Yu v Lu

Case •

[2025] NSWDC 51

•

25 February 2025

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Yu v Lu [2025] NSWDC 51
Hearing dates: 12, 13, 14 and 21 June (written submissions) and 9 July 2024 (written submissions)
Date of orders: 25 February 2025
Decision date: 25 February 2025
Jurisdiction:Civil
Before: Andronos SC DCJ
Decision:

(1)   Judgment for the defendant against the plaintiff.

(2)   Direct the parties to liaise as to appropriate costs orders. In the event that the parties have not reached agreement on orders with respect to costs, and notified my Associate of such agreement by 5pm on 11 March 2025, list the question of costs for hearing on Friday, 28 March 2025 at 10am before Andronos SC DCJ.

Catchwords:

PERSONAL PROPERTY – Gifts – Father to daughter - Intention to make gift – Intention to accept gift – Whether positive act established by transfer of moneys – Where transfer of moneys precedes intention to make gift

CONTRACTS — Estoppel — Promissory estoppel – Reliance - Detriment

Legislation Cited:

Limitations Act 1969 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Commonwealth of Australia v Clark [1994] 2 VR 333

Fox v Percy (2003) 214 CLR 118

Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407

Helton v Allen (1940) 63 CLR 691

Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519

In Re Charge Card Services Ltd [1987] Ch 150

Jukka Pekka Kemi v Peter Hedley Wood [2013] NSWSC 180

Leary v FCT (1990) 32 ALR 221

Legione v Hateley (1983) 152 CLR 406

Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964

Maxwell v Maxwell [2022] NSWSC 1028

Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106

Moratic Pty Ltd v Gordon [2007] NSWSC 5; (2007) NSW ConvR 56-172

Nolan v Nolan (2003) 10 VR 627; [2003] VSC 121

Oliveri Legal Pty Ltd (t/as Oliveri Lawyers) v Cassegrain Tea Tree Oil Pty Ltd [2024] NSWCA 74

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403

Pacific Brands Sport & Leisure v Underworks Pty Ltd (2006) 149 FCR 395

Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3

Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Category:Principal judgment
Parties: Wei Shin Yu (plaintiff)
Lingsi Lindsay Lu (defendant)
Representation:

Counsel:
Mr G M McGrath (plaintiff)
Mr I Chatterjee (defendant)

Solicitors:
CFS Legal (plaintiff)
Lighthouse Law Group (defendant)
File Number(s): 2023/00082526
Publication restriction: Nil

JUDGMENT

  1. The plaintiff, Wei Shin Yu, and defendant, Lingsi Lindsay Lu, are father and daughter. In three tranches in July and December 2014, the plaintiff transferred to the defendant the sum of $165,200. Some $5,000 of the total sum transferred was transferred by the defendant back to the plaintiff in 2020. The balance of $160,200 is the subject of the present claim.

  2. The plaintiff contends that, at all times, the moneys have been properly characterised as a loan, and the plaintiff is entitled to recover them on demand.

  3. The defendant denies the plaintiff is entitled to recover any funds from her. She concedes that the moneys were lent to her on the dates of transfer, however, she says there are two bases on which the plaintiff is precluded from recovering them.

  4. First, the defendant alleges that the plaintiff is estopped, by reason of a representation made by him to her on 13 June 2015, that the moneys were a gift and that he did not require repayment. The defendant says that she acted in reliance on that representation and that she would suffer detriment if the plaintiff were permitted to resile from it, such that he is estopped from insisting on any right to repayment.

  5. Alternatively, the defendant says the plaintiff gifted the moneys to her by reason of his formulation of, and expression of, an intention to gift those moneys to her in circumstances where he had already performed the requisite physical act in transferring those moneys to her in 2014. Accordingly, she says, he had put those moneys beyond the reach of any recovery action when he subsequently changed his mind and demanded repayment.

  6. At the commencement of the hearing, the defendant sought leave to amend her Amended Defence to plead a defence under the Limitations Act 1969 (NSW). By her counsel, however, she indicated that she would not press the amendment application if it were a condition of the grant of leave that the proceedings be adjourned at her cost. The plaintiff opposed the amendment application and, after hearing argument, I found that the plaintiff would be prejudiced by the proposed amendment if he were deprived of the opportunity to assemble further material in response, both by way of evidence and additional pleading.

  7. In separate oral reasons, I determined not to grant the defendant leave to amend, on the terms sought by her, and the hearing proceeded on the existing pleadings.

  8. The starting point, therefore, is the parties’ agreed position that, when the plaintiff advanced the moneys to the defendant, he did so on the basis that it was an interest free loan and was repayable on demand.

  9. The issues before the Court were:

  1. Whether, on 13 June 2015, the plaintiff represented to the defendant that she did not need to repay the moneys to him because they were henceforth to be treated as a gift or whether he represented only that he would forego the payment of any interest on the moneys.

  2. If the plaintiff represented to the defendant that she did not need to repay the moneys because they were henceforth to be treated as a gift:

  1. was that effective to gift the moneys to the defendant; or

  2. alternatively, are the elements of an estoppel by representation made out.

  1. In the circumstances, is the defendant entitled to contend, in accordance with sub-paragraph (2)(a) above, that the moneys were gifted to her, in the absence of a pleading to the effect that the moneys, which had been lent to her, only took on the character of a gift in June 2015.

  1. For reasons which follow, I have found for the defendant on the factual question at paragraph 9(1) above. I consider that the defendant has established that the plaintiff did make the representation on 13 June 2015 in the terms alleged by her. I accept that the evidence, on which the defendant relies, establishes that the plaintiff clearly and unequivocally represented to her that he intended the moneys he had transferred to her the previous year were henceforth to be treated as a gift.

  2. Addressing the estoppel claim first, I have also found that the defendant acted reasonably in reliance on that representation when she bought a house in Croydon in March 2021. The evidence, however, does not support a finding that she has suffered detriment, either in her reliance on the representation, nor that she would suffer detriment if the plaintiff were permitted to resile from the representation.

  3. As to the allegation of gift, I am satisfied that each of the elements necessary to establish that the plaintiff gifted the money to the defendant has been satisfied. In the circumstances, she is entitled to rely on that contention by way of defence.

  4. Accordingly, the plaintiff has not succeeded on his claim.

Evidence

  1. The plaintiff relies on affidavits sworn by him on 16 October 2023 and 13 March 2024, together with the documents exhibited thereto.

  2. The defendant relies on an affidavit sworn by her on 29 November 2023, together with its exhibits, and an affidavit sworn by her brother (the plaintiff’s son), Kenneth Yu, on 5 December 2023. Each of the plaintiff, the defendant and Kenneth were cross-examined.

  3. Each party made submissions as to the credit of the other, inviting me to disbelieve crucial elements of their evidence. The plaintiff also attacked the reliability of Kenneth’s recollection of the critical conversation, which occurred at his own wedding in London on 13 June 2015.

  4. Where a fact is in issue, the party bearing the burden of proof must demonstrate that the circumstances raise a more probable inference in favour of the fact alleged: Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125. The process of fact finding should be informed, as far as possible, on the basis of contemporary materials, objectively established, and the apparent logic of events: Fox v Percy (2003) 214 CLR 118 at [30]-[31]. Where proof of a fact is required:

“the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality”: Helton v Allen (1940) 63 CLR 691 at 712; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.

  1. All evidence must be submitted to rational analysis, including with respect to the drawing of inferences, having regard to the whole of the evidence and the conduct of the trial: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 at [63], [94], [149] and [155].

  2. In Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964, Kunc J enumerated a number of principles to be applied in approaching the task of fact finding where credit is a significant issue. I have extracted below the passages from his Honour’s judgment most relevant to this matter:

“[464].   First, at the forefront of the Court’s approach has been the oft cited statement of McClelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 318-319:

… [H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court ‘must feel an actual persuasion of its occurrence or existence’. Such satisfaction is ‘not … attained or established independently of the nature and consequence of the fact or facts to be proved’ including the ‘seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’: Helton v Allen (1940) 63 CLR 691 at 712.

[465]. Second, the concept of actual persuasion was elucidated by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56:

…

When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2).

…

[467]. Fourth, evidence is to be preferred which is inherently probable in the circumstances or is given by a witness against their interest.

…

[469]. Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness’ evidence in its entirety…

[470]. Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings:

155    There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.

156    Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44].

[471]. Eighth, disbelieving a witness that ‘X’ was the case does not mean that ‘not X’ has been proven…

…

[473]. Tenth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced…”

  1. In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, Lord Pearce discussed the credibility of honest witnesses at 431:

“… though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. … And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

  1. In the present case, in light of the concessions made by the defendant, the key factual issues are matters on which the defendant bears the onus of proof.

Background

  1. The plaintiff (born 1948) is a man of considerable accomplishment, having obtained doctoral degrees in Mechanical Engineering from the University of Canterbury in New Zealand and in Medicine from the University of New South Wales. The plaintiff’s studies in medicine were prompted by a desire to help his son, Kenneth, who suffered serious head injuries in an assault in 2003.

  2. The plaintiff and his first wife, Ms Kim Ying, moved from New Zealand to Sydney in about 1978, when he took up a mechanical engineering position with QANTAS, where he remained for six years.

  3. In 1984, the plaintiff moved with his family to Singapore, where he took up an appointment at Nanyang Technological University, eventually being appointed an Associate Professor.

  4. The defendant is also highly accomplished, having trained as a graphic artist and obtained a Master’s degree in Fine Arts. Although highly qualified, she does not work in a highly remunerative profession.

  5. The defendant is the youngest of three children of the plaintiff’s first marriage to Ms Ying, having been born in Singapore in 1987. The plaintiff and Ms Ying also are parents to Denise (born 1977) and Kenneth (born 1980). The plaintiff and Ms Ying separated in 1994 or 1995, but were not divorced until 2004.

  6. On their separation in 1994, Ms Ying returned with the defendant to Sydney, Denise and Kenneth also coming back to Sydney in accordance with their schooling commitments. The correspondence between the parties suggests some residual ill will between the plaintiff and his ex-wife and lingering issues between the plaintiff and the defendant about the extent to which he was an active participant in her life as she grew up. Although I refer to some of the allegations in the correspondence in this regard, I make no findings about the quality of the parties’ father-daughter relationship.

  7. The plaintiff returned to Sydney in 2003, where he took up further study and research at the University of Sydney. He eventually enrolled in a PhD in medicine at the University of NSW in 2006. He had no income, essentially until 2010, when he returned to Singapore, whereupon he undertook a large clinical trial of hip protection pads, and for which he was paid $200,000.

  8. The plaintiff alleges that he gave the defendant $50,000 by way of cheque in 2005 to compensate her for not sending her to a private school, a privilege which had been afforded to her sister and brother. This was not corroborated by any bank records available to the Court. The defendant, while not denying that such a payment might have been made, does not recall ever having received such a large sum from the plaintiff. Kenneth was not aware of any such payment.

  9. To the extent that it is necessary to make any finding at all about the alleged payment, I am not satisfied on the evidence that the plaintiff has established that he made it. In any event, I do not consider whether or not that payment was made to have any impact on my determination of the factual question of whether the plaintiff said the words attributed to him by the defendant and by Kenneth on 13 June 2015.

  10. In 2011, the plaintiff returned to Sydney and remarried. His second wife, Sabrina, was studying nursing full time at the University of Technology Sydney. They lived off savings and had no income until 2014, when the plaintiff was appointed a visiting consultant at Ngee Ann Polytechnic in Singapore, whereupon he was paid a salary of SGD$7,000 per month. The plaintiff and Sabrina have a son, born in 2016.

  11. In the meantime, the defendant completed her studies in Fine Arts, receiving the degree of Master in or before 2014. She took up a position as a graphic designer with Harvey Norman.

  12. In October 2013, the defendant bought an apartment in Eastbourne Road, Homebush West for $570,000. Part of the purchase price was funded by a home loan from St George Bank in the sum of $350,000, secured by mortgage, and in respect of which she paid monthly interest to the Bank.

  13. The plaintiff has lived in various cities, being Sydney, Singapore and, from 2017, Guangzhou in China. He was still living in China at the time of the COVID-19 lockdowns in 2021. The defendant lived in Sydney for the whole of the period in question, other than a few months spent with Kenneth in London in 2014.

The transfer of moneys in 2014

  1. It is common ground that the plaintiff transferred the sum of $165,200 to the defendant in three tranches in July and December 2014. The first, in the sum of $200 on about 12 July 2014, was a test transfer to make sure that the transfer details were correct. As the details were correct, a substantive transfer of $150,000 was made on 16 July 2014. A further sum of $15,000 was transferred in December 2014.

  2. It is also common ground that the transfer of moneys was intended by both parties to enable the defendant to reduce her interest payments to St George Bank as the moneys would, at least initially, be deposited into an offset account, effectively reducing the principal on which interest was calculated. According to her bank statements, over the period from December 2014 to June 2015, the benefit to the defendant of the offset was $3,670.20. The bank statements indicate that the moneys were retained in the offset account as at June 2015.

  3. It is not disputed that, at the time of the initial advances, both parties understood that the moneys were to be repaid. Further, the defendant accepts that the moneys were, at that time, repayable on demand. At the time, the plaintiff considered buying a shop in which his other children and wife, Sabrina, would have an interest.

  4. There is no evidence that the parties ever discussed the payment of interest by the defendant to the plaintiff. On the plaintiff’s own account of the parties’ conversations in 2014, he says that he did not mention the defendant paying any interest.

The conversation of 13 June 2015

  1. By 2014, Kenneth had moved to London, where he still lives. Both the plaintiff and defendant travelled to London in June 2015 for Kenneth’s wedding. The plaintiff, defendant and Kenneth all agree that the moneys advanced by the plaintiff to the defendant were discussed on that occasion.

  2. According to the defendant, a conversation took place on a grassy area at the front of the church in the following terms:

Defendant:

“In regards to the loan, how would you like me to repay you? Would you prefer monthly instalments or the full amount by a certain date?”

Plaintiff:

“Don’t worry about paying me back. It’s a gift.”

Defendant:

“Are you sure? That’s a lot of money!”

Plaintiff:

“It’s a gift.”

  1. This account was broadly corroborated by Kenneth, who was present during the conversation and who agreed with the defendant as to the conversation’s timing and location. Denise, who was not called by either party to give evidence, also appears to have been close by. Kenneth’s account of the conversation was:

Plaintiff:

“How successful you all are! My children are all homeowners.”

Defendant:

“Nooooooo I owe you lots of money!”

The plaintiff laughed and then continued:

“Don’t worry about it! It’s a gift!”

Defendant:

“Whaaaaaat?! Ohhhh ….. THANK YOU!”

  1. The plaintiff denied these accounts. His own account was significantly different. For his part, in his affidavit of 13 March 2024, the plaintiff deposed that his recollection of the conversation was:

Defendant:

“About the money. Do you need it back yet?”

Plaintiff:

“No, not yet.”

Defendant:

“Do I need to pay you any interest?”

Plaintiff:

“No. That’s a gift.”

  1. The plaintiff said that the conversation, in the above terms, occurred later that same day, at the wedding reception, under a marquee in another park some distance away.

  2. In considering which account of the 13 June 2015 conversation to accept, I have paid close regard to the affidavit and oral evidence of the parties and of Kenneth, and I have taken into account the context and the subsequent course of events and communications between the parties.

  3. Counsel for the plaintiff directed considerable effort in cross-examination to establishing that the conversation could not have been as the defendant and Kenneth recalled it because, it was suggested, there was no grassy area in front of the church where they agreed it had occurred. This attack on their recollection failed once it was established that the church was across the road from Brook Green, a park in Hammersmith.

  4. To the extent the plaintiff pressed a Jones v Dunkel submission concerning Denise (the defendant’s sister and the plaintiff’s daughter), I reject that submission. There was nothing in the evidence to suggest that Denise was in her sister’s camp and not her father’s nor that she might be expected to shed any light on the factual question. In any event, the plaintiff’s counsel in his cross-examination of the defendant established, through hearsay, that Denise did not recall the conversation. There is no reason not to accept the defendant’s evidence in this regard. The absence of Denise has no impact on my determination of the factual questions in issue.

  5. The plaintiff launched a strenuous attack on the credit of the defendant. In cross-examination, the defendant conceded that allegations in the Defence and Amended Defence, verified by her on affidavit, denying that the moneys had ever been provided to her by way of loan, were untrue. Pressed to concede that they were lies, she did so.

  6. The verification of allegations in a pleading is a serious and important part of the civil procedure in this State and is a step which is all too often treated with indifference by parties and their legal advisors. Verifying a pleading without having any genuine belief in the allegations therein is a practice to be deprecated.

  7. Nevertheless, I do not regard the verification of the pleading as fatal to the defendant’s credit. She did not press those allegations in her affidavit evidence or in her oral evidence before me. The fact that she admitted that those allegations were untrue without seeking to divert blame to her legal advisors (as is so often the case) indicates a preparedness to accept responsibility for her actions and an intention to be frank with the Court. Even if I were to accept her concession that the verification of the pleadings was properly to be characterised as a lie, as noted by Kunc J in Saravinovksa, a lie about one matter does not destroy a witness’s credit with respect to the whole of her evidence. This is even more so where the oral and affidavit evidence before me did not seek, at any stage, to press a claim that the moneys had only ever been advanced by way of gift.

  8. The plaintiff also attacked the reliability of Kenneth’s evidence, contending that his memory of the events could not be relied upon because he had suffered a serious brain injury in 2003, which impaired his memory. It might be noted that there was no evidence to support the allegation of any impairment, which was strongly denied by Kenneth in cross-examination.

  9. The defendant’s account of the 13 June 2015 conversation was corroborated by Kenneth, whose evidence alone would have been sufficient to establish the conversation in those terms. The challenge to his credit failed. Not only was it not established that he was labouring under any memory impairment, but he was able to recall detail as to the location of the conversation and the plaintiff’s distinct manner of speaking on that occasion, which had lodged in his memory. I found his evidence to be completely reliable.

  10. I prefer the account of the defendant and Kenneth to that of the plaintiff. I consider the subsequent communications between the parties below at paragraphs 56 to 61. In my view, those communications support a finding that the plaintiff’s account is a reconstruction in circumstances where he had professed to have had no real memory of the conversation when it was initially raised with him. I doubt that any such recollection would have genuinely returned to him over the following year and a half, when his account changed from having no recollection of the conversation at all, to recalling it, in detail, as making a fine distinction between not gifting the moneys but gifting the interest that would accrue thereon.

  11. Further, it was only when the plaintiff became aware that Kenneth was giving evidence that he, for the first time, recorded a version of events in which he drew that fine distinction. This recollection hardened over time, such that in his 13 March 2024 affidavit, he put forward a version of the conversation that he had, by then, convinced himself was true. In my view, that version was entirely a reconstruction seen through the lens of his own self-interest. I do not make any finding that it was dishonest. But I do not accept it as reliable.

  12. Further, the plaintiff’s account is implausible in light of the fact that no interest had ever been discussed, let alone agreed, in respect of the moneys. There was nothing in the evidence that would make any sense of the defendant raising the question of interest in the manner alleged. Conversely, a discussion of a repayment plan, as deposed to by the defendant, comports with the email traffic around the time of the original transfer. The plaintiff had indicated in mid-2014 that he could advance the money for a year. In mid-2015, at about the time he could be expected to call for the return of the money, the defendant asked him about arrangements to do so.

  13. In the circumstances, therefore, I prefer the defendant’s evidence as to the conversation of 13 June 2015 to that of the plaintiff.

Subsequent communications between the parties

  1. The plaintiff had experienced some financial difficulty in 2020, when he was caught in China during the first COVID-19 lockdown. He had no income at the time. Ultimately, the defendant caused $5,000 to be transferred to him from the St George offset account, with Denise acting as an intermediary, to assist him financially through this period. At the time, the plaintiff wrongly believed a further sum of over $50,000 had also been transferred from the offset account when it had, in fact, been transferred by Denise from another source.

  2. The evidence does not demonstrate that the transfer by the defendant to the plaintiff, at this time, was ever understood by her to be repayment of any loan. From her point of view, it was simply the transfer of funds from one family member to another in a time of need. This is also how it appears objectively.

  3. On 7 October 2022, the plaintiff sent an email to Denise, copied to the defendant, in which he sought to calculate the amount remaining in the offset account, which he described as “my money” left in the defendant’s account. On 9 October 2022, the defendant responded, gratefully acknowledging the financial help her father had provided. She thought there had been a misunderstanding, and referred to the conversation at Kenneth’s wedding when she asked the plaintiff when he wanted the money returned and that he responded that, “[i]t was a gift not a loan”. She went on to say that she no longer had access to the money that he was now asking for as she had invested again, with Denise’s help. She was slowly repaying the debt to Denise and could neither repay the money nor lend the plaintiff any money. She went on to say:

“If you hadn’t told me that it was a gift, I would have made different financial decisions in the last few years, but my understanding was that you didn’t have any expectation that the money would be returned to you.”

  1. The plaintiff responded by email that same day, saying, “I can’t remember you ever asked me at Ken’s wedding, and if you did, why would I say it was a gift??? That’s all the money I have left!!! You must be kidding”. He then asked what the investment was that was tying up the defendant’s money.

  2. The defendant took a few days to respond, during which the plaintiff grew agitated and angry. When she responded on 16 October 2022, she said that she had wished to spend time thinking about the whole situation and did not wish to reply in haste. She repeated her account of the conversation at Kenneth’s wedding and added that she had been touched, and that she had understood that the plaintiff was attempting to make up for being an absent father. She did not feel obligated to return the money “considering how you have acted toward our family”.

  3. The plaintiff reacted angrily later that day. In his email to the defendant, he defended his conduct and denied the defendant’s version of events. He strongly objected to the suggestion that he had not treated his family well. His tone was angry and became menacing when he threatened proceedings, suggesting that the defendant could lose her job as a result. Having said on 9 October 2022 that he did not need the money for the time being, on 7 November 2022 he sent an email asking how soon the defendant could “pay [him] back the money”.

  4. The plaintiff commenced the present proceedings on 13 March 2023.

Whether the defendant acted in reliance on the 13 June 2015 representation

  1. The defendant’s evidence that she acted in reliance on the 13 June 2015 representation was that, in March 2021, she purchased a property in Croydon, where she still lives. To purchase that property, the defendant took out a bank loan of $620,000 and borrowed money from various family members. The $165,200 provided to her by the plaintiff, $160,200 of which she still retained at that point, made it possible for her to purchase the Croydon property because if she had been required to repay it, she would not have had sufficient funds to purchase the property. I accept this evidence, which accords with the other evidence and the probabilities.

  2. The defendant was working in a profession that was not highly remunerative and aspired to home ownership. Indeed, home ownership was regarded as a particularly praiseworthy objective by the plaintiff as well, as indicated by the terms of the 13 June 2015 conversation. I accept that she relied on the assumption that she had been gifted the moneys in calculating how much she could spend on the Croydon property.

Legal characterisation

  1. The plaintiff contends that the relationship between the parties is governed wholly by the law of contract. His case is straightforward in that he contends a legally binding agreement was reached in July 2014, pursuant to which he advanced $165,200 to the defendant for the purpose of reducing her mortgage interest. He says that it was a term of the contract that the transferred money was to be repaid on demand.

  2. As a matter of convenience, I will first address the defence of gift.

  3. The defendant concedes that when the moneys were advanced in 2014, they had the character of loan moneys and were repayable on demand. She contends, however, that the 13 June 2015 conversation changed the true characterisation of those moneys by completing the requirements for the moneys to be treated as a gift. Accordingly, title to, or the beneficial interest in, the moneys passed from the plaintiff to the defendant, such that it was no longer within his power to call for their return to him.

  4. In the alternative, the defendant says the plaintiff is estopped from resiling from his representation that he had made a gift of the moneys to the defendant, as she reasonably relied on that representation, to her detriment, such that it would be unconscionable for him to be permitted now to resile from that representation.

Gift

  1. A “gift” is the gratuitous transfer of property from one person to another in which there is an intention to transfer, an act (such as physical delivery) which gives effect to that intention, no obligation on the donor to make the transfer and no return to the donor of material advantage: Leary v FCT (1990) 32 ALR 221. In Maxwell v Maxwell [2022] NSWSC 1028, Ward P set out the essential elements of a valid inter vivos gift of a chattel by reference to those elements articulated by Dodds-Streeton J in Nolan v Nolan (2003) 10 VR 627; [2003] VSC 121. At [180], her Honour said:

“In Nolan v Nolan (2003) 10 VR 627; [2003] VSC 121 (Nolan v Nolan), Dodds-Streeton J (there considering a claim against the estate of the late artist Sidney Nolan) said (at [131]) that, in the absence of a deed of gift or declaration of trust, the essential elements of a valid inter vivos gift of a chattel are: intention on the part of the donor to make a gift (usually expressed by words of present gift); intention on the part of the donee to accept the gift; and delivery. (In Re Evans [1946] St R Qd 20, reference was made only to the first and third of those requirements at [11] per Mansfield J.) Thus, Jamila bears the onus of proving ‘the existence of a present, unequivocal donative intention, attended by the requisite certainty as to the object, extent, and whether the gift would take immediate effect’ (see Nolan v Nolan at [140] per Dodds-Streeton J), as well as her acceptance of the gift and delivery in the requisite sense.”

  1. Her Honour went on to consider at [181] that donative intention is characteristically accompanied by words of gift which evince the intention and delineate the object and extent of the intended benefaction, as per Dodds-Streeton J in Nolan. Insofar as certainty as to the object and extent of the gift, as I read her Honour, this is typically by delivery in the case of a chattel. Delivery, however, may be constructive. Moreover, it need not be made at the time of gift but may occur prior to or subsequent to the words of gift: at [205].

  2. The present case does not involve the gift of a chattel. To the extent that the plaintiff contends that Ward P was stating that there cannot be any gift without physical delivery of a chattel, I do not accept that submission.

  3. Nevertheless, there must still be an act which gives effect to that intention. There is no reason in principle why the electronic transfer of money cannot be such an act.

  4. The question remains, however, whether the character of a transaction, agreed to be a loan, can subsequently be altered to make it into a gift.

  5. In Jukka Pekka Kemi v Peter Hedley Wood [2013] NSWSC 180 at [32], Sackar J considered whether it was open to a party, who had advanced money, to alter the legal basis on which it was provided. His Honour considered that, while it was generally not permissible to alter the legal characterisation of an advance by changing its description after it was provided, an exception lies in the case of a loan. His Honour considered that it is open for a lender to re-characterise an advance, to treat it as a gift, by no longer requiring its repayment.

  6. In Horn v GA & RG Horn Pty Ltd [2022] NSWSC 1519, Meek J approved the decision of Sackar, J, stating:

“[1190]  There is a presumption that a parent who provides moneys to a child (including adult children) has advanced the money as a gift: eg Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 .

[1191]  In family or domestic transactions there is always a preliminary issue for the party seeking to challenge a payment as to whether is accompanied by any intention to create or affect legal relations: Voce v Deloraine at [19] –[25] .

[1192]  It is no longer presumed that in domestic transactions the parties do not intend to create legal relations. The modern principle is that the issue is one of onus of proof for the plaintiff, who must prove that there was an intention to create legal relations: Steiner v Strang at [117]; Ermogenous v Greek Orthodox Community (2002) 209 CLR 95 at 105–106; [2002] HCA 8 (joint judgment of Gaudron, McHugh, Hayne and Callinan JJ).

[1193]  A payee cannot, by subsequently describing an advance in language consistent with a loan, alter the status of the advance if it was in fact a gift, although the payee can gift (or forgive) monies that were originally the subject of a loan: see eg Sackar J in Kemi v Wood [2013] NSWSC 180 .

[1194]  Generally, once moneys are gifted they cannot be recalled. As was said in Ogilvie v Littleboy (1897) 13 TLR 399 at 400 (cited by Pembroke J in Ballenden v Bryant (No 2) [2013] NSWSC 454 at [19] ; Ballenden v Bryant [2012] NSWSC 1471 at [22] ):

Gifts cannot be revoked, nor can deeds of gift be set aside, simply because the donors wish they had not made them and would like to have back the property given. Where there is no fraud, no undue influence, no fiduciary relation between donor and donee, no mistake induced by those who derive any benefit by it, a gift, whether by mere delivery or by deed, is binding on the donor.”

  1. On the facts as I have found them, each element necessary to establish that the plaintiff gifted the moneys to the defendant has been established. The transfer of the moneys in July and December 2014 establishes the necessary positive act. There was sufficient certainty as to the object and extent of the gift, being the moneys that had been advanced in July and December 2014. The conversation of 13 June 2015 evinced both the intention of the plaintiff to confer a gift on the defendant and her intention to receive the gift. I consider the moneys transferred by the plaintiff to the defendant to have become a gift from the time of the parties’ conversation on 13 June 2015. None of the parties’ subsequent conduct derogates from this finding.

  2. The plaintiff contended, however, that the taxonomy of gift is inapposite in the present case. He contended that the relationship between the parties, even if the defendant’s account of the 13 June 2015 conversation were accepted, does no more than raise the question of whether there was a release, discharge or waiver of an existing debt owed by the defendant to the plaintiff. He submitted that the initial transfer created a relationship of debtor and creditor, the plaintiff’s property now being a chose in action against the defendant for recovery of the debt. As the plaintiff’s property was now a chose in action, he could not transfer that property to the defendant, who could not have a right of action against herself: In Re Charge Card Services Ltd [1987] Ch 150.

  3. In any event, it was submitted, a release or discharge could only be effected by way of deed or for consideration. In the absence of either, the debt could not be extinguished by the unilateral words of the plaintiff.

  4. While there is some force to the plaintiff’s submission, I ultimately cannot accept it. The authorities are clear that there can be a gift of money where it has already been advanced by a donor to a donee, provided the element of intention is satisfied.

  5. On the facts as I have found them, the elements of the defence are made out. While the parties, as layfolk, might be allowed a certain degree of imprecision in their use of legal concepts, there was no communication between them that would indicate they intended their relationship to be governed by the law of release, discharge or waiver. The plaintiff expressly used the language of gift in the conversation of 13 June 2015, which also formed the basis of the parties’ subsequent communications. The fact that an alternative characterisation might have been available is not sufficient to override the basis on which the parties conducted their communications, which conforms with the basis on which the defendant has chosen to defend these proceedings.

  6. Accordingly, in my view, the defendant has established that the moneys advanced to her by the plaintiff in 2014 were gifted to her on 13 June 2015.

Can the defendant rely on her submissions as to gift?

  1. The plaintiff contends, however, that even if a gift of the moneys could be made out, the defendant is not entitled to rely on the argument as now put because she did not plead her defence in those terms and the parties have not agreed to conduct these proceedings on any basis other than the pleadings.

  2. I do not accept this submission. In my view, the question of whether or not the moneys comprised a gift from the plaintiff to the defendant was always in issue. While the defendant’s pleaded case alleged that the moneys were gifted to her in 2014 – and the defendant abandoned that contention at the commencement of the hearing – the defendant did not concede that there was no gift. Indeed, the factual question of whether the conversation of 13 June 2015 occurred in the terms the defendant alleged (i.e. in the language of gift) was central to her estoppel claim.

  3. While the precise formulation of the defence advanced by the defendant did not emerge until the end of the hearing, it was, therefore, not an entirely new issue. In any event, I made directions allowing the plaintiff to respond to the argument, as put by the defendant, and to the question of whether she should be allowed to maintain that argument at all.

  4. The plaintiff made robust and compelling submissions as to both questions. There was no basis on which I could conclude that the plaintiff was at all prejudiced by the way in which the issues ultimately emerged. In my view, the interests of justice in this case are best served by permitting the defendant to rely on the final formulation of her argument as to gift.

  5. Accordingly, I have determined that question and I have found in the defendant’s favour on it.

Estoppel

  1. In the circumstances, it is not strictly necessary to consider the defendant’s estoppel argument. Nevertheless, for the sake of completeness, I consider it below.

  2. The defendant’s estoppel claim is essentially that she relied on the 13 June 2015 conversation to her detriment and that it would be unconscionable for the plaintiff now to insist on his strict legal right to repayment of the moneys.

  3. The law of estoppel relevantly exists to rectify detriment suffered by a person from relying on a representation by another person where resiling from it would be unconscionable. It may amount to a waiver where the representation contains statements that can clearly and unequivocally be characterised as a waiver of rights: Pacific Brands Sport & Leisure v Underworks Pty Ltd (2006) 149 FCR 395 at [114].

  4. Although the defendant initially approached the question as one of proprietary estoppel, the parties ultimately argued the question on the basis of an estoppel by representation. Even within that formulation, it is not entirely clear whether this case is alleged to be one of common law or equitable estoppel.

  5. With respect to equitable promissory estoppel and common law conventional estoppel, the differences between these estoppels was explained by Brereton J in Moratic Pty Ltd v Gordon [2007] NSWSC 5; (2007) NSW ConvR 56-172 at [29]-[30]:

“In promissory estoppel, as with equitable estoppel generally, equity comes to the relief of a plaintiff who has acted to its detriment on the basis of a fundamental assumption in the adoption of which the defendant has played such a part that it would be unfair or unjust if it were left free to ignore it, on the footing that it would be unconscionable for the defendant to deny the assumption [Grundt v Great Boulder Gold Mines Limited (1937) 59 CLR 641, 675; Thompson v Palmer (1933) 49 CLR 507, 547; Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387, 404 (Mason CJ and Wilson J)]. The unconscionability which attracts the intervention of equity is the defendant’s failure, having induced or acquiesced in the adoption of the assumption or expectation, with knowledge that it would be relied on, to fulfil the assumption or expectation or otherwise to avoid the detriment which that failure would occasion [Waltons v Maher, 423 (Brennan J)].

Although Moratic relied primarily on equitable promissory estoppel, the analogous but distinct doctrine of common law conventional estoppel [MK & JA Roche Pty Limited v Metro Edgley Pty Limited [2005] NSWCA 39, [71]], which precludes either party from denying an assumption which has formed the conventional basis of a relationship between them [Legione v Hateley (1983) 152 CLR 406, 430 (Mason and Deane JJ)], also operates alongside contractual variation and proprietary estoppel in the field of consensual departures from contractual rights, sharing some characteristics with each. The analogies and distinctions between contractual variation and conventional estoppel appear from the observations of Lord Denning MR in Amalgamated Investment and Property Co Limited v Texas Commerce International Bank Limited (in liq) [1982] QB 84, 121, to the effect that if parties to a contract by their course of dealing put a particular interpretation on its terms, on the faith of which each to the knowledge of the other acted and conducted their mutual affairs, they are bound by that interpretation just as much as if they had recorded it as a variation of the contract. With reference to Grundt v Great Boulder Proprietary Gold Mines, his Lordship explained that such parties had by their course of dealing adopted a conventional basis for the governance of their relations and were bound by it – because, having regard to the dealings between the parties, it would be unjust to allow either to insist on the strict interpretation of the original terms. Nor is it necessary that the parties, in adopting their assumption, have adverted to the express terms of the contract. As Lord Denning MR said in Amalgamated Property Co v Texas Bank [at 121]:-

There is no need to inquire whether their particular interpretation is correct or not – or whether they were mistaken or not – or whether they had in mind the original terms or not. Suffice it that they have, by their course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it.”

  1. His Honour also identified in Moratic (supra) the elements of each estoppel, at [32]-[33], as follows:

“In Waterman v Gerling Australia Insurance Company Pty Ltd [2005] NSWSC 1066, 65 NSWLR 300, I compared the elements of these two related estoppels – both are included in the rubric of estoppel in pais [Legione v Hateley, 430 (Mason and Deane JJ)] – so as to reveal their analogies and distinctions in the following terms. In equitable promissory estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of a legal relationship with the defendant; (2) that the defendant has induced or acquiesced in the plaintiff’s adoption of that assumption; (3) that the plaintiff has acted in reliance on its assumption; (4) that the defendant knew or intended that the plaintiff so act; and (5) that it will occasion detriment to the plaintiff if the assumption is not fulfilled [Waltons v Maher, 428-429 (Brennan J)]. In common law conventional estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of its legal relationship with the defendant; (2) that the defendant has adopted the same assumption; (3) that both parties have conducted their relationship on the basis of that mutual assumption; (4) that each party knew or intended that the other act on that basis; and (5) that departure from the assumption will occasion detriment to the plaintiff [Waterman v Gerling, [83], [96]].

The similarities between the two doctrines should not be allowed to mask their differences, which reflect the disparate origins of promissory estoppel and conventional estoppel. Promissory estoppel, a creature of equity, is, typically, focussed on the conscience of the defendant: it operates when the defendant has induced or acquiesced in the adoption by the plaintiff of an assumption that the defendant will not assert its strict legal rights, so to prevent unconscionable (or unconscientious) insistence by the defendant on its strict legal rights. On the other hand, conventional estoppel, a creature of the common law, is focussed on the consensual basis of the parties’ relationship: it operates when both parties have adopted the same assumption as the basis of their relationship, often without appreciating that any departure from the strict legal position is involved, so as to hold both parties to their common understanding.”

  1. The decision of Brereton J in Moratic (supra) has been cited approvingly by the Court of Appeal on many occasions. See, for example, see Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 at [199]-[200], Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 at [573], and more recently Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106 at [42] and Oliveri Legal Pty Ltd (t/as Oliveri Lawyers) v Cassegrain Tea Tree Oil Pty Ltd [2024] NSWCA 74 at [89].

  2. Where the assumption is based on a representation, that representation must be clear and unequivocal or unambiguous, whether in relation to a present fact or future intention or conduct: Legione v Hateley (1983) 152 CLR 406 at 436-7 per Mason and Deane JJ.

  3. I am satisfied that on 13 June 2015, the plaintiff made an unequivocal representation to the defendant to the effect that the moneys that had been advanced to her in 2014 were to henceforth be treated by her as a gift and that he would not, in the future, claim their return. Whether this is properly characterised as a representation as to a present fact, future rights or future conduct is not presently material.

  4. I am similarly satisfied that the defendant acted in reliance on that representation. I accept her evidence that she would not have considered purchasing the Croydon property, purchased in March 2021, if she had understood that she was required to repay the moneys to the plaintiff.

  5. I am not satisfied, however, that the defendant has established that she has suffered, or will suffer, any detriment if required to repay the balance of $160,200 to the plaintiff. It might, for example, have been expected that such detriment could take the form of financial or other difficulty if an order were made to that effect, however, there was no evidence in this regard.

  6. Similarly, approaching the question from the alternative standpoint that detriment may have been suffered by reason of reliance on the representation, rather than by reason of the plaintiff resiling from it, there was no evidence, other than the email of 9 October 2022, that the defendant suffered any disadvantage in relying on her assumption that the moneys were hers in buying the Croydon property or in taking (or not taking) any other step. That email is not a sufficient basis, in my view, to establish detriment.

  7. As to whether it would be unconscionable for the plaintiff to depart from the assumption, this falls to be determined according to the character of the representation, the reasonableness of the representee’s reliance and the extent of the detriment suffered: Commonwealth of Australia v Clark [1994] 2 VR 333 at 367. It requires more than merely establishing that a promise has been departed from: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.

  8. Ultimately, since I have found that no detriment was suffered by the defendant, the question of unconscionability does not arise.

Disposition

  1. For the above reasons, the plaintiff has been unsuccessful and is not entitled to recover any moneys from the defendant.

  2. The defendant, having been successful, would ordinarily be entitled to her costs, as assessed or agreed on the ordinary basis. In the event that either party seeks a special costs order, I will give them an opportunity to consider and agree on an order for costs and, if they cannot do so, they will have an opportunity to be heard in that regard.

Orders

  1. The orders of the Court are:

  1. Judgment for the defendant against the plaintiff.

  2. Direct the parties to liaise as to appropriate costs orders. In the event that the parties have not reached agreement on orders with respect to costs, and notified my Associate of such agreement by 5pm on 11 March 2025, list the question of costs for hearing on Friday, 28 March 2025 at 10am before Andronos SC DCJ.

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Decision last updated: 12 March 2025

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Briginshaw v Briginshaw [1938] HCA 34
Briginshaw v Briginshaw [1938] HCA 36
Re Hillsea Pty Ltd [2019] NSWSC 1152