about a new family home for Ivancica and Walter, also supported his Honour’s acceptance of Michael’s evidence on this point. The decision to accept Michael’s evidence was one that depended, in part, on his Honour’s assessment of the credit of Michael and Walter as witnesses. No error was shown in the primary judge’s findings on those issues. Ground 10 of the notice of appeal, which challenges the finding at [238], should be dismissed.

29. The purpose of the $375,000 loan was to fund the payment of the deposit on the Cronulla property:

“[52]   In October and November 2015, there were discussions between Michael and Walter, in which Walter asked Michael to assist with the payment of the deposit of 10 per cent ($825,000) for the purchase of the Cronulla property by Ivancica, by making a loan of $375,000. There is some dispute about the conversations, so it will be necessary to return to the precise evidence of each of the witnesses on this topic later in these reasons. However, as stated, there was no dispute that there had been a loan of that amount.”

30. The contract for the sale of the Cronulla property named Ivancica as the sole purchaser. The $375,000 was advanced by way of bank cheque addressed to the vendors of the Cronulla property and was delivered on 11 November 2015, being the date on which Ivancica exchanged contracts for the sale of the Cronulla property. The bank cheque was used by Ivancica to pay (in part) the deposit on the Cronulla property:

“[53]   Following his discussions with Walter, Michael arranged for a bank cheque, for $375,000, to be drawn, by Patricia, from the Business Cheque Account of MPPA (which account was shown to be conducted in the name of GTS Logistics Pty Limited) (Ex. TB1/233), in favour of the vendors of the Cronulla property. Both Ivancica and Walter admitted that the bank cheque had been given by Michael to Walter on 11 November 2015. That is the date on which the contracts for the purchase of the Cronulla property were exchanged: Ex. TB1/426. The bank cheque was used in part payment of the deposit for the purchase of the Cronulla property, which was purchased in Ivancica’s sole name: Ex. TB1/361.

[54]   The bank cheque was presented for payment by the vendors of the Cronulla property and was accounted, for Ivancica’s benefit, as part of the payment of the purchase price of the Cronulla property: Ex. TB1/272.

[55]   As will be clear, the amount of $375,000 was only part of the total deposit required to be paid on the exchange of contracts. How the balance of the deposit was paid by Ivancica was not the subject of evidence.

[56]   Ivancica played no role in the negotiations to borrow $375,000, but there can be little doubt that she would have been aware of what was occurring. Walter gave evidence that he had told her: Tcpt, 5 November 2019, p 152(43-48). As her evidence was not read, it must be inferred that she did not dispute this evidence.”

31. The findings of fact at [53]-[55] were not challenged. The inferences drawn by the primary judge at [56] were directly challenged in grounds 1 and 2 of the notice of appeal and, inferentially, in grounds 6 and 9. Those grounds should be rejected. The evidence established that Ivancica authorised Walter to pay the debt which she had incurred in relation to the deposit to acquire the Cronulla property. The bank cheque was obtained. It went into Walter’s hands and it was used to pay the deposit. The inferences the primary judge drew from this conduct, that Ivancica authorised Walter to borrow the funds on her behalf necessary to complete the deposit, were correct. I draw the same inference from the unchallenged facts. As the primary judge concluded, Ivancica entrusted Walter with the conduct of the negotiations to borrow the amount required to assist in paying the deposit on the Cronulla home:

“[227]   There was no specific evidence that Walter was given express authority to act for, and on behalf of, Ivancica. However, it was submitted by counsel for the Plaintiffs that Ivancica gave Walter actual authority to act on her behalf, at least in relation to the loan of $375,000: Tcpt, 6 November 2019, p 230(30-47). There seems to be little doubt that she entrusted him with the conduct of the particular negotiations to borrow the amount required to assist in paying the deposit on the Cronulla home.”

32. The primary judge found that Ivancica was likely aware of what was occurring in the negotiations between Walter and Michael. While that finding is challenged, it was supported by the evidence concerning Ivancica’s purchase of the Cronulla property. I agree with the primary judge that it is unlikely that Ivancica would have signed a contract requiring the immediate payment, by her, of an $825,000 deposit without having concerned herself about whether she had the money to pay that deposit.

33. While all of the eventual repayments to the respondents were made by Walter, the ultimate sources of those payments included a joint bank account in the names of Ivancica and Walter and the proceeds of the sale of the Caringbah property. Ivancica was the sole owner of the Caringbah property.

34. I conclude on the balance of probabilities that by no later than 11 November 2015 when the cheque was handed over, Ivancica had authorised Walter to borrow $375,000 from Michael and Patricia.

35. The primary judge accepted at [238] the conversation between Walter and Michael, which I have set out at [22] above, in which the question of lending to both Walter and Ivancica was raised and agreed in principle. Walter then told Ivancica that Michael and Patricia had agreed to lend to them both some of the deposit:

“Q. In late October or early November 2015, you and your wife Ivana had found [a] house you wanted to buy in Cronulla?

A. Yes.

Q. You had a conversation around that time with Mr Volonakis?

A. Well, we were friends, so we were talking about things.

Q. Well, you had a conversation in November in which Mr Volonakis offered to lend you money towards the deposit?

A. Yes, he did.

Q. And there was a discussion about how long you would need to repay it.

A. Correct.

Q. And you said you thought it would be at least 12 months before you and Ivana could pay back the loan.

A. Correct.

Q. You told Ivana that Michael and Patricia had agreed to lend you both some money for the deposit?

A. Yes.

Q. And she agreed to that arrangement?

A. Yes.”

36. After weighing up the competing evidence, the primary judge concluded that Ivancica knew of, and accepted, the borrowing of $375,000:

“[206]   However, in all the circumstances, I am satisfied that she knew of, and accepted, the borrowing of $375,000, and at least some of the terms on which that amount was borrowed. In other words, I accept that she was told about the loan and some of the terms, and she accepted the loan and the terms about which she was told. However, there is no evidence that she agreed to the rate at which interest on the loan of $375,000 was to be paid, or that she had agreed to that rate of interest. Nor is there evidence that she authorized Walter to agree, on her behalf, to that rate of interest.”

37. The colourful description by the appellant of Walter’s evidence as a mere “scrap” does not accurately address the fact of his Honour’s acceptance that Ivancica told Walter that she agreed to borrowing $375,000 from Michael and Patricia. The complaint in ground 1 that the evidence referred to at [35] above was hearsay should be rejected. The fact that Ivancica told Walter that he had authority to borrow on her behalf from Michael and Patricia was relevant and admissible for the fact it was said. I also agree with the primary judge that the evidence was admissible under s 81 of the Evidence Act 1995 (NSW) despite any hearsay representation. To the extent that ground 4 of the notice of appeal complains that Walter’s evidence should have been approached with caution, it is plain that the primary judge did so. Ground 4 should be dismissed. Ground 8, which alleges, without elaboration, that the primary judge erred in the conclusion expressed at [206] must also be rejected.

38. There is also an unchallenged finding that the conversation occurred before the cheque was delivered:

“[239]   Whilst the conversation between Walter and Ivancica to which reference has been made may have occurred after the conversation quoted above, it was before the handing over of the cheque for that amount, which she also knew came from Michael and Patricia. So much was accepted by counsel for Ivancica: Tcpt, 6 November 2019, p 247(46) – p 248(44).”

39. On 11 November 2015, Ivancica exchanged contracts on the Cronulla property.

40. Pausing there, given the possibility of forfeiture to which Ivancica exposed herself by exchanging contracts, I infer that Ivancica satisfied herself before exchanging contracts that she was in a position to pay the deposit that day. Ivancica would not rationally have exchanged contracts without knowing where the money was coming from to pay the deposit because that would have exposed her to the contract being terminated, leaving her liable to pay the deposit. That was an additional matter supporting the inference the primary judge drew.

41. On the same day, the cheque was delivered to Walter who then gave it to Ivancica’s solicitor and the solicitor then delivered it on behalf of Ivancica. I infer that the solicitor delivered it, with Ivancica’s personal instructions, to the vendors of the Cronulla property. Ground 10 of the notice of appeal which asserts that the primary judge should have concluded that Walter alone borrowed $375,000 from Michael and Patricia should be rejected.

42. One document, dated 16 May 2017 (“the May 2017 document”), was relied upon in particular by Ivancica. That document was the subject of ground 7(b) of the notice of appeal, which states that the primary judge had “overlooked” it. That submission was not correct. The document, signed by Michael, contained a statement that “Walter Erceg borrowed $375,000”. Michael had lied to Patricia about an affair that he had been conducting in 2016 and his attendances at the Four Seasons Hotel. According to his own evidence, Michael had signed the May 2017 document, knowing that, at least in part, its contents were false. Initially, he admitted that the first two lines of the document were true, but then gave evidence that both Walter and Ivancica had jointly borrowed that amount. That document was inconsistent with Michael’s written evidence reproduced at [22] above and Walter’s oral evidence reproduced at [35] above.

43. The primary judge concluded about this document:

“[249]   It follows that I do not give the May 2017 document the significance that was referred to by Walter and by Ivancica. I do not regard it as a document that truly reflects the events that occurred, and, as importantly, I do not regard it as a document upon which Ivancica and Walter can rely in defending the case upon the basis that the whole of both loans were wholly repaid and, thereby, each debt discharged. The conduct of Michael and Walter, after this document was signed, also supports that conclusion.”

44. This was in part a demeanour based credit based finding about competing evidence by the signatories to the document. No reason has been shown to set that finding aside. Ground 7(b) should be dismissed.

45. The remaining matters allegedly overlooked, the subject of grounds 7(a), 7(c) and 7(d) were also correctly taken into account by the primary judge. Ground 7(a) refers to the absence of documentary record of the loan. His Honour considered that matter carefully and correctly. Ground 7(c) refers to evidence Patricia gave about what Michael had told her. That somewhat peripheral evidence does not lead to any different conclusion. Ground 7(d) contains an assertion about “the absence of evidence” of agreement by Ivancica to repayment terms. The primary judge did not err by overlooking that issue. Ground 7 of the notice of appeal should be dismissed.

46. The fact as noted in [35] above that Walter told Ivancica that “Michael and Patricia had agreed to lend you both some money for the deposit” was direct evidence relevant to the question of authority. Ground 3 of the notice of appeal, which complains that the primary judge erred in accepting this evidence as some evidence establishing the grant of authority by Ivancica to Walter “without corroboration”, should be dismissed. Ivancica gave her authority to the borrowing from the respondents on behalf of both herself and Walter.

47. The inference I draw in this case is that Ivancica authorised Walter to borrow $375,000 jointly for her and Walter’s use. After discussing the relevant authorities, including Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17, Ivancica’s failure to give evidence to rebut the drawing of that inference was properly taken into account by the primary judge as a circumstance capable of leading rationally to the inference that the evidence that Ivancica could have given would not have helped her case. The inferences that arise can more comfortably be drawn in the absence of evidence from Ivancica. Ivancica’s complaint about a misapplication of Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 should be rejected. In circumstances where the strong inference arose from uncontested facts that Ivancica was likely aware of what was occurring in the negotiations between Walter and Michael, the primary judge was entitled to be more comfortably satisfied that the inference should be drawn in circumstances where the appellant did not give evidence to explain or contradict those available inferences. Ground 5 of the notice of appeal, which complains that the inference the primary judge drew was not available, should be rejected.

44. The appeal should be dismissed.

The cross-appeal

49. The cross-appeal contained two grounds, both related to interest. Although not dealt with in Michael and Patricia’s written submissions, ground 1 of the cross-appeal complained that the trial judge erred in finding that Ivancica had not authorised Walter to agree to pay 4% per month interest. I have already addressed this issue in explaining the limits on the authority conferred by Ivancica on Walter by reference to the decision of Jordan CJ in Bonette.

50. The extent of the authority given by Ivancica to Walter is simply a question of fact to be determined having regard to all of the evidence and drawing the appropriate inferences arising from that evidence. As I have said, I am satisfied that the correct conclusion, having regard to the whole of the evidence, is that Ivancica authorised Walter to borrow $375,000 in their joint names. Ivancica thereby authorised Walter to agree to terms which were a normal incident of that borrowing, including agreeing to pay interest. I am not satisfied that agreeing to pay 48% interest per annum was a normal incident of borrowing in NSW in 2015. The inferential finding I make is that Ivancica authorised her husband to borrow money on terms meeting the description of an “ordinary business practice”. I am not satisfied that the authority conferred upon Walter permitted him to borrow at a crippling rate of interest. I reject ground 1 of the cross-appeal.

51. The second ground of the cross-appeal was the subject of most consideration in submissions. That ground is also limited to the payment of interest. Ground 2 of the cross-appeal was advanced on the contingent hypothesis that Walter was the sole borrower of the $375,000 but he did so “purportedly” on behalf of Ivancica, that Ivancica knew of the loan to Walter, and that the $375,000 borrowed by Walter was used by Ivancica to pay a deposit on the Cronulla property.

52. In Bannatyne v MacIver [1906] 1 KB 103, Romer LJ said (at 109):

“I think this case is governed by the general principle which I am about to state. That principle is one that is well recognized in the present day, and is binding upon us. Where money is borrowed on behalf of a principal by an agent, the lender believing that the agent has authority though it turns out that his act has not been authorized, or ratified, or adopted by the principal, then, although the principal cannot be sued at law, yet in equity, to the extent to which the money borrowed has in fact been applied in paying legal debts and obligations of the principal, the lender is entitled to stand in the same position as if the money had been originally borrowed by the principal.”

53. Bannatyne v MacIver has been accepted in numerous decisions: City Bank of Sydney v McLaughlin (1909) 9 CLR 615 at 623, 631-632; [1909] HCA 78; Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533 at 537; O3 Capital Pty Ltd v WY Properties Pty Ltd (2016) 49 WAR 517; [2016] WASCA 82 at [79]-[96].

54. The basis of the equity is one of recoupment, not subrogation. The rule is an instance of equitable estoppel. That was the view expressed by Griffith CJ and Barton J in City Bank of Sydney v McLaughlin at 624-625.

55. In the present case, the respondents believed that the money was being borrowed jointly by Walter and Ivancica. The $375,000 borrowed was applied by Ivancica to discharge (in part) a legal debt owed by her, being the purchase price under the contract for the Cronulla property. Ivancica knew that the money had been obtained by Walter from Patricia and Michael. It does not follow, however, that those matters entitle the respondents to “stand in the same position as if the money had been originally borrowed by” the appellant, including as regards payment of the interest agreed by Walter of 4% per month.

56. This is because the basis of the equity is one of recoupment. The extent of the equity here would provide Michael and Patricia, whose money was used by Ivancica in the purchase of the property, with a right to a refund of that amount of money. That is not what ground 2 of the cross-appeal seeks. Ground 2 seeks to recover the 48% annual interest Walter agreed to pay which, I have explained, was beyond the authority given to him by Ivancica. The claim to recover the 48% annual interest Walter agreed to pay may perhaps be described as a claim based on subrogation. It is not a recoupment claim.

57. The only case the cross-appellant could identify where a Bannatyne v MacIver claim for interest succeeded was Clarke v Abou-Samra [2010] SASC 205. The dispositive paragraph of that judgment about interest does not appear to have been the subject of argument or detailed consideration. Kourakis J, as his Honour then was, said there:

“[111]   I find that Mr and Mrs Abou-Samra are entitled in equity to stand in the same position as if they had borrowed the sum of $67,518.20 from Mr and Mrs Clarke at a rate of 10 per cent, and to an equitable charge securing that principal and interest.”

58. With respect, this formulation appears to express the equity the wrong way around. The equity provides that “the lender is entitled to stand in the same position as if the money had been originally borrowed by the principal”. At least the way [111] is expressed, it appears that his Honour has addressed the equity as if the putative borrowers, Mr and Mrs Abou-Samra (rather than the lenders), were entitled to an equity. I am unable to agree that Clarke v Abou-Samra provides any support for the cross-appellant’s case here.

59. Michael and Patricia were entitled against Ivancica, and only entitled, to recoupment of $375,000, with pre-judgment interest awarded from 1 March 2017 pursuant to s 100 of the Civil Procedure Act. That was the order the primary judge made.

60. It follows that the cross-appeal should be dismissed with costs. Since writing this judgment I have read the additional reasons of Gleeson JA in draft. I agree with his Honour’s additional reasons.

Conclusion and proposed orders

61. For the foregoing reasons I propose the following orders:

1. Appeal dismissed with costs;

2. Cross-appeal dismissed with costs.

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Amendments

03 November 2020 - Minor typographical amendments at [6] and [54].

Decision last updated: 03 November 2020