Way v Bowling

[2024] NSWSC 986

Supreme Court

New South Wales

Medium Neutral Citation:

Way v Bowling [2024] NSWSC 986

Hearing dates:

22, 23, 24 and 25 July

Date of orders:

16 August 2024

Decision date:

16 August 2024

Jurisdiction:

Equity

Before:

Hmelnitsky J

Decision:

(1) Proceedings dismissed with costs.

(2) Parties to bring in short minutes of order by 4:00PM on Friday, 23 August 2024, dealing with the payment of funds out of Court.

Catchwords:

CONTRACTS – Formation – Existence of contract – Whether parties contracted into lottery syndicate at relevant time – Where one party found to have left lottery syndicate – Where no contract existed at the relevant time

EQUITY — Trusts and trustees – Whether express trust created for lottery syndicate – Where lottery syndicate had ended

EQUITY — Trusts and trustees – Common intention constructive trust – Where lottery syndicate had ended and no common intention to continue legal relationship

PARTNERSHIPS AND JOINT VENTURES — Existence of partnership — Carrying on business in common – Where no business was being carried on

Legislation Cited:

Partnership Act 1892 (NSW), s 1

Cases Cited:

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59

Brendan Wilfred King v Robert Lawrence Adams [2016] NSWSC 1798

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78

Van Rassel v Kroon (1953) 87 CLR 298; [1953] HCA 3

Category:

Principal judgment

Parties:

Alan Way (Plaintiff)
Mark Peter Bowling (First Defendant)
Moya Posar (Second Defendant)

Representation:

Counsel:
D P O’Connor/S Scott (Plaintiff)
P Batley/B Prentice-Davidson (Defendants)

Solicitors:
RMB Lawyers (Plaintiff)
O’Brien Criminal and Civil Solicitors (Defendants)

File Number(s):

2023/00025010

Publication restriction:

Nil

JUDGMENT

1. On 5 August 2022, the first defendant purchased a ticket in the NSW Lotteries Saturday Lotto draws 4283 to 4285 from the Narellan Newsagency. On Saturday, 13 August 2022 that ticket won prizes totalling $5,011,576.70 in draw 4285.

2. It is not in dispute that the first defendant purchased the winning ticket on behalf of a syndicate consisting of, at least, him and the second defendant. It is also not in dispute that the plaintiff was a member of that syndicate for more than a year commencing on about 17 April 2019. The principal issue in dispute is whether he was still a member of the syndicate on 5 August 2022 when the first defendant purchased the winning ticket.

Uncontroversial facts

3. The parties were at all relevant times residents of NSW social housing apartments in Elderslie, NSW. There are 20 apartments in the housing complex, which are mostly single occupancy. There was a total of about 24 residents at the relevant times.

4. The plaintiff is Mr Allan David Way, although he was known to the other residents, including the defendants, as Rod Squires. Mr Way took up residence in the apartments in 2018.

5. The first defendant is Mr Mark Peter Bowling, who is 76 years of age. The second defendant is Ms Moya Posar, who is 89 years of age. They had both been living at the Elderslie apartments for several years prior to 2018. At some point, Mr Bowling became a carer for another resident of the complex, Mary. He had previously resided in his own apartment but when Mary’s health deteriorated, he moved into her apartment. At the times relevant to this dispute, each of the parties lived in their own apartment in the Elderslie complex.

6. The parties were all unemployed. They each received social security benefits of some kind, on which they were almost totally dependent. None of them had other financial means to speak of.

7. For some years prior to 2018, Mr Bowling, Ms Posar and Mary participated in a lottery syndicate which was managed by Mr Bowling. Each fortnight, they contributed to the purchase of one or more tickets in various NSW Lotteries. Mr Bowling would collect cash from each of Ms Posar and Mary and, together with his own contribution, purchase the tickets at a local newsagency.

8. Mary died in February 2018. In the period immediately before she died, Mr Bowling would purchase a System 8 ticket in the Tuesday Oz Lotto draw and the Saturday Lotto draw, totalling about $60. Ms Posar and Mary would each contribute $20. In fact, the total cost was slightly more than $60, but Mr Bowling paid this difference himself. After Mary died, Mr Bowling and Ms Posar continued to purchase tickets as they had previously done, but they now contributed $30 each.

9. On 17 April 2019, Mr Bowling invited Mr Way to join the syndicate. The evidence about what was said on this occasion was disputed and I will deal with it in due course. However, it was not in dispute that from mid-April 2019 until at least September 2021, Mr Way was a member of the syndicate. To begin with, he paid $20 to Mr Bowling each fortnight, usually but not always when he received his pension payment.

10. Mr Bowling was a registered player and held a NSW Lotteries card. All of his ticket purchases and winnings over the relevant period were registered and summaries were in evidence. He had “favourite” numbers registered to his card which he played each time he bought tickets. Those favourite numbers were 1, 4, 15, 19, 20, 29, 35 and 38. The numbers did not change between 2017 and August 2022.

11. In July 2020, the syndicate stopped playing Oz Lotto because there were some changes in the way that game was drawn. Instead, Mr Bowling began purchasing tickets for the mid-week Lotto and the Saturday Lotto, which came to a total of $74.20 per fortnight, to which Ms Posar and Mr Way each contributed $25.

12. By October 2020, the cost of the syndicate’s Saturday Lotto ticket had increased to $46.30 per fortnight, bringing the total fortnightly cost to $80.30. From mid-November 2020, Mr Bowling therefore stopped buying tickets in the mid-week Lotto and now only purchased tickets for the Saturday Lotto. Mr Bowling says that from mid-November 2020, Ms Posar and Mr Way each contributed $15 per fortnight towards these tickets. Mr Way says that he simply contributed the amounts which Mr Bowling indicated from time to time, which he says continued to be $20. In other words, Mr Way says that Mr Bowling never told him that the true cost of syndicate tickets had dropped to $15 each. I will deal with this issue in due course.

13. The syndicate had minor wins from time to time. When this occurred, Mr Bowling would use the winnings to purchase tickets on behalf of the syndicate, which meant that they did not need to contribute cash for some period, sometimes several weeks. Records produced by NSW Lotteries show that, following minor wins, Mr Bowling would purchase the same kinds of tickets for the same weekly draws but that he would do so for more weeks at a time. In other words, he used the minor wins to fund additional fortnights of syndicate lottery ticket purchases.

14. There is however a dispute as to whether Mr Bowling always informed Ms Posar and Mr Way when there were minor wins. An aspect of Mr Way’s case is that Mr Bowling did not always do so.

15. It is not clear exactly how Mr Bowling found out about the win, but it must have been no later than 15 August. On that day, Mr Bowling spoke with a representative of NSW Lotteries and they had a discussion about the fact that he held a winning ticket and was entitled to over $5,000,000.

16. The parties were generally in dispute about what happened next. I will set their competing evidence out in due course. For the moment, it is sufficient to note that Mr Way learned about the lottery win in late August, probably 31 August, when Mr Bowling told him about it. Mr Bowling did not however tell him exactly how much had been won. He did however tell him, on any view, that Mr Way would be receiving $200,000. The defendants’ case is that they paid $200,000 to Mr Way as a gift in recognition of the fact that he had been in the syndicate at an earlier point. Mr Way’s case is that Mr Bowling knew Mr Way was still a member of the syndicate but that he was being deceptive about the winnings.

17. In any event, Mr Way went to a local credit union and opened an account. On 7 October 2022, the sum of $200,000 was deposited into that account by Mr Bowling, who transferred funds from the winnings which had been paid into his own account at the same credit union on 5 October.

18. In all, the following funds transfers took place:

1. On 5 October 2022, NSW Lotteries paid $5,011,576.70 to Mr Bowling.

2. On 7 October 2022, Mr Bowling paid:

1. $400,000 to a relative of Ms Posar.   

2. $200,000 to Mr Way.

3. On 13 October 2022, Mr Bowling paid a total of $2,200,000 to various of his relatives.

4. On 24 October 2022, Mr Bowling paid a further $2,200,000 to a relative.

19. It appears from this that only $400,000 was applied for the benefit of Ms Posar. Nonetheless, it is the defendants’ case that they were each entitled to half the winnings. There was no evidence as to any arrangement between the defendants but I infer from some other evidence to which I will refer in due course that there was an attempt to handle the winnings in such a way as to protect one or both of their social security entitlements. Both Mr Bowling and Ms Posar accept, however, that a consequence of them succeeding in this case will be that Ms Posar will be found to have been equally entitled to the winnings.

20. In November 2022, Mr Way learned from another resident in the Elderslie apartments that the winnings were vastly more than what he previously understood. Very shortly thereafter, there was a significant altercation between him and Mr Bowling that culminated in Mr Bowling calling the police.

21. Mr Bowling and Ms Posar moved away from the Elderslie apartments quite abruptly shortly after that altercation.

22. Mr Way commenced these proceedings by summons filed in Court before the duty judge on 24 January 2023, on which occasion he obtained orders for the defendants to provide information as to the winnings.

23. In due course, the defendants caused a sum of $1,500,000 to be paid into court and the dispute continued on pleadings.

The dispute in broad outline

24. Mr Way’s case is that he continued to be a member of the syndicate right up until August 2022 when the winning ticket was purchased. He claims that he paid whatever sum Mr Bowling requested from time to time.

25. Mr Way relies heavily on daily diaries which he kept during the whole of the relevant period. Those diaries record numerous matters relevant to the dispute. They record the date he was asked to join the syndicate, the date of some minor wins, and the date on which contributions changed to $25 per fortnight. They also record contributions of $20 per fortnight for the whole of the period from July 2021 until August 2022.

26. The defendants, on the other hand, say that Mr Way stopped contributing to the lottery syndicate after a particular incident involving a friend of Mr Way’s who was referred to by all parties as “young Barry”. He was called young Barry because there was another Barry in their orbit who, unlike young Barry, was a resident of the Elderslie housing complex. The defendants’ recollection, taken up in their pleading, was that this argument had occurred in early 2022 and that Mr Way had not been a member of the syndicate since that time. Mr Way’s diaries, however, pinpointed that argument to the night of Saturday, 25 September 2021.

27. The defendants contend that the numerous entries in Mr Way’s diaries between July 2021 and August 2022 purporting to record payments of $20 for “Lotto” were inserted into the diaries at a later point in time and were not made contemporaneously. They point out a number of anomalies in those entries, each of which I will explain and deal with in due course.

28. In terms of legal principle, the plaintiff’s case is fourfold:

1. First, he contends that there was a contract between the parties and that the defendants are liable for damages for breach. He also disputes that any contract among syndicate members was conditional upon continuing to make contributions to tickets.

2. Secondly, he contends that the first defendant was a trustee and is liable to account to him for trust funds.

3. Thirdly, he contends that a “common intention constructive trust” arose in respect of the winning ticket.

4. Finally, he contends (albeit only faintly) that the parties had formed a partnership and that the defendants are liable to account to him for his partnership share.

The disputed facts

29. The fact that the syndicate won a prize in excess of $5,000,000was a matter of life changing significance for all involved. Whether or not Mr Way paid – and Mr Bowling received – the sum of $20 each fortnight through to August 2022 is a matter about which one might expect these witnesses would have very good recall. The critical events in dispute occurred in 2021 and 2022 and these proceedings were commenced very shortly thereafter. This is not a case where the passage of time might have caused memories to become blurred about matters that were not particularly significant to the parties at the time.

30. The accounts which the parties have given as to their dealings are, however, diametrically opposed. The critical differences are between the evidence of Mr Way, on the one hand, and Mr Bowling, on the other. Ms Posar generally gave evidence in support of Mr Bowling, but because it was always Mr Bowling who collected cash and purchased tickets, it is his evidence that requires the closer scrutiny. It is inevitable that the resolution of these proceedings will involve a finding that one or other party has given a highly unreliable account of their dealings.

31. The centrally important issue concerns the reliability of Mr Way’s diaries. That is not to say that Mr Way cannot succeed even if I find his diaries to be unreliable. But in circumstances where he puts forward a contemporaneous, handwritten diary showing regular payments to Mr Bowling of $20 for Lotto in the period leading up to the purchase of the winning ticket, my general assessment of the reliability of his evidence is closely bound up with my assessment of the reliability of the diary.

The relationship between Mr Way and Mr Bowling generally

32. Mr Way, Ms Posar and Mr Bowling had a relationship that involved a lot of interactions from week to week. They lived in very close proximity and had lots to do with one another. They cooked meals which they shared. Mr Way had a barbeque on which he would prepare a meal and take some to the others. Mr Bowling would do likewise with roast dinners. Mr Way was unemployed but was resourceful, especially with mechanical matters. He would fix people’s cars and bikes. He would also buy cars and bikes, do them up and sell them.

33. Mr Way and Mr Bowling would frequently drink and socialize together. However, their relationship had both social and transactional aspects. Mr Way’s diaries contain numerous references to “6 packs” in connection with Mr Bowling. Mr Way explained that a reference in his diaries to “MB 6 pack” (or something similar) could mean he drank a six-pack of beer with Mr Bowling, or that Mr Bowling gave him a six-pack, or that he gave Mr Bowling a six-pack in return for an earlier transaction. In any event, Mr Way would make a note to record the transaction. Mr Way also borrowed money from him from time to time. Mr Bowling often had cash from a “punters’ club” which he would lend to Mr Way, for example to buy beer. Mr Way would generally make a note in his diary when he borrowed from, or repaid money (or beer) to, Mr Bowling.

Mr Way’s diaries

34. As the foregoing paragraph shows, I do accept that Mr Way was someone who generally kept a diary. It was not suggested to Mr Way in cross-examination that he did not do so. His diaries were relied on by both sides to date matters relevant to the dispute, such as when he joined the syndicate and when the altercation with young Barry occurred.

35. Mr Way explained that he would make entries in his diaries on most days, usually early in the morning when his mind was clear. The diaries contain all manner of detail about Mr Way’s life, such as who he visited, who visited him, when and where he went to the shops, whether he had cooked a barbecue, what car or bike he was working on, names and phone numbers. They contain observations about current events (the death of the Queen, for example) as well as the occasional jotting or doodle. Overall, they are quite methodical. They are contained in exercise books (or similar), not commercially printed diaries. Mr Way would make an entry for almost every day by writing the day and date and then a few lines recording what he did that day. Some days simply said “HOME”. Others contained much more detail.

36. For example, the page containing the entry for 17 April 2019, which is the day he first joined the lottery syndicate, appeared as follows:

37. During the period commencing 17 April 2019 until 8 July 2021, there are only a few entries referring to the Lotto. There is an entry for 2 June 2019 that reads:

“LOTTO 4 WEEKS”

38. A “customer win history report” produced by NSW Lotteries shows that the syndicate won $135.20 on 25 May 2019, which at that time was enough to cover two fortnights of ticket purchases, plus a little more. Mr Bowling must have told Mr Way about the minor win and that he was covered for four weeks, which would explain this diary entry.

39. A “customer ticket history report” produced by NSW Lotteries shows that Mr Bowling purchased twice the number of tickets as usual on 31 May 2019. He purchased tickets in four Oz Lotto draws and seven Saturday Lotto draws, at a total cost of $42 and $79.60 respectively. At this stage, he was normally purchasing tickets in two Oz Lotto draws and three Saturday Lotto draws, at a total cost of $21 and $39.80 per ticket respectively.

40. This evidence tends to confirm the evidence of both parties in some important respects. For Mr Way, it corroborates his evidence that he was keeping contemporaneous records and that they included records as to the lottery syndicate. For Mr Bowling, it corroborates his evidence that he was purchasing tickets when and on the basis he said he was, including that he would use the proceeds of minor wins to purchase further tickets on behalf of the syndicate.

41. Not all such minor wins are mentioned in Mr Way’s diary during the period when Mr Way was, on any view, a member of the syndicate. However, the NSW Lotteries reports which I have mentioned show that Mr Bowling did purchase additional tickets following minor wins and that the value of those additional tickets broadly reflected the amounts of those minor wins, regardless of whether Mr Way recorded the fact or not.

42. I earlier referred to the fact that Mr Bowling stopped purchasing Oz Lotto tickets and instead started purchasing mid-week Lotto tickets in July 2020. This change meant that the total ticket cost (at least initially) was $74.20 per fortnight, to which Ms Posar and Mr Way each contributed $25. These circumstances are borne out by the NSW Lotteries reports. They are also recorded in Mr Way’s diary. An entry for 13 July 2020 includes:

“MARK B

PAID 25 LOTTO”

43. Again, this evidence is corroborative of both witnesses. It tends to support the proposition that Mr Way’s diaries were kept contemporaneously. It also tends to support Mr Bowling’s evidence that he kept members of the syndicate informed as to what they needed to contribute and that he generally collected an appropriate amount to cover the cost of tickets.

44. Mr Way’s diary does not however make mention of the change in ticket price that occurred after October 2020 when Mr Bowling started purchasing only Saturday Lotto tickets at a cost of $46.30 each fortnight. In fact, Mr Way’s diaries do not at any stage mention a payment of $15 to Mr Bowling for Lotto tickets, even though Mr Bowling only purchased Saturday Lotto tickets at a cost of $46.30 for a long period leading up to August 2022.

45. The diaries in evidence covered the whole period from 17 April 2019, when Mr Way joined the syndicate, through to the end of 2022. Between 17 April 2019 and 18 August 2022, which is shortly before Mr Way found out that the syndicate had won, there is a total of 38 mentions of “Lotto” (or similar), two of which record minor wins as just described. Of those 36 mentions of payments, however, 30 appear at roughly fortnightly intervals commencing on 8 July 2021. Those 30 entries all record that Mr Way paid the sum of $20 to Mr Bowling. During that same period, there is no mention of any minor wins, even though Mr Bowling said – and the NSW Lotteries documents confirm – that there were several minor wins during this period.

43. For example, on 18 December 2021 the syndicate won $133.10, which was paid to Mr Bowling on 23 December. Also on 23 December, Mr Bowling purchased a ticket for Saturday Lotto draws 4219 to 4229 for $138.90, which covered the syndicate for that game for three fortnights, remembering that each fortnight’s ticket usually cost $46.30. He did not subsequently purchase more tickets until 4 February 2022.

44. However, Mr Way’s diary records that he paid $20 to Mr Bowling for “Lotto” on 23 December 2021, 6 January 2022, 20 January 2022 (mistakenly recorded as “20/11/22”, but I read nothing into this) and 3 February 2022.

45. This evidence is impossible to reconcile. Either Mr Way paid Mr Bowling $60 for lottery tickets during a period in which Mr Bowling neither needed nor used cash from syndicate members to purchase tickets (which would imply dishonesty by Mr Bowling, both at the time of the events as well as in giving evidence in these proceedings), or the diary entries are not a true record of Mr Way’s contributions (which implies dishonesty by Mr Way).

46. These particular anomalies appear on every occasion the syndicate had a minor win subsequent to July 2021. According to Mr Way, he continued to pay $20 to Mr Bowling roughly fortnightly, despite the ticket cost only being $46.30 and despite the fact that Mr Bowling clearly used the proceeds of minor wins to fund tickets when he could.

47. As mentioned, Mr Bowling would purchase tickets fortnightly. The NSW Lotteries customer ticket history report demonstrates that he did so very regularly. He also says that the syndicate members – he, Ms Posar and Mr Way when he was in the syndicate – would contribute cash on the day they received their pension cheques, typically a Thursday. The diaries, however, purport to record $20 contributions to the Lotto syndicate on a number of Thursdays that do not coincide with pension payments. To be sure, many entries do show payments on the day Mr Way received his pension, but at times the entries become out of sync with the pension cycle for weeks (or, rather, fortnights) at a time.

48. Furthermore, Mr Way’s diary records that he paid Mr Bowling $20 for Lotto on 11 August 2022 and 18 August 2022. This is anomalous for the reasons just explained. However, these entries suggest a further anomaly. That is because by 18 August 2022, Mr Bowling knew he already held the winning ticket from the 13 August draw. He was in no doubt about the matter and in fact by that date had already spoken to NSW Lotteries about the win on two separate occasions.

49. In fact, Mr Way suggested that diary entries also recorded payments of $20 for Lotto on each of 26 and 31 August. I do not accept that the 31 August entry records a $20 payment. Rather, it records that on that day, Mr Bowling told him about the win and that he would be getting $200,000. The 26 August entry is more equivocal. It says “MB 20”. If this does record a lottery payment, it means that in August 2022, being the month in which the syndicate won the major prize, Mr Way contributed cash three weeks in a row, which would have been completely out of the ordinary for the syndicate. On Mr Way’s case, Mr Bowling took cash from him in this remarkable way three weeks in a row, without comment, with two of those payments taking place even after the major prize had been won.

50. One possibility is that Mr Bowling was thrown for quite a loop when he found out about the win and was trying to keep things as normal as possible so that no-one found out about it until he had worked out a way forward. There is no doubt that Mr Bowling was shocked and surprised by the win and that he genuinely did want to keep the fact quiet until he knew what to do. But it does seem very strange that he would accept $20 from Mr Way on 18 August 2022 (and possibly also 26 August) in order to purchase Lotto tickets and not say anything to Mr Way about the win.

51. Before reaching any conclusion as to why these various anomalies might have appeared in the diaries and, more particularly, whether I consider the diaries to be a reliable record of Mr Way’s contribution to the purchase of the winning ticket, it is necessary to consider several other matters that were in dispute. The first such matter concerns the evidence of a handwriting specialist called by the defendants to analyse the diaries.

The handwriting evidence

55. The defendants relied on the evidence of Mr Steve Dubedat, a handwriting expert. Mr Dubedat was well qualified to express an opinion about technical aspects concerning handwriting. Mr Dubedat was provided with the original diaries for the relevant period and the following direction:

“Mr Way claims to have made cash payments to Mark Bowling of approximately $20 each fortnight from about 2019 as a contribution to the cost of Lotto tickets to be purchased by Mr Bowling on behalf of Mr Bowling, Ms Posar and Mr Way. Mr Bowling and Ms Posar accept that payments for Lotto purchases were made by Mr Way until about late 2021 (although they say that from about October 2020 the amount of the payment was $15, not $20). They dispute that Mr Way made payments to Mr Bowling for Lotto tickets in 2022 and deny that Mr Way contributed to the purchase of the winning Lotto draw.

Mr Way has served an affidavit in the proceedings which includes the following statements:

‘Since before the time I moved into the housing, I have always kept journals regarding my day to day dealings, payments and interactions with people. I do this because I like to have a record to refer to and to be able to determine what I did on a particular day.’

and

‘Each time I made a payment to the First defendant in relation to the Club, I would usually record it in a journal. I labelled the transactions “Lotto MB or Paid MB” or similar as the First defendant’s initials are MB.’

We request that you conduct whatever examinations you consider necessary to confirm whether journal entries referring to payments to Mr Bowling for Lotto were contemporaneous with other entries apparently made on that date or whether in your opinion they were made at a different time. Please also report your opinion on any matters emerging from your examination which casts light on the veracity or otherwise of the journals and the entries which purport to or appear to relate to payments to ‘MB’ or ‘Mark’.

Please give additional attention to:

1. The entry on 17 April 2019

2. Entries in late 2021 and in 2022

3. Entries in July and August 2022.”

56. Mr Dubedat provided a report dated 21 July 2023. Mr Dubedat explained his methodology, which involved a combination of microscopic examination, infrared examination using a video spectral comparator, and examination with electrostatic detection device. He also examined the diaries for ink transference, which can be used to determine the sequencing of ink strokes and the relative dating of ink entries.

57. He also explained the differences that can be apparent from handwritten documents written all at one time (so-called synchronous writing) and those handwritten documents written over a course of time (so-called asynchronous writing). However, as he explained, the identification of those differences and the significance to be attributed to them requires subjective judgment on the part of the examiner.

58. Mr Dubedat’s conclusions were interesting but, ultimately, not of great assistance in resolving the particular issues in dispute. That is not a criticism of Mr Dubedat. It is just that he was not able to reach particularly firm conclusions based on the material. I note that almost none of the somewhat tentative conclusions reached by Mr Dubedat were put to Mr Way in cross-examination.

59. So, for example, Mr Dubedat’s final remarks were in these terms:

“Based upon my experience in examining diaries with a view to determining whether entries are contemporaneous or not, it is unusual to see such a high degree of uniformity in handwritten entries which have purportedly been written over an extended period of time. Although I am unable to determine when each handwritten entry was made, the uniformity of numerous entries in writing quality, ink (Book “2”), spacing, arrangement, alignment, day/date synchronisation notes (Book “1”), ink transference (Book “2”) combined with numerous dating errors all support the proposition that a large number of entries in each book/diary are not contemporaneous. The majority of the entries in Book “0” appear to have been written in groups, and show more variability in the entries compared to the other books. The majority of the entries in Books “1” and “2” show more uniformity throughout. If one assumes that the records in each book have not been written contemporaneously; then they may have been written in groups (eg one week or more), transcribed from another record, or are fabrications. As such, I would recommend anyone who seeks to rely on the entries as being contemporaneous records to do so with caution.”

60. However, it was not suggested to Mr Way that any of the diaries were prepared “synchronously.” Rather, what was put to Mr Way was that those entries between July 2021 and August 2022 which purport to record payments of $20 to Mr Bowling for Lotto were inserted later. That, however, is not a proposition that finds specific support in Mr Dubedat’s report. His point was that the diaries as a whole might all have been written at once, or in groups. He did not find evidence to conclude that the specific entries challenged by the defendants were inserted later.

61. One specific matter identified by Mr Dubedat was that an entry recording a payment by Mr Way on 11 August 2022, two days before the win, was written in a different ink from other entries on that page. The page in question appeared as follows:

62. Infrared examination of this page revealed that a number of entries were made with a different ink from the other entries. Mr Dubedat highlighted those parts of the page written in different ink, as follows:

63. The body of his report drew particular attention to the fact that the day and date at the top of the page, as well as the words “20 LOTTO” and the parentheses, were written in a different ink.

64. Counsel for Mr Way drew his attention to two additional matters on this page. The first was that the words at the bottom of the page were also written in that different ink. This is a matter to which the body of Mr Dubedat’s report did not refer. It was also pointed out that the scrawl at the top of the page could suggest that Mr Way was using a pen that was running out of ink and that this was a matter which Mr Dubedat should have noticed and commented upon. Mr Dubedat accepted both of these criticisms of his report and agreed that it was reasonable to conclude that the pen was running out of ink.

65. At the same time, however, the balance of the entries on that page appeared to Mr Dubedat to be written in the same ink as the rest of the diaries. He also pointed out that the scrawl at the top of the page was written in the same ink as the word “LOTTO” and the other highlighted entries.

66. It is difficult to know what to conclude about these entries on the basis of Mr Dubedat’s report. His evidence could support the defendants’ case that this “Lotto” entry, at least, was not written at the same time as the rest of the diary as it was written in different ink, possibly with a pen that ran out. On the other hand, none of the other disputed “Lotto” entries were written in that different ink.

67. His evidence might also support the plaintiff’s case, because the “Lotto” entry on this page is only written in a different ink because the pen used to write it stopped working. However, that is a more problematic proposition because it is a theory that involves Mr Way doing one of two rather odd things. One possibility is that he picked up a new pen that was different to the pen he had used for all previous diary entries and then, on a new page, entered only the highlighted portions (day/date, the reference to “20 LOTTO”, the parentheses, and the entry underneath “SATURDAY 13/8/22”) before that pen ran out. He must then, on that theory, have picked up the pen he had used for all previous (and all subsequent) pages to complete the rest of the page, including the word “PACK” inside the parentheses he had just written. Another possibility is that he used the pen he had been using previously, wrote everything except the highlighted portions, and then picked up a new pen to complete the page but reverted to the old pen for all subsequent diary entries when that new pen ran out.

68. In the end, I am unable to determine exactly how this page in the diary came about based on Mr Dubedat’s evidence. The empty pen hypothesis does not, to my mind, sit terribly comfortably with Mr Way’s case, but this is a matter on which I am not prepared to place significant weight in the absence of any firm conclusion from the handwriting expert.

Other disputed factual matters

69. It is necessary to note a number of other disputed factual matters before attempting to resolve the question of the reliability of the diaries and the parties’ evidence generally. For reasons I will explain, I generally favour Mr Bowling’s accounts of these incidents over Mr Way’s, except to the limited extent indicated below. Nonetheless it is appropriate to note the parties’ divergent accounts of how they dealt with one another at relevant times.

On what terms did Mr Way join the syndicate?

70. Mr Way gave evidence that Mr Bowling invited him to become a member of the syndicate in 2019. As mentioned, his diary shows that this occurred on 17 April of that year.

71. Mr Way recalls that Mr Bowling said:

“Would you like to join the lottery club I have going with Moya [Ms Posar]? Our old neighbour Mary used to be a member of the club, but now that she is gone there is a free spot.”

72. He advised that he had a registered account and that he would “manage finance and administration” on behalf of the syndicate.

73. Mr Bowling then said:

“I will let you know how much money to give me and when to give it to me. We will split any winnings equally between the three of us.”

74. Mr Way agreed. Mr Bowling then said:

“What two numbers do you want to play? I will play them every week, so let me know when or if you want to change them.”

75. Mr Way said:

“I want numbers 1 and 15.”

76. He said, and I accept, that the numbers 1 and 15 had special significance to him.

77. Mr Bowling’s account was somewhat different. He denies that he referred to any “lottery club”. He denies that he offered Mr Way an opportunity to nominate his own numbers. He also denied referring to Mary, their recently deceased old neighbour. He claims to have said:

“Would you like to come in our lotto with us? With Moya and I? We’re in a system 8 Oz Lotto on a Tuesday night and the Saturday night Lotto and these are our numbers. We keep our numbers. It will cost you $20 a fortnight and if we win anything we split it. Moya gives me her money on pension day so you can do the same thing. You can please yourself if you want to come in, but we keep these numbers. We’ve been playing them for a long time.”

78. Mr Bowling says that Mr Way agreed. Mr Bowling then claims to have written the numbers down on a piece of paper and given them to Mr Way. The numbers he wrote down were the same numbers as included on the winning ticket and included the numbers 1 and 15.

79. Despite their disagreement as to this issue, which permeated the parties’ evidence, nothing turns on whether Mr Bowling used the word “club” or “syndicate”, nor on whether Mr Way was “invited” to nominate numbers. On any view, Mr Bowling was inviting Mr Way to join a lottery syndicate of the kind considered by the High Court in Van Rassel v Kroon (1953) 87 CLR 298; [1953] HCA 3 whether he described it as a club or not. Nonetheless, I find that Mr Bowling did say the word “club” as Mr Way contends. I note that in cross-examination Mr Bowling himself used the expression “club” on several occasions to describe their arrangement. He also ran what he called a “punters’ club” for residents of the Elderslie housing complex.

80. So far as the numbers were concerned, the evidence shows that the numbers on the winning ticket were the very same numbers which the syndicate had been playing since at least 2017, long before Mr Way joined. For reasons I explain below, I do not accept that Mr Bowling gave Mr Way an opportunity to nominate his own numbers for the syndicate.

The altercation about young Barry

81. The fact of an altercation involving young Barry was not in dispute.

82. On Mr Bowling’s recollection, the incident occurred when young Barry was staying with Mr Way in late January or early February 2022. As mentioned, the incident in fact occurred in September 2021. Mr Bowling recalls that young Barry and Mr Way were drinking one night when young Barry asked Mr Bowling and Ms Posar to come over for a visit. The apartments were very close together, so it was not far to go. There were COVID-related social distancing restrictions in place at the time and so Mr Bowling and Ms Posar were both wearing masks. Ms Posar is particularly elderly and Mr Bowling was worried about her catching COVID.

83. Mr Way and young Barry were not wearing masks and, as far as Mr Bowling was aware, neither had received a COVID vaccination. He and Ms Posar were uncomfortable about the visit and so they returned home to have dinner.

84. Later that night, Mr Bowling heard young Barry yelling expletives about him near his back door.

85. Next morning, Mr Bowling saw Mr Way and young Barry. He challenged them and said:

“What’s he doing back here? We don’t want him back here causing trouble. There’s elderly people here.”

86. As Mr Bowling recalls, Mr Way replied by being intimidating and abusive towards him. In one of his affidavits, Mr Bowling said that Mr Way also said:

“You can’t pick your own numbers anyway. They’re dead people’s numbers.”

87. According to Mr Bowling, it was immediately after this altercation that Mr Way stopped contributing to the Lotto syndicate. He says that from this time onwards, he continued to buy a ticket for the Saturday Lotto but that only he and Ms Posar contributed the sum of $23 each.

88. One issue in dispute is whether Mr Way said anything during this altercation about the Lotto syndicate. He denied that he did so. He also denied that he had been abusive and suggested that it was Mr Bowling who had instigated the argument. He recalls saying “piss off inside and I’ll deal with it. Don’t tell me who I can and can’t see.”

89. I note that Mr Way’s diary refers to this incident in the following terms:

“SATURDAY 25/9/21

MARK – MOYA ARG. ABOUT BAS GOING OFF (BAN)”

90. “Bas” was a reference to young Barry. There is nothing in the diary about the Lotto.

91. In cross-examination, Mr Bowling seemed to accept that Mr Way had not in fact said anything about the lottery during the altercation.

92. I am in the end unable to draw any particular conclusion from the way the parties each recounted this episode. The parties all recalled the episode in much the same way, save as to where blame lay. Given Mr Bowling’s acceptance in cross-examination that Mr Way did not in fact say anything about the lottery on that particular day, I find that he did not do so. However, Mr Bowling did not accept that it was never said. In fact, he maintained that it was. I note also that Ms Posar recalls Mr Way saying something to like effect at a later point.

The events of August 2022

93. Mr Bowling made two calls to NSW Lotteries in August 2022 following the win.

94. The first call was made on 15 August. It is relevant to note the following interaction where Mr Bowling states that he has won the lotto:

“Operator:   ‘Good afternoon. You're speaking with Daniel. How can I help?

Mr Bowling:   ‘Oh, yeah, mate. Yes. I believe I've won Saturday night Lotto.’”

95. The second call was made on 16 August. In that call, he at one point mentioned that he had won with “another lady”:

“Mr Bowling:   ‘Oh, OK, love. Alright. Yeah, yep. Well what it is anyway, it's a lot of money. It's it's five. It's ah 5 million dollars alright? And and what? I'm just wait, I just want to ask a question before you ask anything else.

Operator:   ‘Uh huh.’

Mr Bowling:   ‘Because I'm with another lady, right? My neighbour. Right? So we've won two and a half million dollars each, OK? And when and when I do this claim form and fill it out and give my bank details right? And and all the money's gonna go into my bank account. But what I want to know is, can I get her, her bank details and mine so she can have half hers and half mine without it all going into my bank account?’”

96. According to Mr Way, in late August 2022 Mr Bowling approached him in the driveway at Elderslie and said:

“Moya and I were going to come over and tell you, but I’ll tell you now. I’ll be giving you money soon, we had a win in Lotto. We won $5 million with 4 other winners so the money will be split five ways. All up we won about $1 million. You’ll be getting a hundred to a couple of hundred thousand out of it.”

97. Mr Way’s diary shows that this was on 31 August. Mr Way expressed his surprise and thanks. Mr Bowling then said:

“Don’t tell anyone that we have won. I’ve held off claiming it because I don’t want us to lose our benefits. I rang Lotto and told them not to send the ladies around with the champagne so no one would find out. If people find out that we’ve won, we will lose our pension and our houses.”

98. There was then a discussion about Mr Way opening a bank account at the Macarthur Credit Union. Mr Way did go to the credit union to open an account, as discussed.

99. Mr Bowling’s account is somewhat different. He claims to have said:

“I’ve got something to tell you. Me and Moya won the lotto and we’ve decided to give you $200,000 as a gift to help you out.”

100. He says that he and Ms Posar felt sorry for Mr Way, which is why they decided to give him $200,000 from their winnings.

101. It is relevant to note that on neither Mr Way’s account nor on Mr Bowling’s account was Mr Way told how much Mr Bowling had actually won.

102. Mr Bowling denies that he said anything about pensions. He claims to have said:

“I don’t want you to tell anyone about the lotto yet. I’ve got things to think about. I’ve got the cat to worry about and I’ve got Moya to worry about. Just keep it quiet for a while.”

103. He also said: “Moya and I are in no hurry to claim our prize.”

104. He says that he was worried about his ageing cat and did not want to move until his cat had passed away.

The events of September 2022

105. On 1 September 2022, Mr Way attended the Macarthur Credit Union and opened an account. He gave his account details to Mr Bowling. However, weeks went by and the $200,000 did not come through to his account. He began to question Mr Bowling about the win. He recalls questioning him in September in these terms:

“When are you giving me the money? Can you show me the winning ticket, I want to see the exact amount that we won.”

106. According to Mr Way, Mr Bowling turned hostile and abusive. He said: “you’re lucky you’re getting anything.”

107. According to Mr Way, there were four or five such exchanges with Mr Bowling during September 2022. On one occasion, Mr Bowling broke down in tears and said: “I wish I never won this money.”

108. Mr Bowling’s recollection again differs, although not significantly. He did not dispute that Mr Way was pressuring him in September in relation to the money. He does however dispute that Mr Way ever asked to see the ticket.

109. It is also relevant to note that Mr Bowling had a further discussion with NSW Lotteries on 9 September in which he said:

“And the thing is, I've, I've got an 18 year old pussycat here. That's been here longer than me and I inherited and I've moved into this house now and I can't go anywhere at the moment. I won't. The cat’s more important to me than the money. I think about animals first and I won't leave. But my main problem is there's other people that I've got to give money to out of this prize and I want to get them out of the road and then I can just-

This, this is, you know, you know, I'm that depressed about things. And I'm and I'm getting people having the shot at me and, ‘Ah don't worry about the bloody cat.’ Well to me animals are better than people.”

October 2022

110. At the same time, the parties continued to interact and socialise in their usual way. They all had dinner together in Mr Bowling’s apartment in October, at which time Mr Way claims to have again pressed them to show him the winning ticket. According to Mr Way, Mr Bowling indicated to Ms Posar that she should not say anything.

111. Mr Bowling eventually received the winnings into his account. I have already set out the subsequent payments he made, including to Mr Way.

112. Also in October 2022, Mr Way claims that he wanted to tell neighbour Barry about the win, but that Mr Bowling said:

“Remember not to tell anyone about the Lotto win, we don’t want the Housing Commission Officer to find out and we lose our houses.”

113. Mr Bowling disputes this, but not much turns on it. It is part of Mr Bowling’s own case that he wanted to keep the matter quiet in part because of a concern about having to move out of the apartments. I do accept that Mr Bowling said not to tell anyone about the win, because that is consistent with his desire to keep it quiet, but I do not accept that Mr Way was at this point pressing to see the ticket. My reason for not accepting this evidence is that, as I will explain in due course, I generally find Mr Bowling’s evidence to be more reliable than Mr Way’s when it comes to their dealings about the lottery win. I do not accept that Mr Way at this point believed himself to be a member of the syndicate.

November 2022

114. Matters came to a head in November 2022, when another resident of the Elderslie apartments, Jennifer, told Mr Way that Ms Posar had won over $2,000,000 in the Lotto.

115. There followed a discussion with Mr Bowling. Again, the content of the discussion is disputed but, again, not much turns on it. Mr Way recalls that it went like this:

“In November 2022 or thereabouts I questioned the First defendant again about the Major win. I recall saying:

‘Jennifer has told me that Moya won over 2 million dollars. Show me the winning ticket so I can see how much we won. I thought I was getting a third share of $1 million.’

The First defendant refused to give me any details about the Major win, ticket number or draw date.

I recall the First defendant saying:

‘It’s none of your business. You got what you got.’

I remember I said:

‘It is my business, I’m in the club. I’ve been putting money in for years.’”

116. Mr Bowling denies that these exchanges took place.

117. Learning about the size of the win prompted Mr Way to call NSW Lotteries to see if he could find out more about the prize. A recording of the call was in evidence. It is relevant to note that it included the following:

“Operator:   ‘Yeah? How can I help?’

Mr Way:   ‘It would have been earlier this year and I know the address of the person and his name because I'm part of that syndicate and I'm trying to find out how much exactly was won.’

Operator:   ‘OK, so was the ticket earlier this year?’

Mr Way:   ‘Yeah, beginning about, the beginning of this year sometime. And he, he didn't put his claim form for months and months and months. And then he, he deposited money into my account. But I've since found out that he won a lot more.’”

118. The defendants particularly relied on Mr Way’s suggestion that the win could have been at the beginning of 2022. If in November 2022 Mr Way believed that the win could have been at the beginning of the year, he would (on their theory of the case) have needed to ensure that his diaries recorded $20 payments to Mr Bowling going back some time. It would be no good simply recording a payment or two in July and August. They point out the regular but anomalous diary entries in fact cover an entire year prior to August 2022. They also point out that if the diaries were, as he now claims, reliable, then he would have seen that he was paying for Lotto tickets right up until 18 August, just before he found out about the win. He would not in those circumstances have been so vague about when the win occurred when he spoke with NSW Lotteries.

119. There is some force in these arguments, but they are ultimately inconclusive. If by November 2022 Mr Way was deeply distrustful of Mr Bowling, as he claims, then he would have had no reason to suppose that Mr Bowling was ever telling him the truth about the lottery tickets. In the end, I am not prepared to attach significant weight to what was said by Mr Way in this call.

The defendants move out of the Elderslie apartments

120. As already noted, Mr Way received $200,000 from Mr Bowling on 7 October 2022. According to Mr Bowling, everything was fine between them right up to Friday, 25 November 2022, when Mr Way and another neighbour visited him in his apartment, together with Ms Posar, for a drink. However, by the early hours of Monday, 28 November, things had unravelled. There was an abusive confrontation in which Mr Bowling felt threatened. He left his apartment in fear and called the police. There was a further confrontation later that day in which Mr Way was again abusive. At that point, Mr Bowling says that he and Ms Posar left the apartments to avoid Mr Way and have not returned.

121. Mr Bowling gave a detailed account of these events. Mr Way selectively denied only specific aspects of what was said. He did not seem to deny the charge of having been abusive towards Mr Bowling on 28 November 2022, both in the early hours and then later in the afternoon of that day.

122. In the circumstances, I accept Mr Bowling’s account of what occurred, although I am unable to reach a conclusion as to exactly what was said. Relevantly, I find that Mr Way was generally quite abusive towards Mr Bowling and that this is the reason he and Ms Posar left.

The witnesses

123. As I have already explained and as the parties accepted, it is not possible to resolve these proceedings without making some fairly serious findings about the reliability of either Mr Bowling’s or Mr Way’s evidence. Each party submitted that I should, at least in part, base my conclusion on my own assessment of the witnesses in giving their evidence. Each party pointed out the shortcomings of the other in that respect.

124. In all, I did not find the oral evidence of either Mr Way or Mr Bowling, or their demeanour in the witness box, to be especially telling. Each was a poor witness in some respects, but neither gave their evidence in such a way as to make me think either of them was generally unreliable. The protagonists were all long-term residents of social housing, who were entirely dependent on social security and who lived from fortnight to fortnight, but whose lives were turned upside down by a Lotto win. They all had difficulties of various kinds in following the questions they were being asked by the cross-examiner, although each appeared to be at least trying to do their best.

125. Mr Way was quite methodical. He was generally a slow and careful witness who was quite short and direct in the way he answered questions. He was not argumentative. He did not always follow the nuances in questions and so often answered questions he had not been asked, but I did not have the impression that he was generally trying to avoid answering questions.

126. Mr Bowling was a very different kind of character. He was quite excitable. Unlike Mr Way, he was positively argumentative, but not in a way that obscured the facts about which he could give evidence. In other words, he did not parry away questions with argument; he tended to answer them, but in a combative and argumentative way. He had the same difficulties as Mr Way in following some of the nuances in questions and, like Mr Way, often answered questions he had not been asked.

127. Ms Posar does not have English as a first language. She is very elderly and did not seem to be in the best of health at the time she gave evidence. She was clearly mistaken about some things. For example, she thought Mr Way was only in the syndicate for “weeks”, not years. On the other hand, she knew that she had limited knowledge of the central issues in dispute and, sensibly, did not generally try to express views about those matters except to the extent she was able to.

128. Despite these difficulties, and although not decisive, there are several matters to note in relation to the evidence of the witnesses.

129. First, in one of his affidavits Mr Way said:

“Each time I made a payment to [Mr Bowling] in relation to the Club [ie, the syndicate], I would usually record it in the journal.”

130. I am not able to accept that this is correct. He did not “usually” make a note of his contributions to the syndicate. On his case, his practice of writing down his contributions only started (if his diaries are to be believed) in about July 2020. There are no regular references to the making of lottery contributions, despite it being common ground that he made fortnightly contributions, for over a year prior to July 2020.

131. Secondly, an aspect of the defendants’ case is that at about the time Mr Way stopped contributing to the syndicate he said that he did not want to play with a “dead person’s numbers”. Mr Bowling’s recollection is that he said this at the time of the dispute concerning young Barry. Ms Posar’s recollection is that he said it a bit later. On their case, the fact that Mr Way said these words at around the time he stopped contributing is evidence that he intended to drop out of the syndicate. The reference to a “dead person’s numbers” was to the fact that the syndicate was playing numbers chosen, in part, by Mary who had passed by the time Mr Way joined.

132. It is also, on their case, somewhat corroborative of Mr Bowling’s account of the circumstances in which Mr Way joined the syndicate. Mr Bowling disputes that Mr Way nominated his own numbers at the time he joined the syndicate. Instead, as he points out and as other evidence confirms, the syndicate played exactly the same numbers over the whole of the relevant period, including when it comprised Mr Bowling, Ms Posar and Mary. In other words, the numbers did not change when Mr Way joined.

133. Mr Way denied that he ever said such a thing out loud. On the other hand, he says in one of his affidavits that the thought of playing with a “dead person’s numbers” is what prompted him to nominate the numbers 1 and 15. On his case, when he joined the syndicate he nominated his own numbers, being 1 and 15, because he did not want to play with Mary’s numbers.

134. I am not able to accept Mr Way’s evidence about this. By far the most likely explanation for the fact that the syndicate played the same numbers before and after Mr Way joined is that Mr Bowling either did not ask Mr Way about the numbers or, if he did, did not give him an opportunity to select new numbers. Mr Bowling’s evidence is an inherently more likely – and therefore more reliable – account of how Mr Way joined the syndicate when compared with Mr Way’s evidence.

135. Counsel for Mr Way suggested to Mr Bowling that his evidence about this matter was a concoction. He suggested that Mr Bowling had simply read Mr Way’s evidence that he thought about not wanting to play with a “dead person’s numbers” but then dishonestly claimed it was something Mr Way had actually said out loud at the time he left the syndicate.

136. The difficulty with this argument is that it assumes its own premise, namely that Mr Way never said it. The question is: did he? Counsel for Mr Way submitted that Mr Bowling and Ms Posar are both to be disbelieved when they say that Mr Way said he did not want to play with a “dead person’s numbers”. I am however inclined to believe Mr Bowling’s evidence about this matter. First, both Mr Bowling and Ms Posar each had an independent recollection of Mr Way using these words, albeit at slightly different times. Mr Bowling accepted that it was not said during the altercation, but he did not accept that it was not said at around that time. Secondly, my consideration of the likelihood of whether Mr Way’s account of how he joined the syndicate is correct (being the matter referred to previously) has already caused me to doubt Mr Way’s account of what occurred on this occasion.

137. This conclusion is relevant in two related ways. First, it bolsters my conclusion that Mr Bowling’s account of how Mr Way joined the syndicate is more reliable than Mr Way’s account. It also inclines me to accept that Mr Bowling’s account of how Mr Way left the syndicate is reliable. It makes more sense that Mr Way would raise a difficulty about playing with a “dead person’s numbers” when leaving the syndicate (which had been playing with those numbers) than when joining it, when he was clearly otherwise willing to play with those same numbers.

138. Mr Way argued that the evidence of what Mr Bowling said in his calls with NSW Lotteries involved an admission by him that the syndicate consisted of more than just him and Ms Posar.

139. I cannot accept that submission. Mr Bowling’s statements to NSW Lotteries line up with his other evidence as to what was happening at relevant times. When he first spoke with them on 14 August, he referred to having won the Lotto himself. This was natural enough. He held the ticket. It was not suggested that he had any designs to cut Ms Posar out of the syndicate. I do not read anything into the fact that he did not refer to the syndicate (or anyone else) in this call.

140. When he spoke to NSW Lotteries the next day, perhaps with a slightly clearer head, he referred to the fact that he had to split the winnings with Ms Posar.

141. It was only in the final call, in September, that he spoke about “others”. But by this stage, he had promised $200,000 to Mr Way. I would not conclude on the basis of this that he was making an admission that Mr Way continued to be a member of the syndicate. What he said is consistent with his claim that, by this time, Mr Way was pressuring him for the $200,000.

142. Lastly, Mr Way also pointed out that until shortly prior to the hearing, Mr Bowling’s defence had contained a series of sweeping denials as to matters that now appear never to have been in dispute. It was suggested that I should draw conclusions adverse to Mr Bowling’s credit based on the fact that he had sworn an affidavit verifying the defence that contained his denials of so many matters in circumstances where, as it emerged, he did not really deny them at all.

143. There may be cases where it is appropriate to draw adverse inferences against a witness because of a matter such as this, but this is not such a case. I can accept that Mr Bowling should have been more careful about whether the defence was accurate, but I cannot hold him primarily responsible for the manifest shortcomings in the defence. The document was drafted for him by lawyers, who should have known better. I am not in these circumstances prepared to draw adverse conclusions as to Mr Bowling’s credit.

Other evidence

144. In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gleeson CJ, Gummow and Kirby JJ said at [31]-[32]:

“It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The “Palitana”):

‘… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour’

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”

145. My consideration of the testimony of the witnesses causes me to somewhat favour Mr Bowling’s evidence to that of Mr Way. However, for the reasons explained in Fox v Percy, I am not willing to reach a final conclusion as to which of them is to be believed based only on matters such as this.

146. A far more reliable indication emerges from a consideration of more objectively reliable matters. In particular, when the diaries are considered in the context of the evidence as a whole, I am left in no doubt that the entries purporting to record the payment of $20 to Mr Bowling on a regular fortnightly basis in the period from 8 July 2021 to 18 August 2022 are not reliable. My reasons for this conclusion are as follows.

147. First, from 8 July 2021 the diaries do not accurately accord with facts that are otherwise ascertainable. As I have already explained, there are some quite serious anomalies in the diary entries during this period. According to the diaries: Mr Way was paying Mr Bowling the sum of $20 at a time when, if he were a member of the syndicate, his contribution would have been $15 (even though Mr Bowling had clearly been honest with Mr Way about changes to prices in the past); Mr Bowling was taking small winnings but not telling Mr Way about them (contrary to his earlier practice); Mr Way was paying for tickets on days he did not receive his pension (which, though hardly decisive in and of itself, is noteworthy in the context of the other anomalies); Mr Way paid $20 for the lottery on both 11 and 18 August 2022 (which would have been completely out of the ordinary for this syndicate because Mr Bowling only ever purchased syndicate tickets fortnightly); and, relatedly, Mr Bowling took $20 from Mr Way for the syndicate on 18 August even though, by this time, Mr Bowling knew the syndicate had already won over $5,000,000.

148. Mr Way’s explanation for all of these anomalies was the same, namely that Mr Bowling was generally dishonest. But the argument that he was generally dishonest was, essentially, based on little more than the proposition that he (Mr Bowling) generally contradicted Mr Way’s account, which was corroborated by a diary. This process of reasoning was not of particular assistance in resolving the issues in dispute.

149. Counsel for Mr Way made a number of submissions concerning the fact that, as I already noted above at [33], Mr Bowling would use money from the punters’ club that he ran to lend to Mr Way from time to time. This, according to Mr Way, was evidence that Mr Bowling was dishonest and had no inhibition when it came to dealing with other peoples’ money. In response to questions about this Mr Bowling admitted that he did sometimes use the funds pooled for the punters’ club to service Mr Way’s requests but that he was diligent about making sure the funds were reconciled before the end of the year when the pooled funds were distributed amongst the members. Mr Bowling also gave evidence that he kept a book recording the contributions and winnings of the club. Mr Bowling’s explanation for using the punters’ club funds to loan to Mr Way was that it was readily available cash and that it meant Mr Bowling did not have to go to the bank every time Mr Way asked for money, which was not infrequent.

150. I do not accept Mr Way’s submission that Mr Bowling’s dealings with the punters’ club funds tends to suggest he is dishonest and irresponsible with other peoples’ money. He was careful to make sure that all of the funds added up by the end of the year and he could do so with reference to his books. He trusted Mr Way to repay the loans, which Mr Way did. In truth, these transactions were informal arrangements between friends and neighbours, not high level banking.

151. A consideration of the evidence generally inclines me to the view that Mr Bowling was generally reliable. On any view of the evidence, he did account to syndicate members for small winnings prior to July 2021 and he did tell syndicate members when the price of tickets changed, just as he said. I have already explained why, in some respects, I have preferred his evidence as to some of the discussions he had with Mr Way about critical matters.

152. In my view, the reason the diaries suggest such a divergence from Mr Bowling’s previous practice is that, from 8 July 2021, the entries do not reliably record the dealings between Mr Way and Mr Bowling in relation to the purchase of lottery tickets.

153. Further, it is important to notice that the parties were living in close proximity during the whole of the relevant period and that after the fight about young Barry, the relationship between Mr Way, on the one hand, and the defendants, on the other, returned to an even keel. They continued to socialise. They were in and out of one another’s houses. They continued to cook meals and share them with one another and other neighbours. Mr Way’s diaries record numerous references to Mr Bowling in this period, including references to borrowing money from him and repaying it, borrowing money for beer, drinking or borrowing six-packs of beer and so on. Even on Mr Way’s account they were perfectly sociable even after the Lotto win.

154. These aspects of their relationship are very difficult to reconcile with Mr Way’s case theory, namely that Mr Bowling was being deeply dishonest with Mr Way about the lottery syndicate even before the win. This is especially so when it is remembered that Mr Way’s own diaries demonstrate that Mr Bowling had been honest about the syndicate previously. Mr Way’s case would require me to find that Mr Bowling set out on a course of dishonest dealing long before the win in August 2022 and that he carried on with this deception while otherwise interacting and socialising with Mr Way in his customary manner. This strikes me as a most unlikely thing to have occurred. What was to be gained by systematically cheating his neighbour and friend out of $5 per fortnight for the lottery syndicate ($5 being the difference between the $20 which Mr Way claims to have been paying and the amount he should have been paying if he really was still a member of the syndicate)? Not much. On the other hand, Mr Bowling’s case requires me to find that Mr Way dishonestly recreated diary entries, but only once he learned that there was about $1,500,000 to be gained by doing so. This is an inherently more plausible theory. The numerous discrepancies between the diary entries and the otherwise verifiable facts make it all the more compelling.

Conclusions

155. I am therefore not persuaded that the entries in Mr Way’s diaries purporting to record the payment of $20 to Mr Bowling between July 2021 and August 2022 are reliable. I am persuaded to a relatively high level of certainty that those entries were not made contemporaneously.

156. That being so, I am unable to accept Mr Way’s evidence that he contributed to the purchase of the winning ticket. I am not persuaded that he did so. I find that he ceased contributing to the syndicate after the altercation about young Barry in September 2021. At some point around that time, he said that he did not want to play with a “dead person’s numbers”. By August 2022 the only members of the syndicate were Mr Bowling and Ms Posar. These conclusions mean that I am unable to accept Mr Way’s account of his contributions to the syndicate in the period preceding the win, and of his dealings with Mr Bowling in relation to the win. Given that the diary has been shown to be unreliable in those respects, I am unwilling to treat as reliable Mr Way’s other evidence about those matters.

157. Mr Way put his case in different ways. On the conclusions I have reached, his case fails on all of them.

158. So far as the law of contract is concerned, I do not accept Mr Way’s contention that the terms of their contract did not require Mr Way to contribute funds to the purchase of each ticket. There is simply no factual basis on which to make such a conclusion. I find that any contract which may have existed was subject to a condition that each syndicate member was required to continue to contribute, either from cash or else from winnings on tickets to which they had contributed. In circumstances where, as I have found, Mr Way ceased contributing to the syndicate in 2021, the defendants did not breach the contract by failing to share their winnings with him. By that stage, their contract was no longer on foot because Mr Way had long since failed to meet the condition that he continue to contribute.

159. So far as the law of trust is concerned, I find that there was no relationship of trustee and beneficiary as between Mr Bowling and Mr Way in August 2022. Mr Way had long since stopped contributing to the syndicate and no part of the funds used by Mr Bowling to purchase the winning ticket were referable to contributions made by, or minor winnings owing to, Mr Way as a member of the syndicate. Their arrangement had come to an end.

160. Next, I reject the plaintiff’s contention that there was a “common intention constructive trust” that came into existence here. There is no room for the operation of the principles explained in Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 or Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 in circumstances where, as I have found, the plaintiff did not contribute to the winning ticket and there was no common intention for any sort of legal relationship to persist beyond the ceasing of contributions: see also Brendan Wilfred King v Robert Lawrence Adams [2016] NSWSC 1798 [357]-[361] (Sackar J).

161. Lastly, the parties were not in partnership. They were not carrying on a business in common with a view of profit at any stage: Partnership Act 1892 (NSW), s 1.

Orders

162. The proceedings will be dismissed with costs. It will be necessary to make orders for the funds in Court to be paid out, however I will give the parties an opportunity to bring in short minutes of order to facilitate that payment.

163. The orders will therefore be:

1. Proceedings dismissed with costs.

2. Parties to bring in short minutes of order by 4:00PM on Friday, 23 August 2024, dealing with the payment of funds out of Court.

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Decision last updated: 16 August 2024