Craig v Donaldson

[2012] NZHC 2224

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-000811 [2012] NZHC 2224

BETWEEN  DAVID LEONARD CRAIG Plaintiff

ANDJOANNE MARGARET DONALDSON Defendant

Hearing:         7 and 8 August 2012

Appearances: M J Wallace for Plaintiff

C A Corlett for Defendant

Judgment:      31 August 2012

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on

31 August 2012 at 10.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Rhodes & Co., PO Box 13 444, Christchurch

Parry Field Lawyers, PO Box 1725, Christchurch Mail Centre, Christchurch 8140

CRAIG V DONALDSON HC CHCH CIV-2011-409-000811 [31 August 2012]

[1]      Both  the  plaintiff  and  the  defendant  were  victims  of  three  frauds.    The plaintiff lost $421,605.86.   The defendant lost a much lesser sum, $28,600.   The plaintiff now sues the defendant to recover his loss.  The plaintiff made 16 different payments, being payments that he alleges he either made to or on behalf of the defendant but always as loans to the defendant.   It is the plaintiff ’s case that the defendant agreed to be liable to repay all of these advances, whether or not the defendant received the overseas funds she had been promised by the fraudsters.

[2]      The plaintiff and the defendant were friends.  The defendant’s husband had met the plaintiff at the annual Hanmer Heat Motocross event that the defendant’s family ran.  The plaintiff was a senior administrator in the sport of motocross at the time and regularly travelled through New Zealand attending motocross events.  He would come and stay with the defendant’s family in Hanmer, a small village in North Canterbury, for up to a week every two or three months.   He and the defendant’s husband had a friendship built around their common interest in motocross and machinery.  He also became friends with the defendant.  It was in the context of this friendship  that  in  mid-2006  the defendant  had  told  him  of the e-mails  that  the defendant had been receiving from the Mayo family.  They had talked of the plaintiff accompanying her on  the trip  to  South Africa.    It  was  in  this  context  that  the defendant made her first request that he might assist her in dealings with the Mayo family by providing the legal fees of the equivalent of NZ$7,230 for her to take to South Africa to obtain the release of the funds, she having spent her money buying the airfare.

[3]      The subsequent pattern of events was that the plaintiff paid the substantial sums requested and the defendant paid small and minor sums.

The Mayo fraud

[4]      In 2006 the defendant received an e-mail from a Mr Victor Mayo in South Africa.  Mr Mayo told the defendant that he was a member of a Zimbabwean family who were refugees in South Africa.  They had been farmers in Zimbabwe but had had had their land taken away under the rule of Robert Mugabe.  However, they had been able to get their money, US$10.7 million (“the funds”), out of Zimbabwe at the time they had fled and it was now in a South African bank account.  The difficulty was that they needed a small amount of cash to pay fees in order to release the funds. The defendant was told that if she financially assisted the Mayos she would receive

30 percent of the funds plus whatever fees and costs she paid to obtain its release.

[5]      Through e-mail exchanges over a number of weeks, the defendant built up a friendship with Mr Mayo and his mother, Charity.   They discussed mutually their family and circumstances.  The Mayos said they were in a refugee camp and wanted to  get  out.   The  funds  would  allow them  to  get  out  of the  camp  and  relocate elsewhere – hopefully to New Zealand.   The defendant genuinely believed their story.  The Mayos  regularly quoted Christian scriptures, which pulled the defendant in as she was a committed Christian.

[6]      Mr Mayo sent her an American cheque which he said had been sent to him by someone who assisted him in America, but which he was not able to cash in South Africa  because  of  his  refugee  status.    The  defendant  agreed  to  assist  him  and received this cheque in the post and endeavoured to clear it.  She was told by her bank that the cheque was not legal.

[7]      The defendant took this matter up with Mr Mayo, who suggested she come to South Africa to meet him and his lawyer to be assured their situation was genuine and to be present when the funds were released.  She agreed to go.  She was told by Mr Barr Owen Smith, who claimed to be a lawyer for the Mayos, that she needed to bring money with her for legal fees associated with releasing the funds, which was the equivalent of NZ$7,230.  After buying the return airfare, she said she did not

have this money.  The plaintiff offered to pay and provided it by way of direct credit to her bank account.

[8]      The defendant flew to Johannesburg and met with Mr Mayo, his mother Charity, the lawyer Mr Smith, and a bank manager, Mr Francis Zuma.  They visited her hotel and had various meetings which convinced her they were genuine.   She also said in her evidence she visited Mr Zuma’s bank, the Amalgamated Bank of South Africa.   She was sat in a coffee shop in front of the bank where Mr Zuma bought various paperwork for her to sign.  After which she was told the funds had been released. The Mayos celebrated with champagne, at her hotel.

[9]      When she was at the Johannesburg Airport about to depart, the defendant received a call from Mr Zuma, who advised her the funds had not been released and a further $25,000 for bank fees was needed.

[10]     When she got back to New Zealand she told the plaintiff about the situation. On 7 September 2006 he paid $25,000 directly into her bank account which she transferred by Western Union to a bank account in South Africa.

[11]     That proved not to be enough.   About a week later on 12 September, Mr

Zuma telephoned the defendant seeking payment of a further US$35,768.90.

[12]     The  next  day  the  plaintiff  instructed  his  bank  to  pay  the  New  Zealand equivalent of this sum, NZ$55,400.06, to Mr Zuma’s bank.

[13]     Another week passed.   The defendant received a facsimile request for a further US$189,000 on 21 September 2006.   The plaintiff was staying with the defendant and her husband on this occasion.  The plaintiff and the defendant talked through the night as to whether or not it should be paid.  The plaintiff paid the sum the next day, equivalent to NZ$288,927.48, to PKB Private Bank, Switzerland.

[14]     There  was  a  common  character  to  these  requests.  Each  request  was accompanied by an assurance that this was the payment needed in order to enable to

funds to be released immediately.  The funds were never released after any of these payments.

[15]     In December 2006 the plaintiff paid $10,505 to the defendant, following a request by Mr Zuma to the defendant for funds to travel to Switzerland to release the Mayo funds.

The Morgan fraud

[16]     From late September 2006 a Mrs Rutendo Morgan began corresponding with the defendant.   Mrs Morgan said she was a Zimbabwean refugee living in a refugee camp in Edinburgh.  She wanted the defendant’s help in releasing funds of US$3.4 million that she was owed.

[17]     Mrs Morgan said she was dealing with a banker named Mr Karan, who was employed by HSBC in London.  Mr Karan also began to e-mail the defendant.  The plan was that once the funds were released they would be sent to the defendant via a diplomat who would travel with the funds to New Zealand.  This diplomat was a Mr Dwaa Felix.  He called the defendant.  He said that he and the funds had made it to Malaysia,  but  the  funds  were  being  held  in  Customs  until  further  funds  were received for fees associated with Customs.   The amount he sought was not large, equivalent to NZ$3,903.74.  This sum was paid by the plaintiff on 5 October 2006 after the defendant had discussed the request with him by telephone.

[18]     On 9 October there was a further request from Mr Felix for the equivalent of NZ$4,949.   Again the defendant advised the plaintiff of this by telephone.   The plaintiff paid this and the 5 October payment via Western Union to Mr Felix.

[19]     On 27 December the plaintiff paid NZ$15,000 to Rita Dennis, a friend of the defendant, for the release of the Morgan funds.

The Ivory Coast fraud

[20]     A third sub-set fraud were requests for payments from a Mr Godwin Weta in the Ivory Coast for the support of a young person who was said to be a relative of the Mayo family.   Eight to ten payments were made only by the plaintiff to Mr Weta from October to November 2006, totalling $10,695.39.

Realisation of the scam

[21]     On 27 January 2007 the plaintiff received an e-mail from a Mr Jackie Davies of scampatrol.org advising him that his e-mail address was on a list of addresses known to be targeted by scammers.   The plaintiff forwarded this e-mail to the defendant. The plaintiff made no further payments after receipt of this e-mail.

[22]     In late March the defendant flew to London for a week to stay with the relatives of Mrs Morgan for the purpose of assisting in the release of her funds.  She had been told that the funds, which had got to Malaysia, were now in England. When she arrived in London she had been told the funds had been transferred to Spain, and she needed to go to Madrid.   She flew to Madrid.   She was met and shown a large sum of money in a container.  She was told the money needed to be washed (literally, not laundered) and a further sum of money had to be paid for this.

[23]     It was then that reality hit her.  She realised this could be a scam.  This was the same pattern as in South Africa.  She was continually being promised that funds were to be released on a payment and they were not, and she was always being asked for further money.

The plaintiff ’s evidence of the events

[24]     The plaintiff’s evidence was that the defendant asked him if he would lend her NZ$7,230.  The money was to be a loan to her which she would repay once she received money from another venture she was involved in called Agel, a sports supplement that she promoted.  He was also told by her that in return for assisting the family she was to receive 30 percent of the funds once released, in conjunction

with repayment of the principal fund paid.   He was told that once the funds were released this payment would be made immediately.  He made the payment of $7,230 because of her absolute trust and belief in the Mayo family’s situation and to the request to help them relocate to New Zealand and also in her expectation in the returns she would see from Agel.    She had assured him that the transaction was legitimate and that she would ensure he would receive repayment of the loan.  On his evidence the defendant asked him to accompany her to South Africa, but he declined because  he  did  not  want  to  become  directly  involved.    He  said  the  defendant discussed her trip with him after her return from South Africa and that the family had reiterated that she would receive 30 percent of the fund once released.

[25]     Then, in early September, the defendant explained that an additional payment of $25,000 was required and it was agreed that he would loan her the money, and accordingly did so on 7 September 2006.

[26]     Then at a surprise meeting while he was in Nelson, he was requested by the defendant to provide $55,400.06, being funds equivalent to US$35,768.90.  And on this occasion the defendant told him that for loaning her the money he would receive

10 percent of what she was to receive.   He was somewhat reluctant to pay this money, but the defendant gave him the number of Mr Zuma in South Africa and he telephoned him.  Mr Zuma reiterated to him the legitimacy of the situation and he agreed to lend the money to the defendant and entered the bank to do so.   His evidence was he then felt uncomfortable about that and returned to speak to the defendant and in that conversation he received her promise that she would liquidate her  assets  to  cover  his  loans  if  there  was  a  problem  obtaining  the  fund.    She persuaded  him  to  return  to  the  bank  where  he  made  a  direct  payment  of NZ$55,400.06 to the bank, as provided for in a facsimile from the Amalgamated Bank of South Africa.

[27]     The plaintiff said the context of the major payment of NZ$288,927.48 (being the New Zealand dollar equivalent of the USD$189,000) had come while he was staying with the defendant and her husband. The request came late at night and there had been a long night’s discussion about whether or not to pay it.   He felt very uneasy about making the payments, but felt under pressure from the defendant who

was still strongly of the belief that she was very close to completing the transaction. His evidence at this point contained a rather strange statement:

Joanne was still strongly of the belief that she was very close to completing the transaction and that even if she were to sell the home, it should go directly to the family.   She said that she would honour her word once the Fund was released.

On these assurances I made the payment of $288,927.48 on 22 September

2006  …  I  hoped  that  this  would  be  it  as  I  wanted  the  cajoling  and

manipulation from Joanne to stop.

The defendant and her husband’s evidence

[28]     It  was  the  evidence  of  the  defendant  and  her  separated  husband  (the separation commencing early this year) that there had never been any talk, at any stage, let alone promises made, about the payments made by the plaintiff being as between the two of them a loan to the defendant, let alone any promise to sell their home to pay him back.

The common ground

[29]     It  was  common  ground  between  the  plaintiff  and  defendant  that  the expectation was that the plaintiff would receive his money back from the funds that were released.   There was broad agreement that he was entitled to a share of the defendant’s share of the released funds.  There were differences in detail as to what that share was. The defendant’s evidence was that at the time of his first contribution of NZ$7,230 it was agreed that he would receive a one-third share of any payment that she received.   She disputed the plaintiff’s evidence that the first promise of a share was later and was 10 percent of what she received.

[30]     In  respect  of  the  Morgan  funds,  the  defendant’s  evidence  was  that  the plaintiff and himself would share any funds proportionately to what they had each put in.   This is quite a different arrangement from the earlier one whereby the defendant’s position was that the plaintiff would receive one-third of any funds received in addition to refunding what he had paid.

[31]     Naturally these differences were not a principal focus of the trial because the funds were never released.

Trial issues

[32]     The principal trial issue is firstly whether the funds transferred by the plaintiff into the defendant’s bank account for on-payment to recipients in South Africa were loans to the defendant, repayable by the defendant whether or not the funds were released.    Secondly,  whether  the  funds  transferred  by  the  plaintiff  directly  to recipients in South Africa, Switzerland, Malaysia, the Ivory Coast and New Zealand were loans to the defendant, repayable independently of whether or not the funds were released.

Relevant law

[33]     The plaintiff must establish on the balance of probabilities that the parties intended to be legally bound by contract whereby the plaintiff paid money to or on behalf of the defendant in consideration for the defendant’s promise to repay those sums to the plaintiff.  A subset of this issue is whether any obligation to repay was contingent upon receipt by the defendant of the fund or funds from Africa.  The facts necessary to support such findings have to be proved on the balance of probabilities. The onus thereon is on the plaintiff.

[34]     Mr Wallace submitted that this was a case where the Court needs to take the broader approach of ascertaining contracts by considering objectively the totality of the parties’ dealings to determine whether a concluded bargain had been reached between them.  He cited Meates v Attorney-General.[1]

[1] Meates v Attorney-General [1983] NZLR 308 (CA)at 377.

[35]     He submitted that in the context there was a contract between the plaintiff and defendant which included the following terms:

(a)       That the payments made to and on behalf of the defendant by the plaintiff were loans;

(b)The loans were repayable within a reasonable time, expected by the parties to be a matter of days from the date of various advances;  and

(c)       That if the payments were not made within a reasonable time, then they were payable upon demand.

[36]     As I have already noted, it is a feature of the case that every demand for payment from the fraudsters was accompanied by a promise that this was the (as in only or last) payment to be made before the funds in question would be released.

[37]     The  statement  of  claim  pleaded  separately  each  advance  made  by  the plaintiff.    The  remedy  sought  was  judgment  for  each  of  the  loan  advances. Mr Wallace, for the plaintiff, submitted in closing that the Court might well find that some advances were repayable by the defendant, but not all.

[38]     There was no evidence that there were ever any negotiations between the plaintiff and the defendant whereby the parties discussed a contractual relationship anticipating that there might be further payments required at unknown dates in the future for unknown amounts before the funds would be released and part of the proceeds of the funds shared as between the defendant and the plaintiff.  There was evidence that the plaintiff was reluctant to pay the US$35,768.90, and that they talked through the night about paying the US$189,000.

[39]     In this factual context I think it would be highly artificial to try to identify one contractual relationship covering all the payments.  In the absence of traditional formation of contract by way of offer and acceptance the Court will, sometimes, imply a contract between the parties from their conduct in all the circumstances.  But that implication is grounded in the facts which demonstrate a mutual exchange of benefits for a particular purpose.

[40]     It was not pleaded in this claim that the parties were in a partnership or were in a joint venture.  Partnerships and joint ventures can be formed, and usually are formed, to provide for mutual obligations and benefits, notwithstanding the uncertainties in the future of the business relationship.

[41]     By contrast, simple loans are transactions, each transaction being a separate agreement, unless the parties are anticipating and provide for further advances, as is common in bank loan offers.

[42]     On the other hand, once a contractual relationship has been formed for one transaction there are circumstances in which the law of contract will impute to the parties the same agreement for a subsequent similar transaction.  But there must be evidence that the parties expressly or by necessary implication adopted the same terms of relationship to apply to the next transaction as they had negotiated and agreed for the prior transaction.

Analysis

The Mayo fraud

[43]     There is no doubt that the plaintiff joined the defendant in endeavouring to assist the Mayo and Morgan families by making payments which they both thought, or at least hoped at the time, were going to release funds to the advantage of these families;    and out of which release the defendant would be entitled to 30 percent; and the plaintiff would be entitled to reimbursement of the payments he had made, together with a share of the defendant’s share of the release funds.

[44]     The difference in  evidence as  to  the plaintiff’s  entitlement  is  capable of explanation.  Ten percent of the total fund is one-third of what the defendant was entitled to.   I think it is more likely that the plaintiff was promised a share of the proceeds after he made the first payment of $7,230.  That was not a particularly large sum and it was occasioned by the defendant having spent her available credit on the air travel to South Africa.

[45]     Unbeknown,  initially,  to  the  defendant  the  plaintiff  had  received   an inheritance upon the death of his father in the order of $850,000.   There was no evidence he had invested it in real property.  As a consequence the initial payment of

$7,230 was of no great moment to him.  The third payment of about US$35,768.90

hurt.  The largest payment of the New Zealand dollar equivalent of US$189,000 was a major decision.

[46]     This appears to have been a classic case, much documented by psychologists, of making payments to avoid taking a loss on the payments already made.

[47]     The plaintiff and the defendant talked through the night about making the largest payment.   Obviously there must have been even more doubt this time. However, the second and third payments were clearly made against a degree of genuine belief in the Mayo story by the plaintiff and likewise a belief in the Morgan story in respect of the Morgan payments, although these were facilitated by being relatively low amounts.

[48]     As the plaintiff correctly emphasised in his evidence, the whole business took place in a context of a strong friendship between himself and the defendant’s family which, like all friendships, had a dimension of mutual trust.

[49]     It was in the nature of the dealings that there were statements repeated by the defendant assuring and reassuring the plaintiff that he would be paid from the proceeds of the release funds.  And given that the promise of a share of the release funds was made by the Mayo and Morgan families to the defendant alone, never to the plaintiff, it is inevitable that the discussions reflected acceptance of a personal obligation of the defendant to share her share of the proceeds of the release funds with the plaintiff.

[50]     One can understand, given the stress of the loss of more than half of his inheritance, and by any reckoning it being a large sum of nearly $500,000 (from all three frauds), that after this lapse of time the plaintiff has become convinced that this was a personal debt to him by the defendant.

[51]     The loss was so painful to both parties that the friendship came to an end, fortunately not by way of confrontation, but it simply became impossible for the parties to talk to each other.

[52]     I am not satisfied that the plaintiff has proved a general obligation on the defendant to repay all advances of the plaintiff.  I have a number of reasons.  First, the factual context at all the material times, being the times that the payments were made, was one in which the defendant and the plaintiff were sufficiently convinced that the payments at that point being made would likely release the funds.  As the fund requests escalated and time passed, that confidence must have ebbed, but our human nature to try to avoid taking a loss was taken advantage of by the fraudsters.

[53]     I find to be credible the evidence of the plaintiff that on the occasion of the first payment of NZ$7,230 the defendant said she would repay the plaintiff once she received money from another venture she was involved in, the Agel Sports Supplement.  His recollection is consistent with her evidence that the purchase of the airfare had used up her funds.

[54]     This  source  of  repayment  does  not  figure  again  in  the  narrative  of  his evidence as to the circumstances in which he made the much larger payments of NZ$25,000 on 7 September 2006, US$35,768.90 on 13 September and US$189,000 on 21 September.

[55]     The defendant disputes that she ever promised to repay any advance from the proceeds of the Agel venture.  She said it was at the time a new business venture and simply would not have been a potential source of income to repay the plaintiff.

[56]     However, on the occasion of the first payment of $7,230, and keeping in mind that this was the first payment, with no earlier disappointment,  and was for a relatively small amount, it would not have been unusual for the defendant to readily reassure the plaintiff she would repay this sum to the plaintiff and to expect to be able to do so from the proceeds of the Agel venture.

[57]     There is a conflict of evidence between the parties on this point.  Both the plaintiff and the defendant, and the defendant’s husband, each presented to me as good people, doing their best to answer questions fairly.

[58]     It  was  the  defendant’s  argument  through  her  evidence,  and  by counsel’s submissions and by the evidence of her husband, that it was completely unreal for her to have promised to repay, independently of any release of the funds, the large sums that the plaintiff was advancing.  I agree.

[59]     The defendant and her husband lived in the village of Hanmer, were self- employed  with  small  businesses.    They  had  a  mortgage.    There  could  be  no suggestion that they were rich.  The fact that the defendant needed the first $7,230 was because she had used her liquidity to pay for the airfare to South Africa.  The plaintiff would have appreciated his friends were not rich.

[60]     All three witnesses showed some natural fragility of memory over this period of time. Accepting their credibility, but doubting their reliability, it seems to be more probable than not that the defendant did refer to Agel at the time she asked the plaintiff to pay the $7,230, as the source of repayment.

[61]     I find that the plaintiff has proved that there is a contractual obligation on the defendant to repay him the sum of $7,230.

[62]     The second payment by the plaintiff was the sum of $25,000.  He says that upon the defendant’s return from South Africa she reported on the trip and during a visit  to  her  in  early September  after  her  visit,  she  explained  that  an  additional payment of $25,000 was required.  It was agreed that he would loan her the money and accordingly on 7 September he made a further payment to her of $25,000.

[63]     She says that when she got back from South Africa she telephoned him and told him about the trip and in the same conversation also mentioned the request for the further $25,000 and that she was not able to pay for this.  She then says that the plaintiff called her back later that day and told her he would send the $25,000.  She said she did not ask to borrow the money from him, nor was there any discussion about these funds being a loan.

[64]     Both recollections are consistent in that there were two conversations, but the

defendant’s recollection has more detail.

[65]     $25,000 is a much larger sum than $7,000.  On the plaintiff’s evidence he had not yet been promised a share of the funds upon release beyond repayment of his advances.

[66]     In my view it is quite possible that the plaintiff considered at this stage that this was again a straightforward loan to the defendant which she had an obligation to repay in any event.  However, I am not satisfied about that on the probabilities.  In particular I am not satisfied that the conversation of the plaintiff to the defendant and the manner of payment would have made it clear to the defendant that the money was being paid only on the basis that she had an obligation to repay that sum. Again one keeps in mind the close and trusting relationship between the parties and what I think was developing at this stage into a considerable sympathy on the part of the plaintiff to the goal of rescuing the Mayo family, no doubt in the background with the concept that there was also going to be a reward involved.

[67]     For these reasons I think the evidence falls short of establishing a legally enforceable contract of loan on the part of the defendant to the plaintiff in respect of the $25,000.

[68]     I think that it is more probable than not that it was on the occasion of the third payment of the New Zealand equivalent of US$35,768.90 that  the plaintiff first received a promise of a share of the release funds.   There was no reason for the defendant to make the promise on the first payment.  Neither suggests it was made at the time of the second payment.

[69]     It is possible that the defendant, during the conversation in Nelson when the plaintiff was reluctant to pay the money, said that she would liquidate her assets to cover his loans if there was a problem obtaining the funds.  But I cannot convert that possibility into a probability which becomes binding on the defendant.  This is for two reasons.   First, if she talked about liquidating her assets it might have been similar to the context of the discussion in the evening about whether or not to make the major payment, that the defendant, if she had to, would sell her home to look after the Mayo family.   Second, I doubt that such an emotional remark could be relied upon objectively as the defendant binding herself in contract to do so, should

the funds not be released.  I keep in mind at all times that we are talking about the dealings between two friends who trust each other and who share a common concern to get the Mayo funds released.   What started out as a payment of $7,230 by the plaintiff to help out the defendant who had used her available money to buy her ticket to South Africa had turned by degrees into a common predicament.

[70]     It is more probable than not that the reason the plaintiff paid these last two and largest sums was that he was caught in the classic dilemma, from time immemorial, of facing realising a loss, or expending more money in the hope of recovering all.

[71]     The final payment on this fraud was the $15,000 paid to Rita Dennis on 27

December 2006.  The evidence on this transaction is scant.  The plaintiff does not expressly link it to the Mayo fraud.   He places it in the narrative of the Morgan fraud.   Both frauds overlapped.   I accept the defendant’s evidence that it was requested by Mr Zuma, and placed it in the Mayo fraud.  But the classification is of no material effect.   I am satisfied it was not the occasion of a promise by the defendant to the plaintiff to pay it back, in any event.

The Morgan fraud

[72]     As  already  covered,  the  plaintiff  made  two  payments  to  Mr  Felix  of

$3,903.74 and $4,949.  Both were made on 5 and 9 October.  These were after the very  large  payment  of  US$189,000  paid  in  respect  of  the  Mayo  fraud  on

22 September.   I have already found that that payment was not paid against the assumption  the  defendant  as  borrower  had  an  obligation  to  repay it.    It  is  my judgment that by this stage the plaintiff was hooked into the fraud in the same way essentially as the defendant.   It was the plaintiff’s evidence that he made these payments at the request of the defendant.  That he had received assurances from her that the transactions were legitimate.  But tellingly in his evidence-in-chief he does not suggest that she reiterated a personal obligation to repay the money.

[73]     I find that these payments did not follow from a binding agreement obligating the defendant to repay these sums in any event.

The Ivory Coast fraud

[74]     As already noted, there were a further ten payments, on eight occasions, totalling approximately $10,700.

[75]     Although the plaintiff very broadly links his involvement in this fraud to a request from the defendant to assist Mrs Morgan, he provides no particular evidence which could in any way support a contract between the plaintiff and the defendant so that the payments to Mr Weta and to Ms Dennis were personal obligations of the defendant.  The defendant’s husband says he repeatedly warned the plaintiff that he was on his own.  The plaintiff agreed in cross-examination to have been personally, directly e-mailing Mr Weta.  He endeavoured to link this fraud to the Mayo fraud because he had been led to believe that the child he was paying money to support was a relative of Charity Mayo.  That may well have been the story of the fraudster. The plaintiff  said the defendant was involved in these e-mails but was not able to add any detail.  He links the defendant in because he says it was she who asked him to make the payments first to Mr Felix to pass back information to the defendant to make these payments via Mr Weta.   He said the defendant knew he was making these payments.   She may well have.   But that falls well short of proving any assumption of personal obligation on her part to repay the plaintiff.

Conclusion

[76]     I have reached the conclusion that the plaintiff had no case at all for recovery in respect of the Morgan fraud or the Ivory Coast fraud.   In respect of the Mayo fraud, I am satisfied on the probabilities that he did receive a promise from the defendant to repay the $7,230 that she first requested.  That promise was made in circumstances where it gave rise to a personal debt on the part of the defendant to the plaintiff.  I am not satisfied, however, that the plaintiff has proved on the balance of probabilities a debt obligation on the part of the defendant to him in respect of any of the other payments.

[77]     I find on the probabilities that there is no other promise to repay binding in contract the subsequent sums that he made in respect of any of the frauds.   The

essential reason is that it is well short of any probability that the defendant would have assumed a personal responsibility to pay back the last two large payments, on the Mayo fraud, and therefore of the last payment.

[78]     The plaintiff is entitled to judgment in the sum of $7,230.  The balance of the

plaintiff’s claim is dismissed.  Costs are reserved.