New South Wales Supreme Court CITATION : Chidiac v Maatouk [2010] NSWSC 386 HEARING DATE(S) : 18, 19 February 2010 JUDGMENT DATE : 4 May 2010 JURISDICTION : Equity JUDGMENT OF : Ward J 1. Order the first defendant pay to the plaintiff, for the benefit of the estate of the late Peter Maatouk Snr the sum of $246,540 plus interest from the date on which demand for repayment was made to date. DECISION : 2. Dismiss the plaintiff's claims against the second defendant. 3. Stand over for submissions on costs. CATCHWORDS : LOAN - payment of money held to be made under an enforceable loan agreement between plaintiff and first defendant - first defendant ordered to repay loan amount - CONTRIBUTION - principles concerning doctrine of contribution - no right of contribution in absence of common intention between co-borrowers that second defendant be responsible for repayment - UNJUST ENRICHMENT - claims based on unjust enrichment fail - not sufficient merely to show receipt of benefit by first and second defendants - necessary to establish basis on which retention of benefit unjust - LIMITATION OF ACTIONS - date of accrual of cause of action based on a debt or unjust enrichment - existence of confirmation of debt and operation of s 54 of Limitation Act - proceedings commenced within limitation period - PLEADINGS - necessary to plead factors giving rise to claim for unjust enrichment LEGISLATION CITED : Limitation Act 1969 (NSW) Albion Insurance Co Ltd v GIO (NSW) [1969] HCA 55; (1969) 121 CLR 342 Anon, (1293) Y.B 21-22 Edw. I. (R.S.) 110-111 Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344; (1993) 111 ALR 289 Bhupinder Sekhon v Sharangjit Cour Sekhon [2007] NSWSC 875 BP Petroleum Development Ltd v Esso Petroleum Co Ltd [1987] SLT 345 Brott v Grey [2000] FCA 1727 Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282; (2002) 187 ALR 612 Capita Financial Group Limited v Rothwells Limited (1993) 30 NSWLR 619 Clune v Collins Angus & Robertson Publishers Pty Limited (1992) 25 IPR 246 Cockburn v GIO Finance Ltd (No 2) [2001] NSWCA 177; (2001) 51 NSWLR 624 Coshott v Lenin [2007] NSWCA 153 Coulls v Bagot's Executor & Trustee Co Limited (1967) 119 CLR 460 David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 Dering v Earl of Winchelsea (1787) 1 Cox 318; 29 ER 1184; [1775-1802] All ER Rep 140 Dinsdale bht Protective Commissioner v Arthur [2006] NSWSC 809; (2006) 12 BPR 23,514 Faraday v Rappaport [2007] NSWSC 34 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; (2007) 236 ALR 209 Forgeard v Shanahan (1994) 35 NSWLR 206 Gleeson v Gleeson [2002] NSWSC 418 Haller v Arye [2005] QCA 224; (2005) 2 Qd R 410 Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810; [2008] ATPR 42-240 CASES CITED : Jones v Padavatton [1969] 1 WLR 328 Ingram v Ingram [1941] VLR 95 Lactos Fresh Pty Ltd v Finishing Services Pty Ltd (No 2) [2006] FCA 748 Lewis v Lewis & Anor [2001] NSWSC 321 Lumbers v W Cook Builders Pty Limited [2008] HCA 27; (2008) 232 CLR 635; (2008) 247 ALR 412 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Malco Engineering Pty Limited v Ferreira & ors (1994) 10 NSWCCR 117 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 Official Trustee in Bankruptcy v Citibank Savings Ltd (1995) 38 NSWLR 116 Ogilvie v Adams [1981] VR 1041 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 Plunkett v Bull (1915) 19 CLR 544 Re Brookers (Aust) Ltd (in liq); Brooker v Pridham (1986) 41 SASR 380 Re Hodgson (1886) 31 Ch D 177 Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWSC 222 Torrens Aloha Pty Ltd v Citibank NA [1997] FCA 77; (1997) 72 FCR 581; (1997) 144 ALR 89; (1997) 35 ATR 36 VL Finance Pty Ltd v Legudi [2003] VSC 57; (2003) 54 ATR 221 Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41 Wasada Pty Limited v State Rail Authority of New South Wales (No.2) [2003] NSWSC 987 Watson v Foxman (1995) 49 NSWLR 35 Weeks v Hrubala [2008] NSWSC 162 Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560; [1956] ALR 939 Dal Pont & Chalmers, Equity and Trusts in Australia 4th edn, Lawbook Co., 2007 TEXTS CITED : Mason, Carter and Tolhurst, Mason & Carter's Restitution Law in Australia, 2nd edn Butterworths, 2008 (1st edn, Butterworths, 1995) Meagher, Gummow & Lehane, Equity Doctrine and Remedies 4th ed, Butterworths, 2002 Tyler E., Young P., Croft C., Fisher & Lightwood's Law of Mortgage, Butterworths, 2005 Yolla Chidiac (Plaintiff) PARTIES : George Maatouk (First Defendant) Anthony Maatouk (Second Defendant) FILE NUMBER(S) : SC 2008/00282252 COUNSEL : K F Morrissey (Plaintiff) M K Rollinson (Defendants) SOLICITORS : Stockman & Evans (Plaintiff) Thomas Booler & Co (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WARD J TUESDAY 4 MAY 2010 08/282252 YOLLA CHIDIAC V GEORGE MAATOUK JUDGMENT 1 These proceedings are brought by Mrs Yolla Chidiac, in her capacity as the legal personal representative of her late father (Peter Maatouk) who died intestate on 2 May 2004, leaving his wife (Rose Maatouk) and six children, those being the first defendant (George Maatouk), the plaintiff (Yolla), another daughter (Therese Chahine) and three other sons (Michael, Fred and Maurice Maatouk). Without intending any disrespect I will refer to the various family members by their first names (and, to differentiate between the late Peter Maatouk and his grandson Peter, George's son, who gave evidence in these proceedings, I will refer to the respective Peter's as Peter Snr and Peter Jnr). 2 Yolla seeks recovery for the benefit of the estate of moneys said to have been the subject of a loan in 2002/2003 (of sums totalling $320,000) from Peter Snr to George in order to enable George to satisfy his obligations under a Family Court settlement he had reached with his ex-wife, Jasmine. The funds provided to George had been obtained by Peter Snr by way of a loan facility entered into with the National Australia Bank and secured over Peter Snr's property in Punchbowl, that having been the Maatouk family home at that stage for over 30 years. 3 The second defendant (Anthony Maatouk) is another of George's three sons and thus also a grandson of Peter Snr. In 2002 Anthony signed the application for the National Australia Bank loan facility as joint borrower with his grandfather. He admits that he did so at his grandfather's request, although he says that he only thought he was signing by way of a guarantee of the loan. The loan application was approved by the bank and a loan account was established in their joint names, from which there were two withdrawals, one in November 2002 and one in February 2003. In each case the moneys so withdrawn were used to discharge George's obligations to Jasmine. 4 It is not disputed by the defendants that Peter Snr (whether jointly or otherwise) borrowed the sums in question (and that they were provided to or for George's benefit), nor is it disputed that the borrowings were secured by a first mortgage over the Punchbowl property, which seems to have been unencumbered at the time. The defendants deny, however, that the provision of the funds to or for George's benefit was by way of a loan to him and they deny that there was any agreement by one or both of them to repay those sums to Peter Snr (or to make good the National Australia Bank borrowings, including interest). George contends that the moneys were provided by his father as a gift. (Anthony's evidence, as I understand it, was that when he signed the application to borrow funds with his grandfather, as co-borrower, he believed that he was agreeing to guarantee the loan and that his only liability to the bank in relation to the loan would have arisen had there been a shortfall on the sale of the house and a call was made on him as guarantor.) 5 For the estate it is pleaded that under the loan agreement between Peter Snr and the defendants, the moneys provided by Peter Snr were repayable either on demand or on the sale of a property in Belmore then owned by a company in which George was the majority shareholder (Clarenden Pty Limited). During submissions what was pressed was that I should find for the plaintiff on the second of those alternatives. 6 No repayments were made on the National Australia Bank loan (whether by way of principal or interest) from the time the loan account was established in November 2002 until July 2003, two months after the sale of the Belmore property by Clarenden. That property was sold in May 2003 to JYW Pty Limited, a company owned by Yolla and her husband, Joseph. On 30 July 2003, George paid the sum of $160,000 directly to the credit of the National Australia Bank loan account in the joint names of Peter Snr and Anthony (Exhibit A, at p 211 and 288). For the estate, it is contended that this was in part performance of the alleged loan agreement (and amounted to confirmation of that agreement for the purposes of s 54 of the Limitation Act 1969 (NSW) so as to defer the commencement of the operation of the applicable limitation period to the cause of action on the debt). No further payments were made by George (or anyone else) to the credit of the joint loan account (other than a small, and unexplained, transfer in January 2008) until it was discharged in 2008 in the circumstances described below. 7 Peter Snr died unexpectedly on 2 May 2004. He apparently suffered a heart attack following the discovery of the theft of a safe kept by him at the Punchbowl property, in which cash and jewellery had been kept. The relevance of the unexpected nature of his death is that (as seems to have been accepted by the parties) at the time the National Australia Bank loan was taken out there was no reason to anticipate that Peter Snr would not continue to live for a number of years. Peter Snr, therefore, must surely have been aware that interest would accrue on the National Australia Bank loan until it was repaid; that interest payments would need to be made and that the loan itself would eventually need to be repaid. It seems highly unlikely that Peter Snr (or, for that matter, his son George) would have operated on an assumption that no repayments at all would need to be made to the bank and that in due course the bank would simply have recourse to the equity in the property following a mortgagee sale of the family home. 8 At the time of Peter Snr's death, the amount owing to the National Australia Bank on the loan in Peter Snr's and Anthony's joint names was just under $180,000 ($178,660.20, as pleaded in paragraph 7 of the Statement of Claim). 9 The estate of Peter Snr consisted substantially of his interest in the Punchbowl family home (which was then the subject of the mortgage to the National Australia Bank securing the joint loan facility). As his widow, Rose became entitled on intestacy to the whole of Peter Snr's estate. It seems that no steps were taken at that stage to take out letters of administration in relation to the estate or to enforce any loan agreement between Peter Snr and one or both of the defendants. There was, however, some evidence that over the period from 2004 to 2005 Rose became concerned by calls she was receiving from the bank in relation to the mortgage and that Rose had asked George to repay the loan and had asked one or more family members to get George to do so. There was also evidence (disputed by George and Peter Jnr) that George had told his siblings that Peter Jnr was going to 'fix' the National Australia Bank loan. (However, apart from raising the issue at the mass after Peter Snr's death, it does not seem that any of the siblings pressed the issue at that stage with George, notwithstanding Rose's request that they do so.) 10 Rose died on 1 May 2006, leaving a will under which her estate was to be divided equally amongst her six children (George, Yolla, Michael, Fred, Maurice and Therese) and (a matter of some controversy with George) nominating Yolla as her executor (Peter Jnr having been the named executor in an earlier will). All of the siblings, other than Therese (who lives in Lebanon), gave evidence in the proceedings. 11 On 23 May 2008, following the grant of probate to Yolla as executor of her mother's will, the Punchbowl property was sold by Yolla. From the proceeds of sale ($355,000) the sum of $246,540 was used to repay the National Australia Bank and to discharge the mortgage on the Punchbowl property (no substantive payments of principal or interest having been made on that loan since the $160,000 paid by George in July 2003). 12 Yolla has demanded repayment of the sum of $246,540 from both George and Anthony. Each has denied any liability to the estate. 13 Against George, the claim for repayment is made both under the agreement said to have been reached by him with his late father in 2002 for repayment of the borrowed sum and on the basis of a claim of unjust enrichment (namely, that in circumstances where George obtained the benefit of the loan advances he will be unjustly enriched if he is not required to repay to the estate the full amount ultimately paid to the National Australia Bank to extinguish the loan and to obtain the discharge of the mortgage - reliance being placed on Lumbers v W Cook Builders Pty Limited [2008] HCA 27; (2008) 232 CLR 635; (2008) 247 ALR 412 in that regard). 14 A similar claim based on unjust enrichment is made against Anthony. It is not suggested by Counsel for the plaintiff, Mr Morrissey, that Anthony took any financial benefit from the making of the National Australia Bank loan but, rather, that he ultimately received a quantifiable benefit in that his legal obligation to the bank to pay the loan was terminated because of the payment out of the loan by Yolla, as the representative of Peter Snr, in about July 2008 on the sale of the Punchbowl property. 15 The principal claim made against Anthony by the estate is a claim for indemnity, relying upon the doctrine of contribution (Mr Morrissey referring in this regard to Bhupinder Sekhon v Sharangjit Cour Sekhon [2007] NSWSC 875). It is said that Peter Snr and Anthony, as joint borrowers, had a common obligation to repay the loan to the National Australia Bank; that Yolla, as the legal representative of Peter Snr, repaid the National Australia Bank the sum of $246,540 to discharge the joint liabilities of Peter Snr and Anthony; and that Anthony is thereby liable to contribute to the amount paid on his behalf. The measure of contribution is said by Mr Morrissey to be the whole of the amount paid (on the basis that any presumption of equality is displaced by the nature of the relationship between Peter Snr, who received no personal benefit from the moneys borrowed from the National Australia Bank, and George, who did) or, in the alternative, that Anthony is liable to pay by way of contribution 50% of the moneys repaid by the estate, namely $123,270. 16 As noted, the defendants deny that there was any loan agreement as alleged. It is asserted that the circumstances in which Peter Snr made sums totalling $320,000 available to George in 2002/2003 (to help him meet his obligations to his former wife) amounted to a gift by father to son, partly in recognition of financial help which George had given to his parents in past years (and that the subsequent payment of $160,000 by George to the credit of the joint National Australia Bank loan account in 2003 was similarly of a "gratuitous" nature). 17 In relation to the claim against Anthony for contribution it is said that, while both names were on the loan account, only Peter Snr had the mortgage security and therefore it is not shown that Peter Snr and Anthony were under co-ordinate liabilities to the bank. The defendants further rely on the principle that an equity to compel one debtor to contribute does not arise if there is an agreement or common intention that only the other debtor will bear the liability (referring to the discussion in Meagher, Gummow & Lehane, Equity Doctrine and Remedies 4th ed, Butterworths, 2002, Ch 10 [10-030] and [10-110–135]). 18 It is submitted by Counsel for the defendants, Mr Rollinson, that it is not credible that Peter Snr would have intended Anthony (then aged 20, working as a mechanic in the family business, with no substantial assets and a family of his own) to assume an obligation to repay such a loan. It is said that this is the only reasonable inference to draw from the facts that Anthony took part in the bank transaction only at Peter Snr's request; that he obtained no benefit from the borrowing itself; that he did not expect to benefit and was not intended to benefit from the borrowing; and that he was under no obligation to help his father, George, carry out the property settlement with his mother, nor was he asked to do so. It is further said by the defendants that the only benefit gained from the borrowing was by Peter Snr in that he obtained the funds he wanted in order to achieve his purpose of helping his son George. (I understand this last submission to relate only to the benefit from the loan as between Peter Snr and Anthony, since George himself obtained an undeniable benefit in not having to fund his own property settlement either temporarily or, on George's case, at all.) 19 Mr Rollinson further submits that the alternative claims of unjust enrichment must fail against both George and Anthony. As to George, it is said that the benefit George received (presumably there referring to the provision of the initial loan funds, since it is not suggested that George had assumed any obligation directly to the National Australia Bank in relation to the borrowings) was not only not in performance of a contract but was gratuitous; and that the receipt of a benefit without more does not create any restitutionary liability. It is said that, for the same reasons, a common law restitutionary liability on the part of Anthony did not arise (the benefit in his case being the eventual discharge of the National Australia Bank loan for which he had been jointly liable). 20 Finally, it is the defendants' contention that if (which is denied) there was a contract of loan repayable on demand, or a non-gratuitous benefit conferred on George or Anthony which generated a common law liability to make restitution, any such cause of action against George and Anthony arose immediately upon the payment out of the account of the moneys required for the settlement of Jasmine's house purchase in November 2002. These proceedings were commenced by the filing of a Statement of Claim on 23 December 2008. The defendants thus say that if any cause of action has accrued against either of them it is barred by s 14 of the Limitation Act (and that s 54 does not operate to defer the commencement of the relevant limitation period as the payment of $160,000 in May 2003 did not amount to confirmation of any cause of action in respect of the alleged debt). Issues 21 The following issues arise: 1. Was there a loan agreement as alleged between Peter Snr and one or both of the defendants whereby one or both of the defendants agreed to repay to Peter Snr the sum of $320,000 either on demand or, in the alternative, on the sale by George of the Belmore property owned by Clarenden? 2. Is Yolla, as administrator of Peter Snr's estate, entitled to contribution from Anthony equivalent to the amount paid out of the estate in 2008 to discharge the National Australia Bank loan, or a portion thereof? 3. In the alternative to the above, is Yolla, as administrator of Peter Snr's estate, entitled to recover from George and/or Anthony the moneys paid to discharge the National Australia Bank loan on the basis of a restitutionary claim of unjust enrichment? 4. If the answer to 1 or 3 is in the affirmative, is any claim for repayment under the loan agreement or by way of restitution statute-barred? Summary 22 For the reasons set out below, I am of the view that: 1. There was an agreement between Peter Snr and George under which Peter Snr agreed to make available to George, on the security of the Punchbowl property, funds to enable George to meet his obligations to Jasmine under the property settlement he had reached with her and under which George had agreed to repay to Peter Snr those moneys. I am satisfied that, notwithstanding the informal nature of the agreement, it was binding on George. I consider that any presumption that, as an intra-family arrangement, this was a loan intended to be binding in honour only is rebutted by the evidence of the circumstances in which the funds were provided for George's benefit. The conduct of both Peter Snr and George in relation to the repayment of the National Australia Bank moneys (Peter Snr taking no steps to meet any repayments and George repaying a substantial portion of the money so lent) leads to such a conclusion. I therefore find that the agreement between Peter Snr and George was one whereby the latter had promised to repay the loan funds and that it was intended that this was to give rise to a binding obligation on George's part. As to when the loan was repayable, on balance I consider that the inference to be drawn from the evidence before me is that the agreement between Peter Snr and George was that the moneys provided by Peter Snr were to be repaid when the Belmore property owned by Clarenden was sold or within a reasonable time thereafter. I draw that inference taking into account the following matters: that when the loan was made George was in the throes of negotiating a sale of property owned by his company and would have anticipated the receipt of funds in the near future; that at least one of the family members had been told by his father that the loan was to be repaid when the property was sold; that, significantly in my view, no steps were taken by Peter Snr (or Anthony for that matter) to make any payment of interest or principal on the loan from the time it was taken out (clearly expecting that someone else was to do so); and that George made a substantial payment direct to the loan account of his father and Anthony within a short period after the sale of the Belmore property (which seems to have completed earlier than was necessary under the terms of the contract). That said, I do not believe that anything ultimately turns on whether the loan was or was not repayable on demand, as I do not think that even if the loan was one repayable on demand it would be statute barred, having regard to the operation of s 54 of the Limitation Act . 2. As between Peter Snr and Anthony, there was no agreement (nor was it Peter Snr's intention) that Anthony should bear any liability (other than perhaps as a last resort) for the repayment of the loan obtained from the National Australia Bank. Rather, I consider that it was Peter Snr's expectation, based on the agreement he had reached with George, that George would bear the liability for repayment of the borrowings. Therefore, I find that the estate is not entitled to contribution from Anthony in respect of any of the moneys paid out of the estate in 2008 to discharge the National Australia Bank loan. 3. The estate has not established its alternative claims in restitution for unjust enrichment against either of George or Anthony (nor was any such claim adequately pleaded so as to enable me to make any determination in favour of the estate in that regard). 4. The estate's claim for repayment of the moneys provided to or for George's benefit in both November 2002 and February 2003 is not statute barred (nor would the first of the advances have been statute barred even if the loan was one repayable on demand because the effect of the part repayment in July 2003 was to confirm the cause of action on the loan and thus to defer the commencement of the limitation period pursuant to s 54 of the Limitation Act to 30 July 2003). Facts 23 Peter Snr was born in Lebanon in 1932. He migrated to Australia in 1964 and purchased what became the family home in Punchbowl in approximately 1968. In 1969, his wife, Rose, and their then children (other than George) came to Australia. In 1972, their eldest child, George, came to Australia. 24 George accepted that his father was an uneducated man, who did not speak and read English (and was not rich) (T 108), and Yolla confirmed in her affidavit sworn 10 June 2009 (at [5]), that her father was unable to read or write in English or Arabic. At the time of the relevant events Peter Snr was around 70 and a pensioner. Similarly, Yolla says (and it does not seem to be disputed) that her mother, Rose, was not educated, could only speak a few words in English and could not read or write English (T 19). (In Rose's dealings with Mr Elias, the solicitor who acted for her in 2005, Arabic was spoken and it seems that in Peter Snr's dealings with the bank in relation to the loan, Arabic was spoken by the bank officer as well.) 25 For some time, one or more of the brothers worked together in a family enterprise that involved the running of a number of service station and related businesses (at T 81, Anthony explained that the Maatouks operated service station, tyre, motor mechanics and detailing businesses). In 1989, a company, Clarenden Pty Limited was incorporated, the shares then being held (according to George) by all of the brothers, with his father also perhaps having a small shareholding. It seems that it was through this company that the family carried on business from one or more service stations over the years - by the late 1990's from premises in Belmore adjacent to the premises from which Clarenden (and then, from at least 2000, Yolla and her husband) operated a tyre business. 26 It was put to George in cross-examination that Peter Snr had from time to time from about 1988 put up his Punchbowl home as security to help his children with their various needs and his response was "that is when we were altogether in the business, yes" (T 109.17), by which I understood him to be referring to the time at which he and his brothers together ran the Clarenden business. 27 There was evidence (in Exhibit C) that in the late 1980's the Punchbowl property had been mortgaged to the Commonwealth Bank. A mortgage was registered on the title in favour of the bank in February 1988 (though the mortgage document itself seems to have been dated a few years earlier, the explanation for which is not apparent to me). George accepted that this mortgage was security to assist with the purchase by Clarenden of a property in Leppington from which Clarenden carried on the business of a service station (T 110.4). That mortgage was discharged on 2 June 1992 (the discharge of mortgage was registered 25 June 1992). (George could not recall precisely – T 110.5 – when the mortgage was discharged but was prepared to accept that the mortgage to enable the purchase of the Leppington service station was discharged at whatever time the Leppington service station was sold). 28 George at first said in the witness box (T 110.40) that he did not believe the family home was used for another loan after the purchase of the Leppington property. However, there was evidence that there had been a mortgage to Arab Bank Australia Limited (in Exhibit C) which was discharged on 30 January 1997. When it was put to George that there had been a loan from the Arab Bank when another property was bought on Georges River Road, Croydon Park (T 110), George readily accepted that that was the case, though emphasising that other security was put up for that loan as well. George said at T 111.5: When he put the house up for mortgage, he put the house up for all of us, not for me, because we were all partners and shareholders in the company. He did not put the house up only for me. 29 George accepted that the Arab Bank loan was subsequently discharged from the sale of the Croydon Park property (T 111.24). He also accepted that in 1999 there was then a mortgage registered over the Punchbowl property for the benefit of Euphoric Pty Limited (T 111.41), which he said was a company which supplied petrol and oil to Clarenden, and that that mortgage was later discharged. (From the documents in Exhibit C, it appears that a discharge of mortgage was registered 29 November 2002.) (By the time of this third mortgage, the shareholding in Clarenden appears to have been acquired wholly by George and two of his sons, Peter Jnr and Paul and hence the last of the three prior loans would seem to have been for their ultimate benefit, through Clarenden.) 30 When the relevant documents were put to him in the witness box, George accepted (T 112.6 – 112.14) that on at least three occasions before the 2003 National Australia Bank mortgage was taken out, the Punchbowl property had been put up as security for loans (and seemed to accept that these loans were in each case to assist one or more of Peter Snr's children with their business ventures). There was no evidence of any formal loan agreement having been entered into on any of those occasions but neither was it suggested that there was any intention that Peter Snr should himself be responsible for the respective borrowings applied by him for his children's benefit but which were being secured by his own home or that he discharged any of those earlier borrowings from his own funds. 31 At some stage in about 1996, George acquired the Clarenden business from his brothers. The current shareholding of the company is held, as to the bulk of the shares, by George (6080 of the 6980 issued shares), with his sons Peter Jnr and Paul each holding a parcel of 450 shares (Exhibit A, at p 259 – 260). George has been a director of the company since 1989 and the company secretary since 1996. (According to that ASIC extract, dated May 2009, (a copy of which appears from p 258 of Exhibit A), Clarenden was the subject of a winding up application in 2000, which was withdrawn in 2002, and again the subject of a winding up application in 2007. During cross-examination, George volunteered that Clarenden is now in the process of liquidation (referring to the commercial garage and factory site occupied by the company, he said: "It's not being sold, it's under liquidation if you want to know") (T 128.8). 32 As noted above, from at least around 1996, George and one or more of his sons, through Clarenden, ran service station/tyre/motor repair businesses from the two adjacent sites at Belmore. (At the time of the loan taken out by Peter Snr in 2002/3, Anthony was employed by Clarenden as a motor mechanic earning approximately $84,000 per annum – T 89.17.) 33 From around 2000, JYW took over the conduct of the tyre service business at the Belmore site (one of the two adjacent Belmore properties). 34 On 31 October 2001, following the breakdown of George's marriage to Jasmine (after a period of separation while living under the same roof), their matrimonial home was sold (T 124). After the sale of the home, George says he moved in with his parents in the Punchbowl property for about a month before renting a unit in Greenacre, where he says he stayed for about nine months to a year (T 132). At T 132.15, George said he went to Lebanon in 2003. (There was some cross-examination as to George's movements over the period from 2001. The only relevance of this, as I understand it, was that George had denied that a conversation attributed to him by each of his brothers in early 2005 could have taken place at that time because he said he was overseas – hence the attempt to elicit from George a timeline against which that denial could be tested. George, however, seemed to take offence at this enquiry into his private life – one of a number of matters on which he took issue with Counsel during his cross-examination – and displayed a somewhat truculent attitude to such questions.) 35 Taking George's timeline on its face, it would suggest that he left for Lebanon somewhere between about September 2002 – December 2002 (ie calculating the time from the sale of his house on 31 October 2001, one month in the Punchbowl home brings one to about the end of November 2001, and then, after a period from between 9 months and a year in the Greenacre property, to September/December 2002, not June 2003). That said, George was emphatic that he bought his current home before he went to Lebanon and the transfer document for that sale bears a stamp duty imprint of 20 May 2003, which would be consistent with a departure for Lebanon around June or July 2003, and he deposited moneys into the joint loan account of Peter Snr and Anthony on 30 July 2003, which seems to put his departure towards the end of that two month period or perhaps slightly later. 36 Later in his evidence, George said that he had been in Lebanon for a year before his father passed away (which would put his departure for Lebanon at around May 2003) and that he came back to Australia in 2004 to attend his father's funeral and 40 day mass, staying here for between one and one and a half months (and that he then went back to Lebanon where he re-married and stayed for another nine months to a year, only returning to Australia in April 2005 once his new wife had obtained a visa). Somewhat inconsistently, though, he also said that he was away for two to three years. 37 Nothing seems to turn on the precise chronology of events in this regard (since George accepts that he made the deposit of $160,000) other than insofar as it suggests that George's recollection of dates may not be wholly reliable – something to take into account when considering his assertions as to his whereabouts in early 2005, emphatically put forward by George as contradicting Fred's account of a conversation with him in early 2005. In that regard, it seemed to me that Fred was by no means suggesting that he had an accurate recollection of the time at which the alleged conversation took place and was simply doing his best to place an approximate time on the conversation. 38 In May 2002, court orders were made by the Family Court in relation a property settlement between George and Jasmine. (Those orders were subsequently amended on 18 February 2003 but nothing turns on the amendments for present purposes.) Of relevance to the present case is that under those Family Court orders George was obliged to make payment of certain amounts to Jasmine to enable her to purchase both a house and a car. 39 In September 2002, Jasmine entered into a contract to purchase a property in Currans Hill (a copy of which appears from p 1 in Exhibit A). Peter Jnr, who is a solicitor and one of George and Jasmine's three children, seems to have acted in some capacity for his mother in relation to the sale, at least after the exchange of sale contracts (though he was reluctant at first to concede this in the witness box, a matter to which I refer later) and perhaps earlier. Although, in the sale contract, the purchaser's solicitor is described on the cover page as "Acting for Self", the contact reference is to Peter Jnr and there is noted a contact facsimile number which was identified by Peter Jnr in the witness box as being that of Maatouks Law Firm, a law firm that he had established at around that time. Subsequent correspondence with the vendor's representatives was conducted by Peter Jnr on his firm's letterhead in language consistent with him acting as a solicitor on the transaction and holding himself out as Jasmine's solicitor. 40 The purchase price was noted in the sale contract as $295,000. George, in accordance with the Family Court orders, was obliged to provide the funds for completion of that sale within the completion period, ie by around November 2002. 41 In Special Condition 8 of the contract for sale (Exhibit A, at p 7), Jasmine warranted that, prior to exchange of contracts, she either had the necessary funds to complete the purchase or, if she did not, she had received approval (satisfactory to her and subject to terms considered by her to be reasonable and acceptable) of an application for financial assistance as would allow her to complete the purchase. This warranty was agreed to be an essential condition of the contract. 42 On the assumption (which seems reasonable in the circumstances) that Jasmine was relying on George to comply with his obligations under the Family Court orders in order to provide the necessary finance for the purchase of her home, that warranty could only prudently have been proffered if Jasmine was confident that George had the necessary funds or had already made satisfactory arrangements for finance to be in place. In circumstances where it seems from George's evidence that relations with his former wife were strained, one might also assume that any such confidence could only have come from the fact that Peter Jnr was handling the transaction (and that he was aware of the source of the funds for completion). The significance of this warranty, for present purposes, seems to me to be that Peter Jnr apparently felt no need to advise his mother as to the risks involved in the provision of such a warranty or of the need to ensure that finance was in place or in hand consistent with the warranty (and hence might be thought to have had more concrete information as to the source of the funds than he had suggested). 43 There was no evidence that George had taken any steps to arrange finance for the completion of Jasmine's house purchase independent of the arrangements made by his father for the provision of funds. George accepted, in the witness box, that he was aware that his former wife was to buy a house. He accepted that the contract date for Jasmine's house was September 2002. He said he did not know how long before that it was that he was informed that Jasmine was going to buy a house. George also said that he did not know who had acted for Jasmine on the house ("I don't know, it wasn't my problem" – T 125.25) but nevertheless was able to hazard what turned out to be a correct guess ("I don't know, it could be my son Peter, I would have to see the contract to remember, I don't know"). Given that Peter Jnr seems to have acted on a number of intra-family transactions over the years, including the sale from Clarenden to JYW of the Belmore property, George's professed ignorance of his son's involvement on this conveyance seems hard to accept. (The relevance of Peter Jnr's involvement in the sale is something I address later when considering the credibility of the respective witnesses. At this stage I simply note that as between George and the two sons who gave evidence there was a surprising lack of knowledge of each other's role in these family transactions.) 44 When George was asked in the witness box how he was going to pay the money required to complete the contract for the purchase of Jasmine's house, he said, "I sold my house [referring, I assume, to the matrimonial home sold in October 2001] for $840,000, I had 160 to pay off" (T 126). Presumably, by this, he was intending to convey that he had no need for any financial assistance from his father. If so, it seems odd that George was so quick to accept the provision of funds (having already, at least on his and his son Peter Jnr's account of events, refused an offer from his father to transfer the whole of the house to him), particularly since those funds were being procured (as he surely must have realised, given his general awareness of his father's financial position – T 108) by way of a loan which encumbered the only substantial asset of his pensioner father. It is difficult to see how George could have thought that his father would be able to come up with funds of that amount without borrowing them (since he accepted that his father was not rich and says that for many years he was assisting his parents with their living expenses, from which I infer that they did not have ready funds available other than their pensions). Although the joint loan application referred to savings of about $100,000, there is no evidence that Peter Snr had any separate savings in that amount. 45 If George had the funds readily available to complete the purchase then it is hard to see why (on his version of events) his response to his father's offer would not have been to the effect "Don't worry Dad I don't need any assistance. You don't need to mortgage your house", just as he says he refused the offer that the house be transferred to him outright. 46 The suggestion that Peter Snr was proposing to give George the whole of the Punchbowl property had not been mentioned at all in George's affidavit but was a matter he volunteered in the witness box, with the air of someone playing a trump card, saying [at T 127]: I never asked my father for any money. Even my father, he was going to give me the whole house. That's something you - if you like to know, sir, but I didn't accept it. 47 The offer of provision of funds to George was, however, something referred to in some detail in the affidavit of Peter Jnr. According to Peter Jnr, his grandfather (in the presence of his grandmother) consulted him about his intentions and told him that he wanted to give George the Punchbowl property to thank George for all he had done for them (as to which Peter Jnr says he had said that he couldn't become involved, affidavit sworn 30 October 2009 at [7]) and that Peter Snr had later said to him that he wanted to borrow funds on the security of the Punchbowl home in order to give George the money (and that he had asked Anthony to be the guarantor of the loan (T 159.30–159.35) – according to Peter Jnr saying that it was no big deal because there was still a lot of equity in the home (T 159.46)). (I consider later this evidence in more detail but note that it seems inconsistent with Rose becoming concerned (as she clearly seems to have been when consulting a solicitor in 2005 whether or not that was at her own investigation) at why the bank was calling her about a mortgage, if she had understood her husband to have made a gift of those funds to George; just as it is inconsistent with her then asking only for George, and not any of her other children, to repay or "fix" the loan, as George's siblings say she did.) 48 The National Australia Bank loan was a joint borrowing. On 30 October 2002, Peter Snr (then a pensioner aged around 70) and Anthony (then aged 20, with a wife and young child) signed a joint application for a loan of $320,000 described as being a loan for "investment-purchase share/and other invest assests" [sic] from the National Australia Bank to be secured over the Punchbowl property (Exhibit A, at p 81). (The description of the purpose for the loan was clearly incorrect given the ultimate destination of the funds, unless it could be said that the debt owing by George represented an investment asset acquired by way of investment by Peter Snr/Anthony). 49 As noted earlier, at the relevant time Anthony worked as a motor mechanic employed by Clarenden. He accepted that he was pretty close to his father and to his brothers. He said (T 83) that he was close to his mother as well though (somewhat surprisingly, if that was the case) he said that he did not know where his mother had gone to live after she and his father had separated and after the family home was sold (the more surprising since the evidence was that Jasmine had moved to a home owned by one of Anthony's brothers and not far from that of Anthony). Anthony denied that he had had any discussion with his father or mother in relation to the property settlement (T 86.50–87.6) (he said he did not regard the state of their marriage as any of his business– T 83.36, though one would have expected a divorce in the family to give rise to some disruption in family relationships). The attitude of Anthony, so far as I could glean from his answers in the witness box, might best be described as one of putting his head in the sand on all contentious issues within the family. 50 Anthony was adamant that he had not borrowed any money and said that he had just agreed to guarantee the loan (T 97.47). He said that he understood what the word "guarantor" meant (T 87.19) "that if you can't afford to pay the loan off and the house doesn't get sold and it can't be paid for, then it comes back to me". Anthony stated that (T 94.34) "I was a guarantor. I wasn't a borrower. I was guarantor. I had not received any money nor did I at any stage." Anthony at one point asserted that the money was not 'borrowed', by which he seemed to draw a distinction between a borrowing and an approval of a loan, in that he accepted that it was approved (T 90.40). 51 Anthony said (T 98.22): "I had a guarantor so that if my grandfather had a problem, couldn't pay the loan off, the house got sold and couldn't pay the house, and, yes, I then knew it can land on me. If something was to happen and house wouldn't cover it, I would because the loan was whatever it was for. I was pretty sure the house would cover it, that's why I went guarantor on the house." 52 How it is that Anthony could have formed any independent view at the time as to whether he was to be a borrower or a guarantor is somewhat of a mystery, since Anthony said that he did not read the loan application document when he signed it, he just signed it (T 91.49–T92.1), and seems to have regarded anything to do with the mechanics of the borrowing as not being his business. 53 Anthony, in his affidavit sworn 23 September 2009, says that his grandfather asked him to be guarantor for the loan but didn't say anything about the amount of the loan or what it was for. (Evidence to a similar effect to that given by Anthony (ie as to the request made by Peter Snr that Anthony guarantee the loan) was given by Peter Jnr in his affidavit, at [11].) 54 Anthony said that he did not think that the details of the borrowing were any of his business, and that he was happy to help his grandfather. "I was doing it for my grandfather. Whatever paperwork needed to be done, I just signed it. I don't think my grandfather would try and rip me off in any way, that's why I didn't read it" (T 92.11–T92.14). Anthony said that he did not open the letters that were addressed because (though jointly addressed and sent to his own home address) they were addressed to his grandfather and that was his grandfather's business (T 95). 55 The loan application (Exhibit A, at p 82) referred to savings of $105,824. Anthony could shed no light on what those savings could have been (T 92.39). He said that he had a house in 2000 (on which there were borrowings of about $120,000), his income as a mechanic and 'some savings' but certainly nowhere in the order of $105,000 (T 93.27). Anthony thinks that he supplied some pay slips to the bank in relation to the loan (T 90.29). Anthony was not sure whether George knew that he was applying for a loan (T 90.31) (indeed on Anthony's evidence it would seem he was not himself sure what he was applying for or if he was applying for anything at all). Anthony accepted that he had perhaps told his father ("maybe") that he was the guarantor for a loan for $320,000 (T 91.1). 56 Anthony accepted that he had signed for the money to be 'released' (hardly necessary if he was no more than a guarantor) and said that would have been around about the date of the bank statement noting the withdrawal (T 96.1–T96.24). He denied that he knew that this was money needed for the purchase of a house for his mother. At T 100, he said he did not know if the $320,000 was taken out or was for the house; and that he did not know what was done with the money. He denied that he knew that his father had later paid $160,000 into the bank account (T 101.46–T102.7). 57 Anthony accepted that his grandparents' home was a modest house in Punchbowl (T 99.24); that it was the family home where his grandparents had lived; and that his grandparents were in good health at the time. He accepted that his grandparents had to have a place to live and the security of it and of owning the house was a matter important to them. He understood that his grandfather was a pensioner and could not pay anything for the loan (T 99). 58 On Anthony's account of the circumstances in which he committed himself to the loan arrangements with National Australia Bank, and even assuming he did not appreciate that he was being nominated as a co-borrower (a matter which should have been abundantly clear to him on the face of the loan application itself had he bothered to read it), he was remarkably unconcerned both at the liability he was there incurring and at the improvidence of such a transaction from his grandfather's (and his own) point of view if there was no arrangement in place for the repayment of the moneys so borrowed. 59 Such a lack of concern seems only readily understandable (if at all) if Anthony knew or understood that the borrowing was one for which George (or someone else) had agreed to take the responsibility, but Anthony claims to have known nothing about any arrangements in that regard. If the transaction occurred as Anthony claims, with no belief on his part as to how the loan was to be repaid and what seems at best to have been an assumption on his part that the loan would be covered by the equity in the house, it seems to show either an extraordinary naivety on his part or perhaps a reckless disregard for his own financial position. 60 It seems to be accepted by both George and Peter Jnr (though Anthony had apparently no idea that this was the case) that it was the intention of Peter Snr that the funds so borrowed would be used to facilitate the completion of the purchase by Jasmine of the property at Currans Hill and the satisfaction of George's obligations under the Family Court orders. Certainly, that was the immediate destination of the funds. 61 On 4 November 2002, a mortgage was granted by Peter Snr over the Punchbowl property to secure the borrowing of $320,000. Settlement of Jasmine's purchase took place on 7 November 2002, with total cheques provided on settlement being $280,828.07 (the correspondence in this regard appearing as part of item 2 in Exhibit A, p 78). A withdrawal slip signed by Peter Snr for that amount is at p 105 of Exhibit A. (The bank statement for that period shows a withdrawal on 7 November 2002 of $280,795.57 – p 280 Exhibit A – but there is no suggestion that the funds provided on completion of the Currans Hill purchase were procured other than by recourse to the National Australia Bank borrowings. The balance between the two amounts seems to be referable to a cheque allowance for $32.50, as per the letter dated 6 November 2002 from the vendor's conveyancer – p 104 of Exhibit A.) 62 On 18 February 2003 a further sum of $22,508 was drawn down from the National Australia Bank loan account (Exhibit A, p 283). Anthony signed this withdrawal slip (a copy of which was at p 120 of Exhibit A). As noted earlier, this seems inconsistent with his position being simply that of guarantor, not co-borrower, of the funds. It seems that this smaller sum was for the purchase of a car for Jasmine, the remaining obligation still to be satisfied at that stage in respect of the Family Court orders. A bank cheque for $22,500 was drawn from the loan account payable to Jasmine on 18 December 2003 (Exhibit A, at p 121) (the additional $8 perhaps referable to a bank fee for the drawing of the bank cheque). 63 For the estate, it is submitted that this was a family finance arrangement whereby Peter Snr mortgaged the family home to obtain funds, at George's request, by way of temporary finance for George to pay out his obligations to his former wife and that George agreed to repay the bank loan when his (or, more precisely, Clarenden's) interest in the real estate at Belmore was sold. (It is accepted by George that at around that time there were negotiations on foot in relation to the sale by Clarenden to JYW of one of the two adjacent sites at Belmore, hence a promise by him to repay the loan by reference to the anticipated sale of that site is not implausible.) 64 George's position, however, was that the money provided to meet his obligations to Jasmine came as a gift from his father (T 127, 128 and 135). At T 121, George denied that he had asked his father to put up the family home to help him. He agreed that at the time he was negotiating a price for sale of part of his business to Yolla and Joseph (which would have made feasible a promise at that time to repay any temporary finance provided by his father out of that sale). He not only denied that he had asked his father for money or told his father that he would repay him, but also denied that his son (Anthony) had told him anything about entry into the loan arrangements with the National Australia Bank. (I interpose to note again that there seems to have been a remarkable lack of communication between each of George, Peter Jnr and Anthony, if their respective accounts of events are to be believed. Even if, as George said, his children were not happy with him at the time of the break-up with their mother, it defies belief that Peter Jnr (who was arranging the completion of the conveyancing transaction for his mother and might be expected to have been looking to protect her interests) would not have made at least some enquiries of his father at least so as to satisfy himself as to the ability of his mother to complete the sale as she had warranted.) 65 In April 2003, a contract for sale was entered into (settled in May 2003) between JYW and Clarenden for the purchase by JYW for $850,000 of the property owned by Clarenden at Belmore (from which Yolla and Joseph had conducted their tyre business since around 2000) (T 17.30-37). Acting for Clarenden on that transaction was Peter Jnr (Exhibit A, at p 126, 209). Clause 37 of the contract provided that there was a rebate of $115,000 if the purchase settled within eight weeks (and the contracts provided for a loan of $15,000 by the vendor to the purchaser) (Exhibit A, at p 140, 142). (A reduction in the purchase price for a quick sale would ordinarily, to my mind, suggest that the vendor was anxious for completion to occur quickly and hence willing to forego part of the agreed price as an incentive for early completion. This would be consistent with an understanding by George of an obligation to repay to his father the moneys he had provided out of the National Australia Bank loan funds. However, George, in the witness box, suggested that this was agreed simply as a favour to Yolla and her husband – another instance of his 'gratuitous' generosity to his family – T 129.35.) 66 Some of the purchase price for the acquisition by JYW of the Belmore property was paid directly in cash by Yolla's husband to George (a sum of around $83,326.39, as noted on the amended settlement statement of account prepared by JYW's lawyers, p 208, Exhibit A, or perhaps slightly less, as per Yolla's evidence at T 44 and as contemplated in the letter dated 15 May 2003 from Peter Jnr, p 203, Exhibit A, he being the solicitor acting for Clarenden on the sale). There was no reference to this in George's affidavit. However, when George was called to give evidence, leave was sought (which I granted) for further evidence to be adduced in chief in relation to the payment of part of the cash price for the sale of the Belmore property by Clarenden. He said that he gave the cash he received on the sale to his father - "I just gave it to my father" (T 129.41). "Well I gave it to him whether he went inside and put it in the safe, I don't know, I just gave it to him to keep", and that he did not ever see that money again (T 106.44). 67 Yolla, in cross-examination, agreed that part of the purchase price had been paid in cash and said that her father had been present when the money was handed over to George at the Punchbowl house (something which George had not mentioned). Yolla said that she did not know what had happened to that cash and that she did not see anybody put it away (T 45.11). 68 What was done with the money, if anything, and the significance of it having been handed to Peter Snr, is not clear. Peter Jnr, in his affidavit sworn 30 October 2009, at [19], when deposing to a conversation with Peter Snr just before his death, said that his grandfather had told him that his safe had been stolen and that it "has your father's money and jewellery" in it (my emphasis). If that was the same money as given to Peter Snr following settlement of the JYW purchase in 2003, then it seems to suggest that Peter Snr regarded himself as simply the custodian of the cash given to him by George from the sale proceeds (and not that this money had been given to him as part repayment of the National Australia Bank loan amounts or otherwise for his own benefit). That it may have remained in Peter Snr's safe, as George's money, since mid 2003, seems not inconsistent with George's evidence that the gold in the safe was his. In any event, whatever be the source of whatever money was in fact in the stolen safe, there is no suggestion that Peter Snr took any steps to use the cash handed to him after the Belmore sale to pay down the National Australia Bank loan, which surely would have been the case if it had been paid, and if he had accepted it, as part repayment of that borrowing. 69 On 30 July 2003, George deposited the sum of $160,000 into the National Australia Bank loan account held in Peter Snr's and Anthony's joint names. A copy of the bank deposit slip dated 30 July 2003 is at p 211 of Exhibit A. (On a cursory comparison, it seems that the depositor's details on the bank slip may have been completed by George, given the similarity of the "M" in Maatouk on the slip with that in the signature on his affidavit. The only relevance of this, if that were to be the case, would perhaps be in the context of George's refusal to accept the proposition put to him that he was not in Lebanon in June 2003 and his evidence that he went to Lebanon in June or July 2003. On the latter testimony it would follow that George must have filled out a bank deposit slip on 30 July 2003 and departed almost immediately thereafter.) 70 What was represented by this payment was a significant issue in the proceedings. George says it was a gift to his father. (In supplementary written submissions on the issue of the operation of the Limitation Act provisions, it was put to me that this payment could equally be inferred to be a loan from George to Peter Snr and Anthony, as to which there was no evidence.) The estate contends that the payment was in part performance of the agreement to repay the National Australia Bank borrowings (and confirmation of Peter Snr's cause of action in that regard). I discuss this issue later. 71 Loan statements were issued by National Australia Bank from late 2002, apparently on a monthly basis, and sent to the address of Anthony but formally addressed to both Anthony and Peter Snr (Exhibit A, at pp 279–343). These show that each month there was a debit for interest of around $1,300 and that the only credit made to the joint loan account prior to the discharge of the loan in 2008 (other than a small transfer of $188.00, on 16 January 2008 – Exhibit A, at p 339) was the $160,000 deposited directly to that account by George on 30 July 2003. 72 Yolla referred in general terms in her first affidavit to conversations with her mother after her father's death in May 2004, in which she says her mother said words to the effect "I have told George to repay the loan but he won't talk to me about it" (my emphasis). It was submitted by Mr Rollinson that the discussions in relation to repayment of the loan, as deposed to by the siblings, were not in terms couched as referable to any binding obligation on George's part. Though the concept of a 'loan' would ordinarily suggest that it was to be repayable, I read Yolla's affidavit in this regard as a summary of the effect of what her mother had said and I am not convinced that great weight can be attached to the reference to a 'loan' in the conversations described there in summary form. However, it is of relevance, in my view, that Rose was not apparently suggesting to Yolla that any of the other children were expected to repay the loan nor does Rose seem to have asked any of her other children to do so – which indicates that Rose considered George to be the one responsible for the repayment of the borrowings. 73 It appears that it was not until after the funeral of Peter Snr that the first discussion took place amongst the siblings in relation to the discharge of the mortgage over the Punchbowl property. Yolla says that one of her brothers said to George "when are you going to discharge the mortgage?" and that he said "don't worry, I will fix it and my son, Peter is arranging for the loan to be finalised" (para 20). 74 Some question was raised in cross-examination of the siblings as to what it was that Peter Jnr could have been asked to 'fix'. The simplest way of discharging the mortgage would of course have been to pay out the loan then and there. The reference to Peter Jnr arranging for the loan to be finalised or fixed would seem to be readily explicable (as a statement, in effect, that Peter Jnr would arrange for the transfer of funds and documentation of the discharge) in circumstances where George was then shortly about to return to Lebanon. Hence it would not be surprising if he had authorised his son to do what was necessary on his behalf to discharge the mortgage in his absence. Even if such a statement was intended to refer to something to be done by Peter Jnr in his capacity as a solicitor, this would still be consistent with George acknowledging and accepting liability for the loan (whether that involved its discharge through repayment or by way of a refinancing). Most likely, I think, is that a statement of this kind (which I accept was made by George, for the reasons outlined when I come to address the credit of the various witnesses) was intended to convey to George's siblings that Peter Jnr (in George's absence overseas) would attend to the repayment of the National Australia Bank loan on George's behalf. 75 When questioned as to this aspect of the matter, Yolla said that it was Michael who had first broached the subject of when George was going to discharge the mortgage (T 32.45). At T 34.24, Yolla said that George seemed to be happy to pay off the mortgage "he said he was going to, that he told his son to do it and that is what he told us, he was happy to pay the mortgage back"… "and he instructed his son to do it" (T 34.27). When Yolla was asked what George had said, her recollection was to the effect that he had said "I will fix it up, I will get Peter to fix it up" (T 34.46). 76 The estate seems to rely on this as an acknowledgment of liability, which on balance it seems to me to have been, thus supporting the finding that there was in place a loan agreement between Peter Snr and George. While it could conceivably have been seen simply as an offer to sort out the paperwork or to discuss payment options with the bank or the like, without any acceptance of an underlying personal responsibility to make the repayments, the context in which George's siblings raised the issue seems to me to make George's response a tacit acceptance that he was responsible for the repayment of the loan. The making of a response of this kind is consistent with the lack of any action taken by Yolla or her other brothers at that stage either to recover the moneys from George or to make arrangements for the servicing of the loan. It seems to me that they had understood that George was to take care of that and they left it to him to do so. 77 Yolla swore an affidavit on 10 February 2010 in which she said that in late 2004 or early 2005 she took her mother to the offices of Elias Gates & Associates Pty Ltd in Revesby. It seems that this visit was for the purpose of preparing her mother's final will, as the will prepared by Mr Elias was dated 17 January 2005 (Annexure I to Yolla Chidiac's affidavit sworn 10 June 2009). It may be by reference to this (at least in part) that George bases his recollection that he was not in Australia in early 2005, since at T 137 he said "If I wasn't overseas mum will never change the will". (Whether that suggests a consciousness that he held a position of some influence over his mother, I do not know, but it does provide indirect support for the opinion held by Yolla that her mother did not wish George to know that she had changed her will, in that it suggests that if George had been made aware of this he would have tried to persuade his mother otherwise.) 78 Yolla's recollection was that later in 2005 her mother told her that she was getting phone calls from the bank (which I assume to have been the National Australia Bank) and that her mother did not know what a mortgage was (seemingly inconsistent with Yolla's evidence that her mother was present during a conversation in 2003 in which Peter Snr said that he had put the deeds for the house up as security for George's loan). Yolla says that she had told her mother 'that's to do with George's loan'. It was at that stage that Yolla and Rose consulted Mr Elias about the matter. 79 Yolla, in her oral evidence, said that after the conversation she had with her mother about the bank phone calls, her mother wanted Yolla to take her to a solicitor and so Yolla took her mother to see George Elias. In evidence was a letter of authority that Rose signed authorising Mr Elias to investigate the mortgage. Yolla said she typed out the document (a copy of which is Annexure I to Yolla Chidiac's affidavit sworn 10 February 2010) on her computer at home and that the words in it were those which Mr Elias had said he wanted her to write (T 19). She said that she explained to her mother what the document was and she signed it. She said that she translated the words into Arabic for her mother. Yolla said that when she and her mother went to Mr Elias' offices she gave the letter to him (which suggests that Yolla must have had some form of conversation with Mr Elias beforehand in which he had told her what kind of authority would be required as it seems there was only one joint visit to the office). 80 Yolla was cross-examined in some detail about the letter of authority and, in particular, the suggestion in it that her mother was not aware of any mortgage over the house (despite the fact that Yolla had deposed earlier, in her affidavit sworn 10 June 2009, at [15]), to a 2003 conversation in which the deeds of the house being put up as security for George's loan was discussed). Yolla's evidence was somewhat contradictory in this regard. She said (T 20.6) that her mother was not aware of what the mortgage was about. At T 21.7, Yolla said that "she did not know where the mortgage is at and what is happening. That is what she was trying to say to me." Although she said that her mother was present at the meeting in 2003 in which her father had said that he had put the house up for George and had said the words "the bank has the deeds to the house", Yolla expressed the view that her mother, not knowing English, would not have known that that was a 'mortgage' (at T 22.41). "She would just know the house has been put up, there's money taken from the house. That is all my mother would have known." (T 22.42). Yolla then accepted (T 23.14) that her mother was aware of the mortgage but said that she was not aware at that stage of what had been paid or what had not been paid because no documents had been coming to the address (T 24.47) and that was what Yolla had understood to be the meaning of the letter saying that she gave permission for her daughter to investigate the mortgage on the house "because was not aware of it". 81 The reliance placed by the defendants on this evidence seems to be to say that any suggestion that Rose was aware of a loan arrangement in place with George in respect of the National Australia Bank funds should be rejected in light of the letter of authority signed by her which asserted no knowledge of a mortgage (thus that this casts doubt on the evidence on which the estate relies for the assertion that there was such a loan arrangement). However, I am not persuaded that much weight can be attached to a letter of this kind, signed by Rose apparently in order to enable a solicitor to make enquiries in relation to a mortgage about which Rose had been receiving calls from the bank and the detail of which does not seem to have been put before Rose. Yolla said, and there seems no reason not to accept, that Rose had not previously dealt with the bank. It is understandable that Rose would have been concerned at receiving calls from the bank, even if she was aware in general terms of a loan arrangement with George, since she was by then in her early 70's and her only income (other than any moneys given to her by George, who says he was giving her around $250 a week for some years) was a pension; particularly if she had (as Yolla says Rose had said) told George to repay the loan and he had refused to talk to her. 82 The lack of precision in the letter of authority (and the confusion evident in Yolla's responses in the witness box when questioned on this letter) seems to me more likely to be a function of Yolla's own lack of awareness at the time as to what arrangements had been made in relation to the funds borrowed from the bank (other than having a general understanding that this was 'George's loan') and wanting to help her mother to find out exactly what the position was in relation to the bank. Yolla saw this letter as being an authority by her mother for Mr Elias to investigate the matter and seems unlikely to have focussed in detail on the content of the letter. My observation of the manner in which Yolla gave evidence was that she was unlikely to have given careful consideration to the terms of the letter of authority. It seemed to me that Yolla had a tendency to gloss over the detail and to answer questions by reference to the substance or effect of what she understood to be the case (such as when she proffered observations of her mother's knowledge or understanding of a mortgage as if it were fact). However, my impression was that Yolla did so without attempting to avoid answering questions but earnestly in an endeavour to make clear to the court what she believed the position to be. Her responses tended to be given without hesitation and in an unguarded way (unlike, for example, the unforthcoming evidence of Peter Jnr). 83 The upshot of the meeting between Rose, Yolla and Mr Elias seems to have been that Mr Elias sent a letter (an unsigned copy of which, dated 16 November 2005, is Exhibit 1) to the National Australia Bank branch in Campsie, querying the mortgage over the Punchbowl property, in which he said "We are told that the Deceased [Peter Snr] did not borrow this amount [$320,000] or any other amount from your Bank. In fact, the Mortgage could not have been executed with the Deceased's understanding as he was unable to read English" and requesting details of any interpreter's certificate. The letter went on to note the writer's instructions that the deceased did not receive the funds pursuant to the mortgage and asked for confirmation as to whether the loan amount was advanced and if so, to whom. 84 This letter was put to Yolla in cross-examination. Yolla said that she had said to Mr Elias that the money had been used for somebody else but had not been used for her father (T 29.5 – 29.33). It was put to Yolla that it was not accurate to say that the deceased did not receive the funds pursuant to the mortgage. Yolla's position, stated forcefully in the witness box, was that "if he received it, I would have said he received it but he didn't receive a cent. I will argue that point because to me that's true" (T 29.35), there apparently drawing a distinction between moneys being made available by the bank (which they clearly were) and moneys being retained in Peter Snr's hands or used for his personal benefit (which they clearly were not). 85 Yolla accepted that the 2003 conversation to which she deposed in her affidavit as to the discussion of the loan to George was not consistent with what Mr Elias had written to the bank in 2005 (T 30.40) (insofar as that earlier discussion referred to the deeds of the house being put up as security for a borrowing). 86 I understand that the defendants place reliance on this letter as casting doubt on Yolla's account of the conversation with her parents in 2003 (in that, if Yolla or her mother had believed there to have been such a borrowing, the assertion to the contrary in a letter to the bank could not properly have been made). However, it does not seem that the text of this letter was approved by Yolla before it was sent out by Mr Elias. Yolla says that she understood Mr Elias to have been instructed to carry out an investigation of what had happened in relation to the monies. It may well simply be that Mr Elias misstated the scope of his instructions in this regard. (Viewed more cynically, it might suggest an attempt to sheet home responsibility for the making of the loan to the bank, by way of the claim that the mortgagor did not understand the transaction, even though loan funds had been provided by the bank, irrespective of who it was ho bore the liability within the family for that loan.) It does not seem to me that the challenge raised by Mr Elias, on Rose's behalf, as to the validity of the bank loan necessarily leads to the conclusion that there was not an arrangement as between Peter Snr and George for the repayment of any moneys owing to the bank on that bank loan (although a claim against the bank on the evidence put before me would have been difficult to maintain). 87 In the circumstances, I do not think that the infelicitous way that instructions may have been given to Mr Elias in relation to this letter (leading him to believe that the money was not received by Peter Snr) or its suggestion that Peter Snr did not understand what was occurring (or its inconsistency with what Yolla says she had earlier been told by her father in relation to the loan) takes the matter very far. Relevantly, the conversation in 2003, to which Yolla deposed in relation to the alleged loan is not the sole evidence to support a finding that there was a loan arrangement of some kind in place between Peter Snr and his son in 2002/3 and the position taken vis a vis the bank in 2005 does not detract from the circumstances in which the loan was originally provided (which seem to me to provide the strongest support for the inference that there was a loan agreement in place at the time, albeit an informal one). 88 On 1 May 2006, Rose died. It was after the requiem mass, held forty days after her death, that matters between the siblings in relation to the National Australia Bank loan (and as to the new will) finally came to a head. Various accounts were given of what transpired on this occasion. The accounts of Yolla and each of her brothers (other than George) are broadly consistent. In summary, there seem to have been two catalysts for the argument (or arguments) which everyone (including George) seems to accept occurred on that occasion – first, the discovery by George that a new will had been made (and that Yolla had replaced his son, Peter Jnr, as executor) and, secondly, what was said by George (and the attitude displayed by him) in relation to the question of who was to be responsible for the repayment of the National Australia Bank loan secured over the Punchbowl property. 89 Yolla says that she, her husband, each of her brothers (George, Michael, Fred and Maurice) and two of George's sons, Peter Jnr and Anthony, were present and that a conversation took place in which George said "Peter's the executor but if you don't want him you have to take him to court"; Fred asked about the house situation and George replied that 'the home gets sold, the bank gets repaid and the rest gets divided by six'; that when someone said to George "you used the money for your wife's house and car", George said "I'm not on the documents, you can't prove anything"; and that Michael then said "Mum's made a will and Yolla's the executor". 90 Yolla says (in her affidavit sworn 10 June 2006) that George then said "the will's wrong, it was a present from Dad, you ask him". (The statement that the will being wrong is itself an interesting comment, since it seems unlikely that by then George would have had time to read the new will and in any event the new will itself made no reference to any loan – hence, if Yolla's version is correct, George's response seems quite defensive, to say the least.) 91 As noted, Rose's final will, made on 17 January 2005, left the whole of her estate to her six children equally. There was no reference to any loan owing to the estate by George. The contentious change seems to have been the replacement of Peter Jnr (who had been nominated as executor in the previous will) with Yolla as the new executor. Yolla said she accompanied her mother to see Mr Elias about that will but did not help her mother give the instructions to Mr Elias; though she did correct a mistake Mr Elias had made (in that she says – T 35.45 – he had forgotten to put George's name in the will at all!). At T 36.10, Yolla said that Mr Elias had said to her mother that 'somebody has to be responsible for the estate' and her mother said that she wanted Yolla to be the executor. Yolla said "she said she could only trust me to do the right thing by everybody" (T 36.23). Even accepting that this might be seen as evidence of a self-serving kind, there cannot be any suggestion that Yolla used any position of influence over her mother to obtain favourable treatment in terms of the testamentary dispositions, since the will dealt with all children equally. 92 Yolla accepted that George was not aware at the time her mother had died that there had been a new will (T 37.41). It was put to Yolla that in this particular conversation George had said "Peter is the executor" but that he had not said "if you don't want him you have to take him to court" (the latter statement reflecting a rather confrontational stance, though one which would not be inconsistent with the confrontational stance George displayed consistently in the witness box). Yolla was adamant that he had gone on to say those words (T 37.18–37.29). 93 At T 38.11, Yolla agreed that her mother did not want George to know about the changes until she had died. Yolla accepted that one of her brothers (Michael) had pulled the will out of her coat pocket and put it down in front of Peter Jnr, and that it was a big surprise to Peter and George, but showed no concern in this regard as she said her mother did not want it to happen before she passed away (T 39). 94 Peter Jnr, somewhat argumentatively during his cross-examination, made the point that there was no change to the will in terms of the testamentary distributions and posed the rhetorical question that, if the loan was such a big deal, why was it not in the will? (Conversely it might be thought why bother making a new will if the estate is inevitably going to be consumed by the burden of the debt – which logically must at some point have been the case if there was no arrangement in place for any repayment of the borrowings.) 95 It seems to me that the absence of any reference to the National Australia Bank loan from the will is not inconsistent with an understanding on the part of Rose that the loan was to be repaid by George and would not have to be borne by the estate. Had it not been Rose's understanding that George was repaying the loan, then one might have expected her either to include an explanation in the will as to why there was to be an equal distribution among the six siblings of the remaining equity in the home (notwithstanding the fact that George had already received a substantial benefit from his father out of that equity) or to take that gift into account when dividing the remaining estate between her children. Similarly, to answer Peter Jnr's rhetorical question, the explanation for the making of a new will simply in order to change the identity of the executor might well be due to a wish to have someone so closely connected with George to deal with all the siblings equally, as seems to have been Yolla's understanding for the change to the will. 96 George does not dispute that he told his siblings during the conversation in May 2006 that the money provided to him was a gift (or that he was not gong to pay out the mortgage, as Yolla deposed at T 41). The latter information seems to have been conveyed quite forcefully by George (at least on Michael's account of the conversation). Not surprisingly, the stance adopted by George led to a heated conversation. This seems particularly to have arisen from the suggestion by George (on not only Yolla's version of the conversation but also that of two of her brothers), when denying that the money was given to him as a loan, that the siblings should ask their (dead) father (or mother) for confirmation of what George was saying. 97 Yolla's affidavit did not describe in detail the heated argument. When questioned as to this, Yolla said that the heated argument related to the making of their mother's new will - T 35.5 - "He was spreading rumours that my mother wanted to write, make her will to him only, and that is what the heated argument was about. That is why I thought it wasn't relevant to the mortgage" (the latter comment, as I understood it, being Yolla's explanation as to why there was no reference in the affidavit to the content of that argument). 98 When cross-examined further about the conversation which took place in May 2006, Yolla referred to what she regarded as the offensive nature of George's comment in relation to their father. At T41.13, Yolla said George's reply when questioned about the repayment of the mortgage was "you have got no proof. I am not in any documents. Go ask your father what he did with the money." Yolla said she regarded it as a very offensive thing for that to be said when her father was dead at the time (T 41.26). Yolla was adamant in the witness box that such a statement had been said (T 41) (as were Fred – T 68.21-68.30 and Maurice – T 75.37, T 76.10). Michael gave evidence, to similar effect in relation to the family meeting after the death of Rose in 2006 – T 59-60 – but without reference to George suggesting that they question their deceased parents. (George denied that he had made any such statement.) 99 I consider later in these reasons the evidence given by the various other family members as to that argument. At this stage, I simply note that at the meeting in about June or July 2006, George seems to have made it clear that he did not accept any obligation to repay the balance of the moneys he had received from his father at the time of his divorce settlement and that his siblings took issue with that. 100 A grant of probate in the estate of Rose was made in favour of Yolla on 20 August 2007. Letters of Administration in the estate of Peter Snr were subsequently granted on 6 September 2007. Yolla was asked about the delay between May 2006 and August 2007 in making an application for probate (T 42.11). Yolla said (T 42.25) that the matter was in her solicitors' hands and there was a necessity to obtain information from overseas (presumably from her sister, Therese). 101 On 23 May 2008 the Punchbowl property was sold and the National Australia Bank mortgage discharged. Not surprisingly, since there had been no substantial repayment in respect of the loan other than the lump sum payment of $160,000 in July 2003 (and one further unexplained credit of $188.00 made on 16 January 2008 - Exhibit A, at p 339), by the time the property was sold there was little equity left in the home (and hence the words attributed by Michael to George back in 2006 - as to the siblings getting nothing out of the property - would seem to have been rather prophetic). Issues (i) Was there a loan agreement? 102 Where claims are made against the estates of deceased persons or based on oral agreements with deceased persons, careful scrutiny is required (Plunkett v Bull (1915) 19 CLR 544; Clune v Collins Angus & Robertson Publishers Pty Limited (1992) 25 IPR 246, at 253). The court generally looks for corroboration of those claims (Re Hodgson (1886) 31 Ch D 177; Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41; Weeks v Hrubala [2008] NSWSC 162, at [20]). In Plunkett, Isaacs J noted that it is "not that the Court looks on the plaintiff's case with suspicion and as prima facie fraudulent, but it scrutinizes the evidence very carefully to see whether it is true or untrue." 103 Similarly, in Lewis v Lewis & Anor [2001] NSWSC 321, Hodgson J (as his Honour then was) referred to the need for caution before finding an intention to create legal relations in a family situation. 104 Added to the need for careful scrutiny of claims made in respect of arrangements with deceased persons who are unable to give their own account of events, is the recognition as to the fallibility of human memory, explained, in an oft-quoted passage by McLelland CJ in Eq (as his Honour then was) in Watson v Foxman (1995) 49 NSWLR 35 (at 318), as follows: … human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consider­ation of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. 105 His Honour went on to say (at 318-319) that: Each element of the cause of action [there for misleading and deceptive conduct but his Honour expressly noted that the principles so espoused were true also for claims based, inter alia, on contract] must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action …, in the absence of some reliable contemporaneous record or other satisfactory corroboration. 106 His Honour's observations as to the frailty of human memory have been applied in the context of other claims. In Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810; [2008] ATPR 42-240 (at [41]) Rares J cited the above passage and noted that his Honour's observations were just as apposite in a case where the question arises as to what oral terms of the contract were agreed in the course of negotiations. 107 With that in mind, I have approached the evidence from both sides with caution, noting that both sides rely on conversations with one or more deceased persons for their assertions as to what was said in relation to the provision by Peter Snr of funds to or for George's benefit, and bearing in mind that the onus lies on the estate to establish both that there was a loan agreement of the kind alleged and that the arrangements so made were intended to be binding, notwithstanding that they were made in a family context. Conversations in 2002/3 108 It is not suggested by Yolla or by George's brothers that they were privy to any conversation in which it was agreed, as between Peter Snr and George, that Peter Snr would lend George the moneys he needed in order to discharge his obligations to Jasmine and that George would repay the money (whether on demand or after the sale of the Belmore property) or as to how the National Australia Bank borrowings were to be serviced; nor does it seem that they were aware of the fact of the borrowings at the time they were obtained. However, each of them deposed to conversations in around 2003 with one or both of their parents in which the existence of a loan arrangement of some kind with George seems to have been acknowledged by their parents. 109 Relevantly, Fred gave evidence that at around this time he asked his father if he would put up the Punchbowl property as security for a loan (of about $200,000) to assist him in buying his own business and his father said he could not help him. Fred placed this conversation with his father as being about a year or a year and a half before his father's death (on 2 May 2004), therefore around 2003. Fred did not embellish his evidence in this regard. He said (at T 62) "I asked him that I needed money to buy a business, I needed about $200,000 and he said he could not help me. I didn't ask him why. That was it." In examination in chief he indicated that, when he had asked for assistance from his father, either his mother or Yolla had told him that the house was already mortgaged to get a loan. At T 63, he said his father had said he couldn't help him; and he had spoken to his mother about it and his mother had then told him about the loan. 110 Each of Yolla and Maurice deposed to separate conversations with one or other of their parents in which reference to the request by Fred for financial assistance (and the reason for its refusal by Peter Snr) was made. 111 Yolla gave an account of a conversation (the evidence of which I admitted subject to weight) with Peter Snr in early 2003, during which conversation she says her mother Rose was present, in which Yolla says her father said that he could not lend money to her brother, Fred, "because I have put the house up for George. He and Jasmine have separated. He has to provide her with a house and a car. I got a loan for him. The bank has the deeds to this house" and in which she said, "I hope George will repay you", and he replied, "yes he will" (para 15 of Yolla's affidavit sworn 10 June 2009). (At the very least, this conversation, which is consistent with events as they transpired in relation to George's property settlement, discloses an expectation or understanding on the part of Peter Snr that George would repay the amounts provided for his benefit out of the National Australia Bank loan funds.) 112 Maurice gave evidence in the witness box (at T 71) that, on one occasion when he had visited his father after work, his father had said words to the effect 'your brother Fred is very upset' and said that it was because Fred had asked if his father could help with security of a mortgage for a loan at the time and his father had said no 'because he had already sort of given a mortgage to George for him to repay the loan to buy a house for Jasmine'. He said that his father said he couldn't help Fred because he had "helped George to get a loan for security on his house to buy a house for Jasmine, yes" (T 72.14). Maurice was adamant that his father had personally told him that George was going to repay the loan (T 72.48-T 73.2) and had not told him it was a present for George – "no way in the world" (T 75.44), rather that being what he says George had later said. 113 Michael, in his affidavit of 10 June 2009, similarly refers to a conversation in late 2002 or early 2003 in which he says his father told him that the house had been used as security to the bank to allow money to be borrowed so that George could buy a house for his wife Jasmine. He says that in that conversation his father told him that when George sold the house he would pay it all back. In the witness box he said that he had not ever asked his father how much the loan was and that he had only had the one discussion with his father in relation to the loan to George. 114 Asked in the witness box to recount what was said in that conversation, Michael said that when George was going through his divorce, the subject of his loan came up and his father told him "I bought the house, mortgaged the house to get a loan for George so he can buy a house for his wife and that when he sold his land [which Michael understood to be a reference to the business at Lakemba, by which I understood him to be referring to the property at Belmore], he would pay back the loan." (T 50 - 51). 115 Maurice, in his affidavit of 9 June 2009, recounted a conversation with his father in which he said his father had said "George has bought a house for Jasmine and he used my property as security for the loan to pay for her house. He is going to repay the loan." 116 George, on the other hand, deposed in his affidavit of 23 September 2009 to a conversation with his father in about 2002 in which he says his father said "I am going to help you with the money you have to pay to Jasmine, I am going to give you $320,000"; that he thanked his father and that his father then arranged for that money to be paid into one of his bank accounts. George denied that there was a loan by his father to him and said that he considered it to be a gift to him (T 127.5). 117 George does not seem to have been at all concerned as to how it was that his pensioner parents (who, for all anyone knew at that stage, could have lived on for a number of years from the time of that loan) were (on his version of events) to service the borrowings (T 128). When asked how his father was going to repay the $320,000 from the bank, at T 129, George said: Well, I don't know. For a start I was looking at - I was giving between him and my mother $600 a week. Why are you asking, sir? I was giving 650 from 1985 to the day he passed away, okay, and that's not including the car I got him, which is being sold, and I don't know who sold the car and what is the money for the car, all right, and I gave him, when I got the $83,000 in cash money from Yolla and her husband, I gave it to him to keep, but I had my money there, and my gold. That's right; it's a surprise, isn't it? You see me here, I help Yolla $415,000, while she told me because I want early settlement who write off $115,000 for two weeks or three weeks. But that's the way I am. That's the way I helped the whole family. (my emphasis) 118 I should note that my understanding of the response above, when it was given in the witness box by George (and as I had noted it during he hearing), was not that he was suggesting that he had in fact wanted an early settlement (though that is the inference that I think could be drawn from the discount allowed for in the contract) but rather that he was again arguing his case (saying, in effect, 'even if I had wanted an early settlement why would I have written off $115,000 from the purchase price?') to suggest that this would not have made sense. (The fact that George volunteered that information, in that manner, suggested to me that he was trying to pre-empt any suggestion that he had wanted an early settlement of the sale of the Belmore property in order to pay down the loan his father had made to him.) Nevertheless, the fact is that a substantial discount was given by George for early completion of the sale and once it was completed George made a large payment to the credit of the National Australia Bank loan account. 119 Anthony did not depose to any recollection of any conversation in which the provision of funds to his father was discussed (or of the family discussions in relation to those moneys which took place after the deaths first of Peter Snr and then of Rose). 120 As noted earlier, Peter Jnr, in his affidavit, went into some detail of discussions with his grandfather prior to the taking out of the loan. In his affidavit he says that his grandfather indicated to him that he wanted to give the house to his father (something to which George himself had not deposed in his affidavit). When it was suggested to him in cross-examination that this was unlikely, given it was his grandparents' family home and his grandfather would not have been expected to die in the near future, at T 157, Peter Jnr said: Just because they transfer it to my dad doesn't mean they're not going to live there the rest of their lives. … They knew if they gave it to my father he wasn't going to kick them on the street, but they wanted - they offered it to him in my presence 121 Peter Jnr then said that his grandfather had approached him to say that he wanted to borrow some money to give to his father and again seemed unconcerned as to the (what seems to me to be glaring) improvidence of such a transaction (at least if there were no arrangements in place for the servicing and repayment of the loan) even though his grandfather was a pensioner (at T 157): Yes. Pensioners can still borrow money. … And he was getting income from different sources anyway. So? He was still getting - he was still receiving money to help him out from his children, from my father and from me. I loved my grandfather. Indeed I helped him more than his own kids there . [at which point I observed him to look in the general direction of Yolla and her brothers, a comment which suggested a level of acrimony between the respective family members] (my emphasis) 122 Peter Jnr said that he did not advise his grandfather to seek any independent advice in relation to the transaction "Because he didn't come to me for legal advice, he came to me asking if I apply for a loan for him. That was it" (T 158). Given the emotion he displayed when describing his relationship with his grandfather ("I loved my grandfather more than anything else in the world"), and the concern he had expressed in his affidavit about not being put in a position of conflict of interest, I would have expected that, as a solicitor, he would have been very concerned to ensure that his grandfather fully understood the risks in what he was proposing to do. Peter Jnr nevertheless said (at T 158): Because he knew exactly what he was doing. No-one was forcing him to do anything. He knew what it was to borrow money, what a mortgage was. My grandfather was not stupid. And I wouldn't refuse him anything. And if he wanted something I'll do it for him, even if it meant me being shot in the head I'd do it for him. 123 Peter Jnr agreed that he knew at the time that his father had an obligation to fund about $300,000 for his mother's house purchase, but says that he did not say anything to his grandfather about that (at T 159). When he was asked (at T 159) about the position, 14 days short of completion on the contract, as to what arrangements there were for finance for his mother to complete the purchase, Peter Jnr's answer, blandly, was that "there was funds coming from my father" (T 159.13). He said he was waiting for the payment from his father and he knew that the money was coming. He said that he knew that there was a property worth $2 million (presumably the two Belmore properties), and said that there was not going to be an issue (T 159.21). He did not regard the reference to his brother as a guarantor of the loan was a big deal - "Well, my grandfather was getting income, my father was giving him money as well. No matter what happened, he would never end up on the street" (T 160.13). 124 At T 163, Peter Jnr was asked: Q. Mr Maatouk, you know that grandma was the surviving wife of your grandpa and where there was an intestacy she was going to get the house, wasn't she? A. That's right. Q. But this will was absolutely worthless, pointless if the mortgage wasn't ever paid back. It was just an equity that was eaten up in the house, there would be nothing to give? A. And that was the same will that she prepared anyway when everyone had, the children took their things and did a new will anyway. Why didn't it state in that will then if it was such a big fact. The one where they changed me - took me off as an executor because her instructions to me would have been the same as her instructions to the new solicitor. She didn't want nothing to do with the loan. The loan was stay on the house. When the house is sold they all get their share. [Having accepted, when I raised it with him, that he had not in fact answered the last question, he added the following…] "No, because the mortgage was very little on the house at that stage and we were still - I was still helping my grandmother out." 125 The bank statement as at June 2004 (Exhibit A, at p 297) showed the outstanding loan at $179,732, with no payments then being made. Peter Jnr does not appear to have had any concern about the position in that regard. He said "It was still well below the value of the house. There was still 70% equity in the house" (T 164.3). That seems to be an observation based on hindsight. There seems to have been no consideration given by Peter Jnr in 2002/3 as to what was to happen to his grandparents had they remained alive for a number of years, in circumstances where it must have been obvious to him that the equity in the family property would reduce steadily each month unless loan repayments were made and yet he seemed unconcerned to ensure that any such arrangements were documented or even to enquire whether there were any in place. Conversation after Peter Snr's death in mid 2004 126 Michael, in his affidavit of 10 June 2009, referred to the family meeting which took place after his father died. He says that he told George he owed money on the house and that George said to his son, "didn't I tell you to fix up the house". He also recalled a conversation with his mother in which he says she had said to him "I have asked George to fix up the loan on the house, he won't do it", which is consistent with the evidence given by Yolla that her mother was concerned about the borrowings. 127 Fred gave evidence in a similar vein to a conversation with his mother, Rose, after his father died in relation to the loan. He says that his mother told him that George was arranging for the mortgage to be discharged and he referred to a conversation in early 2005 when George was about to go to Lebanon and he asked if the loan on the house had been fixed and George said yes, he had spoken to his son Peter. 128 Much was made by George, seemingly wishing to argue his own case, in cross-examination (T 138) of the fact that, according to George, he was in Lebanon at this time – ie in early 2005 – and therefore that this conversation could not have taken place. However, it seems to me that the imprecision of the date at which this conversation was placed by Fred does not detract from his recollection that George had told him that Peter Jnr was fixing up the loan over the house, particularly when this is consistent with the recollection of his other siblings and is logical having regard to the family history of loans provided to assist one or more of the children and those loans being repaid by them in due course. 129 At T 63.36, Fred said that he had a conversation with his mother after his father passed away in which he said "she wanted the mortgage fixed, OK, and she me, when she told me about the loan, the house had been mortgaged and the loan was used to finance, to loan the money to George". Fred said that his mother wanted him to get George to fix the loan. 130 Maurice also referred to a conversation in May 2004 after his father's death in which he was present, when he says that George was asked what he was going to do about paying out the mortgage and that George's response was "don't worry, Mum, I am arranging for Peter to fix it up" (T 73). 131 George denied that this had been said. When the words attributed to him by Michael were put to him in the witness box, he was cavalier in his dismissal of Michael's evidence "Michael? Here we go. He is the last one should be talking, come on." (T 139.34) Conversation in mid 2006 after Rose's death 132 I have set out earlier Yolla's account of this discussion. 133 Michael also gave evidence (T 52) of the family discussion which took place after his mother died, in which he says that George said the money was a present from his father. Michael also said that when he said to George "you owe money on the house", George's response (hardly a denial of liability) was "have you been checking on the house?" (This may have been a reference to the accusation later made by Peter Jnr on his firm's letterhead (in correspondence annexed to his affidavit) that one of George's nieces had improperly accessed bank records in order to obtain information as to the loan.) Michael's evidence as to the circumstances in which the new will was disclosed is consistent with that of Yolla. 134 Fred's account of the conversation (in his affidavit sworn 9 June 2009, at [6]) after his mother's death was that when one of his siblings asked George what he was going to do about repaying the money, George said "I don't have the money. What do you want to do about it? Choke me? You go and ask Mum and Dad about it. It was a present from Dad." 135 Similarly, Maurice recalled (in his affidavit sworn 9 June 2009, at [6] and T 75) that after his mother's death George said "Dad gave me the money as a present. Why don't you go and ask Mum and Dad about it?" and his account is consistent with a heated discussion having taken place following that comment. When asked in the witness box who had told George that he had to pay off the mortgage, Maurice said "I can't recall. And I didn't have a chance to – as soon as he said 'go and ask your parents', right, regarding the loan, at the same time when he said he sold the house and repaid the National Bank that the remainder of the money will be paid six ways, I burst out. I told him off, walked out." He says he regarded that as an insult to his parents (T 76). He said that his brother had said to him, "go and ask Mum and Dad" and then had said "we'll pay back the National Bank and whatever money left over you'll get nought" (T 76). 136 George denied (in his affidavit sworn 23 September 2009, and T 137-140) the various accounts of the conversation that were deposed to by his brothers and his sister, Yolla. However, he accepted that there had been a heated argument. He said that this was when one of the others produced the new will naming Yolla as executor and the others stated that he owed money to the estate. George denied that he had said, "Dad gave me the money as a present" or that he had said "Why don't you go and ask Mum and Dad about it". He explained in his affidavit that it would have been insulting to say those words, though he appeared to show no adverse reaction to his son, Peter Jnr, saying something very similar in the witness box. At T 160 there was the following exchange with Peter Jnr: Q. What was going to happen if the loan wasn't repaid and the equity ran out? A. That's something you're going to ask my grandfather. 137 Each of Yolla, Fred and Maurice expressed his or her feelings forcefully and with what seemed to me to be genuine emotion at the inappropriate and insulting nature of the comment which they say George made at the 2006 meeting as to the questioning of their then deceased parent(s). (Michael did not refer to this in his evidence.) George's reported comment (and the attitude conveyed by his reported comment that, if something was not in the documents, there was no proof of it) seems to me to be consistent with the confrontational attitude George displayed towards Counsel in the witness box. The belligerent manner in which some of his evidence was given makes it easy to accept that he would have had little hesitation making such a comment (offensive though he accepted it would be) in the course of a heated argument with his siblings. (As noted earlier, his own son made just the same kind of offensive comment in cross-examination, which to my observation elicited an immediate reaction of outrage/disapproval from Yolla and her brothers sitting in the courtroom, but no equivalent reaction from George who was also there in the courtroom at the time.) 138 The statements made in relation to the new will were also broadly consistent as between Yolla and her siblings other than George. Yolla did not shy away from the fact that the new will had been kept a secret from George. The manner in which it was produced (apparently with some flourish out of Michael's coat pocket) no doubt explains part of the reaction which George is said to have displayed at the meeting and the heated nature of the ensuing discussion. (A more cynical explanation might be that George may have felt that it was less likely that there would be any attempt to call for repayment of the moneys if his son was the executor, but this was not put to him.) Circumstances of the $160,000 payment 139 George explains his father's generosity (on his version of events) as referable to the fact that he had helped his parents over the years (T 129). This is also the explanation for the payment by him in July 2003 of the sum of $160,000 into the joint loan account in Peter Snr's and Anthony's names (T 135). In his affidavit of 23 September 2009, George said that he paid this sum because from the 1980s onwards he had been helping his parents financially in various ways. He said that he had been giving his father about $350 per week and his mother $250 per week to help with living expenses. George, in his affidavit, said that in about July 2003 he said to his father, "I think you gave me too much money [referring to the $320,000] I can pay back some of the money" and he then paid $160,000 into the account. 140 In relation to this payment, there is nothing to suggest that George had been in the habit of paying large sums of money to his parents in the past (other than, perhaps, if he had made some of the payments to discharge the earlier loans, as to which there is no evidence). The reported statement that "I can pay back some of the money" (my emphasis) suggests that George may not have been as flush with funds, and hence not able to do so before then, which belies his assertion that he could have paid the sum required to purchase Jasmine's house without his father's assistance. 141 The coincidence of timing between the making of the payment of $320,000 to him and the completion date for the purchase of Jasmine's house makes it difficult to avoid the conclusion that not only was the money borrowed for that purpose but that it was in order to assist George (in circumstances where he did not have other funds available at that stage to meet those obligations). Credit 142 It was submitted by Mr Morrissey that the plaintiff's witnesses should be accepted and that the evidence of the defendants should be approached with caution. In broad terms, I consider that submission to be warranted. 143 It was submitted that Anthony was willing to support his father in whatever his father asked him to do and that his evidence was consistent with such an attitude. Reference was made to Anthony's refusal to acknowledge that his mother was living with one of his brothers (not far away from him) prior to the acquisition of her property in Currans Hill (something that seemingly went to nothing more than an awareness, perhaps, of the circumstances in which the loan was being taken out by his grandfather but which, for someone who professed to be close to his family, seemed to me to be very curious). 144 Anthony's stance throughout the course of his evidence seems to have been one of distancing himself from what had gone on around him at the time – he did not recall discussions which took place during the post-funeral family meetings (nor is it suggested by anyone that he participated in those discussions) and he seemed to regard matters in which he or other of his family members were involved (such as the National Australia Bank borrowing itself) as not being his business. 145 As a witness, Anthony was hardly expansive in his responses (stating more than once "He's me dad", for example, as if it was self-evident from that that he had a particular kind of relationship with his father). He was consistent in his manner in this regard (irrespective of whether the answers might be thought to have favoured or detracted from his case), from which I formed the view that this may simply have been his natural demeanour. He displayed a surprising lack of concern as to the liability to which he was exposing himself when entering into the National Australia Bank documentation (whether or not, as he said, his role was only as guarantor) and (if he is to be believed) a complete lack of interest in what he was signing. Similarly, his disinterest in the bank statements which were being sent to him on a monthly basis (even after his grandfather's death, by which time it was clearly impossible for him simply to hand them over to his grandfather as he said he had done before then) on the basis that this was none of his business seems extraordinary. 146 That said, put in context, Anthony's evidence, insofar as it indicated a lack of interest or concern in whatever liabilities he was assuming to the bank would be consistent with, and perhaps explicable by, an understanding that, contrary to the case put forward by his father, George was always understood to be the one responsible for the repayment of the debt taken on by Peter Snr and Anthony. 147 In the end, though invited to do so by Mr Morrissey, I do not make any adverse credit findings against Anthony. His evidence, it seems to me, is consistent with a general lack of interest in or comprehension as to the arrangements entered into between his father and his grandfather but with a belief (which could only have been gained from one or more of his father, grandfather or brother) that, in terms of the moneys borrowed from National Australia Bank, his father would make those good (such that he, Anthony, would not need to be concerned as to any personal exposure for the loan – whether or not he was a co-borrower or merely a guarantor of the loan). 148 The suggestion by Anthony that his lack of concern stemmed from the equity in the home not only assumes that he knew something about the then equity in the home (seemingly inconsistent with his attitude of not enquiring as to such matters) but also assumes that there might have to be foreclosure of the loan (which seems an odd assumption for someone in Anthony's position to make unless he was confident that any foreclosure would happen quickly before the equity eroded too far). It seems to me that it is more likely that Anthony paid no regard to what he was signing or to any liability he might have to the bank because he was aware that his father George had the responsibility for discharging the loan. 149 As to George, as previously noted, he had a tendency to be defensive and confrontational in the witness box. This was apparent from the outset of his cross-examination when he objected to what he said he had observed to be conduct of his brothers in the courtroom (accusing them of laughing when he answered questions, something I had not myself observed - as I noted at the time). Similarly, he accused Mr Morrissey of laughing at him, ("Why you always ask me questions and you laugh on me? I don't want to answer you any more because you always laugh on me. Peter Maatouk was acting for me but he wasn't working for himself. He was working for a company in 2001 or something or 2003, I don't know. Could be, he had his office, I don't know, but Peter was acting for me. Every time I answer you just look at me like I am a big liar and I'm not telling the truth. I don't accept that" – T133) in circumstances where the most I had observed, on occasion, was a smile (perhaps best described as one of incredulity) from counsel at some of George's evidence. It seemed to me that George's manner was of someone only too ready to engage in argument and to challenge his questioner (something which accorded with the tenor of the responses attributed to George by his siblings in their version of the argument which took place after their mother's funeral and requiem mass in 2006). 150 By way of example of George's testimony, he appeared ready to question and to seek to score points against the cross-examiner in an argumentative way, such as: "You asked me about Peter and Anthony, and you said, "the other son", and I say, "what's his name?"". He resisted answering questions in relation to his wife's address or as to the purchase of her house (T 118-119) and as to who had acted on the transaction for her, but when pressed appeared to accept that Jasmine was living at either a house owned by Peter Jnr or Paul; and that it was likely that Peter Jnr had acted on the conveyance - "I don't know, it could be my son Peter, I would have to see the contract to remember, I don't know" and when Mr Morrissey said that it was his son Peter Jnr who had acted on the conveyance, George said "There you go, so you know. What do you ask me the questions for?" – T 125. Often he volunteered answers accompanied by comment such as "That is more information for you, sir" (T 120.1) 151 George also seemed more than ready to cast unparticularised aspersions on others in his family. When it was pointed out to him that he had not referred in his affidavit to having given the cash portion of the Belmore sale proceeds to his father, George intimated that there had been some misconduct, saying (at T 130.19): … It didn't say he give me $83,000 or something in my parents' house and my father help me count it. And I give it to him to keep and the reason I didn't rise up at that point, there will be another opened case, criminal case, if I open that. Why I mention it before there will be another criminal case because my father didn't die just like that. That's why I didn't open the subject. Before I didn't put it then, because if I'm going to open it, it will be another case not in this court. It will be under the criminal court. Thanks you very much, you can ask me a question now. 152 The misconduct to which George adverted was something which he suggested had involved others in the family (at T 130.38), saying: Well, I tell you, I been giving him money till he die. I gave money in cash. I had gold over $200,000 in his safe. That's my gold which has been gone when the house got broken in. We're getting very close to opening another case, and that's family case too. 153 Given that, in the witness box, George displayed behaviour which accorded with the tenor of the responses which had been attributed to him by the estate's witnesses, and the immediacy of their reaction in the courtroom to the making of an insulting comment by Peter Jnr (as compared with George's lack of any response thereto), and having regard to the relative consistency/inconsistency between each side's account of the conversations in the context of what had actually occurred, where there is a conflict of evidence on the disputed conversations in June 2004 and in May 2006 I would prefer the evidence of Yolla and her brothers over that of George. 154 As to Peter Jnr, at the commencement of his cross-examination it appeared to me that he was taking an overly pedantic approach to the answering of questions, which gave the appearance that he was resisting answering questions the answer to which would have appeared obvious on the face of the documents which were before the court. So, for example, he resisted answering questions in relation to the role he had played on the conveyance of the Currans Hill property to his mother in circumstances where it might have been thought that (whatever the breadth of his practice over the subsequent years) it would be likely that he would recall acting for his mother on such a transaction (he being, in some ways, the middle man between his divorced parents in this matter) (T 146). Peter Jnr not only could not recall arrangements in relation to the exchange of the contracts, he could not recall whether his mother would have come to him (and then said that what he was not sure about was whether the job came to him or went to the previous solicitors with whom he had worked) – T 148. He resisted answering questions as to what would be the normal practice when making enquiries for a client on a property transaction (curiously, on the basis that he said he was in court as a 'witness' and not as a 'solicitor') – T 147. Nevertheless, when pressed to give his opinion as a solicitor as to what was the ordinary conduct in that regard he had no difficulty in answering the question and there seems no reason why he could not simply have answered the question in the first place – T 147. I did not find him to be a particularly forthcoming witness, even on matters which might not have been considered to be of any particular moment (such as the questions put to him as to what usual conveyancing practice would be). 155 The impression Peter Jnr seemed keen to give was that, though he was assisting his mother, he was not acting in a solicitor/client relationship (though his correspondence with the vendor's conveyancer made it clear that he was holding himself out as her solicitor). Perhaps this was in part to explain the fact that he had not produced any file in relation to the conveyance. When questioned as to the non-production of the conveyancing file he said that he did not have it - "My mother may have taken it with her. When I finished I gave her the file for the house and said here's your file" (T 149.28), a practice inconsistent with most solicitors I would have thought, whether or not they were acting for family members on a transaction. 156 Peter Jnr's denial that he had acted for his mother in the capacity of a solicitor (when it seems apparent from the correspondence that he had adopted exactly such a role, whether or not he did that when working for his own firm or as an employee of another firm, and whether or not he charged his mother for his services) suggested that he was either being wilfully obtuse or deliberately unco-operative. Either way, it gave me cause for concern in respect of his evidence generally. 157 Relevantly, Peter Jnr denied that he was concerned, as solicitor for his mother (who, after exchange of contracts on 20 September 2002 had a contractual obligation to complete and had given a warranty about her ability to provide funds for completion), as to whether she would have the funds on that date. He simply asserted that, "There wasn't any issue about whether the funds were going to be there or not" (T 156.39). 158 In contrast with his answers in cross-examination, Peter Jnr was quite fulsome (and self-serving) in his description in his affidavit of matters which one might see as being of assistance to his father's or brother's cases, such as the conversations to which he deposed in which his grandfather is said to have expressed the intention to give the Punchbowl property to George or later to borrow from the bank to make a loan to George to thank him for all he had done for his father. The concern Peter Jnr says he expressed to his grandfather not to be in a position of conflict in relation to the provision of the house to George seems inconsistent with his readiness to stand by while arrangements were made which might be thought would have the same practical effect by way of the borrowing of funds for that purpose. 159 Later in Peter Jnr's cross-examination, he displayed a tendency to engage in argument in support of the defendants' position and to exhibit a confrontational manner. Regrettably, I formed the view that I should treat his evidence with caution as much of it seemed to me to be framed principally with a view to arguing the defendants' case and to be unlikely in the circumstances of the case. 160 As to the witnesses for the estate, Mr Rollinson took them to their account of the relevant conversations and highlighted inconsistencies as between their respective accounts. It does not surprise me that there would be minor inconsistencies in what is said to have transpired at the meeting or mis-recollection of dates (the latter also being apparent in some of George's evidence). Indeed, it would be a matter for adverse comment if the respective accounts of conversations which took place some years ago were all identical. However, expressed with various shades or gradations, it seems to me that there is no doubt that the recollections of the siblings were broadly consistent and that, where one or more had no recollection of a particular event there was no attempt to proffer one (such as the fact that Michael made no reference to any comment of the kind to which three of his siblings had taken such offence). Most had a clear recollection that their brother George had made a comment (which each of them found offensive and insulting) in relation to whether or not he had an obligation to repay these moneys which was to the effect that they should ask their (deceased) father and/or their father and mother about that. George himself conceded that such a comment would be offensive and insulting, given that the comment, if made, was made only very shortly after the death of their mother. While George adamantly denied having made such a comment, it seemed to me that it would not have been out of character with the manner in which he gave his evidence generally and I observed there to be genuine emotion displayed by Yolla and her brothers when giving evidence as to the conversation. 161 There was also clearly a level of emotion displayed by the other family members when giving evidence as to the circumstances in which George, after the death of their surviving parent, Rose, in 2006 had (apparently with some relish) denied any obligation to repay the funds provided to him and had pointed out to Michael that this meant that Michael would get nothing from the estate (the equity in the house having been reduced by the non-payment of moneys in respect of the loan over the period from his father's death which had that result). While George adamantly denies the conversation, in the terms attributed to him by his siblings, again it seemed to me that a statement of that kind would have been in keeping with the tenor of his answers generally in the witness box (and the singling out of Michael would seem to be consistent with the ill feeling shown towards him by George in the witness box in the answer to which I have previously referred). 162 Yolla and her brothers struck me as being genuine in their attempt to answer the questions put to them. George, on the other hand, gave evidence in a confrontational manner and was quick to challenge the cross-examiner on issues. Anthony purported not to recall almost anything to do with the circumstances in which he had signed an application to be co-borrower on the loan and a surprising lack of concern as to his position in this regard. Peter Jnr's evidence exhibited a glaring inconsistency between maintaining a position of absolute and unquestioning devotion to his grandfather and yet (on his version of events) being willing to allow his grandfather, in his twilight years as a pensioner, to enter into an improvident transaction which might well have led to he and his wife being evicted from his family home of over 40 years. 163 I found the plaintiff's witnesses, for those reasons, more credible and, therefore, where there is inconsistency in the evidence, I accept, in general terms, the evidence of Yolla and her brothers (Fred, Michael and Maurice) in preference to the evidence of George and his sons. Conclusion as to loan agreement with George 164 There are a number of factors which, to my mind, strongly point to the conclusion that there was an agreement, albeit an informal agreement, between Peter Snr and his son George as to the provision to George of funds to enable George to discharge his obligations under the property settlement with his former wife, Jasmine, on the basis that those funds would be repaid in due course to his father and that it was intended that this obligation would be binding on George more than as simply a matter of honour within the family. (The conclusion that I have reached in this regard is inconsistent, however, with there being at the same time an agreement in place between Peter Snr and Anthony for Anthony to bear liability for the borrowings, except perhaps as a matter of last resort.) 165 I have reached this conclusion based on the following: (i) There was a history of Peter Snr being prepared to put his home up for security in order to enable funds to be advanced to assist one or more of his children in their business endeavours. There were in evidence at least three former occasions on which funds had been so advanced and there is no suggestion that Peter Snr himself had discharged those loans with funds of his own or that he had expected to do so. (ii) By the time the National Australia Bank loan was taken out in late 2002, Peter Snr was in no position to be able to discharge the loan or, indeed, to meet the monthly repayments from his own resources. He was a pensioner around 70 years of age. He and his wife were in receipt of no other income than their pensions (and, according to George, a weekly amount to help them with their living expenses of about $600 per week, which presumably would not have been necessary had they been flush with funds). (The evidence that there was gold or jewellery in Peter Snr's safe does not take matters any further since it seems that this was being held in safe-keeping for George.) (iii) Significantly, there was no attempt by Peter Snr, or later by his widow, to make any interest or other payments whatsoever in respect of the loan taken out in late October 2002 and, indeed, the bank statements were not even sent to Peter Snr's home (although Anthony says that he gave them unopened to his grandfather from time to time). Nor was there any suggestion that Peter Snr ever gave any consideration to the need to do so. It seems to me that this strongly supports the account of the various conversations to which Yolla and her brothers deposed as having had with their parents in relation to the loan to George. It seems inconceivable that, had Peter Snr intended the borrowing to be a gift, there would have been no attempt by him to meet repayments on the loan from the time it was taken out. (iv) Although Peter Jnr suggests that Peter Snr was initially prepared to transfer the home as a whole to George (and that the provision of borrowed funds was in substitution for that idea), it must have been apparent to Peter Snr (who, according to Peter Jnr, well knew what a mortgage was about) that unless repayments were made in respect of the loan the equity in his home would gradually erode. (v) It seems to me highly improvident, and inherently unlikely, that Peter Snr, being ensconced with his wife in a then unencumbered family home which he had occupied for over 30 years, would at that stage of his life have been happy to entertain the notion that his house could be sold from under him and that he would be left in his retirement to find other family accommodation. It beggars belief that there would have been no arrangement made, or understanding reached, by Peter Snr with George (even if, as Peter Jnr says, George would not have contemplated his parents being kicked out of their house) for the repayment of a loan which was clearly being taken out for George's benefit. In those circumstances, the assertion by George that the loan funds so provided were a gift, without any form of arrangement whereby the donee would provide support, accommodation or the like if the loan went into default is not credible. (v) As noted above, none of the loan statements was sent to Peter Snr directly, although they were jointly addressed to him and his grandson. That suggests that Peter Snr was not expected to have responsibility for arranging what was to happen in relation to the repayments on the loan. The evidence of Anthony that he received envelopes addressed jointly to himself and his grandfather and did not open them but just kept them and from time to time gave them to his grandfather (who he knew had no ability to read English but who he said could understand the figures) is difficult to accept. (vii) The fact that the only payment in respect of the loan (prior to its ultimate discharge on the sale of the property) was made by George and was of a substantial sum (and the absence of evidence to suggest that George habitually made payments of large sums of this kind to his father on a gratuitous basis) strongly supports the conclusion that there was an arrangement in place between Peter Snr and George whereby George would meet the loan repayments either on demand or, as contended by the plaintiff, when the Belmore property was sold. Also supportive of such a conclusion is that this money came from the proceeds of sale of the Belmore property which was under negotiation at the time the funds were provided (and in respect of which it might be inferred there was some urgency given the reduction in price for early completion). (I consider below the question as to the time at which the repayment of the loan was to be made.) (viii) The evidence of Yolla that her mother was concerned about the bank calling about the mortgage (which I accept, and which is supported by the fact that Yolla took Rose to see a solicitor to ascertain what the position was in relation to the mortgage) and the preparation of a will for Rose which left her estate equally to all the children (when by that stage, if this were to have been a gift, the estate must have been steadily eroding since no payments were being made on the loan) is inconsistent with Rose having been present at any conversation in which her husband said that he wanted to make a gift of the moneys to George. 166 By way of further elaboration of some of the matters referred to above, I note as follows. 167 As to (i), the seemingly ready acceptance by Fred (and by Yolla and Maurice) as to the fact that their father had made funds available for George on the security of the family home in order to assist George to pay out his property settlement obligations, suggests that it was expected within the family (and hence would have been well understood and accepted by George) that Peter Snr was willing to put up his property as security for loans in order to assist his children's business or other endeavours but did so on the basis that the funds would be repaid (and that the property would then be available in due course if needed to assist others within the family in like fashion). (There is no suggestion for example that there was any offence taken by Peter Snr at the request which had been made by Fred for funds, nor that Peter Snr would not have contemplated making such funds available in the future. Rather, when Fred's request was refused it seems simply to have been the case that there could be no further security advanced over the property, in circumstances where funds had been provided to George, until repayment of those funds had been made.) 168 As to (iii), one of the more curious aspects of the matter is that no one saw fit (even after Peter Snr's death) to make any repayments in relation to the loan. The monthly payment accounts were still by that stage being sent through to Anthony. Anthony's grandfather no longer being alive, it would seem (on Anthony's evidence) that Anthony simply filed those statements away. There must have been an appreciation by George (the issue having been squarely raised in the conversation as to the loan after Peter Snr's death) that, whether or not this was a gift to him, unless somebody else was repaying the interest on the loan it would be accumulating and the equity in the family home would be decreasing. Yet no attempt seems to have been made by George (or his son Anthony, who was apparently the only person aware of the actual terms of the borrowing) to take any steps to repay or address the need for repayment of the loan and, even on George's evidence, he must at least have been aware that his siblings thought he was to be responsible for the loan. 169 As to (viii), I accept that the requests by Rose for the loan to be repaid by George (or, for that matter, the statement by George that the mortgage would be fixed) do not necessarily establish that there was any obligation on the part of George to repay the loan, but I think the apparent understanding on Rose's part that it was for George to do so is relevant to indicate that there was such an arrangement in place between George and her husband. (There was no suggestion that Peter Snr or Rose had previously looked to George alone for payment of other intra-family finances.) 170 There seemed to be a suggestion made by Mr Rollinson in his cross-examination of various of the witnesses that there cannot have been an understanding that there was an arrangement under which George was obliged to repay the money, since none of the other children had sought to raise this issue with George over the period from his father's death (even though their mother had asked them to get George to fix it up). However, this seems to me to be consistent with an understanding on the part of the various siblings, after the discussion in mid 2004, that the moneys had been provided to George and that it was a matter for George to sort out the loan arrangements and consistent with the evidence of Yolla and her brothers that George had indicated in 2004 that he was getting Peter Jnr to fix it (by which I would infer he meant arrange for the repayment of the loan). I accept the evidence of Yolla and her brothers that George had told his son Peter to fix the loan (which, in the context of the conversation, can only have meant, I think, to fix up the arrangements pursuant to which he took over formally responsibility for the loan). 171 The other matters that incline me to the view that there was an obligation to repay the loan are, first, the apparent unconcern with which Anthony entered into what was an onerous obligation for someone aged 20, working (albeit at what it was suggested were generous wages as a mechanic in his father's business) with limited assets (equity in his own home on which he had borrowings of about $120,000) and a young family and, secondly, the corresponding lack of concern with which Peter Jnr, a solicitor and presumably conscious of the consequences which would flow from default under compliance with the contract for sale of land, was willing to contemplate (or at least seems not to have been concerned to advise against) his mother entering into a contract for sale of land which required the expenditure of a considerable sum of money and contained a warranty as to the ability to provide those funds (at a time when, but for the loan arrangements through his grandfather, there does not seem to have been any certainty as to whether finance would be obtained). Even if (which I doubt, having regard to the contact references noted in the contract, was the case) Jasmine signed the contract for sale before contacting Peter Jnr, at the very least I would have expected him to advise Jasmine as to the steps necessary for her to put in place to complete that contract, but he seems to have been happy simply to rely upon funds coming in from his father to enable her to do so. 172 Anthony's response as to why it is that he was not concerned about his grandfather borrowing such a sum was revealing – he simply assumed that his father would not let that happen. Peter Jnr's response as to the source of funds for his mother's purchase was similarly that his father would come up with them. 173 As to the evidence adduced (only at the hearing) by George as to payment of a cash amount which he said was left in his father's safe, there is no dispute that an amount in cash of about $83,000 was paid by Yolla to George or by Yolla and her husband to George. George said he gave it to his grandfather and it was put in the safe; the safe was then stolen. But for one matter it might be thought that it was impossible to know whether or not it was given to his grandfather simply for safekeeping, and therefore was still George's money, or whether it was given to his grandfather as repayment of part of the loan or for some other reason. However, Peter Jnr's evidence of the conversation with his grandfather shortly before his grandfather's fatal heart attack (and I note that at T 107, George attributes his father's death to discovery of the robbery of the safe) itself supplies an understanding of what Peter Snr understood to be the case – namely that it was "your father's money" – ie belonging to George. Had that not been the case, there seems no reason why that money would not have been credited to the loan account at or about the time it was received in order to reduce the borrowings. 174 There is obviously an issue within the family in relation to the circumstances of the robbery or perhaps simply as to the consequences of that robbery, George alluding to this more than once in his evidence, but this does not go to the issues for determination before me. There is no evidence from which I can draw any conclusion that the cash moneys given by George to Peter Snr were in repayment of or towards repayment of the loan nor were they apparently treated as such. At best, on George's evidence, the money was held for safe-keeping (no pun intended) by his father. 175 The evidence of George that he paid $160,000 because he thought his father had paid too much to him in relation to the Jasmine debt or because his father had been generous to him over the years, seems to me to be a mere assertion. There is no suggestion that over the years George had had a custom of making large payments of this amount of money to his father out of the blue and simply by way of gratitude for previous assistance. It seems to me most likely that this payment was part performance of an obligation to refund moneys in relation to the loan. 176 The fact that no attempt was made by Peter Snr or by Rose to enforce the alleged obligations of George and Anthony to repay the loan and the fact that the matter was not mentioned in either of their wills does not seem to me to be sufficient to outweigh the conclusion that there must have been an arrangement in place between Peter Snr and his son whereby his son would repay the loan. 177 As to the existence of the necessary objective intention that the arrangement with George be binding, Mr Rollinson submits that, in the absence of evidence to support an inference that the arrangement was more than binding in honour, there is no legal obligation on the part of the family members in respect of any loan arrangement which I might find to have been made. There is a rebuttable presumption against the intention to create legally binding obligations in a family or domestic context. In Jones v Padavatton [1969] 1 WLR 328, Salmon LJ said that this was not a presumption of law but one of fact and that it derived from "the experience of life and human nature" that in such circumstances the intention is usually to rely on family ties of mutual trust and affection. 178 However, in circumstances where the arrangement here involved the encumbrance of the only family asset of substance (against the background where there was a pattern of the making of loans within the family for the recognised purpose of assisting with the acquisition or operation of businesses, and thus the loans may more readily be seen to have been made in a commercial context) and particularly where it seems that there was no question in Peter Snr's and Rose's mind that the loans were to be repaid by George (evidenced both by what they said to others in the family and by their apparent unconcern at meeting any repayments on the borrowings), I consider that the presumption was rebutted. 179 The combination of factors which has led me to conclude that there must have been a loan arrangement in place as between Peter Snr and his son (including, in particular, the improvidence of such an arrangement without any provision in place for the repayment of the loan and the fact that Peter Snr took no steps to procure any repayment of the loan) also leads me to conclude that it must have been intended by Peter Snr and his son that there would be an enforceable obligation in relation to the repayment of the loan. The direct repayment of a substantial sum to the joint bank account (even leaving aside the apparent urgency of the need for funds on George's part in mid 2003), when there is no evidence of any similar payments in the past, and George's ready response (which I accept he made) to the family's queries in 2004 was to the effect that he had asked his son to fix it up, seems to me also to be corroborative both of the loan arrangement and of an understanding on George's part that he had an obligation to repay the loan. 180 As to the time at which repayment was due, the loan arrangement is pleaded in the alternative as an arrangement that the moneys were either to be repaid on demand or were to be repaid in full when George sold his interest in the property at Belmore. In both Mr Morrissey's oral submissions and in the supplementary submissions prepared for the estate on the Limitation Act defence, reliance was placed not so much upon the obligation to repay on demand but on an obligation to repay in full when the Belmore property was sold; that property being sold on 30 July 2003. 181 In the absence of an agreement as to the time at which those repayments would be met, then the authorities would suggest that this was a loan repayable on demand. 182 In Ogilvie v Adams [1981] VR 1041, Fullagar J (holding that, when money is advanced on terms that it is to be repayable "on demand", then the cause of action for recovery accrues on the date of the advance without the need for any demand) said (at 1043): The common law has always regarded the fact of indebtedness as a continuing detention by the debtor of the creditor's money, and this whether the creditor brought an action of debt or an action in indebitatus assumpsit. Therefore if A lends money to B, then instantly B is detaining A's money. In order to prevent a cause of action for recovery arising in A instantaneously on paying the money, the parties must expressly contract out of that situation by words clearly inconsistent with that situation. The courts have long since settled it that a mere statement or agreement that the money is repayable on demand (or request or at call) is not sufficient to contract out of that situation where all else that is known of the terms of the contract is that A has paid money to B by way of loan. The lender's cause of action still arises instanter on the receipt of the money by the borrower, so that the lender's cause of action becomes statute barred at the expiry of six years after the receipt of the money. (my emphasis) 183 In Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWSC 222, Hodgson CJ in Eq (as his Honour then was) noted that the prima facie position where there were loans by a company to associated companies and persons, and there was no evidence that this money was not immediately due and payable, (as shown by Ogilvie v Adams), was that such loans would be immediately payable, without demand. (See also Brott v Grey [2000] FCA 1727 per Cooper J.) 184 There is, however, evidence in the present case from which it can be inferred that the agreement between Peter Snr and George was that the loan would be repaid once the sale of the Belmore property eventuated. On Michael's account of the conversation he had with his mother in relation to the repayment of the moneys, his mother told him that the loan would be repaid after the sale of the Belmore property. It would be consistent with the timing of the negotiations for the sale of the Belmore property (and there is an inference open to be drawn that George may have wished for the sale to be completed sooner rather than later – insofar as an incentive was given for early settlement – although George was at pains to ridicule any such suggestion in the witness box, T 129.43) and with what seems in fact to have happened (namely that a $160,000 payment followed not long after the sale) that this was the arrangement between George and his father. 185 It is undeniable that the only substantial payment of the loan came shortly after the sale of the Belmore property and was made by way of a deposit directly from George to the joint account. This was not a payment made to Peter Snr, which he then used to pay down the loan. It was a payment made directly to the account established in respect of the National Australia Bank borrowings and can only sensibly be seen as being in part repayment of them. Further, there is an available inference from the promise of a discount for early settlement of the Clarenden sale that George was looking for an early settlement – the only purpose for which seemingly would be to satisfy the arrangements he had with his father in relation to the National Australia Bank loan. 186 Ultimately, although I have noted above that I consider an inference can be drawn from the discount offered for early completion of the Belmore sale that George was concerned to obtain the funds from the sale quickly in order to repay part of the loan, it does not seem to me necessary, in determining the issues in this case, to draw any such inference and I do not do so. 187 What is significant, in my view, is that no step was taken whatsoever by Peter Snr (or Anthony) to make any repayments of the loan from November 2002. The lack of repayments by Peter Snr/Anthony in the period prior to George's payment in 2003 surely can only have been because it was understood by both Peter Snr and Anthony that George was to be responsible for the payments. The most likely source of funds for the repayment of the borrowings by George, as at the time the finance was provided in late 2002 was the sale of the Belmore property (since, despite George's assertion that he had the funds from the matrimonial home sale, there is no suggestion that any of those were made available to pay down the loan prior to sale of the Belmore property) and the timing of the loan repayment shortly after completion of the sale supports such a link. The other significant fact to take into account in this regard, it seems to me, is that when the 2003 repayment was made it was directly to the very loan account which had been established for the 2002 borrowing and hence can be seen to be a payment in reduction of the borrowings made by Peter Snr and Anthony in 2002. 188 Why there was no further payment by George in the period from July 2003 to his father's death is perhaps explicable by George's absence in Lebanon during that period and what may have been a willingness by his father to allow him a period to get his life back in order after the divorce before pressing for any further repayment (consistent with George's evidence that his father told him to go overseas around that time - "If you want to know more, my father send me to Lebanon … He told me to piss off. I went there for two years, just to get over my divorce. We were married for over 27 years. That is more information for you, sir." (T 119.48). (Once his mother, Rose, died, the explanation for the fact that George made no further payments in respect of the loan seems to emerge from George's own mouth, as reported by his siblings – in that his attitude to their request that he repay the loan was, they said, that if there was nothing documented then there was no proof.) 189 Where the veracity of part of a witness' evidence is not accepted (or is in doubt), a careful assessment of the rest of that evidence is required in order to determine its honesty and reliability (per Handley JA in Malco Engineering Pty Limited v Ferreira & ors (1994) 10 NSWCCR 117, there a case where a finding of perjury had been made on one part of the evidence), though this does not mean that the balance of that witness' testimony can never be accepted without corroboration (Heydon JA, as his Honour then was, in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705, at 719). 190 For the reasons set out above, I do not accept George's denial of the fact that there was a loan and hence I do not accept his evidence that the provision of funds to him by his father was a gift. I consider that the circumstances of the provision of funds support the inference that there was a loan. While that does not mean that I must necessarily reject George's evidence as to the purpose of the subsequent payment of $160,000 to the joint loan account, it does call for careful assessment of all the evidence. 191 Having regard to the matters referred to above, I am not satisfied that the $160,000 was a gift to Peter Snr. Rather, I consider that it was a part repayment of the loan and that the timing of the payment, by reference to the completion of the Belmore sale (leaving aside for present purposes any inference which might have been available from the circumstances surrounding the early completion of that sale), supports the conclusion that this was when George had agreed with his father to repay the funds (or as much of the funds as he could then afford to repay). 192 I find that this is a loan which was repayable on or within a reasonable time after the sale of the Belmore property (and hence that the limitation period for a claim in debt based on this loan agreement commenced to run in May 2003). However, I note that in any event nothing turns on this if, as I consider to be the case, the payment of $160,000 amounted to confirmation of the debt since in those circumstances (for the reasons set out on issue (iv) below) the loan, even if one repayable on demand, is not statute barred. (ii) Claim for contribution against Anthony 193 As noted earlier, Mr Morrissey relies upon the doctrine of contribution to establish a common obligation between the estate and Anthony to repay the loan, so that in circumstances where the estate has discharged the loan on the part of the estate and Anthony, Anthony is thereby liable to contribute for the payment made on his behalf either in full (on the basis that the presumption of equality is displaced) or as to 50% of the monies repaid, relying upon Bhupinder Sekhon v Sharanjit Kaur Sekhon [2007] NSWSC 875 and Tyler E., Young P., Croft C., Fisher & Lightwood's Law of Mortgage, Butterworths, 2005, Chapter 30, at 677. 194 Mr Morrissey says it should be inferred that it was a joint borrowing and that Anthony is responsible for half the debt. The offer of loan was directed to both of Peter Snr and Anthony and acceptance was deemed to be when the money was drawn down on 7 November 2002. The account was opened in joint names and the statements were sent to them at the one address jointly. 195 Mr Rollinson submits that there is no equity to compel Anthony to make contribution, in circumstances where there is no co-ordinate liability and no agreement or common intention (at the time) that both Anthony and Peter Snr would bear liability for the loan, – relying upon the same passage in the extract from Dal Pont & Chalmers, Equity and Trusts in Australia 4th edn, Lawbook Co., 2007, which had been cited for plaintiff; Bhupinder, per White J, at [93]–[95] and the discussion in Meagher, Gummow & Lehane, Equity: Doctrines and Remedies, 4th ed, Butterworths, 2002, Ch 10, especially [10-030] and [10-110]-[10-135]. Co-ordinate liabilities 196 The loan application signed by Anthony makes it very clear that he was applying for the loan as co-borrower and not as guarantor. Insofar as that application was approved and a joint loan account established (from which Anthony was clearly a signatory, as he signed for at least one withdrawal), it is clear that viz a viz the bank he had a liability to repay the loan. Whatever he understood at the time, he in fact incurred a personal loan obligation to the bank jointly with his grandfather and was liable to the bank for the amount borrowed. Unlike Peter Snr, Anthony put up no security of his own for that borrowing. 197 As joint borrowers, Anthony and Peter Snr, in the absence of any other agreement to the contrary they would, as between themselves, both be liable to make the repayments on the loan (Albion Insurance Co Ltd v GIO (NSW) [1969] HCA 55; (1969) 121 CLR 342, at 350 (Kitto J)). To the extent that Peter Snr (or the estate) has paid more than his proportion of the joint liability to discharge the loan, the estate would ordinarily be entitled to contribution from Anthony (Bhupinder, at [90]; Ingram v Ingram [1941] VLR 95, at 102; Forgeard v Shanahan (1994) 35 NSWLR 206, at 224F-225C, per Meagher JA, Mahoney JA agreeing; Dinsdale bht Protective Commissioner v Arthur [2006] NSWSC 809; (2006) 12 BPR 23,514, at [19], per Brereton J). 198 However, for a right of contribution to arise, it is essential that there is a shared obligation where the liabilities of the parties are co-ordinate. The authors of Meagher, Gummow & Lehane, Equity: Doctrines and Remedies, at [10-030], pose the question thus: It is to be observed that authorities such as Albion Insurance Co Ltd v GIO (NSW) (1969) 121 CLR 342 at 350; [1970] ALR 441, at 446 speak of contributors as bearing 'co-ordinate liabilities' to make good the one loss, but there has been, until recently, a dearth of discussion as to the meaning of that phrase. In particular, there remain lacking judicial pronouncements as to whether liabilities are not co-ordinate unless they are of the same nature and attract the same remedies for enforcement. Clearly two unsecured personal covenants of guarantee would satisfy any such criterion. But would the position differ if one of the guarantees were supported by security from the guarantor in favour of the creditor? (my emphasis) the authors going on to observe that the reason for the inattention to such questions may be the focus in the authorities on liabilities arising under the one instrument, noting that the fact that the sources of the respective obligations were separate instruments had never, since Dering v Earl of Winchelsea (1787) 1 Cox 318; 29 ER 1184; [1775-1802] All ER Rep 140, prevented a right of contribution from arising (citing also Cockburn v GIO Finance Ltd (No 2) [2001] NSWCA 177; (2001) 51 NSWLR 624, at [25] and Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282; (2002) 187 ALR 612, at [40]). The authors refer to the decision of the Court of Appeal in Capita Financial Group Limited v Rothwells Limited (1993) 30 NSWLR 619 (where Priestley JA held that there was a common burden, giving rise to a right of contribution, even though the obligations of the co-obligors were to provide financial assistance in a variety of ways) and note (at [10-030]) that "whether there are 'co-ordinate liabilities' depends not merely on whether liability for the same loss is established, but on whether that liability is grounded in a common interest and a common burden". 199 The test, phrased succinctly at [10-045] in Meagher, Gummow & Lehane, is whether the parties are equally liable for the same obligation (noting that this may be the case even if other incidents of suretyship are not present). (The authors there opined that a defect in one of two independent guarantees of an overdraft would not preclude a right to contribution provided that co-ordinate liability to the obligee was present.) 200 Each of Mason P, in Cockburn, and McHugh J, in Burke, has analysed in detail the principles underlying the doctrine of contribution. McHugh J, in Burke (from [40]), having noted the analysis in Cockburn, observed that the origins of the doctrine of contribution had been traced (in Albion) back to the second half of the eighteenth century and that courts in both the common law and equity jurisdictions had accepted that the doctrine was "bottomed and fixed on general principles of justice", citing Dering, at 321. His Honour noted that in determining whether there is "a common obligation", the traditional test is whether the liability of each party "is of the same nature and to the same extent" and that, since Dering, it has never been doubted that the right of contribution depends upon matters of substance, not form. McHugh J said (from [41]), referring to relationships other than sureties which are capable of giving rise to an order for contribution, that: More often than not, the relationships between the parties in those cases exhibit the characteristics commonly regarded as essential to establishing an entitlement to contribution, namely "a common interest and a common burden". The nature of the relevant interest and burden is such that the discharge of the burden by one party constitutes a benefit to the other or others which, in fairness, the law cannot countenance them keeping. … The principles of contribution are therefore designed to adjust the rights of the co-obligors when one of them, voluntarily or involuntarily, discharges their common obligation. Rowlatt, in a passage cited by Clauson LJ in Whitham v Bullock , stated the principle as follows: "[I]f, as between several persons or properties all equally liable at law to the same demand, it would be equitable that the burden should fall in a certain way, the Court will so far as possible, having regard to the solvency of the different parties, see that, if the burden is placed inequitably by the exercise of the legal right, its incidence should be afterwards readjusted." 201 When considering what was meant by "co-ordinate" liability, McHugh J said (from [43]): In order to establish a right of contribution, it is often said that the claimant must prove that its own liability is "co-ordinate" with that of the party against whom it claims contribution. But as Fitzgerald JA observed in Stratti v Stratti , the difficulty in defining which liabilities meet that description is noted almost as often as the term is used. Previous cases provide some guidance, however, as to liabilities that do not meet that description. In Scholefield Ltd v Zyngier , for example, the Privy Council held that there was no room for the application of the doctrine unless the person from whom contribution is claimed has placed himself on the same level of liability as that on which the claimant for contribution stands. Thus contribution will not lie simply because the respective liabilities of parties arise out of similar relationships or related transactions. Similarly, the doctrine will not apply if the obligations in question are merely owed to the same party or are "otherwise connected in time or circumstance." Nor will it apply merely because the claimant's payment has benefited or relieved the other party financially. In Ruabon Steamship Company v London Assurance , Lord Halsbury LC …described the common feature as being that [53] : "the liability of each of the persons held to be bound to contribute is assumed to exist either by contract or by some obligation binding them all to equality of payment or sacrifice in respect of that common obligation ." (emphasis added in original) In Cockburn v GIO Finance Ltd (No 2) , Mason P relied on Ruabon to support the proposition that "something more" is required to enliven a right to contribution than the fact "that the claimant's payment has benefited or relieved the defendant financially". …The basic rationale of the right to contribution was consequently lacking - the discharge by one co-obligor of its liability to the principal which discharged the liability of the other. The approach of Foster AJ in Cockburn illustrates the practical difficulty that arises from using the term "co-ordinate liabilities" to determine rights of contribution. Rather than focussing on the community of interest between parties - which makes it equitable that they share in the discharge of any burden - the phrase "co-ordinate liabilities" directs attention to the burden itself. (My emphasis) ... Mason and Carter point to cases that have satisfied their test yet the courts have refused to order contribution. They argue that there must be, "at least", an involvement of the parties in a common design to achieve a common end. In their view - which I think is correct - only such a community of interest will make it inequitable for the party, against whom the contribution is sought, to keep the benefit it derives from the claimant discharging its obligations. However, the circumstances in which a court will order contribution are not closed. In recent years, courts have held that a difference in the causes of action pursuant to which two parties are liable will not of itself preclude an order for contribution between them provided the liability of each "is of the same nature and to the same extent". [citing BP Petroleum Development Ltd v Esso Petroleum Co Ltd , where Lord Ross held that the parties could be regarded as being under a common obligation, or liable for the same debt, even though their respective obligations had different sources because each had to perform substantially the same obligation]. [footnotes omitted] 202 His Honour observed that, although BP Petroleum Development Ltd v Esso Petroleum Co Ltd [1987] SLT 345, took the doctrine of contribution to new ground, it did so by applying the basal principle, which his Honour stated again as being "that the right to contribution depends on the claimant discharging a common obligation, that is to say, an obligation of the same nature and extent owed by the claimant and the defendant ". 203 Here, both Peter Snr and Anthony had a joint obligation to the bank for the repayment of the loan. The only difference between them, as borrowers, vis a vis the bank was that Anthony's obligation was unsecured and Peter Snr's obligation was secured. Whether the bank chose to proceed first against Anthony for repayment of the loan or (which may from a practical point of view be more likely) to enforce its security over the Punchbowl property, the effect would be to discharge the obligations of the remaining co-borrower in relation to a common liability owed to the bank. Capita Finance would suggest that there is then no reason why a right to contribution would not arise – and that the distinction between secured and unsecured obligations would not be material. That is the view I have formed. I consider that Peter Snr and Anthony were under co-ordinate liabilities to the bank. Intention as between co-borrowers 204 In this case, however, it is unnecessary finally to determine the issue as to whether the co-borrowers were under co-ordinate liabilities, as there remains a difficulty for the estate in asserting a right to contribution in any event if, as I accept is the position here, the mutual understanding between Peter Snr and Anthony was that Anthony was not to be responsible for any repayment of the loan. As noted in Meagher Gummow & Lehane, at [10-110], the right of contribution may be modified or excluded by a contrary common intention on the part of the co-obligors (citing Coulls v Bagot's Executor & Trustee Co Limited (1967) 119 CLR 460, at 480,488; Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, at 597), whether that intention be express or implied. 205 In determining whether there is any contributory liability in this case, it is thus necessary to determine whether there is a common intention or agreement (express or implied) as between the joint borrowers, that both are equally liable or liable in some other proportions, or whether the debt is treated as being for the benefit of only one, to determine whether as between the joint borrowers there is a right to contribution (or alternatively a right of exoneration). 206 Mr Rollinson submits that it could not be inferred that Peter Snr intended, much less expressed to Anthony, the intention that (as between themselves) Anthony would be answerable for any part of the loan; rather the inference should be that Anthony was simply to join in to satisfy the bank that it should make the loan. Anthony received no benefit from the borrowing and his assets and liabilities did not appear to be taken into account in the bank application form (though the form did note his remuneration and Anthony's recollection was that he may have had to provide some pay slips to the bank in connection with the loan application). 207 It was suggested that it could be inferred that Peter Snr's means and income were considerably greater than stated in the loan application document, and, in particular, that his income was greater (though that does not explain the asserted savings of $105,824, which Anthony said were not his, stating that he did "not have much of savings. I bought a house in 2000 and whatever money I was making, I was savings some and living … I was surviving. I was living. I had my family" (at T 93) and as to which there is no evidence of any such savings on the part of Peter Snr). 208 Mr Rollinson also relies on the fact that at no stage during his life did Peter Snr call upon Anthony to help him service the loan (nor did Anthony apparently have any understanding that he might be required to do so, since he did not even bother to open the monthly bank statements). 209 In Bhupinder, White J considered the financial arrangements between family members in the Sekhon family after the divorce of the parents and, in particular, considered the responsibility as between mother and son for meeting the shortfall on a mortgage granted over a property to secure a borrowing jointly taken out by the two. His Honour noted that in the absence of any agreement between them to the contrary, both were liable to make the mortgage repayments and, to the extent that the son had paid more than half of those payments (which was the case), he was entitled to contribution from his mother. (His Honour went on to consider whether there was a right of exoneration on the facts in that case, involving related borrowings and accepted (at [95]) that, had the moneys raised by the father by mortgage debt been applied for the benefit of the mother (which he found was not the case) then, in the absence of evidence showing an intention to the contrary, as between the two, the father would be in the position of a surety and would be entitled under the principles of the equity of exoneration to throw the debt primarily over her share in the subsequent property.) 210 In the case before me, both parties (at least initially) contended that any presumption of equality as between co-borrowers is displaced. Mr Morrissey contended that it should be inferred that Anthony was to be liable for the whole of the borrowing (though that was not strongly pressed during submissions) because Peter Snr obtained no real benefit from the loan and because of his relationship with George. Mr Rollinson, on the other hand, has contended that the relationship between Anthony and his grandfather and the circumstances in which the loan was taken out should lead me to conclude that the primary liability for the loan should fall on Peter Snr (and in due course his estate). 211 Reliance was placed by Mr Rollinson in the observations of Bryson J (as his Honour then was) in Official Trustee in Bankruptcy v Citibank Savings Ltd (1995) 38 NSWLR 116, at 129-130, where his Honour was considering the import of family arrangements under which a couple had acted as guarantors for a loan made to a family company controlled by their son and contribution was later sought from them by the trustee in bankruptcy when the couple became bankrupt. At (p 130), Bryson J said: … the intention of a party may establish which is to stand as surety and which as principal even though both appear to incur substantially the same legal obligation. Although contemporaneous agreements, arrangements and expressions of intention are the usual sources of evidence about the intentions of parties on such a subject, there is no reason why their intentions may not be inferred from the circumstance in which they acted. Intentions, like other facts, may be proved from circumstances. Circumstances could conceivably furnish very clear proof of intention as to who was to be principal and who was to be surety, and the intended and actual application of funds raised when two persons incur a common liability would often have an important, even predominant part in the proof of the relevant intention. 212 His Honour noted that the understanding of a reasonable person in the circumstances before him would not have been that the person standing as guarantor should be called upon to contribute to the debt if the other guarantor (who controlled the company) could settle the debt himself. 213 I do not consider that the evidence is sufficient to enable me to conclude that Anthony, although he clearly committed himself viz a viz the bank in relation to the joint borrowing, did so under any arrangement with his grandfather to repay any share of the amount of the debt (except perhaps as a last resort in the situation where the equity in the home was insufficient for that purpose). A finding of that kind would seem to me to be inconsistent with the finding I have reached in relation to the loan agreement with George, namely that it was intended and agreed that he would be responsible for the debt. 214 I therefore find that the estate has no claim in contribution against Anthony. (iii) Unjust enrichment 215 Alternatively, it is said, against George and Anthony, that their retention of a benefit in relation to the advances amounts to an unjust enrichment at the expense of the estate. The benefit alleged to have been received by George is the benefit of the provision and use of the funds in the first instance. As against Anthony, it is said that the benefit arises from the discharge of his contractual obligation to the National Australia Bank in relation to the borrowings. 216 In summary, it seems to me that the restitutionary claims against each of George and Anthony fail for the following reasons: first, by reason of the failure to plead any factor rendering the retention of any benefit by either of them unjust (what is sometimes referred to as the unjust factor); secondly, that on the available evidence it would seem that there is no factor making the retention of the benefit by George or Anthony 'unjust' in the relevant sense; and, thirdly, at least as against George, any such claim would be statute barred. 217 Weinberg J in Lactos Fresh Pty Ltd v Finishing Services Pty Ltd (No 2) [2006] FCA 748, at [111], approved the observations of Mason, Carter and Tolhurst in Mason & Carter's Restitution Law in Australia, 1st edn, Butterworths, 1995, to the effect that a pleading that simply asserts that a plaintiff was unjustly enriched at a defendant's expense will usually be insufficient and that what is required is that the basis of the allegation be explained in the pleading, quoting the following passage from that text (at [2904]): In light of the general statements in David Securities Pty Ltd v Commonwealth Bank of Australia, courts have been averse to pleadings which simply appeal to 'idiosyncratic notions of what is fair and just'; Pavey Matthews v Paul; Lumbers v Cook , or which plead generalised claims based on unjust enrichment ; Coshott v Lenin [2007] NSWCA 153, at [8]-[11]. 218 The importance of pleading the essential facts which give rise to the operative factor rendering the enrichment 'unjust', as well as the need for any restitutionary claim in a contractual context not to subvert contractual risk allocation, was made clear in Coshott v Lenin [2007] NSWCA 153, where it was said (per Mason P, with whom Spigelman CJ and Campbell JA agreed), at [8] and [10]: If we are confined to examination of the pleadings, they disclose no more than a label ("unjust enrichment") being assigned to a narrow thread of facts. The High Court has recently reaffirmed that "unjust enrichment is not a 'definitive legal principle according to its own terms'" ( Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [151], citing David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 378-9. See also Wasada Pty Ltd v State Rail Authority of New South Wales (No 2) [2003] NSWSC 987 at [18] Campbell J.) … A restitutionary cause of action cannot sit on top of an effective and continuing contractual arrangement where that would subvert or undermine the contractual allocation of risk. In and around contract restitution operates in a gap-filling role (see Update Constructions Pty Ltd v Rozelle Child Care Centre Pty Ltd (1990) 20 NSWLR 251 at 275; Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at 545[75], 553[95], 577[166]). The statement of claim offers no clue to suggest a basis for regarding the parties' contractual arrangements as ineffective. 219 The pleadings in relation to the unjust enrichment claim in the current proceedings offer little assistance in this regard. As against George, the claim proceeds by way of a repetition of the allegations in paragraphs 1 – 10 and then asserts in paragraph 12 that George's failure to repay in full the monies borrowed by Peter Snr and Anthony amounts to unjust enrichment. 220 There is no express plea as to what operates to make 'unjust' or unconscionable in the relevant sense George's retention of the undeniable benefit of the initial provision and use of the funds (thus saving him the expense of having to meet his Family Court obligations out of his own funds). 221 A restitutionary claim may be available in a contractual context where the existing contractual obligations have been discharged (whether that be by way of breach, termination or frustration - Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344; (1993) 111 ALR 289, at 355-356; Lumbers v Cook, at [79]), in which case the availability of a restitutionary claim does not necessarily operate to subvert the contractual allocation of risk (Lumbers v Cook, at [79]). Here, however, there is no express plea as to the effect, on the subsistence of the loan agreement pleaded, of George's denial of (and hence repudiation) of the existence of any such agreement. 222 If, as I have found, there was a loan agreement in place between Peter Snr and George, and it remains open for the estate to sue on that agreement (because it has not otherwise been discharged) then it is difficult to see the basis on which a restitutionary claim will lie. The estate's cause of action lies in the contract which has not otherwise been discharged. 223 Even absent the existence of a claim in contract, any liability on the part of George to make restitution to Peter Snr's estate would require more than simply the fact that George had requested and accepted some benefit from Peter Snr such that he was enriched (by the loan and use of money from Peter Snr) at the expense of Peter Snr. Specifically, it is necessary for the estate to establish the existence of some recognised unjust factor, which operates to make George's enrichment necessarily 'unjust' in the relevant sense. This is clear from what was said by Deane J in Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221, cited in Lactos Fresh above, and from the recognition in David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353, at 378-379, (by Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) that: … it is not legitimate to determine whether an enrichment is unjust by reference to some subjective evaluation of what is fair or unconscionable. Instead, recovery depends upon the existence of a qualifying or vitiating factor such as mistake, duress or illegality. (my emphasis) 224 That restitution, on the basis of unjust enrichment, will be available only where a recognised 'unjust' factor has been established, was again affirmed by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; (2007) 236 ALR 209, where Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated at [150]-[151]; First, whether enrichment is unjust is not determined by reference to a subjective evaluation of what is unfair or unconscionable: recovery rather depends on the existence of a qualifying or vitiating factor falling into some particular category; Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662 at 673 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ; David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 at 379 per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ. In David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 at 379, Mason CJ, Deane, Toohey, Gaudron and McHugh JJ gave as instances of a qualifying or vitiating factor mistake, duress or illegality. … Further, principles respecting fiduciary duty have been said to be foreign to unjust enrichment notions because the unjust factors are commonly concerned with vitiation or qualification of the intention of a claimant Edelman, "A Principled Approach to Unauthorised Receipt of Trust Property", (2006) 122 Law Quarterly Review 174 at 177-178. Unjust enrichment is not a "definitive legal principle according to its own terms"; David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 at 378-379 per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ. 225 In Lumbers v Cook, Gummow, Hayne, Crennan and Kiefel JJ, at [80] said that; … where one party (in this case, Builders) seeks recompense from another (here the Lumbers) for some service done or benefit conferred by the first party for or on the other, the bare fact of conferral of the benefit or provision of the service does not suffice to establish an entitlement to recovery … (my emphasis) 226 Mason, Carter and Tolhurst, in Mason & Carter's Restitution Law in Australia, state, in a passage which has been approved by Campbell J in Wasada Pty Limited v State Rail Authority of New South Wales (No.2) [2003] NSWSC 987, at [16], (with respect to the same passage in the earlier 1995 edition), at [166]: 'Unjust' is the 'generalisation of all the factors which the law recognises as calling for restitution'. Because we need to search for recognised factors, examination of which involves an analysis of case law, the reference to 'injustice', as an element of unjust enrichment, is not a reference to judicial discretion. Normal judicial processes are involved and it is only in cases where there is no recognised basis for saying that injustice has arisen that problems can arise. 227 As has been mentioned above, no such unjust factor has been identified. This is not a case where it is (or could have been) asserted that there was a total failure of consideration for the loan to George (as there has been part repayment thereof and it has been said that the action for debt based on a partial failure of consideration disappeared in the middles ages; Anon, (1293) Y.B 21-22 Edw. I. (R.S.) 110-111; per Baltic Shipping v Dillon, at 356); nor is it suggested that the payment was made to George (or the loan discharged by the estate) on the basis of some mistake of fact or law to which George was privy. 228 As far as the claim in restitution against Anthony is concerned, it too seems to be based on no more than the assertion of an unjust retention of the benefit obtained by the discharge of his obligation to the bank, without reference to any recognised factor rendering the retention of such a benefit unjust. In any event, in circumstances where no claim for contribution against Anthony by the estate can be established (given the apparent understanding on the part of Peter Snr that someone other than Anthony, ie George, would in fact be liable for the debt), it is difficult to see how Anthony is 'unjustly' enriched at the expense of the estate by the discharge of the loan obligation (though he clearly benefited from the discharge of that obligation). 229 Accordingly, I find that neither claim for recovery on the basis of unjust enrichment has been made out. (iv) Is the claim for repayment of the loan or for restitution statute-barred? 230 Section 14(1)(a) of the Limitation Act provides as follows: An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom he claims: (a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed. 231 Section 63 extinguishes the right and title of the person formerly having the cause of action: … on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt, damages or other money is, as against the person against whom the cause of action formerly lay and as against his successors, extinguished. 232 On the issues as determined above, the defence based on the Limitation Act does not arise (as I have found that the loan was repayable on or within a reasonable time after the sale of the Belmore property) and I have not found that there is any claim in restitution. However, for completeness I consider whether, had I found otherwise on either issue, the Limitation Act defence would have been sustained. 233 Mr Rollinson submits that if the loan is one repayable on demand or if the case is one where a non-gratuitous benefit has been conferred such that there is an obligation to make restitution, then the cause of action arose immediately upon the payment by the bank to or for the benefit of Peter Snr in November 2002 and so the claim is statute barred. Limitation period in respect of debt claim 234 Where there is a cause of action based upon an obligation to repay a loan that was repayable on demand, then, unless the making of the demand was a condition precedent to the obligation to pay arising (or the limited exception in banker/customer cases arises), the cause of action accrues when the loan is advanced. (In this regard, there may have been a distinction between the two separate advances made on behalf of George, ie as between the more substantial advance to pay for completion of Jasmine's house purchase in November 2002 and the smaller advance to pay for her car in February 2003 advance such that the latter would not have become statute barred, even if that were an advance repayable on demand, by the time that these proceedings were commenced.) 235 In Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560; [1956] ALR 939, the High Court, noting that a loan of money payable on request creates an immediate debt, said (at 566-567): Speaking of a promissory note payable on demand Parke B. in Norton v Ellam , said: "It is the same as the case of money lent payable upon request, with interest, where no demand is necessary before bringing the action. There is no obligation in law to give any notice at all; if you choose to make it part of the contract that notice shall be given, you may do so. The debt which constitutes the cause of action arises instantly on the loan. Where money is lent, simply, it is not denied that the statute begins to run from the time of lending" (1837) 2 M. & W., at p. 464 [150 E.R., at p. 840]. This was settled at the end of the seventeenth century, as appears from the report of Collins v Benning (1700) 12 Mod. 444 [88 E.R. 1440]… 236 In Ogilvie v Adams, which I have referred to earlier, Fullagar J made it clear that the consequence of a loan being repayable on demand was that the cause of action became statute barred six years from the receipt of the money. The Queensland Court of Appeal, in Haller v Arye [2005] QCA 224; (2005) 2 Qd R 410, analysed the reasoning in Ogilvie v Adams; at [26] – [30] and canvassed a number of authorities which had accepted the ratio in that decision as a correct statement of the law (including CE Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd per Batt J, Drinkwater v Caddyrack Pty Ltd (No 3), per Young J (as his Honour then was), Brott v Grey, Switz Pty Ltd v Glowbind Pty Ltd, and Mackenzie & Anor v Albany Finance Ltd, per McLure J). 237 Consideration was given, in Haller, at [31] to an argument advanced before Nettle J in VL Finance Pty Ltd v Legudi [2003] VSC 57; (2003) 54 ATR 221, to the effect that the position adopted in Ogilvie should now be taken to have been relaxed and that the appropriate test was to consider whether it was reasonably open to infer that the parties would have agreed that the cause of action to recover the money loaned would not accrue until a demand had been made (reference having been made to the decision of Bryson J (as his Honour then was) in Gleeson v Gleeson [2002] NSWSC 418 as well as to the decision of the Full Court of South Australia in Re Brookers; Brooker v Pridham (1986) 41 SASR 380, at 382).. The Queensland Court of Appeal noted that Nettle J had rejected the submission and it adopted his Honour's analysis in that regard, concluding that the review of the case law by Nettle J confirmed that "the principle in Ogilvie, in its full rigour, remains securely established in our commercial law". 238 More recently, in Faraday v Rappaport [2007] NSWSC 34, White J stated at [102]: Had I been of the view that the moneys were advanced as a loan, the loan would have been repayable on demand. A cause of action for its repayment would have arisen immediately the advance was made, not when demand was made for it on the service of the amended statement of claim ( Young v Queensland Trustees Ltd (1956) 99 CLR 560; Ogilvie v Adams [1981] VR 1041; Haller v Ayre [2005] 2 Qd R 410). 239 Therefore, had this been a loan repayable on demand, without more, the cause of action by the estate suing upon the debt at least in respect of the initial November 2002 advance, would be statute barred. However, account must also be taken of s 54 of the Limitation Act which provides, relevantly, that: (1) Where, after a limitation period fixed by or under this Act for a cause of action commences to run but before the expiration of the limitation period, a person against whom (either solely or with other persons) the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation. (2) For the purposes of this section: (a) a person confirms a cause of action if, but only if, the person: (i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made, or (ii) makes, to a person having (either solely or with other persons) the cause of action, a payment in respect of the right or title of the person to whom the payment is made, (my emphasis) 240 Specifically, s 54(2)(ii) will operate in this case to extend the commencement of the relevant limitation period if the payment by George to Peter Snr of the sum of $160,000 is a payment to the person having the cause of action and in respect of the rights of that person in relation to the loan by excluding from the reckoning of the limitation period the time prior to 30 July 2003. (Unlike the position where the confirmation is said to arise from an acknowledgment, it is not necessary for there to be any writing or for specific language to be used.) 241 As the application of s 54 of the Limitation Act had not been referred to in the submissions at hearing, after the close of the hearing I invited brief submissions from Counsel as to the operation of that section if it were to be the case that I found that the loan was repayable on demand. 242 Mr Rollinson submitted that the part payment of $160,000 by George into the joint loan account of Peter Snr and Anthony did not constitute a confirmation of Peter Snr's cause of action (assuming that such a cause of action were found to exist) within s 54(2)(a)(ii) on the basis that it was not a payment to the person having the cause of action in respect of the right or title of that person. 243 Mr Rollinson further submitted that a payment will only have the necessary character as a confirmation, for the purposes of s 54(2)(a)(ii), if it amounts to a non-verbal admission that there is a debt due (relying there upon Chethams v Remington & Co [1999] 3 VR 258; [1999] VSC 150). Mr Rollinson submitted that the payment made by George to the joint loan account of Peter Snr and Anthony did not constitute a non-verbal admission that there was a debt due to Peter Snr, and had not the hallmarks of a payment made to discharge some liability of George to his father. This submission rests largely on the basis that the payment was made not to the alleged creditor, Peter Snr, alone, but rather was made to Peter Snr and a third party (Anthony). 244 It is said that it could equally be inferred, by reference to the deposit slip (that being the only contemporaneous document) that this was a loan by George to Peter Snr and to Anthony or a gift to Peter Snr (as George contends). As to the suggestion that this was a loan to Peter Snr and Anthony, there is nothing to suggest any such scenario and it is inconsistent with what George himself says about the payment (as Mr Rollinson's submission implicitly concedes). No evidence was adduced from Anthony to suggest that any loan had been made to him by his father in mid 2003, nor does he suggest that he ever treated the joint loan account as being one in which he had any interest. 245 In Chethams v Remington, the Supreme Court of Victoria found that a part payment made by the respondent law firm, using trust moneys held on behalf of a client, in respect of a debt owing by the respondent law firm to a UK law firm (for work done for that client), was not an acknowledgement or part payment by the respondent law firm of a debt owed by the firm which was capable of constituting evidence of an admission of liability for the debt on the part of the respondent law firm. Consequently, the Victorian counterpart to s 54 did not apply to delay time from running. 246 Unlike the position here, in Chethams v Remington, the issue centred upon whether a payment made by one person using moneys held on trust for another could constitute an acknowledgement or otherwise be an admission of liability for a debt owing by the payer to the payee. Here, the issue is whether a payment by one person using his own moneys to pay money to a joint account can be said to have the character of a non-verbal admission of liability for a debt owed only to one of the joint accountholders. 247 In Chethams v Remington, reference was made to the observation by Kerr J, in Surrendra Overseas Limited v Government of Sri Lanka (The Apjakash) [1977] 2 All ER 481, (at 490) that: A part payment, like an acknowledgment, can only revive the cause of action and start time running afresh if it provides evidence in the form of an admission by the debtor that the debt remains due despite the passage of time … (at 491) a part payment, like an acknowledgement must be evidence of an admission of liability for the debt claimed. 248 In Surrendra Overseas Ltd v Government of Sri Lanka, the question as to whether a part payment constituted a confirmation of debt under the Limitation Act 1939 (UK), followed the payment by charterers of an amount which represented the total of the amount for which they conceded liability in a dispute with the owners arising under a charter party. The charterers had contended that they had a cross-claim against the owners and paid what they contended to be the sum due after setting off their cross-claim. Kerr J considered it fatal to the owners' claim that this amounted to a confirmation that this was not a payment 'in respect of' the owners' claim at all, rather "It purported to be, and was, a payment of the only sum which the charterers admitted to be due. It was not on account; not a part-payment of any kind", going on (after the passage cited in Chethams, to say (at 490 – 491): In Cottam v Partridge (1842) 4 MAN&G 271 at 280, the doctrine of part-payment was in my view correctly described in the argument as 'payment of money in part-payment of a whole debt; which is an acknowledgement of a debt being due, not in words but an act done'. 249 Kerr J referred to the following passage of Buckley J in Re Footman Bower & Co Ltd [1961] 2 All ER 161, at 164, in which his Lordship noted that it was no longer necessary (under the legislation there applicable) that a payment amount to both an acknowledgement of a debt and import a new promise to pay the outstanding balance, only the former remaining as necessary in order to amount to a confirmation, but nevertheless commenting that "one must still look at the act and intention of the debtor to see whether the payment is made in respect of the particular debt ... " 250 In Stage Club Ltd v Miller Hotels Pty Ltd (1981) 150 CRL 535, similarly, Gibbs CJ, at 544, considering a question as to whether the reference in the balance sheet of the debtor to the creditor as a secured creditor constituted an acknowledgement of the debt under the Limitation Act, noted that under the Act, it was not necessary that any promise to pay should be express or implied but that what was necessary was that there be a recognition of the present existence of the debt ("'an admission that there is a debt ... outstanding and unpaid': Good v Parry [1963] 2 QB 418 at 423."). This was held to be the position under the Western Australian counterpart to s 54 in Cameron (as Executrix of the Will of Alexander Donald Robert Gordon Cameron (Dec)) & Ors v Murdoch (as Administratrix of the Estate of James Cameron (Dec)) & Ors [2003] WASC 264. 251 It was submitted for the estate that the payment of $160,000 made by George to the loan account held jointly by Peter Snr and Anthony constitutes a confirmation within s 54(2)(a)(ii), citing the decision in Gleeson v Gleeson. 252 In Gleeson v Gleeson, Bryson J (as his Honour then was) considered a similar issue. There, no acknowledgment in writing had been made. His Honour accepted, however, the plaintiff's account that the defendant had said that he would make certain payments in lieu of the interest that had been running on the mortgage and that the defendant had done so. His Honour stated that, at [52] – [53]: The substance of the events was that he [the defendant] made the payments to the electricity authority, telephone company and the cleaning lady at the direction of the plaintiff, and it is clear from the terms of the arrangements that the payments were made in respect of the plaintiff's right or title under the mortgage. I conclude that the events including the payments have operated as confirmation of the causes of action which then existed to recover interest, and also, having regard to subs.54(2)(b), as a confirmation of the cause of action to recover the principal money. Each payment in the continuing series has had the effect of confirming the cause of action to recover the principal, and each has had the practical effect of extending the limitation period of 12 years for the principal. Accordingly, there is in my view no time bar against recovery of the principal. 253 Here, the payment of $160,000 was made directly to the joint loan account in the names of Peter Snr and Anthony. The facts in this case are distinguishable from the facts in Ostabridge Pty Ltd (In Liquidation)(Receiver & Manager Appointed) v Stafford & Ors [2001] NSWCA 335 (where a confirmation did not exist in respect of certain payments made, on the basis that such payments were made in respect of different debts owing to those which were sought to be enforced). Here, the sole purpose of the borrowing was to provide Peter Snr with funds to make available to George. Anthony, as he made very clear in the witness box, had nothing to do with the account (beyond signing a withdrawal slip in February 2003) and considered it to be none of his business. He did not even bother to open the monthly bank statements. In those circumstances it cannot sensibly be suggested that George's payment of $160,000 was in respect of a different debt or was, in any practical sense, a payment made to Anthony. Rather, it was to discharge George's obligation to Peter Snr referable to the provision of funds from that loan account. 254 I have found that there was a loan arrangement in place pursuant to which George was obliged to make repayment of the National Australia Bank loan funds. Although not accompanied by any statement acknowledging that the payment was to discharge part of that obligation, it clearly had that effect and I would infer that it was made in recognition that the debt was outstanding and unpaid. I am satisfied that this was not a 'gratuitous' payment or gift to Peter Snr (and Anthony) but was a payment referable to the loan arrangement in place in order to discharge part of the borrowings the subject of that loan. Accordingly, had this issue arisen for determination I would have been satisfied that this payment amounted to confirmation within the meaning of s 54(2)(ii) of the Limitation Act so as to extend the operation of the statutory limitation period. 255 I note that s 54 was not expressly pleaded in answer to the claim that any debt was statute barred. It was not suggested, however, that it was not open to me to consider the operation of that section. The claim that the debt was statute barred was clearly in issue in the proceedings and the allegation that the repayment on 30 July 2003 was in part performance of the alleged agreement was clearly pleaded. The facts on which, as a matter of law, the limitation period was extended were thus clearly before the court and Counsel for both sides have been given the opportunity to make submissions thereon. 256 Had I found this to be a loan repayable on demand, and had it then been necessary for me to consider whether that was statute barred, I would have found that the cause of action against George on the loan was not statute barred, by reason of the operation of s 54 of the Limitation Act, the payment of $160,000 having constituted a confirmation of the debt then owing to Peter Snr. Limitation periods in respect of restitutionary claims 257 Given that I have not found that there is a liability to make restitution of the loan monies by reference to any principles of unjust enrichment, the question whether such a claim is statute barred does not arise. However, for completeness I note that Mr Rollinson again contends that any such cause of action would have arisen when the first payment was drawn down under the loan facility in November 2002. 258 In Torrens Aloha Pty Ltd v Citibank NA [1997] FCA 77; (1997) 72 FCR 581; (1997) 144 ALR 89; (1997) 35 ATR 36 (per Sackville J, with whom Forster and Lehane JJ agreed), his Honour held that a cause of action for a restitutionary claim, where the unjust retention of the benefit is based on a failure of consideration, arises upon payment of the money or the receipt of the benefit: There is nothing in these formulations which suggests that a cause of action does not accrue until the courts acknowledge the existence of the right to sue. The statements focus on the facts which a plaintiff must establish. Knowledge of the right to sue is not an essential ingredient of a cause of action. It would seem to follow that recognition of the right to sue by the courts is also not an essential ingredient. If it were otherwise, many cases would have been decided differently. In the present context Commonwealth v Dixon provides an example. This conclusion is consistent with the principles governing the accrual of a cause of action to recover money paid by mistake. In a common law action for the recovery of money paid under a mistake of fact, the rule was that time ran from the date of payment of the money and not the date of discovery of the mistake: Baker v Courage & Co [1910] 1 KB 56 ; In re Mason [1929] 1 Ch.1, at 9, per Lord Hanworth MR. Where equitable remedies were sought, the relevant statute of limitation was applied by analogy, but lapse of time was no bar for such relief until the mistake was discovered or ought reasonably to have been discovered: Brooksbank v Smith (1836) 2 Y & C Ex 58; 42 ER 346; Denys v Shuckburgh (1840) 4 Y & C Ex 42; 54 ER 446; Preston and Newsom on Limitation of Action (3rd ed 1953), 253-255. The Limitation Act (UK), s.26 resolved the conflict between law and equity by providing that, where there is a cause of action for relief from the consequences of mistake, time does not begin to run until the person having the cause of action discovers, or could with reasonable diligence have discovered, the mistake. That provision was ultimately adopted in New South Wales by s.56(1) of the Limitation Act, implementing the recommendation of the New South Wales Law Reform Commission Report on Limitation of Actions (LRC, 1967), para.271. Section 56(1), like its United Kingdom counterpart and the pre-existing rules of equity, addresses the circumstances in which the commencement of the limitation period should be postponed. In a case where the plaintiff seeks relief from the consequences of mistake, the period is postponed only until the plaintiff discovers or could with reasonable diligence have discovered the mistake - that is the mistake giving rise to the cause of action. (It is not necessary to consider the precise significance of the words "relief from the consequences of a mistake": compare Phillip-Higgins v Harper [1954] 1 QB 411, aff'd [1954] 2 All ER 51n; Mason and Carter , para 2741.) Neither the rule of equity nor the language of s.56(1) of the Limitation Act is apt to postpone the commencement of the limitation period until the courts recognise a novel cause of action for recovery of payments made under a mistake. The authorities to which I have referred suggest strongly that a cause of action for recovery of moneys paid under a mistake of law accrues on the date of payment. Indeed, this was the view taken by Brennan J in his concurring judgment in David Securities . His Honour said this (at 389): "If under a mistake, money is paid to and unjustly enriches a payee, the payer's right to recover the amount paid accrues at the moment when the payee received the money ." [Emphasis added.] At the very least, the authorities provide no support for the contention that the cause of action does not accrue until the courts acknowledge that the facts alleged give rise to a cause of action. 259 Thus any claim based on unjust enrichment referable to the receipt of the initial benefit of the loan would be statute barred. Had there been a basis on which to contend that the retention by Anthony of the benefit of the discharge of his liability to the bank was unjust, then such a claim would not appear to be statute barred, having arisen at the time of receipt of that benefit. Conclusion 260 For the reasons set out above, I find that, as the legal personal representative of Peter Snr, Yolla is entitled to recover from George, for the benefit of Peter Snr's estate, the moneys paid by the estate to discharge the National Australia Bank loan and interest thereon from the date of the demand made for repayment of that amount. 261 I am not satisfied that Anthony has any liability to the estate based on a right of contribution as between Peter Snr and the estate, because (although he and Peter Snr had co-ordinate liabilities) it seems to me that the understanding of Peter Snr at the relevant time was that it was George, not Anthony, who would be responsible for the repayments on the loan. 262 I am also not satisfied that the estate has established a claim based on unjust enrichment against either George or Anthony. 263 Accordingly, the orders I make are as follows: 1. I order that the first defendant pay to the plaintiff, for the benefit of the estate of the late Peter Maatouk Snr the sum of $246,540 plus interest from the date on which demand for repayment was made to date. 2. I dismiss the plaintiff's claims against the second defendant. 264 I will hear any submissions from Counsel which they may wish to make before making any final costs orders. ********** 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.