Zirpiadis v Alexiadis - [2012] SADC 89

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ZIRPIADIS v ALEXIADIS
[2012] SADC 89
Judgment of His Honour Judge Millsteed
2 July 2012
RESTITUTION
Action for recovery of moneys by plaintiff to the defendant - dispute as to purposes for which moneys were advanced - dispute as to whether moneys were repaid as asserted by defendant - held that moneys were advanced for purposes different to those alleged by the parties - held that defendant was obliged to repay the moneys - held that defendant had failed to repay moneys - held that moneys were recoverable as money had and received.
Walton v The Queen (1989) 166 CLR 283; Young v Queensland Trustees Limited (1956) 99 CLR 560; R v Russell [1933] VR 59; R v Phan (2001) 53 NSWLR 480; Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221 at 256-257; R v Giorgianni (1985) 156 CLR 473; Australia and New Zealand Banking Group Limited v Westpac Banking Corporation (19898) 164 CLR 662; Lloyd v Hayes (1986) 40 SASR 401; Wu v SA Police (SCSA) 9 May 1994, Jud No S4560, unreported; Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221; Equuscorp v Pty Ltd v Haxton (2012) 86 ALJR 296; Roxborough v Rothman's of Pall Mall Australia Ltd (2001) 208 CLR 516, considered.

ZIRPIADIS v ALEXIADIS
[2012] SADC 89
INTRODUCTION

The plaintiff, Caralos Zirpiadis, has brought an action against the defendant, Nick Alexiadis, for the recovery of money.
It is the plaintiff’s case that on 22 November 2002 he advanced to the defendant two sums of money comprising a loan of $8,251.99 to enable the defendant to establish a commercial olive grove on his property at Black Hill and $50,000 to be used by the defendant to pay for the plaintiff’s medical treatment. The plaintiff further contends that on 23 December 2003 he gave the defendant another loan in the amount of $37,000 so that he could pay off various debts he had incurred. The plaintiff claims that the defendant failed to use each sum of money for the purposes for which it was advanced and has repaid only $5,000. He now seeks to recover the balance of $90,251.99. The defendant agrees that he received each sum of money but denies that it was advanced for the purposes alleged by the plaintiff and, more significantly, contends that he has repaid all of the moneys.
PROCEEDINGS
On 20 November 2008 the plaintiff by his then solicitors, Richards Commercial Lawyers (Richards), issued a Summons and filed a Statement of Claim (SOC) against the defendant. The plaintiff was represented by Richards during pre-trial proceedings but was unrepresented at trial. On the trial the plaintiff gave evidence and tendered documents.[1] No witnesses were called by him. The defendant, who was represented by Mr G. Dart of counsel, gave evidence and called two witnesses, Ms Marie Tanski and Mr Terry Turner.
[1] In examination-in-chief the plaintiff adopted, with the consent of the defendant’s counsel, the facts asserted in his opening address as part of his evidence: T33.
There is a substantial discrepancy between the plaintiff’s evidence, outlined above, and his pleadings as to the purposes for which he advanced money to the defendant. The SOC asserts that the entire $90,251.99 received by the defendant had been advanced by way of a loan repayable on demand and, in the alternative, that the money was advanced pursuant to an oral partnership agreement between the plaintiff and the defendant to establish, operate and maintain a commercial olive grove on the defendant’s property at Black Hill.
In relation to the alternative claim, the SOC asserts that the parties agreed (i) that the plaintiff would contribute $90,251.99 (ii) that the defendant would contribute his land at Black Hill (iii) that the defendant would use the plaintiff’s capital contribution to acquire and plant 500 olive trees and install irrigation infrastructure on the land (iv) that both the plaintiff and the defendant would manage the business and (v) that the plaintiff could live rent free in a homestead on the property. The SOC further asserts that the defendant defaulted under the agreement by failing to acquire and plant olive trees and install irrigation infrastructure and by not permitting the plaintiff to occupy the homestead.
Not surprisingly the plaintiff was closely cross-examined in relation to the discrepancy between his evidence and the particulars in his pleadings. He admitted that he had read and approved the SOC before it was filed and failed to proffer any cogent explanation for the discrepancy.[2] In my view, the plaintiff’s pleadings reflect adversely on the veracity of his claim as to the purposes for which he had advanced money to the defendant. I will return to this topic later.
EVIDENCE
[2] T46-52.
Background
The plaintiff is 70 years of age and receives an age pension. He retired from driving taxis in 1999 at which time he resided at 43 Fife Street, Woodville South. He owned his home. The plaintiff and the defendant met a short time before the plaintiff retired and became friends. The defendant also drove taxis and resided with his wife and two children in rental accommodation at 19 Renown Avenue, Tranmere. He owned a house in the same street (7 Renown Avenue) which he rented out.
Black Hill
In May 2002 the defendant purchased a rural property at Black Hill and, in July 2002, was arrested by police for taking part in the production of cannabis on the property.[3] The defendant later pleaded guilty to the cannabis offence and received a suspended sentence of imprisonment.[4] By reason of this offence the Director of Public Prosecutions (SA) (DPP) obtained, on 2 August 2002, a restraining order in the Adelaide Magistrates Court preventing the defendant from dealing in his properties at Black Hill and 7 Renown Ave, Tranmere until further order pursuant to s15 of the Criminal Assets Confiscation Act 1996 (SA).[5] The order lapsed pursuant to an application by the DPP to the Registrar General on 14 September 2005.[6]
[3] An offence under s32(1) of the Controlled Substances Act 1984.
[4]    No evidence was tendered in relation to the dates of conviction and sentence.
[5]    Copy sealed order - Exhibit D9.
[6]    Copy application - Exhibit D8.
The relevance of these facts will be discussed in due course.
The defendant gave evidence about the circumstances of the cannabis offence.[7] No other evidence was put before me as to the nature of his involvement. The defendant said that the cannabis was grown by a mutual friend of the defendant and the plaintiff to whom he was leasing the property. The crop comprised 500 seedlings cultivated hydroponically inside a shed fitted with lights, exhaust fans and irrigation equipment. The size of the crop suggests that it was earmarked for commercial distribution.
[7] T137-140.
The defendant claimed that he did not become aware of the crop until after it had been established. He then knowingly permitted the property to be used for the purpose of cultivating cannabis. He denied that he received or was offered any financial reward for allowing the venture to continue. The defendant suggested that the plaintiff knew about the crop at the time it was being grown.[8] The plaintiff denied any such knowledge and stated that he first became aware of the offence in 2010 during pre-trial proceedings in the present matter.[9] The plaintiff also denied that the defendant informed him about the restraining order.[10]
[8] T146.
[9] T67.
[10] T67-68.
I have reservations about the veracity of the defendant’s evidence. The cannabis crop was established only a short while after the defendant had acquired the property. At the time the defendant had a financial motive to engage in the venture. He was unemployed having stopped work in the course of 2002 allegedly due to a chronic back condition.[11] He was required to support his family, pay rent for his home and maintain mortgage repayments on the properties he owned on the unemployment benefits he received.
[11] T139-140.
The defendant claimed that he met his financial obligations by drawing on savings held in accounts with the ANZ, Commonwealth and Westpac banks. However, he conceded that after he purchased the property at Black Hill there were no savings left in his Westpac account and no more than between $1,000 and $5,000 in his Commonwealth account.[12] A bank statement relating to the defendant’s ANZ “Access Advantage Account” (ANZ account) for the period 15 November 2002 -14 February 2003 showed that the account had an opening credit balance of only $467.09.[13]
[12] T136 (no records relating to the defendant’s Westpac and Commonwealth bank accounts were tendered).
[13] Exhibit P3.
Though I am suspicious of the defendant’s account there is, in my view, insufficient evidence to justify a finding that he was more extensively involved in the drug crop than he suggested. Also I am not satisfied that the plaintiff was aware of the crop at the time it was being cultivated or that the defendant advised the plaintiff of the existence of the restraining order.
Be that as it may, the evidence that I have briefly outlined, and evidence of events in 2004 which I will canvass later, indicate that the defendant was experiencing financial difficulties at the time. Those difficulties, on the plaintiff’s case, provided the defendant with a motive to misappropriate the money later advanced to him. I will return to discuss that contention in more detail later.
Money advanced in 2002: Plaintiff’s case
The plaintiff testified that in late 2000 he contracted pneumonia and suffered residual difficulties with his breathing. Acting upon advice from a friend he moved to Melbourne in mid 2001 and consulted a person who practised in “alternative treatment”.[14] He was then referred to Dr Smith, a “lung specialist” at the John Fawkner Hospital who saw him monthly to monitor his condition.[15] He also consulted general practitioners and underwent regular X-rays of his lungs and tests to determine his breathing capacity.[16] His condition required him to hire oxygen inhaling equipment.[17] During this time he lived alone but employed the services of a carer, Ms Marie Tanski.[18]
[14] T12.
[15] T216.
[16] T215-217.
[17] T13, 48.
[18] T17, 80.
The plaintiff testified that in late 2002 he was informed by Dr Smith that he needed to have an operation which was scheduled for 1 November 2002.[19] The purpose of the operation was to determine if he was experiencing bleeding in his lungs.[20] At the time the plaintiff was running out of money to fund his treatment[21] and feared that if he was diagnosed with cancer he might require chemotherapy and radiotherapy.[22] To cover his medical expenses and any future treatment he might be required to undertake, the plaintiff decided to sell his home at Woodville South.[23]
[19] T14.
[20] T215.
[21] T13.
[22] T34, 79.
[23] T13.
In October 2002 the plaintiff sold his home for $168,000 and instructed Mr G. Charatsis of Westside Land Conveyancers to attend to the conveyancing. The plaintiff said that he made arrangements with the defendant and Ms Tanski for each of them to receive $50,000 from the sale of his home upon the condition that they would use the money to pay the costs of his medical treatment and, in the event of his death, funeral expenses.[24] The plaintiff also offered the defendant an interest free loan of $8,000 to be repaid within three years because he was aware the defendant wanted to establish a commercial olive grove on his property at Black Hill. The defendant accepted the offer.[25]
[24] T15, 17-20, 34, 79.
[25] T20-22, 23-24, 43-51.
On 25 October 2002 the plaintiff travelled to Adelaide with Ms Tanski and instructed Mr Charatsis, in the presence of Ms Tanski and the defendant, to distribute the $168,000 from the sale of his home in accordance with written instructions contained in an “Authority of Payment of Settlement Proceeds” (the Authority) (Exhibit P1) signed by the plaintiff on that day.[26] Mr Charatsis was instructed to make the following payments by bank cheque: $50,000 to the plaintiff, $50,000 to Ms Tanski and $50,000 to the defendant. He was further instructed to pay the defendant the balance of the proceeds ($18,251.99) by cheque drawn on the trust account of Mr Charatsis’s firm.
[26] T14.
The plaintiff said that on the day of the meeting, though not necessarily at the meeting, he instructed the defendant to collect the cheques from Mr Charatsis on 22 November 2002, the day of settlement,[27] because he anticipated that following the operation scheduled for 1 November 2002 he would be too ill to attend settlement and might still in hospital.[28]
[27] T14, 57-58.
[28] T14-15.
On the following day, 26 October 2002, the plaintiff returned to Melbourne with Ms Tanski.[29]
[29] T60.
The plaintiff claimed that on or about 1 November 2002 Dr Smith operated on him at the John Fawkner Hospital. He said he spent the day in hospital.[30] Following the operation the plaintiff was still experiencing breathing difficulties to the extent that he could not get out of his house. Ms Tanski had to attend to all of his shopping and pay his bills.[31] Because of his poor health he left in place the arrangement for the defendant to attend settlement on his behalf.[32]
[30] T214-215.
[31] T48, 50, 79-80.
[32] T20.
On 22 November 2002 the defendant met Mr Charatsis and received the cheques he had been authorised to collect. The defendant acknowledged receipt by signing the Authority (Exhibit P1). On the same day the defendant deposited:
·a cheque for $50,000 into the plaintiff’s National Bank (NAB) Flexi Account;
·a cheque for $50,000 into Ms Tanski’s bank account; and
·cheques for $50,000 and $18,251.99 into his own ANZ Advantage Account (ANZ account).
On 25 November 2002 the defendant used his ANZ Visa card to make a $10,000 payment into the plaintiff’s NAB Visa account.
The transactions conducted on 22 November and 25 November 2002 were confirmed by the plaintiff’s tender of copy cheques (Exhibit P2), a bank statement relating to the defendant’s ANZ account for the period 15 November 2002-14 February 2003 (Exhibit P3) and bank statements relating to the plaintiff’s NAB Flexi account for the period 21 August 2002 - 20 February 2003 and NAB Visa account for the period 16 November 2002 - 16 December 2002 (Exhibit P4).
By reason of these transactions the defendant retained $58,251.99, which as earlier stated, comprised, on the plaintiff’s case, a loan of $8,251.99 for the defendant to establish an olive grove at Black Hill and an advancement of $50,000 to be used by the defendant to pay for the plaintiff’s medical treatment. Following these transactions the defendant made six cash withdrawals, totalling $67,500, from his ANZ account. They comprised the following:
·$6,500 - withdrawal from Norwood branch - 27 November 2002;
·$40,000 - withdrawal from Grenfell Street branch - 27 November 2002;
·$8,000 - withdrawal from Gouger Street branch - 29 November 2002;
·$6,000 - withdrawal from Norwood branch - 29 November 2002;
·$1,000 - withdrawal from ATM at Campbelltown - 2 December 2002; and
·$6,000 - withdrawal from Salisbury branch - 6 December 2002.
No other relevant withdrawals were made during the period covered by the statement. The plaintiff contends that he did not receive any of the moneys withdrawn by the defendant and that he has never been repaid the moneys advanced in 2002 except for a payment of $5,000 to be discussed later.
On 31 January 2003 the plaintiff deposited into his NAB Visa account a cheque for $50,000 which he received from Ms Tanski. The plaintiff testified that Ms Tanski gave him the cheque after he had requested repayment of the $50,000 he had advanced to her. He asked for the money to be returned because he had been advised by his treating doctor(s) that he did not have cancer and no longer required any form of treatment for his condition. He was told that continuation of the oxygen inhalation treatment might cause his lungs to haemorrhage and that he should “live a natural life and start breathing on [his] own”.[33] The plaintiff added: “[Ms Tanski] returned the money because I didn’t have to pay any hospital stays or any treatment or anything”.[34]
[33] T81-82.
[34] T82.
Despite the discontinuation of his treatment the plaintiff said that he made no similar demand for repayment from the defendant until late 2003. The demand was unsuccessful and the money was never repaid. I will canvass those alleged events later.
Money advanced in 2002: Defendant’s case
The defendant testified that the plaintiff lived in a defacto relationship with Ms Tanski while he was in Melbourne.[35]
[35] T92, 122.
In late 2002 the plaintiff attended the defendant’s home at Tranmere and disclosed that he and Ms Tanski had sold their homes and intended to build a new home with the proceeds from those sales. The plaintiff complained that he did not want to contribute more than $100,000 to the project because that was the price for which Ms Tanski had sold her home. The plaintiff told the defendant that for the purpose of concealing from Ms Tanski that he had sold his home for $168,291, he had arranged for Mr Charatsis to draw two cheques for $50,000 and $18,251.99. He said he wanted the defendant to deposit the cheques into his bank account, and from the proceeds pay off $10,000 which the plaintiff owed on his NAB Visa account. The defendant agreed to assist on the understanding that he would be required to repay the plaintiff the balance in cash after the plaintiff and Ms Tanski had returned from an impending trip to Europe.[36]
[36] T93-96.
The defendant gave evidence that he did not attend the meeting on 25 October 2002 when the plaintiff instructed Mr Charatsis as to the manner in which the proceeds of the sale of his home were to be disbursed. The defendant suggested that the plaintiff’s meeting with his conveyancer must have occurred some time before the plaintiff asked for his assistance.[37] The defendant, however, conceded in cross-examination that he may have in fact attended the meeting.[38] I find that he did attend the meeting.
[37] T93.
[38] T121.
The defendant agreed that he met Mr Charatsis on 22 November 2002 and received from him cheques for $50,000 and $18,251.99 and deposited them into his ANZ account.[39] He agreed that, on 25 November 2002, he used his Visa card to make a payment of $10,000 into the plaintiff’s NAB Visa account and between 27 November and 6 December 2002 made the various cash withdrawals from his ANZ account.[40] He claimed that from those withdrawals he gave the plaintiff $58,000 cash on an occasion when the plaintiff visited his home at Tranmere “close to Christmas” 2002.[41] He claimed that he had kept the cash in the roof of his home before handing it over.[42] The defendant’s evidence was denied by the plaintiff.
[39] The defendant was not sure whether he collected and deposited the cheques made payable to the plaintiff and Ms Tanski or whether Mr Charatsis deposited them: T95. Nothing turns on this aspect of his evidence.
[40] T96-97.
[41] T96-98.
[42] T98.
Ms Tanski supported and contradicted aspects of the defendant’s evidence. She testified that she first met the plaintiff in early 2001.[43] Later that year they commenced living together in a de facto relationship in her home in St Albans, Melbourne.[44] During 2002 they agreed to sell their homes and from the proceeds of those sales build a new home together.[45] They renovated her home and sold it in August 2002. They then rented a house in the Melbourne suburb of Albanvale and regularly travelled to South Australia to renovate the plaintiff’s house at Woodville South.[46] Following the sale of his house they remained living together until 2003 when he terminated their relationship and returned to South Australia.[47]
[43] T161-162.
[44] T161-162.
[45] T164-165, 168-169.
[46] T163-165.
[47] T170.

Ms Tanski testified that when the plaintiff sold his home he expressed concern that he might lose his pension if all of the proceeds from the sale were paid into his bank account. She agreed to let him divert $50,000 from the sale into her bank account and to leave the money there until he wanted it back.[48] The plaintiff told her that he intended to ask the defendant to assist him in the same manner.[49]
[48] T167, 181.
[49] T169.
Ms Tanski agreed that she accompanied the defendant to the meeting with Mr Charatsis on 25 October 2002. She said that the defendant was also present at the meeting.[50] A short time after the meeting she and the defendant flew to Greece where they holidayed for about six weeks. Ms Tanski denied that the plaintiff had an operation in early November 2002 or that he was in Melbourne when settlement occurred on 22 November 2002. She maintained that he was overseas at the time.[51]
[50] T181.
[51] T165-166, 190-191.
Ms Tanski confirmed that she later gave the defendant a cheque for $50,000 when he requested repayment of the money deposited into her account. He offered no explanation for wanting the money returned and she did not ask for one because their relationship was fragile.[52]
[52] T168, 170.
Ms Tanski disputed the plaintiff’s evidence concerning his health.[53] She agreed that he had a respiratory condition but suggested that he first developed the problem in 2002 while carrying out renovations (sanding, painting and plastering work) on his house at Woodville South. She agreed that he had consulted a naturopath and general practitioner but disputed his assertion that he received specialist treatment at the John Fawkner Hospital or that he used oxygen cylinders. As mentioned she disputed that he underwent a surgical procedure in November 2002. Ms Tanski agreed that she had been employed as a carer but denied that she had ever looked after the plaintiff in that capacity. She said that she had been employed by a private disability service for a number of years but gave up her job when the plaintiff began living with her.
[53] T173-177, 180-181, 192-197.
Ms Tanski’s allegations about the state of the plaintiff’s health and her claim that she received $50,000 from the plaintiff to protect his pension were not put to the plaintiff in cross-examination. This is not a criticism of Mr Dart. I accept that the decision to call Ms Tanski was not made until after the defence case had commenced and because of the plaintiff’s significant departure from his pleaded case.[54] However, procedural fairness required that I provide the plaintiff with an opportunity to respond to her evidence.
[54] T155.
By way of reply the plaintiff tendered two medical reports from Bell Imaging Group dated 7 January 2003[55] (first report) and 5 March 2003[56] (second report) and a report from Future Medical Imaging dated 21 March 2003[57] (third report) relating to his chest condition. The plaintiff said that he had no other medical reports in his possession.[58]
[55] Exhibit P14.
[56] Exhibit P15.
[57] Exhibit P16.
[58] T246-249.
The first report related to a chest x-ray performed on 6 January 2003 and the second to a chest x-ray performed on 4 March 2003. The reports indicated that the plaintiff had minimal or mild peribronchial thickening but did no suggest that he suffered from any serious ailment. The third report related to CT scans “performed from the lung apex to the upper abdomen”. The report identified “pleural thickening” at the “anterior aspect of the right upper zone, consistent with a non calcified plaque” and stated that “the lungs and pleural spaces are otherwise clear”. The report referred to previous chest X rays of the plaintiff dated 27 August 2002, 6 January 2003 and 4 March 2003.
The reports, on their face, do not contradict Ms Tanski’s evidence. They do not indicate that the plaintiff was suffering from any serious lung condition or that he underwent a surgical procedure in early November 2002. The earliest event to which they refer is an x-ray of the plaintiff on 27 August 2002. This is not inconsistent with Ms Tanski’s evidence that the plaintiff first developed a problem when renovating his home during 2002.
In relation to the pension allegation, the plaintiff denied that he expressed concern to Ms Tanski that his pension might be compromised if all of the money from the sale of his home was deposited into his bank account. He claimed that he was informed in late 2003 by Centrelink staff that he could have a maximum of $350,000 in his bank account before his pension would be affected. The alleged conversation with Centrelink staff is inadmissible hearsay,[59] accordingly I have ignored it. In any event, the plaintiff conceded that at the time of the relevant events in late 2002 he had no idea how much money he could hold in his bank account before his pension would be compromised.[60] Such ignorance is not inconsistent with the belief assigned to him by Ms Tanski.
[59] The alleged out of court statement cannot be relied upon to prove the truth of the facts asserted in the statement: Walton v The Queen (1989) 166 CLR 283 at 288.
[60] T267.
Money advanced in 2003: Plaintiff’s case
The plaintiff testified that he returned to South Australia in about October 2003 with the intention of purchasing a home in the country because he had received medical advice to live in a pollution free environment.[61] The defendant’s property at 7 Renown Avenue, Tranmere was vacant at the time. The defendant allowed the plaintiff to stay there while he searched for a suitable property to acquire. The defendant and his family were still residing at 19 Renown Avenue.
[61] T22-23.
In November 2003 the plaintiff found a property with a sale price of $100,000 which he was interested in purchasing. He asked the defendant to return the $50,000 that he was meant to be holding for the purpose of paying the plaintiff’s medical expenses. He also asked for repayment of the loan ($8,251.99) because the defendant had abandoned the idea of growing olives.[62] The defendant complained that he was having financial problems and stated that he was owed money by boutiques in Sydney to whom he had supplied clothes on credit. He suggested that he would be in a position to repay the plaintiff once he had obtained the money owed to him, which he expected to occur within “a matter of months”.[63]
[62] T24, 26, 55.
[63] T23-24.
In December 2003 the defendant again mentioned that he was short of money and complained that he was unable to pay council rates, household bills and private tuition (Kumon) fees for his children. Although the defendant had failed to repay any of the money previously advanced, the plaintiff was sympathetic and offered him a further interest free loan in the amount of $37,000 for an unspecified period. The defendant accepted the offer.[64]
[64] T25-26, 64, 70-72.
On 22 December 2003 the plaintiff gave the defendant a bank cheque for $37,000[65] which he deposited into his ANZ account on the same day. A bank statement for the period 14 November 2003 - 16 February 2004[66] discloses that immediately before the cheque was deposited the account had a credit balance $1,982.85. After the cheque was deposited a series of cash withdrawals were made leaving the account with a credit balance of $2,967.85. The withdrawals which totalled $36,000 were as follows:
·$8,000 - withdrawn at Glenside branch on 23 December 2003;
·$12,000 - withdrawn at Norwood branch on 23 December 2003;
·$15,000 - withdrawn at Campbelltown branch on 23 December 2003; and
·$1,000 - withdrawn at ATM Salisbury on 29 December 2003.
[65] Copy bank cheque - Exhibit P2; T26, 64.
[66] Exhibit P3.
No other withdrawals were made during the period covered by the bank statement.
It is the plaintiff’s case that he did not receive any of the moneys withdrawn by the defendant and that he has never been repaid the $37,000 he advanced to the defendant.
Money advanced in 2003: Defendant’s case
The defendant admitted that he received and deposited the cheque for $37,000 and made the cash withdrawals detailed above. He claimed that the plaintiff turned up at his home at Tranmere one day and unexpectedly produced the cheque and without any explanation asked him to cash it. The defendant was angered by the plaintiff’s request but nevertheless agreed to assist him. After making the various cash withdrawals he stored the cash in the roof of his home and then arranged for it to be given to the plaintiff.[67]
[67] T103-104, 106.
The defendant’s evidence is unclear as to whether the cash placed in the roof comprised $35,000 (the total amount of money withdrawn on 23 December 2003) or $36,000 (the total amount of money withdrawn on 23 December and 29 December 2003). Regardless of the precise amount it was less than the value of the cheque he had received ($37,000). In cross-examination the plaintiff explained that he must have made up the shortfall with some of his own money.[68]
[68] T132.
The defendant testified[69] that in early January 2004 he flew to Sydney to receive treatment for his back. The night before his flight he decided to remove the cash from the roof and give it to the plaintiff because he was concerned that someone might break into his home and steal it. At about 6am the next morning he was collected by his friend Terry Turner and driven to the Adelaide Airport to catch an early flight.
[69] T103-104, 106-108, 110-111.
Following their arrival at the airport the defendant gave Mr Turner a bag containing $37,000 cash wrapped in alfoil and asked him to deliver it to the plaintiff. Mr Turner knew the plaintiff and agreed to make the delivery. Later that day Mr Turner rang the defendant who was still in Sydney and advised that the money had been delivered. The defendant then rang the plaintiff who confirmed that he had received the money.
Mr Turner gave evidence consistent with the defendant’s account.[70] He said that after receiving the money from the defendant at the airport he drove to 7 Renown Avenue where the plaintiff was living and gave him the money. Mr Turner said that he was not suspicious about the plaintiff’s request to deliver a substantial amount of cash and assumed that the defendant did not deliver the money himself because he had a bad back. The evidence given by the defendant and Mr Turner was denied by the plaintiff.
[70] T203-204.
Alleged repayment of $5,000 and lost contact
In late 2003 the plaintiff bought a rural property at Farrell Flat (near Clare) for about $57,000. He commenced living on the property following settlement in February 2004.
The plaintiff gave evidence that in about April 2004 he spoke to the defendant’s wife over the phone and told her that he needed the money he was owed and required $5,000 for work to be carried out on his new home. He subsequently drove to the defendant’s home at 19 Renown Avenue and collected $5,000 cash from the defendant’s wife which he deposited in his bank account.[71]
[71] T27.
During the ensuing period the plaintiff regularly rang the defendant’s home and called in from time to time but the defendant was never there. The plaintiff was invariably informed by the defendant’s wife that she did not know of her husband’s whereabouts. At some stage during 2004 or 2005 the plaintiff found out that the telephone at 19 Renown Avenue had been disconnected. He then drove to 19 Renown Avenue and discovered that the defendant and his family had moved out. The plaintiff then attended 7 Renown Avenue and was informed by a person at that address that he had purchased the property from the defendant.[72]
[72] T27, 75.
The plaintiff said that he had no means of determining the whereabouts of the defendant and his family and lost contact with them.[73] Eventually in 2006 he instructed his solicitors to lodge a caveat on the defendant’s land at Black Hill, an event to which I will turn in a moment.
[73] T75-76.
The defendant testified[74] that in early January 2004 (a short time after he claims to have given the plaintiff $37,000 cash) the defendant and his family moved from Tranmere to Hectorville. He denied that his wife paid the plaintiff $5,000 in April 2004, or at any other time, and asserted that such a payment could not have occurred because the plaintiff was unaware that the defendant and his family had moved to Hectorville. The defendant did not give, and was not asked to provide in cross examination, an explanation for why he failed to inform the plaintiff of his new address.
[74] T154.
Defendant commits offences in 2004
The defendant committed two criminal offences in 2004 which assume significance on the plaintiff’s case.
In early 2004 the defendant was arrested for cultivating cannabis in New South Wales. He pleaded guilty to the offence in late 2004 and was sentenced to a term of imprisonment of which he served eight months. The defendant’s testimony in the present case constitutes the only evidence of the circumstances of the cannabis offence and the extent of his involvement in it. The prosecution’s evidence and the remarks of the sentencing judge were not tendered in the present proceedings.
In essence, the defendant said[75] that he drove to a farm outside Sydney with a friend named Jim, for the purpose of visiting Jim’s father who was very ill with cancer. Upon their arrival the defendant was informed by Jim that he and some other men were engaged in growing cannabis on the farm. According to the defendant, one of the men was a taxi driver from Adelaide who happened to know both the plaintiff and the defendant. Following their arrival the defendant was taken to a house on the property where Jim’s father was staying. The defendant spoke to Jim’s father for about 30 minutes and then drove back to Sydney. No evidence was given by the defendant as to when, where, or in what circumstances, he was arrested by police.
[75] T140-142, 143-146.
The defendant insisted that he did not participate or assist in the cultivation in any way. He said that he did not even see the crop and only found out through subsequent media publicity that the crop was “huge”. The defendant further testified that after receiving legal advice from his solicitor, Mr S. Ey, he pleaded guilty to aiding and abetting the cultivation of cannabis on the basis that he had merely driven Jim to the farm. Although I have not been provided with any evidence independent of the defendant’s testimony as to the nature of his participation in the New South Wales cultivation I am satisfied that he has falsely minimised his involvement.
Cultivating cannabis in New South Wales is an offence contrary to s23 of the Drug Misuse and Trafficking Act 1985 (DMTA). Pursuant to s27 of the DMTA a person who “aids, abets, counsels, procures solicits or incites” the commission of such an offence is guilty of an offence as an accessory. It is well established that mere presence of an accused person at the scene of an offence is not sufficient to make him or her guilty of the offence as an accessory. Nor is mere acquiescence or assent to the commission of the crime. It must be established that the accused was linked in purpose with the person actually committing the crime (the principal offender), and was by his or her words or conduct doing something to bring about, or rendering more likely through encouragement or assistance, its commission.[76] The accessory must have known all of the essential facts which made the principal offender’s act a crime and intentionally aided, abetted, counselled or procured the act(s) of the principal offender.[77]
[76] R v Russell [1933] VR 59 at 67; R v Phan (2001) 53 NSWLR 480 at [69].
[77] R v Giorgianni (1985) 156 CLR 473 at 487-488.
It is clear from the relevant legal principles governing criminal accessorial liability that the defendant could not have been lawfully convicted of aiding and abetting the cultivation of cannabis in New South Wales merely because he drove Jim to a farm where cannabis was being grown. On the defendant’s account, he was not even aware that there was a cannabis crop on the property until after he arrived. Even if he had prior knowledge of the existence of the cannabis crop, merely driving Jim to the farm would not amount to conduct linked in purpose with the principal offenders. On the defendant’s account the purpose of his visit was to see Jim’s father. He did not intentionally assist or encourage the commission of the offence. No court would accept a guilty plea entered on such a basis.
I am satisfied that the defendant, in his evidence before me, deliberately and dishonestly sought to minimise his criminal culpability. This reflects adversely on his credibility as a witness.
The plaintiff contends that the New South Wales offence has a further relevance. On the plaintiff’s case it is more than a coincidence that the defendant was involved in a substantial interstate drug crop within a few months of receiving a cheque for $37,000 from the plaintiff. The plaintiff argues that it can be inferred that some or all of the money was invested in that venture. I will return to this point later.
In May 2004, the defendant was arrested by police in South Australia for unlawful possession of $56,000 contrary to s41 of the Summary Offences Act 1953 (SA). He pleaded not guilty but was convicted of the offence following a trial in the Magistrate’s Court in 2010. The evidence tendered on the trial and the magistrate’s reasons for verdict were not put before me. Once again, the defendant’s testimony represents the only evidence of the circumstances of the offence.
In essence, the defendant claimed[78] that the $56,000 cash found in his possession comprised his personal savings and money which he had borrowed on credit cards and from various members of his family. The defendant asserted that he was arrested by police when he was about to deliver the cash to his solicitor, Mr Ey, for reasons which I will outline shortly.
[78] T142-143, 149-152.
The defendant’s claim that all of the $56,000 came from the sources he described must be rejected. The claim is inconsistent with his conviction for unlawful possession. Section 41 of the Summary Offences Act provides:
(1)A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.
Maximum penalty: $10,000 or imprisonment for 2 years
(2)It is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly.
(3)…
It is clear from the elements of the offence that the magistrate must have been satisfied that the $56,000 cash was reasonably suspected of having been stolen or obtained by unlawful means. It is also clear that defendant must have been convicted because he failed to prove that he had obtained possession of the money honestly i.e. he failed to prove, on balance, that he obtained possession by conduct which can be described as legitimate, honourable or upright.[79] I reject the defendant’s evidence that all of the $56,000 cash found in his possession comprised his personal savings and money borrowed on credit cards and from various members of his family.
[79] Lloyd v Hayes (1986) 40 SASR 401; Wu v SA Police (SCSA), Prior J, 9 May 1994, Jud No S4560, unreported.
It is necessary to canvass the defendant’s reasons for wanting to deliver $56,000 to his solicitor. He gave the following evidence:[80]
Q    What did you borrow money for?
A    For the crop. I was actually going to pay the lawyer when I got arrested. I was speaking to    Stephen Ey and I wasn’t too far away.
QSo you needed $56,000 to pay your lawyer?
AI made that call that I was going to pay.
Q    How much did you pay your lawyer eventually?
A     That wasn’t for his fees. I was paying a fine to the Crime Commission. … there was a misunderstanding with the agreement that I had a year to pay $65,000 to the Crime Commission but I actually had seven or 14 days, but somehow I thought that I was told I had a year to pay, you understand, because they gave me time to sell my house and about a week or two weeks was not enough time to sell my house and I got another extension of another two weeks. I went to Melbourne and I raised whatever I could and I was still short. I was meant to have $65,000 not $56,000.
[80] T150-151.

It is not entirely clear what the defendant meant when he said that he was required to pay a fine to the “Crime Commission” in relation to a crop. He was not asked to explain or elaborate upon this aspect of his evidence. I think the defendant may have been referring to his obligation to pay a pecuniary penalty imposed pursuant to s91(1) of the Criminal Assets Confiscation Act 1996 in respect of the cannabis offence committed on his property at Black Hill. As earlier observed the defendant’s properties at 7 Renown Avenue, Tranmere and Black Hill were made the subject of a restraining order on 2 August 2002 by reason of that offence. The payment of a pecuniary penalty may facilitate negotiation with the DPP for the lifting of a restraining order. As earlier noted, the restraining order covering the property at Black Hill lapsed pursuant to an application by the DPP in September 2005. It is possible that this occurred following the payment of a pecuniary penalty and that during the previous year the defendant was trying to accumulate money for that purpose. This interpretation is consistent with other evidence given by the defendant.[81]
[81] See T112 lines 1-10.
Be that as it may, it is at least clear that in early 2004 the defendant was required to pay some authority $65,000 for reasons linked to his criminal involvement in a drug crop and that, by the time of his arrest for unlawful possession in May 2004, he had succeeded in accumulating $56,000 cash. The plaintiff contends that these circumstances provide a further explanation for where some or all of the proceeds of the cheques advanced to the defendant may have gone.
Subsequent events
As earlier stated, the defendant was sentenced in late 2004 for the New South Wales cannabis offence and served eight months imprisonment. Following his release from jail the defendant separated from his wife. They later divorced in 2008. During 2005 the defendant moved to Melbourne where he managed a commercial laundry for about five years. In 2010 he set up his own commercial laundry. Ms Tanski is one of his current employees.[82]
[82] T183-184.
There is no dispute that the plaintiff lost contact with the defendant in the course of 2004 and subsequently instructed his solicitors in respect of the money allegedly owed by the defendant.
On 23 October 2006 the plaintiff, by his solicitors, lodged a caveat[83] claiming an equitable estate or interest in the plaintiff’s land at Black Hill pursuant to s39 of the Real Property Act 1886. Under the caveat the plaintiff claimed an interest in the land by virtue of an alleged partnership agreement made between the plaintiff and the defendant in or about the month of November 2002, whereby the plaintiff agreed to contribute the sum of $90,251.99 as capital to the partnership, and the defendant agreed to contribute the whole of the land as capital to the partnership.
[83] Copy caveat - Exhibit P5.
During 2008 the defendant became aware of the caveat when he attempted to sell his property at Black Hill and was advised by his solicitors, Mason Westover Homburg, that the sale could not proceed due to the caveat. By letter dated 15 August 2008[84] Mason Westover Homburg asked the plaintiff’s solicitors for particulars of the plaintiff’s claim. There is no dispute that at about the time the letter was sent, the defendant, without any forewarning, attended the plaintiff’s home at Farrell Flat and questioned him about his reasons for lodging the caveat. The defendant was driven there by Terry Turner.
[84] Exhibit D12.
The defendant testified[85] that during their conversation at Farrell Flat, the plaintiff admitted that in order to justify the caveat, he had falsely instructed his solicitors that he was owed $90,251 pursuant to a partnership agreement with the defendant to set up an olive grove at Black Hill. The defendant said that the plaintiff agreed to instruct his solicitors to remove the caveat. Mr Turner gave similar evidence.[86] He said that during the discussion he wandered in and out of the plaintiff’s house because he was smoking cigarettes. However, at one point he overheard the plaintiff admit that he had lied to his solicitors and promise to remove the caveat.
[85] T113-115.
[86] T205-206.
The plaintiff disputed the evidence given by the defendant and Mr Turner.[87] He denied admitting that he had lied to his solicitors. He said he criticised the defendant for failing to remain in contact with him and explained that he had lodged the caveat due to defendant’s failure to repay the money advanced to him. The plaintiff indicated that he was willing to instruct his lawyers to lift the caveat but only if the defendant repaid the money owed.
[87] T77-78.
On 26 August 2008 the plaintiff’s solicitors wrote to the defendant’s solicitors informing them of the plaintiff’s instructions. The letter states:[88]
We refer to the terms of your letter of the 15^th of August 2008.
We confirm that we act for Mr Zirpiadis.
We attach our file copy of the caveat which should give you the required particulars you need of our client’s claim.
Our client has agreed to withdraw the caveat on the following terms:
1.      Payment of the sum of $90,251.99, by bank cheque.
2.      Payment of the sum of $1,753.15 to cover costs incurred in October 2006.
3.      Payment of the sum of $275.00 to cover the costs incurred in connection with the   withdrawal of the caveat (not including registration fee).
[88] Exhibit P13.
As earlier noted the plaintiff instituted proceedings against the defendant on 20 November 2008.
This is a convenient point to express my findings about the conflict in the evidence concerning the discussions the parties had at Farrell Flat. I do not accept that the plaintiff indicated a willingness to unconditionally withdraw the caveat. That was not the attitude his solicitors were instructed to convey in the letter above. I accept the plaintiff’s evidence, consistent with the terms of the letter, that the plaintiff agreed to withdraw the caveat but only if the defendant repaid him the money allegedly owed.
I accept that the plaintiff may have admitted lying to his solicitors. The terms of the caveat and the SOC are consistent with the plaintiff having engaged in such conduct. As earlier stated, this reflects adversely on the veracity of the plaintiff’s claim as to the purposes for which he advanced the money, and on his credit generally, though it does not follow, of course, that he has necessarily lied about the defendant having failed to repay him.
ISSUES
There is no dispute that the plaintiff advanced to the defendant the three sums of money the subject of his claim. The key issues are whether the moneys were advanced for the purposes alleged by the plaintiff and, critically, whether the defendant repaid the moneys as alleged by the defendant. In relation to the second issue, Mr Dart conceded that where money is advanced and the defence of repayment is raised, the onus of proving payment lies upon the defendant: see Young v Queensland Trustees Limited.[89] The resolution of each issue hinges on an assessment of the credibility and reliability of the witnesses.
[89] (1956) 99 CLR 560.
By way of overview, and for reasons which I will elaborate upon, I am unimpressed by the plaintiff’s evidence in relation to the purposes for which he advanced money to the defendant. His evidence on this topic does not accord with other evidence I find acceptable or with inferences that can reasonably be drawn from the evidence. Though my rejection of the plaintiff’s evidence on this issue has caused me to evaluate the balance of his evidence with care, I accept that the defendant has never repaid him, except for a single payment of $5,000 in April 2004.
The defendant was even more unimpressive than the plaintiff. I listened and watched him carefully. I was left with the very clear impression that he was prepared to give, and did give, false evidence when it suited him. His criminal convictions and his attempt to deliberately and dishonestly minimise his culpability in respect of those offences are matters which, though not decisive of the issues that I must resolve, impact adversely on his credit. Significantly, I found his evidence on the key issues unconvincing. I reject his evidence both as to the purposes for which he received money from the plaintiff and his claim that he repaid the money. It follows that I also reject Mr Turner’s evidence that he delivered, on behalf of the defendant, $37,000 to the plaintiff in 2004.
I accept Ms Tanski’s evidence. I have not overlooked that she may have been tempted to give evidence favourable to the defendant by reason of her employment, though it must be remembered that she contradicted the defendant’s evidence in some respects. While acknowledging the possibility of bias I am satisfied she gave an honest account. She was particularly impressive under cross-examination. When challenged by the plaintiff, she was quick to provide details of their de facto relationship, their trip to Greece, his respiratory condition and the treatment he received for that condition. However, I do not discount the possibility that she may be mistaken about the length of the trip to Greece and also its timing.
I turn to explain my findings.
FINDINGS: MONEY ADVANCED IN 2002
Purposes for which money was advanced
The plaintiff’s evidence that he advanced to the defendant $50,000 to pay for his medical treatment, and possible funeral expenses, and a loan for $8,25.991 to enable the defendant to establish an olive grove at Black Hill must be rejected. The plaintiff’s assertion is inconsistent with his pleadings and the terms of the caveat lodged in 2006 and, as far as I am aware, surfaced for the first time in his opening address. The assertion is also unacceptable for the following reasons.
I deal first with the plaintiff’s claim that he advanced $50,000 to cover the costs of his medical treatment. For the purpose of assessing this aspect of the plaintiff’s case it is appropriate to recount the essential features of his evidence.
The plaintiff testified that between mid 2001, when he moved to Melbourne, and late 2003 he received ongoing treatment and tests for his respiratory condition. On 1 November 2002 he underwent an operation to determine whether he had pulmonary bleeding. Prior to the operation he was concerned that he might be diagnosed with cancer and need expensive treatment for that condition. He arranged for the defendant and Ms Tanski to each receive $50,000 each from the sale of his home to pay the costs of his medical treatment and possible funeral expenses. On 25 October 2002 the plaintiff instructed Mr Charatsis to make the appropriate disbursements at settlement on 22 November 2002.
Following the plaintiff’s operation on 1 November 2002 he remained ill. He was so ill that he could not leave his home and attend settlement. The plaintiff did not disclose in examination-in-chief, and was not cross-examined about, the results of the alleged operation. However, he contended that by late January 2003 he had been advised that he did not have cancer or pulmonary bleeding and that he no longer required any further treatment for his condition. The plaintiff did not specify when he received this advice but it is reasonable to infer that he must have obtained it within a short time of the alleged operation because, on his case, the operation was conducted for the purpose of determining his condition. The plaintiff further testified after finding out that he no longer needed treatment he asked Ms Tanski to repay the $50,000 she had received from him. Payment was made on 31 January 2003.
The plaintiff’s evidence has a number of unsatisfactory features. First, it is inherently implausible that the plaintiff, a pensioner with limited financial assets, would have given the defendant and Ms Tanski a total of $100,000 to pay for his possible medical expenses when such payments could have been made by him with money from his own bank account. It is even more unlikely that he would have made such an arrangement before having the operation which he claims was conducted to determine his condition. It should also be observed that the plaintiff never said in evidence that he received medical advice before the operation that he would require post operative treatment, less still treatment costing in the order of $100,000.
If the plaintiff did have an operation on 1 November and was subsequently advised that he did not have cancer or require any further treatment it is likely, for the reasons expressed above, that he would have received the advice within a short time of the operation. Settlement, however, occurred three weeks after the operation. There is no sound reason for the plaintiff failing to cancel his arrangement with the defendant and Ms Tanski before settlement. Even if the plaintiff did not receive advice about not requiring further treatment until after settlement had taken place, say just before he had demanded repayment from Ms Tanski in January 2003, there is no explanation for his failure to demand repayment from the defendant until late 2003.
Furthermore, I doubt whether the plaintiff suffered from a serious respiratory condition. On balance I prefer Ms Tanski’s evidence on this topic. Consistent with her evidence I find that the plaintiff developed his respiratory problem some time after he commenced renovating his home at Woodville South in 2002; that it was never suggested to him that he had cancer or any other serious ailment; that he never used oxygen equipment; and, that he did not have surgery on 1 November 2002. As earlier observed, the medical reports tendered by the plaintiff do not advance his claims. As far as I can determine, they are entirely consistent with Ms Tanski’s evidence. It also strikes me as odd that on the plaintiff’s account he had been receiving ongoing treatment and tests for about 18 months and that following his operation on 1 November 2002 he was still so sick that he could not get out of his house, but by January 2003 treatment was no longer required.
There is a further matter. The plaintiff’s assertion that he was too ill to attend settlement on 22 November 2002 is difficult to reconcile with certain entries in his NAB Flexi account statement for the period 21 August 2002 – 20 February 2003 (Exhibit P4). The statement contains the following cash withdrawal entries:
·    29 Aug 2002      NABATM Csh 29^th09:26     Brimbank Central Shop     $400.00
·    2 Sep 2002        NABATM Csh 01^st 07:09    Brimbank Central Shop     $ 50.00
·    16 Sep 2002      NABATM Csh 16^th 13:33    Findon Shopping Cent      $400.00
·    23 Sep 2002      NABATM Csh 23rd 09:33 St Albans                       $ 20.00
·    26 Sep 2002      NABATM Csh 26^th 18.00    Findon Shopping Cent      $400.00
·    10 Oct 2002       NABATM Csh 10^th 09:42    Keilor Downs Plaza          $400.00
·    14 Oct 2002      NABATM Csh 14^th 09:28    Findon Shopping Cent      $ 80.00
·    24 Oct 2002      NABATM Csh 24^th 09:59    Findon Shopping Cent      $400.00
·    7 Nov 2002       NABATM Csh 7^th 12.43    Norwood  $500.00
·    21 Nov 2002     NABATM Csh 16^th 11:25    Norwood  $400.00
·    5 Dec 2002       NABATM Csh 5^th 09:29    Norwood  $400.00
·    31 Dec 2002      NABATM Csh 31st 17:22   Glynde                         $400.00
·    6 Jan 2003        NABATM Csh 6^th 12:19    Keilor Downs Plaza          $400.00
·    16 Jan 2003       NABATM Csh 16^th 13:15    Keilor Downs Plaza          $400.00
·    20 Jan 2002       NABATM Csh 20^th 10:34    Maribyrnong                   $400.00
·    22 Jan 2002       NABATM Csh 22nd 09:45 Brimbank Central Shop     $300.00
·    28 Jan 2002       NABATM Csh 28th 09:34 Brimbank Central Shop     $500.00
·    31 Jan 2002       NABATM Csh 31st 10:11   Maribyrnong                  $500.00
(my bold print)
The withdrawals in bold print were conducted at ATM’s in suburban Adelaide. The plaintiff gave no evidence-in-chief about these transactions. Nor was he cross-examined about them. However, it is obvious that the plaintiff must have made those withdrawals unless he supplied his Visa card and PIN number to another person. There is no evidence that he arranged for any person to make those withdrawals on his behalf. Indeed, it is difficult to understand why he would have arranged for someone to make cash withdrawals from ATM’s in Adelaide if he was in Melbourne at the time. I infer that the plaintiff made the withdrawals set out above.
The ATM withdrawals are consistent with Ms Tanski’s evidence that she and the plaintiff regularly travelled to South Australia to renovate his home in order to sell it. More importantly, they contradict the plaintiff’s evidence that he was too ill to travel to South Australia and attend settlement on 22 November 2002. In particular, the NAB Flexi account statement reveals that on 21 November 2002, the day before settlement, he was in Adelaide and withdrew cash at Norwood.
I have considered whether the ATM withdrawals are also inconsistent with the assertion made by the defendant and Ms Tanski that the plaintiff was unable to attend settlement on 22 November 2002 because he was on an overseas holiday with Ms Tanski at the time. At the outset I should make it clear that I accept Ms Tanski’s evidence that she and the plaintiff went to Greece together in late 2003, but it is possible, in my view, that she is mistaken about the length of the trip and maybe its timing.
The defendant and Ms Tanski said that the plaintiff went to Greece with her some time before settlement. The defendant believed they were away for about 2-3 weeks[90] while Ms Tanski estimated they were absent for approximately six weeks.[91] The withdrawals in November suggest that if the plaintiff was on holidays at the time of settlement then he must have left for Greece on 21 November 2002[92] and returned by 5 December 2002,[93] a relatively short trip. If that is correct, then Ms Tanski, in particular, must be mistaken about the length of the trip. If the trip occurred after 5 December 2002, then it is possible that they could have been away for up to about 26 days, but she would still be mistaken about the length of the trip and clearly she would also be mistaken as to its timing.
[90] T93, 96, 98-99, 126.
[91] T164-166.
[92] Cash was withdrawn on 21 November 2002 from ATM at Norwood.
[93] Cash was withdrawn on 5 December 2002 from ATM at Norwood.
As I have said, I accept Ms Tanski’s evidence that she and the plaintiff went to Greece in late 2003. Although it would have been a short trip, the most likely scenario, in my view, is that they were away between 21 November and 5 December. I say that because it would be odd if the plaintiff was in Adelaide on 21 November and chose not to collect the disbursement cheques from Mr Charatsis the following day unless, of course, he had some other important commitment, for instance leaving on an overseas trip. For these reasons, I find that the November withdrawals are clearly inconsistent with the plaintiff’s contention that he was too ill to attend settlement, but are not necessarily inconsistent with the evidence given by the defendant and Ms Tanski that the plaintiff was unavailable because he went on holidays.
I also reject the plaintiff’s evidence that he gave the defendant a loan for $8,251.99 to establish an olive grove. As earlier stated, this assertion is inconsistent with the detailed allegations set out in the plaintiff’s SOC and the caveat placed on the property at Black Hill. It is also significant that, at the time of the alleged loan, the property at Black Hill was subject to a restraining order under the Criminal Assets Confiscation Act. Property covered by a restraining order is automatically forfeited to the Crown six months after conviction[94] unless the person convicted of the offence successfully applies to the court for an order excluding the property from forfeiture.[95] It is unlikely the defendant would have borrowed money to invest in a property which might be taken away from him. It is possible that the defendant obtained a loan from the plaintiff on the pretext that he intended to set up an olive grove but I am not satisfied that he deceived the plaintiff in that manner.
[94] s74(1) Criminal Assets Confiscation Act
[95] A court imposing a restraining order is empowered to exclude property from forfeiture if the court is satisfied that (i) the property is not proceeds of unlawful activity; and (ii) the defendant’s interest in the property was lawfully acquired and (iii) it would not be contrary to the public interest for the property to be excluded from such forfeiture: s76(1)(c) Criminal Assets Confiscation Act.

It does not follow from my rejection of the plaintiff’s evidence that I accept the defendant’s account of the reasons for which he received $58,291 from the plaintiff in 2002. On the contrary, I reject his contention that he deposited cheques into his bank account to assist the plaintiff to conceal from Ms Tanski that he had received more than $100,000 from the sale of his home.
The defendant’s assertion is inconsistent with the evidence given by both the plaintiff and Ms Tanski. They testified that she was present when the plaintiff met Mr Charatsis on 25 October 2002 and instructed him as to the manner in which the proceeds from the sale were to be distributed at settlement. The defendant did not dispute their evidence though he claimed to be uncertain as to whether he attended the meeting. I am satisfied that the plaintiff took Ms Tanski to the meeting with Mr Charatsis. By reason of her attendance, she must have become aware, if she was not already aware, that the plaintiff’s home had been sold for $168,000 and that the proceeds of the sale were to be disbursed in accordance with the terms of the Authority (Exhibit P1).
For these reasons the suggestion that the plaintiff tried to hide money from Ms Tanski must be rejected.
I accept Ms Tanski’s evidence that at the time of the relevant events the plaintiff told her that he wanted to place $50,000 into her bank account for the purposes of protecting his pension and expressed to her his intention to ask the defendant to assist him in the same way. I suspect that the plaintiff may have acted on his declared intention and arranged for the defendant to receive from him the sum of $58,291 for the same purpose. However, I am not in a position to make any conclusive findings in that regard. The fact of the matter is that neither the plaintiff nor the defendant suggested that the money was paid into the defendant’s account for such a purpose. There is insufficient evidence to establish otherwise.
In the result, I am left in the position of not believing either the plaintiff or the defendant and of being unable to satisfactorily identify the purposes for which the money was advanced in 2002.
Failure to repay
The defendant, in my view, has failed to establish that he repaid to the plaintiff the money which he received from him in 2002. Even if the plaintiff carried the onus on this issue I would find against the defendant on the balance of probabilities.
Once again, it is helpful to recall the essential features of the defendant’s account. There is no dispute that after the defendant deposited cheques into his ANZ account on 22 November 2002, and paid off $10,000 owing on the plaintiff’s Visa card on 25 November 2002, that he retained $58,251 of the plaintiff’s money. There is also no dispute that between 27 November and 6 December 2002 the defendant made multiple cash withdrawals from his ANZ account totalling $67,500. The withdrawals comprised the following:
·$6,500 (Norwood - 27 November);
·$40,000 (Grenfell Street - 27 November);
·$8,000 (Gouger Street - 29 November);
·$6,000 (Norwood - 29 November);
·$1,000 (Campbelltown - 2 December); and
·$6,000 (Salisbury - 6 December).
The defendant claimed that he had agreed to repay the plaintiff $58,000 after he had returned from his overseas trip. From the withdrawals outlined above the plaintiff stored $58,000 cash in the roof of his home which he handed to the plaintiff close to Christmas 2002.
The defendant’s account has a number of unsatisfactory features.
As I earlier remarked, if the plaintiff was away when settlement occurred then he must have left for Greece on or about 21 November and returned by about 5 December. I am satisfied that the plaintiff was in Adelaide on 5 December because he withdrew cash from an ATM at Norwood on that day. If that is correct then the defendant must have stored the cash in the roof of his home for about 3-4 weeks after withdrawing it and kept it in the roof for a couple of weeks following the plaintiff’s return from Greece.
There is no sound reason for the defendant to have withdrawn money from his bank account when he was aware that the plaintiff was overseas at the time. The money could have remained in the safety of his bank account until the plaintiff returned. Furthermore, if the plaintiff returned from Greece on 5 December it is strange that the plaintiff and the defendant did not arrange for the money to be returned to the plaintiff on that day or shortly thereafter. If the trip to Greece post dated 5 December 2002 then the defendant could have arranged for the money to be withdrawn from his account and given to the plaintiff shortly after he deposited the cheques on 22 November 2002. As I have already emphasised, I do not believe that the plaintiff was unable to travel from Melbourne to Adelaide by reason of ill health.
The defendant’s explanation for conducting multiple withdrawals between 27 November and 6 December 2002 is also unusual. The defendant testified that on 27 November 2002 he attended the ANZ Norwood branch intending to withdraw $50,000 for the plaintiff. He was allowed to withdraw only $6,500 and was advised to attend the main branch in Grenfell Street, Adelaide if he wanted to withdraw larger amounts. On the same day he attended the Grenfell Street branch and withdrew $40,000 and, thereafter, made the various withdrawals summarised above. The defendant gave no explanation for failing to withdraw more than $40,000 at the Grenfell Street branch on 27 November. Also it is odd that he subsequently resorted to withdrawing significantly smaller amounts from suburban branches when he was aware, by reason of his withdrawal of $40,000 on 27 November, that all of the remaining money could have been obtained by way of a single withdrawal from the Grenfell Street branch.
In my view the multiple withdrawals of cash are more likely to have been conducted for purposes other than repaying the plaintiff. That inference is strengthened by the defendant having withdrawn, during the period in question, a total of $67,500 when he was only required to repay the plaintiff $58,000. The defendant was not asked to explain why he withdrew an additional $9,500 but clearly it was required for purposes unrelated to any obligation to repay the plaintiff.
Furthermore, I am satisfied that the defendant had a substantial motive for misappropriating the plaintiff’s money. He was unemployed and experiencing financial difficulties at the time. Those difficulties were exacerbated by the DPP placing a restraining order on his properties at Black Hill and Tranmere during 2002. As later events in 2004 indicate he was probably aware that he needed money to pay the Crown to avoid forfeiture of his properties under the Criminal Assets Confiscation Act. He may also have been searching for money to fund legal representation in respect of the cannabis prosecution.
Regardless of the defendant’s motives, and the ultimate fate of the money, I am satisfied that he has failed to repay the money he received from the plaintiff in 2002.
FINDINGS: MONEY ADVANCED IN 2003
Purposes for which money was advanced
The plaintiff testified that in late 2003 he demanded from the defendant repayment of the money advanced the previous year. According to the plaintiff, the defendant admitted that he did not have the money but indicated that he would be able to repay him within a few months.
In my view, it is implausible that after having been effectively told by the defendant that he had misappropriated the $58,000 advanced to him in 2002, that the plaintiff would generously offer him an interest free loan for $37,000 to help the defendant pay his council rates, household bills and private tuition fees for his children.
The plaintiff’s contention is even more difficult to accept when it is borne in mind that the plaintiff was a pensioner with very limited financial assets. The cheque for $37,000 advanced to the defendant was drawn on the plaintiffs NAB Flexi account on 2 December 2002. On the same day, the plaintiff withdrew a further $3,000 which he used as a deposit on the purchase of his home at Farrell Flat. Following those withdrawals, the plaintiff was left with just over $7,500 in his bank account, which he drew on to renovate his new home. By the end of February 2003 the credit balance for the Flexi account had dropped to just over $500. On 6 January 2003 the plaintiff withdrew $50,000 from his NAB Visa account which he used to purchase the Farrell Flat property. Following that withdrawal the plaintiff was left with $3.00 in his account. There is no evidence that the plaintiff had any other bank accounts or significant financial assets at the time. I reject the notion that a pensioner with such limited assets would provide an interest free loan of $37,000 for the purposes alleged by the plaintiff.
As earlier stated, my rejection of the plaintiff’s evidence on this issue does not involve an acceptance of the defendant’s evidence. I do not believe that the plaintiff visited the defendant at Tranmere and, without any explanation, requested the defendant to cash another cheque. I do not accept that the defendant was angered by the request but nevertheless agreed to assist the plaintiff without asking for an explanation.
I find that the evidence given by both the plaintiff and the defendant on this issue is entirely unsatisfactory. I believe that the sum of $37,000 was advanced for a purpose which neither the plaintiff nor the defendant wanted to disclose. In my view, there is a real possibility that the money was earmarked for investment in an illegal venture and that the parties hoped that if the venture was successful, the defendant would be able to repay to the plaintiff all of the money he had advanced and possibly more. Interestingly, within a few months of receiving the money the defendant was arrested in relation to a large cannabis cultivation in New South Wales and, a short time later, was found in unlawful possession of $56,000. Although I am highly suspicious, I accept Mr Dart’s submission that there is insufficient evidence for a finding that the money was in fact advanced for illegal purposes.
Once again I am left in the position of not believing either the plaintiff or the defendant and of being unable to satisfactorily identify the purposes for which the money was advanced in 2003.
Failure to repay
For whatever reason the money was advanced, I am satisfied that the defendant has failed to repay it. Even if the plaintiff carried the onus on this issue I would find against the defendant on the balance of probabilities.
There is no dispute that the defendant deposited the cheque for $37,000 into his bank account on 22 December 2003. On the following day he made three cash withdrawals of $8,000, $12,000 and $15,000 from the Glenside, Norwood and Campbelltown branches respectively. He withdrew a further $1,000 from an ATM at Salisbury on 29 December 2002.
I reject the defendant’s contention that he stored the withdrawn cash ($36,000) in the roof of his home and arranged for Terry Turner to deliver the cash, together with $1,000 obtained from another source, to the plaintiff early one morning in January 2004 when the defendant caught a plane to Sydney.
The defendant’s account is unsatisfactory in several respects. There is no cogent explanation for the defendant having conducted multiple withdrawals from different branches on 23 December 2003 and then waiting another five days to withdraw $1,000 from an ATM at Salisbury. As I remarked a moment ago, the defendant was aware that he could have withdrawn all of that money in a single transaction at the main branch of the ANZ Bank in Grenfell Street by reason of his withdrawal of $40,000 from that branch the previous year.
There is also no sensible reason for the defendant storing the cash in the roof of his home if he intended to give it to the plaintiff. The plaintiff was not overseas. At the time he lived in the same street as the defendant. They were friends who were in regular contact. There is no reason why the defendant could not have arranged for the plaintiff to be present at the bank to receive the money upon it being withdrawn. If for some reason that was not possible, the plaintiff could have made arrangements for the money to be collected by, or delivered to, the defendant soon after it had been withdrawn.
I also find it hard to accept that the defendant would have been overwhelmed by a fear that the money might be stolen the night before he went to Sydney bearing in mind that, on his account, the money had been in the ceiling for some time and that he had stored over $58,000 cash in the roof the previous year. If theft was a genuine concern, he could have returned the money immediately rather than arrange for it to be delivered by Mr Turner in the early hours of the following morning without forewarning the plaintiff of the arrangement, and without determining whether the plaintiff would be home to receive the money.
In my view, another relevant fact is the defendant’s decision to leave his home in Tranmere in 2004 without informing the plaintiff of the move. I accept the plaintiff’s evidence that some time after he received payment of $5,000 from the defendant’s wife in April 2004 that the defendant and his family moved out of their home and failed to inform him of their whereabouts. The defendant did not dispute this, though he suggested the move occurred earlier in the year before the alleged payment. In my view, it is somewhat strange that the defendant would not provide the plaintiff with a forwarding address or remain in contact with him over the telephone given their friendship. I think that it is likely that the defendant chose not to remain in contact because of his misappropriation of the plaintiff’s money.
I am not able to determine the fate of the money the defendant received from the plaintiff in 2003. It is possible, as the plaintiff argued at trial, that the defendant invested the money in the New South Wales cannabis venture, or that it constituted some of the money which was found in his possession by police in May 2004. However, there is, as I have already remarked, insufficient evidence upon which I could make such a finding. Nonetheless, I am satisfied that the defendant has failed to repay the money advanced except for a payment of $5,000 made on his behalf by his wife in April 2004.
RESTITUTION
Though I am unable to determine the purposes for which moneys were advanced by the plaintiff to the defendant in 2002 and 2003 I am satisfied of the following matters:
1. That the plaintiff advanced to the defendant $58,251.99 in 2002 and $37,000 in 2003.
2. That the moneys were not gifted to the defendant.
3.That the defendant was obliged to return the moneys to the plaintiff as acknowledged by the defence put forward by the defendant, namely, that he repaid the plaintiff.
4.That the defendant has, in fact, failed to repay the moneys except for a single payment of $5,000 in April 2004.
In the circumstances, I am satisfied that the plaintiff is entitled to the remedy of restitution on the basis of a claim for money had and received.
The underlying basis of the claim for money had and received is the concept of unjust enrichment. In Pavey & Mathews Pty Ltd v Paul[96] Deane J described the concept of unjust enrichment as:[97]
a unifying concept legal concept which explains why the law recognises, in a variety of distinct categories of cases, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of the a plaintiff.
[96] (1987) 162 CLR 221 at 256-257.
[97] (1987) 162 CLR 221 at 256-257.
Later, in Australia and New Zealand Banking Group Limited v Westpac Banking Corporation[98] (an action of money had and received for the recovery of money paid under a mistake) the High Court said: [99]
The basis of the common law action of money had and received for recovery of an amount paid under fundamental mistake of fact should now be recognised as lying not in implied contract but in restitution and unjust enrichment…In other words, receipt of a payment which has been made under a fundamental mistake is one of the categories of case in which the facts give rise to a prima facie obligation to make restitution, in the sense of compensation for the benefit of unjust enrichment, to the person who has sustained the countervailing detriment…The common law right of action may arise in circumstances which also give rise to a resulting trust of specific property or funds which would lead a modern court to grant relief by way of constructive trust. However, notwithstanding that the grounds for recovery are framed in traditional words of rust or use and that contemporary legal principles of restitution or unjust enrichment can be equated with seminal equitable notions of good conscience the action itself is not for the enforcement of a trust or for tracing or the recovery of specific money or property. It is a common law action for the recovery of the value of the unjust enrichment…
[98] (1988) 164 CLR 662.
[99] (1988) 164 CLR 662 at 663.
(citations omitted)
Recently, the High Court in Equuscorp v Pty Ltd v Haxton[100] reaffirmed the notion that unjust enrichment is the essential requirement of an action to recover money had and received. French CJ, Crennan and Kiefel JJ said:[101]
[100] (2012) 86 ALJR 296.
[101] (2012) 86 ALJR 296 at [30].
In David Securities Pty Ltd v Commonwealth Bank of Australia, this Court explained the part played by unjust enrichment in a claim for money had and received (in that case for recovery of a payment made under mistake of law). That explanation may be expressed, at a fairly high level of abstraction, as an approach to determining such claims. In summary:
·recovery depends enrichment of the defendant by reason of one or more recognised classes of “qualifying or vitiating” factors:
·the category of case must involve a qualifying or vitiating factor such as mistake, duress, illegality or failure of consideration, by reason of which the enrichment of the defendant is treated by the law as unjust;
·unjust enrichment so identified gives rise to a prima facie obligation to make restitution;
·the prima facie liability can be misplaced by circumstances which the law recognises would make an order for restitution unjust.
Unjust enrichment therefore has a taxonomical function referring to categories of cases in which the law allows recovery by one person of a benefit retained by another. In that aspect, it does not found or reflect any “all-embracing theory of restitutionary rights and remedies”. It does not, however, exclude the emergence of novel occasions of unjust enrichment supporting claims for restitutionary relief. It has been said of Lord Mansfield’s judgment in Moses v Macferlen that it was his view that “the grounds for obtaining relief in money had and received were not be considered static and the remedy could be made available in any case where it was unjust for the defendant to retain it”.
(citations omitted)
It is well established that failure of consideration is a factor that makes retention of a benefit unjust.[102] The concept of failure of consideration is not confined by contractual principles.[103] The principal idea behind the concept is “total failure of the agreed or contemplated return”.[104]
[102] Equuscorp v Pty Ltd v Haxton (2012) 86 ALJR 296 at 308; Roxborough v Rothman's of Pall Mall Australia Ltd (2001) 208 CLR 516.
[103] Roxborough v Rothman’s of Pall Mall Australia Ltd (2001) 208 CLR 516 [103]-[104];Equuscorp v Pty Ltd v Haxton (2012) 86 ALJR 296 at 308.
[104] Mason & Carter’s, Restitution Law in Australia, 2nd ed LexisNexis, Butterworths, Australia, 2008 at [146].
In the present case the defendant was enriched by payment to him of $58,251.99 in 2002 and by a further payment of $37,000 in 2003. It matters not that I am unable to identify the precise purpose(s) for which the moneys were advanced. As earlier stated, I am satisfied the moneys were not gifted but were received in circumstances giving rise to an obligation of repayment. In each case the moneys, whether received as moneys lent, as moneys to be held for the benefit of the plaintiff, or on trust were misappropriated by the defendant resulting in a total failure of the agreed or contemplated return. To allow the defendant to retain the enrichment at the plaintiff’s expense would be unjust. Accordingly, the defendant’s unjust enrichment gives rise to a prima facie obligation to make restitution.

On the evidence before me there are no defences available to the defendant that would make an order for restitution unjust. I have expressed my suspicions that the plaintiff may have advanced some of the money ($58,251.99) to minimise his financial assets because he believed (rightly or wrongly) that his pension might otherwise be affected and that he may have advanced the balance ($37,000) for investment in some illegal venture. There is, however, insufficient evidence that the moneys were in fact advanced for such purposes. Accordingly, there is no need to consider the circumstances where conduct in furtherance of an illegal purpose may defeat a claim for money had and received.[105]
[105] Equuscorp v Pty Ltd v Haxton (2012) 86 ALJR 296.
In conclusion, I should indicate that the plaintiff’s failure to plead the claim upon which I am prepared to grant relief has not, in my opinion, caused any relevant prejudice to the defendant. The plaintiff’s departure from his pleadings was obvious from the beginning of the trial. There was no suggestion by Mr Dart, counsel for the defendant, that it would be unfair to proceed with the trial in those circumstances.
ORDERS
I make the following orders:
1. Judgment for the plaintiff in the sum of $90,251.99 with interest.
2. I will hear the parties as to costs and interest.