Petrovic v Brett Grimley Sales Pty Ltd
[2014] VSCA 99
•22 May 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0051
| GORAN PETROVIC | Appellant |
| v | |
| BRETT GRIMLEY SALES PTY LTD | Respondent |
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| JUDGES | NEAVE and OSBORN JJA and McMILLAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 March 2014 |
| DATE OF JUDGMENT | 22 May 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 99 |
| JUDGMENT APPEALED FROM | Brett Grimley Sales Pty Ltd v Goran & Anor (Unreported, County Court of Victoria, Judge Kennedy 12 April 2013) |
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PROPERTY LAW – Appeal against an order that a transfer was a voidable transaction under s 172(1) of the Property Law Act1958 (Vic) – Appellant received a transfer from his mother in excess of an amount she paid him pursuant to a constructive trust in favour of the appellant’s father – Whether transfer was an alienation with an intent to defraud creditors – No error in the trial judge’s finding that the mother intended to defeat creditors – Appeal dismissed – Briginshaw v Briginshaw (1938) 60 CLR 336 – Property Law Act1958 (Vic) s 172.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr A R Kirby | Katz Lawyers |
| For the Respondent | Mr I W Upjohn | Lewenberg & Lewenberg |
NEAVE JA
OSBORN JA
MCMILLAN AJA:
This is an appeal against the judgment of a County Court judge holding that a payment of $52,900 made by Ms Vesna Petrovic,[1] to her son Mr Goran Petrovic (‘the appellant’), was a voidable transaction under s 172(1) of the Property Law Act1958 and ordering (among other things) that the appellant pay this amount to the respondent, Brett Grimley Sales Pty Ltd (‘Grimley Sales’). That order was stayed pending the determination of this appeal.
[1]Vesna Petrovic was the first defendant in the proceedings below but is not a party to this appeal.
Background
Ms Petrovic began working as an office manager for Mr Brett Grimley, the director of Grimley Sales, in 2000 and was responsible for carrying out various financial transactions. In 2007 Mr Grimley was concerned about the extent of the company’s overheads. After some investigation, he called Ms Petrovic to a meeting with his solicitor in late February 2008, where she was confronted with evidence that she had stolen money from the company.
She was charged with 71 counts of theft, 88 counts of obtaining financial advantage by deception and one count of falsification of documents in respect of fraudulent transactions. She was convicted of two charges, and pleaded guilty to a further six charges. The trial judge in the criminal proceedings made a compensation order of $42,365.13 in favour of Grimley Sales.
On 3 July 2009, Grimley Sales brought proceedings against Ms Petrovic and the appellant to recover the sum of $360,000 transferred to the appellant on 7 January 2008. On 20 April 2012, judgment in default of appearance was entered against Ms Petrovic and she was ordered to pay $132,991.49, plus costs and interest, to Grimley Sales.[2] She did not appeal against that order. This appeal is confined to her Honour’s finding that the transfer of $360,000 to the appellant was, to the extent of $52,900 ‘an alienation with intent to defraud creditors’ under s 172 of the Property Law Act 1958.
[2]The amended statement of claim sought damages of $134,013.93 from Ms Petrovic and the appellant covering 166 items/transactions.
Before considering her Honour’s reasons for upholding Grimley Sales’ claim, it is necessary to describe the financial transactions that occurred during the relationship between Ms Petrovic and her de facto husband, Mr Dragan Petrovich (‘Dragan’). The couple began living together in the early 1980s. After Dragan was injured in a car accident, Ms Petrovic worked full‑time, while Dragan relied on social security, worked part‑time and looked after the children. Although they had no assets at the beginning of their relationship, in the late 1980s they purchased a property in Reservoir and registered it in Ms Petrovic’s name. The house was at the lock up stage when they bought it. Dragan paid the deposit on that house and finished it, with the help of friends, while Ms Petrovic was largely responsible for meeting the repayments of the mortgage loan.
The Reservoir property was later sold. A property was then purchased by them in Ms Petrovic’s name, at 20 Station Street, Fairfield, for either $134,000 or $136,000. The purchase was funded by a loan of $116,024 from the ANZ Bank and secured by mortgage, under which Ms Petrovic was the mortgagor. Ms Petrovic said she also borrowed a further $50,000 for renovations. As we explain below, bank records indicate a further loan of $65,000. Dragan carried out a substantial renovation of the property and Ms Petrovic continued to make the majority of repayments on the loan secured by a mortgage over the property. Her Honour accepted that Ms Petrovic and Dragan had agreed at the time of the Reservoir purchase and subsequently that they would divide their property equally if they separated. That conclusion was not challenged on this appeal.
According to Mr Grimley’s evidence, Ms Petrovic told him that the relationship was under strain in 2005 and 2006. Dragan gave evidence that he decided to end the relationship after he read a bank statement which led him to conclude that Ms Petrovic had increased the mortgage loan by around $100,000 without telling him. When he confronted Ms Petrovic, she told him she had borrowed $100,000 to give to Mr Grimley for use in his business.[3] He then told Ms Petrovic that their relationship was over and she should sell the house, but if she did not sell the house, she should place half of the value of the house in the children’s name. According to the appellant’s evidence, Dragan told him of the intended separation in May 2007.
[3]In her evidence she also said she had taken out a loan on her home savings to lend funds to Mr Grimley.
The couple waited for about two years for their daughter to turn 18 before they separated. In October or November 2007, the Fairfield property was sold at auction for $790,000. On 28 December 2007, after the discharge of the mortgage, the net proceeds of the sale, amounting to $561,043.71, were deposited in Ms Petrovic’s bank account. On 7 January 2008, Ms Petrovic transferred $360,000 to the appellant who used the money to purchase a flat in Toorak.
Dragan’s evidence was that he had asked Ms Petrovic to put his half share into the appellant’s account because he was going to look for a house for his son and had told him he would have to provide a roof for the couple’s daughter.
In his closing submissions at the trial, counsel for the appellant argued that the pool available for division comprised the net balance of the proceeds of sale plus the reimbursement to the pool of unauthorised withdrawals made by Ms Petrovic amounting to $100,000.[4] He also submitted that the $360,000 paid to the appellant included a loan made to him. According to Dragan, this amounted to $25,000, while Ms Petrovic said it was a loan of $30,000. Dragan’s evidence was that this amount had been repaid to Ms Petrovic by his girlfriend, while Ms Petrovic said that it had been repaid by Dragan. Ms Petrovic also said she had lent the appellant $60,000 for a car in early 2008, which he had repaid to her.
[4]Counsel referred to an amount of $110,000. However in evidence Dragan referred to about $100,000. In her reasons [109] her Honour referred to a claimed redraw on the mortgage of $100,000. The evidence given by Ms Petrovic was of a claimed redraw of $110,000. Nothing turns on this difference as the judge found that only a redraw of $53,156.41 was substantiated by bank records.
The trial judge’s reasons
As we have said, the trial judge held that although the Fairfield property was in Ms Petrovic’s name, Dragan was entitled to half the proceeds of the sale, under the agreement made by the couple when they first acquired assets. Despite Ms Petrovic’s claim that she had drawn down $100,000 or more on the mortgage loan for her own use, her Honour said that bank records showed that the amount withdrawn without Dragan’s knowledge amounted to $53,156.41. It followed that Dragan was entitled to $307,100, comprising his half share of the pool made up of the net proceeds of sale and the unauthorised drawing of approximately $53,156 ($614,200.12 divided by two).
The judge did not accept that the $360,000 included a loan of $30,000 to the appellant, because there was no documentary evidence that this loan had been made and Dragan’s girlfriend (who was said to have repaid it) had not been called as a witness. It followed that when $360,000 was advanced to the appellant, ostensibly to pay out Dragan’s interest, the appellant received $52,900 above the amount Dragan was entitled to (the $360,000 transferred minus the $307,100 that represented Dragan’s entitlement).
Ms Petrovic’s bank statement showed that $360,000 was withdrawn from her bank account on 7 January 2008 and that the same amount was deposited into the appellant’s bank account on the same day. Between the receipt of the proceeds of the Fairfield property on 28 December 2007 and 11 January 2008, Ms Petrovic withdrew most of the remaining money from her bank account, leaving only $33,907.44 remaining on 11 January 2008. Although Ms Petrovic claimed that some of these transactions related to the payment of outstanding debts, a number of transactions, such as a cash withdrawal of $100,000 on 11 January 2007, were not explained.
Her Honour held that the transaction was voidable, to the extent that the payment to the appellant exceeded the amount to which Dragan was entitled, because it was made with the intent to defraud creditors. In reaching that conclusion she said that:
It is true that no allegation had been put to the mother prior to the making of the transfer in January, 2008. However, the mother must have been aware that she had taken amounts of some significance such that there was a risk of action being taken to recover all, or some, of these amounts.
There are other matters that I also consider relevant as follows:
·The expression of the wish to resign in November, 2007 is consistent with a consciousness of guilt, particularly given there had been a new bookkeeper employee placed into the office. The giving of notice in November also occurs immediately prior to the transfer in January, 2008;
·that the explanation for the calculations relating to the proceeds, at least insofar as $52,900 was concerned, was unsatisfactory and without objective foundation;
·The transfer has had the effect of substantially reducing the assets available to the mother’s creditors. This was in a context wherein all of the mother’s equity was disposed of swiftly, including by way of a further substantial advance to her son. This, despite the fact that the mother was then newly separated and aged in her mid 40s, and where no satisfactory explanation was advanced as to why she would divest herself so completely of assets.
When consideration is given to all of the matters, above, I am satisfied that the transfer was, to the extent of $52,900, made with an intention to hinder, delay or defeat creditors pursuant to s172.[5]
[5]Brett Grimley Sales v Petrovic (County Court of Victoria, Judge Kennedy, 12 April 2013) [120]‑[123] (‘Reasons’).
The appeal
Issues
There were nine grounds of appeal. Essentially these raised two issues. The first issue is whether her Honour correctly found that Ms Petrovic transferred $52,900 more to the appellant than the amount to which Dragan was entitled under a constructive trust arising as a consequence of the breakdown of the relationship.[6] The second issue is whether her Honour should have held that Ms Petrovic had the requisite intention to defraud creditors. In particular, grounds 8 and 9 challenged that conclusion on the basis that:
[6]Grounds 2 (d), and (f), 3, 4 and 5 and 9(d).
8.Further and alternatively, the trial judge erred at paragraph [116] of the reasons in giving section 172 of the PLA a liberal construction and in not applying the standard of proof required under Briginshaw v Briginshaw (1938) 60 CLR 336 when considering a finding of the requisite intent to defraud creditors under section 172 of the PLA in respect of the $360,000 transfer or part of it to an innocent third party, namely the son.
9.Further and alternatively, the trial judge erred when applying section 172 of the PLA to the facts of the case by taking into account the following irrelevant, alternatively incorrect, considerations at paragraph [121] of the reasons:
(a)the existence of a new bookkeeper employee at the respondent's office;
(b)the mother's giving of notice to the respondent in November 2007, in the circumstances where the trial judge found at paragraphs (68] and [69] of the reasons that the mother continued to ‘help out’ the respondent on Fridays in 2008, until the allegations of theft were first put to her;
(c) the trial judge's calculation as to the amount of $52,900, being what the trial judge considered was an ‘overpayment’ from the mother to the father;
(d) the $360,000 transfer had the effect of substantially reducing the assets available to the mother's creditors when in fact she had funds available to pay her creditors and there was no evidence of creditors pressing her for payment at the relevant time; and
(e) the loan of money ($60,000) to her son to purchase an Audi car, which loan was repaid and is referred to further at paragraphs [88]-[92] of the reasons.[7]
[7]Grounds 8 and 9.
Appellant’s submissions
The appellant’s main submission was that her Honour erred in finding that Ms Petrovic’s payment to her son included a payment made with the intent of defrauding creditors. In reaching that conclusion the Briginshaw principle, (which is now reflected in s 140 (2)(c) of the Evidence Act 2008) required the judge to take account of the seriousness of finding that the payment to the appellant was made with an intention to defraud creditors. Her Honour had not taken sufficient account of this principle.
The judge had found that there was a genuine breakdown of the relationship between Ms Petrovic and her partner, which was triggered by Dragan’s discovery that Ms Petrovic had made unauthorised drawings on the mortgage. Mr Grimley had given evidence that Ms Petrovic told him her relationship was in trouble well before the thefts were discovered. It was submitted that as a consequence her Honour should have found that in paying $360,000 to her son, with Dragan’s agreement, Ms Petrovic was honestly intending to give effect to the arrangement that she and her former partner would divide the proceeds of the sale equally and that she would reimburse him for her unauthorised drawings on the mortgage loan. There was no evidence of any collusion between Ms Petrovic and her former partner. In these circumstances, the appellant argued it was an error for her Honour to find that the majority of the moneys were legitimately transferred, but that $52,900 was transferred with an intention to defraud creditors.
The transfer of the $360,000 to the appellant occurred on 7 January 2008, before Ms Petrovic had been confronted by Mr Grimley with the allegations of theft and no creditor was pressing her for payment. Following the transfer, Ms Petrovic still had moneys in her bank account. Ms Petrovic submitted that if she had had an intention to defeat her creditors she would have alienated all of her property instead of paying out only $360,000.
In support of grounds 9(a) and (b) it was submitted that the trial judge had erred in relying on the appointment of the new bookkeeper to Ms Petrovic as a factor tending to support the inference that Ms Petrovic had an intention to defraud her creditors. The appellant also argued that her Honour could not rely on the fact that the appellant had given notice in November 2008 in circumstances where the appellant had agreed to continue working for Mr Grimley on Fridays. The fact that she had done so demonstrated that at that time she was not motivated by any fear that the thefts would be discovered and that she would be made accountable for them.
Under cover of ground 9(e) it was argued that the judge had wrongly relied on a loan of $60,000 made by Ms Petrovic to her son so he could buy an car. Because the appellant had given unchallenged evidence that the $60,000 loan was repaid. In circumstances where the respondent’s statement of claim did not seek the setting aside of that payment, the making of that loan was irrelevant in determining the appellant’s intention when making the $360,000 payment, and the judge should not have relied upon it.
The appellant also submitted that in deciding whether Ms Petrovic had intended to defeat her creditors, the judge should have taken account of the fact that Ms Petrovic was required to reimburse Dragan for the unauthorised drawing. Both Ms Petrovic and Dragan had given evidence that this amount was withdrawn and there was no evidence of any collusion between them. The same applied to the loan of $30,000 made to her son, which Dragan said was later repaid by his girlfriend. The appellant argued that when these amounts were taken into account, Ms Petrovic) could not be held to have any intention to defraud her creditors (and in particular Grimley Sales).
Respondent’s submissions
The respondent submits that the absence of any evidence of collusion between Ms Petrovic and Dragan her former partner is irrelevant, because s 172 is concerned with the intention of the debtor and not of others to whom she has made payments. Her Honour correctly stated the legal principles relevant to the application of s 172 and correctly applied them to the facts. The judge said that the Briginshaw principle applied in determining whether Ms Petrovic had the requisite intention. Section 172 requires ‘a liberal construction’ in order to give effect to the purpose of preventing debtors from hindering or delaying their creditors.[8] When the transfer to the appellant was considered in the context of the whole of Ms Petrovic’s conduct the trial judge was entitled to infer that she had made the payment to her son for the purpose of defeating her creditors.
[8]Marcolongo v Chen (2011) 242 CLR 546.
Conclusion
We will deal first with the question whether her Honour erred in holding that, to the extent that the payment to the appellant exceeded Dragan’s half share of the proceeds of sale, the alienation of property was made with an intention to defeat the appellant’s creditors. Section 172 of the Property Law Act 1958 provides as follows:
(1) Save as provided in this section, every alienation of property made, whether before or after the commencement of this Act, with intent to defraud creditors, shall be voidable, at the instance of any person thereby prejudiced.
(2) This section shall not affect the operation of a disentailing assurance, or the law of bankruptcy or insolvency for the time being in force.
(3) This section shall not extend to any estate or interest in property alienated for valuable consideration and in good faith or upon good consideration and in good faith to any person not having, at the time of the alienation, notice of the intent to defraud creditors.
The provision is derived from ‘the Elizabethan statute’[9] which was intended to prevent debtors alienating property when this would prevent their creditors from recovering the moneys owed to them. In Marcolongo v Chen[10] the High Court considered the operation of this provision. The principles articulated in the judgment of French CJ, Gummow, Crennan and Bell JJ were helpfully summarised in the reasons of Gilmour J in Commissioner of Taxation v Oswal,[11] where he examined the meaning of the phrase ‘intent to defraud creditors’ in the context of the equivalent provision in s 89 of the Western Australian Property Law Act 1958. Gilmour J said that:
[9]13 Eliz I c 5 (1571) ‘An Act against fraudulent Deeds, Gifts and Alienations, etc’.
[10]Marcolongo v Chen (2011) 242 CLR 546.
[11][2012] FCA 1507.
The principles derived from Marcolongo as applied to s 89 are as follows:
(a)s 89 of the Property Law Act applies to conveyances and assignments made with intent to hinder or delay creditors and renders void against all creditors so hindered or delayed the conveyance or assignment, that being the language of the Statute of Elizabeth (at [12], [19], [22] – [23] and [28]);
(b)there is no superadded requirement to be found in s 89 of the Property Law Act to show dishonesty or fraud over and above an intention to hinder or delay creditors and there is no requirement to find an animus against a particular creditor: an intention to hinder or delay creditors is the relevant species of fraud (at [29]-[33] and [56]);
(c)the fact that a conveyance or assignment of property is made voluntarily is a fact which may, on its own, support an inference of the existence of the intention to hinder or delay creditors, but need not do so (at [25]-[26]). At the same time, the fact that the conveyance was made for value does not necessary establish the absence of the relevant intention (at [12]). The intention required by the statute is an actual intention, but ordinarily the existence of the actual intention will be inferred from the objective facts ([26]); and
(d)there is no requirement in s 89 of the Property Law Act that the intent to hinder or delay creditors be the sole or even the predominant purpose of the conveyance or assignment and it does not matter if the relevant intention was formed because of or at the instigation of another (at [57]).
The reasoning in Marcolongo was applied to s 89 of the Property Law Act by Lee AJA at [529] in Westpac Banking Corporation v The Bell Group Ltd (in liq) [No 3] [2012] WASCA 157.
Earlier, at first instance in Bell Group Ltd (in liq) v Westpac Banking Corporation (2008) 39 WAR 1 (Bell v Westpac) Owen J, prior to Marcolongo, had reviewed in detail at [9082]-[9192] the authorities relevant to s 89 of the Property Law Act. Owen J at [9146] collected together a number of principles. Excising those propositions affected by Marcolongo and the Court of Appeal’s decision, Owen J said:
. . .
3. Intention can be established by inference.
4.If the natural and probable consequences of the disposition are such that its effect will be to defeat or delay creditors, the necessary inference can be drawn and a court might more readily do so. But a finding to that effect is a finding of an actual or real intention, not one that is imputed to the disponor by virtue of a legal presumption.
5.The essence of the concept of defrauding creditors lies in a disposition which subtracts from the property which is the proper fund for the payment of the debts, an amount without which the debts cannot be paid ….
6.Other relevant circumstances from which the necessary inferences might be drawn include:
(a) the insolvency or difficult financial circumstances of the disponor (although establishing insolvency at the time of the disposition is not a necessary element); and
(b) whether the transaction was voluntary or the consideration was colourable, negligible or trivial.
…
8.It is not necessary that the disposition affects creditors as a class generally; it is sufficient if one or some creditors are adversely affected. In this context 'creditor' is not confined to those to whom a debt is (at the time of the disposition) presently due and owing. It extends to impending liabilities and future creditors ...[12]
[12]Ibid, [22]–[24].
As a matter of law, her Honour’s failure to find that Dragan or the appellant colluded with Ms Petrovic to defeat her creditors did not require the conclusion that Ms Petrovic lacked the intention which must be established under s 172 of the Property Law Act 1958 in order to set aside the transaction.
Although Ms Petrovic’s transfer of $360,000 to the appellant was partly motivated by her intention to divide the proceeds of sale of the Fairfield property as she and Dragan had agreed, the respondent was not required to show that Ms Petrovic was solely motivated by an intention to defeat her creditors.
Usually an intention to defeat creditors is inferred from the circumstances in which the property is alienated. Contrary to ground 9, her Honour was justified in treating the matters to which she referred in paragraph [121] of her reasons as raising the inference that at the time Ms Petrovic made the transfer to her son she intended to hinder or delay her creditors. The appellant knew she had stolen money from Grimley Sales over a lengthy period, although the thefts had not been detected before her November 2007 resignation. The resignation, which occurred shortly after Mr Grimley told her that he was engaging a bookkeeper, strongly suggests that she feared that her previous thefts were about to be discovered. Her agreement to work for Grimley Sales for a day a week after she took up her new job does not detract from that conclusion, as it is consistent with an intention to postpone discovery of her thefts for as long as possible. In these circumstances, her Honour correctly drew the inference that Ms Petrovic’s subsequent payment to the appellant was partially motivated by her intention to prevent recovery of the debt owed to Grimley Sales. That was the case even though she had not been confronted by Mr Grimley and his solicitor at that time and had not been charged with the thefts.
The inference that the payment to the appellant was partially intended to defeat her creditors was reinforced by Ms Petrovic’s disposal of her other assets, after the $360,000 was paid to the appellant. Between the time that the proceeds of sale were deposited in the appellant’s bank account on 28 December 2007 and 1 January 2008, all except $33,907.44 of that account was withdrawn by Ms Petrovic. The disposition invited enquiry, having regard to the fact that Ms Petrovic was in her 40s, was separating from Dragan, and was likely to need assets to begin her new life. Although her Honour accepted that some of these withdrawals may have made to pay debts the appellant made a single cash withdrawal of $100,000 on 11 January.
Ms Petrovic did not give any credible explanation for disposing of almost all of her assets, in the period before she was confronted by Mr Grimley and his solicitor in late February 2008. The timing of these dispositions shortly after the $360,000 was deposited in the appellant’s bank account support the claim that the appellant was attempting to divest herself of as much of her property as possible, before she could be held accountable to repay Grimley Sales.
The respondent bore the onus of proving that part of Ms Petrovic’s payment to her son was made with an intention to hinder or delay her creditors. However, we would accept the respondent’s submission that because Ms Petrovic’s conduct raised the inference that one of the purposes of the transfer to the appellant was to defeat the claim likely to be made by Grimley Sales, the evidentiary onus shifted to the appellant to justify the transfer. She did not discharge that onus. Ms Petrovic’s evidence lacked any credibility. Not only did she deny the thefts, despite her guilty plea to six charges and her conviction of two others, but as her Honour observed, she was evasive when she was cross-examined about the bookkeeper’s role.[13] She could not substantiate her evidence that she had kept a green accounting journal recording the amounts for which Grimley Sales was liable to reimburse her. Ms Petrovic’s reliance on the matrimonial breakdown did not adequately explain her reason for divesting herself of virtually all of her property and, in particular the $52,900 paid to her son in excess of Dragan’s entitlement.
[13]Reasons [70].
Finally, the appellant submits that her Honour should have accepted the evidence of Ms Petrovic and Dragan that she redrew an additional sum of $100,000 on the mortgage loan and that the $360,000 paid to the appellant included both that amount and a $30,000 loan to the appellant which was later repaid.
In our view her Honour correctly rejected that evidence. Her Honour found that the appellant was not a credible witness. She gave inconsistent evidence about having made a loan of $70,000 to Mr Grimley, originally denying this but later saying that she had given him sums of money amounting to $70,000 over the seven years that she worked for him.
Her account was not supported by bank records or any other documentary evidence. When the Reservoir home was purchased by the couple there were two ANZ loan accounts in the appellant’s name. Account no 67647 was the original loan account from which $116,024.65 was drawn down. Account no 63809 was a supplementary loan account, the original draw down amount of which was $65,000. There was some evidence that this was used to fund the renovations. On 29 March 2005 an amount of $152,000 was drawn down from the supplementary account, of which $99,400 was used to discharge the other home loan account. There were inconsistencies in Ms Petrovic’s evidence about the amount of the additional drawing. Initially she said that the $65,000 was her own loan, but later she said that the two loan accounts were combined. It was put to her that there was no bank statement showing any withdrawal of $100,000 from either the original home loan account or the supplementary account and that the only significant withdrawal for her own use was the difference of $53,156.41 between the $99,500 paid to close the loan account no 67647 and the withdrawal of $152,000 from the supplementary account. Ms Petrovic said she had taken out another loan, but was unable to produce bank records substantiating that this had occurred. Although she referred to other bank accounts, she did not produce any evidence of their existence or of moneys that she claimed to have held on term deposit.
Her Honour correctly rejected Ms Petrovic’s evidence relating to the $100,000, in light of her lack of credibility and the absence of any documentary records supporting her claims. The appellant took responsibility for management of the family finances while the couple were together and Dragan did not concern himself with the precise details of loan repayments. The judge was entitled to disregard Dragan’s evidence as to the precise amount redrawn by the appellant, without his knowledge, where there was no objective evidence that she had made an unauthorised withdrawal of $110,000, which she then reimbursed to Dragan.
It follows that her Honour correctly apportioned the $360,000 payment into the amount paid to Dragan as his share of their property and the $52,900, which she had alienated to the appellant with an intent to defraud the respondent.
For these reasons we would dismiss the appeal.
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