McBratney v Dines
[2002] WADC 113
•7 JUNE 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MCBRATNEY -v- DINES [2002] WADC 113
CORAM: FRENCH DCJ
HEARD: 23 MAY 2002
DELIVERED : 7 JUNE 2002
FILE NO/S: CIV 1474 of 2001
BETWEEN: ANNE PATRICIA MCBRATNEY
Plaintiff
AND
ANTHONY JOHN DINES
Defendant
Catchwords:
Breach of contract - Loans made to defendant by plaintiff - Debts incurred by plaintiff at request of and on behalf of defendant - Moneys not repaid on demand by plaintiff
Legislation:
Supreme Court Act 1945, as amended, s 32
Result:
Judgment for the plaintiff in the sum of $34,108.55
Representation:
Counsel:
Plaintiff: Mr S J Blyth
Defendant: In person
Solicitors:
Plaintiff: Lewis Blyth & Hooper
Defendant: No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
FRENCH DCJ: The plaintiff's action is for damages for breach of contract between the plaintiff and defendant relating to various loans which have not been repaid by the defendant despite demands by the plaintiff for repayment. The plaintiff also seeks interest incurred by the plaintiff as a result of entering into contracts at the defendant's request or alternatively pursuant to s 32 of the Supreme Court Act 1945 as amended. In a defence prepared on his own behalf the defendant denies liability for any of the amounts claimed by the plaintiff.
General background
The plaintiff first met the defendant in approximately July/August 1996. At that time the plaintiff was a single woman with secure employment as a qualified nurse working in a nursing home. The defendant was employed as a salesman at a local car yard. The plaintiff purchased two motor vehicles for her son and daughter. As a result of these purchases she became friendly with the defendant. Some time in 1997 the defendant advised the plaintiff that he would be away for approximately 12 months as he intended to go overseas to work in Bali. Towards the end of December 1997 or early 1998 the plaintiff was advised by a work colleague of the defendant's that he had been injured in Bali and needed money from friends to finance his return. The plaintiff offered $5,000 which was paid to the plaintiff's acquaintance by way of a bank cheque. Some time later the plaintiff was contacted by the defendant and advised that he had returned to Perth. On further enquiries it became apparent that the defendant had not received the $5,000 and knew nothing of it. He assisted in organising the repayment of the plaintiff's $5,000.
After that the plaintiff and defendant resumed their friendship; the defendant was working as a car salesman at that stage selling cars on commission. As a result of his difficulties in Bali and the aftermath of a marriage break-up he was in financial difficulties. During 1998 the plaintiff maintained a friendship with the defendant and this ultimately developed into a relationship. During this period the plaintiff assisted the defendant financially on a number of occasions. In some cases this was achieved by handing over amounts of cash to assist the defendant in setting up a residence for himself and his young son and in other cases by entering into finance arrangements to provide motor vehicles and other goods for the defendant. The plaintiff claims that this financial assistance was rendered by way of loans to the defendant on condition that the defendant agreed to repay the cash loans and to take responsibility for repayments for finance arrangements taken out by the plaintiff in her name but for the defendant's benefit. The plaintiff claims that none of the loans have been repaid despite demand. Contrary to the agreements between herself and the defendant he has failed to make payments under financial arrangements entered into by her and consequently she has been responsible for continued payments to various financial institutions for debts incurred by her on the defendant's behalf. The relationship ceased in approximately December 1998.
In broad terms the defendant claims that any financial benefits that he has obtained through the plaintiff were by way of gifts and that there was no obligation on his part to repay any moneys transferred to him by the plaintiff. In relation to a loan taken out by the plaintiff in order to purchase a Nissan Terrano motor vehicle to be used by the defendant the defendant claims that the motor vehicle was delivered up to the plaintiff and he has no further financial obligation in relation to that motor vehicle or the finance arrangements entered into by the plaintiff for its purchase.
Evidence of plaintiff
The plaintiff explained the circumstances in which she met the defendant and the development of their friendship and relationship. She gave evidence of the circumstances in which she loaned money to the defendant or entered into loan arrangements on his behalf. Her evidence in relation to these incidents was in each case confirmed by documentation tendered to the Court as exhibits. It is convenient to deal with her evidence by examining the discrete loan transactions.
Cash loans
In early April 1998 the $5,000 that the plaintiff had given to the defendant's friend to assist him to return from Bali was repaid and eventually deposited into the plaintiff's Home Building Society account on 17 April. At that time the defendant was seeking to establish a home for himself and his young son and asked the plaintiff to lend him that sum of $5,000 in order to establish himself in a unit in Kardinya. The plaintiff agreed to lend the defendant the sum of $5,000 on the basis that he would repay her when he had obtained further commission from his occupation of selling cars. The plaintiff stated that the defendant requested that the money be paid in cash as it would take some time for a cheque to clear. She gave him $5,000 in payments of $1,000 withdrawn from her Home Building Society account on 8 April, 5, 11, and 13 May and on 4 June. The plaintiff handed over the five sums of $1,000 in cash to the defendant at her house. She explained that the $5,000 was paid in five separate instalments as that was the limit that she was able to withdraw from her Building Society account on a daily basis. The first payment made on 8 April was in fact for the sum of $1,100. The plaintiff denies that any part of the sum of $5,100 was by way of a gift to the defendant and states that at all times the agreement was that he would repay that amount of money to her. The plaintiff said that despite requests from her for repayment of the moneys none had been forthcoming and these cash loans have not been repaid. A letter of demand was sent to the defendant by the plaintiff's solicitors on 7 May requesting payment of the cash loans together with other amounts owing but no payments have been made.
Home Building Society loans for purchase of two motor vehicles
Early in June 1998 the defendant suggested to the plaintiff that he had an opportunity to purchase two motor vehicles for $3,000 each and that if she loaned him $6,000 he would be able to re‑sell the cars and they could share the profits made. The plaintiff obtained a personal loan from the Home Building Society and used her own motor vehicle as collateral. The loan was by way of a goods mortgage and the agreement was entered into by the plaintiff on 5 June 1998. The loan agreement was tendered as Exhibit E1 in these proceedings. The loan agreement provided for monthly repayments of approximately $127 per month made up of 60 payments to repay the capital amount of $6,000 together with interest in the sum of $1,640. The sum of $6,000 was withdrawn in two separate amounts of $3,000 on 5 and 10 June 1998. The plaintiff advised that these cash amounts were handed over to the defendant when she met him for dinner. The plaintiff stated that despite demand no part of the $6,000 has been repaid to her and despite enquiries she has received no explanation from the defendant as to what happened to the two white motor vehicles that he showed her that he had purchased with the money. The plaintiff denies that the $6,000 was by way of a gift and states that at all times the agreement between herself and the defendant was that that amount of money would be repaid from profits obtained from the sale of the two motor vehicles.
The BMW loan
In July 1998 the defendant again requested the plaintiff to loan him money in order to purchase a second hand red BMW motor vehicle. The plaintiff requested 9 weeks pay in lieu of annual leave from her employer and cashed that cheque at a Westpac bank in Victoria Park and handed over the sum of $4,100 in cash to the defendant. The plaintiff's pay cheque for the period ending 1 July 1998 and marked H7 in the plaintiff's bundle of documents was exhibited in these proceedings. The plaintiff advised that she saw the BMW on one occasion and also saw that the defendant advertised that motor vehicle for sale in the Sunday Times on 21 June 1998. The plaintiff advised that the defendant gave no explanation as to what happened to the motor vehicle and has not repaid any part of the $4,100. She denies that this was by way of a gift to the defendant and states that at all times her agreement with the defendant was that he would repay those moneys to her.
Laptop computer
In approximately October 1998 the defendant advised the plaintiff that he wished to start up a business called "Why Not Promotions". The defendant requested the plaintiff to take out a 6 month interest free loan to purchase a laptop computer for use in that business. On 2 October 1998 the plaintiff received confirmation from G E Finance Australia that her application for finance in order to purchase a laptop computer from Archie Martin Vox had been approved. The plaintiff stated that the defendant advised that he would make all repayments under the loan and would be able to repay the loan by way of a lump sum in approximately March or April of 1999 within the 6 month interest free period. The purchase price for the laptop computer was the sum of $3,434. As the defendant had made no payments the plaintiff commenced payments by instalment in April 1999. Documentation itemised as C1 through to C34 confirms the plaintiff's obligation under the loan contract and her repayments up to 30 April 2002. The plaintiff advised that she retained possession of the laptop computer after April as the defendant was not making any of the repayments. It was returned to her as the seller Archie Martin Vox had requested the computer be returned for some repair work to be carried out on the modem to the computer. The plaintiff advised that in November 1999 her home was broken into and the laptop computer was stolen. The plaintiff received a replacement computer as a result of an insurance claim. The plaintiff advised that she was not seeking any damages from the defendant in relation to the purchase of the laptop with the exception of a sum of $778.57 which is claimed by the plaintiff as interest paid by her pursuant to the finance agreement that required payment of interest because instalments had not been paid by the defendant within the 6 month interest free period.
ANZ Visa card
In approximately October 1998 the defendant suggested to the plaintiff that they should take a holiday together in Bali. In order to obtain finance for this holiday the defendant suggested to the plaintiff that she obtain a Visa card with a credit limit of $5,000 to be used for the holiday. The defendant went with the plaintiff to the ANZ branch in East Victoria Park and an application was filled out by the plaintiff. An ANZ Visa card issued in the plaintiff's name but was retained by the defendant. The defendant used the Visa card without the knowledge of the plaintiff on a variety of purchases to a total amount of $6,383.79. When the plaintiff subsequently received statements from the ANZ Bank listing various purchases and transactions the plaintiff initially thought the bank had made a mistake. She contacted the defendant and he came around and checked all of the items on the Visa statement she had received (Exhibit 8). She stated that he told her that he had made those purchases. The plaintiff denies at any stage suggesting to the defendant that he use the Visa card for purchases and denies that she gave him any permission to do so. Despite requests for repayment the defendant has not repaid any of the amounts incurred by him and debited to the plaintiff's Visa card account. The plaintiff subsequently entered into negotiations with the ANZ Bank and has been repaying the amount owing by instalments. As of 5 May 2002 the plaintiff had paid the sum of $3,862 to the ANZ Bank leaving an amount of $3,315.73 outstanding. This was confirmed in documents marked B4‑B34 in the plaintiff's bundle of documents and tendered as an exhibit in these proceedings.
Home theatre system
In October 1998 the defendant's home was broken into and he wanted to buy a replacement television set. He suggested that the purchase should be made from a friend of his who worked at Victoria Park Retravision store. The plaintiff and the defendant went to the store and the defendant collected a home theatre system for the amount of $2,225. The plaintiff entered into a loan agreement for a 6 month interest free loan with Australian Guarantee Corporation (AGC) on the basis of 6 month interest free terms at the request of the defendant. The defendant undertook to repay the full amount owing under the finance agreement as he said he would have money by April 1999 within the 6 month interest free limit. The plaintiff stated that at no stage was this by way of a gift to the defendant. The loan was taken out in her name on the basis that it would be the defendant who repaid the money. The loan agreement entered into by the plaintiff with AGC dated 15 October 1998 and monthly statements acknowledging payments made by the plaintiff were tendered as exhibits (D1‑D39) in the plaintiff's bundle of documents. As at 9 May 2002 the sum of $995.86 was still owing under the finance agreement with AGC.
Nissan Terrano
In October 1998 the defendant told the plaintiff that he required a motor vehicle for his new business of Why Not Promotions. He arranged for the purchase of a Nissan Terrano motor vehicle but because he was not able to obtain finance in his name he organised for finance to purchase the vehicle in the plaintiff's name. The defendant advised the plaintiff that he was going to be making all payments under the finance agreement. The plaintiff entered into a loan contract with Advantage Credit Union Limited. The motor vehicle was purchased for the sum of $22,000 but after taking into account various charges set out in Exhibit A5 in the plaintiff's bundle of documents the loan agreement was for a total sum of $22,795.25 to be repaid in monthly instalments of $225 which included an interest component of 13.95 per cent. The defendant took possession of the motor vehicle and signs advertising his business were affixed to the exterior of the vehicle. The defendant kept the loan repayment book and made repayments until May 2001. On a number of occasions in the period from October 1998 to May 2001 the plaintiff received reminder notices from the credit provider advising of late payment of monthly instalments. When the plaintiff received these notices she would contact the defendant to advise him. She stated that she would have called him at least twelve times during this period. The defendant usually made what she described as "lame excuses" on these occasions. On two occasions the defendant rang the plaintiff asking her to sign papers to transfer registration into the defendant's name so that they could use it to trade in for another vehicle. On both occasions the plaintiff declined to do so but advised the defendant of the pay out figure for the motor vehicle loan.
On 7 May 2001 the plaintiff's solicitors wrote to the defendant in relation to all moneys owing to the plaintiff as a result of the abovementioned loans and in particular advising that the plaintiff had been forced to make payments under the loan agreement for the purchase of the Nissan Terrano in the sum of $1,621.15. In a letter dated 9 May the defendant advised that he intended to return the motor vehicle to the plaintiff in good condition. The motor vehicle was returned to the plaintiff by leaving it at an office of her solicitors on 21 May. The plaintiff was advised by the finance company that it would be in her interests to have the motor vehicle auctioned to reduce the loan. The plaintiff subsequently made arrangements for the motor vehicle to be auctioned in August 2001 for the sum of $7,500. After deducting auction fees and car detailing expenses the amount of $7,148 was paid to the finance company. In a letter dated 10 August 2001 and marked A40 in the plaintiff's bundle of documents, the motor vehicle auctioneer advised the plaintiff that the selling price was less than had been anticipated as the motor vehicle did not have a good resale value and it was devalued by the fact that some of the sign writing that had been applied to the duco could not be removed. The plaintiff has continued to make payments under the loan agreement in relation to the moneys borrowed for the purchase of the motor vehicle and as at 8 May had made total payments of $4,588 leaving a balance of $3,221.66 still outstanding. In January 1999 the plaintiff paid $900 for registration and transfer fees in relation to the Nissan Terrano. The receipt for this transaction is marked A6 in the plaintiff's bundle of documents and tendered as an exhibit in these proceedings. The plaintiff also advised that on 1 April 1999 she paid $100 for a traffic infringement sent to her but incurred by the defendant in driving the Nissan Terrano. There was no discussion in relation to this fine although it was paid by the plaintiff as she was unaware that it could be returned through the traffic authority with details of the driver endorsed.
Defendant's evidence
The defendant declined to cross‑examine the plaintiff despite being advised that it may be in his interests to put matters in dispute to her. The defendant elected to give evidence. The defendant explained that he was a manager of a car yard in Perth when he first met the plaintiff in 1997. The plaintiff helped him in 1998 when he was in a difficult financial position. He stated that she showered himself and his son with gifts and in that manner intruded into his life. The friendship became a relationship until early in 1999 when he advised her that he did not want the relationship to continue. He said that after that he did not hear from the plaintiff until he began to receive letters from her solicitors in 2001 demanding repayment of a sum in the vicinity of $55,000.
The defendant admitted that he had responsibility in relation to the loan incurred for the purchase of the Nissan Terrano. However he stated that he had returned the motor vehicle in good condition to the plaintiff in May 2001. He denies any liability for payment of the balance due under the loan agreement as he stated that the plaintiff had acted unreasonably in auctioning it for less than its value. The defendant denied that he owes any moneys to the plaintiff in relation to the other loans as he claims that they were all made in the form of gifts and on the understanding that he would not be obliged to repay any of the amounts although he intended to if he was ever in a financial position to do so.
The defendant denied that the plaintiff had ever shown him the Visa card statement and asked him if any of the transactions were his responsibility and stated that he had never seen the Visa card statement before.
Although the defendant was undoubtedly hampered by the fact that he was not legally represented his evidence was vague, inconsistent and lacked credibility. He attributed the plaintiff's attempts to recover the moneys claimed as due to "sour grapes" on her part and motivated by the break‑up in their relationship. On the one hand he claimed that all of the moneys the subject of these proceedings with the exception of the motor vehicle were by way of gifts but then he contradicted that claim by stating that she had not pressed for payment prior to the letter he received from her solicitors in May 2001. On other occasions his defence seemed to come down to a submission that he had no money to meet the plaintiff's claim and that there was therefore no point in these proceedings. He stated that he was unable to provide details in relation to the sale of the motor vehicles financed by cash loans from the plaintiff. The only conclusion that could be drawn from his inability to provide details in relation to this transaction and to other matters is that he chose not to do so.
I accept the plaintiff's evidence that the moneys transferred to the defendant were made by way of loan on the understanding that they would be repaid to the plaintiff. On the occasions when the plaintiff entered into financial transactions whereby she borrowed money in her name for purchases at the request of and for the use of the defendant the agreement with the defendant was that he would repay the loans either to the plaintiff or to the financial entity involved. I am also satisfied on the basis of the plaintiff's evidence that she took all reasonable steps to obtain an appropriate price for the sale of the Nissan Terrano motor vehicle in order to reduce the amount outstanding and thereby minimise her continuing obligation under the loan agreement. All of the plaintiff's claims were supported by documentation in relation to the individual transactions and confirm all her repayments. The defendant's account that all of these arrangements were gratuitous payment by the plaintiff on the understanding that he had no obligation to repay is inconsistent with admissions made by him during the course of his evidence, and inconsistent with the circumstances in which the loans were entered into by the plaintiff or moneys handed over to the defendant. I do not accept the defendant's account that the plaintiff had given him permission to pledge the credit of her Visa card and accept the plaintiff's evidence that he went around to her place and acknowledged his indebtedness in relation to the items listed on the Visa card statement. Although there was no agreement between the plaintiff and the defendant as to repayment of the Visa account as the plaintiff did not authorise the defendant's use of the account she is entitled to recover the debt incurred by the defendant. The only evidence that the defendant gave that I am prepared to accept is that the plaintiff may have some difficulty in extracting any payment of the judgment sum that will be awarded to her. The plaintiff will be awarded judgment in the amounts claimed as set out in her Schedule of Damages with the amendments noted below. There will be no judgment for the amount of payment of $100 traffic infringement as that was a gratuitous payment made by the plaintiff and not at the request of the defendant. There will be no judgment for any amount claimed in relation to the laptop computer as the plaintiff advised in the course of her evidence that she was not pursuing this claim against the defendant and she is not entitled to interest paid when she has retained the computer. The amount of interest claimed will be reduced to the period from 7 May 2001 when the letter of demand was sent to the defendant for repayment of the moneys. There was no agreement between the plaintiff and the defendant that interest would be paid in relation to the amounts claimed and although I accept the plaintiff's evidence that she made approaches to the defendant it was not until 7 May that a formal letter of demand was sent to the defendant.
Amended Schedule of Damages
Nissan Terrano
19/19/1998 Purchase of car $23,715.25
14/01/1999 Registration $900.00
VariousPayments by plaintiff $4,588.00
VariousPayments by defendant $13,997.00
22/10/2001 Auction of Terrano $7,148.00
Money outstanding as of 31 March 2002 $3,971.66
Money outstanding after April, May payments $3,221.66
Total claim for Terrano $8,709.66
ANZ Visa
Moneys expended by defendant $6,383.79
Payments made by plaintiff $3,862.00
Money outstanding as of 5 May 2002 $3,315.73
Total claim for Visa $7,177.73
Home Theatre System
Purchase of Home Theatre System $2,225.00
Payments made by plaintiff $2,025.30
Money outstanding as of 9 May 2002 $995.86
Total claim for Home Theatre System $3,021.16
Other loans
Home Building Society Loans $3,000.00
$3,000.00
Cash Loans$1,100.00
$1,000.00
$1,000.00
$1,000.00
$1,000.00
BMW Loan$4,100.00
Total$15,200.00
Add 6% interest from 7.5.01/7.6.02
Total claim for other loans $16,120.00
Total Damages $34,108.55
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