ATTWELLS v HARRIS [1990] NSWCA 13

ATTWELLS v HARRIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA, PRIESTLEY JA and HANDLEY JA 21 November 1990, 22 November 1990

[1990] NSWCA 13

COUNSEL: APPEAL from District Court — claim for amount due by defendant to plaintiff — conflict of evidence — trial judge finds for plaintiff — defendant appeals on ground that trial judge erred in fact finding — nothing in evidence to show judge was mistaken in accepting plaintiff as truthful — appeal dismissed.

Priestley JA The plaintiff began proceedings in the District Court in 1984 alleging that the defendant had borrowed $45,000 from him in September 1979, repayable on demand, interest at $500 a month, and that despite requests for repayment the defendant had not repaid the amount lent. The plaintiff claimed $45,000 plus unpaid interest. The defendant's defence was a denial that the plaintiff had lent him $45,000, or any amount, as claimed by the plaintiff.

The proceedings came to trial in April 1988 and resulted in judgment for the plaintiff for $77,900. The defendant appealed.

The facts of the case were complicated. The plaintiff had lent money to the father and brother of the defendant at different times and the evidence showed a mingling of the affairs of the three Attwells which was difficult to disentangle.

As well as being complicated, the evidence was very detailed. Counsel however were able to distil the evidence down to its relevantly important parts, and I shall follow that example in what follows.

The salient features of the plaintiff's evidence were that in September 1979 the defendant asked him whether he would lend him $45, 000 to be used in buying a hotel; the plaintiff agreed, and asked the defendant what he proposed the interest should be; the defendant suggested $500 a month and the plaintiff agreed; the plaintiff tendered a book of cheque butts which contained two which he said were the butts of cheques he had handed to the defendant; one was for $20,000, the other $25, 000; the notation on the first was "D Attwells 45G", and on the second "balance of 45G" (the admission of these butts in evidence was objected to (the objection was overruled) but it was not suggested that the notations were fabrications); cheques corresponding with the butts were shown by the plaintiff's statement of account to have been duly debited against him; the plaintiff also tendered in evidence a Building Society pass book (admitted over objection), the first entry in which was a deposit of $500 on 26 October 1979; subsequent entries were at monthly intervals, also of $00; the pass book bore the plaintiffs name; he said he began the account as a means of recording the defendant's interest payments separately from amounts being paid by the defendant's father and brother; sometimes he was given one cheque by the defendant, or his brother, for interest on their separate debts to him and credited part to the Building Society account; the plaintiff said he had wanted a security document in regard to the loan and tendered an unregistered mortgage and caveat that had been lodged concerning it, which he said were security for the loan; this mortgage was given by the defendant and Mr JC Malone as registered proprietors of an hotel property; the memorandum of transfer of the hotel to them was in evidence, showing the