Robertson (a pseudonym) v Wilson (a pseudonym) - [2023] WADC 115

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ROBERTSON (a pseudonym) -v- WILSON (a pseudonym) [2023] WADC 115
CORAM:   MACLEAN DCJ
HEARD:   12-19 JANUARY 2022
DELIVERED          :   3 OCTOBER 2023
FILE NO/S:   CIV 350 of 2020
BETWEEN:   MS ROBERTSON (a pseudonym)
Plaintiff
AND
MR WILSON (a pseudonym)
Defendant

Catchwords:

Loans for legal fees and living expenses - Intention to create legal relations - Estoppel

Legislation:

Family Court Act 1997 (WA)

Result:

Plaintiff's claim established in part

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	In person

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Not applicable

Case(s) referred to in decision(s):

Cockman v Gorman [2023] WASCA 44
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
Wilson and Robertson [2021] FCWA 121
Wilson and Wilson [2016] FCWAM 174

MACLEAN DCJ:

Setting

Ms Robertson and Mr Wilson were in a romantic relationship, which commenced in February 2013. All things must pass and by late 2019 the relationship had ended. In the aftermath, an echo remained for each. On Ms Robertson's case a repayable advance of $179,093 remained outstanding (the Advance). For Mr Wilson a combination of holidays received, financial supports accepted, and on his case the result of work left behind which exceeded the value of the Advance.
This case is about whether the Advance, that is amounts of money, advanced to Mr Wilson described as Loan for Legal Fees and Loan for Living expenses, are repayable in whole or in part and if they are the extent that they may have been repaid by work performed by Mr Wilson.
Ms Robertson's case is the entire Advance claimed is owing. Mr Wilson's position is that not all of the Advance was repayable and further the amount that had been repayable was more than repaid by reason of work he did for her and property left behind.
Ms Robertson bore the onus of demonstrating the Advance was repayable and of demonstrating that it remained outstanding. Mr Wilson was responsible for demonstrating that he had worked to discharge any part of the debt conceded or established. This required him to prove the work and the value of the work. By his assertion that he had undertaken work to repay the Advance, it is clear that Mr Wilson conceded at least some of the Advance was repayable.
Mr Wilson has not asked to be paid for the value of the work that he claimed to have performed. He valued his work at $222,000. The amount Ms Robertson claimed against him in these proceedings was $179,093. If established this would mean Ms Robertson benefitted by $42,907.
Ms Robertson did not disagree that Mr Wilson did some work. Her position was the work was either a kind that was not remunerated and might be expected from a person who was in a relationship with another. She agreed while some work fell outside of relationship work her position was that any work of the kind Mr Wilson did was paid for and that given an injury which prevented Mr Wilson from working and given his need to earn income not only did he not undertake any work in discharge of the debt but he did not have the capacity to do so.
The parties were not in a de facto relationship but the relationship was close. The parties:
•Holidayed together;
•Spent other recreational time together;
•Undertook improvements to Ms Robertson's properties;
•Ms Robertson provided Mr Wilson with remunerated work, which included work on her properties and assistance with bookkeeping and how to establish a business; and
•Ms Robertson gave Mr Wilson assistance in engaging legal representation in his First Family Court Proceedings, his Fair Work Australia (Fair Work) claim and encouragement in his review application before the Child Support Tribunal (Tribunal).
The Advance was made up of payments made on different occasions. Necessarily Ms Robertson must demonstrate that each of the payments were repayable.

Legal principle

To establish her claim Ms Robertson must prove:
•The payments that make up the Advance;
•At the time the payments were made they were made on condition that they were to be repaid; and
•Mr Wilson agreed that the payments were repayable and on receiving the money or on its payment on his behalf, he agreed to be bound by the condition to repay it.
Ms Robertson bears the responsibility of proving her case on the balance of probabilities. This means more likely than not.
To find for Ms Robertson, I must be satisfied on the balance of probabilities that:
•Mr Wilson voluntarily assumed a legally enforceable duty;
•In which there were identifiable parties to the arrangement;
•And in respect of which the terms of the arrangement were certain; and
•There was consideration for the agreement.
I find Mr Wilson and Ms Robertson were the parties. The consideration was the payment of various sums of money to or on behalf of Mr Wilson from Ms Robertson.
I must consider whether the circumstances show the parties did not intend, or cannot be regarded as having intended that their agreement was to be subject to determination by a court.
This inquiry may take account of:
(a)the subject-matter of the agreement;
(b)the status of the parties to it, their relationship to one another; and
(c)other surrounding circumstances.
In considering these matters I am in search for the 'intention to create contractual relations' and I am required to make an objective assessment of the state of affairs between the parties, and because of the relationship between Mr Wilson and Ms Robertson I must consider whether this is a case in which it may be presumed that there are some 'family arrangements' which are not intended to give rise to legal obligations.[1] This is so even though the parties were not in a de facto relationship.
[1] Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 (Ermogenous).
The Court of Appeal considered Ermogenous in Cockman v Gorman,[2] and identified the general principle as:
The general approach to the question of whether parties intend to create contractual relations is described by the plurality in Ermogenous v Greek Orthodox Community of SA Inc, to the following effect. A contract will not be formed where there is no intention by the parties to create legal relations, in the sense of subjecting their agreement to adjudication by the courts. In determining whether that intention exists, the court looks to the subject matter of the agreement, the status of the parties to the agreement, their relationship to one another and other surrounding circumstances. The search for the intention to create contractual relations requires an objective assessment of the state of affairs between the parties. The reference to 'intention' in this, as in other, contractual contexts is to what is objectively conveyed by what was said and done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.
(footnotes omitted)
[2] Cockman v Gorman [2023] WASCA 44 [9].
And later at [20] the Court of Appeal said:
In considering these observations, it is important to bear in mind the caution expressed subsequently in Ermogenous as to the inappropriateness of formulating rules intended to prescribe cases in which an intention to create contractual relations should, or should not, be found to exist, and as to the inutility of using the language of presumptions in this context. …
(footnotes omitted)
The issue of intention to create legal relations and the objective assessment must be considered in this case against the state of affairs between the parties.

Estoppel

Before these proceedings Mr Wilson had been a party in two separate family court proceedings.
In the First Family Court Proceedings[3] he sought orders from the court on his separation from his former wife.
[3] Wilson and Wilson [2016] FCWAM 174.
In those proceedings Mr Wilson sought that his former wife pay him such sum necessary to effect a 50/50 division in relation to the financial issues between them. His former wife sought that Mr Wilson pay her such sum necessary to effect a 60/40 division in her favour.
Mr Wilson also sought a review by the Tribunal of his child support obligations. His submission to the Tribunal included a claim that he owed money, the subject of these proceedings, to Ms Robertson. The Tribunal reduced his child support payments to zero.
An issue arises whether Mr Wilson is estopped from now denying the Advance was repayable given the finding in the First Family Court Proceedings and result in the Child Assessment Review and his position as represented and the decisions which followed.
In Tomlinson v Ramsey Food Processing,[4] the High Court identified the three forms of estoppel recognised by the common law as having the potential to result from the rendering of a final judgment in an adversarial proceeding.[5] The classic expression said to be the primary consequence of its operation is that a 'judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies'.[6]
[4] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 (Tomlinson v Ramsey).
[5] Tomlinson v Ramsey [20] - [23].
[6] Tomlinson v Ramsey [22] (omitting citations).
In SmargiassiNominees Pty Ltd v Shire of Collie[7] the Court of Appeal explained the principles in summary as:
[7] SmargiassiNominees Pty Ltd v Shire of Collie [2021] WASCA 107 [42] - [48].
1.The public interest in finality in litigation and the conclusiveness of judicial decisions. Controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.
2.Issue estoppel operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching a final judgment in an adversarial proceeding. The issue cannot afterwards be raised between the same parties or their privies.
3.To conclude, Mr Wilson is now estopped. I must conclude the:
(a)same question has been decided; and
(b)the judicial decision which is said to create the estoppel was final; and
(c)the parties to the judicial decision or their privies were the same as those to the proceedings in which the estoppel is raised or their privies.
4.An issue estoppel may arise where 'a matter necessarily decided' by a prior final judgment between the parties or their privies is one which is 'legally indispensable to the conclusion'.
In considering whether a matter was necessarily decided, there is a difference between:
1.Matters which are 'fundamental or cardinal' to the prior judicial determination or 'necessarily involved' in it as its legal justification or foundation. In short, the 'immediate foundation' of the prior judicial determination; and
2.Matters which are 'subsidiary or collateral'; that is, not being part of the 'essential foundation or groundwork' of the prior judicial determination. In short, 'no more than part of the reasoning supporting the conclusion'.
The first will ground an issue estoppel. The second will not.
The question is whether the matter of fact or law was so fundamental that the prior judicial determination cannot stand without it.
Relevantly for this consideration, the issue in the First Family Court Proceedings turned on how the property should be equitably divided.
The issue in the Child Support Assessment Application turned on whether it was equitable for Mr Wilson's child support determination to remain unchanged.
Both matters involved an assessment of Mr Wilson's financial position and in both he claimed the Advance was a debt to Ms Robertson.
The issue in the Second Family Court Proceedings was whether there was a jurisdiction for the Family Court to make a property division for Mr Wilson.
To the extent that Mr Wilson's position now is the Advance was not repayable, it appears to sit opposite to his position in the First Family Court Proceedings. A position that court accepted, and which resulted in an outcome to Mr Wilson's benefit.
The Child Support Agency (CSA) appeared to accept and act on his representation that the Advance was repayable.
By asserting the Advance is not owing, Mr Wilson is raising an issue, which, if accepted might mean this case could not be decided consistently with the decision in the First Family Court Proceedings or with the reassessment by the CSA. That is the Advance is owing, therefore it would not be equitable to divide the property in a manner that was more generous to Mr Wilson's former wife and it would not be fair for Mr Wilson to pay child support.
In the Second Family Court Proceedings Mr Wilson represented that the Advances were not repayable; as they were not intended to be, and he had undertaken work in discharge of the debt.
Even though:
(a)Mr Wilson's position in the First Family Court Proceedings and the application to the CSA, that the money is repayable, is obviously different to the position in this case; and
(b)while Mr Wilson's position appears to have been significant insofar as the outcome goes, namely a property settlement that was more generous than his former wife conceded; and divided perhaps by reason of his indebtedness to Ms Robertson and the fact the court found that she was not a financial resource; and
(c)the CSA reduced his obligations to zero;
issue estoppel does not arise for these reasons:
1.the proceedings in the First Family Court Proceedings were not between the same parties;
2.they did not resolve finally an issue between them;
3.further, the First Family Court Proceedings and the Tribunal's decision were made, on one view, before Mr Wilson had undertaken work to discharge the debt;
4.Ms Robertson, although a witness, was not a party to the First Family Court Proceedings and was not a party to the CSA review;
5.in the Second Family Court Proceedings, the issue of whether Mr Wilson undertook work to discharge the debt was reserved for determination by this court; and
6.Mr Wilson's responsibility to pay back the Advance was not decided in either of the Family Court Proceedings or the child support assessment review.
Mr Wilson's previous positions demonstrate differences in his position with regard to the Advance at different times.
In these proceedings, Mr Wilson was not honest, accurate or reliable. I make this finding, expressed early in these reasons, but after having regard to the whole of the evidence, and understanding by reason of my findings with regard to: the Queensland holiday expense; an amount said to be paid for Mr Wilson's legal representation in the Fair Work matter, and the Fence Post reimbursement, there is, on one view, some corroboration for Mr Wilson's various positions. However these findings are made not because I accepted Mr Wilson's evidence. They are made because I did not accept Ms Robertson had established her claim on those matters. Ms Robertson was otherwise consistent and credible. The transactions were recorded and admitted. The issue was the intention to create legal relations; an issue Ms Robertson carried the responsibility of demonstrating in relation to each part of the Advance.
Although I did not consider Mr Wilson to be credible and I reject his position insofar as the Advance was not repayable or work he did eclipsed the amount advanced, it did not automatically follow that I was bound to accept Ms Robertson's case. Ms Robertson carried the responsibility of proving her case.

This case

The advances fall within two claims:
(a)living expenses of $53,910; and
(b)Loans for Legal Fees, which was partly recorded in writing and which was initially for $45,000 and which grew to include an additional $80,183 and which was not the subject of a written agreement.
Collectively the Advance was $179,093.
The Loan for Legal Fees was in the amount of $45,000 and was said to be repayable on 13 August 2016 and was said to be interest free.
The balance of $134,093 is subject to a claim of interest from the issue of these proceedings and was said to be made up of further advances or payments additional to the Loan for Legal Fees and including loans for living expenses.
The particular payments were recorded. Ms Robertson together with a MYOB accredited assistant, Mr W, prepared loan accounts. These were tendered in these proceedings as part of Mr W's affidavit (Exhibit 26).
Mr Wilson's work was largely unrecorded, although he did prepare schedules of claim which were tendered in the trial, and which he asserted represented the value of the work he did.
Ms Robertson's evidence was Mr Wilson was paid for invoiced work he did.[8]
[8] ts 295.
Ms Robertson was asked about her hand delivered note to Mr Wilson dated 5 December 2019,[9] which included:
I've broken down all the money paid to you or on your behalf since 2013.
The amounts are broken down into 3 types.
1)Loan for legals (being all money paid directly to lawyers on your behalf
2)Other loan amounts
3)All wages or paid work.
[9] Exhibit 30.
The letter went on to detail that the amounts were $125,183.17, $53,910.80 and $61,087.23. The letter recorded Ms Robertson's position that
… I don't want you to forget that I did pay for work done from 2015 onwards as well as offset accrued hours as per the attached timesheet summary.
Ms Robertson did not agree that a note attached to the letter, which seemed to be a timesheet for work done between 13 July 2016 and 4 January 2017 was attached to the document sent to Mr Wilson.[10]
[10] ts 300.
I cannot make a finding as to whether it was or was not. However, the matter of importance was the reference in the timesheet to 40 hours of time spent between 1 January and 4 January 2017 described as reticulation.
Ms Robertson accepted a handwritten note on the document '[Mr Wilson] I will check that these hours have been taken into account because I'm not sure that they have', but could not say whether they had been paid. Her position was that there was nothing that Mr Wilson was due to be paid that he had not invoiced her for or been paid for.[11] Ms Robertson agreed that she did not recall seeing an invoice for the reticulation.[12] Although the reticulation work did not seem to be the subject of any specific invoice Ms Robertson was very confident that Mr Wilson had been paid for everything that he had done.[13]
[11] ts 300.
[12] ts 306.
[13] ts 307.
In cross-examination Ms Robertson asked Mr Wilson about an SMS conversation between them which was recorded in Exhibit 46. In the course of the conversation Ms Robertson was admonishing Mr Wilson for not noting the exact hours he spent on her work and for expecting her to guess and complained that he expected her to guess and said:[14]
… That's what it did with the retic at - the farm … Paid for a couple of weeks from memory.
[14] ts 558.
Ms Robertson asked Mr Wilson a series of questions about the email exchange and put to Mr Wilson that he had been paid.
As the passage below demonstrates Mr Wilson did not engage with the questions, was evasive and maintained that he was not paid.
And my handwritten note saying I would have to check and see if these hours have been taken into account because I'm not sure that they have. The - what I'm putting to you is that these hours I'm referring to in this text message chain and it being a couple of weeks are in fact for the reticulation that are on this timesheet?---Okay.
Yes, do you agree that that is the case?---That's what you've written here.
No, is it the case - do you think that this money I am referring to in this text message is in fact the payment that I'm referring to for the reticulation? I've said I'm paying you - I paid you a couple of weeks?---That's what it looks like.
Do you concede that it is the case that I did not pay you for a couple of weeks for the retic?---No, because no hours have come off any loan. This - this is - - -
No, no, I don't say I'm taking it off the loan?---You haven't paid me for anything.
I'm saying to you paid for a couple of weeks from memory?---That's what you say in your text message.
It is?---It's not what happened. No, I didn't receive anything. And if you can show me - - -
Just a moment. Just a moment. Did you respond to this text at any point and say, 'Well, no, you didn't pay me for a couple of weeks for retic'?---I'm not quite sure.
…
No. But on the surface of it this text looks like and I'm claiming that I paid you for a couple of weeks. But you don't recall receiving the payment, is that correct?---I didn't receive any payment, no.

I am satisfied that the work was paid to Mr Wilson. It was his preference to receive payment for work he did rather than to have it discounted from the Advance. Notwithstanding the lack of an invoice or the demonstrated payment to Mr Wilson I am satisfied that it was paid. Had it not been paid Mr Wilson would have raised this in the SMS conversation. The conversation proceeded on the basis that he had been paid and that the amount had been rounded up. If he had not been paid for the reticulation Mr Wilson most certainly in that conversation would have complained, as he did about other matters, of not being paid. Mr Wilson was a poor record keeper and I accept Ms Robertson's evidence that she estimated what was owing and paid Mr Wilson accordingly.
Had I found that the work had not been paid I would have discounted it from Ms Robertson's claim. Mr Wilson was paid $80 an hour for his work from 25 August 2017.[15] Prior to this he was paid $30 an hour. The value of the work being 40 hours at $30 an hour would have been $1,200.
[15] ts 403.
Three specific payments were the subject of particular dispute. Mr Wilson agreed that the Advance had been made. His position was amounts of $5,000, said to have been a payment toward the cost of a Queensland holiday and $2,500, said to be the cost of a solicitor who represented Mr Wilson in a Fair Work claim were not repayable. The $5,000 was a gift and the $2,500 was a payment for work he undertook. He denied that a part of the Advance, $1,800, was repayable as it was a reimbursement to him for materials he bought for Ms Robertson.
There was no issue that Mr Wilson vacationed in Queensland with Ms Robertson at her cost and there was no issue that Mr Wilson was engaged in a Fair Work claim and that a solicitor, Mr Williams, provided legal services on his behalf in relation to the claim. There was no issue that an amount of $1,800 was paid to his account.
Ms Robertson was generous to Mr Wilson and not only paid for holidays which included him and other members of his family, but also when refunding costs incurred by him, for buying materials for her property sometimes rounding the cost up; and also met costs he paid toward holidays they were both to enjoy. For example, $3,000 toward a holiday in Brisbane.[16]
[16] ts 468.
His position with regard to the balance of the Advance is that it was not repayable. Initially the advance toward his legal fees was payable and to be paid. Mr Wilson agreed it would be paid from proceeds of his own family court proceeding, funded by Ms Robertson. Following judgment in those proceedings Mr Wilson did not pay the proceeds he received to Ms Robertson. The whole of the Advance was then to be paid by him by money or to be paid by him for work done on Ms Robertson's properties at a rate of $80 per hour.

First Family Court Proceedings

In the First Family Court Proceedings, the court found:
76… Mr Wilson has re-partnered with Ms Robertson since separation, however they do not live together and maintain separate residences. Ms Robertson has provided Mr Wilson with some financial assistance, in particular by lending him significant amounts in order to pay his litigation costs and to meet living expenses, particularly during the period when he was unable to work due to his knee injury. Ms Wilson maintained that Mr Wilson received 'non-taxable income' from Ms Robertson and that Ms Robertson would be a significant financial resource to Mr Wilson in the future. However, there was simply no cogent evidence that either was the case.
In these proceedings Mr Wilson gave evidence:
•that Advance was for legal fees and living expenses;
•it was not financial resource; and
•it was repayable.
The outcome of the decision was positive for Mr Wilson. The property was divided 50/50. Ms Wilson had sought orders for a division of 60/40 in her favour on grounds that included the Advance was a financial resource and that it represented tax free income. The outcome meant that Ms Wilson had to pay Mr Wilson $40,600.
Ms Robertson was not a party to the First Family Court Proceedings. Mr Wilson called her as a witness.

Child Support Assessment Application

In October 2016 Mr Wilson sought a change of his child support assessment. He stated that he owed Ms Robertson $179,278 by way of a personal loan.
Following this application Mr Wilson's child support obligations were reduced to zero.

Second Family Court Proceedings

The Second Family Court Proceedings, Wilson and Robertson[17] were between the parties to these proceedings.
[17] Wilson and Robertson [2021] FCWA 121.
Mr Wilson commenced proceedings and the applications were decided by Tyson J.
During her Honour's reasoning she made a series of findings as to the brief background facts at [13] ‑ [48]. I respectfully adopt those findings and the useful chronology included in those findings. They are consistent with the evidence presented in the hearing before me and I make these findings. I adopt the words loan and lent understanding that the issue as to whether the Advances were repayable or had been repaid is one I have to decide.
Specifically:
1.Mr Wilson was married to Ms Wilson. They separated in November 2011.[18]
2.Ms Robertson and Mr Wilson met in early 2013 and commenced a romantic relationship in February 2013.[19]
3.Mr Wilson injured his knee in October 2013; in October 2014 he underwent surgery; and in March 2015 he returned to work. Mr Wilson's employment was later terminated which led to him seeking compensation for unfair dismissal.[20]
4.Between June 2014 and June 2018 Ms Robertson lent Mr Wilson money to meet his living expenses. According to Ms Robertson it was $53,910. According to Mr Wilson it was $55,195.[21]
5.Mr Wilson was a party in Family Court proceedings against his former wife in 2013. He could not afford the cost of legal representation and accepted Ms Robertson's offer to meet his legal costs.[22]
6.Between August 2014 and November 2014 Ms Robertson lent Mr Wilson $44,937 for his legal fees. An agreement recording the loan was in writing (Loan Agreement). It recorded an advance of $45,000 on conditions that the advance would be paid within three years and was interest free. Attached to the Loan Agreement was an account transaction list dated 1 July 2013 to 13 November 2014 which set out payments Ms Robertson made for or on behalf of Mr Wilson and which totalled $44,937.09.[23]
[18] Wilson and Robertson [16].
[19] Wilson and Robertson [18].
[20] Wilson and Robertson [21].
[21] Wilson and Robertson [24].
[22] Wilson and Robertson [25].
[23] Wilson and Robertson [26].
Mr Wilson signed the Loan Agreement after November 2014.[24]
[24] Wilson and Robertson [27].
Between August 2015 and April 2019 Ms Robertson lent a further amount of $80,183 toward Mr Wilson's legal fees and living expenses.[25]
[25] Wilson and Robertson [28].

Relevance of Mr Wilson's previous positions

Mr Wilson's evidence in the First Family Court Proceedings, his reliance on Ms Robertson's evidence, as to the existence of the debt; his position in the Second Family Court Proceedings and application in the Child Support Assessment Application presented as significant obstacles to Mr Wilson insofar as his positions:
•The money was not repayable; and/or
•The money was repayable and had been repaid by work.
In the First Family Court Proceedings the Advances were a matter which were determinative in the court decision.[26] Mr Wilson made the representation having the benefit of legal representation. He gave evidence of it and called Ms Robertson to give evidence on his behalf.
[26] See Wilson and Wilson [76].
The existence of the debt appeared to be a matter that was considered in the decision to reduce his child support assessment. Mr Wilson expressly relied on it in his application.

Previous litigation

Although I am satisfied that estoppel, in any form, does not apply, it is convenient to refer further to the previous decisions in order to consider the positions of the parties in these proceedings given that the finding of fact that the parties were not in a de facto or marriage-like relationship, is a decided fact and is relevant to the likelihood of facts being established, or otherwise, in this case. Mr Wilson's positions in the First Family Court Proceedings and in the CSA application do not of themselves give rise to a presumption that his evidence should not be accepted in this matter.
In the Second Family Court Proceedings Mr Wilson made an application for a property settlement. He asserted that he and Ms Robertson were in a de facto relationship from 2013 until 2019. He asserted that he had made substantial contributions and sought an order for a property settlement under pt 5A of the Family Court Act 1997 (WA).[27]
[27] Wilson and Robertson [1].
Ms Robertson's position before the Family Court was that the parties were never in a de facto relationship. Ms Robertson denied that Mr Wilson made substantial contributions.
Mr Wilson also sought to maintain a stay imposed by the Family Court on these proceedings.
Mr Wilson failed in his case to demonstrate a de facto relationship and was unsuccessful in his application for a property settlement. The stay was discharged. With regard to the matters in issue in the case the court said:
121There is a fierce debate as to the amount, if any, which Mr Wilson owes to Ms Robertson. Mr Wilson says the money which Ms Robertson claims includes funds which she provided to him as a gift, including the trip to State A and spending money. He says Ms Robertson has not properly taken into account all of the work he has completed, and had she done so, he would not have any debt. Ms Robertson disputes Mr Wilson's evidence. Each party provided highly conflicting evidence as to these matters, making it difficult for the Court to make any definitive findings of fact.
122In my view, it is unnecessary and indeed it would be unsafe for the Court to try and determine these matters. For the reasons that follow, I am not satisfied it is essential for present purposes, to make findings as to these matters, which will ultimately be considered by [another jurisdiction].
And the court ultimately found:
131Having reflected on the evidence, I am not satisfied Mr Wilson has established, to the necessary standard, that Ms Robertson demonstrated any commitment to a shared life …

Admissions

Ms Robertson alleged that Mr Wilson admitted the Advance was repayable. Various communications were tendered in the proceedings in which Mr Wilson accepted that the Advance was outstanding. These were:
•SMS communications of 29 August 2017; Exhibit 46.
•Email conversations of 8 and 9 September 2017; Exhibit 2.
•Email conversation of 25 January 2018; Exhibit 3.
•Email conversation of 26 February 2018; Exhibit 55.
By SMS dated 29 August 2017 (Exhibit 46) Mr Wilson messaged:[28]
Please don't come and help me tomorrow I can not afford to pay you or owe you in any way. Please forward your up to date spread sheet of what I owe you and what I have paid you back please. I have the accountant coming Thursday. I'm sick of this big dept [sic] I owe you and want it gone I'm grateful that you lent me the money because I now have my kids but now I wish I didn't.
By this SMS I find that Mr Wilson admitted that he owed Ms Robertson a debt with regard to the amount that related to payment of his legal fees. I am satisfied that Mr Wilson was sincere when he made this admission.
[28] Exhibit 46, SMS dated 29 August 2017, 11.32 pm.
The email exchange includes in Exhibit 2:
Ms Robertson:
…
C)… If [Mr W] made an entry error then so be it, it's not my job to check its yours. The loan account information was provided to the Family Court and you (the detailed list). If you didn't check it then then that's your problem. As far as I know its accurate. …
Mr Wilson:
(A)If you want the money back soon I will have to sell my house I have no other option I can't get a loan or get the money from anywhere else.
(B)That's the trouble I can't get any spare time to do your work. … not a relationship when I'm working for you for money. …
I find as a fact in this email conversation Mr Wilson admitted that he was indebted to Ms Robertson; and recognised that the debt has significant in that his only recourse was to sell his house in order to pay it and conceded that as of 8 September 2017 had not performed any work in discharging the loan. I find that at the time Mr Wilson made the statement in this email that he was sincere.
And in Exhibit 3, Mr Wilson wrote to Ms Robertson on 25 January 2018 at 8.56 pm:
Just do what you need to do.
It's funny how you have put it back on me and saying it's all about the money!!
I said you can stick the work that I have done up your ass.
I said I would pay you back.
Not once have I said I wouldn't your the one jumping up and down and carrying on about the money and it always comes up when we have a big argument and that is why I'm over it. Yet it's all about me and I'm the one ripping you off, I do fuckall , Never done any work for you, took advantage of you and your friends and staff. You go ahead put a caveat on my house really I don't give a fuck it just shows your true colours and how you really feel about me.
I find that in the email conversation of 25 January 2018 at 8.56 pm Mr Wilson conceded, by reason of his indebtedness to Mr Robertson, that there was a basis to interest being charged on the loan and for a caveat being placed on his house. His email was responsive to the questions put to him by Ms Robertson in her email to him of 8.28 pm on the same date.
Further I find that this email represented an admission to Ms Robertson that he was indebted to her in a sum approaching $200,000 and I find further that he was sincere when he made this admission.
This was in response to Ms Robertson's email of 25 January 2018 at 8.28 pm:
Ok no worries, given your position will you agree to interest being charged on the loan? I assume you know that I will put a caveat on your house to secure the debt given you seem to have no problem at all about reneging on your promises.
I did ask and ask for time sheets and you just point blank refused. You just expect other people to do every thing for you that you don't personally like to do yourself. Paperwork is essential in every aspect of life. You were happy to have [Mr W] do the work at my cost but then complain when you don't pick up any error he made.
You are too lazy to argue the point when you get ripped off by:
1) Ms Wilson
2) John
3) Rory
4) CSA
5) Centerlink
You just love playing the victim don't you, you got yourself into trouble.
…
Anyway even if I fucking doubled the hours you still owe me about 2 years full time fucking work. You just were not listening to me when I tried to talk to you about it. Just sprouted bullshit about 'doing it for love' sure you were. Or I would rather earn the money myself or pay back that way…..get a calculator and see how that works for you. You will have to earn a shit load of money, pay the tax, pay your mortgage and running costs etc and then pay me, never going to happen. Your only chance to pay it back was to do some work, that I wanted doing, that would have benefited us both had we ended up together. Which of course we weren't because you are always going to have your mother and I don't want to have an extra person living in the household.
I gave up on you moving your king bed into my place, ive ordered my own.
Did you really thing [sic] I would just write off $200,000? I stopped years ago even asking you to do the things I really wanted done because you just went off the deep end. I let you do your own thing and what a lot of time you wasted when I did that and the whole time I have to listen to you feeling sorry for yourself and complaining about having no money.
…
If you decide to make the right moral and financial decision and work off the debt let me know sooner rather than later. You can quote the job, do the job and I will deduct the amount from the debt, as we agreed the first fucking place.
You had no right to change the deal after I advanced all that money.
By email dated 26 February 2018 (Exhibit 55), Mr Wilson wrote:
How much longer do I have before you start charging me interest or are you going to charge me interest on everything now anyway.
It is going to take me a little while to sort out exactly what I owe you as the spread sheets you have given me are all over the place and I have been charged for lots of things when they should have been taken off the loan.
I have been billed for the Europe Airfraes $6014, the cherry picker etc. 6890.88, Queensland holiday $5000, and lots of other things purchased for farm that has been put on loan.
I will need to get Irene to give me a hand to go through this with me but I can not afford for her to do my own bookwork at the moment.
It will also take me a little longer to get the house ready for market as there is more work to do on it than I anticipated.
Please let me know your time frame thank you.
By his email of 28 February 2018 I am satisfied that Mr Wilson:
•admitted he was indebted to Ms Robertson
•demonstrated he was working through the loan accounts as prepared by Ms Robertson
•did not agree that items relating to payments made for European airfares, the cherry picker and the Queensland holiday, together with lots of other unspecified things purchased for the farm, were owing
•recognised that the debt was of a magnitude that he would have to sell his house to pay it
•was sincere when he made the admissions.
The notes to the CSA Special Circumstances Application to change his Child Support Assessment Mr Wilson included:
I have had trouble covering my living costs, and had to rely on borrowed funds from my girlfriend, who does not live with me. From [Mr Wilson cited paragraph 76 of the First Family Court decision]:
'[Ms Robertson] has provided [Mr Wilson] with some financial assistance, in particular by lending him significant amounts in order to pay his litigation costs and to meet his living expenses.'
Now that legal proceedings are close to completion, I will need to commence making repayments to [Ms Robertson], as soon as my financial position allows for it. The debt for personal expenses is approximately $57,000 and for legal expenses is around $123,000. Although [Ms Robertson] has not been charging me interest she does expect to be repaid the principle sum. I signed a loan agreement with [Ms Robertson] and the Family Court has accepted the existence of the debt.
And later in the notes Mr Wilson represented:
The full amount of any funds received will be paid to [Ms Robertson] as partial repayment of principle.
Further in the notes and described as Reason 7 and under the heading 'I have out of the ordinary necessary expenses' Mr Wilson represented as further reasons his child support assessment should be changed:
I incurred a debt to [Ms Robertson] for living expenses as my mortgage costs and day to day expenses out weighted by [sic] income for reasons already stated (loss of employment due to injury, loss of the ability to return quickly to paid employment due to recovery from surgery and now the commencement of my own business which is expensive and takes time to establish) I also borrowed funds from [Ms Robertson] for tools of trade so that I could establish my own business.
I have incurred a debt to [Ms Robertson] for legal fees, necessarily incurred because [Ms Wilson] refused to divide the property on a fair basis (she will now be paying me $40K,600 on or before 16 October 2016 pursuant to FC orders).
In the CSA Special Circumstances Application Mr Wilson relied on findings of fact that the court made in the First Family Court decision. Namely the court accepted the existence of the debt. Clearly, Mr Wilson appreciated that the debt was significant in the court's reasoning as to how the property should be divided and used the debt, and the finding by the court as a means to persuade the decision maker to reduce the amount of his Child Support Assessment.

Ms Robertson's position was that this document stood as an admission to the debt to her. I accept that submission and find as a fact that the CSA Special Circumstances Application was an admission from Mr Wilson that he was at 4 October 2017 indebted to Ms Robertson.
I am not satisfied that the entire amount admitted was owing.
Mr Wilson conceded that when he completed the Form 13 in the Family Court proceedings and signed the document on 5 October 2016, that the document included details of a personal loan in the amount of $179,278. He understood that at the time he completed the document that that was the amount that Ms Robertson had in there as the personal loan owed to her. He understood that he was completing the document on the basis that he had a loan to Ms Robertson in that amount.[29]
[29] ts 518.
Mr Wilson was asked about a six‑page document entitled 'Application to change your assessment due to special circumstances'. This document is headed Australian Government Department of Human Services Child Support (Exhibit 53). Mr Wilson's position was that the document was completed by Ms Robertson's bookkeeper. He gave evidence that he signed it.[30] He accepted that he must have read the document before he signed it.[31] He said that he had a quick look at it.[32] He recalled that the document was to reduce his family payments. He gave evidence that insofar as question 10 in the document goes, the answer was 'See attached notes'.[33]
[30] ts 513.
[31] ts 513.
[32] ts 513.
[33] ts 515.
His position was that he did not prepare the answers, that is the detail in the attached notes. He did not know whether he read the attachments before signing the document.[34]
[34] ts 516.
The document included particulars of Mr Wilson's mortgage payments. His position was that Mr W would have known that amount given that the amount was detailed in his Family Court documents.[35]
[35] ts 516.
Mr W gave evidence on this issue. He said that he did a lot of work on the Child Support Assessment Application.[36] He was not asked whether he knew what Mr Wilson's mortgage payments were.
[36] ts 239.
Mr W gave evidence:
To your knowledge, is there anything in the MYOB records of [Mr Wilson's] accounts that does not reflect something that came from [Mr Wilson]?---I don't think so.
Did anyone ask you to make anything up - - -?---No.
- - - and put it into the MYOB account?---No.
Mr Wilson agreed that at page 9 and in response to question 28, the amount of the personal loan was recorded. Mr Wilson's position was 'That was the amount that [Ms Robertson] had in there as the personal loan to her'.[37] His position was that he appreciated that amount was in there when he signed the document and that he was telling the Commonwealth Government that he had a loan to Ms Robertson in that amount.
[37] ts 518.
Further, during the document, Mr Wilson's attention was directed to a response entitled 'My capacity'. This appeared at page 10 of the document. The notes were in these terms:[38]
Now that legal proceedings are close to completion. I will need to commence making repayments to [Ms Robertson] as soon as my financial position allows for it. The debt for personal expenses is approximately $50,000 and for legal expenses is around $123,000. Although [Ms Robertson] has not been charging me interest she does expect to repaid the principal sum.
[38] ts 519.
Mr Wilson was asked whether that was the case. His response was non‑responsive in that he answered 'That's what it's got there, yes'.
He was asked:[39]
Yes. And it's the intent as well, was that once your Family Court proceedings were at an end you would look to repay me?---That's what it says there.
[39] ts 519.
Mr Wilson's answers to these questions were evasive. Evasiveness characterised his responses to this topic. His evasiveness on this, the fundamental issue, namely whether he understood that the Advance for legal fees and living expenses, was a loan that was repayable, was not consistent with him either being accurate or reliable. I did not find Mr Wilson to be either.
I am satisfied that Mr Wilson completed the document. By completed I mean he signed it knowing what was in it and was careful to ensure that the detail was accurate. He had a clear interest in the document being completed carefully. It was an application to reduce the amount he was paying in child support to his former wife. The detail in the document was also accurate from his view. Not only did it record his mortgage liabilities but the amount of the liabilities to Ms Robertson. I am satisfied the information in the document came from Mr Wilson and that it was Mr Wilson's decision to submit the application.
It is implausible that he would voluntarily, given the care he took insofar as answering questions directed to this topic, in circumstances where he was trying to reduce the amount of child support he was paying, to undertake a phantom liability leaving himself exposed to pay that at some stage in the future. I am satisfied that the document stands as an admission of the amounts owing to Ms Robertson and a recognition that he would repay those amounts.
Further Mr Wilson's position in the Child Support Assessment Application document was consistent with his position in the First Family Court Proceedings. And while there is no presumption that arises by reason of his position in the First Family Court Proceedings or in the CSA application, I do find as a fact that he admitted the existence of the debt and the fact it was repayable.
Mr Wilson also complained that Ms Robertson asserted in this court that work was done for love and alleged that this was the complete opposite of her position in the Second Family Court Proceedings. He failed in that court to establish that there was a marriage-like relationship. The fact that the expression for love was used in this court does not represent a different position. The matter was specifically considered and decided by the Family Court.
Mr Wilson also referred to his email of 26 February 2018 (Exhibit 55) in the trial, in which he asked 'how much longer do I have before you start charging me interest or are you going to charge me interest on everything now anyway?'.
Plainly, from this correspondence, Mr Wilson accepted that money was owing.
He did not accept the entire amount was owing and complained that 'the spreadsheets you have given me are all over the place and I have been charged for lots of things when they should have been taken off the loan'.
He referred to the European airfares, a new cherry picker and the Queensland holiday.
He also represented in the email an intention to get his house ready for market.
The only inference I draw and the finding of fact that I make is that Mr Wilson was representing he was getting his house ready for market and implicitly the amount he owed was substantial even if he did not accept the substantial sum had not been identified, according to him, as of 26 February 2018.
Mr Wilson referred to Exhibit 59 which was his email to Ms Robertson dated 9 September 2017. This appeared to be a response to her email dated 9 September 2017 (a draft of which was Exhibit 23).
Mr Wilson referred to Ms Robertson's email of 8 September 2017 which contained:
I want to just say I have never asked you for the money I have loaned you to be repaid let alone in one lump sum. We did agree that I would happily loan the money to you and that you would pay me back through the work you do to your hours would be taken off what you owe me.
The email from Ms Robertson did not represent that the Advance was not repayable.
Rather, it was an explanation as to how Mr Wilson might repay the Advance.
Later and within the same chain of correspondence, by email dated 9 September 2017 at 9.36 am Ms Robertson explained how it would be unlikely that Mr Wilson could ever pay the Advance if he tried to do so by cash:
If you try to earn the money to pay me back it will never happen (simple mathematics - for every dollar you earn 1/3 will go in tax, 1/3 will go on living expenses, some will go to [Ms Wilson]) that leaves you with 0.
If you do work for me, the type of work you would usually be paid for by a usual client, I will take the equivalent dollars off the loan account (that was the deal we came to that you are now re-neging on). That way you get the full benefit of the effort you put in.)
Later in the same email chain, all part of Exhibit 59 Mr Wilson, in his email of 9 September 2017 to Ms Robertson said:
… I don't think I ever agreed to working for you to pay if the dept [sic] you keep telling me that's what I'm doing but I keep telling you I'll pay the money back when I get it. I think its best for all if I get this paid and out of our hair as soon as possible please again can you please forward me what you think I owe you please.

Mr Wilson's work - Claims and protestations an admission?

Mr Wilson undertook to provide labouring services and work for Ms Robertson's benefit and that he would charge for that work. During Ms Robertson's evidence, Ms Robertson tendered as Exhibit 1 an email dated 1 March 2016 which was an email from her to Mr Wilson which advised Mr Wilson, he was required to invoice her either to be paid directly or to have the amount reduced from the loan account.
In the course of that correspondence dated 1 March 2016, Ms Robertson wrote to Mr Wilson and said:
… My personal preference is to deduct if [sic] from the loan account because I'm stretched for cash myself at the moment. This being said, it's only a matter of a couple of months before I have some funds coming in. I also understand that you have bills to pay so I'm happy to pay you cash/direct credit to your bank account so you can pay your own bills.
…
And further in the same email and in connection with things that were not the subject of remunerated work:
… I am sorry that you feel that you don't get any leisure time, I consider the time we spent at the farm just pottering around to be leisure time. I don't consider refurbishing bench seats, fixing broken ornaments and gardening to be work but rather hobbies that one or both of us enjoy. I also consider maintenance type work such as sorting out the pool or mowing lawn, dishes, washing, bringing in the mail, sorting the internet out if that goes down etc to be general upkeep and something that we both should contribute to. If that's not the cash for you then I apologise. That's why we need to have clear boundaries. You need to keep a tally of your hours and what exactly you expect to be paid for. Not months after the event but within 7 days of undertaking the work, surely that's not too much to ask?
…
What the email confirms and demonstrates is that as early as 1 March 2016 the Advance was repayable. The Advance was repayable either by way of cash or work. If repayable by work, Mr Wilson was required to set out the hours claimed and to promptly present an account. Furthermore, it was clear that as of 1 March 2016 there was a difference in work that was performed in discharge of the Advance as opposed to work that was undertaken or what might be expected as an incident of the friendship between the parties and the use of the property by the parties.
By 9 September 2017 Mr Wilson wrote Ms Robertson an email. This was tendered as Exhibit 2. The email was responsive to one that Ms Robertson had sent on 8 September 2017. During his email to Ms Robertson, Mr Wilson wrote:[40]
If you want the money back soon I will have to sell my house. I have no other option. I can't get a loan to get the money from anywhere else.
[40] ts 40.
The email continued 'That's the trouble I can't get the spare time to do your work'.
As noted in [84] I find that the email was sent by Mr Wilson to Ms Robertson in those terms and I am satisfied that the email recognised:
(a)the existence of the loan;
(b)the fact that the loan was repayable;
(c)the fact that the loan could be repaid either by work or by money; and
(d)it demonstrates also that as of 9 September 2017 Mr Wilson did not assert that he had done any work in payment of the loan and did not rely on the SMS of 5 November 2014, unlike his position in these proceedings, to assert that the debt had been discharged through work.
The email also records the practical difficulty Mr Wilson had that notwithstanding the question of any intent to pay the loan, of finding the time to do the work.
It demonstrates the implausibility of his claim that he performed work for Ms Robertson which exceeded the amount of the Advances to him since the effort and time required to do so could not have been found before 8 September 2017. It is implausible that if work had been done before that time that Mr Wilson would not have claimed it; for example the CSA document was prepared on 5 October 2016 and he was clearly careful to record loan as a liability then.
I am satisfied that in addition to the practical impossibility of Mr Wilson undertaking work in discharge of his debt, his preference was to be paid for work he did. The practical impossibility I refer to is the limited time he had to do the work. Mr Wilson borrowed money from Ms Robertson because he needed the money either for legal fees or living expenses. He was not able to work to earn income and was attempting to establish a business. He had an option to pay money back to Ms Robertson or discharge the debt by work. His preference was to be paid for the work he undertook.
Ms Robertson's evidence at ts 351 was persuasive:
?---Yeah, rounded it up so because I've always rounded it up because I do want to knock it off your loans for living. The problem is when I gave you those hours so that you could invoice me you just took the money. I've only got one invoice where you ever asked for it to come off the loan for living.
The email conversation of 9 September 2017, which also appeared as part of Exhibit 59 is compelling insofar as discounting Mr Wilson's position that the Advance was a sham created for the First Family Court Proceedings to improve his position against his former wife.
The email of 9 September 2017[41] was in reply to an email that Ms Robertson said on the same day in terms:
A)I don't need the money back in one lump sum. Why are you insisting, or talking about, selling your house if I do.
B)You cannot follow a simple plan, namely do all your paying/business clients but in your spare time do work for me that I would otherwise have paid someone to do ie fence, retic etc and I would then take that of [sic] what you owe, that way you are reducing the debt but at the same time we are also working together to build something nice for our retirement.
…
[41] Exhibit 59.
It was clear that as of 9 September 2017 the Advance was repayable and that no unaccounted-for work had been done to reduce the debt.
This leaves from 9 September 2017 to December 2019 or January 2020 when the relationship ended and Ms Robertson made the demand for repayment. The question is did Mr Wilson undertake work to discharge or reduce the debt in that period and if so how much work did he perform and what was the value of that work?
I am satisfied that there is no evidence that Mr Wilson undertook work in discharge of the debt.

Mr W

Mr W gave evidence in these proceedings. An affidavit[42] was tendered and included:
[42] Exhibit 26.
…
3.As office Manager I was responsible for the Data entry of the business transactions of [company name] and the personal transactions of [Ms Robertson].
4.My work for [Ms Robertson] on her books included the entry of income and expenses both personal and business. My work was then sent to her Accountant … who prepared the BAS and Taxation returns in conjunction with [Ms P] of [a company], [Ms Robertson's] Tax Accountants.
5.This included the transactions between [Ms Robertson] and [Mr Wilson] that were recorded on the Balance sheet of [Ms Robertson] in particular the loan accounts for [Mr Wilson].
…
15.Annexure A and B are Emails from Emily Crane from Lewis Blyth and Hooper, [Mr Wilson's] Family Court Lawyers date 18/11/2016 in which she sends to me a copy of both [Mr Wilson's] Loan Accounts with [Ms Robertson]. What we referred to as the Loan for Legals and the Loan for Living expenses.
…
Mr W was called to give evidence and was not challenged in cross‑examination.
Mr Wilson submitted that the financial documents were prepared by Ms Robertson's bookkeeper and they were unreliable. He submitted that Mr W assisted in the bookkeeping and set up his MYOB and he discovered during cross‑examination that Mr W was not a qualified bookkeeper. This submission has no merit.
Mr W gave evidence in the trial. An affidavit was tendered, Exhibit 26 and in that Mr W swore:
…
7.In about March 2016 I took over the bookkeeping for [Mr Wilson] who had recently started a handy man business. I did this at [Ms Robertson's] request and my work on [Mr Wilson's] books was carried out during my standard office day with [a company].
8.My wages were paid for by [a company] and [Mr Wilson] did not make payment to [Ms Robertson] for the time spent working on his books, family court matter, CSA appeals, Fair Work application and liaison with his customers. I carried out many and various other secretarial type work for [Mr Wilson].
…
Mr W gave evidence that:
Transcript 217:
I would also please like to - you, [Mr W], you issued invoices to [Mr Wilson's] clients when he asked you to do so?---Yes.
If [Mr Wilson] had have asked you to create an invoice to me, would you have done that?---Yes.
You didn't just do the books for [Mr Wilson], did you?---No.
Transcript 218:
And did you also follow up bills that were not paid - clients that hadn't paid their bills?---Sometimes. It wasn't - I wasn't there to do that regularly, to check everyone has paid all their bills but yes, I would.
And if [Mr Wilson] specifically asked you to follow somebody up then you would do that?---Yes.
Mr W also gave evidence that in his capacity as a bookkeeper undertaking work for Ms Robertson he managed her accounts and had access to her bank statements. He was shown a document that to his eye appeared to be a copy of a bank statement (MFI 7), it recorded on 9 April 2015 an amount of $2,500 moving from Ms Robertson's account described as transfer to Paul Williams. The transaction was recorded on Ms Robertson's MYOB account as posted against [Mr Wilson] Loan.[43]
[43] ts 225.
I am satisfied that there is no evidence Mr Wilson asked Mr W to record and note work he did in discharge of the debt.
Mr W's evidence was not challenged in cross‑examination, and I accept it.

Written Loan Agreement - Sham?

Mr Wilson's position was that the Loan Agreement was drafted simply to demonstrate to the Family Court where the money was coming from and nowhere else. He submitted that it did not stipulate how it was to be repaid. The inference being that it was not repayable.
He submitted that Ms Robertson used the same document with regard to the application with the CSA. He complained that the application was wrong. He submitted that in every argument he had with Ms Robertson, she would use the document against him. He would ask for an updated list and referred to Exhibit 46. Exhibit 46 does not support Mr Wilson's case. The responsibility for preparing a record of hours done in reduction of the loan sat with Mr Wilson and not with Ms Robertson.
I must consider whether the loan was a sham to improve Mr Wilson's financial position, by reducing it, in the First Family Court Proceedings and in the child support review application, but I do not consider it was.
Mr Wilson does not have to demonstrate that the loan was a sham. If he did the Advance would not be repayable. To demonstrate her claim Ms Robertson must establish there was an intention to create legal relations.
There is nothing in the communications passing between the parties at the time that suggested that Advances were anything but repayable. The correspondence demonstrates that Mr Wilson made admissions as to the amount of the Advance and the fact that it was repayable.

Mr Wilson's work following variation

Mr Wilson also complained in his submissions that Ms Robertson in the text exchange_, which was Exhibit 46, reported she was keeping tabs of hours up until 2017. Mr Wilson complained that Ms Robertson made reference to keeping a tab of hours in this SMS exchange and complained:
Yet not one hour of work has come off her loan and [Ms Robertson] can't show this document that she says has been keeping tabs on.
The responsibility sat with Mr Wilson to record the work that he said was to come off the loan. The SMS exchange in Exhibit 46 reveals a frustration on Ms Robertson's part at Mr Wilson not pursuing paid work, not taking advantage of her capacity to look after his children on the week about regime he had with his former wife and inviting him to 'simply note your hours spent on jobs you would normally have charged for and would deduct those from the debt'.
Viewed in their entirety, the SMS messages support Ms Robertson's case that Mr Wilson did not record work and tended to confirm her position as in:
Some things we did together and were for love. Big project as mentioned in the last text were always to be income earning for you.
And further:
You just expected me to keep track of the hours and work it all out for you.
Mr Wilson's correspondence during that SMS demonstrates that he considered that the money was owing. He wrote:
I have done most of that work at the farm for love and obviously not appreciated. You can call it quits on that work I have done and I will start paying you off on some payment plan.
That was in the context of asking for a printout of work he had done which was to be credited against the loan. Mr Wilson's complaint was in the following terms:
I know now where our relationship stands. Your printout that you have given me shows (nothing) on it, have another look and please resend if that's the most up to date you have.
Mr Wilson was the person who was responsible for keeping the hours and raising invoices if he was doing work which came off the loan. Ms Robertson's correspondence is replete with invitations to Mr Wilson to do this and complaints that he would not.
I find it implausible that if Mr Wilson had done any work in payment of the debt, that he would not have recorded his time. I find it implausible that if he had done work in payment of the debt he would not have challenged Ms Robertson's claims in the correspondence. In the First Family Court Proceedings he was careful with regard to the conduct of that litigation, that is the application he made for costs. In the Second Family Court Proceedings he sought a property settlement. In the Child Support Assessment Application he was careful to seek an assessment reducing his commitment. In the Fair Work claim he sought redress for the termination of his employment. He was an experienced renovator. He had been self‑employed. Mr Wilson was content to make unfounded serious allegations of misconduct against Ms Robertson in these proceedings. If he had undertaken work, in circumstances where he was sincere in discharging the debt, he would have kept a record of his time and work undertaken.
Mr Wilson asserts that it was full‑time work doing all the maintenance and small jobs that Ms Robertson wanted done and according to him, kept saying were love jobs. He referred to Exhibit 1, that is the latter email from Ms Robertson dated 1 March 2016 to him.
This email did not support his case. It made it plain that:
•Ms Robertson was content to pay him for work done or deduct it from the loan;
•she would pay him $80 per hour;
•he was required to invoice her; and
•that there was a difference for work done in leisure time.
Mr Wilson also referred to Exhibit 47, his email to Ms Robertson of 5 October 2017 which included this assertion:
I have never kept a tally of hours as I thought I was doing it for love and never knew all this time I was just working for you to pay off what I owe you. I will forward to you when I get it finished all materials that I have purchased for the farm through all the years that have not been accounted for in your list. The thing I don't get with you is I do work for you, use my car, trailer, equipment, you ware [sic] my clothes and when things get ruined or broken I have to pay for them. I'm the one struggling and in a hole right now and all you can do is tell me I should be working harder, I've never had any intention of paying you back your money I owe you, I can't afford luxuries and should be getting rid of my shit, should be selling my house, etc., etc.
I now know where our relationship lies with you and you say I'm not intimate with you when do I get a chance there is always a jobs list a mile long. I thought I was going over and beyond with jobs for you maybe I should be the partner that goes and plays golf, goes to the pub or tab, etc. The one that wastes money, at least I'll be relaxed and not overworked. Oh! I forgot I cant do that I have no money and need to work more.
The email of 5 October 2017 is inconsistent with a claim that he was working to pay the debt off and keeping a record of it. By including 'I've never had any intention of paying you back your money I owe you' Mr Wilson records his understanding that Ms Robertson had been asking him for repayment and it records his acceptance that the money was to be repaid.
I am satisfied that following the variation to the payment term it was Mr Wilson's responsibility to record and invoice for work done.

Mr Wilson's work and materials left

By his submissions, Mr Wilson asserted that not one hour of work had come off the loan and that since the relationship was now over, Ms Robertson was seeking all of her money back and claiming that all of the work done on her properties and materials left on the properties or things purchased by him have no value.
I do not accept the submission that Ms Robertson sought repayment after the relationship ended. Ms Robertson made it plain that the advances were repayable. Mr Wilson did not raise invoices for work done on her properties. There was no persuasive material as to the value of materials or property left on her properties. I cannot make a finding as to whether material was left and the value of any material that was left.
Mr Wilson also claimed an amount of $10,542.46 should be discounted from the Advance by reason of property left at Ms Robertson's properties.
I do not accept that Mr Wilson left materials and do not accept the offset that he claimed. There is evidence that he attended at Ms Robertson's home in late 2019 and took materials. There is also evidence that I accept that he was invited to attend to collect other materials. He did not accept that invitation.
I accept Ms Robertson's submission that '[Mr Wilson] now seeks to put a value on items on his list without adopting an appropriate method [of] evaluation'.
There is a lack of evidence to allow me to make a finding as to whether any items were left and if they were, what the value was.

Mr Wilson's work

Mr Wilson complains that Ms Robertson was invoiced for a total of $32,053 on her properties. This claim appeared as Exhibit 44 and was described as a Sales Register [Ms Robertson]. Mr Wilson submitted that most of that was for work on a property that Ms Robertson sold for a profit.
The fact that she was able to sell a property for more than it cost is not relevant to this matter. Mr Wilson undertook work for Ms Robertson for which he was paid.
Mr Wilson submitted that he was at risk of losing everything by reason of 'two jealous women that can't let go or just want to see me punished in some way for no reason, I don't think this is fair and hope justice will prevail'.
One of the described jealous women appears to be his former wife. That is a matter of no relevance to these proceedings. If the second person described is Ms Robertson there is no basis for the description arising from these proceedings.
With regard to Exhibit 32, Mr Wilson gave evidence that the document was one that he created. He claimed that it accurately described work that he undertook. He gave evidence 'I didn't take a tally of all my hours'[87] and accepted that the document was a guesstimate.[88]
[87] ts 422.
[88] ts 423.
I do not accept that the document was accurate or that it reflected work done by Mr Wilson to discount the advances.

Mr Wilson's unreliability

These proceedings were commenced on 30 January 2020.
The untenability of Mr Wilson's position was accurately categorised in Ms Robertson's submissions as:
The defendant seeks to have a foot in as many camps as possible and as such makes claims such as: it was never intended that the funds be repaid, the funds were a gift, [before money was advanced to him] he worked the debt off, he worked off more than the value of the debt, he left property at my property and now seek a credit and that he paid for items for the Plaintiff on his Credit Card and didn't receive reimbursement.
I found Mr Wilson unreliable. His position was reactive, by which I mean not grounded on a honest or careful engagement with the case against him but responsive to deflect responsibility. He was deliberately inaccurate. There was no obligation on Mr Wilson to assist either Ms Robertson in her claim against him or the court insofar as the presentation of his responses to the claim went but I do find in rejecting the claims against him, as he was entitled to do, the various poses he adopted to meet the claims and his ready adoption of those positions diminished his veracity in all matters.
Mr Wilson's unreliability was further demonstrated in his closing submissions.
He submitted that:
Our agreement all along was; I continue doing the works on the properties and [Ms Robertson] pay the bills. We were building something nice for our retirement or that's what [Ms Robertson] kept saying.
The submission ignores the decision in the Second Family Court Proceedings, which found that there was no de facto relationship. Mr Wilson is not bound to accept that decision but I am bound to consider the facts in this case against that established fact. More significantly is that the submission contradicts Mr Wilson's evidence in these proceedings that the nature of the agreement changed. It is on one view consistent with the apparent catch‑all nature of his response to the claim, that is, either the work was done before the agreement changed, and additionally the money was not really repayable.
A further example of Mr Wilson's unreliability in his closing submissions arose when he referred to Exhibit 46 which was a series of SMS conversations between the parties on 29 August 2017. Read in whole they contain:
•An acknowledgement from Mr Wilson that he owed a big debt.
•An expression of gratitude that he was able to fund his First Family Court Proceedings and have contact with his children.
•Notwithstanding that outcome he now wishes he had not pursued the First Family Court Proceedings.
•A statement from Ms Robertson that she had asked him repeatedly to simply note hours spent on jobs he would normally have charged for and her position that she would deduct those from the debt.
•Ms Robertson's complainant that Mr Wilson refused to help himself by doing that.
•Ms Robertson's practice, in relation to work Mr Wilson was paid for, that is work not done to pay off the debt, to over estimate the time Mr Wilson spent and to keep tabs on that work because of her view that even in paid work Mr Wilson did for her and others, was that he did not care about his earnings or in pursuing money that was owed to him.
The focus in Mr Wilson's submissions was that the SMS contained a representation that Ms Robertson was actually keeping a tab on hours he did in discharge of the debt and that Ms Robertson was deliberately being obstructive in not producing the tab and in not properly discounting the debt by reference to the work he had done.
This was not what Ms Robertson was saying in the SMS exchange. Mr Wilson's emphasis on that part of the SMS exchange was not accurate and the SMS conversation does not support his position.
I am positively satisfied that Ms Robertson has demonstrated on the balance of probabilities that an amount of $179,093 was advanced to Mr Wilson. I am positively satisfied to the same standard that this amount, less $5,000 for the Queensland trip, less $1,800 for the poles and less $2,500 for Mr Williams' fees was repayable and remains outstanding.
Accordingly, there should be judgment for Ms Robertson in the sum of $169,793.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JH
Associate to Judge MacLean
2 OCTOBER 2023