McDONALD v PERRONE [1997] NSWCA 217

McDONALD vy PERRONE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and BEAZLEY JJA, and SHEPPARD AJA 3 September 1997, 30 September 1997

[1997] NSWCA 217

CONTRACT OF LOAN — Finding by trial Judge that appellant borrowed money from respondent — Loan not repaid — Loan denied by appellant — Contract for loan not in writing — Subsequent letters by appellant acknowledging loan — Appeal against findings of fact — No question of principle.

CONTRACT OF LOAN — Respondent claimed to have lent money to appellant pursuant to contract of loan negotiated with applicant through respondent's solicitor. No contract of loan was prepared nor was there any document given to the appellant recording the terms of the loan. The appellant denied borrowing any money from the respondent. In evidence were a number of letters written by the appellant consistent with her having borrowed money from someone whose identity was then unknown to her. The trial Judge rejected evidence given by the appellant in an attempt to explain the letters by attributing them to other transactions in which she was involved. The appeal involved questions of fact only. The Court concluded that the trial Judge's finding should not be interfered with. In the course of its judgment, it made comments concerning the solicitor's failure properly to document the transaction.

Sheller JA I agree with Sheppard AJA. Beazley JA I agree with Sheppard AJA.

Sheppard AJA This is an appeal from a judgment of the District Court (Nash DCJ) in which his Honour found a verdict and judgment for the plaintiff (the respondent to this appeal) of $41,511. His Honour ordered the defendant (the appellant here) to pay the plaintiff's costs including indemnity costs from 21 August 1995. The action in which the respondent sued the appellant was an action to recover the sum of $20.000 together with interest in respect of an alleged loan of money. The judgment was made up of $20.000 principal and $21.511 for accrued interacts. His Honour found that the date on which the loan was made was 12 May 1988. The date of his judgment was 20 September 1996.