Leventeris v Leventeris
[2012] SADC 72
•12 June 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal: Minor Civil Review)
LEVENTERIS v LEVENTERIS & ANOR
[2012] SADC 72
Judgment of His Honour Judge Tilmouth
12 June 2012
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - MONEY COUNTS - NATURE OF ACTION AND OTHER GENERAL MATTERS - ONUS OF PROOF
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE
RESTITUTION - OTHER MATTERS - OTHER CASES
Magistrate gave judgment in favour of plaintiffs for money advanced by way of loans. Defendant appeals claiming Magistrate erred by misapprehending the onus of proof, paying insufficient regard to the failure to call evidence and insufficient evidence proving a loan.
Held: Application for review allowed, Judgment given in court below rescinded. Even though the Magistrate erred in placing the onus of proof on the defendant and failing to explain his reasoning as to the failure of one party to give evidence, he came to the correct conclusion on the merits.
Magistrates Court Act 1991 (SA) s 38; Coshott v Sakic (1998) 44 NSWRL 667; Finlay v Silicon Industries Pty Ltd (2003) 229 LSJS 14; Jenkins v Wynen [1992] 1 Qd R 40; Joaquin v Hall [1976] VR 788; Jones v Dunkel (1959) 101 CLR 298; Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548; Motor Auction Pty Ltd v John Joyce Wholesale Cars Pty Ltd (1997) 138 FLR 118; Payne v Parker [1976] 1 NSWLR 191; Public Trustee as Administrator and Executor of the Estate of Pere Grljusich v Grljusich (Supreme Court of Western Australia, 17 January 1996, unreported; Re George, Francis v Bruce (1890) 44 ChD 627; Schmierer v Taouk (2004) 207 ALR 301; [2004] NSWSC 345; Theiss v TCN Channel 9 Pty Ltd (No 5) [1994] 1 Qd R 156; West v GIO (NSW) (1981) 148 CLR 62, referred to.
Blatch v Archer (1774) 98 ER 969; Heydon v Perpetual Executors, Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111, applied.
Seldon v Davidson [1968] 1 WLR 1083, not followed.
LEVENTERIS v LEVENTERIS & ANOR
[2012] SADC 72The issues
This case involves cash advances of $3,000 made to Peter Leventeris by his grandmother Anastasia and his uncle George. On 3 November 2011 George and Anastasia issued proceedings claiming these advances were made by way of loans. The dispute came before a Magistrate sitting in the Minor Civil jurisdiction of the Adelaide Magistrates Court on 19 March 2012. The learned Special Magistrate found for George and Anastasia Leventeris. He gave judgment for the sum of $3,000 plus a filing fee of $141. From this judgment Peter Leventeris applies to this court to review the matter.
Application to review a minor civil decision
From his oral presentation and the papers filed in support, essentially three points of complaint emerge. Firstly misapprehension of the onus of proof, secondly that the Magistrate paid insufficient regard to the fact that Anastasia failed to appear or give evidence in support of the claim and thirdly, that there was no evidence or no sufficient evidence demonstrating the advances were by way of loans as opposed to gifts.
Onus of proof
The facts demonstrate that $1,000 in cash was handed over by George Leventeris and $2,000 in cash by Anastasia at the one time. This much is not in dispute. Ordinarily a loan may be recovered as a simple contract which constitutes in itself a cause of action: Re George, Francis v Bruce,[1] or alternatively by way of an action for monies had and received: Lipkin Gorman (a firm) v Karpnale Ltd,[2] Finlay v Silicon Industries Pty Ltd.[3]
[1] (1890) 44 ChD 627
[2] [1991] 2 AC 548
[3] (2003) 229 LSJS 14 at [123]
As to the incidence of the onus of proof the Magistrate said this:[4]
As can be seen, the advance of $3,000 is not disputed. What is disputed is whether the money was advanced as a gift or as a loan. Where an advance of money is proven then the onus rests with the recipient to prove that the money was given as a gift unless the presumption of advancement applies.
Later in his reasons the Magistrate concluded:[5]
Peter bears the onus of proving that the money was provided by way of a gift. He has failed to discharge that onus.
[4] George Leventeris and Anastasia Leventeris v Peter Leventeris AMCCI-11-5711, 19 March 2012 [5]
[5] At [9]
The presumption of advancement has no application to the facts of the case. In the ordinary course of events an onus rested with the plaintiffs (respondents) to prove the advances were by way of loans, although an evidential onus may fall on the defendant (appellant) to demonstrate otherwise: Jenkins v Wynen.[6]
[6] [1992] 1 Qd R 40 at 43-44
In Seldon v Davidson,[7] Willmer and Edmund Davies LJJ considered a claim for monies due and owing in the face of a defence that the monies were gifted. The court held the payment of money prima facie imports an obligation to repay, and that the trial Judge was correct in placing an onus on the defendant to prove facts demonstrating the advance was not repayable. Willmer LJ observed:[8]
No such considerations arise in the present case; indeed they are clearly ruled out because we have from the Defendant in this case a clear admission of the payment of the money, and no suggestion that it was paid in settlement of an existing debt, or that it was given in return for cash, or anything of that sort. In the absence of any such circumstances money paid by the Plaintiff in circumstances such as these is prima facie repayable on demand. If the Defendant seeks to evade repayment of the money which was paid to him, it seems to me that the Judge was right in placing the onus upon him to prove the facts which he alleges show that the money was not repayable.
[7] [1968] 1WLR 1083.
[8] (at 1088 F, Edmund Davies LJ agreeing at 1090 G)
This decision was applied by Ellis J in Re Matthews,[9] but was said by Jenkinson J in Joaquin v Hall,[10] and White J in Schmierer v Taouk,[11] to be contrary to the principles espoused in the High Court of Australia in Heydon v Perpetual Executors, Trustees & Agency Co (WA) Ltd.[12] In Thiess v TCN Channel 9 Pty Ltd (No 5),[13] the Queensland Full Court applied Joaquin v Hall in the context of facts giving rise to a legal presumption of a gift not relevant to the present case.
[9] [1993] 2 NZLR 91 at 94
[10] [1976] VR 788 at 789
[11] (2004) 207 ALR 301; [2004] NSWSC 345 at [63]
[12] (1930) 45 CLR 111
[13] [1994] 1 Qd R 156 at 177
The decision in Heydon v Perpetual Executors, Trustees & Agency Co (WA) Ltd[14] concerned an action by an executor for money lent by a testatrix. The defence was that the testatrix had gifted the money to the defendant. It was held unanimously:[15]
In this case the plaintiff sued for money lent and money received by the defendant as trustee for the deceased. The defendant denied these allegations and said the money was given to her as a gift. At the trial the learned Judge thought that the onus of proving there had been a gift lay on the defendant. We are respectfully of opinion that the burden of proving the facts in support of either one or other cause of action set out in the statement of claim, lies on the plaintiff.
[14] Above
[15] (45 CLR at 114)
Spigelman CJ (Mason P and Handley JA agreeing) applied Heydon v Perpetual Executors, Trustees & Agency Co (WA) Ltd in Coshott v Sakic:[16]
In Australia, the burden of proving the fact that an advance of money was by way of loan, rather than by way of gift, is on the plaintiff. In Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd,[17] the defendant, who alleged that money advanced was a gift, was held not to bear the onus.
Heydon has been consistently applied in Australia: see Joaquin v Hall;[18] Jenkins v Wynen;[19] Motor Auction Pty Ltd v John Joyce Wholesale Cars Pty Ltd;[20] Public Trustee as Administrator of the Estate of Pere Grljusich v Grljusich.[21] A different approach has been taken in England and New Zealand: see Seldon v Davidson,[22] an ex tempore judgment, and Re Matthews.[23]
[16] (1998) 44 NSWLR 667 at 671
[17] (1930) 45 CLR 111at 113
[18] [1976] VR 788 at 789
[19] [1992] 1 Qd R 40 at 43-44
[20] (1997) 138 FLR 118 at 132
[21] (Supreme Court of Western Australia, 17 January 1996, unreported)
[22] [1968]1 WLR 1083[1968] 2 All ER 755
[23] [1993] 2 NZLR 91 at 94
Given the emphatic state of the Australian authorities, this court is bound to hold the Magistrate erred in placing an onus of proof on the appellant Peter Leventeris and in resolving the case on that footing, as appears in the passages from his reasons quoted above. That being so, an error of law is demonstrated.
Powers of disposition
There is however a procedural question flowing from this conclusion. The right of review is conferred by s 38(6) of the Magistrates Court Act 1991 (SA). The powers of disposition in reviews of this kind are however somewhat limited. They are provided for under s 38(7) of the Magistrates Court Act:
Division 2—Minor civil actions
38—Minor civil actions
(1) The following provisions are applicable to the trial of a minor civil action:
(a) the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(b) the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c) the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d) in determining the matter, the Court may—
(i) affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A) substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e) in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
It is readily apparent that the sole power of remission arises only in the case of reviews of default or summary judgments (s 38(7)(d)(iii)(B)). Otherwise the court is required to affirm or alternatively rescind, and in the latter case ‘substitute a judgment that the Court considers appropriate’ (s 38(7)(d)(ii)). Given the above conclusions, the decision of the learned Special Magistrate given on 19 March 2012 is therefore rescinded.
What then is the appropriate course to take and what judgment should the Court consider appropriate? Since error is demonstrated it becomes necessary to hear and determine the matter afresh on the merits. For this purpose the court had available to it the transcript of proceedings in the court below, including the sworn testimony given before the Magistrate. In addition the court allowed George Leventeris, Peter Leventeris (and his wife) to make such further statements or submissions as they saw fit, without requiring them to be sworn again. Both sides essentially represented their respective positions on very much the same basis as presented to the Magistrate.
Failure to call Anastasia
The transcript of the proceedings reveals this very topic was a consideration of concern to the Magistrate. He raised the issue at the outset:[24]
Q… Now, George, your mother is not here.
ANo, we thought it would be best if she doesn’t attend due to her health. I have got a letter from a doctor. He feels that it is best that she doesn’t attend as well. I don’t know if this makes a difference or not but my mother has signed and [sic an] affidavit stating-
QIt doesn’t make any difference because I have read everything that your motor [sic mother] has signed so far as being written out for her. That is fair enough but it gives me no confidence that what she is saying in it is completely cognisant, that is the trouble.
AI just didn’t want to risk having her get sick over this matter.
QDoes she know about this action.
AOf course, yes. She has been here in the court with me and she did sign the affidavit in front of the JP. She has been here with me when we got the Form 1, the first Form 1, she was here.
[24] Transcript p 2
The affidavit referred to in this exchange was dated 9 March 2012. It was short and read:
1.On 14th August 2009, I loaned two-thousand dollars ($2,000.00) in cash to Peter Leventeris.
2.This was intended to be a loan, which would be repaid in full one year from 14th August 2009.
I take the reference to Anastasia being ‘here with me’ to be an attendance to file the papers or the affidavit, but not on the day of the hearing itself. At all events the subject lapsed until Peter Leventeris made the point ‘well, we don’t have my grandmother here to state that’.[25]
[25] T16.17
There is no reference to the question in the reasons. As the money was said to be handed over in two separate bundles of cash, $1,000 from George and $2,000 from Anastasia in the presence of both, each was a witness in their own and the other’s behalf, as to the reasons for making the advances. This constitutes a second error of law and therefore a second reason to rescind the judgment.
Assuming for the moment that Anastasia lay in the ‘camp’ of George Leventeris, the explanation given for failing to call her was effectively age, frailty, illness and ‘the stress of all these proceedings’.[26] I was told that she is 79 years of age,[27] so complaints of this nature are hardly surprising. These assertions about her personal circumstances were not on the other hand disputed by Peter Leventeris in either court.
[26] T4.3-.4, 22 May 2012, p4.3-.4
[27] T6.13, 22 May 2012
The principles identified by the High Court in Jones v Dunkel[28] include the proposition that the unexplained failure of a party to give evidence or to call a material witness may lead in appropriate circumstances to an inference that the uncalled evidence would not have assisted that party’s case. However the principle has no application where the absence of the witness is satisfactorily explained: Payne v Parker.[29] The explanation is usually established by evidence: West v GIO (NSW).[30]
[28] (1959) 101 CLR 298 at 308, 312 and 320-321
[29] [1976] 1 NSWLR 191 at 202 E
[30] (1981) 148 CLR 62 at 70-71
The explanation given here was not one that was obviously incredulous and it was supported by the evidence of George Leventeris. One can only assume the Magistrate accepted the explanation at face value, but it is surprising he did not explain so in his reasons if that were the case. However, as I have said, that she was elderly and frail was not disputed. Moreover given the nature of the close familial relationships involved, it is not difficult in the least to appreciate that a woman of her age would find the subject matter distressing and a court appearance imposing, not to mention the conflict of loyalties that was ostensibly involved.
In those circumstances although the Magistrate ought to have made findings and expressed his reasoning in respect of the application or otherwise of the Jones v Dunkel principle to the facts, nothing comes of it in the circumstances. A satisfactory explanation for failing to appear was forthcoming. In that situation his task, and now the task of this court, is to weigh ‘… all [the] evidence … according to the proof which it was in the power of one side to produce, and in the power of the other to have contradicted’: Blatch v Archer.[31]
[31] (1774) 98 ER 969
Independent review of the merits
As to the claim that there was insufficient evidence to establish loans, it remains for this court to decide matters for itself on the merits. As the Magistrate observed, and as I observed during the course of the appeal, there is no apparent reason to prefer one version over the other, on grounds of presentation or demeanour. One must therefore look to such of the objective facts and circumstances that may throw light on the probable course of events.
First it is inherently unlikely that an elderly woman would casually leave the not insignificant sum of $2,000 cash in an envelope for collection, without further formality. Second, it is difficult to appreciate that if she was so munificent, Peter Levenderis as recipient would not have visited her afterwards at all or even thanked her.
Third, the case for the plaintiffs was that Peter approached them for money in order to purchase a car. Peter told the Magistrate that he did in fact buy a utility the day before the advances were made, on 13 August 2009.[32] On this review he at first claimed he ‘never purchased the vehicle with that money’,[33] and ‘I already owned that vehicle and I can get records from the motor registration to prove that’.[34] Later when his evidence before the Magistrate was put squarely to him on this topic, he responded with a different version, namely:[35]
ANo, I said I owned that vehicle prior to when George was saying that I was asking for money to by (sic buy) the vehicle. I already owned the vehicle.
QWell why did you tell the magistrate you bought the vehicle on the 13th?
ABecause I would’ve bought that vehicle on that Thursday – Thursday or Wednesday night of that week, not on the day that George is saying that I was asking for money to buy a vehicle. I already had a vehicle at that stage.
At this point he was clearly inconsistent with what he said earlier and obviously prevaricating.
[32] T7.4-.11, 19 March 2012
[33] T3.26-.24, 22 May 2012
[34] T3.32-.33, 22 May 2012
[35] T10.1-.10, 22 May 2012
Furthermore one is left to wonder how George Leventeris esoterically knew about the purchase if he was not asked by Peter to borrow money for that very purpose? There is simply no explanation at all why George Leventeris in particular would make such a gift. The appellant’s subsequent conduct in failing to visit his grandmother and to consistently avoid approaches from George seeking repayment, is inconsistent with gifts and more consistent with loans. It suggests he was consciously avoiding repayment. The only inference that emerges from all the objective circumstances taken in combination, is that the two advances were by way of loans – the alternative view is not reasonably open. The Magistrate therefore reached the correct conclusion on the facts.
Orders
What judgment is appropriate?
The Magistrate’s reasons do not make it clear what precise judgment His Honour intended to pronounce. His ruling was ‘in those circumstances the plaintiff’s claim will be allowed’.[36] The court record reads ‘judgment for the plaintiff in the amount of $3,141.00’. The original particulars of claim dated 30 November 2011 pleaded a loan of $3,000 for one year only, $2,000 advanced by Anastasia Leventeris and $1,000 by George Leventeris. The Statement of Claim was signed by George Leventeris on behalf of both. In order to avoid doubt, and in order to substitute a judgment the court considers appropriate, judgment should be entered against Peter Leventeris in favour of George Leventeris for $1,000 plus the filing fee of $141. Judgment should be separately entered against Peter Leventeris in favour of Anastasia Leventeris in the sum of $2,000. There will be orders accordingly. There will be no order with respect to costs of this review.
[36] At [10].
0
6
1