Lorebray Pty Ltd v Liddy (No 2)

[2024] NSWSC 1020

Supreme Court

New South Wales

Medium Neutral Citation:

Lorebray Pty Ltd v Liddy (No 2) [2024] NSWSC 1020

Hearing dates:

5-6 August 2024

Decision date:

15 August 2024

Jurisdiction:

Equity - Real Property List

Before:

Peden J

Decision:

See [76]

Catchwords:

CONTRACTS — Formation — Agreement — Whether advances made by corporate trustee to first defendant a loan or gift

Cases Cited:

CBRE (V) Pty Ltd v City Pacific Ltd (in liq) [2022] NSWCA 54

Heydon v Perpetual Executors, Trustees and Agency Co (WA) Ltd (1930) 45 CLR 111

Jones v Dunkel (1959) 101 CLR 298

Ling v Pang [2023] NSWCA 112

Lorebray Pty Ltd v Liddy [2022] NSWSC 1633

Righi v Kissane Family Pty Ltd [2015] NSWCA 238

Schmierer v Taouk [2004] NSWSC 345

SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 175

Turner v Windeyer [2005] NSWCA 73

Category:

Principal judgment

Parties:

Lorebray Pty Ltd (First Plaintiff)
Peter John McNamee (Second Plaintiff)
Stephen John McNamee (Third Plaintiff)
John Christopher McNamee (Fourth Plaintiff)
Philippa Margaret Hardy (Fifth Plaintiff)
Christine Liddy (First Defendant)
William John McNamee (Second Defendant)
Sally-Jane Margaret Collignon (Third Defendant)

Representation:

Counsel:
M Condon SC and H Rogers (Plaintiffs)
G O'Mahoney and A Flick (First Defendant)

Solicitors:
Garland Hawthorn Brahe (First Plaintiff)
Swan Lawyers (Second to Fifth Plaintiffs)
Gilbert + Tobin (First Defendant)
Henry William Lawyers (Second and Third Defendants)

File Number(s):

2019/00395533

Publication restriction:

Nil

Judgment

1. This case concerns an unhappy, long-standing dispute between the McNamee siblings. They are the children of the late John McNamee Senior, who died on 17 July 2021, and Margaret McNamee, who is 99 years old. The siblings are fighting over their parents’ accumulated wealth.

2. Christine Liddy is the eldest child. Of Christine’s six younger siblings, two have sided with her, namely William McNamee and Sally Collignon. Christine’s other four siblings, Peter McNamee, Stephen McNamee, John McNamee (John Junior), and Philippa Hardy claim that Christine is liable to repay $1,250,000 to the first plaintiff, Lorebray Pty Ltd, the trustee of a family trust, the McNamee Property Trust.

3. Christine accepts she received $1,250,000 advanced to her in two instalments by another family trustee company, J & M McNamee Holdings Pty Ltd, the trustee of the Red Hill Property Trust. On 16 December 2013, $250,000 was advanced, and on 18 March 2015, $1,000,000 was advanced. The plaintiffs’ claim in relation to some other advances made to Christine in 2013 have been withdrawn on the basis that the limitation period has lapsed.

4. At the time of the payments in dispute and up until recently, both trustee companies were controlled by their parents, and there is no dispute that the payments were made at the direction of their parents. The plaintiff siblings were granted leave to continue the proceedings on behalf of Lorebray: Lorebray Pty Ltd v Liddy [2022] NSWSC 1633 at [70]; see also [45]–[47] (Henry J).

5. Christine accepts that she received the payments, but defends the claim and cross-claims on the basis that the advances were gifts. If the advances were gifts, the parties agree that the payments were made in reduction of a loan owed by Lorebray to John Senior and Margaret.

6. For the reasons that follow, I consider the advances were loans.

Relevant principles

7. The plaintiffs bear the onus of proving that the payments to Christine were made by way of loan, and not gift: Heydon v Perpetual Executors, Trustees and Agency Co (WA) Ltd (1930) 45 CLR 111 at 113 (Gavin Duffy J, Rich, Starke and Dixon JJ agreeing). Mere payment of money does not charge the payment with a particular character.

8. A loan is a contract, where the payer advances money in consideration of the recipient’s promise to repay: Schmierer v Taouk [2004] NSWSC 345 at [43] (White J, as his Honour then was). There is no need for a written agreement, or even for an express agreement. An obligation to repay may arise by implication (including by implication from past dealings between the parties). Thus, an obligation to repay is either implied into or inherent in an agreement for a “loan”: Righi v Kissane Family Pty Ltd [2015] NSWCA 238 at [41] (Emmett JA, Ward JA, as her Honour then was, and Gleeson JA agreeing). An obligation to repay may be implied where funds are provided in response to an express or implied request; implication is context-dependent: CBRE (V) Pty Ltd v City Pacific Ltd (in liq) [2022] NSWCA 54 at [32]–[36] (Leeming JA, Bell CJ and Brereton JA agreeing).

9. To some extent, the plaintiffs’ case is one of inference as to intention. In Luxton v Vines (1952) 85 CLR 352 at 358, Dixon, Fullagar and Kitto JJ stated that the process of drawing an inference requires the circumstances to give rise to a “reasonable and definite inference”, and those circumstances:

… must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ...

10. Because Christine brings a positive case in her cross-claim that the advances were gifts, it might also be said that she bears the onus of proof for her case. However, the utility in Christine’s cross-claim, in seeking a declaration of the state of affairs that the plaintiffs must overcome to be successful, is not apparent. If the plaintiffs fail, then the advances must be gifts. It may be that Christine filed her cross-claim primarily because she sought alternative declaratory relief, which is considered further below.

11. I note that in written submissions, Christine’s counsel sought to rely on the “presumption” of advancement in support of Christine’s position. However, that argument was abandoned at hearing, and so it is unnecessary to consider whether that so-called presumption applies to the present case, which does not involve a claim based on resulting trust. Instead, it is possible to determine the parties’ intentions.

John Senior and Margaret’s intentions

12. John Senior was a successful businessman and engineer. He and Margaret accumulated a large amount of wealth that was invested in various ways, including through various companies and in the Red Hill Property Trust and the McNamee Property Trust.

13. Over at least 20 years before John Senior’s death, he and Margaret caused money to be advanced to their children in various circumstances and in various sums, often in large sums of hundreds of thousands of dollars. Regularly, advances to their children were recorded as “loans” by bookkeepers who were responsible for the records and books of the “McNamee Group” including the McNamee Property Trust and Red Hill Property Trust. The bookkeepers made those records on instructions from John Senior. It is not in dispute that the parents also advanced some money to their children as gifts that were not recorded in the companies’ accounts.

14. From 2002 to 2020, Mr Gavin Hilton was the trust companies’ external accountant. He prepared various financial documentation for the family trusts. I accept his unchallenged evidence that he prepared tax returns, annual financial statements and a summary of “loans” to related parties, including their children, on the express instructions of John Senior and Margaret, and relying on the bookkeeper’s records.

15. I accept that the general ledgers of the McNamee Property Trust for the 2014 and 2015 financial years record each of the advances in question as a “Loan”; as a debit against Christine’s loan account.

16. I accept that Mr Hilton did not carry out any auditing process, and instead created the companies’ financial statements and tax returns based on instructions. While he “ordinarily” asked the internal bookkeeper or John Senior about any large payments, including the payments to Christine, he did not enquire as to the terms of any “loans” he was asked to record and he did not ask for documentary proof of any loans. Instead, he trusted the categorisation of the advances as instructed by John Senior and Margaret. Mr Hilton accepted that, had he been instructed that the advances were not loans, but instead repayments of investments, he would have prepared the financial documentation differently. The same would follow if, in truth, what was recorded as a loan amounted to the parents drawing down on the loans owed by the trustee companies to them, which they then gifted their children.

17. Further, Mr Hilton gave evidence of witnessing a disagreement between John Senior and Margaret in 2017. John Senior wanted to update their wills and Mr Hilton’s evidence is that he indicated to them:

I said that, if they were going to update their wills, they needed to deal with the loan accounts (by which I meant the loan accounts to the children). …

I recall that John and Margaret specifically discussed the payments to Christine in the course of this disagreement. Margaret stating to the effect that money to Christine was for her time of need referring to the payments in FY2014 and FY2015. Margaret said that they “gave” Christine the money because she needed it at the time. She did not use the words “gift” or “gifted”. John’s response to the effect that yes she needed it then but it needs to be recorded so all the others get the same benefit. John’s position being like most parents to treat all the children equally over time.

18. In August 2017, Mr Hilton prepared an email to another accountant concerning a meeting with John Senior and Margaret, in which the two debated in a similar way the future of the “loans” to their children:

I meet with John and Peg in early July to go through the attached family loan summary.

Peg wants to wipe all the loans clean so that no one owes any money back. John has a different view. They argued for a while and then I left them to discuss it further.

Phoned John earlier this week and he is still non-committal. So we have no clear resolution either way. He is putting his head in the sand rather than make a decision.

19. Mr Hilton was not cross-examined on this evidence. I consider Mr Hilton’s affidavit evidence about the parents’ disagreement about the treatment of the “loans” and this email compelling. It is evidence from an independent professional witness that his clients were discussing existing loans and whether they wanted them to be forgiven. I consider Mr Hilton was an honest witness and I accept his evidence.

20. Based on the above evidence of Mr Hilton, I accept that John Senior and Margaret intended the advances to be recorded as loans, whether or not they were later forgiven.

21. For completeness, I note that there was a vague attempt at discrediting the companies’ financial records in Mr Hilton’s evidence, for example, on the basis that they were not signed. Further, Christine submitted that it was only in 2019 amidst an escalating familial dispute about the family trusts that documents were created to itemise the putative loans said by the plaintiffs to be owing by Christine and her siblings. However:

1. The practice of the McNamee Group’s accountants recording “loans at call” commenced before 2002 and continued until at least 2018, as shown by the balance sheets showing the assets and liabilities of the McNamee Property Trust covering the years ending 30 June 2001 to 30 June 2018 which contain a full breakdown of “Loans At Call”.

2. Mr Hilton recorded loans to the siblings at John Senior’s instruction every year from 2002 until 2019, and with Margaret’s apparent approval from 2012 to 2018, as detailed further below.

3. Mr Hilton did not retain signed versions of financial documents, and he submitted the signed tax returns to the tax office.

4. Mr Hilton was removed as the trusts’ accountant in 2020 and no longer had access to all the companies’ records.

22. Christine also submitted that the Court should afford “very limited” weight to the companies’ financial documents because the putative loans were not recorded in the financial records of J & M McNamee Holdings, which was the entity that advanced the payments. The plaintiffs’ explanation for this was that the payments were accounted for by both Lorebray and J & M McNamee Holdings as payments made by Lorebray out of the credit balance of its loan account with J & M McNamee Holdings. Each was allocated in the management accounting system of J & M McNamee Holdings to an “Account” described as “Loan – McNamee Property Trust”, and treated by Lorebray as having reduced the indebtedness to it of J & M McNamee Holdings.

23. I accept the plaintiffs’ explanation. I do not consider anything turns on the way the advances to Christine were allocated within the trust companies’ financial records, in circumstances where they were both controlled by the parents and where Mr Hilton acted on their instructions. There is nothing surprising about family trusts being operated together and for inter-company loans to be recorded with the movement of money in accordance with the intention of those in control, with the assistance of an expert accountant. That is consistent with a management report for the year ended 30 June 2001 prepared by KPMG, which refers to “Movements in related loans” between the McNamee family companies and trusts and family members.

24. There is also other evidence that John Senior referred to various advances to his children as “loans”, even though the siblings were not privy to the way the trust companies recorded and accounted for advances to each of them.

25. Even though based on the above and the consideration of Margaret’s evidence below, I am satisfied that John Senior and Margaret intended the advances to be recorded as loans and intended them to be loans repayable when they called on them, that is only half the question. There must have been a meeting of the minds between Christine and her parents in relation to the terms upon which the particular advances were made and received.

Christine’s intentions

26. I note here that the evidence of Christine’s various siblings about the interactions they had with their parents concerning advances of money to them is largely irrelevant. Even if it could be demonstrated that John Senior and Margaret had a tendency to “loan” money to their children and require repayment, or to gift money to them, the only relevant inquiry here is whether they loaned the two advances to Christine and that she promised, whether expressly or impliedly, to repay the money.

27. In any event, the siblings did not give consistent evidence. For example, Philippa Hardy stated that she accepted money she was given by her parents was repayable, but did not give evidence that her parents informed her of the terms of any loan agreement. Further, she received other money from her parents, not referred to in her affidavit, such as $2.6 million as bridging finance, which it appears she did repay. John Junior accepted that before 2015, he received over $1.7 million from his parents, but did not give evidence as to whether that money was a loan or gift or related to an investment.

28. Peter gave evidence about what is recorded in the 2019 Lorebray loan schedule which suggested he was liable for loans of over $329,000. His evidence was that while that schedule recorded loans against his name, he considered the loan was not repayable, because his other siblings were given money, that “even[ed] up what was given to John [Junior] and [Peter] in the 90s”.

29. I consider that evidence consistent with the evidence Peter gave in 2021 in proceedings before Black J. In those proceedings, Peter initially stated that he “wasn’t sure” whether John Senior wanted him to repay the $329,000 to Lorebray. However, he subsequently corrected his evidence, asserting that he did not think the loan was repayable, since money had been advanced to his sisters to “compensate for the money that the boys [ie Peter and his brothers] had got years earlier”. He could not offer any explanation as to why the amount in question remained on the loan schedule.

30. I consider that Peter’s subjective belief of the legal characterisation of his “loan” is not relevant to the particular advances to Christine. It has not been suggested that the loan schedule records the universe of financial advances to the various siblings. However, it does record John Senior and Margaret’s understanding of the advances made to each child that were expressed to Mr Hilton as having been advanced as loans.

31. Sally was not required for cross-examination. She gave evidence that she was unaware that any of her parents’ advances to her were loans. She states that her parents told her that the girl siblings would be given similar amounts as the boy siblings to “even up” distributions between them. However, her evidence does not descend into detail about the particular advances to Christine, and therefore I do not consider her evidence assists either party.

32. However, all the siblings gave evidence that their parents were generous. Various of them spoke of their parents indicating that they wanted to treat their children “equally” and that advances would be “adjusted” at some point. None of the siblings were involved in the financial decisions of their parents, including in relation to their family trusts. It is quite possible that John Senior and Margaret considered forgiving all the loans on their deaths, and dividing their estates in some way to give effect to some “adjustment”. However, again, that is not the issue here.

33. To find that the advances to Christine are loans, it is necessary to be satisfied that she understood the money was being advanced on the basis that it would be repaid and she accepted it on that basis. Christine denies the advances were loans, and positively asserts in her cross-claim that they were gifts. To determine that issue requires an assessment of her evidence and credibility. Each advance must be considered separately.

34. The plaintiffs submitted that Christine was not candid with the Court generally and her evidence ought not be accepted for various reasons considered below. At the outset, I note that Christine’s counsel indicated to the Court before Christine gave evidence that, because of a medical condition that can cause tremors, Christine may need to take a break during cross-examination. The nature of the medical condition was not in evidence. For example, there was no evidence that her medical condition impacted her memory at all. Christine did not ask for a break during cross-examination and did not take up an offer of a break.

35. I do not accept Christine’s evidence about the advances for the following reasons.

36. First, while her affidavit asserted that she “never” received any money from her parents by way of loan, that was clearly not the case. Documents demonstrated that in 1999, her parents loaned her $15,000 from Lorebray, which was repaid with interest of $500. The documents do not reveal a formal loan agreement or specific terms, however, $15,000 was transferred to Christine at her father’s direction, and it was repaid together with $500 described as “interest”. Christine stated in cross-examination that she had no recollection of that loan, repeatedly stating “I don’t recall this at all” or “I have no memory of that”.

37. Further, in 2011, Christine received an advance of $65,000 from Lorebray at her father’s direction. At the time, Christine sent facsimiles to her father’s banker who was organising the advance, including:

We have undertaken to sell [our home] and are currently in discussion with a number of local real estate agents with the intention of appointing a principal selling agent. …

I am also pleased to confirm that the advance of $65,000 will be repaid from the settlement of the sale of the house.

38. In cross-examination, Christine could not recall any of the following:

1. Receiving that $65,000 from Lorebray.

2. Offering to pay back the $65,000, including from the property sale proceeds.

3. Speaking with various real estate agents.

4. Even considering selling her home in March 2011.

39. Again, her answer to almost every question was “I don’t recall”. There is no reason to assume that in 2011, Christine was attempting to mislead her father’s banker in indicating that she was selling her home and repaying the $65,000 advance. It tells against her credit that she claimed to have no recollection of the significant event of obtaining a valuation of her home and speaking with agents to put the property on the market only 13 years ago.

40. Secondly, in Christine’s cross-claim, her primary allegation is that the advances in question were gifts. However, within the cross-claim in three places, an alternative is pleaded, namely, that the advances were discretionary distributions from the Red Hill Property Trust. Christine accepted in cross-examination that there was no evidence that the advances were in fact distributions and that she knew that the alternative allegation in the cross-claim was “wrong”. Her evidence was that “I don’t recall ever believing that they were discretionary distributions from a trust”.

41. Christine accepted that she had given Gilbert + Tobin instructions for the preparation of the cross-claim. However, in relation to the allegation about the alleged trust distribution, her evidence was:

A: … I don’t recall that. I don’t recall telling them that that was correct …

Q: As you sit in the witness box now, do you say it’s your evidence to her Honour, speaking about the events of 2020, that you simply have no explanation as to why that allegation appears in your pleading?

A: Yes.

Q: It’s a complete mystery to you?

A: Yes. …

Q: … I want to suggest to you … that in July 2020, you were prepared to make an allegation that you knew to be untrue. Can I suggest that to you?

A: No, I didn’t do it. I didn’t, I didn’t –

Q: Can I suggest to you, you made the allegation in July 2020 with a view to try to improve your chances of defending this court case and knowing the allegation to be untrue?

A: No, I didn’t ever do that.

42. No submission was made by Christine’s counsel about this evidence, including the failure of Christine to abandon at any time that part of the cross-claim she knew was “wrong”. Again, it is difficult to accept that Christine had no knowledge of that part of the cross-claim prepared only 4 years ago, when she accepted it was prepared by solicitors on her instructions.

43. Thirdly, in relation to the 2013 and 2015 advances, Christine’s affidavit evidence differed to some extent from her evidence in cross-examination. Her affidavit evidence concerning the 2013 advance was:

[on or around the dates of the 2013 advances] I recall having conversations with my parents. Although I cannot now recall specifically what was said during those conversations, I do recall that my father said something along the lines of “we’re going to give you some money”.

At no stage during these conversations did my mother or father ever say to me that any of this money was loaned to me or that they expected me to repay some or all of this money.

44. Her affidavit evidence as to the March 2015 advance of $1 million is:

During one of these visits to my parents’ home sometime later on Sunday, 15 March 2015, I recall I was standing in between the kitchen and the dining room of my parents’ home in Middle Dural having a conversation with my mother, my father and David [her husband].

During that conversation, my father said to David: “Do you have plenty of work at the moment?” David responded “Yes, however it’s a bit tight”. …

Dad: We are going to give you some money. We have just given John a big lick of money.

Me: Dad, that is very generous of you and Mum.

Dad: I know you will use it wisely….

Neither my mother or father ever said to me that some or all of these … payments were loans or that they expected me to repay some or all of them. The language each of them repeatedly used to describe these payments was that they were unsolicited gifts instigated by my parents. My parents never requested any repayment in relation to any of these transferred amounts.

45. Because of John Senior’s death, there is no direct evidence from him about the alleged conversations. Margaret swore an affidavit that was read, but she was excused from being cross-examined because of her elderly and frail state. Her evidence does not descend into the detail of Christine’s and is considered further below.

46. Except in repeating, almost as if a mantra, that there was never a loan, in cross-examination, Christine either had forgotten everything or was not trying to assist in answering questions. Either way, I do not accept her evidence, in circumstances where there is other cogent evidence and a different reasonable explanation. Below is an example of Christine’s unconvincing evidence in cross-examination:

Q. With respect, I'm asking you about the conversations in October and December 2013.

A. I don't recall.

Q. Do you have any recollection of a single word at all said on the occasion, on those three occasions?

A. I don't have any direct, any absolute recollection, but I would have said, "Thank you."

Q. When you say to her Honour you "would have said"--

A. Yeah.

Q. --you don't have an actual recollection of saying that word, is that right?

A. Not, not, no, not an actual recollection. …

Q. With respect, I'm talking about - that's later. I'm just trying to keep your attention on the dates in October and December 2013, with respect to you.

A. I don't recall, sorry. …

Q. Let me come back a little bit. Your evidence to her Honour is you can't recall a single word that was said on those occasions, correct? Is that right?

A. On the earlier ones, no, but on the latest one, the last one, I could.

Q. The last one is the date in March--

A. Correct.

Q. --of what year?

A. 2015.

Q. Going back to the earlier ones in late 2013, if you can't recall, so you say, a single word said on that occasion, you certainly can't recall, can I suggest to you, that your dad said to you, "We're going to give you some money"?

A. But I can.

Q. Let's just - you accept you can't recall a single word said?

A. On the, on, in the last one I can recall--

Q. No, in October, December, 2013.

A. No, I can't recall.

Q. If you can't recall a single word said, you certainly can't recall the words you attribute to your dad, "We're going to give you some money." You can't recall him saying those words, can you?

A. I actually can.

Q. So your evidence to her Honour is, on each of those three occasions in October and December 2013, of all of those conversations, those are the only words you say that you can recall? Is that right?

A. I recall the words in relation to the million dollars.

Q. Apart from that, you can't recall anything else said in October and December 2013, correct?

A. I can't. …

Q. I was asking you some questions about paragraph 18. You see in paragraph 18 you refer to those three meetings [in 2013]? You say, "Although I cannot recall specifically what was said I do recall that my father said something along the lines of, 'We're going to give you some money.'" What I want to suggest to you is that if you can't recall anything that was said on those occasions you're simply making it up when you said in this affidavit, "We're going to give you some money"?

A. Well, I didn't make anything up.

47. Christine proffered no explanation in evidence or submissions as to why she gave evidence on oath in her affidavit in 2023 about conversations in 2013, where her father said “we’re going to give you some money”, but had no recollection of the words said when giving evidence a year later in 2024. I do not accept that John Senior said to Christine that “we’re going to give you some money” by way of gift. Instead, I consider Christine knew it was advanced as a loan and she accepted it on that basis, because her evidence is not reliable and credible for the reasons outlined.

48. In relation to the March 2015 advance, Christine’s evidence did not fully explain the circumstances of the alleged conversation with her parents. Her evidence was that on Sunday 15 March 2015, she was completely surprised by her parents telling her that she would receive money. While her evidence was that the $1 million she received was used to pay down her mortgage with her bank, she asserted in cross-examination that she did not recall asking her parents for financial assistance with her mortgage, nor for the particular sum of money.

49. Her evidence in cross-examination included the following:

Q. If your evidence is to be accepted, you never told your parents that your mortgage was in default, correct?

A. I can't recall.

Q. You just have no recollection one way or the other, is that right?

A. Correct.

Q. Would you say to her Honour that you might've said that?

A. I may have, but I can't recall.

Q. Was it in default at the time?

A. I don't recall.

Q. You never told, neither David nor you ever told your parents that you weren't able to pay the mortgage?

A. I may have done.

Q. At the time of this meeting?

A. I don't recall. I don't - no, not - I don't recall.

Q. You didn't ask your parents on your recollection that you needed any help, correct, with the mortgage?

A. They probably - they, they knew that I had a - we had a decent mortgage. …

Q. You certainly don't recall telling your parents in March 2015 that you and David needed help repaying the mortgage, did you?

A. I don't recall.

50. Christine’s evidence in cross-examination wavered as to whether her father mentioned the figure of $1 million during the conversation or not. She denied that she asked her parents for the specific sum of money:

Q. … I want to suggest to you that he said to you that he would lend you that money?

A. Never. He did not say that.

Q. You understood that when you got the money in the following week, that was the million dollars that had been discussed earlier with your dad, correct?

A. We didn't discuss it. I didn't ask for it.

Q. Did you ever ask him, on your version of events, why he plucked the figure of a million dollars out of the air?

A. No, I didn't ask him that. …

Q. It never crossed your mind to ask him why it was a million dollars?

A. I don't think so. Not that, not that - I don't recall.

51. However, documentary evidence demonstrated that before the Sunday 15 March 2015 meeting, John Senior had been making arrangements to obtain $1 million for Christine. Based on an email sent on 16 March 2015 to John Senior from his business banker, it appears that the two had met on Friday 13 March 2015 and John Senior had instructed his banker that “the Hardy’s” would pay $2.5 million to J & M McNamee Holdings, and from that, $1 million would be paid to Christine. It appears likely that the $2.5 million was a repayment of the bridging finance given to Philippa. It seems highly unlikely that John Senior would have taken the steps outlined in the email to obtain a specific sum of money for Christine for no reason and without her prompting and without any money being paid to any of the other 6 children.

52. Despite claiming she could not remember what was said at the 2013 meeting, and very little of what was said in 2015, and about other matters generally, Christine gave this evidence in cross-examination:

Q: You knew in March 2015 that the million dollars was put to you as a loan by your mum and dad, correct?

A: Not true.

Q: And the payments in October and December 2013 were likewise described as loans by your mum and dad, correct?

A: Not true I’m afraid.

53. Similarly, she repeated that the million dollars “was never a loan”. I do not accept that evidence. Whether Christine expressly asked for the specific sum or not, I consider she sought assistance with her mortgage on the basis that the amount her parents caused to be advanced was by way of loan.

54. John Junior gave evidence, most of which was not challenged. He saw his father nearly every business day between 1998 and 2018. His evidence was that his father told him “on multiple occasions” that Christine was having a “cash crisis” and was having difficulty paying her mortgage. His evidence was that:

My father never told me that he had decided to gift Christine $1 million to Christine. However, I recall him telling me on multiple occasions that … he had had to loan her money to help her meet her repayments.

55. John Junior was not challenged on that evidence at all, and it was not suggested in submissions that it was incorrect, or ought not be accepted. John Junior did frankly concede that some of his affidavit evidence was not completely correct, but I do not draw any adverse inference in relation to his unchallenged evidence above.

56. Therefore, I accept that John Senior told his accountant and his son, John Junior, that he had loaned money to Christine. He told his son John Junior that the purpose of a loan was to assist Christine with her mortgage. That is consistent with the fact that Christine did use the $1 million to reduce her mortgage with her mortgagee bank. I accept that Christine sought financial assistance from her parents to assist her with her mortgage in the form of a loan.

57. In Christine’s affidavit evidence, she suggested that, had her parents told her that the advances were loans, she would not have accepted the money without seeking advice from various people. However, if the money was a loan from her parents to pay down her mortgage, it would not have had the effect of “taking on more debt” as she suggested in her affidavit. Instead, she would be replacing $1 million of debt owed to the bank mortgagee with a debt to her parents, with whom she had a close relationship and who were “always willing to help each of us (ie their children)”. There was an obvious benefit in owing an unsecured debt to her parents in relation to her home, rather than a secured debt to a bank.

58. Fourthly, the plaintiffs submit that Margaret’s affidavit evidence, that prima facie supports Christine, ought to be given little or no weight in this case: see eg Turner v Windeyer [2005] NSWCA 73 at [58] (Giles JA, Bryson JA agreeing).

59. Margaret’s affidavit states that the payments in question were authorised by her and her husband “as gifts”. She does­ not give evidence about the authorisation process, the source of the funds, nor the particular conversations at the relevant times.

60. Her affidavit speaks of her “practice” to discuss undefined “material gifts” to her children with John Senior before making them. She continues:

To the best of my recollection, on each occasion money was given to Christine, my husband and I would discuss the amount Christine needed, or the amount that we wanted to gift her. In those discussions, the payments were always referred to as “gifts”. I did not have any discussion with my husband in which the payments were described as a “loan”. I never had any discussions with my husband regarding any of the money my husband and I gifted her being repaid by her at any time.

It was also my practice to discuss the gifts that were being made with Christine at the time of the payments. In those discussions, I never said to Christine that she was required to repay the gifts. My husband never said that Christine had to repay the gifts.

I did not intend or expect that Christine would, or should be required to, repay any of this money. From my discussions with my husband at the time, I believe that he had the same intention and expectation.

61. There are notable weaknesses in this evidence:

1. It was untested.

2. It is vague as to the timing of the “gifts” and the particular “needs” of Christine that were supposedly being met.

3. It is contrary to Mr Hilton’s uncontested evidence that Margaret attended meetings with John Senior from 2012 to 2018, at which the children’s loan schedules were discussed and approved by both of them. She does not explain this inconsistency. Further, the contents of the companies’ financial documentation that she approved is not referred to anywhere by Margaret.

4. Her bare denial of the 2017 dispute between her and John Senior concerning whether the loans ought to be “wiped” is unconvincing in circumstances where Mr Hilton gave evidence of the conversation he witnessed, which is consistent with his email sent shortly thereafter. It is also inconsistent with John Junior’s evidence (detailed below) of Margaret being present at a fight between Christine and John Senior about Christine’s “loans” and Christine’s assertion that Margaret wanted them cleared.

5. It is contrary to what became apparent during Christine’s cross-examination, that she did receive some money from her parents by way of loan.

62. In the circumstances, I give no weight to Margaret’s affidavit evidence.

63. Fifthly, John Junior gave evidence about a 2018 conversation that he overheard between his parents and Christine:

Christine told my father that she and our mother had discussed “the loan accounts” and that mum wanted them “written off” so there would not be any “adjustments”. My mother did not say anything. My father immediately replied that the loan accounts couldn’t be written off, because adjustments had to be made so that we would all receive equal amounts. He told Christine that adjustments had to be made and that that was why he had already loaned her “all that money”. He said that it would not be fair for the loans to her, which represented an advance on her “share” to be written off now.

Christine repeated that that was what our mother wanted. My father then asked my mother… directly whether she wanted their children to be treated equally. My mother said yes, but that she wanted to forget about everything before that day. My father responded that they couldn’t write off the loans because they had given too much to Christine and Bill, and he would never be able to make enough money to equalize the position if the loans were written off. He and Christine ended up having an argument, which resulted in my mother becoming upset and leaving the room.

64. While it was suggested to John Junior in cross-examination that the conversation did not occur and was “fabricated”, he denied that was the case, and he was not challenged further. No reason was suggested to him as to why his evidence was false. Neither was there any evidence led by Christine that contradicted John Junior’s evidence of the conversation; she did not respond to his affidavit about that conversation, despite a Court order permitting her to serve reply evidence before the hearing.

65. I find that the conversation took place as asserted by John Junior. I also consider that Christine was aware that her parents had recorded loans against her name, and that she and her mother were seeking to have them forgiven by Lorebray. While there is no evidence of the particular “loans” being discussed in that conversation, by 2017, the trustee companies had recorded the advances to Christine in 2013 and 2015 for multiple years. I consider Christine would have been aware of the large sums of money she had received from her parents, and understood they were loans, which likely motivated her to argue with her father.

66. Further, John Junior’s evidence is consistent with Mr Hilton’s evidence about John Senior and Margaret’s attitudes around that time to the issue of the loans and the potential to have them forgiven.

Other

67. There are a few other submissions made by Christine as to why I ought not find that the advances were loans.

68. I accept that the loans were informal and not in writing. I also accept that, in contrast to the 2013 and 2015 advances, the loans to Christine in 1999 and 2011 were evidenced with some documents, although not in the form of a loan agreement. I do not accept that the informality of the arrangements is fatal to the plaintiffs’ claim in circumstances where I have found that Christine was aware that the advances were being provided by way of loan. Further, no submission was made by any party that all of John Senior’s documents had been investigated in relation to Christine’s advances.

69. Christine also submitted that a finding of a loan would be erroneous because it would be necessary for further findings to be made: namely, that it was intended that the moneys advanced by J & M McNamee Holdings to Christine would reduce a separate inter-company loan owed by J & M McNamee Holdings to Lorebray, and that the moneys advanced would be repayable to Lorebray rather than J & M McNamee Holdings. As noted above, I do not consider that there is any issue with a sophisticated businessman, such as John Senior, organising the finances of his family companies and trust entities in ways he considered fit with the assistance of his accountant. The relevant contract from the perspective of the trust companies was directed by John Senior and Margaret.

67. Christine further submitted that:

…regard should be had to the history of John Snr and Margaret’s generosity over a 20 year period, the fact that the various payments or financial accommodations recorded in the general ledgers appear to rarely, if ever, have been called in.

71. While regard may be had to the parents’ generosity to their children, it cannot therefore be concluded that every advance was a gift. Instead, it is necessary to consider the particular circumstances of the two advances to Christine.

72. I note that plaintiffs seek an adverse inference under the principle established by Jones v Dunkel (1959) 101 CLR 298 because Christine failed to call her husband, David, as a witness in the case, in circumstances where he was allegedly a party to the relevant conversations in 2013 and 2015 with Christine’s parents.

73. The principles governing the drawing of a Jones v Dunkel inference were recently summarised by Stern JA (Ward P and Price AJA agreeing) in SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 175 at [158]–[165].

74. I do not consider it is appropriate to draw an inference, in circumstances where David’s evidence was likely to be corroborative or cumulative, and Christine chose not to bring him forward: see eg Ling v Pang [2023] NSWCA 112 at [28] (Kirk JA, Leeming and Mitchelmore JJA agreeing).

Conclusion and orders

75. Based on the above, I am satisfied that John Senior and Margaret intended the advances to be loans repayable at will. I am also satisfied that Christine was aware that the two advances were provided to her as loans that were to be recorded by her parents against her “loan” balance and repaid at will.

76. In the circumstances, the appropriate orders are:

1. A declaration that the amount of $250,000 advanced to the first defendant by J & M McNamee Holdings on 16 December 2013 was a loan repayable on demand.

2. A declaration that the amount of $1,000,000 advanced to the first defendant by J & M McNamee Holdings on 18 March 2015 was a loan repayable on demand.

3. Order the first defendant to pay the first plaintiff $1,250,000.

4. The Further Amended Statement of claim is otherwise dismissed.

5. Cross-claim is dismissed.

6. The first defendant pay the plaintiffs’ costs of the Further Amended Statement of Claim and the Cross-Claim as agreed or assessed.

7. Grant liberty to the parties to apply for an alternative costs order within seven days of today's date, setting out the application and any evidence and submissions of no more than 3 pages upon which they rely.

8. Should such an application be made for an alternative costs order, the responding party is to provide evidence and submissions of no more than 3 pages opposing any alternative costs order within seven days of receiving the first application.

9. The Court will determine any such alternative costs application on the papers, if appropriate.

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Decision last updated: 25 September 2024