Puntoriero v Higgins

[2025] NSWDC 244

District Court

New South Wales

Medium Neutral Citation:

Puntoriero v Higgins [2025] NSWDC 244

Hearing dates:

30 June, 1 July 2025

Date of orders:

4 July 2025

Decision date:

04 July 2025

Jurisdiction:

Civil

Before:

Newlinds SC DCJ

Decision:

Plaintiffs’ claim dismissed with costs.

Catchwords:

CONTRACTS – Oral contract – Proof – Alleged advance of $340,000 cash – No documents

Legislation Cited:

Evidence Act 1995 (NSW) s 131

Cases Cited:

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)

Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810

John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451

Varma v Varma [2010] NSWSC 786

Watson v Foxman (1995) 49 NSWLR 315

Category:

Principal judgment

Parties:

Francis Puntoriero (Plaintiff 1)
Giuseppe Pangallo (Plaintiff 2)

Matthew Higgins (Defendant)

Representation:

Counsel:
C Carter (Plaintiffs)
M Gunning (Defendant)

Solicitors:
Mars Legal (Plaintiffs)
Noyce, Salmon & D'Aquino (Defendant)

File Number(s):

2024/37169

Publication restriction:

Nil

JUDGMENT

Introduction

1. By Amended Statement of Claim filed 28 November 2024, the Plaintiffs claim $680,000 from the Defendant, being the outstanding amount of principal and interest, they contend is owed to them on a loan.

2. The particulars of the claim are that, in May 2010, the Plaintiffs made an oral agreement with the Defendant to lend the amount of $340,000 to assist the Defendant in purchasing a property at Canbelego in New South Wales (“the Property”).

3. The agreement was that interest would be repayable on that sum at 10% per annum, calculated on a simple basis repayable at the end of the term. In other words, the total of principal and interest, being $680,000, became payable 10 years after the advance.

4. The Plaintiffs allege that there was a meeting in early June 2010 where the Plaintiffs, the second Plaintiff’s son, Pat, and the father of the First Plaintiff, Ferdinando, attended, together with the Defendant, wherein a total amount of $340,000 cash made up of $50 and $100 notes was counted by the group and then was handed over to the Defendant in a bag.

5. The transaction was not documented and there is no money trail corroborating the advance. In early June 2010, the Defendant completed the purchase of the Property and paid the balance of the purchase price of approximately $280,000.

6. The Defendant emphatically denies the agreement and the advance. He says that the topic was never broached between himself and the Plaintiffs.

7. He contends that he did borrow $280,000 to assist with the purchase of the Property from his friend Trevor Lucantonio (“Trevor”).

8. Trevor has given evidence corroborating that fact and there are a series of records which demonstrate that there was an advance by Trevor to the Defendant at or around the time of settlement, consistent with the evidence each of them gives.

9. To this, the Plaintiffs respond by saying that they were aware of that advance by Trevor to the Defendant and understood at the…