Miodrag Djordjevic v Aleksandar Djordjevic

[1999] NSWSC 1223

CITATION:	MIODRAG DJORDJEVIC v ALEKSANDAR DJORDJEVIC & ANOR. [1999] NSWSC 1223
CURRENT JURISDICTION:	EQUITY
FILE NUMBER(S):	4145/96
HEARING DATE(S):	10 August 1998, 9, 22, 23 and 25 March 1999
JUDGMENT DATE:	15 December 1999
PARTIES :	MIODRAG DJORDJEVIC v ALEKSANDAR DJORDJEVIC & ANOR.
JUDGMENT OF:	Simos J

COUNSEL :	MS Zammit (Plaintiff - originally) Plaintiff in person (later) GP Segal (First Defendant) IF Dwyer, Solicitor (Second Defendant - submitting)
SOLICITORS:	Terence G. Jessop (First Defendant) Laurence & Laurence (Second Defendant - submitting)
CATCHWORDS:	Gift of cheques - gift by plaintiff (father) to first defendant (son) of $120,000 by delivery of two cheques coupled with intention to make one gift of $50,000 and a second gift of $70,000 there being no issue that the cheques were paid - ; Held, the gifts were complete and could not be recalled by plaintiff (donor).
CASES CITED:	In Re Swinburne; Sutton v Featherley (1926) 1 Ch 38
DECISION:	Proceedings dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SIMOS J

WEDNESDAY, 15 DECEMBER 1999

(NO, 4145/1996): MIODRAG DJORDJEVIC v ALEKSANDAR DJORDJEVIC & ANOR.

JUDGMENT

1   HIS HONOUR: The Proceedings: By further amended summons filed 20 June 1997 Miodrag Djordjevic, the plaintiff, claims, in effect, to be entitled to recover from Aleksandar Djordjevic, the first defendant, his son, an amount of $120,000 paid by the plaintiff to the first defendant by way of two payments by cheque, namely, a first payment of $50,000, being part of a payment by cheque of $57,000, and a second, later, payment by cheque of $70,000.

2   The further amended summons claims a declaration that the first defendant holds the amount of $120,000 standing to the credit of the first defendant's account with Advance Bank Australia Limited, the second defendant, and known as IBD Account No. 337.025115 upon trust for the plaintiff, and further, and in the alternative, a declaration that that amount in that account is the property of the plaintiff. Further, and in the alternative, the further amended summons claims a declaration that the first defendant holds the amount of $120,000 upon trust for the plaintiff.

3   The alleged factual basis for the plaintiff’s claim is that the plaintiff paid the said moneys to the first defendant to enable the first defendant to bid at auction on behalf of the plaintiff, and to pay, on behalf of the plaintiff, a deposit in respect of the purchase by the plaintiff of any property in respect of which the first defendant was the successful bidder on behalf of the plaintiff, pursuant to arrangements made between the plaintiff and the first defendant, during the time when the plaintiff was, or was anticipated to be, away from Australia and in Yugoslavia. In the events which happened, the first defendant did not make any bid at any auction on behalf of the plaintiff and, accordingly, no occasion arose for the payment of any deposit by the first defendant on behalf of the plaintiff.

4   Counsel for the plaintiff in the "Short Outline of Submissions" filed on behalf of the plaintiff submitted that the resolution of the issues in the proceedings involved “an interplay of two equitable principles" being "the presumption of a resulting trust in favour of the plaintiff as the source of the $120,000 deposited in the IBI) Account where the plaintiff’s son, the first defendant, holds the $120,000 on trust for the plaintiff” and the "countervailing presumption of advancement to the plaintiff’s son".

5   In my opinion, however, the resolution of the present proceedings does not depend upon the interplay of any presumptions because, in my opinion, the evidence is sufficiently detailed and clear to enable the Court to determine the actual intention of the parties which, of course, displaces any presumptions which might otherwise be applicable.

6   Although not embodied in any formal "defence" document, the affidavits filed on behalf of the first defendant make it clear that the first defendant resists the claims of the plaintiff upon the basis that the first payment to him by the plaintiff of $50,000 (part of the sum of $57,000) was a payment by way of gift from the plaintiff to the first defendant to enable the first defendant to pay a deposit in respect of the purchase by him of a home unit to be selected by him, whilst the payment by the plaintiff to the first defendant of the further sum of $70,000 was a payment by way of gift from the plaintiff to the first defendant to enable the first defendant to pay the balance of purchase money in respect of a home unit to be purchased by him, to the intent that the total sum of $120,000 given by the plaintiff to the first defendant would be used by the first defendant to pay the purchase price in full of a home unit to be purchased by the first defendant.

The Facts:

7   The "Short Outline of Submissions" filed on behalf of the plaintiff sets out certain "Facts in Brief' which it would appear are not in dispute. Those "Facts in Brief” as set out in the "Short Outline of Submissions" are as follows:-

“1. On 31 July 1996 the Plaintiff became entitled to receive a retirement package of approximately $356,000. That amount was paid by the Plaintiff’s former employer, IBM Australia Limited, in three instalments, namely:

(a) $70,789.42 on 1 August 1996;

(b) $226,193.92 on 12 August 1996; and

(c) $60, 000 on 14 November 1996.

2. The payments referred to above were deposited into the Plaintiff’s bank account with Intech Credit Union. After the deposit of the $226,193.92 on 12 August 1996 the following events occurred:
(a) on 13 August 1996 the Plaintiff drew a cheque in the amount of $57,000 to his son Aleksandar, the first Defendant in these proceedings;

(b) on 14 August 1996 the Plaintiff’s son opened an IBD Account number 337025115 with the Advance Bank Australia Limited, the Second Defendant in these proceedings (the ‘IBD Account’);

(c) on 14 August 1996 the Plaintiff's son deposited the $57,000 cheque from the Plaintiff into the IBD Account;

(d) in early September 1996 the Plaintiff made out another cheque to his son in the amount of $70,000 which was deposited by the Plaintiff’s son into the IBD Account on 13 September 1996;
(e) on 14 October 1996 the Plaintiff deposited $60,000 into the IBD Account and on the same date became a signatory to the IBD Account;

(f) on 11 November 1996, the Plaintiff’s son cancelled the Plaintiff’s authority to operate the IBD Account;

(g) on 14 November 1996 the Plaintiff’s son withdrew $60,000 from the IBD Account and gave a cheque for this amount to the Plaintiff;

(h) the Plaintiff’s son purported to retain the balance of $120,000 in the IBD Account and refused to return the money to the Plaintiff;

(i) on 22 November 1996 this Honourable Court made interim orders restraining the Plaintiff’s son and the Second Defendant from dealing with the IBD Account until further order.

3. The cheques drawn in favour of the Plaintiff’s son of $57,000 and $70,000 were drawn on the Plaintiff’s bank account with Intech Credit Union Limited. The S60,000 deposited by the Plaintiff with IBD Account on 14 October 1996 was also drawn on the Plaintiff’s bank account with Intech Credit Union Limited. As the Plaintiff apprehends the evidence, the Plaintiff’s son does not deny the events set out above in paragraphs 2(a)-() inclusive. "

The First Defendant's Evidence

8   In his affidavit sworn 27 November 1996 the first defendant, whose evidence generally I accept, and whose evidence was not, relevantly, shaken in cross-examination, stated that when the plaintiff handed him the cheque for $57,000 on or about 13 August 1996, the plaintiff said in the Serbian language "I am giving you $50,000 to buy yourself a flat."

9   In the same affidavit the first defendant gave evidence that he and the plaintiff attended at the Advance Bank a few days later and saw a loans officer in relation to the first defendant obtaining a loan of $60,000 (which would be required, in addition to the gift of $50,000, for the purchase of a unit by the first defendant). The first defendant further stated in this affidavit that "on this occasion the loans officer said to my father words to the effect. What are the conditions on the $50,000 which you gave your son. Does it have to be repaid? My father replied 'No. It is absolutely a gift. I gave it to him so he could buy a flat. I want to help my son.`”

10   In this affidavit the first defendant also stated that the plaintiff had been living with him since about May 1996 and that when the plaintiff moved in with the first defendant, the plaintiff said words to the effect "Nada (meaning his third wife) has kicked me out and I have no place to live. I am broke until my money comes through."
11   The reference to money coming through was a reference to the superannuation moneys payable at a future time to the plaintiff from his former employer, IBM.

12   In the same affidavit the first defendant stated that he and his father had been estranged for some years but that, in fact, their formerly poor relationship improved greatly after the plaintiff moved in.

13   The first defendant also stated in this affidavit that, at this time, he was a second year university student enrolled with the University of Newcastle studying for the degree of Bachelor of Commerce through the Central Coast Campus of the University. At that time, as well as attending university two or three days per week, he also had two other jobs, one at the D'Albora Marina, Rushcutters Bay, where he worked during university semester time about two or three days per week, and about six days during university vacations. He also worked at Arthur's Pizza in Oxford Street from about 6pm until about 2am on either six or seven nights per week. Accordingly, he regularly worked in excess of sixty hours per week at the two jobs mentioned above, as well as attending university.

14   The first defendant stated that after the plaintiff moved in with him (in about May 1996) the plaintiff would frequently say to him words to the effect. "You are such a hard worker, I am very proud of you" or 'I would like you to not have to work so hard and spend more time on university work."

15   The first defendant also stated in this affidavit that on numerous occasions the plaintiff said words to him to the effect: "When I get my money I am going to do something to help you. I am going to give you some money to help you buy a flat. You are such a hard worker and I am proud of you."

16   The first defendant also stated that the plaintiff also said words to the effect "You are wasting money paying rent. You are just paying off someone else's investment. You should buy your own flat and pay it off. I will give you some money."

17   The first defendant also stated in this affidavit that a week or so after the visit to the Advance Bank the plaintiff said to him words to the effect 'I would like you not to have to work so hard. If you have a loan to pay off you will still be working just as hard as you are now, so 1 will give you an extra $70,000 so you can spend more time at university."

18   Shortly after that the plaintiff handed the second defendant the second cheque in the sum of $70,000.
19   The first defendant also stated that during this period the plaintiff and the first defendant had many discussions about the first defendant buying a flat, and about the type of cheap one bedroom bachelor unit which the first defendant could get for $120,000. The first defendant stated that in all of those conversations the plaintiff consistently said words such as "The flat will be yours. The money is a gift. I am proud of you for being such a hard worker, but now you will not have to work so hard and you can concentrate on University."

20   The first defendant also stated that the plaintiff spoke about the first defendant's sister who had to return to Yugoslavia because she was experiencing certain problems in Australia. According to the first defendant the plaintiff said words to the effect that the first defendant had helped his sister.

21   The first defendant also stated that he was present on a number of occasions when the plaintiff was speaking to other persons and heard the plaintiff say words to the effect. "I am buying my son a flat or "I have given my son the money to buy a flat."

22   In the same affidavit the first defendant stated that the plaintiff went to Yugoslavia in 1996 for approximately two weeks and that following his return the plaintiff "began" to say to the first defendant words to the effect: It would be better if we bought a flat together. We should look for a two bedroom flat and buy it together and live together."

23   The plaintiff then said "I will put another $60,000 into the Advance Bank."

24   According to the first defendant, following that conversation the plaintiff and the first defendant inspected a number of flats but could not find anything they could agree upon and they subsequently argued. The first defendant stated that he had now returned the sum of $60,000 to the plaintiff.

25   In the same affidavit the first defendant denied various conversations and facts alleged in the affidavit of the plaintiff sworn 22 November 1996.

26   In his further affidavit sworn 21 July 1998 the first defendant stated that the circumstances in which the plaintiff left the defendant's rented unit on 25 November 1996 were that on that day the first defendant returned home to find many items missing from the lounge room including the lounge suite, the video machine, paintings, a bookcase and books. The plaintiff was present and had a trolley with him. The television was packed in bubble paper as if awaiting transportation. The plaintiff and the first defendant then had an argument and the first defendant called the police. The police subsequently attended by which time the plaintiff had returned to the premises and was at that time playing solitaire on the computer. After discussion, the police asked the first defendant to produce the lease, which the first defendant apparently did, after which the police told the plaintiff to leave the premises. The plaintiff then left the premises.

27   In the same affidavit the first defendant stated that no properties were inspected by him or by him and the plaintiff until after the plaintiff had given the first defendant the cheque for $57,000 and after the plaintiff and the first defendant had attended upon the Advance Bank to inquire about a loan. The first defendant stated that at the time the plaintiff gave him the cheque for $57,000 the plaintiff said words to the effect "I've added an extra $7,000 because you gave me $5,000 for the car and you've given me other money through the time I've been here, so I've added another $2,000 to the $5,000."

28   The first defendant also stated that at the time the plaintiff gave the first defendant a cheque for $60,000 on 14 October 1996 the plaintiff said words to the effect "I should take the money out of the Credit Union (the plaintiffs account) and put it in an interest-bearing deposit with the Advance Bank because they have a better interest rate."

29   The plaintiff then accompanied the first defendant to the Advance Bank where the sum of $60,000 was deposited in the account of the first defendant with the Advance Bank at which time the plaintiff said to the first defendant words to the effect "As my money is going into this account, I should have authority to operate that account."

30   The first defendant also stated that at no time did the plaintiff state to him that the purpose of depositing any moneys in the Advance Bank was to allow the first defendant to have access to funds during the plaintiffs absence overseas. The first defendant stated that there was, at the time the plaintiff went overseas, no particular property which was listed for auction during the period the plaintiff was anticipated to be absent from Australia.

31   The first defendant stated that he did cancel the plaintiffs authority to operate the first defendant's Advance Bank account on 11 November 1996 being the time at which the first defendant sought to withdraw the sum of $60,000 to repay to the plaintiff. However, the first defendant was unable to withdraw that amount on that day as the interest bearing deposit had not matured, but a few days later he arranged for a bank cheque for that amount to be drawn in favour of the plaintiff which later that day he handed to the plaintiff.

32   The first defendant also stated that in November 1996 the plaintiff and the first defendant drove to Lane Cove and looked at three properties. One property which was for sale at about $155,000 was small and had only two bedrooms. The largest of those properties had three to four bedrooms. On the way back from Lane Cove in the car the plaintiff said words to the effect that he would like to buy the larger unit and that "We'll have to borrow money and, as I don't have any income and I'm too old, nobody will lend me the money. We'll have to buy it in your name but we'll really buy it together."

33   The first defendant replied in words to the effect "But I don't want to buy the property with you and I'm not going to put my money into us buying a property together." The plaintiff said words to the effect 'Well I'm going to sign the contract (for the smaller unit) anyway." The first defendant replied with words to the effect "You can do what you want." According to the first defendant the conversation became "more heated and the plaintiff said to the first defendant words to the effect "I want my money back."

34   The following Monday morning, 11 November 1996, the plaintiff went to the Advance Bank and cancelled the plaintiffs authority to operate the account and shortly afterwards gave the plaintiff a cheque for $60,000 in the circumstances mentioned earlier.

35   According to the first defendant, the first defendant subsequently said to the plaintiff words to the effect "I have spoken to V1ad's father-in-law who is a lawyer, and he told me that if you gave me a gift, you're not entitled to get it back." The plaintiff replied "You have to go down to the (Surry Hills) police station. I've been to see them. They said that if you don't go down by 6 o'clock they'll come tomorrow and arrest you." The first defendant said "Why?" The plaintiff said "Because you've stolen my money."

36   The first defendant went to the Surry Hills police station where he was told by a police officer words to the effect "I was here when your father came in ... I heard your father being told that it was nothing to do with the police. It was a civil matter." I said words to the effect "What's going to happen now?" The police officer said "Nothing, go home."

37   In evidence in chief reply the first defendant repeated in substance the conversation which took place between the first defendant, the plaintiff and the Advance Bank loans officer as related by him in his affidavits but with some elaboration. The first defendant said that he told the loans officer that he had funds of $50,000 to pay for a deposit on a home unit and asked what size loan could he get on that basis. The first defendant said that he told the loans officer that he was looking for a one bedroom or studio apartment in the range of $120,000. According to the first defendant the loans officer said he could borrow $60,000 and gave certain details as to repayments in respect of terms for repayment of 10, 15 and 20 years.

38   According to the first defendant the loans officer asked where the first defendant got the $50,000 from to which the first defendant replied that it was a gift from his father and in respect of which the plaintiff said that it did not have to be repaid. The Bank officer stated that he would need a "gift letter" from the plaintiff whereupon the plaintiff said words to the effect 'No problem". The first defendant said that he would be more comfortable with a 15 year term and the bank officer gave the first defendant printed figures for fortnightly and monthly payments as well as informing the plaintiff and the first defendant of extra costs such as valuation fees, stamp duty, legal costs and the like. The meeting concluded with the production by the bank officer of the letter dated 16 August 1996 containing a reference to "gift letter from your father" in the customer's "to do" list. The bank officer said that the parties should come back when they had found a unit together with the names of the solicitors they intended to use and the gift letter from the plaintiff.

39   The first defendant also confirmed that during a conversation at the first defendant's rented unit at Centennial Park, before the plaintiff received his superannuation entitlement from IBM, the plaintiff said to the first defendant words to the effect that he (the first defendant) was working too much and not concentrating on his studies enough, that he had been at uni for too long and should work less and concentrate more on his studies. The first defendant stated that the plaintiff said that he was proud with how the first defendant was dealing with life because he hadn't lived with his father since he was sixteen years and had been on his own, so that he was proud how the first defendant had finished school and got into the university and that he took care of his (the first defendant's) sister when he (the plaintiff) refused to do so, and that he (the plaintiff) had "done wrong" by the first defendant and his sister and that he now felt that he could help the first defendant out to start off his life by purchasing a unit. According to the first defendant the plaintiff also said that he (the first defendant) was paying too much rent, that it was ridiculous paying off someone else's investment and that he should start paying off his own unit and that he (the plaintiff) would provide (the first defendant) with a deposit for it. To which the plaintiff replied in words to the effect "Thank you, Dad, I would like that."

40   Later the plaintiff told the first defendant that he was going to give the first defendant $50,000 for a deposit to buy himself a home unit. The plaintiff in fact gave the first defendant a cheque for $57,000 as to which the plaintiff said that $50,000 was for the deposit on the purchase of a home unit whilst the $7,000 was a repayment of an informal loan comprising $5,000 that was loaned for a car and an extra $2,000 just as a repayment of nothing in particular, but for giving him (the plaintiff) money on a number of occasions and providing him with rent free accommodation, and paying his bills in the period until his superannuation entitlements were received.

41   The first defendant also gave evidence that on or about 9 November the plaintiff asked the first defendant to accompany him to Lane Cove to inspect some properties in the course of which they inspected a number of units and during the course of the day the plaintiff suggested that he and the first defendant should purchase "the big unit' together saying 'We can buy a big unit if you obtain a loan and with the money that I have and you have we can buy it together in your name but actually we will be buying it together." The plaintiff said that he couldn't obtain a loan because he was too old and no-one would give him a loan at his age. The first defendant refused, saying that that was not was agreed and that the first defendant had money of his own and was looking for a unit in the Eastern Suburbs and did not wish to live with the plaintiff or purchase a property with him. The plaintiff said that in that case he was going to purchase another unit and was going to make an offer on it. The first defendant replied that the plaintiff could do whatever he wanted. On the way back from Lane Cove the plaintiff was very upset because the first defendant refused to buy a unit with him and the plaintiff requested the first defendant to pay him his money back. The first defendant understood this to be a reference to the $60,000 and indicated that he was agreeable, that that amount, by implication, should be repaid.

42   As stated earlier, in due course the first defendant gave the plaintiff a cheque for $60,000, at which time the plaintiff said "Right, where is the other $120,000?” That, according to the first defendant, was the first time that it became apparent that the plaintiff wanted the money back that he had given to the first defendant. The first defendant refused and there followed the events mentioned earlier in this judgment, including the visit by the first defendant to the Surry Hills police station. The first defendant also repeated certain evidence earlier given and added certain further details relating to his early life and his early relationship with the plaintiff.

43   The first defendant adhered to this further oral evidence given by him in the course of cross-examination by the plaintiff. In the course of that cross-examination reference was made to the Advance Bank customer's "to do" list which is stated to have been printed on 16 August 1996 at 11.57am. This list includes, as stated above, an item "gift letter from your father".

44   In further cross-examination relating to that item in the list the first defendant gave evidence to the effect that in the context of working out the repayments on the contemplated loan of $60,000, the repayments were such that the first defendant could not stop working, by reason whereof the plaintiff said, according to the first defendant, "No, no, I'll give you extra money and you will buy a flat for cash".

45   I note in this connection that paragraph 12 of the affidavit of the first defendant sworn on 27 November 1996 is in the following terms:-

"12. A week or so after the occasion mentioned in paragraph 7 (the visit to the Advance Bank), my father said to me words to the effect: -
'I would like you not to have to work so hard. If you have a loan to pay off you will still be working just as hard as you are now, so I will give you an extra $70,000 so you can spend more time at university .'

Shortly after that he gave me the second cheque for $70,000.”

Other Evidence

46   Rodney Yeomans, a fellow employee of the first defendant at the D'Albora Marina at Rushcutters Bay, gave evidence, which I accept, that on two occasions the plaintiff came to the Marina office and in his (Mr. Yeomans) presence had a conversation with the first defendant about the purchase of a unit. He stated that he heard the plaintiff say words to the effect "The unit that you wanted I was ready to bid up to the limit that you decided, but the bidding went past that price and you didn't get it." The first defendant said: "I would have gone to the auction but I had to work here so I asked my father to go to the auction on my behalf.”

47   Mr. Yeomans also stated that during the conversation he heard the units described as "studio units in the Potts Point area", and that he further heard discussion to the effect that the studio unit would be solely for the use of Alex (the first defendant). Mr. Yeomans also recalled hearing the plaintiff discussing the purchase of other premises for his own (the plaintiff s) occupation.

48   Vladimir Vujovic, the proprietor of “Arthur's Pizza Shop” at which the first defendant worked also gave evidence on behalf of the first defendant that the plaintiff often called into the pizza shop to see the first defendant and that at least on one occasion the plaintiff said to him (Mr. Vujovic) "I am going to help Alex to make life easier for him not to work so hard. I am going to buy him a flat."

49   Mr. Vujovic also gave evidence to the effect that on an occasion in 1996 he attended an auction conducted by Vantage Real Estate with the plaintiff in the course of which the plaintiff stated to him in the Serbian language "I am buying a flat for my son."

50   In cross-examination Mr. Vujovic agreed that the words spoken by the plaintiff to him on this occasion in the Serbian language, as set out in the Serbian language in paragraph 4 of his affidavit did not mean that the plaintiff’s son would own the unit. In cross-examination, however, Mr. Vujovic also gave evidence that the words used by the plaintiff in the Serbian language as set out in paragraph 4 of his affidavit did not exclude the possibility that the son would own the unit, in other words, that the words used by the first plaintiff in the Serbian language as referred to in paragraph 4 did not mean either that the first defendant would own the property referred to nor did they mean that the plaintiff’s son would not own the property referred to. Mr. Vujovic gave evidence to the same effect in relation to paragraph 3 of his affidavit in respect of which he said the words spoken by the plaintiff to him were spoken in the Serbian language.

51   There was also tendered in evidence on behalf of the first defendant a copy of a faxed letter dated August 7, 1998, addressed to the solicitor for the first defendant from Mr. Zoran Veljic, the former consul for Yugoslavia in Australia. That faxed letter was in the following terms:-

"TO: Mr. Terence JESSOP FAX. [phone]

Dear Sir,

Referring to our telephone conversation regarding Mr. Miki Djordjevic and his son Alex I may confirm that I resided with my family in Sydney Australia from March 1991 till May 1997. We met Mr. Miki Djordjevic and Alex somewhere in April or May 1991. Our families had frequent contacts since then and got befriended.

Somewhere in 1995 Mr. Miki Djordjevic started to talk about his retirement. He was considering different options how to spend money he was expecting to get on his retirement. He was mentioning to buy some small farm out of Sydney area and to start software consultancy for small business, to establish a computer selling company in Sydney, even to buy some restaurant business. Among those different options, at some later stage he mentioned his intention to buy a studio or an one-room apartment for his son Alex . He told me that they were contacting real estate agencies and spending a lot of time in inspection of different apartments.

In the last year of our stay in Sydney we did not see much of Mr. Djordjevic. We heard from Alex that his father had changed his mind and that he no longer wanted to buy an apartment for him and that they were having numerous quarrels and serious disputes.

Sincerely yours,

Zoran Veljic

(signed)

Belgrade, August 7, 1998”

(Underlining supplied).

52   The plaintiff was cross-examined in relation to this letter as follows:-

"Q. Are you saying that your son was just making up evidence that you had said to the former Consul of Yugoslavia in New South Wales words to the effect that you were buying a property for your son?

A. Oh, true.

Q. And if the consul of Yugoslavia said that also he would be
lying too?

A. That is true.

Q. Would you have a look at this document I am showing you?

A. Yes.

Q. Do you recognise who signed that document?

A. Yes.

Q. Who?

A. Mr. Zoran Veljic .

Q. That is the person referred to as the former Consul of Yugoslavia in New South Wales. After looking at that document do you say that gentleman has told any lies in that document?

A. No, not at all. Everything he says in here is true.”

53   I can only assume, although the point was not made in this connection by the plaintiff, who at this time was appearing on his own behalf, that the plaintiff would have said that the relevant sentence underlined in the quote above should be read and understood as meaning that he (the plaintiff) intended to buy a studio or a one- room apartment for his son, Alex, to "live in rent free".

54   Nevertheless, the fact remains that, in my opinion, the relevant sentence in the fax of August 7, 1998, cannot, on its fair and true construction bear any such meaning, without more.

The Plaintiffs Evidence:

55   In his affidavit sworn 21 March 1997 the plaintiff gave evidence that his superannuation entitlements as referred to above were deposited by him into his credit union account with the Intech Credit Union Limited. He stated that apart from occasional consultancy opportunities his retirement package was his only means of income. His last consultancy was in approximately July 1996. The plaintiff stated that in about April 1995 he remarried and that his new wife resided in Yugoslavia, and that he was currently awaiting determination of her application to migrate to Australia.

56   The plaintiff stated that he wanted to balance his retirement package between purchasing a suitable home for his new wife and himself and investing the remaining funds to produce an income by way of investing in property for rental return or investing in the business. The plaintiff stated that he considered purchasing a residential unit which would eventually house himself and his wife and her son and allow the first defendant to live in it rent free with him in the meantime until his wife's immigration to Australia.

57   The plaintiff stated that from late July 1996 he inspected a number of properties with potential to serve as a home for him and his new wife and her son or for the purpose of investment. He planned to travel to Yugoslavia in August 1996 and about that time had inspected two properties which were of particular interest to him, namely, a two-bedroom unit at Lane Cove and a studio apartment at Potts Point. The plaintiff stated that "In order not to lose the opportunity to bid for those properties" he said to the first defendant words to the effect "I will be away in Yugoslavia when the Potts Point and Lane Cove properties come up for auction. You go to the auction for me and bid for the properties. You should try and purchase the Lane Cove property. If you can't then try to purchase the Potts Point property." According to the plaintiff the first defendant agreed.

58   In this connection the plaintiff stated that he attempted to make the first defendant a signatory to his account at Intech Credit Union but that the Credit Union would not allow him to do so. Accordingly, the plaintiff drew a cheque in the sum of $57,000 in favour of the first defendant and that when handing it to the first defendant said words to the following effect. "Here is a cheque for $57,000. $7,000 is the money that I owe you. The balance of $50,000 is for you to bid for me on the Lane Cove and Potts Point properties. I don't know how much you need but $50,000 should be enough to leave a deposit."

59   The plaintiff stated that the first defendant agreed and also stated that the $7,000 referred to in the above conversation was made up of loans totalling $6,000 that the first defendant had made to him and $1,000 which the plaintiff gave the first defendant towards rent for the first two months.

60   The plaintiff stated that he did not go to Yugoslavia as planned in August 1996 but postponed that trip until September 1996 to allow his daughter, Milica, to travel with him to Yugoslavia during her school holidays. Before he left for Yugoslavia on 4 September 1996 the plaintiff stated that the first defendant said to him words to the following effect. "I will continue to look for properties for you while you are away. You should deposit the rest of your money in the Advance Bank. It is more convenient and the interest rate is much better than the Credit Union. I will make arrangements for you to be a signatory."

61   According to the plaintiff it was for these reasons that in early September 1996 he made out a cheque in favour of the first defendant for $70,000 "to allow Aleksandar access to my funds during my absence to purchase any suitable property on my behalf." The plaintiff stated that he made out the cheque for $70,000 because he kept approximately $124,000 in his Credit Union account to pay a debt owed by him to the Child Support Agency of approximately $46,000 and to have sufficient funds, namely, $60,000, to set up and architectural and design business that he was then negotiating with an architectural acquaintance, Rasim Ruzdic.

62   The plaintiff stated that when he returned from Yugoslavia on 19 September 1996 the architectural and design business that he was negotiating "did not eventuate" and that "to take advantage of the better interest rates I deposited a further $60,000 with the Advance Bank." The plaintiff also stated that on or about 15 October 1996 he and the first defendant attended the Advance Bank and signed the necessary papers to make the plaintiff a signatory on the Advance Bank account of the first defendant.

63   According to the plaintiff in early November 1996 he inspected a two-bedroom unit at Lane Cove which he deemed to be suitable for himself, his wife and her teenage son from a previous marriage and in which the first defendant could live with him rent free until he finished his studies or until his new wife came to Australia.

64   The plaintiff says that he then made an offer to purchase the unit for $155,000. He stated that a short time after making that offer he asked the first defendant to inspect the property and give him the first defendant's opinion of it. The plaintiff stated that on or about 9 November 1996 he and the first defendant inspected the unit after which the first defendant said "I don't think it's a good purchase. I don't think you should purchase it. If you did purchase it, what would happen to the rest of the money?" The plaintiff replied "I will buy an investment property or invest in the business. I need to have some income for my retirement."

65   The first defendant said "What if you go bankrupt. What will I inherit?" The plaintiff said "Whatever is left of my estate you will inherit a quarter share along with your other brothers and sisters." According to the plaintiff the first defendant did not reply.

66   The plaintiff stated that on 14 November 1996 he attended the Advance Bank at Oxford Street and attempted to deposit the last instalment of his retirement moneys, namely, $60,000, and also to withdraw a sum of $25,000 which he "wanted to use ... for my trip to Yugoslavia." The plaintiff stated that a bank employee informed him that he was unable to withdraw or deposit moneys from this account as he did not have the authority to do so. Later that day the plaintiff says that he spoke to the first defendant about this difficulty but that the first defendant made no comment and left the house. Later that evening according to the plaintiff the first defendant handed the plaintiff a bank cheque for $60,000 in the plaintiffs favour and upon the plaintiff asking "What is this for?" the first defendant said that "That's all you get." The plaintiff said "What are you talking about? The rest of the money is mine. That money is not yours. You have no right to deal with it like this." The first defendant said “I have legal advice from my solicitor who says you cannot prove it was not a gift. I claim the money as my own and you can't do anything about it." The plaintiff says that the first defendant then said “I will go to the police and have you charged” to which the first defendant replied "Go to the police or to whoever you want. Get nicked." The plaintiff replied I will give you until tomorrow, (15 November 1996) to return the money."

67   The plaintiff stated that on Monday, 18 November 1996 he went to Surry Hills police station to make a complaint and was told that if the first defendant was charged for a criminal act he would be prosecuted even if he decided to return the money to which the plaintiff said “I don't want my son to have a criminal record." The police officer then said to the plaintiff “I advise you to see a lawyer and take civil action." The plaintiff further stated that he saw the first defendant on a number of occasions after that time asking for his money but that each time the first defendant replied "Nick off."

68   In his affidavit of 8 May 1997 the plaintiff stated that "Because Aleksandar worked hard in various jobs whilst studying for his University Degree, I wanted to make life easier for him and considered purchasing a studio apartment or a one-bedroom apartment as a long term investment for me but to allow Aleksandar to occupy the studio free of rent until he finished his University studies. This was an alternative to me purchasing a two-bedroom apartment and allowing Aleksandar to live with me rent free until my new wife arrived from Yugoslavia."

69   The plaintiff denied the evidence of Mr. Vujovic referred to above and said that what he (the plaintiff) said to Mr. Vujovic on the occasions referred to by Mr. Vujovic were words to the following effect: "I have found a couple of properties, either a one bedroom or a studio apartment which will give me a good rental return. If I buy one of them I will leave Aleksandar live there rent free until he finishes his studies. I want to make life easier for Aleksandar. He works so hard and studies at the same time."

70   The plaintiff also denied the conversations in respect of which Mr. Rodney Yeomans gave evidence as referred to above.

71   By his affidavit of 10 July 1998 the plaintiff denied ever giving his son a gift of $50,000 as alleged and stated that he never said to his son "I am giving you $50,000 to buy yourself a flat." He also denied that he ever gave his son a gift of $70,000 as alleged. He also denied various conversations alleged by the first defendant to have taken place but stated that he did have conversations with his sons to the following effect. "You are a hard worker. When I buy a two-bedroom flat I will let you live with me rent free until my wife arrives in Australia. If I decide to invest in a one-bedroom flat or studio I will let you live there rent free until you finish University."

72   The plaintiff denied that he ever said to the first defendant "The flat will be yours. The money is a gift." The plaintiff also denied saying to other persons "I am buying my son a flat" or "I have given my son the money to buy a flat". Various other conversations and facts were also denied by the plaintiff in this affidavit.

73   By affidavit sworn 6 August 1998 the plaintiff denied various conversations and facts alleged in the affidavit of the first defendant sworn 21 July 1998 but also gave certain additional evidence.

74   The plaintiff denied that he told his son "I'm giving you $50,000 to buy yourself a flat." The plaintiff also stated that he was mistaken in saying that he left for Yugoslavia on 4 September 1996 having ascertained from his passport that he left for Yugoslavia on 2 September 1996. The plaintiff also stated that it was the first defendant who initiated the conversation about interest rates stating "My interest rates are better than yours, why don't we put all the money there?" The plaintiff also stated that prior to becoming a signatory to the first defendant's account with the Advance Bank he was told by telephone by a female employee of the Intech Credit Union that it was not possible to make the first defendant a signatory to the plaintiff s account and that he would need to open a new account for that purpose.

Other Evidence

75   Rasim Ruzdic, a friend of the plaintiff, gave evidence on the plaintiff’s behalf by affidavit in which he stated that in 1996 he had a number of conversations with the plaintiff in which the plaintiff would often say words to the following effect. "I have to buy a flat for me and with the money left after buying a flat I want to invest so that I have an income in my retirement."

76   He also gave evidence that during the time that he had known the plaintiff in Australia, the plaintiff had never mentioned that he wanted to buy a flat for his son or give him any money as a gift.

77   Although Mr. Ruzdic was cross-examined, it does not appear that it was put to him that his evidence in relation to what the plaintiff said to him as set out in Mr. Ruzdic's affidavit was not said. However, even accepting what Mr. Ruzdic said in respect of these matters at face value, I am of the opinion that they are not necessarily inconsistent with the first defendant's version of relevant facts which, as stated above, I generally accept.

78   Both the plaintiff and the first defendant were cross-examined at some length, and, in addition, the plaintiff personally cross-examined the defendant, the plaintiff not being legally represented at that time. This gave the Court an opportunity to evaluate the truthfulness and reliability of these witnesses in the context of all the circumstances of the case, including, of course, the circumstances described in the affidavit evidence.

79   The first defendant was, in my opinion, on material issues, a truthful and reliable witness and accordingly, in general, I accept his evidence, as stated above. The answers given by the first defendant were in the main, precisely, quietly and carefully given and were in the main consistent with the objective facts, and also, in my opinion, with the probabilities. His memory was, in my opinion, generally good and even in relation to questions, particular answers to which might well have been favourable to the plaintiff, the defendant was ready to say without hesitation and in my opinion, truthfully, that he did not remember.

80   In general, in my opinion, the evidence of the first defendant was, as stated above, more consistent with the objective facts and the probabilities as well as being corroborated in material respects by other witnesses and by the letter from Mr. Veljic.

81   On the other hand, I formed the opinion that although the plaintiff was articulate and his evidence, in general, plausible, his memory of what was said on various occasions was not good, as evidenced by his inability to remember even the substance and effect of the words said during various conversations. The plaintiff was far more comfortable whilst endeavouring to put various interpretations on various events without necessarily having a precise memory as to what was said and what occurred, and often without any real effort to remember what actually did occur or what was actually said. The plaintiff’s questions in cross-examination of the first defendant also, in my opinion, reflected these deficiencies. In addition, many of the answers given by the plaintiff in the course of cross-examination were unsatisfactory and unacceptable and/or inconsistent with other evidence or other answers given by the plaintiff. I have in mind in particular, inter alia, the plaintiff’s evidence in effect denying that he informed the loans officer of the Advance Bank that the $50,000 he had given to the first defendant was a gift (notwithstanding the reference in the customer's "to do" list contained in the letter from the Advance Bank dated 16 August 1996) and his evidence in cross-examination attempting to explain inconsistencies and inaccuracies in his affidavits.

82   In these circumstances I am unable to regard the plaintiff’s evidence as reliable on material issues in respect of which, as stated above, I prefer the evidence of the first defendant as being more reliable, having regard in particular to his obviously better memory of the relevant events and conversations and events as reflected by the quiet, precise and careful manner in which he gave his answers, and by his willingness to readily admit that he had no memory of certain events and conversations when that was the case. I have also had regard, as stated above, to my view that the evidence of the first defendant was more consistent with the objective facts and with the probabilities as well as being corroborated in material respects by other witnesses as well as by the letter from Mr. Veljic referred to above.

83   Other unsatisfactory or unacceptable evidence given by the plaintiff in cross-examination is dealt with in the following paragraphs.

84   In the course of cross-examination when it was put to the plaintiff that he had not put certain information in any affidavit as to which matter he was now giving evidence he replied: "You see the way the affidavit is made is that I tell the whole story to my lawyers and then they decide what to put in the affidavit, and if the story is too long they probably, you know, whatever".

85   I note that this approach was taken in relation to various matters which were put to the first plaintiff in cross-examination and, in particular, as to matter in affidavits which, prima facie, gave rise to inconsistencies. I was not satisfied, however, that this was the true explanation for such inconsistencies, but it is plain that the plaintiff found this approach a convenient formula for dealing with various inconsistencies which were put to him in the course of cross-examination and which it would have been difficult for him to deal with in any other way.

86   By way of further example the defendant gave the following answer in cross- examination: "... You asked me questions, very in-depth questions and I tried to explain all the details that were not covered by the affidavit."

87   The plaintiff gave evidence in cross-examination that in August 1996 he was serious enough about one unit in Lane Cove and one in Potts Point that his son might have to proceed to deal with the purchase in his absence, the one in Lane Cove being a two bedroom apartment and the one in Potts Point being a studio. He agreed that the studio was where his son would live for the balance of his university training so that it would be some years at least before he would get any income from that property. The plaintiff said that that was correct but he wanted to help his son. He agreed that it would be fair to say that in August of 1996 he was very kindly disposed towards his son, as he said, "very much". As to the property the plaintiff was looking at at Lane Cove he said the first defendant was supposed to live in it with him until the first defendant finished his university course because it was planned that his wife would come later so the first defendant could live with the plaintiff until the first defendant finished his study. He said the auction was to take place during the last week of August.

88   The plaintiff agreed that he remembered going with the first defendant to the Advance Bank on which occasion they saw a loans officer who at or near the conclusion of the meeting handed to the first defendant a bundle of forms and documents.

89   The plaintiff agreed that during the course of the conversation between himself, the first defendant and the bank loans officer, one of the matters which the bank loans officer referred to was the "gift letter from your father", meaning the plaintiff. The plaintiff agreed that a "gift letter from your father" was discussed. However, very shortly thereafter in the course of cross-examination when it was put to him that one of the persons present at the conversation said that the plaintiff was making a gift of moneys to his son to be the deposit for the purchase, the plaintiff replied "That was not what was said." There followed questions and answers as follows:-

"Q. One of you, your son or yourself, said to the loans officer something to the effect that you had or would be making a gift to your son of moneys to be a deposit on a proposed purchase?

A. That was not (the) exact wording …
A. The discussion was about the amount of the deposit that is needed for the different types of loans .

Q. And what did you say?

A. I didn't say anything. We were talking about - they were talking about different deposits for the different amounts of loans and different conditions. It was a lot of discussion going like that and then the loan officer asked him about the amount of the deposit and he said it could be $20,000, it could be $50, 000, it could be $60, 000. He said if you can make the different options let us find out what is the repayment and what is the interest rate and what is the relation between interest rate and capital for those different options, and the loan officer then asked him 'Where is that $20,000 or $50,000 or $60,000 coming from, and he said, 'Oh my father gave me that'. And then the loan officer turned to me and asked, 'Does he have to repay that to you? 'I said, 'No.’ And then the loan officer turned back to him and continued the discussion about the conditions and they went through the whole thing and they worked out all the papers. That was the only word that I said during the whole meeting.
Q. When you used that word you were telling the loans officer the truth?

A. Yes .
Q. And as at the time of that meeting you had put $50,000 in your son's account hadn't you?

A. Yes, that was after we put the money in the bank, yes .”

(Underlining supplied).

90   Later, the following questions and answers appear in the cross-examination:-

"Q. In relation to the conversation you had with the loans officer, what was it you said your son didn't have to repay?
A. We went there to ...
Q. No, what you said?
A. The reason I said that was …
Q. What was it that he wasn’t going to have to repay?
A. The gift, the gift. The loan officer asked me, ‘Does he have to repay you a gift?’ and I said ‘No’.
Q. What gift?
A. There was no gift, that’s the point …

Q. So did you tell the loans officer that there was no gift ?

A. I didn't .

Q. But you let the loan officer think there was a gift .?

A. That's correct .

Q. So you just deceived the loans officer?

A. I didn't.

Q. But you let the loan officer think there was a gift?

A. That's correct .

Q. So you just deceived the loans officer?

A. I didn't.
Q. You were quite prepared to let him think there was a gift ?
A. I did .
Q. You knew he understood that ?
A. Yes .
Q. And you say that was a wrong impression ?
A. Yes it was .
Q. And you were prepared to let him have that wrong impression?
A. Yes. The whole visit to the loan officer was the wrong impression. We did not want to take the loan at all.

Q. I suggest to you that at that stage there was an intention to take a loan?

A. No, it was the fact gathering mission. We wanted to find out what was the best offer we could get on the market, and ...

Q. You had heard your son in the meeting say that you had provided to him a gift to be a deposit on the property, didn't you?

A. No, he didn't say that .

Q. Nothing like that ?
A. Nothing . He said - the loan officer asked him about the origin of that money. I mean he said that the deposit that you want to make, is that a loan, and because if it was the loan he would have to repay that and then the loan officer would have to assess the whole situation differently, you know, and he said, 'No, my father gave it to me.’

Q. And you knew the 'it’ he was referring to was the $50,000?

A. No, we were talking about deposit of $20,000, $50,000 , $60,000, different values of properties, you know, different …” (Underlining supplied).

91   In relation to this part of the cross-examination of the plaintiff I am of the opinion that the plaintiff was endeavouring to give an explanation as to the $50,000 to rebut any suggestion that it was said by the first defendant at this meeting with the loans officer that the $50,000 was a gift to the first defendant from the plaintiff which did not have to be repaid. I do not accept this attempted explanation which, in my opinion, the plaintiff invented when he realised the significance of what he had said earlier to the effect that the plaintiff informed the loan officer that the first defendant did not have to repay the gift of $50,000 which was to be used by way of deposit.

92   In the final analysis it is my opinion that the probabilities strongly favour the view that the plaintiff did inform the loans officer that the first defendant did not have to repay the sum of $50,000, this sum having been the subject of a gift by the plaintiff to the first defendant, and that this was in accordance with the actual fact.

93   In the course of cross-examination of the plaintiff, in relation to paragraph 11 of his affidavit sworn 22 November 1996, it was put to the plaintiff that that paragraph was misleading in that it plainly conveyed that the plaintiff intended to be overseas at a particular time during which it was intended that the first defendant would attend an auction including a two bedroom unit at Lane Cove and a studio apartment at Potts Point which the first defendant was to try to secure in the alternative on behalf of the plaintiff, that the first defendant attended such auction while the plaintiff was away but he (the first defendant) "was unsuccessful in acquiring either property", whereas the true facts were that the plaintiff was not absent from Australia at that time and attended the auction himself.

94   When asked in cross-examination why the plaintiff said what he said in paragraph 11 the plaintiff replied as follows:-

"A. As I explained, I don't know, it just came to my attention. The way the affidavits were prepared was that you know, I tell the whole story to the solicitor, then they sit and put together in the form that is acceptable by the Court, and then I just go, take the points and sign it, and it must be an admission that I made at the time. It is the first time that it has come to my attention, but that sentence is wrong, that is not true, that is probably a misunderstanding by Mr. Bilinsky, my solicitor who made (the) affidavit . It is not the case 1 was not successful because the price went over the limit, but just to clarify it further it was never the situation, when Alex bidded on my behalf at the auction. ...
Q. He (the first defendant) never bid on your behalf at any auction?

A. Never …
Q. And you would agree that Mr. Bilinsky who drew this affidavit, would only know when and when you weren't in Australia if you told him so. You cannot blame Mr. Bilinsky?

A. I am not blaming Mr. Bilinsky at all, it is an omission, I am very sorry that happened, that sentence is wrong. If he applies with an, it is right, then the whole of the paragraph is right.

HIS HONOUR: That is not right, if he just made that change and left everything else the paragraph is still not right. According to your present evidence, it is the first sentence that says, 'My intention is to enable my son during my absence to effect a purchase?'

A. That is right, I was planning to go away on a trip in mid-August and because it was only a couple of weeks after I got the money, and actually I got the first money at the beginning of the second part, a bit later at the end of the first week, so we had only a week's time to do that, it was a pretty hectic time and I was preparing everything, because I was in a hurry to do two things, one to provide what I had to provide in Australia, and the other in my mind was about my wife migrating, to have to go there and assist her because she was in a bit of a panic, and my intention was to go around and see as many properties as possible, to make some decisions too, not only about the properties, but to buy the property as an investment at all or to do something else. Another decision that had to be made was to buy the property with cash and use that as the equity, to do something else or to buy the apartment for myself with the cash and then use that as the equity for a mortgage for buying a property, it all depend. I am not an expert in that, but Alex was explaining all the details to me, because there are different taxation implications this, those things, all those things had to be taken into consideration. Then there were a couple of properties that were on the market that were very interesting investment-wise and that was, one property was for the living, the two-bedroom apartment was for the purpose of my own living in it, the one-bedroom studio was always for the investment, and in this case I was interested in both properties and the intention was to allow him to go and buy them while I am abroad because it was a good opportunity, the price was good. In the meantime things happened and I had to postpone my trip for a couple of weeks, so what happened is that he didn't go to bid, I went.
Q. This paragraph 11 was sworn to you by you after all those things had happened?
A. Yes, definitely .
Q. In order for paragraph 11 to be correct it would have to say , 'My original intention was to enable my son during my absence to effect a purchase, but as it turned out I postponed my trip and was able to attend the auction myself.’
A. Yes, that is the additional information .
Q. It says nothing like that .
A. No, it doesn't, but it doesn't exclude that as well.
Q. Of course it excludes it, it is quite misleading I would suggest to you, in the light of what you now say were the actual facts, what do you say about that?

A. The only thing I can say is that, you know, I don't write the affidavit myself I tell the whole story, then that story is probably five times longer than the material that is in the affidavit. That story is condensed, and put in the form that is appropriate for affidavits . I don't know how to put the affidavit, and then I read that, and I say, 'Yeah, that is okay.’ There are other things, but you know, there is probably another occasion to talk about that we were talking about many things that weren't mentioned in the affidavit. If we go word by word we'll probably find a lot more examples of things, of not being said in affidavits than things being said in affidavits, because the story is rather more complex than you can put in a couple of sentences to be able to be quickly read in Court. So whatever is in the affidavits is pretty well true as far as I can see. There is this bad omission here, this omission is probably misunderstanding or to check every single word, signing it, these things just happen.” (Underlining supplied).

95   I also find this answer unacceptable insofar as it indicates a failure on the part of the witness (deponent) to properly read his affidavits so as to ensure that they do not convey facts other than the true facts. The unacceptability of the plaintiff’s approach to this matter was compounded, in my opinion, in the following questions and answers to counsel for the defendant:-

Q. In any event, whatever explanation there may be, would you now agree, it is misleading, paragraph 11?
A. It doesn't look misleading to me, because I know exactly what is behind it, and it is difficult for me to put myself aside, I mean, you know, to imagine myself as an impartial observer and say 'Yeah if you take that word, that means that, and that means that you can interpret the words differently. I don't know what to answer to that question, it does not look to me.’

Q. You still don't see it as misleading?

A. No, I think it is true, so it cannot be misleading if it's true.”

96   In cross-examination the plaintiff agreed that according to the plaintiff, the first two cheques were paid in anticipation of a purchase having to occur whilst the plaintiff was away although in point of fact there were no properties that he had in mind when he went away on 2 September.

97   The plaintiff also gave evidence in cross-examination that he wanted the first defendant to be a signatory to his account with the Intech Credit Union so that the first defendant could make purchases on behalf of the plaintiff while the plaintiff was overseas, but was unable to achieve that result.

98   There was, however, ample evidence to the effect that this could have been done and the plaintiffs evidence that it could not be done and the reasons why it could not be done is unacceptable and inconsistent with the evidence of Mr. Piccles, an officer of the Intech Credit Union, who made an affidavit on behalf of the first defendant and was cross-examined by the plaintiff, which cross-examination did not, in my opinion, shake Mr. Piccles' evidence in any way.

Conclusion.

99   In the final analysis, accepting as I do, as I have said, for the reasons referred to above, the evidence of the first defendant, and of the witnesses who gave evidence on behalf of the first defendant, in preference to the evidence of the plaintiff, whose evidence I am unable to accept in respect of the principal issues in these proceedings, I am of the opinion that the plaintiff, out of feelings of genuine paternal generosity, gave, by way of gift, a total of $120,000 to his son, the first defendant, by means of the two payments described above, for the purpose of enabling the first defendant to purchase for himself a home unit to that approximate value. The purpose of the gift was to relieve the first defendant of the necessity to work long hours (so as to be able to pay rent and otherwise support himself) so that the first defendant could devote more time to his university studies. In my opinion, those gifts were made at times when the plaintiff was living with the first defendant in his rented unit and was well disposed to him.

100   I am further of the opinion that, subsequent to the making of these gifts, the plaintiff came to realise that the remaining balance of his superannuation moneys, after payment of these amounts and certain other amounts, would be less than sufficient to provide for the plaintiff’s needs, which the plaintiff saw as requiring the purchase of a unit in which to live with his wife who was to come from Yugoslavia to join him in Australia, as well as the purchase of another income producing property by way of investment.

101   In my opinion, this realisation came not later than the time when the plaintiff decided that he wished to purchase a home unit in Lane Cove for which he did not have sufficient money, and would not, having regard to his age, be able to borrow moneys to fund the purchase. At that time the plaintiff asked the first defendant to join with him in purchasing the Lane Cove unit and to live in the Lane Cove unit with him, at least temporarily, using the money of the first defendant which had been given to him by the plaintiff. In my opinion, when the first defendant refused to do so in no uncertain terms, the plaintiff sought to revoke his gifts to the first defendant by demanding that the moneys given by the plaintiff to the first defendant be repaid to the plaintiff. This the first defendant refused to do after taking informal legal advice, following which, after the return of the $60,000 referred to above, not being part of the $120,000 gift by the plaintiff to the first defendant, there was the acrimonious parting of the ways described above.

102   Thereafter, in my opinion, the plaintiff attempted to justify the two payments by him to the first defendant, by claiming, contrary to the fact, that those payments had been made to the first defendant for the purpose of enabling the first defendant to bid on behalf of the plaintiff for properties at auctions which were to take place whilst the plaintiff was away from Australia, and also by claiming, contrary to the fact, that statements that he had made to others to the effect that he was going to purchase a unit for the first defendant, should be understood as meaning no more than that the plaintiff was intending to purchase a unit in his own name, in which the first defendant could live rent free for a limited time until he had completed his university studies.

103   It follows, in my opinion, and I so find, that each of the relevant two cheques was delivered by the plaintiff to the first defendant with the intention that they would be gifts by the plaintiff to the first defendant. There being no issue that the cheques were paid, it also follows, and I also so find, that each of the two gifts totalling $120,000 was complete and that the plaintiff is not entitled to claim repayment of any part of that sum: cf. In Re Swinburne; Sutton v Featherley (1926) 1 Ch 38.

Order

104   Accordingly, the order of the Court is that the existing injunction be dissolved, that the proceedings be dismissed, and that the plaintiff pay the costs of the first and second defendants of the proceedings.

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Last Modified: 05/22/2001