Ledgerton v Ambrosini - [2023] WASCA 16

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LEDGERTON -v- AMBROSINI [2023] WASCA 16
CORAM:   MURPHY JA
MITCHELL JA
BEECH JA

HEARD:   18 JANUARY 2023
DELIVERED          :   3 FEBRUARY 2023
FILE NO/S:   CACV 104 of 2021
BETWEEN:   MICHAEL AND JOAN LEDGERTON
Appellant

AND

BERIT AMBROSINI
First Respondent

STEPHEN AMBROSINI
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   MacLEAN DCJ
File Number            :   CIV 2331 of 2020

Catchwords:

Contract - Where appellant alleged an oral agreement between appellant, first respondent and second respondent - Where judge found first respondent was not a party to agreement - Whether judge erred in admitting certain documentary evidence tendered by first respondent - Whether judge erred in his assessment of evidence

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	In person
Second Respondent	:	No appearance

Solicitors:

Appellant	:	In person
First Respondent	:	In person
Second Respondent	:	No appearance

Case(s) referred to in decision(s):

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Saunders v The Public Trustee [2015] WASCA 203
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

JUDGMENT OF THE COURT:

Introduction

This is an appeal against the orders of MacLean DCJ dismissing an action by the appellants against the first respondent. His Honour delivered extempore reasons on 8 October 2021 (primary decision).
For convenience, and with no disrespect intended, the parties will be referred to by their first names. Michael and Joan Ledgerton are the appellants. They were the plaintiffs below. Michael is Joan's son.
The second respondent (Stephen Ambrosini) and the first respondent (Berit Ambrosini) were the first and second defendants, respectively, at trial. They are married, although the learned primary judge accepted Berit's evidence that there were considerable marital difficulties.
The primary proceedings involved a dispute in relation to a debt. In broad terms, Michael and Joan alleged that money was advanced to Stephen and Berit pursuant to an agreement between Michael and Joan, on the one hand, and Stephen and Berit, on the other, under which it was agreed that (1) the money would be paid into a mortgage offset account held by Stephen and Berit in respect of their mortgage over their then home in Wanneroo (Wanneroo property), (2) interest would be payable at 1% less than the bank rate, and (3) the principal would be repayable on sale of the Wanneroo property. Michael and Joan alleged that the loan agreement was oral and entered into at a New Year's Eve party at the Wanneroo property on 31 December 2015. There was no dispute that a sum of $358,500 was paid from Joan's bank account, under a power of attorney held by Michael for her, into an offset account held in the names of Stephen and Berit on 3 February 2016. Following an alleged default in repayment in 2019, Michael and Joan commenced an action against Stephen and Berit, alleging that both were parties to the relevant loan agreement. Berit denied that she was a party to the loan agreement.
It was not in dispute that the Wanneroo property had been sold in January 2019 without the advance being repaid.[1] Nor was it in dispute that the advance had been lost due to Stephen's gambling. Stephen's gambling losses eventually totalled in excess of $700,000.[2]
[1] See, for example, trial ts 130 - 131.
[2] Primary decision, BB 3.
The judge upheld the claim against Stephen but dismissed the claim against Berit. The judge found Berit was not a party to the loan agreement. Michael and Joan appeal against the order dismissing the claim against Berit. In essence, the challenge is to the judge's finding that Berit was not a party to the loan agreement.
All parties were self-represented below. Michael and Joan, and Berit, are self‑represented in the appeal. Michael addressed the court on behalf of Joan and himself. Stephen has not filed a notice of respondent's intention, and has not participated in the appeal.
For the reasons which follow, Michael and Joan have not established appellable error by the learned trial judge and the appeal should be dismissed.

The evidence at trial

The grounds of appeal challenge the judge's reception of certain evidence and his Honour's assessment of the evidence. It is convenient at the outset to outline the nature and scope of the evidence at trial.
Michael and Joan gave evidence. They also called Michael's partner, Tania, and Michael's son, Jacob. Although she was called, Joan could not give any evidence as to the alleged oral agreement, as she was never a party to any discussion with Berit.[3]
[3] Trial ts 104 - 105, 109 - 110.
In broad terms, the evidence on behalf of Michael and Joan in relation to the alleged oral agreement on 31 December 2015 was given by Michael and Tania, both of whom gave evidence in similar terms. The documentary evidence tendered by Michael included a text from Michael to Berit on 2 February 2016, which he said supported his oral evidence. The text stated:[4]
Hi Berit, spoke to [Stephen], all good. Will get it sorted tonight, sorry to have bothered you.
[4] Exhibit 2; GB 34.
Tania's oral evidence was led by Michael at the trial, and included:[5]
Do you remember [Michael] having a conversation with Berit explaining about the terms and conditions of the loan?---You said they went ahead with it, and if the house was to be sold, they were to pay it back straightaway.
…
And do you remember what was said in relation to the purpose of the loan or the sole purpose of the loan?---To offset their mortgage.
[5] Primary decision, BB 10.
Tania's evidence was also to the effect that she had only been to the Wanneroo property once, and that was on 31 December 2015.[6]
[6] Primary decision, BB 10 - 11.
Michael and Tania also gave evidence to the effect that, on 15 February 2020 (some four years after the advance), they, together with Jacob, met with Berit at a property in Tapping that Berit and Stephen were renting (following the sale of the Wanneroo property). Their evidence, and the evidence of Jacob, was to the effect that in the course of a conversation about Stephen's gambling debts and the loss of the advance, Berit said words to the effect that 'I wish I'd never agreed to the loan in the first place'.[7] Michael and Joan contended that this was an admission against interest which supported their contention that Berit was a party to the alleged loan agreement on 31 December 2015.
[7] See, for example, trial ts 54 (Michael); trial ts 82 (Tania); trial ts 102 (Jacob).
Michael and Joan also indicated to the judge that they wished to call a Mr Garrith Watts to give evidence. Mr Watts swore an affidavit on 19 October 2020 concerning circumstances of the service of the writ on Berit. Michael, when asked by the judge as to the point of the proposed evidence, said that it went to the issue of Berit's credibility.[8] Neither Berit nor Stephen required Mr Watts for cross‑examination. However, the affidavit of Mr Watts was not ultimately tendered in evidence by Michael and Joan.[9]
[8] Trial ts 6.
[9] Trial ts 9 - 11, 12, 14, 104, 111.
Stephen gave evidence which included evidence to the effect that Berit had not been a party to the alleged oral agreement. However, the judge placed no reliance on Stephen's evidence, save where it contained certain admissions against his interests.[10]
[10] Primary decision, BB 4 - 5.
Berit gave oral evidence denying that she was a party to any agreement concerning the loan as alleged. Her evidence included evidence to the effect that, contrary to the case advanced by Michael and Joan, there had not been a New Year's Eve party at the Wanneroo property on 31 December 2015, and that she had celebrated New Year's Eve at Cottesloe on 31 December 2015. Her evidence was also to the effect that there had been a New Year's Eve party at the Wanneroo property at which Michael and Tania were in attendance, but that was the subsequent year, on 31 December 2016. She produced a photograph bearing a date of 31 December 2016 and two Facebook posts, one dated 31 December 2015 and another dated 1 January 2017, which she said supported her oral evidence.
In cross‑examination by Michael, Berit was referred to the 2 February 2016 text. She accepted in cross‑examination that Stephen had told her, around 2 February 2016, about a cheque from Michael. Michael put to her that this evidence was inconsistent with a statement made by her in an earlier affidavit to the effect that the first time she had seen and discussed the money was after it had been banked (on 3 February 2016). Her explanation was to the effect that prior to 3 February 2016, whilst Stephen had mentioned that he was picking up a cheque from Michael, Stephen never discussed a loan with her or said that the cheque was going into their joint offset account.[11] Her evidence in cross‑examination included:[12]
[11] Trial ts 165, 169 - 172, 174, 177 - 178, 181 - 182, 193 - 195.
[12] Trial ts 177.
Did - did Stephen ask - tell you what the cheque was for?---No, we didn't engage in conversation about it.
How much it was - - -?---Not at all.
- - - was for?---It wasn't mentioned. I had no idea about it.
Did he - - -?---Now, I see the relation, but I didn't at the time.
Did he tell you where that cheque was going to be deposited?---No.
Okay. Did you have any other bank accounts, transaction accounts, other than the offset account at that time?---No.
As a result of that, would you have assumed that the cheque therefore would be paid into the offset account?---I didn't - we didn't engage in a conversation. I didn't even know what he was talking about.
Were you aware that - that - did - did he have any other accounts at that time, transaction accounts?---Not that I'm aware of. No.
Okay. Were you not concerned at all that that being the case, that a cheque was going to be paid into you offset account, would you not want to know why that was, or - or any details of that?---I didn't know a cheque was being paid. No.
So you're saying you didn't know a cheque was being paid?---No.
Berit also denied that there had been any conversation on 15 February 2020 where she admitted that she was in effect a party to the alleged loan agreement. Her evidence included:[13]
I - I think there was a lot of conversation of where - was [Stephen] avoiding [Michael] or where he was and am I sure he was working. I don't remember word for word or anything like that. I was really nervous obviously. I was home alone. [Michael] began to ask me things like, 'What happened with the money', and I - I told him that, you know, 'You know by now what happened with the money'. He asked why I didn't call him.
…
… I don't remember word for word but it was couldn't I have called him or why didn't I call him or - and I kept - I guess they - they accused me of rambling. I think I was rambling. I was nervous and I just did not have answers for it. I kept saying, 'I'm so sorry for what [Stephen's] done to you. I have just had to have annual leave paid out to live off and buy my kids' Christmas presents coming up', and I said, 'I'm just at the lowest point in my life and I'm struggling to deal with it because he too [sic] took everything for - out from under me, our house and everything, and I'm sorry for your situation', but I said to him, 'You know I did not have anything to do with it and you know I did not ever touch that money', and he said, 'But you could have called me, Berit. You could have called me, right. You had my number. Why didn't you call me', and he - he kept saying it. I understand why he was saying it but I didn't have the answer. I said, 'I'm sorry I didn't call you. It's the biggest regret of my life now that I didn't call. I didn't have the courage. I didn't have willpower'. I thought it was a thing that [Stephen] and [Michael] had between them. They were friends. I've never spoken about the money from day 1. They didn't - they didn't involve me, they didn't even ever speak to me, not one time, about this until it went pear shaped and then suddenly it's like, 'Berit, where are the answers', you know.
You've heard evidence given that you said that you wished you'd never agreed to it in the first place. Do you remember hearing that evidence?---I - I remember hearing that evidence.
What do you say in relation to that evidence?---I strongly deny it. I never - I'm telling the truth. I would never say I wished I had never agreed to the loan in the first place because I didn't agree to the loan in the first place. Okay. I - I believe - I - I'm not going to accuse them of lying but I believe that I said, 'I wish you had never taken this - agreed to these loans in the first place'. That's what I - I believe that I said. I do - I would not and did not say the word 'I' because I didn't do it and I did not have anything to do with this loan. It wasn't - it wasn't offered to me. It wasn't - I didn't accept it. The - the cheque wasn't in my name. All repayments have come from [Stephen's] telephone. It says that on the bank account statements, [Michael's], you know, bank account statements. I just have never, from day 1, had anything to do with that money.
[13] Trial ts 155 - 157.

The judge's findings

The material findings by the judge were as follows.
Michael and Stephen became acquainted in 1999 through work. They car‑pooled for work and became close friends.[14]
[14] Primary decision, BB 4, 22.
In February 2013, Stephen suffered a workplace accident. He required medication and had surgeries, which continued up to August 2015. He received a compensation payment.[15]
[15] Primary decision, BB 22.
Michael had access to a significant amount of money, together with Joan, for whom he acted under power of attorney.[16]
[16] Primary decision, BB 22.
At some point prior to December 2015, Michael told Stephen that he had lent his partner, Tania, money to assist Tania to pay a reduced rate of borrowing from the bank. Michael proposed that Stephen enter into a similar arrangement. Stephen considered it a good idea and welcomed the opportunity.[17]
[17] Primary decision, BB 22.
Between December 2015 and February 2016, Michael, Joan and Stephen became parties to an oral agreement for the advance of $358,500 to Stephen (Loan Agreement). Berit was not a party to the Loan Agreement. The terms of the Loan Agreement included:[18]
1.it was conditional upon permission from Joan;
2.the principal was to be kept in an offset account held by Stephen and Berit;[19] and
3.the principal was repayable on demand and was otherwise to be repaid in the event the Wanneroo property was sold.
[18] Primary decision, BB 22.
[19] Primary decision, BB 22.
The terms referred to in points 2 and 3 above, even if not expressly agreed, were implied in fact in accordance with the criteria in BP Refinery (Westernport) Pty Ltd v Shire of Hastings.[20]
[20] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 282 - 283. See BB 22.
The 2 February 2016 text relied on by Michael was a text in which Michael apologised to Berit. It was consistent with Michael seeking to contact Stephen, and was not consistent with Berit having been a party to the Loan Agreement.[21]
[21] Primary decision, BB 16.
On 3 February 2016, the principal was advanced by way of a cheque drawn on an account held by Joan, and payable to Stephen. This was done pursuant to conversations between Stephen and Michael as to how and where the cheque would be handed over. Stephen then deposited the money into the offset account held by Stephen and Berit.[22]
[22] Primary decision, BB 16 - 17, 23.
Berit became aware that the money had been put into the offset account because she checked her account for salary payments going in.[23] The judge accepted Berit's explanation of the inconsistency alleged by Michael in relation to her affidavit, and the discussions she acknowledged she had with Stephen about the cheque on 2 February 2021.[24] In any event, Berit's affidavit evidence did not support the proposition that she had been a party to the Loan Agreement.[25]
[23] Primary decision, BB 23.
[24] Primary decision, BB 23.
[25] Primary decision, BB 23.
Stephen made fortnightly interest payments on the advance from 19 February 2016 to August 2019 from the offset account.[26]
[26] Primary decision, BB 17 - 18, 23 - 24.
Berit knew that Stephen was spending money from the advance, but he was 'thuggish' towards Berit and made threats. He told her, in effect, to butt out and that it was his business, and that the relationship was between him and Michael.[27]
[27] Primary decision, BB 23.
Throughout September and October 2019, Michael attempted to contact Stephen regarding unpaid interest. Meetings followed between Michael and Stephen.[28]
[28] Primary decision, BB 18.
Stephen was avoiding Michael at this time, and when Michael could not contact Stephen, he 'reached out' to Berit.[29]
[29] Primary decision, BB 19.
On 1 November 2019, Michael and Berit had a phone conversation. During this conversation, Berit informed Michael that (1) the Wanneroo property had been sold for $700,000, (2) the proceeds from the sale were used to discharge the mortgage, and (3) Stephen had gambled away the remaining $357,800. The conversation was consistent with Berit's evidence that she was, at that stage, a conduit or means of Michael getting access to Stephen.[30]
[30] Michael's affidavit sworn 9 October 2020, par 9; GB 9; primary decision, BB 18 - 19.
Following this, Stephen resumed contact with Michael. Stephen apologised and said that he would make it up to Michael.[31]
[31] Primary decision, BB 19.
There was a further meeting at a Dôme café between Michael and Stephen about the unpaid debt.[32]
[32] Primary decision, BB 19.
On 15 February 2020, Michael met with Berit. Berit blamed Stephen for what he had done to her and her family, and said that they had no money left and that her life was ruined.[33]
[33] Primary decision, BB 20.
As to Michael's, Tania's and Jacob's evidence about Berit's alleged admission on 15 February 2020, the judge said:[34]
In my view, there's just no evidence that she was ever a party to the agreement. The conversation could not in any sense be an admission and it's not at all clear what was said in obviously heightened emotional circumstances.
By making that finding I'm in no way criticising either [Jacob] or [Tania] or [Michael] as to their recall of the event. But even if their evidence were accepted, it could not demonstrate that [Berit] was a party because demonstrably she was not a party.
[34] Primary decision, BB 23.

Grounds of appeal

The appellant's case contains six grounds of appeal. They allege, in effect, that the judge should have rejected certain evidence and otherwise weighed the evidence differently.
Ground 1 alleges that the Facebook post dated 1 January 2017,[35] the screenshot of the Facebook post dated 31 December 2015,[36] and the photograph dated 31 December 2016[37] were 'all able to be digitally created/edited' and should not have been received into evidence.
[35] Exhibit 11; GB 40.
[36] Exhibit 13; GB 47.
[37] Exhibit 14; GB 48.
Ground 2 alleges, in effect, that Berit's conduct was not consistent with her not being a party to the Loan Agreement, in that she:
1.made no attempt to speak to Michael to voice any concerns she had concerning the loan, despite seeing him personally on many occasions and having his telephone number;
2.did not repay, nor attempt to repay, the loan, which she could easily have done, including by a $10 bank cheque;
3.allowed payments of interest from the offset account for a period of three and a half years, until the funds were exhausted; and
4.continued to transact on the account until such time as the funds were depleted, and it was only at this time that she decided to open an account in her sole name in order to detach herself from the joint offset account.

Ground 3 alleges that Michael's text message to Berit dated 2 February 2016 was not merely a communication by Michael to Berit in an attempt to contact Stephen, but, rather, a 'direct communication with [Berit] in order to finalise arrangements for the handing over of the cheque'. This demonstrated that '[Michael] knew that [Berit] was in fact aware of and had agreed to the loan', contrary to her evidence.
Ground 4 alleges that three witness (presumably Michael, Tania and Jacob) gave evidence to the effect that on 15 February 2020, Berit made an admission 'agreeing to the loan', yet this evidence was described by the judge as being words given in 'heightened emotional circumstances' and not given proper weight.
Ground 5 alleges, in effect, that (1) in light of ground 1, the only evidence that Berit produced to deny the oral agreement was her own evidence, (2) there was no basis to reject Michael's and Tania's evidence, and (3) even if they all met on another occasion, that would not be proof that they did not meet and agree the Loan Agreement on New Year's Eve on 31 December 2015.
Ground 6 alleges, in effect, that (1) an affidavit of Garrith Watts sworn 19 October 2020, as to the circumstances of the service of the writ on Berit, contradicted Berit's evidence that she was honest and did not lie, and (2) as neither Stephen nor Berit opposed reception of the affidavit into evidence, the judge should have admitted the affidavit into evidence.

Disposition

Ground 1

Ground 1 alleges that the judge erred in receiving into evidence the following documents tendered by Berit:
1.A screenshot of Berit's Facebook post dated 31 December 2015, which, on its face, indicated her attendance at Cottesloe on New Year's Eve on 31 December 2015.
2.A photograph dated 31 December 2016.
3.A Facebook post of Berit's daughter dated 1 January 2017 purportedly concerning a New Year's Eve party at the Wanneroo property on 31 December 2016.
The evidential background is as follows.
The screenshot of the Facebook post dated 31 December 2015 was put to Michael in cross‑examination.[38] It was also put to Tania in cross‑examination,[39] where it was marked MFI‑1.
[38] Trial ts 68 - 70.
[39] Trial ts 85 - 89.
The screenshot of the Facebook post dated 31 December 2015 and the Facebook post dated 1 January 2017 were referred to by Berit in her evidence‑in‑chief.[40] Michael initially objected to the documents on the basis that they had been provided late, and his witnesses had not had the opportunity to deal with them. Following an exchange in which the judge referred to Berit having put the Facebook post dated 31 December 2015 to both Michael and Tania in cross‑examination, Michael said:[41]
Okay. Happy for them to go into evidence, your Honour.
[40] Trial ts 142 - 143.
[41] Trial ts 146.
The screenshot of the Facebook post dated 31 December 2015 (MFI‑1) became exhibit 13,[42] and the Facebook post dated 1 January 2017 became exhibit 11.[43]
[42] Trial ts 154.
[43] Trial ts 146.
In relation to the photograph dated 31 December 2016, Michael also complained at trial of the lateness of the document, but he accepted that the photograph depicted people at the Wanneroo property, including Michael and Tania. Michael was also shown the camera roll on the mobile telephone from which the photograph was produced. He accepted that, ordinarily, when a photograph is taken on a mobile telephone it gets stored on that mobile telephone with the date recorded on it.[44] The document was tendered and made exhibit 14.[45] The judge asked Michael if he would like to recall Tania in light of this evidence, but he declined.[46]
[44] Trial ts 158, 161 - 164.
[45] Trial ts 160.
[46] Trial ts 159 - 160.
Ground 1 should be dismissed for the following reasons.
First, all of the documents were admitted without objection at trial. Michael did not contend at trial that he required an adjournment to deal with the documents, and he expressly declined to have Tania recalled. There is no error in the judge admitting the evidence in this context.
Secondly, insofar as Michael sought to demonstrate that documents may be digitally altered, there was no application to adduce additional evidence on the appeal. Nor, had there been an application, could it have succeeded, having regard to the relevant principles.[47] Michael said, in effect, that he had learnt since the trial that documents are capable of being digitally altered. Even if that were true of his personal understanding, there is no basis to conclude that it is a matter which could not have been discovered with reasonable diligence at the time.[48]
[47] See, for example, Saunders v The Public Trustee [2015] WASCA 203 [83] ‑ [90].
[48] Saunders [88].
Thirdly and in any event, insofar as Michael contends that the documents could have been digitally altered, that, as an abstract proposition, may be accepted. However, Michael made it clear that he does not contend that he has any evidence that these particular documents were in fact digitally altered.[49] There is no basis for finding error by the judge where the point of the ground is wholly speculative in nature.
[49] Appeal ts 5.
Ground 1 is not established.

Ground 2

Ground 2 involves the contention that the judge should not have accepted the evidence of Berit that she had not been a party to an agreement as to a loan, as alleged, on 31 December 2015. The finding that Michael and Joan had not established the alleged oral agreement was largely dependent upon the trial judge's assessment of the credibility and reliability of the witnesses.
Generally in relation to Berit's evidence, the judge said:[50]
[Berit] … impressed me as being a cautious and conservative, hardworking person [who has] lived within her means and was content with that.
There's no evidence, no suggestion or circumstance that [Berit] had a pressing need to accept the money. Her position was entirely different to the position that was described by [Tania] and I do find it implausible that she would have been a party to the agreement and would have accepted the agreement and I do accept her evidence that she was no part of it.
[50] Primary decision, BB 20 - 21.
Also, following a discussion of the evidence in relation to the meeting on 15 February 2020, and the other evidence subsequent to the default, the judge said that he found Berit's evidence 'compelling', and that he accepted it.[51]
[51] Primary decision, BB 20.
Whilst an appellate court, in an appeal by way of rehearing, is obliged to conduct a real review of the trial and of the judge's reasons, in conducting the review the appellate court must observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. In the case of findings based, at least to any substantial degree, on the assessment of the credibility or reliability of the witnesses, an appellate court will not interfere with the finding unless it is demonstrated to by wrong by reference to incontrovertible facts or uncontested testimony, or because the finding is glaringly improbable or contrary to compelling inferences, or because the trial judge failed to use, or has culpably misused, his advantage as a trial judge.[52]
[52] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] ‑ [29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43]; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55]; Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208 [93].
Given these restraints on appellate review, none of the matters raised by ground 2, referred to at [41] above, points to any appellable error by the trial judge. Essentially, Michael contended that Berit's conduct after the loan funds were deposited in the joint account was only explicable on the basis that, and hence supported an inference that, she was a party to the agreement. On the contrary, the matters referred to by the appellants under ground 2 are equally consistent with the proposition that Berit was not a party to the alleged oral agreement in the first place. Indeed, the fact that Berit did not communicate with Michael about the loan or attempt to repay the loan may be regarded as more consistent with her not being a party to the alleged oral loan agreement.
Under ground 2, Michael also referred to the decision of Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd.[53] That decision does not assist Michael and Joan. It concerned the drawing of an inference that an offer had been accepted by conduct including by silence, in the context of the particular circumstances of the case. Michael and Joan's case was not that an agreement was to be inferred including by conduct, but that an oral agreement had allegedly been made on 31 December 2015.
[53] Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523.
Michael also referred to the objective theory of contract referred to in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[54] and to Brambles Holdings Ltd v Bathurst City Council.[55] The latter case was cited as authority for the proposition that post‑contractual conduct is admissible in these circumstances on the question of whether a contract was formed. Neither authority assists Michael and Joan. There is no doubt that the judge understood and applied the objective theory of contract. Also, the latter principle was expressly referred to by the judge in his Honour's reasons.[56]
[54] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165.
[55] Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153.
[56] Primary decision, BB 8.
Ground 2 is not established.

Ground 3

In its terms, the text message dated 2 February 2016 was neutral, in that its terms did not positively point to Berit being a party to the agreement. Michael accepted that this was so.[57] The significance of that text message was to be assessed in the context of the evidence as a whole. The judge accepted Berit's evidence on the topic, including her explanation for the alleged inconsistency with her affidavit.[58]
[57] Appeal ts 16.
[58] Primary decision, BB 15 - 16, 23.
In accordance with the principles referred to in dealing with ground 2, there is no proper basis for this court to interfere with the trial judge's finding. Ground 3 is not established.

Ground 4

There appear to have been three aspects to the judge's findings quoted at [38] above in relation to the alleged admission by Berit on 15 February 2020 . First, the judge said that it was 'not at all clear what was said in obviously heightened emotional circumstances'. The judge was, therefore, unable to find that Berit said the words attributed to her by the evidence of Michael, Tania and Jacob. Secondly, the 'conversation could not in any sense be an admission'. This is a finding that, even if Berit said the words attributed to her, those words did not constitute an admission that she was a party to an oral agreement reached on 31 December 2015. Thirdly, even if the evidence the alleged admission was accepted, 'it could not demonstrate that [Berit] was a party because demonstrably she was not a party'. This is a finding that the evidence as a whole did not support a conclusion that Berit was a party to the alleged oral loan agreement even if it were accepted that she said the words attributed to her by the evidence of Michael, Tania and Jacob.
As noted in [58] above, the judge was impressed by Berit as a witness and found her evidence to be 'compelling'. It was open to the judge to find that the occasion on 15 February 2020 was attended by 'heightened emotional circumstances' affecting both Berit (in the impact of Stephen's gambling on the family) and Michael, to whom it was then clear that Stephen had lost the whole of the money advanced in gambling. Having seen and heard the witnesses give evidence and considered the circumstances of the conversation, it was open to the judge to fail to be satisfied that Michael's, Tania's and Jacob's evidence as to precisely what Berit said on 15 February 2020 was sufficiently reliable to justify a finding as to that fact.
The judge's task was not merely that of 'counting heads' in determining whether any admission had been made by Berit. Rather, his Honour's task was to assess the evidence as to the alleged admission in the context of the evidence as a whole. This included the incontrovertible evidence that the cheque had been organised with Stephen and had been made payable to Stephen, that Stephen had caused all the repayments to be made up to August 2019, and that, after default, Michael pursued Stephen for the money. It also included evidence that the New Year's Eve gathering at which the oral agreement was alleged to have been reached was in 2016 (after the advance had been made) and not 2015 as Michael and Joan contended.
Moreover, even if it were accepted that Berit had said the words ascribed to her - she wished she had not agreed to the loan in the first place - that would not have necessarily constituted an admission that, or established as a fact that, she had been present on 31 December 2015 and had been a party to the loan agreement. For example, she may have been expressing regret that in discussions between Stephen and her, at an early stage, she had agreed to his going ahead with the loan. There was, as noted in the previous paragraph, other evidence supporting the conclusion that Berit was not a party to the oral loan agreement alleged to have been reached on 31 December 2015. The judge's conclusions that whatever was said on 15 February 2020 did not constitute an admission that Berit was a party to the loan agreement, and that the evidence as a whole did not establish her to be a party to the loan agreement, have not been shown to be incorrect.
In light of the principles governing appellate review of findings of primary fact, referred to in discussing ground 2, the judge made no appellable error in finding that Berit was not a party to the alleged oral loan agreement. Ground 4 is not established.

Ground 5

Insofar as ground 5 relies on ground 1, it cannot succeed for the reasons given in relation to ground 1. Insofar as ground 5 contends that the evidence of Michael and Tania should have been preferred over Berit, the contention fails essentially for the reasons given in relation to ground 2. As to the third matter alleged in ground 5, Tania gave uncontradicted evidence that she had only met Stephen and Berit once at their home at the Wanneroo property. The judge accepted her evidence in that regard.[59] His Honour found, however, that her evidence as to what was said on the occasion, and the date of the occasion, was 'not persuasive'.[60] His Honour found as a fact that the occasion was on 31 December 2016.[61]
[59] Primary decision, BB 11.
[60] Primary decision, BB 11 - 12.
[61] Primary decision, BB 12.
Having the advantage of having seen and heard the witnesses give their evidence, the judge was entitled to accept and act on Tania's unequivocal evidence that she had been to the Wanneroo property on only one occasion. That evidence, together with the photograph of 31 December 2015 and the Facebook posts referred to in [46] above, entitled the judge to find, as his Honour did,[62] that Tania could not have been present on 31 December 2015 when the agreement was said to have been made.Nor in any event, for the reasons given in relation to ground 2, has any appellable error been shown in relation to the overall evaluative task undertaken by the judge.
[62] BB 11 - 12.
Ground 5 is not established.

Ground 6

Ground 6 is not established for two reasons. First, although the judge gave Michael leave to tender the affidavit of Gareth Watts, Michael did not tender the document at trial (see [15] above). Michael and Joan cannot now complain that the document should have been received into evidence.
Secondly, Mr Watts' evidence related to particular circumstances concerning the service of the writ on Berit. It was a collateral matter, merely going to the credit of Berit, and was not admissible in any event.[63]
[63] Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 [2] ‑ [3], [31] ‑ [32], [38], [83].

Conclusion

For the above reasons, the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JL
Associate to the Honourable Justice Murphy
3 FEBRUARY 2023