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 time that the money they were advancing was intended to be used by the Defendant to repay Trevor for the money he provided as to the balance of the purchase price payable on settlement. They contend that Trevor was required to transfer the money to the solicitors’ trust account because the solicitors would not accept cash.

A direct collision of evidence

10. In many court cases where there is a difference in recollections between witnesses, the explanation for that difference will often be the well understood unreliability and fallibility of human memory. It is not unusual for people to have honest, but unreliable, memories, especially of events long ago: Watson v Foxman (1995) 49 NSWLR 315 at 318-319; Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810 at [41]; and Varma v Varma [2010] NSWSC 786 at [424]-[425].

11. I do not consider this to be one of those cases. The evidence adduced on behalf of the Plaintiffs and the evidence adduced on behalf of the Defendant is so diametrically opposed that two things are apparent. First, the competing theories are impossible to reconcile, and second, having regard to the alleged events, i.e. $340,000 cash being counted out at a meeting and then handed over as an undocumented loan in a bag, it seems close to impossible that one group of people saying they remember that happening and another group of people positively saying it did not happen can be satisfactorily explained by mistaken or unreliable memories.

12. One side or the other, or perhaps both, must be deliberately and knowingly telling untruths.

13. As the onus rests with the Plaintiffs, it is not necessary to decide if anyone is lying. If I am not satisfied that the Plaintiffs have discharged their onus of proof, then, because the Plaintiffs bear the onus, the Plaintiffs' claim will fail.

The purchase

14. The purchase price for the Property was $525,000. The deposit and a further amount had been paid to the vendor prior to settlement. Approximately $280,000 was due to be paid at settlement, which was scheduled for early June 2010.

The evidence

15. Turning then to the evidence.

16. Before doing so, I should say that I am going to refer to each of the witnesses by their first names. This is how they were addressed during the Hearing and they all said that they were content with that approach.

17. To the extent that most of the witnesses have Anglicised their first names, I propose to use that Anglicised name. This is the name they are known by and referred to in the evidence.

18. Set out below is a schedule of the names of the various witnesses and their relationship one with the other.

Francis Puntoriero (“Frank”)	1st Plaintiff	Son of Ferdinando Guisseppe Puntoriero
Guiseppe Pangallo (“Joe”)	2nd Plaintiff	Father of Pat Pangallo
Ferdinando Guisseppe Puntoriero (“Ferdinando”)	Witness (Plaintiffs)	Father of Frank Puntoriero
Pasquale Pangallo (“Pat”)	Witness (Plaintiffs)	Son of Joe Pangallo
Matthew Higgins (“the Defendant”)	Defendant
Trevor Lucantonio (“Trevor”)	Witness (Defendant)	Friend of Matthew Higgins

The Plaintiffs’ witnesses

Joe Pangallo

19. Joe swore three Affidavits, on 25 October 2024, 12 June 2025, and 25 June 2025.

20. He was cross-examined by Mr Gunning of counsel, who appeared for the Defendant.

21. It should immediately be said that his first Affidavit did not mention the involvement of Trevor at all in the overall transaction or arrangement. I consider a fair reading of that Affidavit is that it was put forward as a full account of the various conversations and relevant conduct, together with the context in which the loan was made. It also contains a detailed explanation of Joe’s understanding of the need for, and purpose of, the loan.

22. A fair reading of that Affidavit leaves one with the impression that the $340,000 was handed over prior to settlement of the purchase, in circumstances where the money was expected to be used as part of the purchase price by it being given to the Defendant’s solicitors to be used on settlement. For reasons I will explain, this impression is not accurate.

23. Joe's evidence was that he has lived in Griffith all his life, had been a farmer and a painter for many years, and was used to and comfortable in dealing with large quantities of cash. He said that he received an inheritance from his father's estate of approximately $15,000 in cash and that his wife received an inheritance of approximately $60,000, again in cash, when her mother died.

24. He explained that the use of cash remains a common form of tender in his dealings and that it was not unusual for him to deal in cash, as is the case with many people around Griffith. This is so even in relation to very large amounts of cash. He also said it is not unusual for him to enter into transactions without any documents recording the transaction.

25. He said that he had known the Defendant since about 1994, and that in April 2010, the Defendant had a conversation with him wherein he indicated that he wished to borrow some money and pay 10% interest so that he could purchase a property to get himself back on his feet after a divorce.

26. Joe then got in touch with his friend Frank and asked Frank if he wanted to contribute. Frank, who did not know the Defendant, after considering the matter, called back and said that he would contribute some of his own money and would get some money from his mother and father. Frank’s mother and father also did not know the Defendant.

27. In late May or early June 2010, there were a series of conversations between the Plaintiffs and the Defendant which, if accepted, amount to an agreement that the money would be advanced by way of a loan repayable after 10 years, with interest to be calculated each year at 10% on a simple interest basis, so that, at the end of 10 years, the same amount of interest as principal would be due.

28. Joe said that there was a meeting sometime in early June between the various people I have mentioned earlier in this judgment other than Trevor, where a total of $340,000 was counted out, agreed to be in order, and handed across the table to the Defendant in a bag. Ferdinando was at that meeting, because he and his wife were providing part of the money to Frank and wanted to meet the Defendant, and Pat had been asked to attend the meeting as a “witness.”

29. In Joe's second Affidavit, which was sworn in June 2025, he responds to Affidavit evidence, which had been filed by that stage by the Defendant and Trevor, wherein he expands and explains his evidence in his first Affidavit to explain his understanding of where Trevor fitted in to the overall transaction, which is to the effect that, because the solicitors acting for the Defendant required the money to be received “electronically," that Trevor had advanced an amount of money to the solicitors by direct transfer or bank cheque for use on the settlement and that the monies advanced by the Plaintiffs were going to be used to repay Trevor for that amount, which was a short-term loan.

30. Joe's affidavit explanation for why that evidence was not in his original Affidavit was because he did not consider the involvement of Trevor to be relevant to the loan agreement.

Frank Puntoriero

31. Frank gave evidence to very similar effect and consistent with Joe's evidence in three Affidavits. Although, he did not know the Defendant and relied on Joe’s judgment as to the merits of the transaction. He also explained that part of his contribution to the loan was money he, in turn, obtained from his parents, again in cash.

32. He also made a second Affidavit on 12 June 2025, responding to the Defendant’s evidence in a similar and consistent manner as Joe’s evidence. In that Affidavit, he explained for the first time where and how Trevor’s involvement fitted in the overall transaction.

Pat Pangallo

33. Pat gave evidence that he went to the meeting where the cash was handed over because a “witness” was required and gave evidence consistent with the other Plaintiffs’ witnesses, that there was such a meeting, and the money was counted out and handed over.

Ferdinando Puntoriero

34. Finally, Ferdinando was called and gave evidence. He is an elderly gentleman of about 89 years old who was quite unstable on his feet and hard of hearing.

35. Nonetheless, when he was able to hear questions, I was satisfied that he understood them and was able to respond coherently and adequately.

36. His evidence was to the effect that he received a call in about April 2010 from his son Frank. Frank asked him if he was interested in putting some money in, at 10%, to lend to the Defendant. Ferdinando agreed upon the basis that Joe vouched for the Defendant and that he felt that 10% interest was a good return and better than could be obtained from the bank.

37. He contributed approximately $25,000 of his own money and $60,000 of his wife's money, all of which was at their house in cash. He explained that most of this cash had been obtained by his wife and himself by cash distributions from estates of late relatives. It was stored in various places in the home.

Cross-examination

38. Each of the Plaintiffs’ witnesses were cross-examined by Mr Gunning.

39. Ultimately, they were challenged directly to the effect that the evidence they were giving as to the loan and the payment of a $340,000 in cash was a fabrication.

40. Each of the Plaintiffs were asked for an explanation as to why there was no mention of Trevor's involvement in their original Affidavits.

41. Their answers varied.

42. Joe, as I have said, in his Affidavit said that he felt such evidence was not relevant. However, in his oral evidence, he agreed it was relevant but that he “did not want to drag Trevor into it." Later on, he again said that he did not think it had anything to do with his loan.

43. Frank's explanation was to the effect that he, at no time, thinks Trevor's involvement is relevant because “it has nothing to do with my loan to the Defendant."

44. It was put to Frank that a Letter of Demand, written on 6 December 2023, was inconsistent with the case now being run because that Letter, while suggesting there was a loan at the relevant interest rate, said that it was repayable either at the expiration of 10 years or upon sale of the land.

45. That earlier repayment date of the alleged contract has fallen away, and Joe was asked for an explanation as to why that occurred, which, to my mind, was not forthcoming, or if it was, it was not satisfactory.

46. I should say that Letter was admitted into evidence over objection. It is marked “without prejudice,” but I held it was not an offer for the purpose of s 131 of the Evidence Act 1995 (NSW) because it was no more than a demand for payment in full, failing which recovery proceedings would be commenced. I considered the Letter was not an attempt to negotiate a settlement of the dispute.

47. It was put that a time period of 30 minutes, which all of the witnesses put as an approximate time to count the money, was nonsensical because if $340,000 was on a table in $50 and $100 notes, and if it was carefully counted out individually, then the speed of counting would have to be at something like three notes per second for it to be completed in 30 minutes.

48. The various witnesses responded in various ways, some saying that perhaps it would have taken longer than half an hour, some saying that they did not all count the money together but rather effectively counted their own component (which I do not think is consistent with anyone's Affidavit evidence), and some saying that not all of the bundles which had been counted before they were brought to the meeting were recounted (again, I do not think this is consistent with anyone's Affidavit evidence).

49. It was suggested to each of the Plaintiffs that the belated explanation of Trevor's involvement was a concoction driven by the explanation and evidence in the Defendant’s Affidavits that objectively demonstrates that Trevor did contribute money. The Plaintiffs denied that suggestion.

50. It was also suggested to the witnesses that the explanation, that is that Trevor would advance monies “electronically" into the solicitors’ trust account, which was apparently what was said at the time, is not what happened because Trevor in fact drew down three bank cheques and presumably handed them to the solicitor.

51. Finally, it was suggested to the Plaintiffs that their version of events explaining Trevor's involvement was implausible to the extent that it actually made no sense at all.

Assessment of Plaintiffs’ witnesses

52. Each of the Plaintiffs’ witnesses presented confidently as far as their demeanour was concerned. However, I did feel that Frank and Joe in particular became extremely defensive and a little combative when confronted with the question of why there was no reference to Trevor's involvement in the overall transaction in their original Affidavit. Certainly, on that topic, their evidence moved around a lot and was inconsistent. It looked to me that they were struggling to try and come up with a sensible explanation rather than being open and frank.

53. I was not impressed with any explanation for why Trevor's involvement in the transaction did not form part of the original narratives, especially in Joe and Frank’s Affidavits.

54. I was not persuaded by the various explanations as to how so much money came to be counted in such a short time. It is of course possible that their original estimate of how long the meeting went for was wrong but, based on their evidence in chief, the counting of the money does become an impossibility.

55. I was also underwhelmed with the explanation for why the agreement in the Letter of Deman is so different to the agreement now asserted. I am not sure there was an explanation.

56. It goes without saying that each of the witnesses are from one of two families and/or are close friends. That is none of them can be said to be independent of the other.

57. Before resolving the question of whether I accept the Plaintiffs’ evidence, which after all is evidence of an oral agreement of money being handed over in large quantities in cash with no records, contemporaneous or otherwise, I need to judge that evidence against all of the other evidence in the case.

The Defendant’s evidence

58. The Defendant called evidence from himself and Trevor.

Matthew Higgins

59. The Defendant’s evidence can be shortly stated. He was living in the Property pursuant to a rental agreement, which included an option to purchase the Property. He was seeking to settle its purchase in around 2010. The original lease and option were oral arrangements with the owner. Once the option was exercised, a written contract was signed, but it has since become lost. Prior to settlement, the deposit and about $200,000 had been paid and, in early June, the balance needed to be paid on settlement was about $280,000.

60. He had no conversations at all with either of the Plaintiffs or anyone on their behalf concerning a loan, did not attend a meeting where cash was counted, and did not receive the cash.

61. He explained that he obtained part of the purchase price by borrowing $280,000 from Trevor.

Trevor Lucantonio

62. Trevor gave evidence to the same effect and said that the money has long since been repaid.

The Defendant’s documentary evidence

63. The documentary evidence tendered includes some correspondence about settlement from the Defendant’s solicitors, the settlement sheet of the purchase of the Property, the front page of the contract, three receipts for all four bank cheques obtained by Trevor, and bank statements demonstrating those cheques were handed over at the relevant time. The Letter of Demand I have already mentioned was also tendered.

Cross-examination

64. Mr Carter of counsel, on behalf of the Plaintiffs, cross-examined both of the Defendant and Trevor. He firmly put to the Defendant that he was concocting his evidence and telling deliberate untruths when he suggested there was no loan from the Plaintiffs as alleged. The Defendant denied this suggestion.

65. Trevor was cross-examined but, as ought be now clear from these reasons, by the time of the cross-examination, the involvement of Trevor in the transaction had become common ground and therefore he was not challenged as to the particulars of his involvement. However, he was challenged vigourously as to his evidence that he knew nothing about any cash advance from the Plaintiffs to the Defendant for the purpose of repaying what was, so the suggestion went, a short-term arrangement only between himself and the Defendant. He denied being repaid by a bag of cash, but rather said he was repaid by a series of deposits into his various bank accounts, some of which he identified on some old bank statements with notes on them by his accountant at the time, which he said he found in a box in his daughter’s bedroom. He said he understood the terms of his loan was that it would be paid back over approximately 18 months at the same rate as his overdraft rate from time to time. He said it was paid back more or less on time.

64. Various of Trevor’s bank account statements produced by Westpac Bank on subpoena were examined and assertions made that deposits made in the 18-month period after the settlement of the Property were all deposits of cash, being cash that he had received from the Defendant at or around the time of settlement. He emphatically denied those allegations. It ought be noted that there is nothing on the face of the bank statements to support the proposition that these deposits were of cash. They are equally consistent with deposits either by cheque, direct transfer, or transfer between various accounts of Trevor, which was Trevor's evidence.

65. Judged by reference to their demeanour, I found both the Defendant and Trevor to be most satisfactory witnesses. They both gave their evidence calmly, in a measured manner, and their answers appeared to me to be logical.

Consideration

68. Ultimately, the Plaintiffs’ case depends on the Plaintiffs’ various witnesses being accepted without independent corroboration of any type.

69. None of the Plaintiffs or their witnesses are independent of the others. The Affidavit evidence of the two Plaintiffs does bear remarkable similarity but, in the circumstances, it would be wrong to suggest that the corroboration one to the other amounts to objective reliable evidence. The same can be said of the Defendant and Trevor, whose evidence is consistent, but they too are long-standing friends and business associates.

70. As I said earlier in these reasons, I do not think this is a case where the gulf between the evidence in the Plaintiffs’ camp and the evidence in the Defendant's camp can be explained by the fallibility of human memory.

71. There are, before me, competing case theories, one of which cannot have occurred in the same universe as the other.

72. As Hammerschlag J explained in John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 (“Holland”) at [94] (omitting references):

“Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences”

73. Or as Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [22]:

“the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

74. On one view of things, this is a commercial case involving a commercial transaction, but I think that is to overstate things.

75. It is a commercial transaction, in that a significant amount of money is said to have been lent with a view to making profit as a return on interest charged. However, the arrangement, if it occurred at all, was extremely informal, was not documented in any way, and if the Plaintiffs’ witnesses are to be believed, was based on nothing more than trust. It therefore suffers from the difficulty of proof identified by Hammerschlag J.

76. On the other hand, the competing case theory put forward by the Defendant, being the arrangement between the Defendant and Trevor, was almost as informal. It was not documented in the sense of any written contract, note, or memorandum. However, there was created at the time a paper or money trail which does lend corroboration to its existence.

77. Ultimately, the involvement of Trevor was accepted by the Plaintiffs and became part of their case theory, being that the money to be advanced by them in cash was for the purpose of repaying the short-term arrangement whereby Trevor had provided bank cheques to allow settlement to take place because the solicitors were not prepared to accept many hundreds of thousands of dollars of cash for the purpose of paying into their trust account.

78. What this means is that, in this context, it is not implausible that informal arrangements of an undocumented type were entered into. However, that does not relieve the Plaintiffs of the difficulties of proof identified by Hammerschlag J in Holland. To put it another way, the proposition that informal arrangements might not be implausible does not make them probable.

79. The Plaintiffs bear the onus of proof. It is for the Plaintiffs to persuade me as to the relevant facts on the balance of probabilities as explained by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at pp 361-2.

The competing submissions

80. On behalf of the Plaintiffs, Mr Carter emphasises the following:

1. There is substantial commonality between the Affidavit and oral evidence of the Plaintiffs and the witnesses called by the Plaintiffs.

2. Within the Plaintiffs’ evidence, there is a significant degree of detail, which is common.

3. That commonality and detail lends support to each party's evidence.

4. The lack of documents is explained by the level of trust between the parties.

5. The Defendant was under pressure to settle because, on 24 May 2010, his solicitor wrote to him indicating that settlement was due on 1 June 2010, and that he needed to get money into the solicitors’ trust account well before settlement. That pressure is consistent with the Defendant entering into the transaction as alleged by the Plaintiffs.

6. A close analysis of Trevor's bank statements demonstrates that, over a period of about 18 months after settlement, monies were paid into that account of approximately the amount said to have been advanced by the Plaintiffs.

81. On behalf of the Defendant, Mr Gunning has emphasised:

1. The transaction, as explained by the Plaintiffs, is extremely convoluted and complex. It could have been done in a much simpler and straightforward manner and is thus implausible.

2. There is no objective or reliable evidence that corroborates the Plaintiffs’ case.

3. The Defendant’s “case theory" is supported, not just by the evidence of Trevor, but by the paper trail created at the time.

4. I should be extremely sceptical as to the credibility of each of the Plaintiffs’ evidence, because of the way their evidence changed between their original Affidavits and their second Affidavits, the former not mentioning the involvement of Trevor in the overall transaction at all and the latter explaining it in a way embracing his involvement. Mr Gunning contends that the Plaintiffs have deliberately adjusted their evidence to meet the explanation based on Trevor advancing the money.

5. The Letter of Demand, written in December 2023, asserts a substantially different arrangement being that the monies were repayable either at the end of 10 years or such earlier date that the Property was sold. That second aspect of the contract no longer forms any part of the Plaintiffs’ case. Mr Gunning notes that, if it did, the Claim would be statute barred because the Property was, in fact, sold more than six years prior to these proceedings being commenced.

6. The time it takes to count the amount of money involved does not accord with the time estimates of the meeting, whereby the money was counted by any of the witnesses.

Resolution

82. I am not satisfied on the balance of probabilities that the Plaintiffs entered into the agreement alleged or that the money was advanced by the Plaintiff to the Defendant as alleged. Having come to that conclusion, it is not necessary for me to find they and their witnesses are deliberately lying.

83. My reasons are as follows.

84. There are many levels where a close analysis of the Plaintiffs’ explanation for the overall transaction really, either does not make sense, or at least makes the explanation implausible. These include:

1. The fact that the advance by the Plaintiffs to the Defendant, said to be a back-to-back loan to cover Trevor for the monies he advanced to assist with settlement, was $340,000, yet Trevor only advanced $280,000 to assist with that settlement. No satisfactory explanation was proffered by anyone for this discrepancy. $280,000 is close enough to the amount paid at settlement as disclosed in the Settlement Sheet. It was all that was needed.

2. If Trevor's loan was to be for a short-term only and was only needed because he could obtain bank cheques which the Plaintiffs could not, then there is no sensible reason why Trevor would not have been reimbursed entirely immediately on settlement, yet it is not clear that this happened at all.

3. Moreover, and in a similar vein, there is no reason, that I can see, why Trevor could not have gone to the meeting where the money was counted out and receive directly the amount of cash in exchange for the bank cheques which could have then been taken by the Defendant to his solicitors.

4. The loan being repayable at 10 years, regardless of the Property being sold earlier, is very strange and, in the context of its purchase being the purpose of the loan, I consider that to be very unlikely.

5. If Trevor was given the bag of cash in June and then was required to “drip feed" the cash back into his bank account over an 18-month period, then he would have lost the value of that money in terms of interest it could earn during that period. This seems entirely uncommercial.

85. Whilst I accept that different people have different requirements for documenting loans, the fact is, on the Plaintiffs’ own evidence, Pat was asked to come to the meeting where the money was counted so as to "witness" and yet no one saw fit to take any other steps to record the transaction or the amount of money involved, for example by writing out a simple receipt.

86. The explanation as to lack of documents being explicable by a high level of trust fails to engage with the fact that neither Frank, nor either of his parents, knew the Defendant.

87. I do consider that, in light of the acknowledged involvement of Trevor and the centrality of that involvement to the entire transaction, the failure of the Plaintiffs to mention Trevor at all in their original Affidavits cannot be explained away easily by the mere assertion that they did not think it was “relevant." In my judgement, the Plaintiffs, being non-lawyers but experienced and in my judgement savvy businesspeople, would have fully understood the relevance of Trevor's involvement to the narrative they were setting out in their Affidavits.

88. I accept Mr Gunning's submission that the second Affidavit of each of the Plaintiffs do expose a major adjustment in their evidence and a significant shift in their case theory. The only explanation for this is to accommodate the involvement of Trevor.

89. I am also concerned that the evidence about the counting of money and the timing involved seems to be an impossibility, but I think, if that was all I was considering, it could be put down to an inability of people to estimate the time involved in the meeting.

90. The Letter of Demand which I have referred does set out with some precision a substantially different case to the one now propounded, which I should say is a case that makes a lot more commercial sense because it involved the loan being repayable at the time the Property was sold if it was sold prior to 10 years from the date of the advance. No satisfactory explanation has been provided as to why, at the time that Letter was written, this was believed to be a term of the loan, but that it has since evaporated.

91. I consider the evidence of the Defendant and Trevor, when taken together, to provide a much more coherent and sensible commercial explanation of the overall transaction.

92. If I had to judge the matter solely on observations of demeanour and the like, I would prefer their evidence over the combined body of evidence of the Plaintiffs, but thankfully, I do not have to decide the matter upon that basis alone because of the other more reliable matters I have taken into account which I have set out. However, I do take into account my preference for the Defendant’s witnesses’ evidence overall.

93. I do not need to embrace the submission made by Mr Gunning that the Plaintiffs and their witnesses are deliberately lying. Suffice to say, I am not satisfied that the case has been proved to the requisite standard.

Conclusion

94. For those reasons the Plaintiffs’ claim must be dismissed with costs.

Orders

95. My orders are:

1. The Plaintiffs’ Claim is dismissed.

2. Verdict for the Defendant.

3. The Plaintiffs pay the Defendant’s costs of the proceedings.

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Decision last updated: 04 July 2025