Loureiro v Mac Aus Unit Pty Ltd (No 2)

[2022] NSWSC 226

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Loureiro v Mac Aus Unit Pty Ltd (No 2) [2022] NSWSC 226

Hearing dates:

21-24 February 2022

Date of orders:

8 March 2022

Decision date:

08 March 2022

Jurisdiction:

Common Law

Before:

Gleeson J

Decision:

(1)   Judgment for the first plaintiff against the second defendant in the sum of $2,402,069.69 comprising the principal sum of $376,200, together with interest thereon at the contractual rate of 20 per cent compounded six-monthly up until 1 March 2022 totalling $2,025,869.69.

(2) Judgment for the first plaintiff against the second defendant in the sum of $171,110.96 comprising the principal sum of $150,000, together with interest thereon from 8 February 2019 to 1 March 2022 under s 100 of the Civil Procedure Act 1995 (NSW) totalling $21,110.96.

(3) Judgment for the second plaintiff against the second defendant in the sum of $169,777.40 comprising the principal sum of $150,000, together with interest thereon from 8 April 2019 to 1 March 2022 under s 100 of the Civil Procedure Act 1995 (NSW) totalling $19,777.40.

(4)   Judgment for the third plaintiff against the second defendant in the sum of $1,639,038.29 comprising the principal sum of $260,000, together with interest at the contractual rate of 20 per cent compounded six-monthly up until 1 March 2022 totalling $1,379,038.29.

(5)   Dismiss the amended statement of claim against the first, third and fourth defendants.

(6)   Costs reserved.

(7)   Direct the plaintiffs to file and serve short written submissions on costs within seven days of this judgment, the defendants to file and serve short written submissions in response within a further seven days, and the plaintiffs to file and serve any short-written submissions in reply within a further five days, with the issue of costs to be determined on the papers.

(8)   Order that the amount of $1 million paid into court by Owen Hodge Lawyers on 16 February 2021, together with any interest thereon, be paid out of court to the first defendant.

(9)   Stay order 8 for a period of seven days from the date of this judgment.

Catchwords:

CONTRACTS – construction and interpretation - identification of parties to the agreement – use of surrounding circumstances and post-contractual conduct to identify parties – whether the first and third defendants were borrowers under the loan agreements

EQUITY – unconscionable conduct – whether receipt of monies was unconscionable – whether constructive trust arising from collapse of joint endeavour or from knowledge of source of monies

LIMITATION OF ACTIONS – debt – extension of limitation period by confirmation – acknowledgement in declaration – whether confirmation made by second defendant as agent for first and third defendants

Legislation Cited:

Civil Procedure Act 1995 (NSW), s 100

Cheques Act 1986 (Cth), s 76

Land Tax Management Act 1956 (NSW), s 3A

Limitation Act 1969 (NSW), ss 11, 14, 54

Uniform Civil Procedure Rules 2005 (NSW), rr 14.4(1), 42.1

Cases Cited:

Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429

Barnes v Addy (1874) LR 9 Ch App 244

Barroora Pty Ltd v Provincial Insurance (Aust) Ltd (1992) 26 NSWLR 170

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59

Currabubula & Paola v State Bank of NSW; Currabubula v State Bank of NSW [2000] NSWSC 232

Earl of Chesterman v Jansen (1751) 2 Ves Sen 125; 28 ER 682

Hashman v Australian Medico-Legal Group Pty Ltd; Claire Lee Mosman Pty Ltd v Australian Medico-Legal Group Pty Ltd [2016] NSWSC 1773

Johnson v Brightstars Holdings Company Pty Ltd [2014] NSWCA 150

Muschinski v Dodds (1985) 160 CLR 583

Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1

Nohra v Nando’s Quality Meats Pty Ltd [2021] NSWSC 1209

Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co (1985) 4 ANZ Insurance Cases 60-843

Rasch Nominees Pty Ltd v Bartholomaeus (No 3) [2013] SASC 14

Rogers v Kabriel (No 2) [1999] NSWSC 474

Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65

Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; [1981] HCA 71

Young v Queensland Trustees Ltd (1959) 99 CLR 560; [1959] HCA 51

Category:

Principal judgment

Parties:

Carlos Jose Luis Loureiro (First plaintiff)
Claudio Josue Leal Meireles (Second plaintiff)
Jose Carlos Reis Meireles (Third plaintiff)
Mac Aus Unit Pty Ltd (First defendant)
Antonio Manuel De Carvalho Conceicao (Second defendant)
Patricia Do Rosario Conceicao (Third defendant)
David Do Rosario Conceicao (Fourth defendant)

Representation:

Counsel:
A C Canceri / E Bartley (Plaintiffs)
M J Stevens (Defendants)

Solicitors:
Jeresyn Legal (Plaintiffs)
Somerset Ryckmans (Defendants)

File Number(s):

2020/135763

Judgment

1. GLEESON J: These proceedings concern claims by the plaintiffs to recover loans alleged to have been made to the first, second and third defendants in 2010 to 2013, 2016 and 2017. In addition, there is a claim by the first and second plaintiffs for equitable relief against the fourth defendant arising from alleged contributions in 2017 to the improvement or retention of properties held by the fourth defendant.

2. Following several concessions by counsel for the defendants in closing submissions, the plaintiffs did not press their alternative claims for equitable relief against the first defendant in respect of the proceeds of sale of a property at 6 Livingstone Road, Petersham, or the alternative claim by the first and third plaintiffs against the second defendant for liquidated damages under s 76 of the Cheques Act 1986 (Cth) arising from the dishonour of several post-dated cheques drawn in 2019 and 2020.

3. The concessions by the defendants were that (a) the second defendant was the borrower in respect of all the loans (except for an alleged loan of $50,000 in cash made by the second plaintiff in May 2017), (b) interest was payable on the 2010-2013 and 2016 loans at the rate of 20 per cent compounded every six months, and (c) the second defendant did not press his defence that the 2010-2013 loans were statute barred.

The Issues

4. At the close of final submissions, the issues for determination were refined as follows:

1. the parties to the loan agreements: relevantly, in addition to the second defendant, are the first and third defendants’ borrowers under the loan agreements?

2. the first and third defendant’s defence under the Limitation Act 1969 (NSW): if yes to (1) above, are the claims against the first and third defendants for loans made in 2010-2013 statute barred?

3. the claim by the second plaintiff: did the loans by the second plaintiff in 2017 include a loan in cash of $50,000?

4. interest on the 2017 loans: are the first and second plaintiffs entitled to interest on their 2017 loans calculated at the rate of 20 per cent compounded six-monthly, or limited to interest calculated under s 100 of the Civil Procedure Act 1995 (NSW)?

5. the claim for equitable relief against the fourth defendant: are the first and second plaintiffs entitled to an equitable charge over 9 Chester Street and/or an equitable lien over the proceeds of sale of 11 Chester Street to secure their respective contributions of $25,000 and $10,000 plus interest towards the improvement or retention of the Chester Street properties?

The parties, the principal witnesses, and their relationships

5. Each of the plaintiffs and the individual defendants is of Portuguese background. Given the similarity of names it is convenient to refer to them by their first names.

6. The first plaintiff, Carlos Jose Luis Loureiro (Carlos) claims a total of $526,200 plus interest at the rate of 20 per cent compounded six monthly in respect of three tranches of loans made between 2010 – 2013 and 2016 and three further loans made between January and March 2017. The second plaintiff, Claudio Jose Leal Meireles (Claudio), claims a total of $150,000 in respect of three loans made in April and May 2017. The third plaintiff, Jose Carlos Reis Meireles (Jose), claims a total of $260,000 plus interest at the rate of 20 per cent compounded six monthly in respect of three loans made in 2011, and a loan of $60,000 in cash between 2014-2016.

7. Each plaintiff gave evidence in their case, as did Jose’s wife, Maria Isabel De Jesus Leal (Maria Isabel), and Carlos Xavier Meireles (Carlos Xavier), the son of Jose and Maria Isabel.

8. The first defendant, Mac Aus Unit Pty Ltd (Mac Aus), was incorporated on 28 January 2010. The second defendant Antonio Conceicao (Antonio) and the third defendant Patricia Conceicao (Patricia), the wife of Antonio, each held one share in that company and were the directors of Mac Aus until 10 August 2020. Antonio and Patricia did not give evidence.

9. The fourth defendant David Conceicao (David) is the son of Antonio and Patricia. He was a director and secretary of Mac Aus from 10 August 2020 until 19 May 2021. Antonio transferred his one share in MacAus to David on 10 August 2020. David gave evidence that Antonio always held his one share in Mac Aus on trust for him. However, the declaration of trust which Antonio signed dated 28 January 2010 (Ex G) was backdated by at least nine years. Instructions to prepare a declaration of trust were first given by Mr Desmond Lee of Baker & Company, the accountant for Mac Aus and the Conceicao family, to Mr Brendon Lee on 15 April 2019; he was instructed to prepare trust deeds for Antonio’s share to be held on trust for David from 28 January 2010 and for Patricia’s share to be held on trust for her daughter, Sandra Do Rosario Chan, also from 28 January 2010. I do not accept that the shares in Mac Aus held by Antonio and Patricia were held on trust from 28 January 2010 for David and Sandra respectively. Nor do I accept that the Request for Correction Form 492 dated 7 May 2020 signed by Antonio and lodged with ASIC on 8 May 2020 is accurate in stating that the two ordinary shares issued to Antonio and Patricia are “non-beneficially held shares”.

10. Jose first met Antonio in 2008. Antonio was a broker involved in property investments. Jose and Maria Isabel became friends and socialised with Antonio and Patricia. Jose introduced Antonio to Carlos. Between 2008 and 2010, Carlos and Jose both made personal loans to Antonio. After some delay, by April 2010, Antonio had repaid to Jose a total of $110,241.48 and had repaid to Carlos $245,000, although some interest owing to Jose remained unpaid.

11. The plaintiffs say that the loans made in 2010-2013, 2016 and 2017 were made for the purpose of enabling the first, second and third defendants to acquire and develop a warehouse property at 6 Livingstone Road, Petersham, and later, the adjacent properties at 9 and 11 Chester Street, Petersham.

12. The Livingstone Road property was put up for auction at least once in 2010 but did not sell. Antonio initiated negotiations with the owner. Mac Aus entered a contract for sale dated 4 March 2010 for $909,091, which was completed on 2 September 2010. There is evidence in the form of the purchaser’s solicitor post-completion advice that $926,929.70 was paid on settlement of the sale, funded as to $705,071.77 by a mortgage from National Australia Bank (NAB) dated 2 September 2010 (incorrectly referred to in the solicitor’s letter as the Commonwealth Bank (CBA)). There is no direct evidence of the source of the balance of those funds ($221,857.93). Since the claim for equitable relief is not pressed, it is not necessary to refer to the history of subsequent mortgages over the Livingstone Road property which was sold on 3 March 2020 for $4,050,000. The sale completed on 20 April 2020.

13. On 16 February 2021, an amount of $1 million from the proceeds of sale held by Owen Hodge Lawyers, the solicitors acting for Mac Aus on the conveyance, was paid into Court following consent orders made on 8 February 2021.

14. David spent much of his professional life working in Canberra or overseas. Prior to November 2011, he was based in Sydney with periodic rotations overseas. From December 2011 until September 2014, he worked in Canberra as an officer of the Australian Security and Intelligence Organisation (ASIO). From September 2014 until April 2019, he worked in Canberra, Sydney and overseas as a public servant, including as Director of National Intelligence, Home Affairs Department.

15. David purchased 9 Chester Street in September 2013; he said he did so as a place to live in when he returned to Sydney. He purchased 11 Chester Street in March 2015; he said this was an investment property. The contract for sale in respect of 9 Chester Street dated 4 September 2013 for $925,000 was completed on 3 March 2014. The contract for sale in respect of 11 Chester Street dated 30 March 2015 for $925,000 was completed on 11 May 2015. David sold 11 Chester Street on 30 April 2021 for $1,415,000.

16. Following completion of the purchase of 9 Chester Street in March 2014, Mr Desmond Lee, the accountant for the Conceicao family, gave instructions by to Cambridge Law by email on 19 June 2014 to prepare a trust deed for this property to be held by David on behalf of his parents, noting that the funds to purchase the property was from the parents. That was a reference, at least, to the amount of about $120,858.88 provided by the Conceicao Family Trust towards the purchase price (CB 3/1265). David denied having seen this 19 June email prior to these proceedings (T170). He also gave evidence that he believed there to be no trust over the property (T171). There are documents sent by or on behalf of Antonio which refer to 9 Chester Street being held on behalf of the Conceicao Family Trust. Whilst I have significant reservations in relation to David’s evidence generally, it is not necessary to decide who is the beneficial owner of this property.

17. David gave evidence that whilst he asked Mr Lee to create a trust in favour of his parents for 11 Chester Street “a while ago”, he “believe[ed] that no trust was done” (T171, 177). When confronted in cross-examination with a deed of variation of the Conceicao Family Trust dated 10 March 2015 signed by David as trustee and Patricia as appointor (Ex K), David accepted that sometime after 13 December 2017 he signed this deed of variation which was backdated to 10 March 2015 (T178). The deed included recitals that “the Trustee is desirous of purchasing 11 Chester Street and proposes to amend the deed of trust to ensure that the Conceicao Family Trust is a fixed trust, as defined in s 3A of the Land Tax Management Act 1956”. Instructions for the preparation of this deed were first given by Mr Desmond Lee to Mr Brendon Lee by email dated 13 December 2017 (Exhibit K). That email directed that the date of change “is 10^th of March 2015”. The deed of variation deleted (item 2) General Beneficiaries of the Schedule to the deed of trust and substituted as beneficiaries the “Principal Beneficiaries”, identified as Antonio and Patricia, being initial unitholders of equal units in the trust. The register of unitholders of the Conceicao Family Trust records Antonio and Patricia each holding one unit issued on 10 March 2015.

18. David gave evidence that he believed the deed of variation was “invalid” and as a result that there is no trust over the property (T177). Whilst it is not necessary to decide the validity of the deed of variation, I do not accept that David honestly held the belief that there was no trust over this property.

19. First, I find that David was not a reliable or credible witness. He acknowledged in his evidence that he signed several backdated documents and in doing so he falsely represented the dates on which those documents were signed and the date on which meetings were held.

20. Second, in recognition that the profit on the sale of 11 Chester Street would flow to Antonio and Patricia as the fixed beneficiaries of the Conceicao Family Trust, David gave instructions to Mr Desmond Lee in May 2021 that he wanted the profit from 11 Chester Street. File notes by Mr Lee of telephone conversations with David record that:

• on 12 May 2021 David told Mr Lee that he had sold Chester Street and wanted the profit on sale made by the Conceicao Family Trust to go to himself. Mr Lee advised that this could not be done as David was the trustee, however, the trust could make a distribution to other family members. David said that he wanted the profit to go to himself and asked if “Mr Lee could work out a solution”. Mr Lee undertook to look into the matter to see what could be done; and

• on 16 May 2021 David spoke to Mr Lee concerning his request for a “solution”. Mr Lee advised that a possible solution was to form a new trust controlled by David of which he was a beneficiary, the trustee would be one of David’s companies, the new trust would be nominated as a beneficiary of the Conceicao Family Trust and distribute the profits to his new trust. David instructed Mr Lee to go ahead and organise this. Mr Lee responded that he would obtain costs for drafting the documents and let him know before starting and that “he would need to have his parents agree to the change”.

21. David agreed in cross-examination that Mr Lee’s file notes were accurate (T179-183). I find that David had conversations with Mr Lee in the terms recorded in those file notes.

22. Mr Lee prepared a suite of documents that were executed in June 2021, but backdated to 20 April 2021, which purported to (a) (again) appoint David in place of Antonio as trustee of the Conceicao Family Trust on 10 March 2015, (b) establish the Basset Trust by deed dated 20 April 2021 between Patricia as settlor and Basset Consulting Pty Ltd as trustee, the general beneficiaries of the Basset Trust being David and persons related to him, including his spouse and children, (c) record the minutes of meeting between David and Patricia held on 20 April 2021 resolving that David, acting as director of Basset Consulting Pty Ltd, accepted the appointment as trustee of the Basset Trust on the terms and conditions tabled at that meeting and to execute the deed of settlement, and (d) add Basset Consulting Pty Ltd as trustee of the Basset Trust as an additional beneficiary of the Conceicao Family Trust.

23. As to (a) above, the deed of appointment and removal of trustee and appointor dated 10 March 2015 (Ex L) was in the same terms as another deed of appointment and removal of trustee dated 10 March 2015 signed by David (Ex L), except for, relevantly, the addition of the words “and appointor” in the description of the deed, the description of Antonio and Patricia as the “retiring trustees”, rather than “retiring trustee”, and the execution page where each of David, Patricia and Antonio have signed the deed in the presence of Ms Elizabeth Golland as the witness (Ms Golland was David’s partner), whereas the witness to all the signatures on the other 15 March 2010 deed was Mr John-Paul McElwee.

24. David accepted that the documents executed in June 2021 were backdated and that he falsely represented the dates on which those documents were signed by himself, Antonio and Patricia. I reject David’s feeble attempt in cross-examination to blame the accountant for this having occurred. It was David who demanded a “solution” from the accountant to obtain the profit on the sale of 11 Chester Street, and he understood that the solution proposed by the accountant involved signing backdated documents.

25. As the documents executed in June 2021 included documents signed by Antonio and Patricia in various capacities connected with the Conceicao Family Trust, I infer that Antonio and Patricia agreed to the “solution” proposed by the accountant to facilitate the distribution of the profit on the sale of 11 Chester Street to David. This was a brazen attempt by Antonio and Patricia, together with David, to delay or defeat claims of creditors of Antonio and Patricia. It is unnecessary for present purposes to address whether this scheme or “solution” was effective.

Reliability and credibility of witnesses

26. I accept that each of the plaintiffs and Maria Isabel and Carlos Xavier were honest and credible witnesses. Although their recollection of the timing of some events which occurred many years ago was, in some respects imprecise or inaccurate, overall, I accept their evidence of their conversations with Antonio, Patricia and David as generally reliable.

27. There was conflicting evidence as to whether Jose, Maria Isabel and Claudio met David before the litigation commenced in May 2020. This evidence was relevant to the credit of those witnesses and David. I accept the evidence of Jose, Maria Isabel and Claudio that they each met David before this litigation. I reject David’s evidence to the contrary. His evidence was unpersuasive, and I formed an adverse view as to his credit and reliability as a witness.

28. Jose first met David during the period of his early contact with Antonio commencing in 2008, when he was taken by Antonio to view a block of apartments at 39 New Canterbury Road, Petersham which Antonio had developed and where David lived at the time. On this occasion, Jose heard David say to Antonio “Dad, I’m cleaning up some invoices that should not be here for the accountant. We can go and have a coffee another day”. I infer from this statement that the encounter was relatively brief. I reject David’s denial of meeting Carlos at this property.

29. Jose and Maria Isabel both gave evidence of meeting David and Antonio on another occasion at a pastry shop. Jose noticed that both David and Antonio had some kind of skin condition. Maria Isabel gave evidence that after introducing David as a Federal Police officer, Antonio introduced Jose and Maria Isabel to David as the persons who Antonio and Patricia had been talking to about the urbanisation project, and that without their help and investment, “we would not be able to buy the warehouse and the two houses on Chester Street”. I infer that this conversation occurred after May 2015, given the purchase of the second property at Chester Street settled in May 2015. David denied having such a conversation with Maria Isabel and denied having ever met her or being introduced to her by his father. Again, I reject David’s evidence and I prefer the evidence of the Carlos and Maria Isabel.

30. There was also conflicting evidence as to whether Antonio told each of Carlos, Jose, Maria Isabel and Claudio that David was a Federal Police officer. This was relevant to an attack by the defendants’ counsel on the credit of those witnesses. Carlos gave evidence that this occurred during a conversation at the end of 2010, when Antonio first discussed the purchase of Livingstone Road with Carlos (T111-112). Jose gave evidence that this occurred in 2010 when Antonio was describing the proposed purchase of the warehouse at Livingstone Road. Claudio gave evidence that this occurred in about 2011; he was adamant in examination that “those were his exact words” (T121). Claudio also gave evidence that he had a number of conversations with Antonio from about 2015 in which Antonio said, “Don’t worry, you’re all protected. My son is a police officer, my daughter’s a lawyer, you’re all silent partners as he is”. As mentioned, Maria Isabel gave evidence that Antonio introduced David as a Federal Police officer. She was not cross-examined. Jose and Claudio were challenged in cross-examination that Antonio never referred to David in this way. I reject the challenge to their evidence. It is both natural and probable that Antonio referred to David as an Australian Federal Police officer, rather than disclose his actual occupation as an ASIO officer, since David had told his father not to mention his position to anyone. In view of the failure of Antonio to give evidence, an inference can be more readily drawn that Jose and Claudio’s evidence on this issue should be accepted.

31. David’s evidence was problematic. He was challenged in cross-examination on several topics. One was his assertion that Antonio’s one share in Mac Aus was held on trust for him from 28 January 2010. Another was whether he acquired the Chester Street properties on trust for his parents or the Conceicao Family Trust, and his knowledge of the proposed development of the Livingstone Road, Chester Street, and adjacent carpark site. Yet another was his falsely representing the date of several documents which had been signed that had been plainly backed.

32. I do not accept David’s evidence that he believed Antonio held his one share in Mac Aus on trust for him, that he did not understand that the Chester Street properties were intended by Antonio to be part of a consolidated development, or that he believed that he retained a discretion not to include the Chester Street properties in the proposed development by Antonio.

33. I find that David knowingly participated in the backdating of documents in December 2017 and again in June 2021, and thereby falsely represented the dates on which he signed those documents and that dates on which transactions occurred. Overall, I do not accept David’s evidence unless it is against interest, or is corroborated by contemporaneous documents.

Issue 1: parties to the Loan agreements

Legal principles: identification of parties to a contract

34. It is necessary first to say something about the proper approach to the identification of the parties to a contract, including the permissible scope of evidence of post contractual conduct relevant to that issue. I draw upon what I said in Nohra v Nando’s Quality Meats Pty Ltd [2021] NSWSC 1209 and the principles stated by the Court of Appeal in Johnson v Brightstars Holdings Company Pty Ltd [2014] NSWCA 150 and Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1.

35. The answer to the question “who are the parties to the contract?” involves the construction of the contract: Barroora Pty Ltd v Provincial Insurance (Aust) Ltd (1992) 26 NSWLR 170 at 174 (Brownie J), citing Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co (1985) 4 ANZ Insurance Cases 60-843 at 74,055-74,056. Identification of the parties to the contract must be made in accordance with the objective theory of contract: Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 at [262]-[266] (Campbell JA).

36. As Allsop P and Handley AJA said in Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299; [2009] NSWCA 429 at [28]:

The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract. This is, to a point, a process of construction similar to the task of identifying whether a clearly contractual document (such as a bill of lading) is made with one party or another (such as a shipowner or time charterer): Homburg Houtimport BV v Agrosin Private (at 770) … Where the documents are silent or ambiguous, but there is undoubtedly a contract, the identity of the parties must be determined objectively from the surrounding circumstances: see Barroora Pty Ltd v Provincial Insurance Ltd (1992) 26 NSWLR 170 at 174; Protean (Holdings) Ltd (receivers and managers appointed) v American Home Assurance Co (1985) 4 ANZ Insurance Cases 60-683 at 74,055–74,056; Coulls v Bagot’s Executor and Trustee Company Ltd (1967) 119 CLR 460 at 477, 478-479 and 486.

37. The plaintiffs’ have the legal onus of proving that Mac Aus and Patricia were also parties to each of the loans made by the plaintiffs.

38. The relevance of post-contractual conduct to identifying the parties to a contract needs to be considered in light of the authorities as to the admissibility and probative value of admissions about matters of law, or of mixed fact and law. Sackville AJA summarised the position in Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd at [66]-[69]:

[66]   There is no doubt that if a party to an alleged contract makes an assertion against his or her own interests, that assertion may be admissible insofar as it relates to facts in dispute: Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 at [121] (Basten JA, Gleeson JA agreeing). There has been more controversy as to whether an “admission” that involves a conclusion as to a legal standard is admissible and, in a proper case, entitled to considerable weight. Robertson submitted that the primary Judge was justified in according significance to Dr Martin’s admissions.

[67]   In Pitcher v Langford (1991) 23 NSWLR 142, Handley JA (at 160) followed the view expressed by Mahoney JA in Grey v Australian Motorists & General Insurance Co [1976] 1 NSWLR 669 at 684, that an admission may provide material from which a court may reach conclusions on a question of law, a question of fact, or a question involving a mixture of fact and law. Handley JA preferred Mahoney JA’s approach over that of Glass JA in the same case (at 676) that as a matter of principle “a party cannot be asked to admit a conclusion depending upon a legal standard”. However, Glass JA’s approach was followed by Lockhart and Gummow JJ in Eastern Express Pty Limited v General Newspapers Pty Limited (1992) 35 FCR 43 at 68.

[68]   In Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317, a case not referred to in Robertson’s submissions, Gummow J said (at [68]-[69]) that Mahoney JA’s observation in Grey was stated too broadly and that a distinction should be drawn between different categories of admissions. He accepted that a party can make admissions on the pleadings and can also admit facts from which conclusions can be drawn. But he considered (at [70]) that the position is different where the admission includes a conclusion which depends on the application of a legal standard. Gummow J quoted (at [70]-[71]) with approval the comments of Glass JA in Grey and the views expressed by Lockhart and Gummow JJ in Eastern Express.

[69]   As Campbell JA noted in Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [131], Gummow J’s statement of the law had the support of the majority in Dovuro: see at [25] (Gleeson CJ); [40] (McHugh J); [177] (Heydon J). The present position therefore seems to be as stated by Basten JA in Johnston v Brightstars at [121], [124]:

[121]   … where [the admission] provides evidence of facts, the assertion of which is against the interests of one party, it may be admissible as an admission by that party. However, to the extent that the evidence reveals an opinion as to a question of law rather than fact, the admission may be irrelevant or valueless.

…

[124]   … With respect to an alleged agreement not wholly reduced to writing, the post-agreement conduct of one party known to the other, and communications between the parties, which reveal a common assumption as to the existence and terms of an agreement may provide evidence of such an agreement. However, the subjective views or reservations of one party, undisclosed to the other, cannot provide a basis for inferring the terms of a pre-existing agreement.

Claim by Carlos

39. Between 2010-2013 and in 2016 and 2017, Carlos made ten loans at the request of Antonio in varying amounts at different times. It is convenient to refer to these loans as loans 1 to 10. In his evidence, Carlos described the loans in 2010-2013 and 2016 as comprising three tranches, albeit not all in chronological order. The ten loans are summarised in the following table:

Tranche No.	Loan	Loan Date	Principal Loan Amount ($)	Recipient Account
1	1	14/05/2010	100,000	Joint account – Antonio and Patricia
1	2	28/05/2013	26,900	Joint account – Antonio and Patricia
1	3	2310/2013	35,000	Joint account – Antonio and Patricia
2	4	5/07/2010, 9/07/2010, 19/07/2010	50,000 (paid in 3 amounts of $25,000, $15,000 and $10,000)	Not available
2	5	25/11/2011 and 9/01/2012	44,300 (paid in 2 amounts of $30,000 and $14,300)	Joint account – Antonio and Patricia
2	6	12/08/2016	50,000	Joint account – Antonio and Patricia
3	7	17/02/2012	50,000	Joint account – Antonio and Patricia
3	8	26/03/2012	20,000	Joint account – Antonio and Patricia
3	9	12/04/2012	50,000	Joint account – Antonio and Patricia
Further loan	10	Jan – March 2017 (31/01/17, 1/02/2017 and 10/03/17)	150,000 (paid in 3 amounts of $50,000)	Joint account – Antonio and Patricia
Total	576,200

40. At the time of making each of the loans, Antonio provided Carlos with a post-dated cheque together with a declaration made by Antonio confirming the money owed by Antonio to Carlos. When the time came for the cheques to be banked by Carlos, Antonio told him that he could not pay back right now and requested an extension. Carlos agreed and Antonio signed further post-dated cheques and declarations. Carlos gave evidence that Antonio said that “You’ll get a lot of money at the end. You just need to wait a little longer. We are partners so we need to continue this, we need to finish”.

41. The circumstances in which the loans were made by Carlos are as follows.

Loans in 2010-2013 and 2016

42. In 2010, Antonio contacted Carlos by telephone seeking funding of $100,000 from Carlos “so I can buy a property in Petersham to develop”. Carlos responded that he wanted to know more about the development before loaning more money again. Carlos gave evidence that this conversation occurred in about April or May 2010. Given that Carlos observed the auction while driving past the site, it is likely that the conversation occurred earlier in 2010 than April/May 2010.

43. They met about a week later. Antonio outlined his proposal to purchase a warehouse in Petersham at 6 Livingstone Road. He said that the site had great potential and he could build several apartments and shops, that the property was going to auction, he was having discussions with the owner and the asking price was around $1.1 million. Antonio said that he owned 112 New Canterbury Road, Petersham and planned to link it to 6 Livingstone Road. Antonio also told Carlos that he had created a company called Mac Aus for the purpose of acquiring this property and that the name was a short name for Macau, where Antonio had grown and Australia where he now lived. Antonio said:

The company will buy the property and develop it.

44. Carlos responded that he was not sure; Antonio offered an apartment at market value in addition; Carlos said he would think about it.

45. Antonio and Carlos met again a few days later. Antonio showed Carlos two maps and outlined his plan to develop properties at 6 Livingstone Road and 112 New Canterbury Road. Antonio said he was talking directly with the owner who wanted about $1.1 million. He said was going to build the site himself with the help and advice of Carlos “if you can”. Carlos responded that he was prepared to get into this deal, but with conditions; specifically, that if the purchase did not go ahead, he wanted his money back and regardless, he wanted interest at 10 per cent every six months. Antonio responded that normally credit card interest is about 20 per cent. Carlos said, “Well it’s up to you. Take it or leave it.”.

46. There was at least one more meeting between Carlos and Antonio before Carlos agreed to Antonio’s request for funding. The date and amount of the loans made by Carlos are set out at [38] above.

47. Carlos’ recollection is that in the first half of 2011, Antonio told him, “I bought the warehouse for around $1,100,000”. It is likely that this conversation occurred shortly after September 2010. As indicated, the purchase price was in fact $909,091. Carlos gave evidence that Antonio told him of two expansions on the proposed development. One was the proposed purchase of the Council carpark located at 1-7 Chester Street. The other was the purchase of the properties at 9 and 11 Chester Street. Antonio told Carlos that each of the expansions would require some more funding. In relation to the purchase of the Chester Street properties, there was a conversation as follows:

Antonio:   The plan is to make one big allotment, consolidating the warehouse, the carpark and these two houses. I need funding for this. I need help from a financial point of view to achieve this.

Carlos:   Okay, sounds good. We will discuss as the plan progresses.

48. In a subsequent conversation, Antonio told Carlos that he would need millions of dollars to achieve the creation of one development site and requested Carlos provide more funding to assist with this.

49. On about 8 December 2011, Antonio gave Carlos a draft of his proposal to Marrickville Council to purchase the carpark site.

50. In 2013, Marrickville Council issued an expression of interest for the sale of the Council carpark. Around this time, Carlos had various meetings with Antonio, some of which also included Patricia at their home at Stanmore, during which Antonio showed him draft plans for the proposed development over three sites.

51. On or about 30 August 2013, Marrickville Council invited expressions of interest for the Council carpark site at 5-7 Chester Street. Mac Aus submitted an expression of interest on or about 18 September 2013, which Jose first saw after it was submitted to Council. The proposal put forward was that in exchange for ownership of the carpark site, Mac Aus would provide in perpetuity the ground level carpark for 35-40 vehicles, which was twice the number available in the current carpark. Council did not accept the proposal.

52. Sometime during 2015, Carlos found out that the Chester Street properties had been purchased in David’s name and asked Antonio, “Why did you buy in his name and not under the company?”, to which Antonio responded:

My son is a good person, and this will avoid the need to pay some tax. This will be good for you and me as well.

53. On 8 January 2016, Marrickville Council issued a notice of determination of a development application to Nino Urban Planning Development in relation to proposed alterations and additions to the warehouse at 6 Livingstone Road to convert the premises into a mixed-use development containing two ground floor commercial tenancies and 18 dwellings on the upper floors.

54. During 2016, Marrickville Council was amalgamated into the Inner West Council. In 2017, the Inner West Council indicated that they would put the Council carpark site up for sale again.

55. In 2019, Mac Aus and David lodged an expression of interest to acquire the council carpark site and consolidate their property with 9-11 Chester Street.

56. Turning to the specific loans by Carlos. The first loan on 13 May 2010 in an amount of $100,000 was by cheque drawn on Carlos’ Direct Investment Account (3827) with the CBA, which was deposited into the joint account of Antonio and Patricia with the NAB Gold Banking Choice Account (7942) on 14 May 2010 (loan 1). Carlos said in his affidavit that he advanced this amount “to Antonio”. At the time of making this loan, Antonio provided Carlos with a post-dated cheque for $110,000 dated 13 November 2010 and made a declaration dated 13 May 2010, witnessed by Jose, as follows:

Declaration

I, ANTONIO CONCEICAO, declare that the bank cheque number 001127 from THE CONCEICAO FAMILY TRUST, ANZ Bank, Dated 13/11/10, amount of $110,000, is for money I have borrowed from Carlos Loureiro to be paid back on the 13/11/10 to Carlos Loureiro using the above mentioned cheque. (Handwriting in original italicised) (CB 178)

57. The next loan by Carlos (loan 4) comprised three amounts advanced in July 2010 totalling $50,000 ($25,000, $15,000 and $10,000 on 5, 9 and 19 July 2010) by cheques drawn on Carlos’ CBA account (3827)). Carlos again said that he advanced this money “to Antonio”. Although there are no bank account statements confirming receipt of these amounts by Antonio or the other defendants, on 16 July 2010 Antonio gave Carlos a cheque dated 15 July 2010 for $55,000 and made a declaration in similar terms to that referred to above stating that the cheque in the amount of $55,000 “is for money I have borrowed from Carlos Loureiro to be paid back on 8 January 2011 to Carlos Loureiro using the above mentioned cheque”. (CB 178) I accept the testimonial evidence of Carlos that three cheques in the identified amounts were drawn on the dates in July 2010 and provided by Carlos to Antonio at his request.

57. On the date of each of the other loans made by Carlos in 2010-2013 and 2016, being loans 2, 3 and 5-9, Antonio gave Carlos a post-dated cheque for the amount of the loan plus interest at 20 per cent compounded six-monthly and made a declaration in similar terms to those referred to above acknowledging that the cheque was for money Antonio had borrowed from Carlos to be paid back on the specified future date to Carlos using the post-dated cheque. It is not necessary to refer to the detail of each of the declarations.

Further loans by Carlos in 2017

59. In late 2016, Carlos and Jose attended a meeting with Antonio who told them that the negotiations with Inner West Council were going well, but he needed more money to acquire the carpark and sought their help. Antonio proposed that each of Carlos and Jose would lend $150,000 and in return they would both get a 2-bedroom apartment at a market value of about $800,000. Carlos responded that he would prefer the money to an apartment.

60. In about February 2017, Carlos and Jose had a meeting with Antonio and Patricia at their home at Stanmore to discuss the proposal. Carlos offered a different proposal in the following terms:

Instead of an apartment, we will accept $800,000 cash being paid to each of us on the condition that the development application is approved for the 3 sites.

But if the development application is not approved, Antonio and Patricia will repay us the initial amount of $150,000 to each of us with interest. (Emphasis added)

61. Carlos loaned the sum of $150,000 in three tranches by cheques drawn on his CBA account in favour of Antonio: $50,000 on 25 January 2017, $50,000 on 1 February 2017, and $50,000 on 10 March 2017. Each cheque was deposited into the joint account of Antonio and Patricia with St George Bank.

62. At a meeting on 8 February 2017, Antonio made a declaration in the presence of Carlos and Jose, incorrectly dated “8.2.2019”, that a post-dated cheque dated 8 April 2019 in the amount of $800,000 drawn in favour of Carlos Loureiro:

… is for money I have borrowed from Carlos Lourerio to be paid back on 8/2/2019 or after the date of the approval (no more than six months) of a DA (development application) by the Inner West Council for the construction of apartments and shops as part of the consolidation of the properties at No 6 Livingstone Road, ex-Marrickville Council Chester Street carpark, 1-7 Chester Street), and properties No 9 and No 11 at Chester Street at Petersham, whichever date/time is first. (CB142)

63. Carlos also made a declaration in the following terms:

I, Carlos Loureiro, declare that the St. George Bank cheque no. 300778, from A M & P K CONCEICAO, dated 8 April 2019, to the amount of $800,000.00, given to me related to money lent to Antonio Conceicao, will be rendered void if the DA (Development Application) by the Inner West Council for the construction of apartments and shops as part of the consolidation of the properties at no. 6 Livingstone Road, Ex Marrickville Council Chester Street Car Park (1-7 Chester Street, Petersham), and properties no. 9 and no. 11 at Chester Street at Petersham, is not approved. In case the above DA (Development Application) is not approved, the payment of $150,000 will be made instead. (CB234)

Parties to the loan agreements with Carlos

64. It is convenient to address the parties’ issue in relation to the loans by Carlos in 2010-2103 and 2016, separately from the further loans in 2017.

(a) 2010-2013 and 2016 loans by Carlos

65. Carlos says that the circumstances surrounding the monies being advanced, and post-contractual conduct, leads to the conclusion that the loan agreements were between Carlos and Mac Aus and Antonio, and that other surrounding circumstances and post-contractual conduct establishes that Patricia was also a party to the loan agreements.

Whether Patricia was a party to the loan agreements

66. Carlos relies upon four matters for his contention that Patricia was also a borrower. First, that Patricia was a director of Mac Aus when the monies were advanced. Second, that the monies advanced were deposited into bank accounts of Patricia held jointly with Antonio and accordingly, Patricia received the benefit from the loans. Third, most of the post-dated cheques that accompanied the declarations were drawn against bank accounts jointly held by Antonio and Patricia. Fourth, by reason of having a joint account with Antonio, Patricia gave authority to Antonio to issue cheques from the joint account.

67. The first matter is entirely neutral. The terms of the loans were negotiated directly between Carlos and Antonio, the loans were advanced by Carlos to Antonio by cheques drawn in favour of Antonio, and Patricia did not request any loans from Carlos. The mere circumstance that Patricia was a director of Mac Aus does not evince an objective intention that Patricia would assume a joint liability with Antonio as primary debtor in respect of each loan.

68. The second matter is not relevant as it relies upon post-contractual conduct of Antonio, not Patricia. In any event, the second matter conflates the identity of the parties to a loan agreement with the persons who might benefit from the loan monies. The fact that monies lent by A to B are deposited by B into the joint account of B and C, and C thereby receives a benefit from the loan, does not render C liable as a primary debtor to A.

69. The third and fourth matters are connected. It does not follow from the unilateral act of Antonio drawing post-dated cheques on a joint account in favour of Carlos that the prior authorisation given to Antonio by Patricia to operate on the joint account in that manner constituted an admission by her that she was also liable for any debt of Antonio the subject of those cheques. It is fallacious to suggest that if B draws a cheque on a joint bank account of B and C in favour of A, that constitutes an acknowledgment or admission by C, that C is also liable to A for the debt the subject of the cheque drawn by B.

70. I find that Patricia was not a party to the loan agreements with Carlos.

Whether Mac Aus was a party to the loan agreements

71. The first matter referred to by Carlos relies upon the contrast between the previous loans in 2008-2010, which were personal to Antonio only, and that the loans in 2010-2013 and 2016 involved monies advanced after a company whose purpose was to acquire and develop the land was incorporated. Accepting that it was a mutually known fact in 2010 that Mac Aus had been incorporated to acquire the Livingstone Road property, the critical question is whether the parties manifested an objective intention that both Mac Aus and Antonio would be borrowers of the loans advanced by Carlos.

72. Insofar as Carlos points to the terms of the discussions with Antonio prior to the first loan on 13 May 2010, those discussions support the view that only Antonio personally was intended to the borrower. Antonio spoke in the first person in terms of his need for some funds, “so I can buy a property in Petersham to develop”, that “I want to purchase a warehouse in Petersham”, “I can build several apartments and shops” and “I am having discussions with the owner”.

73. Insofar as Carlos emphasised the contextual setting that Antonio told him that he had created a company named Mac Aus for the purpose of acquiring the property and “the company will buy the property and develop it”, the argument advanced was that both Mac Aus and Antonio intended to buy the Livingstone Road property to develop it. The implicit submission was that therefore both Antonio and Mac Aus intended to be borrowers of the loans from Carlos. The later does not follow from the former, and the former is not correct; only the company Mac Aus intended to buy the property.

74. The identification by Antonio of Mac Aus as the intended purchaser of the Livingstone Road property was not co-extensive with the any intention as to the parties to the loan agreement. Moreover, knowing that Mac Aus was the intended purchaser of the property, Carlos could have, but did not, say or do anything to have Mac Aus included as joint debtor with Antonio.

75. That the parties did not intend to include Mac Aus as a borrower of the loans is evident from two further matters: one is that Antonio requested that the cheques for the loans be drawn by Carlos in favour of himself, which request Carlos acceded to. The other is that the contemporaneous declarations made by Antonio in relation to repayment acknowledged only that the borrower was Antonio. There was never an acknowledgment of debt by Mac Aus.

76. Addressing the post-contractual conduct relied upon by Carlos, the matters referred to are either inadmissible or of no probative value.

77. Reliance was placed on several statements by Antonio which according to the submission showed that Antonio considered himself to be the owner of the property, since he created Mac Aus and the company, and he were one and the same. One such statement by Antonio made to Carlos after the purchase of Livingstone Road was that “I bought the warehouse for around $1, $100,000”. Statements by Antonio equating himself to Mac Aus in acquiring the property, are not relevant to the identity of the parties to a different contract, nor do they constitute an admission that Mac Aus was also a borrower of the loans.

78. Reference was made to other statements by Antonio first in his letter to Marrickville Council on 16 January 2012 advising that he had acquired the Livingstone Road property, and second in the expression of interest dated 18 September 2013 where it was put differently that “Mac Aus Unit Pty Ltd owns the Livingstone Road property and Mr Conceicao owns through family trusts the two residential sites, 9 and 11 Chester Street”. That Antonio sometimes referred to himself interchangeably with the company Mac Aus in discussions with third parties is not relevant; it is not an admission of fact as to the parties to the loan agreements.

79. Next, reliance is placed on the fact that Carlos was surprised to learn that the Chester Street properties had been acquired by David, not Mac Aus. This is said to reinforce the proposition that the monies advanced were for Mac Aus to acquire the Chester Street properties and that Mac Aus was under the effective control of Antonio. I do not agree. The expression of surprise by Carlos as to the identity of the purchaser of the Chester Street properties says nothing as to the parties to the loan agreements. Moreover, a statement of opinion by Carlos is not an admission of fact by Antonio.

80. Next, reliance is placed on the statement by Antonio to Carlos in late 2016, that “I need more money to acquire the carpark”. According to the submission it was Mac Aus and Antonio who needed more money to acquire the carpark and it followed that the monies were advanced for this purpose. This submission conflated the purpose of the requested loan with the identity of the borrower. They are not necessarily co-extensive. What is significant is that Antonio only spoke of his own request for money. That he intended Mac Aus would use the money for the stated purpose was not an admission on behalf of Mac Aus that Mac Aus was a borrower under earlier loans, nor did it evince an intention that Mac Aus would be a borrower under any future loans.

81. Finally, Carlos referred to a letter from David Landa Stewart Lawyers to the General Manager of the Inner West Council dated 15 February 2017 advising that they acted for Antonio and related properties and had been asked to write to the Council in relation to “his” proposed redevelopment of the sites at Livingstone Road, Chester Street, and the Council carpark. Reliance was placed on the following statement:

Our client bought the property known as 6 Livingstone Road, Petersham on 2 September 2010. It is held by Mac Aus Unit Pty Ltd (a company related to our client) and has an area of 479 sqm”.

82. Carlos says that this statement again suggested that Antonio considered that he and Mac Aus owned the Livingstone Road property, thus re-enforcing the conclusion that the monies were advanced to Mac Aus and Antonio for the purpose of acquiring and developing the property. The latter does not follow from the former. The statement by the solicitors for Antonio concerning Antonio’s proposed re-development of the combined sites is not constitute an admission of fact as to who are the parties to the loan agreements.

Conclusion

83. Whilst I accept that Antonio had authority as a director to borrow money on behalf of Mac Aus, I reject the contention by Carlos that a reasonable observer of the communications between Antonio and Carlos which led to the loan of monies by Carlos, would conclude that the parties intended that Antonio was borrowing the money on behalf of Mac Aus as well as himself. I find that the parties to the loan agreements in 2010-2013 and 2016 were Carlos and Antonio.

Interest on Carlos’ loans at the contractual interest

84. The plaintiffs provided calculations of interest at the rate of 20 per cent compounded six-monthly on the principal sums of Carlos’ nine loans the subject of tranches 1, 2 and 3. Those calculations were made up until 1 March 2022. The undisputed principal and interest in respect of those loans is as follows:

Loan	Amount ($)	Interest at 20% compound every six months (to 1/3/22) ($)	Total ($)
Tranche 1
1	100,000	572,750.00	672,750.00
2	26,900	109,065.25	135,965.25
3	35,000	125,824.06	160,824.06
Tranche 2
4	50,000	320,013.50	370,012.50
5	30,000	171,825.00	201,825.00
6	14,300	81,903.25	96,203.25
Tranche 3
7	50,000	286,375.00	336,375.00
8	20,000	102,318.18	122,318.18
9	50,000	255,795.45	305,795.45
Total: $2,402,069.69

(b) 2017 further loans by Carlos

85. Beyond the bare assertion that Carlos loaned the sum of $150,000 to the defendants for the purpose of improving and developing the Livingstone Road property and the Chester Street properties, the plaintiffs’ written submissions did not expressly deal with the issue of the parties to the 2017 loans.

86. Importantly, the counterproposal by Carlos at the meeting with Antonio in early 2017 made no mention of Mac Aus repaying the amount of $150,000 to Carlos if the development application was not approved.

87. Although the counterproposal by Carlos referred to Antonio and Patricia repaying the $150,000, I find that Patricia was not a party to the 2017 loan agreement. First, Carlos did not give evidence that Antonio accepted the counterproposal in those terms. Second, there is no evidence that Antonio had authority to borrow money on behalf of Patricia. Third, the terms of the interrelated declarations made by Antonio and Carlos in April 2017 only referred to Antonio borrowing money from Carlos. Aside from the question of lack of proof of authority, those declarations are inconsistent with Antonio agreeing on behalf of Patricia to borrow money from Carlos.

Interest on Carlos’ 2017 loans

88. The rate of interest payable on Carlos’ 2017 loans is addressed under Issue 4 below. For the reasons there given, Carlos is entitled to pre-judgment interest under s 100 of the Civil Procedure Act. The parties agreed that the calculation of interest on $150,000 under s 100 from 8 February 2017 to 1 March 2022 is $21,110.96. Therefore, the total claim in respect of the 2017 loans with interest to 1 March 2022 is $171,110.96.

Claim by Jose

89. Jose made three loans in 2011, each by bank cheque payable to Antonio totalling $200,000. He gave affidavit evidence (par 84) and confirmed in cross-examination that between August 2014 and November 2016, Antonio asked for money a number of times, and over this period he gave a total of $60,000 in cash to Antonio. The loans by Jose are summarised in the following table:

Loan	Loan Date	Loan Amount ($)	Recipient Account
A1	28/01/2011	100,000	Antonio’s account
A2	10/08/2011	100,000	Joint account – Antonio and Patricia
A3	6/10/2011	50,000	Joint account – Antonio and Patricia
A4	August 2014-November 2016	60,000	Antonio (cash)
Total	260,000

90. Jose gave evidence that in or about April or May 2010, Antonio contacted him to see if he and his wife were interested in helping him with funds to invest in a property in Petersham. Antonio came to Jose’s home and spoke to him and his wife about the property at 6 Livingstone Rd. Antonio apologised for what had happened, being a reference to the earlier loan, told them that he was thinking of buying a warehouse at Livingstone Road and said “I think you can help me again”. Antonio offered to give 20 per cent interest “on whatever you loan” and said he “would include you as partners, but I cannot include you as partners in the written documents because everything is mortgaged”. Antonio said he would be responsible for and would pay all of the expenses and it would be good, because “I will make you rich”. Antonio said that his wife, son and daughter knew of the arrangement, that his son was a Federal Police officer and his daughter, a lawyer, and they are honest people and they are reputable. He said, “I would like you to be part of this society. I consider you family”.

91. Jose responded that he was hurt by what had happened, that he and his wife had cried a lot because of what had happened, however he was prepared to accept Antonio’s proposal. Maria Isabel told Antonio that she was very hurt by what Antonio had done and she was not sure she wanted anything to do with his proposal. Antonio replied that he would organise for her to walk with his wife (Patricia) before they decided.

92. Some time later, Jose told Antonio that he would contribute more money if Antonio bought the warehouse at Livingstone Road. At one of the meetings between Jose and Antonio, Antonio said:

I have created a company called Mac Aus. The directors are myself and Patricia Conceicao. This is for the purchase of a warehouse.

Everything will be ok in relation to the money that I have received or will receive to buy the warehouse.

93. In or around March 2011, Antonio told Jose that he bought the Livingstone Road warehouse for $1,100,000 and that they needed more funding for the costs of the DA application for the warehouse to build apartments and shops.

94. At the time of providing Antonio the bank cheque for the first loan on 28 January 2011, Antonio gave Jose a post-dated bank cheque for $55,000 dated 28 July 2011 and made a declaration acknowledging that the post-dated cheque for $55,000 “is for money borrowed from Carlos Meireles to be paid back on 28 July 2011 to Carlos Meireles using the above-mentioned cheque”. A declaration in similar terms, together with another post-dated cheque for $55,000 dated 28 January 2012 was signed by Antonio on 29 July 2011.

95. Antonio told Jose during 2011 that he was also planning to buy the Council carpark which was adjacent to the Livingstone Road property to consolidate the properties before developing them. Later he told Jose that he was planning to acquire two houses in Chester Street, Petersham, adjacent to the Council carpark to create one big property development. (These properties were 9 and 11 Chester Street.)

96. Maria Isabel gave evidence in relation to the second loan that in about August 2011 she signed the application for a bank cheque for $100,000, that Antonio was present at the bank with Jose and her on this occasion, that Antonio gave instructions to tell the bank it was to “help a friend”. Those words appear on the withdrawal request as the reason for the withdrawal. Maria Isabel gave unchallenged evidence, which I accept, that Antonio told her and Jose “I don’t want the bank to know that the money is coming to me”.

97. At the time of the second loan on 10 August 2011, Antonio gave Jose a post-dated cheque for $110,000 dated 10 February 2012, and made a signed declaration acknowledging that the post-dated cheque for $110,000 was for money borrowed from Jose Meireles to be paid back on 10 February 2012.

93. Jose gave evidence that Antonio told him that he needed more money to purchase two houses at Chester Street, Petersham, which were adjacent to the carpark that was also adjacent to the warehouse. Jose says that on or about 6 October 2011, he gave a $50,000 bank cheque to Antonio to assist with the purchase of the Chester Street properties.

94. At the time of the third loan on 6 October 2011, Antonio gave Jose a post-dated cheque for $55,000 dated 6 April 2012 and made a signed declaration that the cheque in the amount of $55,000 was for money borrowed from Jose to be paid back on 6 April 2012.

95. On about 8 December 2011, Antonio gave Jose a draft copy of his proposal to Marrickville Council. Around this time, Antonio and Jose visited the warehouse at Livingstone Road several times from the outside.

96. The expression of interest lodge in relation to the Chester Street carpark site stated that Mac Aus owned 2-6 Livingstone Road and Antonio owned, through the Conceicao Family Trust, residential sites at 9 and 11 Chester Street (CB114).

97. As mentioned, the Chester Street properties were acquired by David in 2013 (completed in 2014) and 2015. When Antonio later told Jose that he had acquired the two houses under his son’s name, Jose expressed his surprise, as Antonio had previously said that the properties would be acquired by the company Mac Aus. When questioned by Jose, Antonio said “My son is a good person, and this will avoid the need to pay some tax. This will be good for you and me as well.”

98. Between 2013 and 2016, Antonio showed communications to Jose between himself and Marrickville Council regarding the Council carpark.

Parties to the loans by Jose

104. Jose made similar submissions to Carlos on the issue of the parties to the loan agreements, relying upon the circumstances surrounding the monies being advanced, together with post-contractual contract.

Whether Patricia was a party to the loan agreements?

105. Insofar as Jose repeated the matters relied upon by Carlos (see [66] above), these have been addressed and rejected at [67]-[69] above.

106. Insofar as Jose also relied upon conversations between Maria Isabel and Patricia, I accept that Maria Isabel’s evidence was unchallenged. I also accept that in the absence of evidence from Patricia, an inference can be drawn that her evidence would not have assisted the defendants’ case and that the matters that Maria testified to can be accepted with greater confidence. Nevertheless, I find that the conversations relied upon are either not admissible or of no probative value.

107. The first conversation relied upon by Jose incorrectly attributed to Patricia, a statement made by Antonio when he and David met Jose and Maria Isabel at a pastry shop, which seems likely to have occurred sometime after May 2015. Antonio said that without the support of Jose and Maria, “we would not be able to buy the warehouse and the two houses on Chester Street to do the urbanisation in Petersham” (CB 263, par 42). This statement by Antonio was not an admission by Patricia that she was a borrower with Antonio of the loans from Jose in 2011.

108. The next conversation relied upon was that at one point, Patricia told Maria Isabel that she urgently needed money to go ahead with the joint project in Petersham (CB 263, par 49). The timing of this conversation is unclear. Importantly, Maria did not give evidence that Jose was present at this conversation, or that she agreed to this request. This conversation was not an admission by Patricia that she was a borrower of the 2011 loans, or that she intended to personally liable for any future borrowings by Antonio.

109. Another conversation relied upon was that Patricia told Maria that “we need yours and Carlos Loureiro’s support” and “you just have to wait until the end when the City Council approves the urbanisation, then we are all rich” (CB 264, par 51). Again, the timing of this conversation is unclear but seems to be in about late 2016 or early 2017, given the reference to the need for another $300,000. The request by Patricia for support by way of further loans for the development of the properties owned by Mac Aus and David was not an admission by Patricia that she was a borrower of the 2011 loans.

110. I find that Patricia was not a borrower of the loans from Jose in 2011.

Whether Mac Aus was a party to the loan agreement?

111. To the extent that Jose relied upon the same surrounding circumstances and post-contractual conduct that Carlos relied upon, those matters have already been addressed above: see [71]-[82].

112. Turning to the additional surrounding circumstances relied upon by Jose. One matter is that before the first loan was made on or about 28 January 2011, Antonio said that he was thinking of buying a warehouse at Livingstone Road and for that purpose he required a loan. This conversation is consistent with Antonio intending to borrow the money and says nothing of the intention of Mac Aus to also be a borrower.

113. Next, Jose relied on a statement by Antonio at a meeting with Jose and Carlos that he had created a company called Mac Aus, that the directors were himself and Patricia, this is for the purchase of the warehouse, and “[e]verything will be okay in relation to the money that I have received or will receive to buy the warehouse”. Jose submitted that this statement supported the conclusion that the loans were made to Mac Aus and Antonio because the loans were made for the purpose of enabling those defendants to acquire the Livingstone Road property. This submission ignored that Antonio only spoke of the money he had or would receive to buy the warehouse; there was no mention of Mac Aus borrowing money. The submission conflated the identity of the parties to any loans with the purpose of the loans.

114. Next, Jose relied upon a conversation between Antonio and Carlos Xavier in 2010, after Antonio had repaid the earlier $245,000 loan owing to Jose and Maria, during which Antonio invited Carlos Xavier to be part of an “investment group” and said, “everything will happen through the company that I have set up – Mac Aus” (CB 422, par 17). Pre-contractual statements made by Antonio to Carlos Xavier are to be disregarded insofar as they are not a fact mutually known to both Jose and Antonio.

115. Turning to post-contractual conduct, Jose relied upon statements by Antonio to Claudio in about 2015 on a number of occasions:

Don’t worry, you are all protected. If the project is not approved by the Council, then you will get the principal back with 20% interest as agreed. The same if Mac Aus terminates the agreement (CB 246, par 33).

116. Claudio gave affidavit evidence that this conversation continued with Antonio saying:

But if the Council approves the agreement, we will get an apartment out of the development.

117. Read in context, the reference to the “agreement” seems to be the proposed agreement with the Council that Mac Aus acquire the Council carpark site. The reference to Mac Aus terminating the proposed agreement with Council is not an admission by Antonio on behalf of Mac Aus that Mac Aus was also a borrower of the 2011 loans from Jose.

118. Finally, Jose submitted that the two interrelated declarations in May 2017 evidencing the loan of $150,000 (by Claudio) do not mention Mac Aus and that the fact that one of the declarations refers to money lent to Antonio strengthens the proposition that Antonio and Mac Aus were one and the same when dealing with the plaintiffs. I do not agree. No such inference can be drawn from the terms of the two interrelated declarations made in May 2017 in relation to Carlos’ loan of $150,000.

Conclusion

119. Again, whilst Antonio had authority as a director to borrow money on behalf of Mac Aus, I reject the contention by Jose that a reasonable observer of the communications between Antonio and Jose which led to the loan of monies by Jose, would conclude that the parties intended that Antonio was borrowing the money on behalf of Mac Aus, as well as himself. I find that the parties to the loan agreements in 2011 were Jose and Antonio.

Interest on Jose’ loans at the contractual interest

120. The plaintiffs have provided calculations of interest at the rate of 20 per cent compounded six-monthly on the principal sums of Jose’s four loans. Those calculations were made up until 1 March 2022. The undisputed principal and interest in respect of those loans is as follows:

Loan	Amount ($)	Interest at 20% compound every six months (to 1/3/22) ($)	Total ($)
1	50,000	357,014.75	407,014.75
2	100,000	640,025.99	740,025.99
3	50,000	286,375.00	336,375.00
4	60,000	95,624.55	155,624.55
Total: $1,639,038.29

ISSUE 2: Whether claim for 2010-2013 loans is statute barred against Mac Aus and Patricia?

121. Mac Aus and Patricia say that if they are found to be a borrower, in addition to Antonio, of the monies advanced under the 2010-2013 loans by Carlos and Jose, then the claims to recover those loans are statute-barred by the Limitation Act, s 14. Given the conclusion that Mac Aus and Patricia were not borrowers jointly with Antonio, this defence does not strictly arise. Nevertheless, I will indicate my views.

122. It is common ground that each of the 2010-2013 loans was not for a fixed term and was therefore repayable on demand. A loan of money payable on demand creates an immediate debt, upon which a claim may be brought. Hence, the cause of action in respect of the loan accrues from the date the loan was advanced: Young v Queensland Trustees Ltd (1959) 99 CLR 560 at 566; [1959] HCA 51; Hashman v Australian Medico-Legal Group Pty Ltd; Claire Lee Mosman Pty Ltd v Australian Medico-Legal Group Pty Ltd [2016] NSWSC 1773 at [18].

123. In answer to the limitation defence pleaded by Mac Aus and Patricia, Carlos and Jose rely upon s 54 of the Limitation Act which relevantly provides:

54 Confirmation

(1) Where, after a limitation period fixed by or under this Act for a cause of action commences to run but before the expiration of the limitation period, a person against whom (either solely or with other persons) the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation.

(2) For the purposes of this section—

(a) a person confirms a cause of action if, but only if, the person—

(i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made, or

…

(b) a confirmation of a cause of action to recover interest on principal money operates also as a confirmation of a cause of action to recover the principal money, and

…

(4) An acknowledgment for the purposes of this section must be in writing and signed by the maker.

(5) For the purposes of this section a person has the benefit of a confirmation if, but only if, the confirmation is made to the person or to a person through whom the person claims.

(6) For the purposes of this section a person is bound by a confirmation if, but only if—

(a) the person is a maker of the confirmation,

…

124. Section 11(2)(c) of the Limitation Act is also relevant. It provides:

(2) For the purposes of this Act—

…

(c)    a thing done to or by or suffered by an agent is done to or by or suffered by his or her principal, and

…

125. In Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535 at 542; [1981] HCA 71, Gibbs CJ said that by force of s 11(2)(c) of the Limitation Act, a signature by an agent of the maker is a signature of the maker, and a confirmation made to or by an agent has the same effect as if it were made to or by his principal, referring to s 11(2)(c) of the Limitation Act.

126. Carlos and Jose say that the declarations made by Antonio within the limitation period acknowledging the 2010-2013 loans were also made by Antonio as agent for Mac Aus and Patricia for the purposes of s 54(2)(a)(i) of the Limitation Act. The relevant declarations made by Antonio are in essentially the same terms as the declaration made by Antonio reproduced at [56] above, save for the amount of the loan, the amount and date of the post-dated cheques and the identity of the lender, Carlos or Jose. The declarations were relevantly made by Antonio on the following dates:

• Carlos’ 2010-2013 loans: 13 November 2015 for the tranche 1 loans (CB 207), 8 Jan 2016 for the tranche 2 loans (CB 208) and 13 October 2017 for the tranche 3 loans (CB 217); and

• Jose’s 2011 loans: 20 January 2017 in respect of loan 1 (CB 396), 13 July 2017 in respect of loan 2 (CB 399) and 11 April 2017 in respect of loan 3 (CB 398).

127. Mac Aus and Patricia say that the confirmations of debts by Antonio only bind Antonio. I agree.

128. The terms of the declarations made by Antonio do not speak in terms of acknowledging any debt owing by Mac Aus or Patricia to either Carlos or Jose. The declarations made by Antonio speak in terms only of the money “I have borrowed from” Carlos and Jose respectively and identify the post-dated cheque provided by Antonio to pay back those monies. The confirmations of the debts in the declarations made by Antonio are not made by him as agent for either Mac Aus or Patricia.

ISSUE 3: Claim by CLAUDIO

129. Claudio did not give any direct evidence in his affidavit of conversations with Antonio concerning the 2017 loans. He addressed his claim in respect of the 2017 loans by attaching copies of the two inter-related declarations, one dated 12 May 2017 made by Antonio together with a post-dated cheque drawn by Antonio in favour of Claudio for $800,000 dated 8 April 2019, and the other declaration made by Claudio dated 11 May 2017.

130. Although Claudio’s declaration was not co-signed by Antonio, Claudio gave oral evidence, which I accept, that his declaration was prepared by Antonio and signed by Claudio for Antonio’s protection in relation to the agreement reached between them for payment by Antonio of $800,000 in the event that a DA was approved for the proposed development, and repayment by Antonio of $150,000 if the DA was not approved.

131. I accept Claudio’s oral evidence in relation to the 2017 loan agreement. Claudio met Antonio in December 2016 at his parent’s place, and again in 2017 at Petersham when Antonio requested further funding for his development proposal. On each occasion, those present included Jose, Maria Isabel, and Carlos Xavier. At the December 2016 meeting, Antonio said that “we’re now in a position to put through a tender for the development and purchase of the carpark between Chester Street and Livingstone Road”, and “[w]e need money so we can go and purchase this property from auction” (T106). The reference to “this property” is to be understood as the carpark site owned by the Council. At the 2017 meeting, Antonio said that “in order to purchase the property and put a proposal to Council, we need this money to show we can fund the investment” (T106).

132. Claudio raised concerns with his parents about Antonio’s demeanour and character and his urgency to acquire money with very little security and evidence as to what actually was going on. However, he trusted his father’s judgment, saying that “essentially, I loaned money”. Antonio had asked for $300,000 and Claudio was not prepared to put up the whole amount because he did not have the money and thought it very risky. Claudio was aware that Carlos had agreed to loan a further $150,000 and agreed to also put in $150,000, as his parents had no money at this stage.

Amount of Claudio’s loans

133. As indicated the parties diverged as to whether Claudio advanced $100,000 or $150,000. I find that Claudio advanced $150,000 in three amounts of $50,000 each.

134. As to the first $50,000, this amount was loaned by Carlos to Claudio and paid by direction to Antonio by Carlos’ cheque drawn on 20 April 2017.

135. The second $50,000 was paid by Carlos on behalf of Claudio to Antonio by Carlos’ cheque on 15 May 2017. This followed the deposit of $50,000 in cash into Carlos’ CBA account on 12 May 2017. The source of this deposit was cash held at Jose’s home on behalf of Claudio. The bank statement for Carlos’ CBA account records a deposit of $50,000 cash on 12 May 2017 and a cheque drawn for $50,000 on 15 May 2017. There is a corresponding credit to the joint account of Antonio and Patricia in the amount of $50,000 on 15 May 2017.

136. The third $50,000 was paid by in cash by Jose on behalf of Claudio to Antonio from an amount of $80,000 cash held at Jose’s home for Claudio. Claudio gave evidence that he recalled his father calling him and saying, “I’ve now paid him”, being a reference to Antonio. I accept Claudio’s evidence that the $50,000 was paid in cash by Jose on his behalf to Antonio in May 2017.

137. On about 12 May 2017, Antonio gave Claudio a post-dated cheque for $800,000 dated 8 April 2019 and made a declaration that the cheque in the amount of $800,000 drawn in favour of Claudio:

… is for money I have borrowed from Claudio Meireles to be paid back on 8 April 2019 or after the date of the approval (no more than six months) of a DA (development application) by the Inner West Council for the construction of apartments and shops as part of the consolidation of the properties at No 6 Livingstone Road, ex-Marrickville Council Chester Street carpark, 1-7 Chester Street), and properties No 9 and No 11 at Chester Street at Petersham, whichever date/time is first.

138. Claudio also made a declaration dated 11 May 2017 to the following effect:

I, Claudio Meireles, declare that the St. George Bank cheque no. 300785, from A M & P K CONCEICAO, dated 8 April 2019, to the amount of $800,000.00, given to me related to money lent to ANTONIO CONCEICAO, will be rendered void if the DA (Development Application) by the Inner West Council for the construction of apartments and shops as part of the consolidation of the properties at no. 6 Livingstone Road, Ex Marrickville Council Chester Street Car Park (1-7 Chester Street, Petersham), and properties no. 9 and no. 11 at Chester Street at Petersham, is not approved. In case the above DA (Development Application) is not approved, the payment of $150,000 will be made instead.

139. That Claudio loaned a total of $150,000 to Antonio is corroborated by the declaration made by Claudio on 11 May 2017, which was prepared by Antonio for his own protection if the development application in respect of the properties at Livingstone Road, Chester Street and the carpark was not approved: see [138] above.

Parties to the 2017 loans by Claudio

140. Again, the plaintiffs’ written submissions did not expressly deal with the issue of the parties to the loans by Claudio in 2017 beyond the bare assertion that Claudio loaned the sum of $150,000 to the first, second and third defendants for the purpose of developing the Livingstone Road and Chester Street properties.

141. As to the surrounding circumstances, I make the following findings.

142. First, although Claudio initially understood from Antonio and Patricia that the company “Mac Aus” had purchased 9 and 11 Chester Street, he later came to understand (before the 2017 loans) that the Chester Street properties were in the name of David.

143. Second, when Antonio sought further funding in late 2016/early 2017 for the purchase of the Council carpark site, there was no reference to either Mac Aus or Patricia borrowing the money from Claudio.

144. Third, Claudio’s pleaded claim in relation to the $150,000 loan relied upon express terms contained in the declaration made by Antonio. That declaration only referred to monies borrowed by Antonio from Claudio.

145. To the extent that Claudio’s pleaded claim is that the declaration made by Antonio was made on his own behalf and also as agent for Mac Aus and Patricia, the terms of the declaration do not support that contention. The declaration made by Antonio and the related declaration made by Claudio reveal an objective intention that the loan of $150,000 was a personal obligation of Antonio and not any other borrower.

140. I find that only Antonio was the borrower of the 2017 loans from Claudio.

ISSUE 4: Claim for interest on the 2017 loans

147. It is common ground that on the proper construction of the further loan agreements in respect of the 2017 loans, that the loans from Carlos became due on 8 February 2019 and the loans from Claudio became due on 8 April 2019. The parties diverged as to whether Carlos and Claudio were entitled to interest from those dates at the alleged contractual rate of 20 per cent compounded six-monthly, as contended for by Carlos and Claudio, or at the court rate under s 100 of the Civil Procedure Act, as contended for by Antonio.

148. The pleading in the amended statement of claim (ASC) of the terms of the further loan agreements alleged that:

• on 8 February 2019, or within six months of Mac Aus obtaining approval from the Inner West Council for the construction of the residential apartments and shops on the land and adjacent properties, whichever event occurred first, the sum of $800,000 would be paid to the respective plaintiffs, Carlos and Claudio, in discharge of Mac Aus’s indebtedness under the further loan agreement (pars 28 and 29, ASC); and

• the payment of the sum of $800,000 would be rendered void in the event of development approval of the land and adjacent land was not granted by the Inner West Council and in this event, the sum of $150,000 advanced would be repaid, together with interest (pars 40 and 41, ASC).

149. The particulars given of pars 29 and 41 of the ASC were that the term was expressed in writing and consisted of a declaration made and signed by Antonio on 8 February 2017 (in the case of Carlos’ loan) and on 11 May 2017 (in the case of Claudio’s loan). Those declarations do not include any reference to the payment of interest on $150,000 if the amount of $150,000 became payable by Antonio to Carlos and Claudio respectively.

150. Consistent with the pleaded claim, the monetary relief claimed in the ASC by Carlos and Claudio against Antonio, did not include the alleged contractual rate of interest on the loans of $150,000. The amount claimed by Carlos of $1,983,666.90 comprises the three tranches of loans, together with interest at the contractual rate of 20 per cent compounded six-monthly ($682,609.40, $619,409.51 and $531,647.99), plus $150,000 in respect of the further loans in 2017. There is no pleaded claim for the alleged contractual interest at the rate of 20 per cent compounded six-monthly in respect of the $150,000 loan.

151. Similarly, the relief claimed by Claudio against Antonio is the sum of $150,000 and interest pursuant to s 100 of the Civil Procedure Act. Again, there is no pleaded claim for interest on $150,000 pursuant to the alleged contractual rate of 20 per cent compounded six-monthly. That is sufficient to dispose of the claims by Carlos and Claudio for interest on the $150,000 loans at the alleged contractual rate.

152. I find that Carlos and Claudio are entitled to pre-judgment interest under s 100 of the Civil Procedure Act on their further loans of $150,000 to Antonio from 8 February 2019 in the case of Carlos, and 8 April 2019 in the case of Claudio. The parties have agreed the calculation of interest on $150,000 under s 100 to 1 March 2022 is as follows:

• Carlos 2017 loans: Interest of $21,110.96; and

• Claudio’s 2017 loans: Interest of $19,777.40

ISSUE 5: Claim in respect of Chester Street properties

153. Carlos and Claudio say that by reason of their loans in 2017 they each made a contribution to the improvement or retention of the Chester Street properties from which, at least $35,000, was paid from the joint account of Antonio and Patricia to David between February and May 2017.

154. I find that the evidence establishes the following payments from the joint account of Antonio and Patricia to David: $5,000 on 8 February 2017, and $10,000 on each of 10 March, 24 April and 25 May 2017. David conceded in cross-examination that these amounts probably went towards payment of the mortgage on 9 or 11 Chester Street and/or towards improving those properties.

155. Carlos and Claudio say that although David did not concede that the money received from his parents had come from any of the plaintiffs with respect to the Livingstone Road property or the Chester Street properties, the Court should reject David’s evidence in this regard and find that he did know that the money that was being given to him from his parents had come from the plaintiffs. The submission continued that, in the circumstances, David should not retain the benefit of those monies and it is unconscionable for him to do so.

156. The claim, therefore, is that an equitable charge should be declared over the proceeds of sale of 11 Chester Street and/or over 9 Chester Street which reflects the present value of the contribution of $35,000 towards the improvement or retention of the Chester Street properties. Accepting that 11 Chester Street was purchased for $925,000 and sold for $1,415,000, if relief was given over the proceeds of sale of 11 Chester Street in respect of the $35,000 contribution, Carlos and Caludio say that:

• a contribution of $25,000 to 11 Chester Street would be $38,243.24, which is said to be what Carlos’ minimum contribution would be worth; and

• a contribution of $10,000 to 11 Chester Street would be $15,297.30, which is said to be what Claudio’s minimum contribution would be worth.

157. David objected that these submissions in respect of the Chester Street properties were outside the pleaded claim. That objection is properly made.

158. Insofar as the claim is for a constructive trust arising after the collapse of a joint endeavour relying upon the principles in Baumgartner v Baumgartner (1987) 164 CLR 137 at 148-149; [1987] HCA 59, adopting and adapting what Deane J said in Muschinski v Dodds (1985) 160 CLR 583 at 620, no such claim was pleaded against David. Nor does the evidence support the conclusion that the $150,000 paid by each of Carlos and Claudio to Antonio in 2017 was paid based on some consensual joint relationship or endeavour with David. Those further loans were made on the express basis that Antonio required further funding in relation to the proposed acquisition of the Council carpark site.

159. Insofar as the claim is for a constructive trust relying upon the circumstance that David knew that the money given to him by his parents had come from the plaintiffs, there is no such pleading of David’s knowledge of the source of the four cheques totalling $35,000. Such an allegation of knowledge ought to have been pleaded as it was a matter which, if not specifically pleaded, may take the defendant by surprise: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 14.4(1).

160. Further, notwithstanding my general reservations concerning David’s evidence, if it were necessary to decide the question of David’s knowledge of the source of the four cheques totalling $35,000, I am not satisfied that David knew that this money came from loans made by Carlos and Claudio to Antonio in 2017.

161. First and importantly, that proposition was not put to David in cross-examination. The cross-examination went no further than the likely use to which David put the monies he had received from his parents.

162. Second, there is no evidence that David was even aware of the loans made by Carlos and Claudio to Antonio in 2017.

163. In any event, a bare allegation of knowledge by David of the source of monies is insufficient to support a claim to a constructive trust or other equitable relief on the ground that David’s assertion of legal title to the Chester Street properties is unconscionable. Something more is required for the receipt of money by David from his parents out of monies loaned to them by Carlos and Claudio for David’s conduct to be unconscionable.

164. I have already rejected the suggestion of a constructive trust arising after the collapse of a joint endeavour. For completeness, I note that there is no pleaded claim or submission asserting liability against David based on receipt of trust property or knowing participation in a breach of fiduciary duty (by Antonio owed to Carlos and Claudio), relying upon the first or second limb of Barnes v Addy (1874) LR 9 Ch App 244, or a claim for equitable fraud by Antonio and David based on the fourth rule in Earl of Chesterman v Jansen (1751) 2 Ves Sen 125; 28 ER 682.

Other matters

165. As mentioned, an amount of $1 million was paid into Court on 16 February 2021 by Owen Hodge Lawyers, the solicitors acting for Mac Aus on the sale of 6 Livingstone Road. Given that the plaintiffs did not press their claims for equitable relief against the Livingstone Road property or its proceeds of sale, this amount together with interest, should be paid out of court to Mac Aus.

166. As this consequential relief was not the subject of submissions, I propose to stay the order for payment of money out of court for a short period of seven days.

Costs

167. The usual order is that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: UCPR, r 42.1.

168. Applying the usual order as to costs, costs would be ordered in favour of the plaintiffs against Antonio and costs would be ordered in favour of the successful defendants against the plaintiffs. However, where multiple parties have the same representation, but only some are successful, the “rule of thumb” is that when a plaintiff succeeds against one jointly represented defendant but not the other, the successful defendant cannot claim from the plaintiff more than a proportionate share of the joint costs, in addition to any costs separately referable to that defendant: Rogers v Kabriel (No 2) [1999] NSWSC 474 at [14]-[15] (Young J).

169. The parties have not had an opportunity to address on the appropriate costs orders, including whether any prima facie approach that the plaintiffs should be ordered to pay a percentage of the successful defendant’s party/party costs, should be displaced, or should be reduced to take into account other relevant matters: see, among others, Currabubula & Paola v State Bank of NSW; Currabubula v State Bank of NSW [2000] NSWSC 232 at [90]-[106] (Einstein J); Rasch Nominees Pty Ltd v Bartholomaeus (No 3) [2013] SASC 14 at [11]-[17] (Kourakis CJ). Directions will be given for the parties to make submissions on the issue of costs, which will be dealt with on the papers.

Orders

170. The Court makes the following orders:

1. Judgment for the first plaintiff against the second defendant in the sum of $2,402,069.69 comprising the principal sum of $376,200, together with interest thereon at the contractual rate of 20 per cent compounded six-monthly up until 1 March 2022 totalling $2,025,869.69.

2. Judgment for the first plaintiff against the second defendant in the sum of $171,110.96 comprising the principal sum of $150,000, together with interest thereon from 8 February 2019 to 1 March 2022 under s 100 of the Civil Procedure Act 1995 (NSW) totalling $21,110.96.

3. Judgment for the second plaintiff against the second defendant in the sum of $169,777.40 comprising the principal sum of $150,000, together with interest thereon from 8 April 2019 to 1 March 2022 under s 100 of the Civil Procedure Act 1995 (NSW) totalling $19,777.40.

4. Judgment for the third plaintiff against the second defendant in the sum of $1,639,038.29 comprising the principal sum of $260,000, together with interest at the contractual rate of 20 per cent compounded six-monthly up until 1 March 2022 totalling $1,379,038.29.

5. Dismiss the amended statement of claim against the first, third and fourth defendants.

6. Costs reserved.

7. Direct the plaintiffs to file and serve short written submissions on costs within seven days of this judgment, the defendants to file and serve short written submissions in response within a further seven days, and the plaintiffs to file and serve any short-written submissions in reply within a further five days, with the issue of costs to be determined on the papers.

8. Order that the amount of $1 million paid into court by Owen Hodge Lawyers on 16 February 2021, together with any interest thereon, be paid out of court to the first defendant.

9. Stay order 8 for a period of seven days from the date of this judgment.

**********

Amendments

16 March 2022 - Typographical errors amended: [9]; [32]; [126]; [131].

Decision last updated: 16 March 2022