MacMillan v Mumby & Anor

[2006] NSWCA 74

New South Wales

Court of Appeal

CITATION:	MacMillan v Mumby & Anor [2006] NSWCA 74 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	29 March 2006
JUDGMENT DATE:	10 April 2006
JUDGMENT OF:	Tobias JA at 1; McColl JA at 59; Bryson JA at 60
DECISION:	Appeal dismissed with costs
CATCHWORDS:	CONTRACT OF LOAN - no written loan agreement - contracting parties - mistake as to identity - whether monies paid to a company or its owners personally - intention of parties - whether mistake fundamental - whether negligent misrepresentation - whether breach of warranty - claim for monies had and received - appeal dismissed
LEGISLATION CITED:	Business Names Act 1962
CASES CITED:	Black v Smallwood (1966) 117 CLR 52 Prince v Oriental Bank Corporation (1978) 3 App Cas 325 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
PARTIES:	John MacMillan Wayne Paul Mumby Wendy Mumby
FILE NUMBER(S):	CA 41208/04
COUNSEL:	A: S J McMillan R: R Gruzman
SOLICITORS:	A: Penhall & Co, Lawyers, Burwood R: Atkinson Vinden Lawyers, Chatswood
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6363/02
LOWER COURT JUDICIAL OFFICER:	Rein DCJ
LOWER COURT DATE OF DECISION:	29/03/2006

CA 041208/04
DC 6363/02

TOBIAS JA
McCOLL JA
BRYSON JA

Monday 10 April 2006

JOHN MacMILLAN v WAYNE PAUL MUMBY & 1 OR

Judgment

1 TOBIAS JA: On 6 August 2002 Mr John MacMillan, the appellant, filed a Statement of Liquidated Claim in the District Court of New South Wales against Mr Wayne Mumby and Mrs Wendy Mumby, the first and second respondents respectively.

2 The basis of the appellant’s claim was that in November and December 1996, he had lent the sum of $81,000 to a non-existent company, A.R. Appliance Sales & Rentals Pty Limited of which the respondents were allegedly the sole shareholders and directors. As the money was not repaid, the appellant claimed that the respondents were personally liable to him for the amount lent plus statutory interest.

3 Five causes of action were pleaded by the appellant, namely

(a) the contract of loan was made with the respondents personally because A.R. Appliance Sales & Rentals Pty Limited did not exist as a company at the time of the loan;

(b) for moneys received by the respondents for the use of the appellant;

(c) the moneys paid by the appellant were paid pursuant to a mistake of fact, namely, that A.R. Appliance Sales & Rentals Pty Limited was a registered company when it was not;

(d) breach of warranty of authority by the respondents with respect to the existence of A R Pty Ltd as a registered company; and

(e) negligent misrepresentation by the respondents that A.R. Appliance Sales & Rentals Pty Limited was the owner of the business of appliance sales and rentals.

4 The proceedings were heard by his Honour Judge Rein who rejected each of the appellant’s claims and entered a verdict and judgment for the respondents on 3 December 2004. It is against that decision that the appellant appeals to this Court.

The relevant facts

5 The relevant facts were not in dispute. The evidence essentially consisted of an affidavit by the appellant sworn 4 November 2003 together with his oral testimony. Neither of the respondents gave evidence either in affidavit or oral form and the only other relevant evidence was documentary.

6 The appellant was cross-examined extensively and the primary judge found him to be an honest and credible witness. As no evidence was called on behalf of the respondents to contradict that of the appellant, his Honour accepted the appellant’s evidence “in its entirety”.

7 The appellant was discharged from the Australian Defence Forces (the ADF) in November 1996 after 21 years of service during which he reached the rank of Warrant Officer Class 2 in the Australian Army. On leaving the Army he was entitled to a payment of $81,000 by way of superannuation benefits. Early in his career he had befriended the first respondent. In October 1996, the first respondent suggested that the appellant leave the Army and invest in the business which he and his wife were operating. The first respondent handed his business card to the appellant at that time. It was in the following form:

8 The respondents resided at 16 Jimbi Place, Glenmore Park (Jimbi Place) which was also their place of business. In late October/early November 1996 the appellant attended that address and had the following conversation with the first respondent:

“Mumby: Here are some Bank Statements. You can see the business is taking in money every day”.

MacMillan: That looks OK to me. You are a soldier like me. I trust you. I will come in with you. I won’t know how much money I have until the day I get discharged, but I will put in for my discharge.”

9 Shortly thereafter the appellant and the first respondent agreed that the former would lend “money to the business” but that the details would be “sorted out later”. It was also agreed that the appellant would be employed in the business at a wage of $600 per week to be split between himself and his wife to reduce tax.

10 The appellant was duly discharged from the ADF and then worked in the respondents’ business for four weeks without pay. This was because the length of time he had served in the Army entitled him to work for four weeks as a civilian at the ADF’s expense. In this respect, on 15 October 1996, he obtained from the first respondent a letter on the respondents’ business letterhead, which was in the following form:

11 The letter itself was addressed “To Whom it May Concern” and its contents were as follows:

“This is to inform you that a member of the AUST Defence Force by the name of Mr John McMillan will be going into business. He will be starting employment for this Coy on 21 October 1996. This Coy will employ Mr McMillan for a period of four working weeks as on job training to see how he adapts and finds civil employment. If there are any enquiries please do not hesitate to phone our office.”

The letter was signed by the first respondent and under his signature appeared the word “Director”.

12 On or about 29 November 1996 the appellant had a conversation with the first respondent at Jimbi Place in which he indicated that he was about to receive his first cheque from the ADF. He asked to whom it should be made out. The first respondent replied “A.R. Appliance Sales & Rentals”.

13 On 30 November 1996 the appellant had a further conversation at Jimbi Place with the first respondent in the presence of the second respondent to the following effect:

“MacMillan: I have got my first $12,000 from the Army. I have got another $69,000 coming. I will invest it all in the business.
Mumby: You won’t regret it. Look Wendy, there is the first $12,000.”

14 The appellant handed a cheque for $12,000 drawn by the Australian Defence Credit Union Ltd to the first respondent, who provided him with a receipt on A R Pty Ltd letterhead, in the following terms:

The appellant and both respondents signed the document.

15 On 9 December 1996 the appellant advised the first respondent that he had received a further cheque for $69,000 and he would “lend it to the business as agreed”. On asking for a receipt for that amount, the first respondent advised that he would get his solicitor to draw up a loan agreement to say that he would pay back the amount in due course with interest. He further advised that after the first 12 months “we could look at paying something back. We will build the business for the first year.”

16 The appellant then handed to the first respondent a further cheque drawn by Australian Defence Credit Union Ltd in the sum of $69,000 made payable to A.R. Appliance Sales & Rentals. However, no receipt was provided for this amount nor was any loan agreement drawn up by the respondents’ solicitor.

17 The cheque for $12,000 was deposited in a Westpac account on 2 December 1996 and the further amount of $69,000 was deposited into the same account on 10 December 1996. It would appear that the appellant was present at the bank on both occasions when the first respondent made both deposits. According to the bank statements recording those deposits (which became Exhibit 1), under the heading “Account name” appeared

“ EVENSAVE PTY LIMITED
T/A A.R. APPLIANCE SALES & RENTALS ”

and against the heading “ Customer Number ” appeared the name

“05324910 EVENSAVE PTY LIMITED”.

18 Furthermore, at the top left hand corner of the bank statement appeared the words

“THE SECRETARY
EVENSAVE PTY LIMITED”

as the addressee to whom the statement was to be sent.

19 It was common ground that the bank statements provided by the first respondent to the appellant during the course of the conversation referred to in [8] above were statements of the Westpac account of Evensave Pty Limited (Evensave). When asked whether he had looked at those bank statements when they were shown to him by the first respondent, the appellant replied

“I had a look at a couple. I didn’t look at them by myself. Mr Mumby held them and I just flicked through them for me.”

20 The following further facts were common ground:

(a) A R Pty Ltd did not exist as a registered company at the time the money was lent;

(b) Evensave was registered on 25 March 1991 and deregistered on 8 February 2000; during that period the respondents were its sole directors and shareholders. Evensave’s ACN was 051 062 116, which was the number shown on the business card and letterhead referred to in [7] and [10] above;

(c) the business name A.R. Appliance Sales & Rentals was registered under the Business Names Act 1962 on 29 May 1995 and the business of sales and rentals was carried on (or out) by Evensave as the registered owner of the business name from 19 July 1995 to 14 November 1997.

21 The appellant commenced working for a company he believed to be A.R. Pty Ltd in October 1996 and continued to work for it until December 1997. His duties included banking moneys received from customers and reconciling the bank statements of the Westpac account with customer cards. The primary judge found that as part of his functions the appellant signed documents which bore the name “Evensave Pty Limited” on them. Although the appellant said in his evidence that he did not notice the name Evensave on those documents, his Honour found that on the balance of probabilities he did see the name on the bank statements but he accepted that the appellant may not have understood the significance of what he saw.

The findings of the primary judge

22 The primary judge found that the appellant believed that the company to which he lent the money was one named “A.R. Appliance Sales & Rentals Pty Limited” which had the ACN 051 062 116. He also believed that that company was owned and controlled by the respondents, that it operated from the premises at Jimbi Place owned by the respondents and operated the business in which he had commenced working. His Honour further accepted that the appellant did not understand that “A.R. Appliance Sales & Rentals Pty Limited” was in fact a business name owned by Evensave; nor did he know the difference between a business name and a company name.

23 The foregoing notwithstanding, the primary judge made the following findings which, in my opinion, are destructive of the appellant’s case on the appeal and which therefore set out in full:

“It is clear from [the appellant’s] evidence however that he wanted to invest or loan money to the business that was operating out of Jimby Place, owned and operated by a company in which the Mumbys were directors and shareholders. I think it is clear that he had been told that the business was operated by Evensave and that that was to whom the cheque should be made out, or it had been explained to him that A.R. Appliance Sales and Rentals Pty Limited was a business name owned by Evensave, that he would have had no compunction in paying over his money just as he did. In fact, he made out the cheque to the name A.R. Appliance Sales and Rentals.
The plaintiff clearly did not intend to contract with a non-existent company and had he known that the name on the letterhead was not the real name of the company he would have wanted, I infer, the receipt to be issued on the letterhead of the company that did exist and did own and operate the business with the appropriate ACN number on its face.
It follows from what I have said that the plaintiff intended to invest, by way of a loan, $81,000 in a company that had all the attributes of Evensave but that he thought that that company had the name A.R. Appliance Sales and Rentals Pty Limited. I find that the name itself was not of any significance to him, save for the fact that that was the name on the letterhead and on the business card he had been given by Mumby. I find that his predominant intention was to invest or loan money in the company which operated the business.”

The primary judge’s reasoning in relation to the various heads of claim

24 His Honour found that the case was one where mistakes induced by the first respondent had led the appellant to believe that the name of the company with which he was dealing was “X” but was really “Y”. However, in view of his finding the appellant would have still entered into a contract of loan with that company if he had been aware that the business was operated by Evensave, his Honour determined that, objectively, a contract of loan had been formed between the appellant and Evensave because that company:

“1. Had the ACN number on the letterhead.
2. Operated out of the Mumbys’ home and had the phone numbers that are on the letterhead which were the numbers at Mumbys’ home.
3. Ran a business under the business name A.R. Appliance Sales and Rentals which business name Evensave owned.
4. Was a company the shares in which were owned by the Mumbys and the directors of which were the Mumbys.
5. Had employed the plaintiff for four weeks.
6. Was the only company which could continue to employ the plaintiff in connection with the business.”

25 As to the claim based on a mistake of fact, the appellant argued that he had paid money under a mistake of fact and that the respondents had thereby been enriched. The primary judge rejected this argument upon the following grounds. First, the cheques had been addressed to the business name A.R. Appliances Sales & Rentals and had been deposited to Evensave’s account with Westpac so that the proceeds were never in the hands of the respondents. Therefore, if the payment was the result of a mistake of fact by the appellant, his claim was against Evensave and not the respondents. Secondly, as his Honour had already found, the appellant’s intention was to contract with the company having the attributes of Evensave “so the mistake was not a mistake fundamental to the payment”.

26 His Honour also rejected the claim based on negligent misrepresentation, again upon the ground that there was a contract with an existing entity and not with a non-existent entity. This is because, on the balance of probabilities, the appellant would not have done anything different to that which he did if he had been told the correct name of the company which operated the business.

27 For the same reasons, his Honour rejected the claim based on breach of warranty of authority. He said:

“Consistent with the finding that the predominant intention of the plaintiff was to enter into a contract with a company that operated the business and was controlled and owned by the Mumbys there was a contract formed with Evensave through its agents the Mumbys. There was thus no breach of warranty of authority by the Mumbys even though they did represent that the company name was that which was on the letterhead.”

28 It is not clear from his Honour’s judgment that he dealt specifically with the appellant’s claim for money had and received by the respondents for the use of the appellant. This omission may be explained by his finding that the moneys paid by the appellant had clearly been received by Evensave and were “never in the hands” of the respondents.

The appellant’s contentions on the appeal

29 Before this Court, the appellant advanced the same five claims as had been pressed before the primary judge although, in oral address, the appellant generally concentrated his submissions on the claim for money paid under a mistake of fact, relying on his written submissions with respect to the other four heads of claim.

The claim that the contract of loan was with the respondents personally

30 The first claim was that there was a contract of loan between the appellant and the respondents personally rather than, as the primary judge held, between the appellant and Evensave. The basis of this claim was that there could not be a contract of loan between the appellant and A R Pty Ltd as no such company existed. Authority for this proposition was said to be that of the High Court in Black v Smallwood (1966) 117 CLR 52.

31 However, the appellant recognised that in that case it was held that it was not the law that a person purporting to contract on behalf of a non-existent principal was, in all cases, personally liable on the contract. The relevant passage in the joint judgment of Barwick CJ, Kitto, Taylor and Owen JJ (at 56), is as follows (omitting footnotes):

“We should add that we fully agree with the observations of Fullagar J in Summergreene v Parker concerning the basis of the decision in Kelner v Baxter . He said: ‘I do not myself think that Kelner v Baxter or any of the cases cited affords any assistance in the present case. Where A, purporting to act as agent for a non-existent principal, purports to make a binding contract with B, and the circumstances are such that B would suppose that a binding contract had been made, there must be a strong presumption that A has meant to bind himself personally. Where, as in Kelner v Baxter , the consideration on B’s part has been fully executed in reliance on the existence of a contract binding on somebody, the presumption could, I should imagine, only be rebutted in very exceptional circumstances. But the fundamental question in every case must be what the parties intended or must be fairly understood to have intended. If they have expressed themselves in writing, the writing must be construed by the court. If they have expressed themselves orally, the effect of what they have said is a question of fact – a question for the jury, if there is a jury.”

32 It was submitted that, as the contract had been fully performed by the appellant in that the money had been lent in reliance upon the existence of a binding contract of loan, the presumption that there was a binding contract with the respondents personally could only be rebutted in very exceptional circumstances.

33 The difficulty with this proposition is that it is clear that the appellant did not intend for there to be a binding contract of loan with the respondents personally and that intention was mutual. The primary judge’s findings leave no doubt that the appellant intended to enter into a contract of loan with the company of which the respondents were directors and shareholders and that operated the appliance, rental and sales business – but that company was Evensave.

34 In other words, the appellant believed that he was lending the money to A.R. Appliance Sales & Rentals Pty Limited which as the primary judge found did not exist. Nonetheless the appellant’s intention was to lend the money to a company that had all the attributes of Evensave.

35 In Black v Smallwood, it had been contended (at 54-55) that it was a principle of the common law that when a person purported, without authority, to enter into a contract as agent with another person he was personally liable on the contract. Although it was acknowledged that that rule had been displaced in cases where a person had purported to act on behalf of another existing person whose authority he lacked, the rule had not been displaced in cases where an agent purported to act for a non-existent principal.

36 This contention was disposed of in the joint judgment in the following terms (at 56-57) (omitting footnotes):

“In dealing with the appellants’ second contention we shall endeavour to express briefly the reason why we think the common law never recognised such an absolute rule, such as is suggested. Indeed, the decision in Jenkins v Hutchinson, we think, tends to show this to be so for in that case the Court concluded that: ‘ In the absence of any direct authority … that a party who executes an instrument in the name of another, whose name he puts to the instrument and adds his own name only as agent for that other, cannot be treated as a party to that instrument and be sued upon it, unless it can be shewn that he was the real principal’. “

37 Further, after discussing the relevant authorities, their Honours observed (at 60)

“We think it is true to say that it has never been a principle of the law that a person, who, without authority, purports to contract on behalf of another must, in all cases, be taken to have contracted as a principal. Of course, it may be shown that he was the real principal in the transaction … or it may appear that, in the language of Story J, ‘there are apt words to charge him’ in which case he will be liable on the contract.
…
However, in the present case the respondents did not contract, or purport to contract, on behalf of the non-existent company. They simply subscribed the name of the non-existent company and added their own signatures as directors in the belief that the company had been formed and they were directors. The fact that their signatures appeared as part of the company’s signature did not make them parties to the contract nor could, as was possible in Kelner v Baxter , an intention to be bound personally be imputed to them.”

38 In the present case, as I have already observed, the respondents did not purport to contract on behalf of a non-existent company (A.R. Appliance Sales & Rentals Pty Limited) insofar as they signed the receipt referred to in [14] above as directors and, therefore, only as an agent rather than as the real principals. It being the objective intention of both parties that any contract for loan would be between the appellant and the company who carried on the relevant business, no room exists to support a finding that merely because A.R. Appliance Sales & Rentals Pty Limited was non-existent company, the parties intended that the contract of loan would be between the appellant and the respondents personally.

39 Nothing could be further from the truth as far as the appellant was concerned. He was lending the money to, and for the purpose of, the business which was operated by the company of which the respondents were the directors and shareholders. It was never his intention to lend the money for any other purpose, let alone to the respondents personally.

40 Accordingly, in my opinion the primary judge was correct in rejecting the appellant’s submission that there was a contract of loan between the appellant and the respondents personally.

The claim for money had and received by the respondents for the use of the appellant

41 The appellant submitted that the respondents were liable on a common money count for money payable by the respondents to the appellant for money had and received by the respondents for the use of the appellant. It was contended that the count lies where a defendant has received moneys and the court thinks it equitable that the defendant should pay over the money to the plaintiff, provided that the law can consistently impute to the defendant the fiction of a promise.

42 In particular, it was contended that such an action could be maintained only where the moneys sought to be recovered had actually been received by the defendant, and where representations had been made to the plaintiff under circumstances which would have estopped the defendant from denying his receipt of the money: Prince v Oriental Bank Corporation (1878) 3 App Cas 325 at 328. In this context the primary judge held that, as a matter of fact, the two cheques for $12,000 and $69,000 respectively were not actually received by the respondents but were received by Evensave having been deposited to its Westpac account.

43 The appellant seeks to avoid this finding by asserting that the respondents made representations to the appellant which, in the circumstances, estopped them from denying that they themselves received the money. The appellant’s written submissions do not identify the precise nature of the representation relied upon, although reference is made to the fact that the cheques were, at the request of the first respondent, drawn in favour of A.R. Appliance Sales & Rentals and were handed to the first respondent for depositing into the bank account. However, I find it difficult to see that these facts support any relevant representation that could found an estoppel of the nature contended. Furthermore, it is difficult to separate this claim from that of mistake of fact. They clearly overlap.

44 The appellant further submitted that the receipt signed by the respondents constituted an acknowledgment by them personally that they had received the moneys as the acknowledgment was otherwise on behalf of a non-existent company. This contention is equally difficult to follow. The principle relied upon by the appellant could only apply where the respondents represented that the money was received by them for the use and benefit of the appellant, in circumstances where it would be unconscionable for them to deny that it was received by them as directors of the company that carried on the relevant business for the purpose of that business. In my opinion, there was no such representation.

45 Finally, the appellant placed reliance on a conversation in March 1997 when the first respondent informed the appellant that he was not in a position to pay back the loan and suggested that the appellant and his wife purchase the respondents’ house at Jimbi Place for $190,000 upon the basis that they had already paid a deposit of $70,000. In response to this suggestion, the appellant and his wife moved into the residence at Jimbi Place as tenants and paid rent pending exchange of contracts of sale. In this respect the appellant received a contract for sale from the respondents’ solicitors which contained a special condition in the following terms:

“It is acknowledged by the parties that the deposit of $70,000 has been paid by the Purchaser to the Vendor prior to the date hereof.”

46 Contracts were never exchanged. However, it was submitted that the special condition constituted an admission by the respondents that they had received $70,000 from the appellant, and that they were estopped from denying receipt of this money.

47 In my opinion, there is no substance in this submission. No doubt the respondents were looking for a way to assist the appellant in obtaining repayment of his loan in circumstances where Evensave was unable to do so. However, in my opinion it cannot constitute some form of representation on the part of the respondents that, at the time the loan was made, it was received by them in circumstances which would give rise to an action for money had and received. As the respondents did not commit to the contract, the alleged admission in the special condition could carry little, if any, weight. Accordingly, even if the primary judge did not explicitly reject this basis of the appellant’s claim, I would do so.

The claim based on mistake of fact

48 The appellant submitted that the respondents were personally liable to repay the money because it had been paid by the appellant, pursuant to a mistake of fact on his part, that the borrower was A.R. Appliance Sales & Rentals Pty Limited and that, if he had known that there was no such company, he would not have entered into the transaction. The problem with this submission is that its factual underpinning was undermined by the primary judge’s findings, which I have set out in [23] above. His Honour found that, firstly, the name of the company to which the appellant was lending the money was not significant to him; secondly, that what was significant was that he was lending the money to the company which operated the business of appliance sales and rentals of which the respondents were directors and shareholders; and thirdly, that the appellant’s predominant intention was to lend money to the company which operated that business.

49 The relevant principles relating to mistake of fact are to be found in the decision of the High Court in David Securities Pty Ltd v CommonwealthBank of Australia (1992) 175 CLR 353. It was submitted that this decision was authority for the proposition that a mistake of fact need not be fundamental, and that the primary judge therefore erred when he rejected the appellant’s claim on the basis that his intention was to contract with a company having the attributes of Evensave, and that his mistake “was not a mistake fundamental to the payment”.

50 In their joint judgment, Mason CJ, Deane, Toohey, Gaudron and McHugh JJ (at 376), having rejected the so-called traditional rule denying recovery in cases of payments made under a mistake of law, held that mistakes of law should be treated in the same way as mistakes of fact

“so that there would be a prima facie entitlement to recover moneys paid when a mistake of law or fact has caused the payment.”

51 Their Honours then considered whether there was a requirement that the mistake must also be fundamental as well as causative. At 377-378 they rejected the notion of fundamentality as being too vague and adding little, if anything:

“to the requirement that the mistake caused the payment. If the payer has made the payment because of the mistake, his or her intention to transfer the money is vitiated and the recipient has been enriched. There is therefore no place for a further requirement that the causative mistake be fundamental … If a strict approach is taken towards the issue of mistake so that a plaintiff bears the burden of establishing on the balance of probabilities that a causative mistake has been made, there would also be no need to appeal to the element of fundamentality as a limiting factor. So, the payer will be entitled prima facie to recover moneys paid under a mistake if it appears that the moneys were paid by the payer in the mistaken belief that he or she was under a legal obligation to pay the moneys or that the payee was legally entitled to payment of the moneys. Such a mistake would be causative of the payment.”

52 Given that in the present case his Honour accepted that the appellant believed that the company to whom he lent the money was a company that had the name “A.R. Appliance Sales & Rentals Pty Ltd”, the issue was whether that mistake caused the appellant to lend the money to and for the purpose of the respondents’ business.

53 In my opinion, the findings of the primary judge, which I have set out in [23] above, are determinative of that question. Those findings make it clear that the mistake under which the appellant laboured did not cause him to lend the money to, and for the purpose of, the respondents’ business, and that he would have lent the money to Evensave had he been aware that it operated the business A.R. Appliance Sales & Rentals and was a company of which the respondents were directors and shareholders.

54 In my opinion, therefore, the primary judge was correct in rejecting the appellants claim based on mistake of fact.

The claim based on breach of warranty of authority and negligent misrepresentation.

55 The appellant accepted that each of these claims would fail if the issue of causation with respect to the claim based on a mistake of fact were found against him. This was recognised by the appellant in his written submissions on both these issues. These submissions accepted that the appellant would need to establish that the loan transaction would not have been entered into had the appellant been aware that A.R. Appliance Sales & Rentals Pty Limited did not exist, contrary to the suggested representation by the respondents that it did. Although the appellant’s submissions on negligent misrepresentation argued that the primary judge erred in holding that had the appellant been told the correct name of the company, he would not have done anything different to that which he did, the appellant did not make any effective attempt at the hearing of the appeal to undermine the correctness of the primary judge’s findings referred to in [23] above.

56 So that there can be no misunderstanding about the matter, in my opinion those findings were amply supported by the answers given by the appellant in cross-examination, particularly at Black 61R-W, 85O-P; 113O-S; 114K-M; 127L-X and 128L-N.

57 It follows from the foregoing that no error has been demonstrated in his Honour’s rejection of these claims.

Conclusion

58 In my opinion the appellant has failed to demonstrate any error on the part of the primary judge in rejecting the five claims upon which he based his case for repayment by the respondents personally of the moneys lent by him to, and for the purpose of, the respondents’ business. At the end of the day, the appeal fails because, notwithstanding that the appellant believed that he was lending the money to A.R. Appliance Sales & Rentals Pty Limited, his Honour found that that mistaken belief did not cause him to lend the money to Evensave as the owner of the business A.R. Appliances Sales & Rentals. Accordingly, I propose that the appeal be dismissed with costs.

59 McCOLL JA: I agree with Tobias JA.

60 BRYSON JA: I agree with Tobias JA.

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