New South Wales Supreme Court CITATION : Good Samaritan Donkey Sanctuary Inc v Berry [2006] NSWSC 1218 HEARING DATE(S) : 4/7/05;5/7/05;6/7/05;7/7/05; 8/7/05;11/7/05;12/7/05;13/7/05;14/7/05; 12/10/06; 14/11/06 JUDGMENT DATE : 12 October 2006 JUDGMENT OF : Smart AJ at 1 DECISION : Inquiry Ordered - see Orders of 14/11/06 CATCHWORDS : Detailed examination of accounts - mixing of moneys of plaintiff's predecessor with those of administrator over many years - sources of money for purchase of assets - application of moneys received - loose accounting and banking practices - no question of principle involved. LEGISLATION CITED : Associations Incorporation Act 1984 CASES CITED : Nil PARTIES : Good Samaritan Donkey Sanctuary Inc (GSDSI) v C E & S P Berry FILE NUMBER(S) : SC 1461/02 COUNSEL : (P) Mr M K Rollinson (D) Mr B J Murphy SOLICITORS : (P) Mr S J Friend (D) Mr R Makin IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION SMART AJ Thursday, 12 October 2006 1461/02: GOOD SAMARITAN DONKEY SANCTUARY INC (GSDSI) v C E & S P BERRY [Cross-claim C E Berry v GSDSI & Joanne Kokas] JUDGMENT History 1. In about 1976 Mrs C E Berry (CB) and her husband Mr S P Berry (SB) built their home on a 25 acre lot at Bishop's Bridge (near Maitland). CB started to care for donkeys at those premises. Over the ensuing years she worked hard in caring for and advancing the welfare of donkeys. In about 1980 they purchased and moved to another property at Duns Creek. Mrs Joanne Kokas (JK) was also active in supporting the care and welfare of donkeys. 2. While there was some dispute as to some details, it was not in dispute at the hearing that by about January 1991 an unincorporated Association called Good Samaritan Donkey Sanctuary (GSDS) came into existence and that CB, JK and various other people from about 1990 until 2001 co-operated in substantial work related to the welfare of donkeys and collected and spent a large amount of money on that welfare. 3. In a letter dated 5 May 1992 signed by CB as Administrator of GSDS, it offered to purchase some land at Glen Oak. At the top of the letter it was stated that CB was the Honorary Administrator and JK was the Honorary Deputy Administrator. That reflected their roles. In 1995 the business name of Good Samaritan Donkey Sanctuary was registered, the three proprietors being CB, Elizabeth Harris and JK. 4. There was a body of evidence which established that CB was not in favour of incorporating the Association for some years under the Associations Incorporation Act 1984 and then actively promoted such incorporation which occurred on 28 March 2001 under the name Good Samaritan Donkey Supporters Incorporated. Subsequently, it changed its name to that of the plaintiff. 5. Initially and until the hearing the defendants had contended that there was not an unincorporated association at any material time prior to 28 March 2001. That stance was abandoned. There were some last minute amendments to the Defence and to the Cross-Claim. 6. It was not in dispute at the hearing that the result of the provisions of the Associations Incorporation Act 1984 was that GSDSI had the title to sue and that as from at least January 1991 CB was liable for any wrongful conduct on her part to GSDSI, subject of course to the facts found. 7. During 1999 Ms K L Stapleton, an experienced and qualified bookkeeper assisted JK with some accounting work, including how to make better use of a computer relating to GSDS and raised some questions as to its finances and their management. Ms Stapleton spoke with CB. 8. In about July 2000 Ms L Everett was appointed as the Association's bookkeeper. Subsequently she undertook a financial investigation, prepared a report and was very critical of CB's financial management and application of funds. Ms Everett was not in good health at the time and has since died. 9. At a Committee Meeting of GSDSI on 3 November 2001 CB was confronted with allegations of impropriety which she denied. CB reported that she had done everything for the donkeys and that she was willing to put things right in accordance with Ms L Everett's recommendations to the Committee. CB agreed to transfer to GSDSI land known as Pine Brush and her share of the land known as Largs as well as a sum of cash, being restitution for the balance of any moneys which may be found to be owed by her to GSDSI. 10. On 10 November 2001 CB paid $15,000 to GSDSI. The receipt issued by Ms Everett on its behalf described the moneys received as "Being part Restitution of Debt". This was said to represent nearly half the cost of printing the books known as Donkey Business 3. 11. On 30 November 2001 CB paid a further $264,388 to GSDSI. 12. On 30 November 2001 CB's solicitors forwarded transfers signed by her as transferor to the predecessor of GSDSI as transferee of the land at Pine Brush and Largs. Those transfers have been registered. In her solicitors' letter it is stated that CB holds moneys in accounts with the Newcastle Permanent Building Society on trust for GSDSI and that she was prepared to discuss the details of these accounts and make appropriate arrangements for the transfer of funds held on trust with Ms Everett or JK direct. 13. CB's solicitors also advised that her current state of health made her unable to continue to actively participate in the day to day care of animals or to participate actively in the administration of the Sanctuary. Effectively, CB resigned from her position as Administrator of GSDSI. 14. Up to 1999 JK lived at Crescent Head and cared for donkeys rescued or surrendered on the mid North Coast, but there was a greater number of donkeys in need in the Hunter Region. JK visited the Hunter Region Sanctuary about every two months. In 1999 JK relocated. From about mid-September 1999 she lived at Glen William, a short distance from the Donkey Sanctuary at Pine Brush. There were some irregular practices, for example, for many years JK signed many cheques in blank on the accounts of GSDS where she was a joint signatory and left them with CB. Until at least late March 2001 GSDS and its predecessors were effectively run by CB. By signing cheques in blank JK gave CB what was tantamount to a free hand. There was no evidence suggesting that this undesirable practice ceased when JK moved to Glen William. 15. GSDSI claims that CB has only made part restitution of the assets acquired by her on behalf of its predecessors before its incorporation. The Pleadings 16. In its statement of claim the plaintiff sought wide ranging relief. In essence the plaintiff sought judgment against CB where the Court was satisfied that moneys were due by her to the plaintiff or that there be full accounting by CB. 17. By CB's Second Amended Cross-Claim she asserted that she "mixed her personal moneys, which had accumulated from other sources with money she used in caring for donkeys and did not do any separate accounting. By the words "from other sources" it was probably intended to convey from sources other than those associated with GSDSI, its supporters, donors and patrons. It was asserted that: (a) about 1992 or 1993 JK offered assistance by way of keeping records, both financial and documentary on a computer system for CB and she accepted JK's offer; (b) CB received some bequests directed to the Sanctuary and made acquisitions of property partly with that money and partly with CB's own money; (c) Some gifts and donations received by CB were paid to JK and CB is not aware of how those moneys were dealt with as all pertinent financial records were being kept by JK, and (d) JK utilised CB's moneys personally including payment for erecting buildings on JK's own lands without accounting to the cross-claimant. 18. CB alleged that: (a) About November 2001 GSDSI at a meeting demanded that CB hand over all the money she had in her possession and/or control to it; (b) threats of legal action and police action were made against her to induce her to transfer such moneys to GSDSI and she felt duress to transfer these moneys; (c) she believed that legally she must transfer these moneys to GSDSI and executed the necessary bank documents to do so, and (d) such documents were executed by mistake and/or under duress. 19. CB sought the following relief: (a) A declaration that the amount contributed by CB to the acquisition of Lot 3, Old Pine Brush Road and the amount that CB contributed to the amount of $264,388 paid to GSDSI be held in trust by GSDSI for CB . (b) An order that GSDSI pay CB $151,893. (c) A declaration that JK had used moneys of CB "mixed with moneys of the cross-defendant referred to in 18 [para 18 of the cross-claim] to build sheds on her property [CB] is entitled to an order that [JK] pay to her any of her monies so sourced". (The meaning of the last mentioned relief sought is not clear) Some Problems 20. CB and JK were friends and worked closely together for many years. Broadly, CB was very active in the physical care of the donkeys and was the public face of GSDS but she did the banking and received donations and correspondence. She issued receipts while JK attended to much of the office work and acted as the bookkeeper. CB and JK are now bitter enemies and have been for a number of years. 21. The financial affairs of GSDS were in a large mess and trying to sort them out has been a daunting task. Many of the primary source records no longer exist. The moneys of CB and GSDS were mixed. It has often been necessary to trace moneys through a number of accounts. That is a continuing task. As mentioned, there were irregular practices. More details will emerge. 22. JK claimed that she was only aware of five bank accounts or financial institution accounts, the first of which was opened about 30 June 1992 and closed about 2 November 2003. These accounts were all in the name of GSD Sanctuary with Greater Building Society Limited and the cheques drawn on these accounts required the signatures of both CB and JK.. These five accounts are listed in the top box of Schedule B to the report of Mr Rosetto, the investigating accountant. CB said that she had no knowledge of a further 22 accounts, which were opened with building societies and a bank. 21 of these accounts were under the sole control of CB and one of them was in the name of SB. Those accounts are listed in the bottom or lower box on Schedule B. CB denied that JK was not aware of other accounts being opened. Over the years real property was purchased and sold, donations were received and large sums were expended on maintaining, accommodating, feeding and caring for many donkeys. 23. While the evidence of JK, CB and the other witnesses was of importance, the examination of the summary of the transactions (unfortunately, more than 5000) was of prime importance. 24. I propose to refer to the evidence of the various witnesses to assist with understanding the background and then to examine the financial evidence. After that I will deal with the cross-claim. Some More of the Background JK's Evidence 25. JK said that she was only aware of three of the five GSDS accounts with the Greater Building Society. From 1991 until 1999 JK said that she mostly took instructions from CB by telephone. JK stated that during that period CB insisted on managing all banking and monetary affairs and that she (JK) regularly sent correspondence, and in particular, money orders and cheques from donors and sponsors, to CB for attention and banking. JK said that she gave CB the cash donations to bank when she saw CB in person. JK said that this financial arrangement continued after she moved to Glen William (September 1999). 26. JK said that she was aware of the domestic circumstances of CB and that: (a) since the establishment of GSDS CB has had no apparent employment with the exception of working one evening per month as a minute secretary (b) her husband is a carpenter and quite frequently arrived home early in the day and did not appear to have worked at all since 1999 I interpolate that CB worked more extensively in the non-donkey work than JK stated. SB was a sub-contract carpenter and apparently had some profitable sub-contracts prior to mid 1999 wen he suffered major heart problems. On any view the combined income of CB and SB was not such as to enable them to make major financial contributions to GSDS. CB primarily provided extensive personal and physical labour to GSDS and engaged in fund raising activities. 27. JK stated that on many occasions since 1997 CB told her that she and/or her husband had received inheritances and these were the source of the money used to purchase property. "Many" is probably an exaggeration. 28. JK stated that CB told her that the land at Pine Brush (which was used to accommodate the donkeys and became the site of the Donkey Sanctuary) was purchased from inheritances she received from the estates of her relatives. I am not satisfied that this was said. That land was purchased, but not out of the sources suggested and the Pine Brush land has been transferred to the plaintiff. JK further stated that when the Largs land and the Pine Brush lands were transferred to GSDSI , both she and CB acknowledged that those lands were always owned beneficially by the plaintiff and that they were trustees of such lands. JK stated that when the Largs land was purchased CB said that the land would be in their names as the Sanctuary was unincorporated, that CB told her that a Mary McDonnell had , when asked, given her some money to do so. JK said that on the purchase of the Largs land CB remarked, "the donkeys can't own land." JK agreed with the proposal to put the Largs land in the joint names of herself and CB. 29. JK thought that at the end of 1995 she did some accounting or financial record keeping work. She said that she was visiting CB's property at the end of 1995, that they caught up on office work then and that she did some receipting work. They were both in the office. JK said that in 1996 she took the office work home (then at Crescent Head) and that they changed the postal address of GSDS. 30. JK denied that when she first started looking after the books Mrs Berry handed over to her some ledger cards on which she had recorded various financial transactions. I do not know what is the true position. I am unable to make a finding. JK said that when she started looking after the books CB gave her the finished deposit books from the Building Society. JK then used her computer, which she could only operate at a low level of proficiency, to prepare a spreadsheet incorporating the material supplied. She said that she used her computer as a word processor. JK denied that from about 1990 CB handed over to her a lot of cards on which financial transactions were entered. Again, I am unable to make a finding as to the true position. JK said that CB gave her lot of text to type. JK agreed that the computer she had and used in 1990 was upgraded by the (unincorporated) association in 1995 and, it seems by January 1995. 31. JK agreed that she went with CB to the Greater Building Society to open the four accounts nominated in paragraph 4 of her affidavit of 7 June 2004. They also obtained cheque books and deposit books. JK was not sure of the date. She said it was around the beginning of 1996; it might have been 1995. When JK's attention was drawn to the details shown on Schedule B to Mr Rossetto's report, she agreed that the first account was opened on 30 June 1992; she stated "but I didn't do the books then. We just had the money in, opened the accounts" (with JK and CB both having to sign the cheques). JK stated that she was not doing the receipting or the books and that all the money went to CB then. JK initially said that as the chequebooks and deposit books were finished CB sent them to her and agreed that it was about 1992 when they started "filling" those books up. JK corrected her answer immediately and said that it was about 1995 as prior to that time she had spent most of her time writing and typing forms and there were hundreds of them. 32. In a Newsletter of the unincorporated association prepared around 1991-1992, with no greater precision as to date being possible, it is stated that CB and JK are co-editors of the GSDS Newsletter and that it was designed and written on computer. 33. The Newsletter (p2) describes CB as the Administrator, Spokeswoman and Public Officer and her role. She had overall control JK is described as Deputy Administrator – Book & Record Keeper. This description of her role follows: "{JK] controls the office side of all GSDS matters, seeing to the book keeping which is all kept on computer. [JK] and [CB] confer on all general business dealings. [JK] is an artist and designed the official logo, she also designs prints and produces, or organises all of our official artwork for our T-Shirts, cards, forms, stickers, labels, advertising and promotion etc. [JK] handles all mail orders. [JK] keeps all records of the GSDS donkeys as well as maintaining records, the number systems for the volunteers, donkeys and registration of donkeys on computer." 34. Nothing is said about the handling of the financial affairs of GSDS except to the extent that matter is covered in the first quoted paragraph. JK regarded that description of her role as flamboyant, that is, used for publicity and public relations purposes. What is written corresponds with the evidence of CB. 35. The Newsletter describes GSDS as a non-profit organisation. It sets out the terms of the GSDS constitution. That specifies that any income, or property, grant or legacy which may come under the control of GSDS shall be applied solely towards the aims and objects of the Sanctuary. It also specifies that the administrators (CB and JK) and all volunteers provide their services at their own risk and do so without expecting any remuneration. 36. Another Newsletter (p2 and bearing the dates of events in 1991) repeats the description of JK and her duties. It adds "[JK] is the treasurer and handles all accounts and general business dealings." 37. The second mentioned Newsletter, which also sets out the constitution may be a draft of the Newsletter first mentioned. It seems that the description of JK as treasurer and handling all accounts was dropped, perhaps by JK. The evidence does not disclose this. 38. JK agreed that she described herself as at 1991-1992 as a bookkeeper and as keeping the records on computer. JK described what she did as basic; she prepared a spreadsheet. JK stated that in 1995 the material from the early years was transferred to the upgraded computer which was further updated in 1997. All the early data was retained but there were different programs. JK stated that in 1999, although Ms Stapleton tried to teach her how to use the computer for accounting work, JK was restricted to spreadsheets. 39. While JK seemed to agree in cross-examination that she had done some spreadsheets since about 1992, she said there were no books to do. She thought that it was 1995 before she placed material from the books on spreadsheets. She said that she was poor at remembering dates. In her affidavit of 9 July 2004 (para 18) JK said that from about 1995 she also kept some financial data and other records and information regarding rhe financial and statutory affairs of the plaintiff. This was in the spreadsheets, as she did not understand how to use an accounting system. JK said that she recorded the information of which she was made aware by CB. 40. JK said in her affidavit that from the beginning until 1996 CB received and processed mail and correspondence, including money or cheques received and that from 1995 to 1996 CB sent donors' mail to JK on which CB wrote how much they sent. CB also sent the letters of the donors to JK for her to process on the computer. CB did the receipting and banking. Up to September 1999 JK did the banking on but two occasions. I am wary about relying on JK's statements as to the dates and periods of activity. 41. In cross-examination JK agreed that after CB finished using the cheque books CB sent her the cheque butts, receipts for moneys she had expended and completed passbooks, from which she entered the amounts of all the deposits. She also became familiar with the withdrawals and the balances shown. Any deposits received by JK were sent to CB, as she was nearest the Building Society. Up to about May 1999 the records of the amounts that had been deposited and withdrawn from the Building Society accounts were up to date. 42. Apparently, Ms Stapleton told JK that she could not keep the accounts adequately on spreadsheets and transferred the data to Microsoft Money, a system which JK said she tried unsuccessfully to learn. Ms Stapleton put in a lot of the data and a little later Ms Everett took over when she began her employment and transferred the data on to a program known as MYOB. JK was unsure of the dates. Ms Everett eventually transferred the material on JK's computer to the computer she (Ms Everett) used. 43. JK said that in 1995 the members of the Committee of GSDS selected Mr Chris Voase to be its accountant and auditor and that he continued in this capacity until April 2001. I will come to his evidence later, but he does not seem to have been engaged until April 1997. JK approached Mr Voase. He was her personal accountant. 44. In cross-examination JK agreed that between 1995 and 1999 she had all of the financial records of the Association up to date on the computer. This could only refer to the matters of which she was aware, and it was only up to May 1999. There was evidence elicited by the cross-examiner as to the various computers JK had and the transfer of material from one computer to another by the computer technician. At one stage she had the Excel program and she was able to print out with Excel. She said that she gave Mr Voase the printout to do the accounts for the year ended 30 June 1996 and subsequent years. 45. She said that she gave Mr Voase hard copies of the Excel spreadsheets containing receipts and outgoings. She said that she gave Mr Voase the receipts for what she had spent and what CB had spent, all the cheque butts, all the receipt books (presumably containing copies of the receipts issued) all the petty cash vouchers and records of all deposits in the form of Building Society passbooks. Mrs Kokas said she took the documents to Mr Voase every year to do the accounts for GSDS. Mr Voase puts it a little differently. She had no idea how Mr Voase came to write in his reports of 2 May 2000 that less than 25 per cent of substantiating records could be located. She gave Mr Voase everything she had. She agreed (T72) that she had earlier said she was given everything. 46. JK agreed that she could have been given the last four to six cheques in a cheque book pre-signed by CB. JK was not sure of the precise number. She had donkey expenses to meet, for example, for the farrier and for feed. She returned any unused cheques to CB and got fresh cheques from the new book. CB drew a lot of cheques. 47. JK agreed that CB would tell her from the cheque butts how CB had spent the money. JK said she did likewise. Normally, any of the unused cheques were used during her visit, as she took the cheque books (butts) back with her. 48. JK said that she had to balance the withdrawals and the deposits and if details of the purpose of a withdrawal were missing, she telephoned CB and asked her what the cheque was for. She had all the cheque butts for each year. 49. JK agreed that sometimes CB would obtain petrol. CB also bought hay, sometimes paying in cash. When CB went to people's houses to tend their donkeys money was spent on supplies. GSDS paid for the supplies in cash. This meant CB had to have cash with her. 50. When JK received money orders for donations she forwarded them to CB who cashed them at the Post Office and used the proceeds for petty cash. JK denied that she suggested this. The money orders were not put in the bank (Building Society). JK never entered them in the records as a deposit. JK said that details of these money orders were just in the data base. JK said that she did not enter up the details of the money orders and put them in the bank because CB needed to cash them so she would have money on her person. JK said that she received a lot of money (or postal) orders. Mostly they ranged from $10 to $50, but some were up to a few hundred dollars. Mostly cheques were received. They were made out to GSDS and not to CB. JK sent them down to CB for banking. She did not check that all the cheques were banked. She had details of each donation on the data base she kept. The data base was not part of an accounting system, it did not tally up totals. There was just a data base for every person. 51. JK said that when she received the yearly accounts from Mr Voase she did not open them but filed them away. She was not aware of the terms of his reports that less than 25 per cent of substantiating records could be located. 52. JK said that she did not total the amounts of the cheques or money orders which she had received. She sent cheques etc periodically to CB without knowing the total of what she sent. 53. JK said she never checked how much had been expended by the cheques or how much CB had spent in cash. I would have expected the bookkeeper to have done so. JK said that over a period of five years she did not have any idea of how much she sent down to CB when she sent money (cheques and money orders). That is surprising. JK stated that she tried to improve her skills, especially on the computer, but failed. 54. JK said that she did not know why the four separate accounts were opened. JK said that she knew of an account that was an investment account. JK thought that once or twice CB told her that she was putting money into an investment account, but she really could not remember. She just remembered the Grogan one. Some money was placed with Mr Grogan, JK's solicitor. JK was there when that happened. 55. In cross-examination it was suggested that there was no real committee. It was difficult to get people to serve on the Committee of GSDS. People were asked to serve on the Committee by CB and also by JK. There were no elections or formal meetings. In essence GSDS was run by CB and JK with voluntary assistance. 56. JK said that she had no formal bookkeeping training or clerical experience and fulfilled the function of bookkeeping work because no-one else wanted to do it and CB insisted that she (JK) should do it because CB had far more donkey care work than JK. JK felt that she was just fumbling about. 57. JK agreed that from 1996 to 1998 the money (for GSDS) was going to herself and from 1998 it was going to PO Box 4 at Clarence Town and being picked up by CB, because she lived nearby. After September 1999 her husband collected the mail occasionally. 58. JK said that from time to time she received part reimbursement for out of pocket expenses, that CB would often tell her there was no money and that she (JK) made extra contributions. JK said that this happened occasionally. 59. JK agreed that GSDS had big bills to pay and needed to keep money coming in. 60. JK agreed that after the Open Days (and perhaps also the Field Days – the evidence is not clear) sometimes she and CB would either that evening or next morning tally up the takings or proceeds at CB's place. JK said that the cash stayed with CB. 61. I propose to suspend this summary of JK's evidence and to interpolate a summary of Mr Voase's evidence as to his preparation of the accounts of the unincorporated association and the steps he took after his audit in about April 2001 and then return to the summary of JK's evidence. Accountancy Evidence of Mr Voase 62. Mr Voase said that in April 1997 he was engaged to do the accounts for GSDS and he prepared accounts for 1995/1996. He did not recall any serious anomalies in that audit. There was not a lot of material to look at for the year ending 30 June 1996, but it must have been satisfactory from his point of view. Mr Voase had been in public practice as an accountant since May 1983. There was no challenge to his qualifications or competency. 63. Mr Voase said that in March or April 2000 he was engaged to audit accounts from the financial year 1997 to the financial year 2000. His main contact was with JK. She was the bookkeeper. Mr Voase requested JK to supply the bank records, vouchers pertaining to expenses and income. This is usual. The main focus on the audit was to verify that the expenses of GSDS were bona fide. JK provided, "Mostly Building Society Books, with notations on them for what the income and expenditure related to". Mr Voase recalled JK provided some spreadsheets. He entered the information into his own computer independently. Mr Voase was not certain whether JK provided any cheque butts. He could not recall if he was missing cheque butts. He recalled that he looked at vouchers for petty cash items. He did not recall any petty cash books. Mr Voase said that for the purpose of the audit he worked mainly from the records of the Greater Building Society account 016 045 52903/3. To his knowledge that was the operating account for GSDS. It was a cheque account. In his reports of 2 May 2000 on the accounts for GSDS for the years ended 30 June 1997, 1998 and 1999 he wrote: "I am unable to reach a conclusion as to the accuracy of amounts as shown in the accounts. This is because I was unable to verify on a test basis the relationship between the indicated values and substantiating records due to the partial absence of receipts invoices and other vouchers with which to prove them. According to my tests less than 25% of substantiating records could be located." Mr Voase said that when he only had 25 per cent of the primary source material he asked if there were any more records and that he probably spoke to JK about this. 64. In his report of 19 April 2001 dealing with the accounts for GSDS for the year ended 30 June 2000 Mr Voase wrote: "Although the accounts reconcile with the bank statements I am unable to provide an unqualified audit opinion for their accuracy. This is mainly due to the absence of about 2/3rds of substantiating records for expenditure incurred. This does not necessarily indicate that there has been any deliberate intention to mislead by anyone maintaining the records of the Sanctuary. It just indicated that the accounts cannot be considered reliable." 65. Mr Voase said that after his reports of 2 May 2000 he had a meeting with CB and JK. It is not clear when this meeting was held. He could not recall whether he had had any personal or telephone contact with CB before that. 66. Mr Voase said that on the materials he had seen he formed the view that $130,000 would cover any shortfall that he could see in the books of GSDS. He believed that he would have conveyed that to the Committee. He did not recall a conversation specifically with CB to that effect. 67. Mr Voase said that JK told him she was not a very good record keeper and the records were not intact, in response to his request for the records. 68. Mr Voase impressed me as an honest witness. I would not expect him to be able to recall accurately what records he had seen. The comments in his audit reports are accepted as correct. He was concerned that there appeared to be a shortfall. While he believed that he discussed this with members of the Committee of GSDS, I think he may have mentioned the matters to some members of the Committee. 69. Mr Voase's evidence revealed an unsatisfactory state of affairs. JK was not a good keeper of records, but she depended on the records CB gave her. CB probably did not give to JK any of the records relating to the 22 accounts listed in the lower box of Schedule B and described as "Accounts Held Solely by C Berry". 70. In her affidavit of 9 July 2004 (para 35) JK said that after Mr Voase had finished auditing the accounts of GSDS for the year ending 30 June 2000 he telephoned her with some queries about the accounts and she referred him to CB. JK said that CB told her, "It concerns the amount of $10,000" and instructed her, "do not speak to him anymore". JK said she believed some relatively minor technicality had arisen which CB wished to sort out with Mr Voase and that it was over her level of understanding. As Mr Voase was JK's accountant to CB's knowledge it is hard to accept that CB would have issued the instruction suggested. 71. In para 38 of that affidavit JK said that she was not assigned the task of keeping records of receipts and letters received from donors until after she moved to Glen William (Sept 1999). 72. JK continued that in about July/August 2001 CB came into JK's office at her home and demanded all the Sanctuary paperwork, saying "Jo, you keep too many details and records." CB said words to the effect of "How many times have I told you, I do not keep all these records," CB had often said words to this effect over the years. JK said she had no idea of what records CB wanted and that she [JK] gave CB access to all the records. JK said CB took what she wanted and left. JK spoke to a few people and then telephoned CB and told her that she wanted some of the paperwork back. She went down to where CB was living and asked for the paperwork. CB replied, "I have burnt everything." CB and Elizabeth Harris gave a different account of what happened when CB attended upon JK at her home. I am not persuaded that the version given by CB is correct. Elizabeth Harris did not see materials being removed from JK's house. CB's Evidence 73. CB said that she met JK about 1978 or 1979, that in January 1991 she contacted a number of her friends, that she held a meeting on 19 January 1991 and that JK was not included in her list of those attending. CB said that at the meeting a number of her friends agreed to assist her in caring for donkeys on two days each week. CB said that at the meeting Mr S M Baber agreed to make his land at Glen Oak available for the accommodation of welfare donkeys in return for CB agreeing to continue looking after the donkeys. Mr Baker died on 18 December 1991. CB had to move the donkeys back to her property at Duns Creek together with the donkeys he left her under his will. 74. CB said that in or about 1992-1993, JK, having recently completed a computer course, agreed to help her in producing newsletters that CB sent out to friends of donkeys. JK, who lived at Crescent Head, took no active part in the daily care and welfare of the donkeys. 75. CB said that from 1992 to 2000 she organised fund raising activities in the form of open days etc, and that those activities raised small amounts of money, all of which were used for the day to day care of donkeys. CB said she kept no records of these moneys, as she considered she was merely carrying on her activity in caring for the donkeys. JK did not attend all the open days and functions but attended once or twice per year. 76. CB agreed that the Committee of GSDS was constituted informally. There was no formal process for appointing a committee member and formal committee meetings were not held. There were informal meetings. CB said that she was the Hon. Administrator. The other roles were attributed to her by JK. CB accepted that she was the person in charge of GSDS. CB said that she discussed everything she did with JK. 77. CB said that she and JK opened five accounts with the Greater Building Society in Maitland to which CB went quite frequently. CB said that she did the banking. She received cheques in the mail, usually accompanied by a letter, wrote a receipt and sent the letter and advised JK of the amount (often with the receipt to go with the next newsletter) for JK to enter the details on the computer. 78. CB said that in 1996 there was a change. GSDS was receiving a lot more income and she went overseas, so mail went to JK's address at Crescent Head. That continued after CB returned. JK posted the cheques down to CB to be banked 79. Money orders were posted by JK to CB who cashed them. CB said she believed that these were recorded. The cash received was her petty cash which was used for the purchase of hay, feed for the donkeys and to buy items and supplies to meet the needs of donkeys who were at homes away from the Sanctuary. CB said the cash was primarily spent on hay and wormer. She listed other items purchased (T215, lns 15-129). When she spent the cash she sent the dockets and/or receipts to JK or handed them to her. CB agreed that both she and JK had a number of cheques signed by the other which could be completed to pay bills. 80. CB said that the explanation for the other accounts opened in the name of GSDS was that she withdrew an accumulated sum of money out of the general account and invested it to gain interest and that the interest and the capital would be put back into the donkeys (T216). By "put back into the donkeys" CB meant applied towards the cost of feeding, housing and caring for the donkeys. There were many welfare donkeys. At the time she did not know she was dealing with an unincorporated association and that she should not be mixing her funds and the association's funds. (T216) 81. CB said that JK kept all the records, that she posted the used cheque books and passbooks to JK for keeping. CB said that JK had about a dozen donkeys at the most at anyone time but they were her donkeys, not welfare donkeys. 82. CB said that she did contract work as a secretary, mainly at night for 20 hours per week. She looked after the donkeys during the day. She also ran a farm. Before her husband had his heart attacks in June 1999 he worked as a subcontractor carpenter. CB said that as a result of her husband's severe heart attack on 19 June 1999 her husband was hospitalised and she stayed with him for eleven days during which time JK and her husband stayed at the home of CB and SB. CB said that at that time she left blank signed cheques and blank signed withdrawal slips with JK to enable her to operate the accounts CB was using for donkey activities. CB said that initially after her husband and she returned home a considerable amount of her time was taken up caring for him and she gave blank withdrawal slips to JK. 83. In cross-examination CB agreed that on an income tax return estimate document, under the heading "Averaging Primary Producers" the taxable income for each of the years 94/95, 95/96, 96/97 and 97/98 was shown as less than $10,000. For the year ended June 1998 her taxable income was shown as $5249 and the taxable income as $153. 84. CB agreed that the document was drawn up by her accountant on the basis of his examination of her farm records for the year and all other records relevant to her taxable income. She did not believe that contributions people gave her towards her travel costs etc to do donkey hooves or attend to the ill health of donkeys was taxable income. 85. CB did not have a substantial income in the years up to 1998. For the 2000/2001 financial year the figures are higher but they were not readily explicable. Perhaps there was a capital gains tax component. 86. CB said that she received a bequest from Mr S Baber and her husband received a bequest from his mother. She denied that she told untruths about inheritances. 87. CB said that before the Pine Brush property was purchased she and JK drove around it and looked at it and she discussed how its purchase might be financed. The donkeys were to go there because she (CB) and her husband were selling Lot 101 Limeburners Creek Road, Clarence Town. The Pine Brush land was vacant land but good for keeping animals. 88. CB said she did some farriering work at the properties of other people. She did charge for it, but the amounts were more of a contribution to her towards travelling to these properties and maintaining tools etc. 89. After the Association was incorporated she was paid for farriering work after the Committee authorised it. 90. CB denied that prior to the Association's incorporation she ever told JK that there was no money to reimburse her expenses. There was one occasion after incorporation when there was a shortfall. 91. CB said that JK would take home cash money after open days (presumably those JK attended) for her expenses. CB denied that on open days etc she would take any money that was collected and lock it in her car 92. CB agreed that Mr Voase telephoned at one stage. CB denied that afterwards she told JK that it concerned about $10,000. CB also denied telling JK not to speak to him any more. 93. CB said that in April 2001 she, Elizabeth Harris, a hard worker in the cause of donkey welfare and friend of CB, and Mrs Harris' granddaughter went to JK's house. CB wanted to ask JK particular questions relating to her conversation with Mr Voase. CB said that JK would not let her in her house and that she spoke to JK through a small opening in her office window. CB stated that she said, "I'll need a printout from the computer of the financial situation of GSDS." They argued. CB said that if she remembered correctly JK telephoned Ms Everett "who supposedly talked her though how to print out a copy." CB saw JK talking on the telephone to someone. After that JK produced some spreadsheets and handed them to CB. 94. CB denied ever taking any boxes from JK's house. CB denied telling JK that she (CB) had burnt paperwork. CB stated that on the day she obtained the printout she demanded to see all the dockets and receipt books JK had stored in her house but JK said she had burnt them all (T234). 95. By "receipts" CB included all the dockets she had to back up what she spent money on and the receipt books from which she would issue receipts to people for a donation or contribution. (I assume those would be the books containing the duplicates). 96. CB said that in November 2001 JK came to her house to have a look at CB's computer to remove Mr Kokas' CV which was on that computer which had previously been with JK. CB said JK asked for a drink of water and that while CB was getting that JK was alone in the room with what was then CB's computer. CB said that Microsoft Works and Word programs were on that computer but that she only worked in Word. CB said she did not open up Works. She said that when she checked her computer, probably that night, she discovered that Microsoft Works, the CV of JK's husband and a lot of documents CB had prepared had gone, that is, had been deleted. 97. CB said that JK used Microsoft Works and Word. CB said that prior to JK moving to the Hunter Region she used CB's computer. CB said that JK placed a disk into Microsoft Works and backed up the financial records and the subscribers list of names that was in Works. CB said that JK told her not to open up Works because JK knew that CB would lose it. CB described herself as hopeless. 98. CB believed the deletions were effected by JK. CB attributed to JK greater computer skills than JK admitted. 99. CB's evidence suggesting that JK had deleted extensive material from CB's computer while CB was absent from the computer room fetching a glass of water struck me as probably incorrect. 100. CB said that by early 2001 she became concerned that JK may have been appropriating funds of CB for property improvement on JK's land. CB, without mentioning the reason, advocated and worked for the incorporation of the Association, with JK's agreement. CB said that at no time did she intend to give her money or her property to the new Association and that her intent was that the new Association carry on the work with her services and help, but not take over all of her assets. 101. In her affidavit of 11 June 2004 CB made a response to the report of Mr Rossetto. It is convenient to deal with that later. In para 6 of that affidavit CB asserted that from the early 1990's all mail addressed to GSDS was sent to Box 5, Crescent Head, the address on the Newsletters and that of JK. CB stated that JK was to open the mail and make the appropriate accounting records on her computer. CB said that cheques were then forwarded to her by mail at Duns Creek to bank in the Greater Building Society account in Maitland. CB said that she received no cash from JK and had no knowledge or record of what was done with cash handed to her (excepting cash handed to JK on open days). CB said she kept no record of any cheques she received until JK moved to Clarence Town from which time she completed the deposit book in her office for the purpose of depositing these cheques. CB stated that she understood the books of account of GSDS were being kept by JK and that as early as 1997 she was aware that there were certain difficulties with them and she approached Jacqueline Frick. That lady confirmed that in early 1997 CB had asked her to be the bookkeeper for GSDS, but she (Frick) declined. 102. CB was cross-examined at length, the cross-examination occupying about 120 pages of the transcript. 103. CB said that as to her employment as a secretary, her recollection was that that was over the period 1986-1995. She claimed she had more than one secretarial position. She could not remember into which account or accounts she banked her wages. 104. CB accepted that different accounts were opened to obtain interest. CB said that when JK visited her they discussed finances and bookkeeping as they understood them. JK would close off the books "for whatever period and we would go and close the bank account." 105. CB said that she was not referring to financial years and that she did "not know what period she was referring to, whatever JK told her." Such a situation seems improbable. No accounts (even imperfect accounts) were produced for any year prior to the financial accounts for the year 30 June 1996. 106. CB agreed that during the years she was involved in the Association and the Sanctuary decisions about donkey wellbeing would ultimately be her decisions and not anyone else's. CB also agreed that during those years decisions about financial matters in the Association and the Sanctuary would ultimately be made by her and not by anybody else (T249). Although CB had some good volunteer helpers who worked hard for the welfare of the donkeys, CB was on the job virtually fulltime and worked harder than anyone else. CB had a detailed knowledge of what was needed and the volunteers and Committee members accepted what she said and her assessments. 107. CB stated that she always discussed everything with JK with regard to the finances because she did not understand them (T249). CB said she sought out the interest rates paid on deposits. There was no Greater Building Society branch at Crescent Head. The closest branch was at Port Macquarie. However, there was a branch at Maitland and CB often went to Maitland. 108. CB could not remember what was done with some of the moneys withdrawn from GSDS accounts. CB could not remember whether certain accounts, where she was the sole signatory, were opened by her alone without reference to JK. CB said that she would have spoken to JK about moving any money (T255-6). CB also said that she would have spoken to JK about opening a new building society account relating to the Sanctuary account. 109. CB proffered this explanation [at T255]: "If [JK] was never a signatory, it was for a particular reason that she could not come down, could not be present or whatever." 110. At T255, on being pressed as to why she opened an account entitled GSDS with herself alone as the signatory, CB said "It was my donkey Sanctuary." 111. That was a revealing reply. She said that perhaps at the time, in her opinion there was no such thing as an Association. She could not give a reason for what she did but she believed that the donkeys would have been benefiting from whatever transactions happened. 112. At T260 CB agreed that until JK moved to the Hunter Region in 1999 the finances were left, practically, in her hands. CB added that she was the person who looked after the animals and had to have access to the bank so she could feed and care for them. CB said that she discussed major transactions with JK and all the transactions of moving money around, CB said that JK devised the title of one of the accounts, namely "Good Samaritan Donkey Sanctuary, Braymart". This was an account where the sole signatory was CB (T274). 113. CB said that she did not know until 2001 when Mr Voase telephoned her that he had drawn up accounts for the financial years ended 30 June 1996 and onwards up to 30 June 2000. While this is possible it seems improbable. During her cross-examination and not in response to the question asked, CB volunteered that JK would always assure her, "books balanced beautifully". I am sceptical about that. It was JK who wanted the accounts audited. At T302 CB said that she did not recall having spoken to Mr Voase but she did recall going to his office with JK, probably twice. This may not have been on GSDS business. At T320 CB said she had not previously seen Mr Voase's letter of 19 April 2001 and that she had only ever spoken with him on one occasion on the telephone about issues. That was in 2001. 114. While the Building Society passbooks were in use CB retained them. They were sent to JK when full. CB said that she agreed that the greatest expenditure of GSDS funds was by her. She estimated probably more than 80 or 90 per cent. 115. It was put to CB that she had not told JK of the existence of any of the accounts listed in the lower box of Schedule B to Mr Rossetto's report, with the possible exception of the Braymart account. CB denied that that was the position. 116. CB was cross-examined (T299-300) on paragraphs 15 and 16 of her affidavit of 27 June 2002, which read: 15. "In or about 1996, I was instrumental in a substantial pro motional drive including TV publicity for my activities. As a result of this drive, contributions to me for the care of the donkeys increased dramatically. At that time, not being an experienced "money manager" I asked Joanne to be involved with the money management of my activities. As a result I opened a bank account and included Joanne and Elizabeth on that bank account as co-signatories. Joanne at this time also agreed to keep my financial records for my donkey work which I understand she maintained on her computer. 16. From about that time, most of the mail relating to my donkey work at her request was directed to Joanne Kokas. Any cheques received were to be recorded by Joanne and forwarded to myself to deposit in the bank account. Joanne Kokas did not request from me details of expenditure nor were any details provided to her. Some cash donations were handed to Joanne for the purpose of safekeeping in her safe." Upon objection being taken by the plaintiff these paragraphs were rejected but leave was granted to lead oral evidence as to these matters. 117. The account mentioned in para 15 was probably that opened with the Greater Building Society on 26 June 1996 in the name of GSDS with CB and JK as joint signatories. That is the fourth account listed in the top box of Schedule B to Mr Rossetto's report. 118. CB (at T301) said that the third sentence in para 16 did not mean that CB did not send JK dockets. CB said that she did send dockets to JK. CB said that the new account was opened "because there was a whole new era in the donkey world." 119. The agenda for the Committee meeting of 27 March 2001 contained this item numbered 4: "To approve that any financial contribution and advancement to Christine Berry be accepted as waived by the committee of the Good Samaritan Donkey Supporters in appreciation for all her work and countless and incalculable known and unknown financial contributions for Donkeys in need in the past." 120. CB asserted that this item on the agenda was taken from what JK had written. CB agreed that the agenda contained her handwriting and had her name at the bottom. She and JK had a discussion. 121. The minutes of that meeting record: "It was agreed to approve that any financial contribution and advancement made to Christine Berry as agreed by the committee of the Good Samaritan Donkey Supporters be accepted as waived in view of her work done for the donkeys and the free use of her vehicles and floats of transporting donkeys and feed etc. over many years." CB said that this resolution was put forward by JK. 122. Referring to open days and their proceeds CB said that not a great deal of money left her place and went to JK. 123. CB said that she believed that until 28 March 2001 there was no unincorporated Association. She said that she was confused. Elizabeth Harris 124. Mrs Harris, who worked very hard assisting with the care of donkeys over the years, said that JK never had a lot to do with the practical side of caring for the donkeys, but was involved in the administration of GSDS. Mrs Harris said that on the open days JK attended she always collected any moneys GSDS made. Mrs Harris said that GSDS operated a small gift shop at Clarence Town and that JK always received the moneys from that shop. 125. Mrs Harris said that she and her granddaughter went with CB to JK's Glen William property in April 2001. Mrs Harris played with her granddaughter in the backyard and although she heard the voices of CB and JK Mrs Harris could not determine what they said. Mrs Harris said that CB at no time entered JK's house. When Mrs Harris, her granddaughter and CB returned to the car, CB did not have any documents or items that could contain documents. 126. Mrs Harris attended a meeting on 3 November 2001 at Leigh Everett's house at Glen William. That meeting was also attended by JK, CB, Margaret Howard and Yvonne Cooper. I did not admit Mrs Harris' account of that meeting set out in paragraphs 18 and 19 of her affidavit of 11 July 2005. That had not been previously notified and it was sought to adduce that material close to the end of the evidence. 127. Mr A G Taylor gave evidence that he gave CB $10,000 in early 1995 and another $10,000 in about September 1995 and that both sums were for CB's use as she wanted to spend it. The money was not given to GSDS nor was it intended for its use. 128. Mrs Joan Pollard of Kempsey said that about 1992-1993 she and her husband became volunteers for GSDS. She knew both CB and JK. During 1993-1994 she was the proprietor of a shop at Kempsey and allowed GSDS, at JK's request, to place a tin for donations towards the Sanctuary in her store. JK collected the moneys and never gave her a receipt. Mrs Pollard attended one open day about August 1993 or 1994 and saw that JK collected all the money received on that day. 129. Mrs J Frick was interested in the welfare of donkeys for some years prior to 1997. As from the beginning of 1997 and at CB's request she became a volunteer for GSDS. Moneys received on open days and from various functions were ultimately handed to CB. Mrs Frick said that sometime after she had declined the position of bookkeeper with GSDS, CB asked her if she would help JK with the bookkeeping; CB also asked if she would help JK in the office. Mrs Frick said that at the request of JK she assisted Ms L Everett in the audit she was conducting by going through the primary documents. 130. Ms K L Stapleton said that although she told (and showed) JK how to use the program Microsoft Money JK was not using that program very well; she could not "comprehend bank reconciliations and things like that." Ms Stapleton added that even today she still went to JK's place to do her accounts because JK could not do her own on Microsoft. 131. Ms Stapleton produced the end of year summary for the financial year ended 30 June 2000 and told her to give it to Mr Voase. Ms Stapleton said she used as much of the material in JK's spreadsheets as she could put in, cross-referencing those with bank statements, cheque butts and passbooks that she could actually get hold of. There were some petty cash records. Because of the time lapse she had difficulty in saying what records she had. 132. While I thought that JK tended to understate abilities she was not good at keeping the books and accounts of GSDS. She was not efficient in using the computer to handle its accounts. JK was able to produce newsletters and forms by using the computer as a word processor. Her record keeping was poor. 133. CB was primarily interested in physically caring for the donkeys and worked very hard to advance their welfare. While she attended to the banking, raising money and some administration her record keeping was also poor. 134. JK felt very strongly about CB and at the hearing these ladies displayed much ill will toward each other. I thought that in each case the ill will was of such an order as to affect the reliability of their evidence. I was very sceptical about many of the verbal statements alleged to have been made by one to the other. I approach the evidence of each of them with reserve. I am not satisfied that CB removed documents from JK's premises and burnt them. Nor am I satisfied that JK, in the underhand ploy suggested, deleted material from the computer CB then had in her home. I am satisfied that in respect of many years, source documents cannot now be located. Each of JK and CB sought to blame the other for the mess into which the record keeping degenerated. 135. While in 1991-1992-1993 JK was primarily occupied in producing forms and preparing newsletters and other documents she probably did a small amount of bookkeeping and work with the accounts, and received some financial records from CB and entered them. From 1995 JK assumed a much greater role in bookkeeping and handling the financial records and affairs of GSDS. The volume further increased after the fund raising drive in 1996. The first year in respect of which Mr Voase was asked to carry out an audit was the financial year ended 30 June 1996. He gave the impression that there was not a lot of material to be considered for that period and that the audit was uneventful. 136. I am satisfied that both JK and CB received and retained cash from open days, with JK receiving and generally retaining the cash (or most of it) from the open days which she attended. The exact amounts are not known but not a great deal of money is involved and it is probable that both ladies used the cash received on legitimate expenditure for and in connection with the GSDS and the advancement of the welfare of donkeys. The legitimate expenditure would have included incidental expenses such as petrol for necessary travelling. An inquiry into these matters would be pointless. It would get nowhere and reach the same general conclusions which I have reached. 137. There was no dispute that CB cashed the money orders and retained the cash. CB probably used that cash to make cash purchases on behalf of GSDS for the welfare of the donkeys. This would include feed, hay and other items. An inquiry into these matters would also be pointless. Detail is lacking and the same general conclusions would be reached. 138. In the instances just mentioned the cash receipts and the expenditure occurred over 5 years ago and probably stretch back for 10-12 years, if not longer. The Financial Evidence 139. At the hearing the plaintiff relied on the verified report of Mr M F Rossetto, the investigating accountant retained on its behalf. 140. Accompanying that report were Schedules A to F, some Attachments and an Appendix. In his report (para 3.1) Mr Rossetto wrote that the main source of documents available for investigation were the records of the bank accounts of both the Sanctuary and the defendants. ('bank' includes any type of financial institution). 141. Schedule B sets out details of all five bank accounts of which JK said she was aware. They are listed in the top box on the Schedule. These accounts were in the name of GSD Sanctuary with the signatures of both CB and JK being required for withdrawals. 142. Schedule B, in the lower box lists a further 22 accounts under the heading "Accounts Held Solely by C Berry." These accounts had various names. One of them bore the name GSD Sanctuary. Six of them were in the name of SB and CB; one was in the name of SB. Abbreviations were used to describe the accounts. 143. Schedule C sets out entries relating to over 5330 financial transactions and extends over 84 pages of small dense print. The material in the columns under the heading "Additional Information" was not pressed. Schedule C contains details of the transactions in all 27 accounts, arranged in date order, that is the deposits and withdrawals other than bank charges. Schedule C includes the date, the bank account number, the abbreviated name of the "Bank", the Account Name, the abbreviation by which the account was known, whether it was a deposit or withdrawal, and a brief description, e.g. Chq Dep. The entries cover the period 30 June 1989 to June 2003, that is, from prior to the formation of the unincorporated association and after GSDSI's incorporation. 144. The defendants contended that the reliability and validity of the contents of Mr Rossetto's report (or the majority of that report) depended on the accuracy of the entries in Schedule C. The defendants challenged the accuracy of the entries in Schedule C and the conclusions which had been drawn. They also pointed to the inadequacy of the primary records in many instances. Mr Rossetto did not carry out a detailed check of the entries in Schedule C. That would have taken some weeks and been very costly. Preparing Schedule C required much patience, application to a mass of detail and the ability to use a computer to arrange the transactions in and from different accounts in date order. It was then possible to match up payments and withdrawals. It was also useful to have a general knowledge of what had happened as to the care and management of donkeys over the years, where donkeys had been kept, the facilities used and the general activities of the plaintiff's predecessors. Much of the work in preparing Schedule C was clerical in nature with the most important quality being the exercise of care. Preparing Schedule C was a tedious and onerous task and even taking care, some mistakes would be made in an exercise of that size. 145. Alexandra Kokas, the daughter of JK and an employee of GSDSI deposed to preparing Schedules B and C and assisting in the preparation of Schedules E and F. She had some limited prior experience with accounting matters (T132) and had operated computers. Given the nature of the task undertaken by Miss Kokas and her skills and allowing for her support of the plaintiff's case and her close relationship with JK I thought that substantial reliance could be placed on Schedule C. Mr Rossetto relied on Schedule C and a number of specific transactions and the documentary support available. Miss Kokas pointed to a large plastic bag containing accounting records and a box containing accounting records as the records she used to compile Schedule C, a task which took about three months. Miss Kokas agreed that to ascertain the deposits she took the details from the bank statements. Amongst the documents to which she had referred were receipts, receipt books, some deposit books and access account books of the Greater Building Society where she would cross-check the receipt books with the deposit books. The receipt books available were all after January 2001. Miss Kokas said that she cross-referenced the deposit books against the bank statements. The last deposit book ended on 19 January 2001. Miss Kokas agreed that some of the deposit slips in the deposit books were written up or signed by her mother. 146. Miss Kokas said that she had the cheque butts for the GSDS accounts (listed in the upper box on Schedule B), but while they were a record of the withdrawals from those accounts, a few of the butts from each chequebook did not specify the name of the payee or the date. She identified the cheque butts produced to her as GSD Sanctuary and known as CB & JK 1, 2, 3 and 4. Miss Kokas said she had no cheque butts for accounts listed on Schedule B under "Accounts Held Solely by C Berry" (This covers the accounts listed in the lower box). Miss Kokas said that as to the withdrawals from those accounts she relied on the bank statements She estimated that about one-third of the entries on the bank statements showed the payee of the various cheques. That estimate was challenged by the cross-examiner and it could not be verified by just looking at Schedule C. Regard had to be had to the relevant bank statement or statements and some piecing together of various entries. Miss Kokas said that it was a long time since she had gone through the documents and prepared Schedule C. Miss Kokas gave some illustrations of what she asserted. She stated that if she had her computer in Court she could readily indicate the instances on which she was relying. 147. While the cross-examiner was certainly entitled to challenge Miss Kokas' estimate it was difficult for her to deal with the questions asked in the witness box without some prior notice. My conclusion is that, while there were instances where it was possible to deduce the payee of the cheque from the bank statements and the other circumstances, the matter warranted further investigation and consideration to determine whether the estimate of roughly about one-third was accurate. It was not prudent for Miss Kokas to spend some three to four hours or longer in the witness box laboriously trying to justify her estimate. If that becomes necessary that exercise can be done out of Court. Miss Kokas would have to have regard to the bank statements for a number of accounts in conjunction with Schedule C. I gathered that the cross-examiner and Miss Kokas were referring to accounts in the top half of the lower box on Schedule B. 148. Miss Kokas was asked whether, as to the accounts in the names of Mr and Mrs Berry, or that in the name of Mr Berry, the same situation applied (that is although the payee of the cheque did not appear on the cheque, the payee could be deduced from the bank statements and the circumstances) Miss Kokas replied, "To my recollection, yes, but I could not give you a percentage of how many." She could not say how many of the other accounts the same situation applied to; she was unsure. 149. Miss Kokas agreed that with the majority of the Berry accounts she was not able to identify the payee. There were only dates, figures and cheque numbers. Her rough assessment was that was the position in about two-thirds of the entries dealing with withdrawals and payments in the Berry accounts. Miss Kokas emphasised that an accurate answer would require her to spend some hours reading through the relevant materials again. 150. Miss Kokas agreed that a few cash deposits were shown in the bank statements. While she could not recall, she did not think she had any cash receipts (or copies) evidencing cash received by GSDS from people. 151. Miss Kokas was aware that her mother had records on her computer of GSDS's accounts but she did not seek access to them as she had all the bank statements. She had no records indicating any payments had been made in cash for any items by the unincorporated Association. 152. I return to Mr Rossetto's report and the Schedules he prepared. Schedule D provides a summary of the transactions in which either a claim is made or requires further investigation and clarification. The details of the transactions summarised in Schedule D are set out in Schedule E. The summary in Schedule D, using the headings and numbering in Schedule E, is as follows: 1 Clarence Town Transactions 49,425.56 2 Amounts Withdrawn from Known Sanctuary Accounts with no documentary support for the Withdrawal 78,476.83 3a Money banked into accounts controlled by CB 574,977.28 3b&c Money banked into accounts controlled by CB 127,148.53 3d Money banked into accounts controlled by CB 5,000.00 4 Money Paid on behalf of CB's family, or suspected to be paid 9,162.85 5 Payments made out of Sanctuary Accounts, but held and retained by CB 5,414.55 6 Payments made from known Sanctuary Accounts, not on behalf of the Sanctuary 19,849.00 7 Payments made from known Sanctuary Accounts of which details of the transactions are either unknown or questionable 64,362.25 8 Payments made from known Sanctuary Accounts. For expenditure on the printing of Donkey Business Books 11 and 111. 35,000.00 968,816.95 153. Mr Rossetto has provided a commentary on each of the items of the Summary. I shall refer to these when dealing with the plaintiff's submissions. 154. In addition, Mr Rossetto has in Schedule F summarised a series of transactions which are said to demonstrate actions by CB for her own personal use, but not necessarily resulting in a loss to GSDS. For example, while payments regarding the Pine Brush property have been made from known Sanctuary bank accounts and bank accounts not known to the Sanctuary, there was no loss as this property was later transferred to the plaintiff (see pp 10 and 11 of Mr Rossetto's report). 155. In the course of the plaintiff's final submissions it was pointed out that Mr Voase's access to bank accounts was limited to the five accounts listed in the top box of Schedule B being accounts listed under the heading "Known Accounts held for the operation of GSDS" and the accounts he prepared were defective for reasons out of his control. The plaintiff placed substantial reliance on Mr Rossetto's report. 156. Before turning in more detail to Mr Rossetto's analysis of transactions I should briefly refer to the reports of 20 and 27 February 2003 of Mr Robert Bell, an experienced accountant, retained by CB and SB and the financial evidence of CB. He wrote that the issue to be addressed was to attempt to quantify a loss, if any, by CB as a result of transferring assets to the plaintiff and that the "lack of accounting and other records related to the running" of the plaintiff and its unincorporated predecessor "are so incomplete as to render a complete analysis of their finances impossible". In concluding his first report Mr Bell wrote: "In summary, the determination of the relative interests of [CB] and the [plaintiff] is extremely difficult due to: (i) the absence of meaningful financial information; (ii) the fact that personal assets have been mixed with those of the [plaintiff]. (I would add "and its predecessors"); (iii) the use of various bank accounts for both private and [the plaintiff's] purposes. (I would add the words "and those of its predecessors"). Mr Bell further wrote "In the absence of sufficient financial information to conduct a complete analysis, I have adopted the following methodology in order to estimate what loss, if any has been suffered by Berry in this matter: (i) Estimate the personal net worth of Berry prior to the commencement of receipt of funds by UIA and the association (ii) Trace property transactions by Berry from that time to the present. (iii) Attempt to determine from those transactions funds which have been provided by Berry to the association and vice-versa. (iv) Estimate what the current personal net worth of Berry would now be if not for transactions between her and the Association, then compare this to her actual current personal net worth From the various documents and materials I have been able to ascertain the following information: ASSETS OF BERRY PRE UIA - ASSOCIATION (i) 100 acres vacant land Dunns Creek - $145,000 (ii) 100 acres with dwelling Dunns Creek - $375,000 $520,000 ASSETS OF BERRY POST UIA - ASSOCIATION 3 acres Bishops Bridge $157,500" 157. Mr Bell said that the land value figures for the land at Duns Creek were advised to him verbally. They are the figures shown in the transfers. Mr Bell was not aware that the three acres of land at Bishops Bridge stood in the name of SB. The land value of $157,000 was taken from the transfer to Mr Berry. 158. Mr Bell had very limited records when he wrote his reports and depended on what he was told by CB. 159. CB said in her affidavit of 11 June 2004 that she had examined Mr Rossetto's report and prepared a summary of the amounts of money listed in it adopting the line numbers identifying receipts and expenditure in Schedule C. She divided such receipts and expenditure into three categories: (i) those receipts and expenditure that relate to her personal income and that of SB's income from sources other than work with donkeys and the private expenditure of SB and CB; these are in the column under the heading "Personal" in her summary (ii) receipts and expenditure relating to the publication known as Donkey Business; these are in the column under the heading "Book-Video" in her summary (iii) receipts and expenditure that relate to work CB has done with donkeys; these are in the column under the heading GSDS in her summary. 160. In her summary CB has listed every item in Schedule C and placed a tick in the column under the heading which she assessed as applicable to that item. She considered each item individually. That involved a lot of work and her husband assisted her. However, there was no detailed reply to all the matters identified in Schedule E by Mr Rossetto. There was detailed evidence as to some of them. 161. Exhibited to CB's affidavit and marked CEB3 was a list of amounts using the line number items in Schedule C. CB said that these amounts were paid out of accounts in the name of Stephen and Christine Berry and that the total amount of $232,165.98 as stated in Exhibit CEB3 was due to SB and CB being moneys expended on donkeys for which no reimbursements had been made. Some sentences to that effect in para 4 of CB's affidavit of 11 June 2004 were read as the claim being made and not as evidence of the truth of the facts. The factual material necessary to support such a claim was not adduced. CB further stated that no reimbursement was made between the accounts when they were in her control as she "considered it unnecessary merely being an exercise in transferring money from my left pocket to my right." In a case such as the present the assertion that the money in the accounts in the name of Stephen and Christine Berry was their property is not sufficient. This would need to be demonstrated and it has not been. There is the further question as to any moneys of SB and CB used in the work of supporting the donkeys whether such moneys should be taken to have been applied permanently for the benefit of the donkeys, that is, in effect given for that purpose. It was the case of SB and CB that the amount of their own personal funds applied for the benefit of the donkeys exceeded the total of all contributions, donations and other moneys they had received to support the work with the donkeys. The assertions of CB were not supported by detailed evidence. 162. I now return to the plaintiff's submissions, Mr Rossetto's report and the transactions raised for consideration. Transactions 1a-1d Limeburners Creek Road, Clarence Town 163. Counsel for the plaintiff said that the facts surrounding the purchase of the property were summarised accurately up to a point in Mr Bell's report. The property was purchased in the name of Berry in about May 1996 for $220,000. On 30 April 1996 (item 2244 of Schedule C) a deposit of $22,000 was withdrawn from an account operated by CB and JK. 164. On 20 June 1996 about $199,000 was withdrawn from an account in the name of Maitland Branch Petty Cash account under the sole control of CB. This was obviously the balance of the purchase price and a sum on account of legal fees. Items 2258 and 2259 relate to legal fees and stamp duty. The various transfers of funds, deposits and withdrawals are covered by items 2252, 2300-2311. 165. CB claimed at one stage that she had contributed $52,000 of the purchase price. That sum came from an account in the name of C Berry t/as DBII (see items 2301 and 2310 of Schedule C). CB asserted that these were her funds. 166. There are significant problems in determining how much CB contributed. As mentioned, on 20 June 1996 a total of about $199,000 was withdrawn from Maitland Branch Petty Cash account controlled by CB to pay the balance of the purchase price (See items 2303, 2304, 2305). On that day three sums totalling $234,807 were paid into that account (see items 2300, 2301 and 2302) namely: 2300 - $94,807 - from account SB & CB1 2301 - $52,000 - from account DBII 2302 - $88,000 - from account CB & JK3 $234,807 While the sum of $52,000 came from DBII (C Berry t/as DBII) it is by no means clear that the money in that account was that of CB. For example, on 3 May 1996 $27,148.53 was deposited into that account, being moneys which came from J P Grogan. Moneys had been lodged with Mr Grogan for investment by CB and JK. In his address counsel for CB conceded that the sum of $27,000 had to be deducted from the sum of $52,000 (T445). An analysis of the sources of money deposited into the account DBII is required. I should note that the difference between the moneys paid into the Maitland Branch Petty Cash Account (Petty Cash GBS) and summarised above ($234,807) exceeded by about $35,000 the amount required to settle. Items 2306 and 2309 demonstrate that on 20 June 1996 $35,559.44 was transferred from the Maitland Branch Petty Cash Account to the account DBII. 167. An analysis would also have to be done to ascertain the sources of the $94,807 in the SB and CB1 account. I am not able to determine how much was contributed to the purchase of the Clarence Town land. It was submitted that it was not necessary to embark upon such exercise because whatever the amount CB intended to apply that sum for the benefit of the donkeys. 168. The donkeys were to be accommodated on the land purchased and were so accommodated. At T221 CB said that they bought Limeburners because they needed more land because the welfare donkeys were expanding and she needed to have more land for her farming pursuits with cattle. The plaintiff relied on CB's statement that donkeys can't own land. It is one thing to envisage donkeys being accommodated on the land to be purchased, it is another to intend to give up any claim to the moneys she provided to make up the purchase price, especially when the land was in the Berry name. CB did not intend to make a gift. 169. The land was sold and on 2 February 2001 the sum of $313,814.01 (item 4879) was paid into an account in the name of CB. On 30 November 2001 $264.338.45 was paid to the plaintiff. A claim was made by the plaintiff for the balance of the moneys received, namely $49,425.56. I am not satisfied on the present materials that the plaintiff is entitled to this sum but on any enquiry it will be for CB to establish how much she (or she and SB) contributed to the purchase of the Clarence Town lands. Mere assertions will not suffice in view of the mixing of moneys which has occurred and the banking by CB of moneys into accounts controlled by her when such moneys were given for the benefit of the Sanctuary. Transaction 2 – Amounts withdrawn from Known Sanctuary Accounts with no documentary support for withdrawal. 170. This is a claim for $78,476.83 being cash withdrawals from January 1992 to September 2001. From 1995 to August 2001 the sum withdrawn on almost all occasions was $500. The sums were not withdrawn at regular intervals such as every four weeks. The plaintiff submitted that the round sums suggested that perhaps they were for general living expenses. CB contended that she purchased items for the donkeys. I would not expect there to be documentary evidence available for small cash purchases, for example, purchasing hay from a local farmer. However, CB obtained cash from open days and cashing money orders. Evidence was not led as to the cost of housing, feeding and caring for donkeys over the years. That would obviously have to be related to the number of donkeys cared for from time to time, and their needs, including health needs. CB should be able to give that evidence and there may also be an independent person who can do so. There is a reference to this matter at p4 of the Minutes of the Committee meeting of the plaintiff held on 3 November 2001. I refer particularly to the second and third sentences on that page. Ms Everett seemed to accept that lots of $500 – were paid for reimbursement for hay, petrol and sundries. 171. I am reluctant to order an inquiry into "Transaction 2" because the costs may exceed the small amount at issue. If the parties can reach no accommodation on this point perhaps an independent expert could be appointed to assess the costs mentioned, with the parties having the opportunity to place written materials before such an expert. Transaction 3a - Money Banked into accounts controlled by CB 172. Mr Rossetto has written that the sources of the deposits are unknown and that he had not been able to find information as to these deposits. 173. The deposits in question are listed in Schedule E (pages 3 & 4). One of the deposits is under $5,000 and it will be difficult to recall this, but almost all are for substantial sums ($5,000 and above). The deposit on 5 May 1992 of $25,526.50 probably includes the Baber legacy to CB of $25,000. A declaration of identity was completed on 23 January 1992 (the usual precursor to the payment of a legacy) and Probate was granted on 12 March 1992. (See item 373 of Schedule C and p 4 of Schedule E). CB did contend that she received legacies and gifts of money to deal with as she wished. It is probable that two of the gifts of $10,000 came from Mr A G Taylor. In his affidavit he referred to gifts of $10,000 in early 1995 and about September 1995. In Schedule E deposits of $10,000 are shown on 24 February 2005 and 19 September 2005. The Baber legacy was received in May 1992 and the Taylor gifts in 1995 and both have substantial evidentiary support. Mr Rossetto was not aware of that evidentiary support. No further investigation of the sources of these three deposits is warranted. The moneys in question were given to CB personally. 174. As to the amount of $130,135.90 (item 4340 of Schedule C and p 4 of Schedule E) put into the account of SB and CB on 17 January 2000 this is the proceeds of sale of Lot 36, DP 75241 for $145,000, that is, the 100 acres of vacant land at Duns Creek. The transfer (Exhibit 6) bears date 14 January 2000. The usual 10 per cent deposit would be $14,500. This item requires no further investigation. Mr Rossetto was not aware of these matters. Assuming that there was an agent and the agent held the deposit there may be a deposit of an amount which represents the deposit less the agent's commission on the sale. 175. There was a substantial number of other transactions (and deposits) for which no sufficient explanation can be deduced from the materials so far as I have been able to tell or has been provided by CB. 176. The plaintiff relied on what it alleged was the payment of the Falkingham legacy into an account known as GSD Sanctuary (838-934-106) under the sole control of CB. By letter of 2 February 2000 addressed to CB, she was advised by the solicitors for the Falkingham Estate that the deceased had bequeathed $20,000 to the Good Samaritan Donkey Sanctuary to be applied for the relief of donkeys. CB replied by letter of 9 February 2000. Under cover of their letter of 24 February 2000 the solicitors enclosed a cheque for $20,000. On 23 March 2000 a cheque for $20,000 was deposited into the account earlier mentioned (Item 4431 of Schedule C and p 4 of Schedule E). There are two deposits of $20,000 shown on 23 March 2000 (see Item 4432 of Schedule C). That is a mistake. Mr Rossetto has listed one deposit on that day in Schedule E. 177. CB said that she recalled the Falkingham legacy and agreed that that was item 4431 on Schedule C. She said that she opened. as a new account, the account mentioned in the preceding paragraph and she believed that the account was an investment account. CB said that she discussed what was done with JK beforehand and told her what she (CB) proposed. CB said that JK was aware of the existence of the account (T270). I think that CB probably discussed this deposit with JK and also her intention to put it into a new account. The sole signatory for the account was CB. 178. In essence, while CB has established that four deposits were her property (or her property and that of her husband), namely $25,000, $130,135.90, $10,000 and $10,000, this reduces the amount unexplained from $574,997 to about $399,842. The Falkingham legacy of $20,000 was the property of the plaintiff as is the sum of $5,359 standing to the credit of the GDS Sanctuary, Braymart Account. In view of the small amount involved I will not elaborate upon that. The evidence in the cross-examination of CB as to this is at T274-275. Apart from the six items mentioned I have formed the view that each of the other transactions involving $5,000 or more in the series of transactions numbered 3a in Schedule E requires investigation. CB must give full details of the sources of those deposits in respect of which she asserts that the money is her property and the Court's orders should so provide. If CB wishes to claim that any of the moneys other than in the four sums held to be her property were properly expended on behalf of the plaintiff or its predecessors (including the unincorporated association) she will need to formulate a detailed basis for such a claim, with adequate particulars. That could be done in a number of ways. Broad generalisations will not suffice. She should also set out details of any authorisation of such expenditure, whether express or implied. If implied, adequate details should be supplied of the facts, matters and circumstances from which the implication is said to arise. That could include a course of conduct. Transaction 3b – Money banked into account controlled by CB 179. This concerns a deposit of $27,148.53 on 3 May 10 1996 into the account known as "C Berry t/a DBII" being an account under the sold control of CB. (See Schedule C item 2250 and p 4 of Schedule E). The records of J P Grogan & Co, copies of which are part of Attachment F to Mr Rossetto's report record: "30.4.96 CB closed this account (probably because she was purchasing Clarence Town on 22/6/96 Grogan forwarded a bank cheque in favour of Good Samaritan Donkey Sanctuary for $27,100.53 4.5.96 Deposited into account: C Berry T/As Donkey Business 2 … $27,148.53" 180. CB did not deny what occurred ((T258-9). CB said that she and JK were talking about where they would buy land and gathering funds CB said that this was not an unusual transaction at the time. CB added, when asked to justify what she had done, "It was my Donkey Sanctuary and I was doing the best I could to care for hundreds of donkeys." At the time she did not regard GSDS as an unincorporated association. 181. On the materials before the Court it appears that the property of GSDS has been put in an account solely under the control of CB. If CB wishes to claim that any of the sum of $27,148.53 was properly expended on behalf of the plaintiff and its predecessors I would give similar directions to those mentioned when dealing with Transaction 3a. There seems to be some overlapping with Transaction 1a. This will probably require some adjustment. Transaction 3c – Money banked into accounts controlled by CB 182. By letter of 19 May 2000 Perpetual Trustee Company Limited on behalf of the Estate of the late Rosemary Lilian Ware forwarded a cheque for $100,000 to CB as Administrator, GSDS at 19 Forest Road, Duns Creek and advised that it was a cheque in favour of her charity. In its FAX of 30 November 2001 Perpetual stated that it had obtained a trace on the cheque and had been advised that it had been presented to the following account: "Westpac – Good Samaritan Don/Dam Lot 34 Forest Road, Duns Creek BSP 650 – 500" That amount was placed into an account called "GSD Sanctuary" and was under the sole control of CB (See item 4528 of Schedule C and p4 of Schedule E). It should be noted that four of the accounts requiring the signatures of CB and JK bore the name GSD Sanctuary. 183. CB does not appear to have accounted adequately for this sum and must do so. Again, if CB wishes to claim that any of the sum of $100,000 was properly expended on behalf of the plaintiff and its predecessors I would give similar directions to those mentioned when dealing with the transaction 3a. There was evidence that it was used in the purchase of the Pine Brush land (Lot 3) for the Sanctuary. 184. I should record that counsel for CB drew my attention to the following: Item & Amount Source Date 4526 $27,000 CB & JK Cheque in favour of Hills Solicitors (25/5/00) This was said to be the deposit on the purchase of Lot 3, Pine Brush 4528 $100,000 Rosemary Ware Estate Legacy Deposited in GSD Sanctuary Account under CB's sole control (26/5/00) 4553 $7944 CB & JK4 Cheque in favour of Office of State Revenue – stamp duty (5/6/00) 4572 $20,638 CB & JK4 Cheque apparently in favour of Commonwealth Bank. While not stated perhaps this was part of purchase price and cheque was drawn to pay out an existing mortgage (22/6/00) 4573 $1530 CB & JK4 Cheque in favour of Hills Solicitors; probably legal costs (22/6/00 4574 $2379 CB & JK4 Cheque in favour of Thomas Laycock; probably legal costs 22/6/00 4578 $220,001.05 GSD Sanctuary This account is under CB's control (22/6/00 185. Regard will have to be had to the purchase price of Lot 3 Pine Brush as disclosed by the transfer (and possibly the contract of sale) and an analysis will have to be undertaken of the moneys deposited into the GDS Sanctuary Account under CB's sole control to determine: (i) the sources of the money paid into that account, and (ii) to whom $220,001 was paid or other evidence that it was in payment of the purchase price of Lot 3 Pine Brush; and (iii) whether the legacy of $100,000 from the Estate of Rosemary Ware was used in the purchase of Lot 3, Pine Brush. 186. The matter is also referred to in the minutes of the meeting of the Committee of the plaintiff held on 3 November 2001 when summarising the report of Leigh Everett. She seemed to accept that the legacy of $100,000 from the estate of Rosemary Ware was used to purchase the land at Pine Brush. I do not know the materials on which Ms L Everett relied, but the evidence suggests that she was thorough and persistent in her investigation of the financial affairs of the plaintiff. Transaction 3d – Money banked into account controlled by CB Transaction 6 – Building Sheds for Mrs Hepworth 187. These matters should be taken together. 188. The plaintiff's claim was reformulated in the light of the evidence adduced. It is for $11,495. 189. Mrs Hepworth owned Lot 4 at Pine Brush and CB was the legal owner of Lot 3. Both of them wanted to see sheds built for the benefit of the donkeys. Without going into all the intermediate detail of which there is an abundance, late in 2000 there was an agreement that sheds should be built for the use of the Sanctuary and that Mrs Hepworth would bear the cost. The sheds were built on Lot 3. Mrs Hepworth said she had one or two discussions with CB in late 2000 and in accordance with information given to her by CB she drew various cheques for the payment of suppliers. Early in 2001 CB sent this note to Mrs Hepworth: "Enclosed are accounts from Williams River Steel for the beautiful sheds. The total is $11,495. I have paid this account (sic) already as it had a 5 day invoice. Please reimburse me when convenient …". 190. Attached to the note were two tax invoices bearing date 20/02/01 from Williams River Steel and they totalled $11,495. Both were stamped "PAID". 191. These accounts had not been paid by CB personally, but out of the account known as CB and JK5, one of the accounts to which CB and JK were joint signatories. Mrs Hepworth drew her cheque promptly and sent it to CB who, in early March 2001 paid it into CB's personal account with St George Bank Ltd. CB did not seek to contradict the records. 192. Instead CB sought to offset the amount she had received from Mrs Hepworth by taking the Court to items 4824 and 4825 of Schedule C. Item 4824 shows a withdrawal of $20,000 from account 838 934 018 in the name of CB and known as $70,000 account. After the entry there is the description "Wdl Williams River Steel ???". Item 4825 shows a withdrawal of $20,000 from account 838 970 406 in the name of C E Berry and known as CB4. After the entry there is the description "Cheque Wdl Williams River Steel?" Both withdrawals are shown as occurring on 2 January 2001. 193. CB produced a passbook (Exh 9) from Newcastle Permanent Building Society Ltd entitled "Fixed Term Certificate". The account number was 830 970 406. That shows a deposit of $20,000 on 5 July 2000. A payment of interest was recorded. The passbook shows that on 2 January 2001 a cheque for $20,000 with the payee being Williams River Steel was issued. 194. CB said that $40,000 came out of two accounts of hers (T387) and was paid to Williams River Steel. In effect CB was saying that she had used $40,000 of her own money in the building of the sheds on Lot 3. 195. Mrs Hepworth's evidence and attachment D3 to Mr Rossetto's report support the conclusion that CB was promptly reimbursed on 8.1.2001 by Mrs Hepworth in the sum of $41,946. Mrs Hepworth could not recollect why she was asked to draw one cheque in favour of S & N Walton for $18,900; CB posted her two invoices from Williams River Steel totalling $41,946. 196. As the cheque from Mrs Hepworth for $11,495 should never have been banked into CB's personal account, she should be required to account. It will be up to CB to propound matters by way of a viable defence, offset or mitigation. Transaction 4 – Money Paid on behalf of CB's family or suspected of so being paid Transaction 5 – Payments made out of Sanctuary Accounts but items held and returned by CB 197. The plaintiff did not address on these in either its written or oral submissions and I understood that they were not being pressed. CB seemed to have a good answer to both claims. The amounts claimed in both instances were small ($9162.85 and $5414.44) and covered a series of items. Transaction 7 –Payments made from known Sanctuary Accounts – Detail of transactions unknown or questionable 198. The payments total $64,362.25. This includes one large amount of $41,832.30. Item 1097 of Schedule C reveals that on 2 November 1993 this sum was withdrawn by cheque from account 09 63632/2 in the name of GDS Sanctuary and known as CB and JK1. That was the first account opened with Greater Building Society Limited. Its period of operation was from 30 June 1992 to 2 November 1993. In cross-examination CB said that she could not give a specific reason for withdrawing that amount and closing the account as it was so long ago. In the summary she prepared against that item she has placed a tick in the column headed GSDS and that meant "receipts and expenditure that relate to work I have done with donkeys" (T252). On being pressed CB said that she truly did not remember where the money went and not off the top of her head. It was not suggested that it went to any of the other accounts in the name of CB and JK. On being asked if it could have been put into the bottom box of Schedule B (the accounts under CB's sole control) CB said it could have been. 199. The Largs land was acquired in the names of CB and JK. It seems that this may have been about November 1993. This would need to be verified. Searches can no doubt be made as to the date of the transfer, the date of its lodgement/registration and the transfer may reveal who acted on behalf of the vendor and the purchasers. The vendor or transferor may recollect what occurred It may then be possible to ascertain how the purchase price was made up and whether all or any of the sum of $41,832.30 was used in the purchase of the Largs land. The payee of the cheque, if ascertainable, may be of importance. 200. At T327 CB was cross-examined about the Largs purchase. That took place after CB and JK were outbid at auction in 1993 in their attempt to purchase the Baber land. CB said that Mary McDonald gave them $30,000 or $40,000 towards the purchase price and that both CB and JK also each contributed. The land at Largs was a hay field which was needed to feed the donkeys. CB said she could not recall how the Largs land was paid for in the ultimate transaction. 201. I have mentioned one possibility. It was mentioned in passing at the hearing and I noted it on Schedule E (p5). It may be entirely wrong, but the seeming correspondence of the dates warrants an investigation. I cannot believe that if thorough enquiries are made and careful research is undertaken, more details will not become available as to the purpose and application of that withdrawal. As CB was running the affairs of the Sanctuary (unincorporated association) and attended to the banking she should be called upon to account in respect of this withdrawal. 202. There was another substantial amount, namely $8,900, which on 11 February 1993 was withdrawn from account 53632/2 being a GSD Sanctuary account in the name of CB and JK and known as CB & JK1. It should probably be possible to ascertain the purpose and application of that withdrawal. CB should be called up to account in respect of that withdrawal. 203. As to the remaining items these are for smaller amounts in the years 1993, 1994, 1997 and 1999. I do not think that after this lapse of time CB can fairly be called upon to account in respect of those items. The payee of the various cheques is not known, except in relation to the 1994 amount. It would not be useful or fair to order an account in respect of the remaining items covered under the heading Transaction 7. A moderately accurate account would be impossible. Transaction 8 – Payments made from known Sanctuary Accounts for Printing of DB Books II and III 204. CB and Jinny Robinson collaborated in the production of the first donkey business book written in 1980 and first published in 1981. Donkey Business II was stated to be by CB, Jinny Robinson and JK (by invitation) and to be written in February 1989. It was reprinted in 1995. Donkey Business III purports to be co-authored by CB and JK in February 1998. While CB contributed the majority of the material, JK also made her contribution. 205. The reprint in 1995 was necessary because the silverfish attacked the stored copies of DBII and its revised print in 1991. On 3 February 1995 CB withdrew from the investment managed by J P Grogan $5000 to reprint the book DBII. The majority of the proceeds from the sale of DBII books did not appear to be received into the Sanctuary accounts. Mr Rossetto has reported that for the transactions between 21 December 1998 and 5 March 1999 a total of $32,505 was expended from Sanctuary Funds but again the majority of the proceeds from the sale of these books was not banked into Sanctuary accounts, but into an account known as Farm Account held with Greater Building Society. The total sum expended on the DB books was $37,505. Both CB and JK sold copies of the various DBII books, the revised prints and the 1995 reprints of them, and also the DBIII books. 206. CB in her evidence in chief said that 1000 copies were printed of the DBII book but these could not be sold because of the silverfish attack. They were destroyed. With the reprint 1000 copies were printed. CB said that the DBII copies were sold out. CB said that she sold about 650 copies of DBIII and that the rest of the DB3 books were left with JK. CB does not have any. 207. CB said that she opened an account with the name of the book, that is Donkey Business II. Schedule C to Mr Rossetto's report reveals that this account was opened on 30 June 1989 in the name of C Berry t/as DBII and was known as DBII. That account was opened by CB and she treated the account as hers (T215-216). This was well before the unincorporated association was formed. 208. CB agreed (T245) that the DBII account was initially set up for the purpose mainly of putting into it money and drawing out of it money relating to the DBII book. 209. CB (T261) said that she did not necessarily set up the DBII account for the purpose mainly of dealing with money raised from selling the DBII book. CB said that the DBII book was her book; she was the principal author. 210. CB said that if the Sanctuary was able to promote the DBII book and sell some copies it would get the money deposited in the Sanctuary's account. If she (CB) sold copies of that book individually, the money was hers. JK had her copies to sell too. CB seemed to agree (T262) that whenever she sold a copy of the DBII book she put the money into her account trading as DBII because such sales would have been from her promotion activities away from the Sanctuary. 211. CB said (T264) that if the book order came via Donkey Sanctuary promotions that money was definitely banked in a GSDS account, but if she (CB) sold it independently it would go to one of her accounts and JK had the same arrangement. 212. As to DBII books CB was the principal author, but JK made a contribution. It was finally prepared and published in 1989. The unincorporated association had no claim to the proceeds of the sale of those books. There was also the position as to the revision in 1991. The unincorporated association contributed $5000 to the cost of reprinting 1000 copies of the reprint. I do not know whether this was the full cost. A loose arrangement seems to have been made as to how the proceeds of sale of the DBII books would be distributed. On the evidence it is not possible to tell whether the reprint was an association venture or primarily that of CB. It would be impossible to embark at this stage upon an effective and even moderately accurate assessment of the moneys received from the sale of books by CB, JK and the Association. 213. The plaintiff raised with the Court whether CB was under an obligation to reimburse the Association the sum of $5000. A lot depends upon whether the reprint of the DBII book should be regarded as a venture of the Association or that of CB or a combination of the Venture of the Association and CB. I am unable to resolve that issue. The relevant events happened some years ago. In the circumstances, I do not think that I should make any order for an account or the payment of money by CB as to the DBII books. 214. As to the DBIII books, CB said that she paid the plaintiff via Leigh Everett the sum of $15,000 for half the cost of printing the DBIII books. It is not clear why the payment was made if the Association was the printer and publisher of those books. It reportedly spent $32,505 in printing and publishing such books. Initially the 3000 books were delivered to the premises of CB. She sold some of these books and JK took some. CB said that the balance of the books, which were heavy, were shifted to the premises of Mr and Mrs Kokas about July 2001 upon CB and SB selling their home and their remaining land at Duns Creek. 215. CB estimated that she sold 650 to just under 700 copies of that book (DBIII). The cost was $12.50 per copy. I would proceed on the basis that CB sold 670 books at $12.50 each, that is, that she received just over $8000. In my opinion CB should account for that sum, being the approximate proceeds of sale received by her from the sale of DBIII books. Miscellaneous 216. 1 CB produced a number of term deposit books evidencing the deposit of moneys and the crediting of interest. Three were with the Newcastle Permanent Building Society. (i) Term Deposit – A/C 838 970 406 – this has been previously mentioned (ii) Account 8388 19108 in the name of CB and known as Sunberry. There was a deposit of $45,000 on 23 April 1999. The greater part of that deposit probably came from account 04 0927 4/0 being in the name of CB t/as DBII; the withdrawal of $42,137.48 closed the account. It does not appear where the balance to make up $45,000 came from. Interest was credited to the term deposit. On 26 April 2000 the account was closed by the withdrawal of $47,334.09. That sum was deposited into account 838 934 106 in the name of GSD Sanctuary under the sole control of CB. (iii) Account 839 051 1006 in the name of CB and known as CB2. There was a deposit of $250,000 on 13 February 2001. That deposit came from an account 838 934 018 in the name of CB and known as $70,000. On 30 November 2001 the withdrawal of $253,843.15 closed that account, interest having been added. That sum was paid to the plaintiff (in its first incorporated name). There was a further investment account, being account 04 09274.0 opened in the name of CB with Greater Building Society Limited and known as CB1. That account records a number of deposits and ultimately the withdrawal of $42,137.38 which closed the account. See above. CB did transfer some money to investment accounts which earned interest. However, it is necessary to follow where the moneys ultimately went and to examine any explanation given. 217. By transfer bearing date 2 July 2001 SB and CB transferred their remaining block of land at Duns Creek on which their home was erected for $375,000. On 5 July 2001 the sum of $350,000 was by cheques deposited into account 04 10056/5 in the name of CB and known as 350,000 A/C. That sum was obviously the amount paid on settlement of the sale of the Duns Creek land and home. These transactions tend to show that appreciable sums became available to SB and CB in July 2001 in their own right. Prior to that they had received on about 17 January 2000 the proceeds of sale of their vacant land at Duns Creek of $130,135.90 (item 4340). Between 17 January 2000 and July 2001 the Falkingham legacy of $20,000 and the Ware legacy of $100,000 had been paid into an account entitled GSD Sanctuary under CB's sole control. With the moneys received from the sale of the properties at Duns Creek SB and CB were in a position to purchase the Bishops Bridge land for $157,000. 218. As earlier mentioned, the evidence as to the incomes of SB and CB and their assets falls far short of satisfying the Court that they were able to provide substantial sums for the welfare of the donkeys. I do not doubt that CB laboured long and hard to advance the welfare of the donkeys and that her husband supported her in those labours. Second Amended Cross Claim 219. I have earlier set out the relief claimed. I recapitulate some of the facts. 220. On 27 March 2001 the Committee agreed to the Association's incorporation and the plaintiff was incorporated on the following day. 221. On 6 October 2001 a Committee meeting of the plaintiff was held and CB was asked questions about the financial affairs of the plaintiff and its predecessors. After that meeting Leigh Everett, who was conducting a financial investigation into the affairs of the plaintiff and its predecessors had follow up meetings with CB and JK. 222. On Saturday, 3 November 2001 a Committee meeting of the plaintiff was held. It is recorded that a list of assets (presumably of the plaintiff) had been provided. The report of Leigh Everett covered a large number of matters. She reported that there was no evidence of cash and money orders deposited from 1995 onwards. The report dealt with the absence of amounts received from the sale of GSDS books, the dealings with the Clarence Town land, legacies, donations and the purchase of land, the land at Pine Brush and the amounts (with details) owed to the donkeys by CB as calculated by Leigh Everett, totalling $476,970.61. 223. The Minutes record: "CB said that she had always intended the land to be for the donkeys and would have no hesitation in handing back the land at Pine Brush and the land known as Largs land as well as a sum of cash. [JK] said that she owned a portion of Largs land as she had paid $3,000 and may not wish to hand her share over. It is recorded: "An agreement was made between the Committee and C Berry that she would see a solicitor within seven days to commence steps to hand over to the donkeys (GSDS Inc) the land known as Pine Brush and her share of the land known as Largs land. The transfer of land was to be completed within four weeks of the meeting date of 3 November." CB said that at the meeting Ms Everett said, inter alia, words to the following effect: "I will involve the Department of Fair Trading, the Taxation Department and the police in the investigation of [CB]. You have 7 days to organise to have the land signed over and pay a large amount of money into the Association within 7 days or I will involve the Police, Tax Department and Department of Fair Trading and you [CB] will be in big trouble." 224. CB said that present at the time were Elizabeth Harris, JK, Margaret Howard and Yvonne Cooper and that Ms Everett thumped the table and because of her mannerism CB felt intimidated. 225. JK is recorded in the Minutes as being present at the meeting of 3 November 2001. 226. JK said that Leigh Everett did not use words to the effect alleged by CB, but said "You've got to watch, dear, your tax implications and that Leigh Everett kept putting her arm around CB as CB was crying and shaking. JK said that Ms Everett said, "Don't worry, I'll help you.," JK said that she was unable to remember whether Ms Everett mentioned the police too. I did not think that JK was telling the truth when she gave the last mentioned answer JK denied that Ms Everett made any demands upon CB. JK denied that Ms Everett, at some stage, thumped the table. JK said Ms Everett was saying prayers for CB aloud and that they were holding hands. While all this was taking place CB was crying. 227. I formed the strong impression that JK was understating what happened at the meeting. The Minutes record that Ms Everett asked the Committee if they wished to place a vote of No Confidence in the Administrator. The Committee declined in view of the agreement which had been made. The Minutes record Ms Everett as referring to tax and other legal implications and to inappropriate conduct with bequests and public donations and that these may well have to be considered fraudulent if matters were not immediately rectified in accordance with Committee decisions. 228. On Monday 5 November 2001 CB telephoned Hills, Solicitors. As Mr Booker, the solicitor with whom she usually dealt was on holidays she was put on to a Mr Williams and she instructed him to draw up two transfers. These related to the Pine Brush land and the Largs land. 229. On Friday 9 November 2001 JK accompanied CB to see her doctor. The doctor wrote that on that day CB was distressed and appeared in a fearful state but was reluctant to explain why she felt like that, that JK explained that CB was upset about her husband's illness and had had several months of depression and anxiety-type symptoms. The doctor suggested a trial of medication for depression and asked CB to make an appointment two weeks later. CB returned on 10 December 2001 unaccompanied. CB told the doctor that she (CB) was afraid to speak openly in front of JK and believed she could not trust her. CB said that she did not feel anxious or depressed and she did not appear so to the doctor. CB explained to the doctor that she had fallen into dispute over her life's work (the donkey sanctuary). The doctor was unaware of JK's involvement in that dispute and JK did not reveal that. The doctor wrote it was her belief and opinion that CB was fearful of JK and that CB had been pressured to attend to obtain a diagnosis of depression. I agree with the doctor's opinion. In her oral evidence the doctor expanded on what had occurred at the consultation and what JK said and the doctor's previous observations of CB. The doctor said that when she saw CB on 10 December 2001 CB was a different person. 230. On CB's instructions her solicitors ordered valuations of the land to be transferred and such reports were received by the solicitors in mid-November 2001. 231. CB said that on the evening of 25 November 2001 Ms Everett telephoned her and said words to the effect, "Since you have not signed over the land I have instructed David Coyle Solicitor, of Richard Fry and Associates, to write to your solicitor". A letter bearing date 23 November 2001 in strong terms was written by Mr Coyle to Hills, Solicitors. This letter was received by Hills about 26 November 2001. On Wednesday, 28 November 2001 CB attended an interview with Mr Booker. CB has stated: "Such was my state of distress I did not fully explain the details of my interaction with the other members of the Association. At that time Mr Booker did say that I was not obliged to sign the transfers however I did sign them, illogically (I see now) fearing the intimidation of Everett and the other Committee members could permanently damage my health" 232. In CB's solicitor's reply of 30 November 2001 to the letter of 23 November 2001, it was stated that CB strongly denied any allegation or intimation that she had in any way misapplied or misappropriated the funds of the Donkey Sanctuary/Corporation and that CB had previously indicated to the existing committee, Ms Everett and Ms Kokas that she will actively cooperate in bring the affairs of the Corporation into order. 233. CB said that on Thursday 29 November 2001 she telephoned Mr Booker and informed him that she had agreed to meet Ms Everett at her home next day at 8.30am and that he advised her not to sign anything more until everything had been worked out. 234. CB said that on Friday, 30 November 2001 she attended Ms Everett's home. Ms J Frick was also present. CB said that at that meeting she was handed two letters. The first was a circular letter of 28 November 2001 addressed to "Dear Friends of Donkeys." After setting out a little of the history of the Sanctuary, the letter advised that a major review of the plaintiff's financial and management controls and procedures was being undertaken with the assistance of professional advisers and that a majority of Committee members had requested that the Administrator, CB, stand down pending the AGM to be held on 9 December 2001. The letter also stated that reports on these important investigations and actions would be provided by the solicitors as the matter developed. The letter also sought that all correspondence be sent to the plaintiff at its new postal address. That letter was signed by JK and four Committee members, one of whom was Miss Kokas. 235. CB said that having read this letter she burst into tears and she was unable to read the second letter, which Ms Everett then read to CB. The second letter advised CB not to remove any items, animals or equipment from Lot 3 and/or Lot 4 Pine Brush Road properties and that if she wished to collect any property owned by her to telephone Ms Everett to make the necessary arrangements. The second letter also advised that security guards had been engaged. 236. In cross-examination CB said that when she telephoned Mr Booker on 29 November 2001 she told him that she had agreed to meet Ms Everett at her house, with JK also being present so that they could "go through whatever they were claiming was behind the financial records and see if I could put some light on it." CB said that she did not know at that time that she was going to be asked to pay more money over to the Association. 237. CB agreed that she signed the transfers in Mr Booker's office and that she insisted that she would do it. CB said that she really did not confide in Mr Booker and she now realised she should have. 238. In Mr Booker's letter of 30 November 2001 it is stated: "We are advised by our client that she also holds monies in accounts with the Newcastle Permanent Building Society on trust for the Sanctuary/Corporation. She is quite prepared to discuss the details of these accounts and make appropriate arrangements for the transfer of funds held on trust with Ms Everett or Ms Kokas direct." 239. Those instructions were probably given to Mr Booker on Wednesday, 28 November 2001 or possibly on 29 November 2001. CB anticipated that further funds would have to be transferred ultimately. 240. CB said that she went to Ms Everett's home at 8.30am on Friday, 30 November 2001, and that instead of JK being there Ms J Frick was there. CB said that Ms Frick pointed her finger at her (CB) and said, " I know what you have done." CB said she replied, "What have I done?" CB said that from then on she felt terribly intimidated and that it only got worse. CB said that Ms Frick was hostile to her and that was uncharacteristic of Ms Frick. 241. CB said that Ms Frick left at lunch time, that after Ms Frick had gone Ms Everett and she were alone, that Ms Everett demanded that CB go straight to the bank and that CB be back by 5pm otherwise she was calling the police. When asked did it occur to her to telephone Mr Booker, CB replied: "I was terrified. I had sobbed and sobbed that morning, I was an emotional total wreck. I sobbed at Mrs Leigh Everett's table to the point where [Ms Frick] in all her kindness comforted me." 242. CB agreed that it was on the previous day that she had spoken to Mr Booker about the intended meeting and her apprehensions. CB said that Ms Everett had told her that she (CB) was going to gaol and she did not want to go to gaol. CB denied that she was concerned that her conduct of the finances of the Sanctuary over the years was criminal. 243. Ms Frick gave a different account of the meeting on the morning of 30 November 2001. That is set out in detail in paragraphs 11, 12 and 13 of her affidavit of 7 June 2004. Ms Frick recounted discussions held on a number of specific topics and transactions. Ms Frick said that as the discussions continued the following occurred, amongst other things: (a) "[CB] and [Ms Everett] discussed the various bankbooks which [CB] produced. One particular term deposit record showed an investment amount of $250,000 and another record which showed an account which had been opened with $70,000 but it had a balance of $13,000." (b) CB said words to the effect, "I just want to help, I don't want to go to gaol. I have lost Jo's friendship, Elizabeth is disgusted with me and my accountant is upset with me because he doesn't know about all these accounts. I can sign this money over to the Sanctuary because it is all donkey money." (c) Ms Everett said words to the effect, "That would be entirely up to you." CB said, "Yes, I want to do it." 244. In cross-examination Ms Frick said CB was only crying at the start of the meeting and saying that she did not want to go to gaol. Ms Frick said that Ms Everett did not speak about the consequences of CB's actions. Ms Frick said that Ms Everett did not intimidate CB. 245. Ms Frick denied that CB was frightened and insisted that CB settled down after her initial period of crying and being upset. Ms Frick said that CB settled down on realising that Ms Everett was trying to help her (CB). 246. Ms Frick did not deal with what happened after lunch on 30 November 2001. She probably left Ms Everett's house just after lunch. As Ms Everett is dead I only have CB's account of what happened in the early part of Friday afternoon after Ms Frick left. The records of Newcastle Permanent Society Limited establish that $250,000 was withdrawn on 30 November 2001. The date of 29 November 2001 on the receipt issued by Ms Everett appears to be incorrect. 247. From 6 October 2001 CB realised that her handling of the financial affairs of GSDS was under challenge and that challenge intensified on 3 November 2001. CB made promises as to what she would do at that Meeting. CB realised that there could be serious consequences for her. Those consequences included that she would no longer be running the Sanctuary to which she was devoted. 248. It was Ms Everett's responsibility to investigate thoroughly the financial affairs of GSDS and GSDSI. Ms Frick gave her some assistance. Both ladies would have been troubled by the way these affairs had been managed by CB. It was right for Ms Everett to raise the problems and irregular practices she found. It is probable that Ms Everett asked CB many probing questions and sought explanations and information from CB and that Ms Everett would not be satisfied with generalisations. CB found this process to be uncomfortable and distressing and realised that there could be serious consequences for her. It was this realisation that led CB to act. CB realised that the Pine Brush land and the Largs land should be transferred to the plaintiff and that there were other moneys in accounts controlled by her which were, at the very least, held in trust and should be transferred to the plaintiff. CB had ample opportunity to obtain professional advice. It was a pity that she was not prepared to be frank with her solicitor and tell him the full story. Ms Everett wanted restoration to occur promptly and CB to transfer lands and moneys with reasonable expedition to the plaintiff. Matters could not be allowed to drift. It appeared that the moneys were available. 249. Undue pressure was not placed on CB. I do not think that she was intimidated. She withdrew the sum of $264,388 and paid it to the plaintiff because she believed those moneys belonged to the plaintiff and to regularise, at least in part, the financial affairs of GSDS and GSDSI which she had been handling. CB's claim that she executed the documents as to the payment of $264,388 to GSDSI and made that payment under duress/or mistake is rejected. 250. I decline to make the declaration sought in para 18 of the Second Amended Cross Claim as to the sum of $264,388. That money belongs to the plaintiff legally and beneficially. 251. The relief sought in para 19 of the Second Amended Cross Claim, namely an order that GSDSI pay CB $151,893.67 is based upon Mr Bell's report of 20 February 2003. Mr Bell wrote: "Based on the information provided and the assumptions herein the amount Berry has contributed which is currently held in assets of the Association are as follows: Limeburners $52,334.67 Pinebrush 99,559.00 $151,893.67" 252. Mr Bell accepted CB's assertion that $52,000 were her personal funds, verifying that that sum was withdrawn from an account in the name of CB trading as DBII on 20 June 1996. I have earlier set out why such a claim appears to be unsustainable and directed an enquiry 253. The claim for $99,559 was based on two withdrawals, one for $47,334.09 on 26 April 2000 from an account in the name of CB, known as Sunberry, which CB asserted went to the purchase of Pine Brush. Mr Bell assumed this to be correct. I would need to be satisfied on an analysis of the Sunberry account that the sum of $47,334.09 was in truth the property of CB. I would also need to be satisfied that that sum was used in the purchase of the Pine Brush property. The summary handed up by counsel for CB asserted that it was so used. That may be so. 254. The second withdrawal was one for $52,225 on 22 June 2000 from an account at Newcastle Permanent Building Society Ltd in the name of GDS Sanctuary under the sole control of CB (Item 4579). 255. I would need to be satisfied that this sum was in truth the property of CB. It was said that this sum originally came from the sale of the first Lot at Duns Creek . The summary handed up by counsel for CB asserted that this sum was used in the purchase of Lot 3, Pine Brush. 256. There is one further hurdle for CB to overcome. Both the amounts were claimed to be used in the purchase of the Pine Brush property. However, that property was transferred to the plaintiff about 30 November 2001 without any reservations. That concluded the matter. It is too late to now be making a claim for moneys alleged to have been advanced to assist with the purchase of the property. 257. The plaintiff submitted that in any event it was not enough for CB to demonstrate that she put money into the Sanctuary out of her own pocket either before or after the incorporation date. The plaintiff submitted that CB would have to go further and demonstrate that she had a contract with the Association at the relevant time that she would be reimbursed or recoup by her own efforts or "something of the sort" in each of these cases and it does not appear from the evidence. There does not seem to have been a loan, but I do not think that there was any intention to make a gift at the time moneys were advanced. As a matter of evidence JK, when the transfer of the Largs land was being canvassed remarked that she had contributed $3000 to the purchase of that land and she did not know whether she was prepared to forego her claim Subsequently she did when she signed the transfer. 258. Counsel for CB handed up a five page summary in which were listed a series of transactions and claimed on balance the sum of $173,836 was due from GSDS to CB. At T450 counsel stated that CB's claim was for the amount specified on the final page of Mr Bell's report namely $151,893. Counsel submitted that this figure was probably very conservative. 259. The five page summary did not purport to be a complete summary of all the dealings between CB and GSDS but it referred to certain real estate transactions, namely, Clarence Town Purchase, Lots 34 and 36 Duns Creek, Largs and included a section headed "Other Transactions of Significance Explained." 260. CB's counsel handed up a further two page summary headed "Summary of Transactions Involving Intermixing of Funds". This showed the "net amount payable to the cross-claimant by the plaintiff" as $173,836. 261. The Largs property was transferred to the plaintiff on 30 November 2001 without reservation. The Clarence Town property was transferred about 2 February 2001 when settlement seems to have taken place. The plaintiff has an outstanding claim for the balance of the sale moneys. 262. I am not persuaded that the methodology employed in either summary is sound. 263. In my opinion the claim for $151,893 fails. 264. As earlier mentioned the last section of the cross-claim (para 23) seeks declaratory relief which is not entirely clear. CB cannot maintain proceedings against JK in respect of any moneys which she may owe to the plaintiff. It seems that CB is alleging that JK utilised CB's moneys personally including payment for erecting buildings on JK's own land without accounting to CB. 265. JK said that at CB's demand she (JK) agreed to allow the Sanctuary to erect a tri-steel stable complex on her property at Glen William. The stable is used by the Sanctuary as the Donkey intensive care facility and hospital. JK said that asset belongs to the Sanctuary and that it is able to be readily dismantled and relocated. There is also a relocatable office building. There was a payment of $800 for labour for erecting a carport which was paid for by the Sanctuary. This was offset against the sum of over $2,000 for reimbursement of expenses incurred on behalf of the Sanctuary. The Committee was aware of and approved what was done. 266. JK said that she never managed the personal money of CB and SB. 267. CB said in para 20 of her affidavit of 27 June 2002 that by early 2001 she became concerned that JK "may have been appropriating funds of mine for property improvements on her own land." No supporting details were given. 268. The evidence does not justify the making of the declaration requested in paragraph 23. 269. In my opinion the cross-claim should be dismissed. 270. Neither CB nor JK had the qualifications and experience or was otherwise equipped to handle the substantial sums of money received and expended and to keep adequate financial records of income and expenditure. The problems grew worse with the influx of funds after the 1996 fund raising drive. Both ladies were out of their depth. The large number of donkeys and the welfare of the donkeys added to CB's burdens. Substantial expenditure was involved in accommodating, feeding and caring for the donkeys. CB's prime focus and interest was on ensuring that the donkeys received adequate care and she did a lot of the physical work. CB was also fully aware of the need to raise funds. It is a great pity that CB did not keep her funds and those of the Sanctuary separate. 271. I propose to order some limited enquiries and accounting: (a) to determine the amount, if any, contributed by CB or CB and SB out of her or their property to the purchase of the property known as Limeburners Creek Road, Clarence Town about May-June 1996 (b) to require SB and CB to account for each of the deposits of $5000 or more listed under Transactions 3(a) of Schedule E to the report of Mr M F Rossetto of 6 November 2003, except the following: 5 May 1992 $ 25,526.00 24 February 1995 $ 10,000.00 19 September 1995 $ 10,000.00 17 January 2000 $130,135.90 23 March 2000 $ 20,000.00 6 November 2000 $ 5,359.50 In respect of each deposit for which an account is required SB and CB are directed to supply full particulars of the sources of those deposits which are claimed to be their or her property. That may involve going back through several accounts. Insofar as it is claimed that the whole or any part of the deposits the subject of the accounts were properly expended on behalf of the plaintiff or GSDS (the unincorporated Association) SB and CB are directed to advise the detailed basis for such claims with adequate particulars including adequate particulars of any authorisation of such expenditure (c) to require SB and CB, on the basis of my finding that $27,148.53 (or $27,100.53) was the property of GSDS (the unincorporated Association), insofar as it is claimed that the whole or any part of the sum was properly expended on behalf of the plaintiff or GSDS , to advise the detailed basis for such claim with adequate particulars of it including adequate particulars of any authorisation of such expenditure. Any overlapping with Transaction 1(a) will need to be taken into account (d) to require SB and CB to account for the deposit of $100,000 about 26 May 2000 being the legacy from the Estate of Rosemary Ware and placed into an account called GDS Sanctuary under the sole control of CB . Insofar as it is claimed that the whole or any part of this sum was properly expended on behalf of the plaintiff or GSDS (the unincorporated Association) SB and CB are required to advise the detailed basis of such claim with adequate particulars of it including adequate particulars of any authorisation of such expenditure (e) to require SB and CB, on the basis of my finding that $11,495 was the property of GSDS (the unincorporated Association), insofar as it is claimed that the whole or any part of this sum was properly expended on behalf of the plaintiff or GSDS to advise the detailed basis of such claim with adequate particulars of it including adequate particulars of any authorisation of such expenditure (f) to require CB to account for the withdrawal of $41,832.30 on 2 November 1993 and $8900 on 11 February 1993 from the account in the name of GSD Sanctuary known as CB & JK1. Insofar as it is claimed that the whole or any part of these sums was properly expended on behalf of GSDS the unincorporated Association) CB is required to advise the detailed basis of such claim with adequate particulars of it including adequate particulars of any authorisation of such expenditure. (g) to require CB to account for $8000 being the approximate proceeds of sale received by her from the sale of DBIII books. 272. Each of the claims of SB and CB will have to be proved by the appropriate evidence. I anticipate that CB will have to go back through the available documents and over the events which occurred, for example, land purchases, and endeavour to match the deposits and withdrawals with those events and that there will be a considerable amount of tracing and accounting. 273. A volume of copy bank statements was admitted in evidence and Ms Alexandra Kokas produced a plastic bag and box containing financial records. All this material should be made available to CB. 274. CB should appreciate that because she mixed her moneys with those of the unincorporated Association and put legacies and donations intended for the unincorporated Association into accounts controlled by her that she is required to account and that statements to the effect that all the moneys were applied for the benefit of the donkeys will not suffice, nor will statements that she contributed more money from her funds or those of herself and her husband than she received by way of donations, legacies and fund raising activities. The evidence points to CB and SB being in relatively modest financial circumstances and in later years being the beneficiaries of increasing land values. 275. I have not ordered a general account from January 1991. It would be impossible to conduct such an account with the limited records which are available, and oppressive. Many of the transactions occurred a long time ago. I am not unmindful that JK contributed, by poor book and record keeping, to the situation which exists. I have been guided in part by the matters to which Mr Rossetto drew attention and allowed for those instances where Mr Rossetto was either not told of relevant facts or was not supplied with relevant documentary material. 276. There are a number of ways to approach the accounting required. That is primarily a matter for the parties. 277. I direct the plaintiff within seven days to submit draft short minutes to give effect to this judgment to the solicitors for the defendant and my Associate. Within a further seven days the defendants are to notify the plaintiff's solicitors and my Associate of any objections to the proposed short minutes or submit an amended draft. The short minutes should provide for the dismissal of the second amended cross-claim. This is not an opportunity to re-argue matters, 278. As the plaintiff has enjoyed substantial success in its action and succeeded on the cross-claim, my provisional view is that the defendants should pay the costs of the plaintiff to date of the proceedings. This would include the costs of JK of the cross-claim. I am prepared to hear argument as to costs. 279. I will re-list the matter on 14 November 2006 or on such other date as may be arranged by the parties with my Associate to settle the short minutes, deal with costs and attend to any outstanding matters. By this time I would hope that the dispute as to Transaction 2 ($78,476) or the method of dealing with it would have been resolved. ********** Tuesday, 14 November 2006 Orders pursuant to judgment of 12 October 2006 made on 14 November 2006 1 The First Defendant [CB] serve on the plaintiff on or before 31 January 2007 affidavit verifying the amount of her moneys and those of her and her husband [SB] contributed to the purchase in or about 1996 of land at Lot 101 Limeburners Creek Road, Clarence Town (Folio Identifier 14/7/86382) and showing the source of such moneys and the dates on which such moneys were received and paid towards such purchase. [On the materials to date this will involve showing where the moneys in the account DBII came from other than $27,148.53 from J P Grogan and where the sum of $94,807 in account SB & CB1 came from if, in either case, it is alleged that any of these moneys were those of CB or CB and SB]. 2 CB serve on the plaintiff on or before 31 January 2007 an affidavit or affidavits verifying, as to each of the items described under the heading "Transactions" below: (a) the source of the funds deposited or withdrawn; (b) the person or persons who are claimed to be beneficially entitled to the funds deposited or withdrawn; (c) the reasons for each such claim, including particulars of any documentary evidence for such claim, annexing copies of any such documents as are available; (d) whether it is claimed that CB or SB ore both expended the funds on behalf of GSDS, and if so the reasons for each such claim, including so far as possible name of payee, date of payment, purpose, and particulars of any claimed authorization by GSDS of the payment, annexing copies of any documentary evidence for such claims. [This includes affidavits justifying or explaining amounts spent on feeding, maintaining, housing and caring for donkeys] Transactions In the report by Mariano Rosetto dated 6 November 2003, being Exhibit 'A' in these proceedings: A. Each deposit into a financial institution account listed under the heading "Money banked into accounts controlled by CB" on pages 3 and 4 of schedule E, except any deposit of a sum less than $5,000.00, and except the following deposits: 5 May 1992 $25,526.00 24 Feb 1995 10,000.00 19 Sept 1995 10,000.00 17 Jan 2000 130,135.90 23 March 2000 20,000.00 6 Nov 2000 5,000.00 B. The deposit of $27.148.33 numbered '3b' on page 4 of schedule E. C. The deposit on 26 May 2000 of a cheque for $100,000 drawn by Prpetual Trustee Company Limited on behalf of the Estate of the late Rosemary Lillian Wares, being item No. 4528 on p 71 of Schedule C. [The affidavit should show, if this be the fact, that this sum was used in the purchase of the Pine Brush land] D. The deposit on 23 Feb 2001 of cheque for $11,495.00 drawn by Patricia Hepworth, being item No 4905 on page 77 of Schedule C. E. The withdrawals from accounts of: (i) $41,832.30 on 2 Nov 1993, being item No 1097 on page 18 of Schedule C; and (ii) $8,000.00 on 11 Feb 1993, being item No 769 on page 12 of Schedule C. The affidavit should show that, if this be the fact, $41,832.30 was used in the purchase of the Largs land. [This direction applies to the extent that CB wishes to contend that such moneys were used for the benefit of the GSDS and the donkeys]. 3. CB serve on the plaintiff an affidavit verifying: (a) how the proceeds of sale of Donkey Business III of $8000 were disposed of by her, including the name of each person to, and title and number of each account into which such proceeds were paid, and the dates of payment; (b) whether it is claimed that any such proceeds were expended on behalf of GSDS, and the reasons for any such claim, including name of payee, date of payment and the purpose. 4. CB serve on the plaintiff on or before 21 December 2006 an affidavit verifying whether any documents and records of the affairs of GSDS or goods the property of GSDS are within the possession, custody or control of either or both CB and SB and providing a full description of each such item and its location. 5. In these Orders, "GSDS" means the plaintiff, formerly named "Good Samaritan Donkey Supporters Inc", and includes the unincorporated association named "Good Samaritan Donkey Sanctuary" that existed from about 1990 until the incorporation of the plaintiff. 6. List the matter for further directions before me on 12 February 2007 at 9.30am. 7. The claims of the plaintiff in these proceedings are otherwise dismissed. 8. The second Amended Cross-Claim is dismissed. 9. The defendants are to pay the plaintiff's costs of the proceedings relating to the claims against the defendants, to and including the date of these orders, including reserved costs. 10. The cross-claimant [CB] is to pay the costs of each of the cross-defendants relating to the cross-claims. 11. Direct that service of the orders upon the defendants may be effected by the plaintiff's solicitors by prepaid post addressed to Mrs C E Berry, 600 Wollombi Road, Bishops Bridge, NSW 2326 and that the solicitors for the plaintiff advise Mrs C E Berry by letter by prepaid post that she should appear at this Court, Queen's Square, Sydney on 12 February 2007 at 9.30am (See the notices in the Court foyer to ascertain the Court in which the matter is being heard). 12. Note that Mr R Makin, the solicitor on the record for Mrs C E Berry has advised that his instructions have been withdrawn and that he has ceased to act for her. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.