WOODS v HARWIN and ANOR [1993] NSWCA 291

WOODS v HARWIN and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, CLARKE and MEAGHER JJA 25 October 1993, 5 November 1993

[1993] NSWCA 291

APPEAL from District Court — Claim for recovery of loan and interest — Verdict for plaintiffs — appeal by defendant. ASSESSMENT of oral evidence — Choice between irreconcilable oral evidence — Process of reasoning.

TESTING of oral evidence against documentary evidence — Rejection of part of oral evidence — Process of reasoning.

CHRONOLOGY of events — Should be objective statements of facts.

Mahoney AP In 1982 Mr and Mrs Harwin made a loan of $20,000. They sued Mrs Woods for return of the principal of the loan plus interest. The sole issue in the proceeding has been: to whom was the loan made.

On 22 October 1992 his Honour McLachlan DCJ held that the loan had been made to the defendant Mrs Woods and gave judgment for the plaintiffs accordingly. The court has been informed that judgment was formally entered. Mrs Woods has appealed to this Court against his Honour's judgment.

As I have indicated, there has been no contest but that Mr and Mrs Harwin made $20,000 available to someone. On their account, the loan was made to Mrs Woods. On the account given by her and her witnesses, the money was given to her son Glen Woods either personally or for his company GMW Prestige Auto Refinishers Pty Ltd. But the evidence given for the plaintiffs and for the defendant differed widely. For the plaintiffs it was said that the loan was made at a time when Mr Glen Woods and the daughter of Mr and Mrs Harwin were friendly. Mrs Woods asked Mr and Mrs Harwin to lend money to her because she was in financial difficulties and feared losing her home. The matter was discussed in more detail at a dinner at the Black Stump Restaurant. Mrs Woods asked whether Mr and Mrs Harwin could lend her $40,000 and they offered to lend her $20,000. Subsequently, Mr Harwin arranged with his bank for the advance to him of $20,000. Of this, $10,000 was handed to Mrs Woods at her home in cash, a further $5,000 was handed to her in cash, and the final $5,000 was given to her in the form of a cash cheque for that amount.