Roks v Juratowitch
[2013] FCCA 1555
•9 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROKS & ANOR v JURATOWITCH & ANOR | [2013] FCCA 1555 |
| Catchwords: BANKRUPTCY – Extension of time to lodge an application under s.104 of the Bankruptcy Act 1966 – decision by the Trustee to disallow certain parts of the Applicants’ proof of debt – whether money was advanced to the bankrupt as a gift or a loan – application dismissed. |
| Legislation: Limitation of Actions Act 1958 (Vic) |
| Cases cited: Coshott v Sakic (1998) 44 NSWLR 667 Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111 Jackamarra v Krakouer (1998) 195 CLR 516 Maddock v Maddock & Anor (No.2) [2011] FMCAfam 1340 Rocom International Pty Ltd v Prentice [2002] FCA 604 |
| First Applicant: | EDUARD ROKS |
| Second Applicant: | PALMINA ROKS |
| First Respondent: | DANIEL PETER JURATOWITCH |
| Second Respondent: | ANDREW BARNDEN |
| File Number: | MLG 640 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 2 August 2013 |
| Date of Last Submission: | 2 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 9 October 2013 |
REPRESENTATION
| Counsel for the First and Second Applicants: | First and Second Applicants appearing in person |
| Counsel for the First and Second Respondents: | Ms Mapp |
| Solicitors for the First and Second Respondents: | B2B Lawyers |
ORDERS
That the proceedings against the Second Respondent be struck out.
That the Application lodged on 10 May 2013 for an order reversing the decision of the Respondent dated 25 January 2013 to partly disallow the First and Second Applicants’ proof of debt dated 8 February 2011 to the extent of $58,000.00 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 640 of 2013
| EDUARD ROKS |
First Applicant
| PALMINA ROKS |
Second Applicant
And
| DANIEL PETER JURATOWITCH |
First Respondent
| ANDREW BARNDEN |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an Application by the First and Second Applicants,
Mr EDUARD ROKS (“Mr Roks”) and Ms PALMINA ROKS
(“Mrs Roks”) (collectively “the Applicants”), pursuant to s.104 of the Bankruptcy Act 1996 (Cth) (“the Act”) seeking an order reversing the decision of the Trustees of the Bankrupt Estate, Mr DANIEL PETER JURATOWITCH (“the Respondent”) and Mr ANDREW BARNDEN (“Mr Barnden”) of MICHELLE MANCUSO (formally ROKS)
(“Ms Mancuso”) of 25 January 2013 to disallow part of the Applicants’ proof of debt dated 8 February 2011 to the extent of $58,000.00.
Extension of time
The Application was lodged on 10 May 2013. It was therefore outside of the time limit provided by s.104(3) of the Act. The Application seeks an order under s.33 of the Act, granting the Applicants an extension of time to the date of filing. However, neither the Applicants, nor the Respondent, addressed the extension of time issue.
In Rocom International Pty Ltd v Prentice [2002] FCA 604,
Tamberlen J considered the factors relevant to an application for an extension of time in which to lodge an application for review under s.104 of the Act. In doing so, his Honour referred to the factors enunciated by Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516 which included the following:
· the discretion to grant an extension is broad and flexible;
· whether it is just in all the circumstances to grant an extension;
· whether the time limits are of a substantive or procedural nature,
· whether the case is arguable;
· respective prejudice to the parties;
· length of delay;
· responsibility and reasons for the delay;
· whether the delay was intentional or the result of a bona fide mistake;
· whether the delay was caused by the litigant or legal advisers.[1]
[1] [2002] FCA 604 at para.4.
In my view, specific matters such as the length and reasons for the delay, the prejudice to the other party and whether the case is arguable, are matters which inform whether it is just, in all the circumstances, to grant the extension in this case.
There was no material before the Court with respect to the reasons for the delay in lodgement. The Application was lodged some 105 days after the decision was made by the Respondent, or 84 days out of time. There was also no material before the Court with respect to prejudice to the Respondent or to other creditors.
The case itself essentially requires the determination of questions of fact, namely whether an amount of $50,000.00 paid by the Applicants in order to discharge the mortgage on what was, at the time, the marital home of Ms Mancuso and the Applicants’ son, Mr STEPHEN ROKS (“Mr Stephen Roks”), was a loan or a gift, and whether an amount of $8,000.00 paid by the Applicants for rendering work done on the former marital home had been repaid by Ms Mancuso.
In the absence of hearing and assessing the evidence, the Application cannot be said to be without foundation.
As the Respondent has not objected to the extension of time and the matter has been argued in its entirety, I am satisfied that the extension should not be refused and I should deal with the substantive merits of the Application under s.104 of the Act.
Background
The Applicants are the former parents-in-law of the bankrupt,
Ms Mancuso. Prior to Ms Mancuso’s marriage to Mr Stephen Roks, the Applicants and their son owned two properties at Sungarrin Road, Tallarook (“the Tallarook property”) and Northwood Road, Northwood (“the Northwood property”).[2] The Tallarook property was purchased in 1994 and the Northwood property in 1999. There was a mortgage on the Northwood property which named the Applicants and
Mr Stephen Roks as title holders,[3] although the Applicants maintain that Mr Stephen Roks made no financial contribution to the purchase or loan repayments on the Northwood property.
[2] Affidavit of Eduard Roks and Palmina Roks filed 10 May 2013, Annexure ‘A’, at pp.2-7 and Annexure ‘B’, at pp.9-11.
[3] Ibid, Annexure ‘A’, at pp.2-5.
In 2000, Mr Stephen Roks met Ms Mancuso and in August of that year, they purchased a property together at Palpera Terrace, Greensborough (“the Greensborough property”). The Applicants acted as guarantors on the loan over the Greensborough property and secured this by way of a mortgage over their property at Humevale Road, Whittlesea
(“the Whittlesea property”).
In April 2002, the Northwood property was sold.[4] From the sale of that property, an amount of $187,995.00 was used to pay out the mortgage over the Greensborough property.
[4] Affidavit of Eduard Roks and Palmina Roks filed 10 May 2013, Annexure ‘C’, pp.13-21.
The Applicants allege that part of this money was to pay out
Mr Stephen Roks for his interest in the Tallarook property and another $50,000.00 was a loan to Mr Stephen Roks and Ms Mancuso. The Applicants state that at that time, Mr Stephen Roks signed a
hand-written document stating that he had been paid in full for his interest in the Tallarook property.[5]
[5] Ibid, at Annexure ‘D’.
Ms Mancuso states that she was not a party to the decision by the Applicants to advance herself and Mr Stephen Roks an amount of $50,000.00 in order to pay out the mortgage over the Greensborough property. Ms Mancuso became aware of the payment only after the event. It is this amount which is the subject of the dispute concerning whether the advance was a loan or a gift.
The Greensborough property was later sold and Mr Stephen Roks and Ms Mancuso purchased a property in Bannons Lane, Yarrambat
(“the Yarrambat property”). The title to this property was in the sole name of Ms Mancuso.
On 23 March 2006, Mr Stephen Roks was declared bankrupt as a result of a failed business venture. The Applicants did not lodge a proof of debt with respect to the $50,000.00. Ms Mancuso was named as a creditor for the amount of $85,000.00.
In July 2008, Mr Stephen Roks and Ms Mancuso decided to renovate the Yarrambat property in order to sell it. In about August/September 2008, some rendering was performed on the Yarrambat property which was paid for by the Applicants in the amount of $8,000.00. There is a dispute between the Applicants and Ms Mancuso as to whether this was repaid. Ms Mancuso says that an amount of $10,000.00 was paid to the Applicants after she received an insurance payout because the Yarrambat property burned down. The Applicants agree that an amount of $10,000.00 was paid to them but dispute that it was for the rendering, contending it was for other loans advanced to their son and Ms Mancuso.
For some time in 2009, Mr Stephen Roks and Ms Mancuso lived with the Applicants.
In mid-May 2009, Ms Mancuso commenced to seek advice about her own financial situation. In August 2009, Ms Mancuso signed a deed of loan agreement (“the deed of loan”) acknowledging that she was in debt to Mrs Roks for the sum of $375,497.76.[6] Schedule A of the
deed of loan sets out the amounts advanced and the dates of those advances.[7] There is no reference in the deed of loan to the $50,000.00 advanced to Mr Stephen Roks and Ms Mancuso in April 2002.
[6] Affidavit of Daniel Peter Juratowitch filed 18 July 2013, at Annexure “DPJ-13”.
[7] Ibid, Annexure “DPJ-13”, at p.16.
Shortly after, Ms Mancuso signed a transfer of her interest in the Yarrambat property to Mr Stephen Roks.[8] The parties separated in October 2009.
[8] Affidavit of Palmina Roks filed 1 August 2013, at Annexure “PR6”.
On 23 December 2009, Ms Mancuso became bankrupt on her own petition. On the appointment of a Trustee in Bankruptcy, the transfer of the Yarrambat property to Mr Stephen Roks was reversed.
The Applicants did not lodge a proof of debt in the bankrupt estate of Ms Mancuso until February 2011.[9]
[9] Affidavit of Eduard Roks and Palmina Roks filed 10 May 2013, at Annexure ‘F’.
The Respondent was appointed the sole Trustee of the bankrupt estate of Ms Mancuso on 20 April 2012. Following correspondence between the Respondent and the Applicants’ then-solicitor, the Respondent rejected those parts of the Applicants’ proof of debt consisting of the $50,000.00 alleged loan and the $8,000.00 for the rendering.[10]
[10] Ibid, at Annexure ‘G’.
The evidence
The evidence for the Applicants was given by Mrs Roks. It was her evidence that Ms Mancuso was not present when the balance of the mortgage was paid out but was told the same day and had previously been told of the intention to pay it out. Mrs Roks stated that the word “gift” was never used with respect to the $50,000.00.[11]
[11] Transcript of Proceedings, 2 August 2013, p.6 at line 3.
It was Mrs Roks’ evidence that she told Ms Mancuso, “What my parents did for me, I’m prepared to do for you and Stephen. We will pay this loan off, and you can pay us back slowly, and that will save you bank interest”.[12] Ms Roks stated that the Applicants requested repayment of “about $50 a week, maybe 200 a month, and if you can ever pay any more, that’s fine”.[13] Ms Roks also stated that the Applicants wanted to get back their title to the Whittlesea property.
[12] Ibid, at lines 23-25.
[13] Ibid, at lines 35-36.
Mrs Roks produced a book which she stated recorded payments made by Ms Mancuso and Mr Stephen Roks between October 2002 and October 2004. That book showed a balance owing of $45,906.00 as at 28 October 2004. When asked why the Applicants’ affidavit of
10 May 2013 sets out 11 payments made, with the last one being
7 December 2003, Mrs Roks stated that “I got it from the book”.[14]
Mrs Roks denied that the last three entries dated 2004 were made after the event.
[14] Ibid, p.9 at line 22.
When asked why neither the proof of debt documentation, nor a statutory declaration made in March 2012, nor a letter to the Respondent of 5 April 2012, mentions any repayments, Mrs Roks stated that she did not have the book at that time; she only found it afterwards. When asked why a letter sent in response to the
Notice of Rejection of 15 February 2013 makes no reference to payments being made by Mr Stephen Roks and Ms Mancuso,
Mrs Roks responded, “It’s because they borrowed more money”.[15]
[15] Ibid, p.17 at line 42.
Mrs Roks agreed that the deed of loan she entered into with
Ms Mancuso in 2009 did not mention the $50,000.00. Mrs Roks agreed that the Applicants had lodged a proof of debt after they became aware that Mr Stephen Roks would not receive anything from the sale of the Yarrambat property. Mrs Roks disagreed with the proposition that until Mr Stephen Roks and Ms Mancuso separated in 2009, the money advanced in 2002 was always a gift.
Mrs Roks claimed that she sought advice about registering a mortgage over the Yarrambat property in 2006 at a time that Mr Stephen Roks and Ms Mancuso were separated - and tried to get Ms Mancuso to sign it - but that she did not pursue this when they reconciled.
Mrs Roks denied that the Applicants had been repaid for the $8,000.00 spent on rendering. Ms Mancuso offered to pay Mrs Roks $14,500.00, but that amount related to payments other than for the rendering.
Mrs Roks produced an envelope which she said was an acknowledgment by Ms Mancuso that Mr Stephen Roks and
Ms Mancuso owed the Applicants $14,500.00, and which Mrs Roks said had contained the $10,000.00 repaid on 31 July 2009. Mrs Roks stated that Mr Stephen Roks and Ms Mancuso had tried to give the Applicants $14,500.00 but they had accepted only $10,000.00.
Mrs Roks claimed that Ms Mancuso would frequently borrow money from her and repay it in cash, but in the end Ms Mancuso owed $14,500.00 and only repaid $10,000.00.
Ms JOYCE LONDON (“Ms London”) is a friend of Mrs Roks and she gave evidence of being at the Greensborough property in October 2002 when Ms Mancuso said to Mrs Roks, “Mum I feel bad that Stephen has bought me this ring when I know that we owe you a lot of money for the house still”.[16] Ms London agreed that there was no specific mention of what money was owed.
[16] Affidavit of Joyce London filed 4 July 2013, p.1 at para.2.
Ms Mancuso gave evidence for the Respondent. Ms Mancuso stated that at the time she met Mr Stephen Roks, she was told by him that, together with the Applicants, he owned land in Northwood and Tallarook and that he contributed from his wages to the repayments and expenses for those properties. Ms Mancuso did not know the exact details of the financial arrangements between Mr Stephen Roks and the Applicants, except that Mr Stephen Roks received his share from the sale of the Northwood property.
[19] Ibid, p.40 at line 15.
Ms Mancuso stated that she first became aware of the $50,000.00 payment towards the mortgage over the Greensborough property when Mrs Roks told her, “we paid off your mortgage because we did not want you continue (sic) paying high interest to the bank…my parents did the same for me and my husband and we have done the same for Stephen and you”.[17] While Mrs Roks did not use the word ‘gift’, she did say, “We’re giving you this money”.[18] Mrs Roks never said,
“This money is just a loan”.[19][17] Affidavit of Michelle Mancuso filed 19 July 2013, p.3 at para.14.
[18] Transcript of Proceedings, 2 August 2013, p.41 at line 15.
Ms Mancuso stated that as time progressed, she stated to feel that the gift was a means of being able to manipulate her marriage and that the Applicants were starting to dictate what they could do. Ms Mancuso cited the issue about the purchase of fish tanks. She stated that she and Mr Stephen Roks were made to feel guilty about spending money.
Ms Mancuso told the Applicants she wanted to give the money back. Ms Mancuso and Mr Stephen Roks started giving the Applicants money when they could.
Ms Mancuso gave evidence that the Applicants frequently stated that they “didn’t want the money, it was just money, and that they just wanted us – to see us on our feet, they wanted to see us happy…”[20]
Ms Mancuso also stated that the Applicants, especially Mrs Roks,
gave them money throughout the marriage. This money was not asked to be returned.
[20] Ibid, p.33 at lines 32-34.
Ms Mancuso stated that between August 2002 and December 2003, herself and Mr Stephen Roks made payments to the Applicants to return the $50,000.00. Ms Mancuso believed those payments totalled $9,204.00.
Ms Mancuso gave evidence that the rendering on the Yarrambat property in 2008 was paid for by the Applicants. In May 2009, she and Mr Stephen Roks received $81,657.00 from an insurance payout and from that, Ms Mancuso paid the Applicants $10,000.00 for the rendering.
When asked why she had paid the $10,000.00, Ms Mancuso stated that she was living with the Applicants at the time and knew they were “eagerly after that money”.[21] Ms Mancuso was paying all of her other creditors and felt it was the right thing to do. Ms Mancuso denied receiving a receipt and stated that the handwriting on the envelope produced by Mrs Roks was not her handwriting. Ms Mancuso stated that Mrs Roks never gave receipts; everything was in cash.
[21] Transcript of Proceedings, 2 August 2013, p.37 at line 13.
Ms Mancuso stated that she signed the deed of loan with Mrs Roks under pressure from the Applicants and Mr Stephen Roks who suggested consulting ‘Your Business Angels’. Ms Mancuso also agreed to transfer her interest in the Yarrambat property to Mr Stephen Roks under pressure from him and the Applicants.
[22] Affidavit of Michelle Mancuso filed 19 July 2013, p.5 at para.30.
Ms Mancuso stated that she did not say in Ms London’s presence
“we owe you a lot of money for the house still”[22]but “Sorry that Stephen spent money on me for a ring when we are trying to give you the money back for the house”.[23]
[23] Ibid.
The Respondent gave affidavit evidence with respect to the history of the matter and the correspondence leading up to the decision to reject, in part, the Applicants proof of debt. In cross-examination,
the Respondent stood by the reasons given in the Notice of Rejection.
Submissions
The Applicants relied on the affidavit material and oral evidence given by Mrs Roks and Ms London.
The Respondent submitted that the burden of proving the fact that an advance of money was by way of loan, rather than by way of gift, is on the plaintiff: Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111 (“Heydon”); Coshott v Sakic (1998)
44 NSWLR 667 (“Coshott”).
There is no mention of the bankrupt Ms Mancuso’s individual requirement for repayments of the funds until after separation from
Mr Stephen Roks. In an undated note written by Mrs Roks, she states: “I Palmina Roks, did not pursue to secure money owed to me by my son Stephen Roks and daughter-in-law Michelle Roks because they had resumed their marriage after a seperation (sic)…We were family and the money was given in good faith and Tust (sic)”.[24] The Respondent referred to the judgment of Burchardt FM (as he was then) in
Maddock v Maddock & Anor (No.2)[2011] FMCAfam 1340 where his Honour formed the view that “If the parties had not been separated, the intervener would never have asked for his funds”.[25]
[24] Affidavit of Daniel Peter Juratowitch filed 18 July 2013, at Annexure “DPJ-4”.
[25] [2011] FMCAfam 1340, p.15 at para.73.
The Respondent further argues that, even if the funds in this case were a loan, there was no agreement as to the terms of repayment. If the funds were a loan, the cause of action for repayment arose in or about April 2002 and the Applicants cause of action is extinguished by the Limitation of Actions Act 1958 (Vic) (“Limitation of Actions Act”).
In the alternative, if the past payments are viewed as repayments, then the Applicants’ fresh accrual of action arose in December 2003.
Conclusions
In Heydon, the judgment, with which the other Justices concurred, was given by Gavan Duffy CJ. His Honour stated:
In this case the plaintiff sued for money lent and money received by the defendant as trustee for the deceased. The defendant denied these allegations and said the money was given to her as a gift. At the trial the learned Judge thought that the onus of proving there had been a gift lay on the defendant. We are respectfully of opinion that the burden of proving the facts in support of either one or other cause of action set out in the statement of claim, lies on the plaintiff.[26]
[26] (1930) 45 CLR 111 at 113.
In Coshott, the NSW Court of Appeal considered whether a solicitor seeking payment of professional costs had the onus of proving the terms of his retainer. The Court considered that there was “a useful analogy in the authorities which determine which party bears the onus of proof that an advance of money was a loan not a gift”.[27] By reference to Heydon, Spigelman CJ concluded, “In Australia, the burden of proving the fact that an advance of money was by way of loan, rather than by way of gift, is on the plaintiff”.[28] His Honour also referred to a number of cases where “Heydon has been consistently applied in Australia”.[29]
[27] (1998) 44 NSWLR 667 at 671.
[28] (1998) 44 NSWLR 667 at 671.
[29] Ibid.
I accept that the onus is on the Applicants to establish that the $50,000.00 was a loan. The evidence shows that, despite being aware of Ms Mancuso’s bankruptcy since December 2009, no proof of debt was lodged by the Applicants until 8 February 2011. On her own admission, Mrs Roks says this was done when they became aware that Mr Stephen Roks would receive nothing from the sale of the Yarrambat property.
A note accompanying the proof of debt refers to an amount of $50,000.00 “lent to S & M Roks”.[30] The $50,000.00 was never claimed when Mr Stephen Roks was declared bankrupt in March 2006.
Mrs Roks gave different explanations for this.
[30] Affidavit of Daniel Peter Juratowitch filed 18 July 2013, at Annexure “DPJ-2”.
In a statutory declaration dated 20 March 2012 and a letter to the Respondent dated 10 April 2012, the Applicants reiterate that the $50,000.00 was not a gift, but a loan.[31] The Applicants claim the money “is still owing to us…It was their obligation to pay us back $50,000.00 which they never did”.[32]
[31] Ibid, Annexures “DPJ-4” and “DPJ-7”.
[32] Ibid, Annexure “DPJ-7”, at pp.7-8.
In a response to the Respondent’s decision to disallow the $50,000.00, dated 15 February 2013, Mrs Roks claims that “No repayments were made”[33] and further stated that the debt was acknowledged as part of the deed of loan entered into by Ms Mancuso in August 2009. In her oral evidence, however, Mrs Roks agreed that the $50,000.00 was not mentioned in Schedule A to the deed of loan.
[33] Ibid, Annexure “DPJ-8”, at p.2.
The first mention of Ms Mancuso and Mr Stephen Roks making any ‘repayments’ on the loan appears in the affidavit of the Applicants of 10 May 2013. Paragraph 31 of that affidavit sets out the following payments:
·
Four payments of $500.00 between 4 August 2002 and
2 December 2002;
·Two payments of $800.00 in March and April 2003;
·One payment of $500.00 in April 2003;
·One payment of $200.00 in July 2003;
·One payment of $2,616.00 on an unknown date;
·One payment of $500.00 on an unknown date; and
·One payment of $1,788.00 on 7 December 2003.[34]
[34] Affidavit of Eduard Roks and Palmina Roks filed 10 May 2013, pp.4-5 at para.31.
The affidavit of 10 May 2013 states that the balance of the debt was $45,906.00.[35] The total repayments come to $9,204.00, yet Mrs Roks, in her affidavit of 31 July 2013, denied that this amount was repaid by
Ms Mancuso and Mr Stephen Roks.[36] In that affidavit, Mrs Roks reiterated that the $50,000.00 was a loan, not a gift, mentions for the first time that a record of repayments was being made in an exercise book, and stated that although they did make repayments, Ms Mancuso and Mr Stephen Roks also borrowed more money, citing an amount of $6,000.00 in medical expenses paid for Mr Stephen Roks in 2007.
[35] Ibid, p.5 at para.32.
[36] Affidavit of Palmina Roks filed 1 August 2013, at para.14.
Mrs Roks cited as evidence that the money was a loan, her attempt in 2006 to have herself named on the title of the Yarrambat property at a time when Ms Mancuso and Mr Stephen Roks were separated.
Ms Mancuso, in her evidence, maintained that the amount of $50,000.00 was a gift. Her evidence was that she and Mr Stephen Roks had decided to pay the money back because the Applicants used the gift as a way of manipulating their marriage, criticising their expenditure on things like fish tanks and jewellery. Ms Mancuso also stated that Mrs Roks both lent her money, which she repaid, and gave her money during the marriage. These were all cash transactions for which there was never any receipts given.
It is clear from both her evidence and the letters to the Respondent that Mrs Roks harbours a great deal of resentment towards Ms Mancuso and considerable bitterness about what both the Applicants and their son, Mr Stephen Roks, have gone through. For her part, Ms Mancuso clearly feels that the Applicants interfered in her marriage and put pressure on her towards the end of the marriage about financial matters.
I am satisfied, on the evidence in this matter, that the $50,000.00 advanced to Mr Stephen Roks and Ms Mancuso in 2002 was a gift from the Applicants. It only became a ‘loan’ when the Applicants felt that their son might not benefit from the money, in 2006 when the parties separated temporarily and in 2011, when the Applicants realised that Mr Stephen Roks was not going to receive any money from the sale of the Yarrambat property.
There are unexplained contradictions in the evidence in relation to the ‘loan’. These include the claim that there were ‘no repayments’ and later, that there were repayments up until December 2003 and then October 2004. The amount ‘owed’ also varies. The production of the exercise book in July 2013 appears to be too convenient given that the original claim was made in February 2011.
With respect to the $8,000.00 owed for the rendering work, I am satisfied on all the evidence that the Applicants paid for the work to be done. Ms Mancuso says that the amount was repaid. The document which Mrs Roks relies on to establish that the $10,000.00 repaid by
Ms Mancuso, with respect to other debts, first appears as an attachment to a letter on 20 March 2012. Ms Mancuso denied that the writing on the envelope was hers.
It is clear that the Applicants advanced Ms Mancuso and
Mr Stephen Roks sums of money from time to time. It is not clear what moneys were expected to be repaid and by whom. In the course of these proceedings, Mrs Roks suggested that a payment made for her son’s medical expenses was a debt owed by Ms Mancuso.
I am satisfied that sums of money were advanced by the Applicants to Ms Mancuso and Mr Stephen Roks. I am further satisfied that when money was repaid, it was not always clear what the sums paid were with respect to. These were, for the most part, cash transactions between members of a family. There were no written contracts.
There were no terms for repayment. I am not satisfied that the sum of $10,000.00 paid by Ms Mancuso to the Applicants from the insurance payout on the Yarrambat property was not for the rendering work done on the property.
For these reasons, I would dismiss the Application to reverse the decision of the Trustee of 25 January 2013. I have not found it necessary to consider the point in relation to the Limitation of Actions Act as I am satisfied that the amount of $50,000.00 advanced to
Ms Mancuso and Mr Stephen Roks in 2002 was not a loan.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 9 October 2013
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