Supreme Court New South Wales Medium Neutral Citation: Russell Gould Pty Limited v Ramangkura [2013] NSWSC 1114 Hearing dates: 02.04.2013, 03.04.2013, 04.04.2013, 05.04.2013, 12.04.2013 Decision date: 15 August 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Subject to submissions on the precise form of orders to be made: 1. Order that the statement of claim be dismissed. 2. Declare that the defendant is entitled to retain moneys paid to her. 3. Declare that neither the plaintiff nor Mr Gould Senior has an interest in those moneys. 4. An order for costs. Catchwords: EQUITY - Fiduciary duties - Breach - Director and company - Alleged misapplication of company's funds - Whether money paid to defendant by director belonged to plaintiff company - Whether money paid to defendant constituted a misapplication of company funds to actual or constructive knowledge of defendant. EVIDENCE - Proof - Burden or onus - Whether plaintiff able to discharge onus on case alleged - Availability of Presumption of Undue Influence - Rebuttal of presumption. REMEDIES - Declarations - Onus of Proof - Depends on substantive character of contest - Proceedings on cross claim ancillary to principal proceedings. PROCEDURE - Civil - Parties - Standing - Corporation - Internal disputation - Affect on third party claim. CORPORATIONS - Directors - Implied actual authority. Legislation Cited: Corporations Act 2001, s 1224 Uniform Civil Procedure Rules 2005 NSW 14.12 (1)(d) and (f); 36.1 Corporations Act 2001 Cth Civil Procedure Act 2005 NSW, s 90 Corporations Act 2001 (Cth), ss 542, 1305-1306 Cases Cited: Young v Queensland Trustees Limited (1956) 99 CLR 560 at 566-567 Haller v Ayre [2005] 2 Qd R 410 at 418 [19] and 419 [26] - 423 [32]. Hewitt v Gardiner [2009] NSWSC 1107, esp [71] Johnson v Smith [2010] NSWCA 306 Badman v Drake [2008] NSWSC 1366 Richard Brady Franks Limited v Price (1937) 58 CLR 112 Australian Growth Resources Pty Limited v Van Reesema (1988) 13 ACLR 261 Eromanga Hydrocarbons NL v Australis Mining NL (1988) 13 ACLR 804 Clarke v Shee & Johnson (1774) 1 Cowp 197; 98 ER 1041 Banque Belge Pour L'Etranger v Hambrouk [1921] 1 KB 321 Heperu Pty Limited v Belle (2009) 76 NSWLR 230 Jones v Dunkel (1959) 101 CLR 298 Gibbons v Wright (1954) 91 CLR 423 at 437-438 Quek v Beggs (1990) 5 BPR [97405] at 11,764 Courtney v Powell [2012] NSWSC 460 at [38] Heydon v Perpetual Executors Trustees & Agency Co (WA) Limited (1930) 45 CLR 111 at 113 Coshott v Sakic(1998) 44 NSWLR 667 at 671D-E Motor Auction Pty Limited v John Joyce Wholesale Cars Pty Limited (1997) 138 FLR 118 at 132-133 Massoud v NRMA Insurance Limited (1995) 62 NSWLR 657 at 660 Blanch v British American Tobacco Australia Services Limited (2005) 62 NSWLR 653 at 655 [5] - 656 [10] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582), Guaranty Trust Company of New York v Hannay & Company [1915] 2 KB 536 at 572 A Hudson Pty Limited v Legal & General Life of Australia Limited (1985) 1 NSWLR 701 at 712C, 716D-E and 718D Spies v The Queen (2000) 201 CLR 603 at 635 [93] - 637 [99] Currie v Dempsey (1967) 69 SR (NSW) 116 at 125 Johnson v Buttress (1936) 56 CLR 133-135 In Re Everett [1917] SALR 52 at 57-59 Potts v Miller [1940] 64 CLR 282 at 301-305, especially 305 Australian Growth Resources Corporation Pty Ltd (Receivers and Managers Appointed) v Van Reesema (1988) 13 ACLR 261 at 268 Texts Cited: E Bullen and SM Leake, Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law (Stevens & Sons, London, 3rd ed, 1868) at pp 41-42 and 44-50 JH Wigmore, Evidence in Trials at Common Law, Vol 9 [2486] JD Heydon, Cross on Evidence (9th Australian ed, 2013), para [7060] RP Austin, HAJ Ford and IM Ramsay, Company Directors: Principles of Law and Corporate Governance (Lexis Nexis Butterworths, Australia, 2005), paras [7.10] and [10.3] PW Young, Declaratory Orders (Butterworths, Sydney, 2nd ed, 1984), para [606] May, The Law of Fraudulent and Voluntary Conveyances (3rd ed, London, 1908), ch 2, especially at pp 358-359 Category: Principal judgment Parties: Russell Gould Pty Limited (Plaintiff/Second Cross Defendant) V Ramangkura (Defendant/Cross Claimant) RV Gould (First Cross Defendant) Representation: J Hyde Page (Plaintiff/Second Cross Defendant) P O'Loughlin (Defendant/Cross Claimant) BF Katekar (Second Cross Defendant) Swaab Attorneys (Plaintiff/Second Cross Defendant) Coyne Legal (Defendant/Cross Claimant) Marks Griffith Bova Solicitors (Second Cross Defendant) File Number(s): 2011/00280083 Judgment INTRODUCTION 1In these proceedings the plaintiff company claims relief (both personal and proprietary in character) against an individual defendant arising from a payment of $227,820.71, on 12 April 2010, out of a bank account in the name of the plaintiff to or for the benefit of the defendant. 2The human agent by or through whom that transaction was principally effected was Mr Russell Vanda Gould ("Russell" or "Mr Gould Senior"). He was a director of the plaintiff at that time. His loan account with the plaintiff was then in credit in an amount (namely, $234,160.53 or thereabouts) in excess of the amount paid out to or for the benefit of the defendant. 3Mr Gould Senior acted (as I find) with the knowledge and approval of his wife, Mrs Joan Margaret Gould ("Joan" or "Mrs Gould Senior"). She too was a director of the plaintiff at the time the transaction was effected. Her loan account with the plaintiff was also then in credit in an amount (namely, $435,401.86 or thereabouts) in excess of the amount paid out to or for the benefit of the defendant. RELATIONSHIPS WITHIN, AND WITH, THE GOULD FAMILY 4It is common ground that the amounts standing to the credit of the respective loan accounts of Mr and Mrs Gould Senior constituted debts, owed to them respectively, by the plaintiff, payable on demand. 5The loans made to the plaintiff may fairly be described as "repayable on demand". However, for completeness, I note that the plaintiff has not argued that its indebtedness was contingent upon a formal demand being made on the company or upon some other pre-condition: Young v Queensland Trustees Limited (1956) 99 CLR 560 at 566-567; Haller v Ayre [2005] 2 Qd R 410 at 418 [19] and 419 [26] - 423 [32]. 6The plaintiff is and was at all material times a corporation which can be described, in generic terms, as a family company of "the Gould Family". 7I describe it in these generic terms because: first, I am conscious that, underlying these proceedings, there are disputes within the Family about competing entitlements to ownership and control of the plaintiff; and, secondly, no determination of such disputes is necessary for the due determination of the proceedings. Disputes within the Family as to the respective rights and obligations of members of the Family must, in these proceedings as constituted, remain unresolved. 8For present purposes, "the Gould Family" comprises three people: Mr Gould Senior; his wife, Mrs Gould Senior; and their only surviving child, Mr Vanda Russell Gould ("Vanda" or Mr Gould Junior"). 9Mr Gould Senior was born on 3 April 1919. He is presently aged 94 years. 10Mrs Gould was born on 18 August 1924. She is presently aged 89 years. 11They were married on 3 February 1945, 68 years ago. 12There were two children of their marriage. Both were sons. 13One of their sons, Kent, died in 1997. Neither he nor his estate is directly concerned in the mix of facts that gave rise to these proceedings. 14The other son, Mr Gould Junior, is at the heart of the proceedings. Born in 1948, he is presently aged about 65 years. Under colour of right, he asserts ownership and control of the plaintiff. It is, in substance, on his authority that the current proceedings have been instituted, and maintained, against the defendant. 15The defendant, Ms Vilailaksana Ramangkura, is generally known within the Gould Family as "Viri". She was born in Thailand about 55 years ago. She first came to Australia about 30 years ago. Over the next 10 years or so she lived in Thailand, Korea and Hong Kong before returning to live in Australia. She has lived here continuously for approximately the last 20 years. 16Although Viri has lived in Australia for the last 20 years she has, from time to time, returned to Thailand to spend time with her widowed mother. Her father died nearly 30 years ago. Her mother lives by herself. She (Viri) has siblings who live in Australia. 17Over a decade, commencing in or about 2002, Viri became a surrogate daughter to Mr and Mrs Gould Senior. THE NATURE OF THE PLAINTIFF'S CASE 18The plaintiff (under the practical control of Mr Gould Junior) insists that the transaction of 12 April 2010 can, in substance, be characterised in no other way than as a misapplication of its money by Mr Gould Senior (to the actual or constructive knowledge of the defendant): (a) acting in breach of his fiduciary obligations as a director of the company; (b) acting without authority (actual or ostensible) to bind the company; and (c) acting alone, without the knowledge or consent of either of the other directors of the company (namely, Mrs Gould Senior and Mr Gould Junior). 19The plaintiff seeks to reinforce that characterisation of Mr Gould Senior's conduct by two contentions intended to reflect upon the nature and quality of the conduct of both Mr Gould Senior and the defendant. 20First, the plaintiff contends that, at the time of the subject transaction, Mr Gould Senior was a person who "already significantly lacked capacity". The word "already" underscores the plaintiff's contention that the evidence given by Mr Gould Senior at the hearing of the proceedings lacked credibility because he is an old man and he suffers from "a lack of capacity". 21Secondly, the plaintiff contends, Mr Gould Senior is a person who, it must be presumed (because of his dependency upon her as a carer), was induced to give effect to the subject transaction by an exercise of undue influence on him by the defendant: Hewitt v Gardiner [2009] NSWSC 1107, especially at [71]; Johnson v Smith [2010] NSWCA 306; and Badman v Drake [2008] NSWSC 1366. 22Against that background, the plaintiff draws attention to the fact (which I accept as a fact) that money standing to the credit of the company in the plaintiff's bank account, before the subject transaction was effected, was owned, at law and in equity, by the company and, notwithstanding that the respective loan accounts of Mr and Mrs Gould Senior with the company were in credit, neither of them had a beneficial interest in it. 23In contending for a finding that Mr Gould Senior had no authority to bind it, the plaintiff characterises the transaction of 12 April 2010, simply, as a disbursement of "company funds" directly to the defendant. He contends that such a disbursement could not be effected by Mr Gould Senior acting alone (as the plaintiff contends he did) or even with the knowledge and consent of Mrs Gould Senior (which is a point of contention between the parties but which, I find, he did) without the knowledge and express consent of Mr Gould Junior (which, it is common ground, he did not seek or obtain). 24The plaintiff contends, further, that even if (as Mr Gould Senior invites the Court to conclude) the transaction is to be characterised as a disbursement of money of the company in favour of Mr Gould Senior, at his direction and in reduction of the debt then presently owed by it to him, Mr Gould Senior must be taken to have lacked any authority to effect the transaction without the knowledge and approval of Mrs Gould Senior (which Mr Gould Senior contends, and I find, she had and gave), and the knowledge and express approval of Mr Gould Junior (which, it is common ground, he neither sought nor obtained), because the transaction was of a character, and size, outside the ordinary course of the business of the company routinely exercised by Mr Gould Senior with the knowledge and consent of Mr Gould Junior. 25The plaintiff contends that Mr Gould Senior could not draw upon the credit in his loan account (or, more to the point, in the alternative, he could not draw upon it to effect a payment as large as that made on 12 April 2010) because, in doing so, he did not consult the interests of the company as a whole or other creditors of the company: Australian Growth Resources Corporation Pty Ltd (Receivers and Managers Appointed) v Van Reesema (1988) 13 ACLR 261 at 268. 26Although references, here, to the "interests of the company as a whole" and to the "interests of creditors" are generic, the plaintiff (under the practical control of Mr Gould Junior) emphasises his commercial interest in the company, directly and (through corporate vehicles and personal expectations of inheritance) indirectly. 27The plaintiff contends that the money paid to the defendant on 12 April 2010 is recoverable by it at law and in equity. 28In support of its case at law it contends that, even if "the money" was that of Mr Gould Senior to give (which, it contends, it was not), the transaction cannot be characterised as a gift because the defendant's contemporaneous protestations that she would not accept the money as a gift led Mr Gould Senior to characterise the transaction as a loan and the defendant to acquiesce in that characterisation. 29The plaintiff claims judgment on a common money count (of a type now reflected in rules 14.12 (1)(d) and (f) of the Uniform Civil Procedure Rules 2005 NSW and, historically, the subject of elaboration in E Bullen and SM Leake, Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law (Stevens & Sons, London, 3rd ed, 1868) at pp 41-42 and 44-50): either a claim for "money lent by the plaintiff to the defendant" or a claim for "money had and received by the defendant for the plaintiff's use". 30The plaintiff contends that, apart from any implied undertaking to repay the money lent, if it be characterised as a loan, the transaction was unsupported by any, or any adequate, consideration moving from the defendant. 31The plaintiff's case, in equity, focuses upon: attribution to Mr Gould Senior of the obligations of a fiduciary arising from his status as a director of the company; characterisation of the money paid to the defendant as "company funds"; characterisation of the purpose of the transaction as a purpose of assisting a personal friend of Mr Gould Senior rather than a purpose of the company; characterisation of the transaction, accordingly, as a transaction entered into by a director of the company for an improper purpose and, accordingly, as a transaction in breach of a director's fiduciary obligations; and, if need be, attribution to the defendant of actual or constructive notice that the transaction was not made for a proper purpose of the plaintiff: Richard Brady Franks Limited v Price (1937) 58 CLR 112; Australian Growth Resources Pty Limited v Van Reesema (1988) 13 ACLR 261 and Eromanga Hydrocarbons NL v Australis Mining NL (1988) 13 ACLR 804. 32There is some overlap between the jurisprudential bases upon which the plaintiff grounds its claim - appealing to the restitutionary strands of common law causes of action and claims for relief in equity - but this summary broadly identifies the nature of the case for which it contends. 33That case may, but does not necessarily, take colour from the course of these proceedings as between the plaintiff, on the one hand, and on the other, Mr Gould Senior. 34At a procedural level, the plaintiff has deliberately refrained from making any claim for relief (at law, in equity or pursuant to legislation) against Mr Gould Senior. It has, for example, made no claim against him for moneys had and received; for equitable compensation for breach of fiduciary obligations; or for compensation payable under s 1317H of the Corporations Act 2001 Cth arising from a contravention of the statutory duties of a director (embodied in ss 180, 181 and 182 of the Act) that, broadly, parallel the general law obligations of a fiduciary. 35The absence of any claim for relief made by the plaintiff against Mr Gould Senior is worthy of notice; but it can, possibly, be explained as an incident of Mr Gould Junior's filial regard for his parents, and by the fact that the economic benefit of the transaction of 12 April 2010 was received, and is retained, by the defendant. The absence of any claim for relief made against Mr Gould Senior is hardly, of itself, determinative of the claims for relief asserted by the plaintiff against the defendant: Clarke v Shee & Johnson (1774) 1 Cowp 197; 98 ER 1041; Banque Belge Pour L'Etranger v Hambrouk [1921] 1 KB 321; Heperu Pty Limited v Belle (2009) 76 NSWLR 230. 36At a deeper level, and despite submissions to the effect that Mr Gould Senior is a person who should be treated as suffering from "a lack of capacity", the plaintiff has taken, and foreshadowed, no action for the appointment of a person to manage his estate. Nor has it, in these proceedings, challenged the retainer of the solicitor and barrister retained by Mr Gould Senior to appear for him on the cross-claim filed by the defendant. 37The plaintiff conducted the proceedings as if intent on wounding Mr Gould Senior without striking him and, by whatever means, striking at the defendant. For present purposes, it is sufficient to note that the plaintiff's deliberate refusal to act upon its allegation that Mr Gould Senior lacks mental capacity may operate, in a forensic sense, not unlike an inference drawn (in accordance with Jones v Dunkel (1959) 101 CLR 298) against a party who, without explanation, does not adduce evidence from a witness it might ordinarily be expected to call. 38The evidence of Mr Gould Senior persuades me that, although frail, he does not and did not at any material time, or in any relevant respect, lack mental capacity. My finding of mental capacity does not depend upon, but might be thought to be assisted by, the deliberate decision of the plaintiff to refrain from a direct, substantive allegation of mental incapacity. 39Mr Gould Senior plainly understood the nature of the business he transacted in favour of the defendant: Gibbons v Wright (1954) 91 CLR 423 at 437-438. PRIMARY EVIDENCE : A BIRTHDAY CARD FOR VIRI (30 April 2010) 40Very near the central focus of these proceedings is a birthday card dated 30 April 2010 addressed to Viri by the Goulds senior. 41Its elegant printed message, soft purple colouring and portrayal of flowers portray a gentle regard by the old couple for Viri. The handwritten text also conveys a genuine warmth. 42The handwritten text is in three parts, the first two in the handwriting of Mrs Gould Senior; the last in the handwriting of Mr Gould Senior. 43The first part of the handwritten text is written on one of the three inner, printed panels of the card. The printed text on that panel reads: "May your birthday be the happy beginning of a wonderful year." What Mrs Gould wrote on that panel dovetails with that printing. Above it she wrote: "To Our Dearest Daughter Viri". Beneath the printed text she wrote: "We wish you a very Happy Birthday, with Health & Happiness [.] Lots of Love [.] Always in our Thoughts and Prayers. Mumma & Dad." Two symbolic "kisses" ("xx") were placed under each of the words "Mumma" and "Dad". 44No date appears on any of the three inner, printed panels of the card. 45The second and third parts of the handwriting on the card are written on the reverse sides of two of the three printed panels. 46The first part is in the handwriting of Mrs Gould Senior. It bears the date, "30th April 2010". It is in the following terms (with emphasis added): "To Our Beloved Daughter Viri, Please accept this money as a gift to help pay off your home loan in gratitude for your help and support over the last 10 years. You are always there for us, we know you will come to our aid when we need help, which makes our life so much more secure. Thank you again for always being there when we needed help at any time. Lots of love as always [.] Always in our Thoughts and Prayers [.]. Joanne [sic] & Russell xx xx Mumma & Dad" 47The fact that Mrs Gould here signed her name "Joanne" rather than "Joan" was accorded no significance by the parties to the proceedings. Nor was it explored in the evidence of Mrs Gould and Mr Gould Senior, either in chief or in cross-examination. Mrs Gould appears to have signed her name "Joanne" or "Joan" without evidence of rhyme or reason. The defendant's evidence suggests that "Joanne" was an affectionate variation not uncommonly used by Mr Gould Senior in addressing his wife. Having noticed the divergence in signatures, I join the parties in attaching no significance to it. 48The last section of handwriting, in the hand of Mr Gould Senior, is in the following terms: "Thank you Viri, for all the things you have done for us, have a wonderful year. Lots of love Russell. xxx" 49The words of gift given emphasis in the extracted handwriting of Mrs Gould refer, I find, to the $227,820.71 transferred from a term deposit bank account in the name of the plaintiff to the home loan bank account of the defendant, on 12 April 2010, in discharge of the bank mortgage over the defendant's home. 50There is a faint suggestion in the evidence of Mrs Gould - adduced on behalf of the plaintiff at the instigation of Mr Gould Junior - that the words "this money" may have referred to some other, more modest monetary gift physically accompanying the card. I do not accept that. It is contrary to the evidence of Mr Gould Senior and the defendant, which I accept as more reliable. OTHER PRIMARY EVIDENCE : MRS GOULD'S ENDORSEMENT OF STATEMENTS MADE BY THE DEFENDANT (13 October 2011) AND A LETTER OF HER SON (15 October 2011) 51The birthday card dated 30 April 2010 is not the only out-of-court record signed by Mrs Gould bearing upon the nature and quality of the disputed transaction of 12 April 2010. 52After Mr Gould Junior became aware of the transaction, in mid-2011, there was a blow-up within the Gould Family. He very much objected to it. 53In October 2011 Mrs Gould, at their request, signed two documents supportive of the defendant and Mr Gould Senior. 54In cross examination she acknowledged her handwriting on the documents, but claimed not to have fully understood what she did when writing on them. 55They are part of the factual matrix but, as evidence of Mrs Gould's perception of primary facts, they lack the probative force of the birthday card. Their provenance and timing, and Mrs Gould's hesitancy about embracing them from her current vantage point as a witness for the plaintiff, combine to require caution in acting upon them. 56The first of the two documents is an undated, 10 page typed statement prepared by the defendant setting out her version of events, going back to the time she first met Mr and Mrs Gould Senior. Mrs Gould signed the bottom of each page of the statement and, on the last page, she wrote the following endorsement, which she dated 13 October 2011: "This letter is truthful. What has happened to Russell and I since Viri came into our lives, when we offered her money she always refused. This is my side of the story. ... Viri is very special to us both." 57The second document is a letter of complaint dated 2 August 2011 written by Mr Gould Junior to solicitors who, he understood, then acted for his father and the defendant. It sets out, in chapter and verse, his complaints about the defendant's perceived influence over the Goulds senior and the transaction of 12 April 2010. 58The letter contains a series of marginal notes not readily deciphered on the copy adduced in evidence. They are, I suspect, expressions of disapproval by Mr Gould Senior. However, as they are not readily decipherable on the copy in evidence and the parties have focussed attention on the handwriting on the last of the three pages of the letter, I put them to one side. 59On the last page, Mr Gould Senior wrote, twice: "The whole letter is rubish [sic]". 60Immediately under her husband's handwriting, Mrs Gould wrote the following: "As far as I am concerned we could not have a better person to take care of us both. I often told Viri I couldn't exist without her help. Joan M Gould 15/10/2011". 61Mrs Gould is emotionally torn between her husband and her son, and their diametrically opposed views about the worthiness of the defendant and the appropriateness of the transaction of 12 April 2010. 62Mrs Gould maintains a genuine affection for the defendant but, to my observation, her evidence is coloured by an anxiety to please her son. She appears, intermittently at least, to have sided with him, against Mr Gould Senior and the defendant, since the transaction of 12 April 2010 first came to her son's attention in or about June 2011. 63That was at about the time he prepared the plaintiff's financial report for the year ended 30 June 2010. The Directors' Declaration he signed for that report is dated 5 July 2011. Email correspondence between the plaintiff's bank (the ANZ Bank) and Mr Gould Junior's personal assistant, undertaken by her at his request, is dated late June 2011. 64Mr Gould Junior is a chartered accountant by profession. It was on his recommendation in 1973 that Mr Gould Senior transferred his business and realty to the plaintiff. Mr Gould Senior's perception is that the company was set up by his son "for tax purposes". 65Be that as it may, over ensuing years (and, quite probably, increasingly after Mr Gould Senior retired from business in 1989) the son appears to have asserted greater and greater, effective control over the financial affairs of the Gould Family. There is nothing necessarily sinister in this. Nevertheless, as events have transpired, Mr Gould Senior sees the deft hand of self interest in his son's engagement with the plaintiff and, at least at a superficial level, it is not possible to say that he lacks reasonable grounds for his suspicions. THE CHARACTER OF THE DISPUTED TRANSACTION 66Having had the benefit of seeing each of the principal players in this family tragedy (Mr and Mrs Gould Senior, Mr Gould Junior and the defendant) give evidence, I am comfortably satisfied of two critical facts. First, that the transaction of 12 April 2010 effected in favour of the defendant was effected by Mr Gould Senior with the free and voluntary intention on his part that the sum of $227,820.71 be paid to the defendant's bank by way of a gift to the defendant. Secondly, that transaction was effected with the free and voluntary approval of Mrs Gould, communicated to Mr Gould Senior and the defendant before the transaction was effected, and confirmed (inter alia by the birthday card of 30 April 2010), after the event. 67I am also comfortably satisfied that this gift had a rational foundation in the reality of the lives of Mr and Mrs Gould Senior and the defendant. Although the older couple, through the plaintiff or otherwise, had paid the defendant for domestic services or care she had provided them over their years of acquaintance, they had a strong sense, grounded in reality, that she had rendered them genuine care and attention above and beyond any obligation she may have owed to them had she been merely a contract worker. They treated her as a surrogate daughter. 68In the perception of the older couple, also grounded in reality, they had (at least) a strong moral entitlement to property well in excess of $227,820.71. By conferring on the defendant a benefit in that sum they sought, I find, to honour what they felt was a deep moral obligation on their part owed to a surrogate daughter. 69In forming these judgements, I have taken into account a range of factors which point in a contrary direction, including the following: (a)the age and personal circumstances of Mr and Mrs Gould Senior; (b)the status, and active role, of the defendant as a carer (and sometime "bookkeeper" of accounts for Mr and Mrs Gould Senior) in close contact with the elderly couple over a substantial period of time; (c)the absence of any independent legal or other advice taken by Mr and Mrs Gould Senior, or proposed by the defendant, in connection with the disputed transaction; (d)the absence of any involvement of Mr Gould Junior in the decision-making processes leading up to the events of April 2010, or in the aftermath of those events, notwithstanding the loving relationship he generally had with his parents, his role as a director of the plaintiff and as its accountant, and the intermingling of his financial affairs with those of his parents in the context of the plaintiff; (e)wherever the onus of proof may technically lie, a prudential need to be comfortably satisfied, not only that Mr and Mrs Gould Senior, jointly or severally, intended to confer a gift on the defendant, but also a similar need to be equally satisfied that the defendant did not induce that state of mind in the older couple by an exercise of undue influence; (f)the possibility (as the plaintiff would have it, but I do not accept) that, though the transaction of 12 April 2010 was instigated by the elderly couple, the defendant (consciously or otherwise) may have, by her cultivation of their empathy, induced them to favour her; (g)the plausible possibility that emphatic steps taken by Mr Gould Senior, and evidence given by him, in support of the defendant after the intervention of Mr Gould Junior in 2011 are, at least in part, a reaction against his son's firm hand in family affairs rather than simply an expression of an independent and sound mind; and (h)the substantial (and, one might readily conclude, extraordinary) size of the benefit conferred on the defendant by the disputed transaction. 70Upon a consideration of the size and nature of the benefit conferred on the defendant I have taken into account, in particular, the need to focus attention upon whether "the gift is so substantial, or so improvident, as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary persons act": Quek v Beggs (1990) 5 BPR [97405] at 11,764, recently cited in Courtney v Powell [2012] NSWSC 460 at [38], a case not altogether dissimilar. INTER-GENERATIONAL TENSIONS WITHIN THE GOULD FAMILY 71I can well understand the scepticism of Mr Gould Junior about the nature of the transaction of April 2010. However, that scepticism is coloured, at least in part, by a strong protective instinct coloured by his own, not unreasonable expectation that any property held by or on behalf of his aged parents is likely, in the fullness of time, to be his. 72At one level, not far from the surface of legal form, these proceedings are an inter-generational contest of wills between the Messrs Gould, senior and junior. In that contest the defendant's exposure to the litigation marks her out as collateral damage. 73As his parents have aged Mr Gould Junior, as a dutiful, expectant son, has stepped in, at first, to aid them and then, perhaps, to control their finances in the interests of "family". 74In his self-perception, he has been motivated solely by his regard for filial duty, and any financial benefit to him has been viewed as an incidental consequence of protection of the Gould Family generally. Nevertheless, he is sufficiently intelligent, and able to distance himself from the subject at hand, to see (as others must) that the fact that he may stand to benefit, personally, from preservation of "family assets" in the "family company" - under his ostensible ownership and control by colour of right - cannot be wholly lost from view. 75He has, also, sufficient genuine depth of filial regard for his parents that he has recognised a need for them to retain their dignity - which, in their community, includes a need to appear affluent and autonomous. 76In a letter of demand dated 26 July 2011 he wrote to the defendant, ostensibly as a director of the plaintiff, at about the time he first became aware of the transaction of 12 April 2010, he put this point thus (alluding to his apprehension that the defendant is an unscrupulous gold-digger): "... you are under an illusion as to the financial substance of my father. You will appreciate that because of my love for my father I have permitted him to operate and act as if he was a man of substance." 77Mr Gould Junior appears, from his perspective, to have taken a calculated risk in "allowing" his father to occupy the office of director of the plaintiff, to be a signatory on the plaintiff's bank account, to have custody of the plaintiff's banking records and "to operate and act as if he was a man of substance". 78That was, until he learned of the transaction of 12 April 2010. Then, in a state of alarm, he took steps to terminate any appearance of authority his father had vis á vis the plaintiff. 79In the perception of his father, he told their community that the older man, beguiled by a "relationship" with the defendant, was suffering from "dementia". He consulted the solicitors who are on the record for the plaintiff in these proceedings. His letter of 26 July 2011 bears the hallmarks of a letter written with the benefit of legal advice. It includes, with a demand for delivery up of company documents and keys, the following paragraphs: "As you are no doubt fully aware, my mother and I have been extremely concerned about the relationship between you and my father. Your recent decision to take him from the care of his long-term doctor (Dr Jeremy Thompson) to a new medical practitioner is also of major concern. In short, we want you out of our lives and out of my father's life. ... My wife would like the opportunity of speaking directly with you and explaining the reasons why we have taken the steps we have taken [changing the signatories on the bank accounts of the plaintiff and demanding delivery up of records and keys]. [My wife's mobile phone number is ...] and she would be prepared to meet with you at some mutually convenient time. Unfortunately the cruel words that you spoke to my mother combined with your actions mean that it is probably not a good idea if I was present. Nevertheless it may be in your best interests to fully understand the harm you have caused my family. I personally would be prepared to meet with your solicitor and explain to him the legal and commercial realities of why the documents you have had my father sign are nugatory. You are under an illusion as to the financial substance of my father. You will appreciate that because of my love for my father I have permitted him to operate and act as if he were a man of substance. My solicitor ... , who is acting for both my mother and myself as well as the company, will also be in touch with you in relation to the loan of $227,820.71 which needs to be repaid with interest. ..." 80Mr Gould Junior's intervention in this way was, and remains, deeply offensive to Mr Gould Senior. 81The two men are birds of a feather, at least to the extent of being strong-willed personalities. In giving evidence in these proceedings each of them took the occasion as an opportunity to speak bluntly. It was as well that they did so, to the extent that they revealed the underlying nature of their grievances, but one can only hope that they found the experience sufficiently cathartic to open the way to reconciliation. MR GOULD SENIOR'S EVIDENCE 82Returning, as we must, to the formal legal proceedings before the Court for determination, the evidence given by Mr Gould Senior in answer to the plaintiff's case against the defendant is, in my estimation, fatal to that case. 83It is plainly true that Mr Gould Senior is old and frail of body. It is equally plain that he suffers from a defect of hearing that, at times, adversely affects the course of any conversation with him. Plainly, also, he is prone to repetition of emphatic statements of his position. 84He was, however, generally responsive in answers to questions put to him in cross examination when care was taken to ensure that the question asked was the question heard. 85I do not accept that the substance of his evidence can be discounted by reason of his age or any infirmity. Nor am I, in the absence of medical evidence, prepared to act on the basis that his evidence lacks credibility or reliability by reason of "dementia". 86In giving his evidence, Mr Gould Senior had a message that he was determined to convey, and he stayed "on message". He was adamant that the $227,820.71 paid out for the benefit of the defendant on 12 April 2010 was money that he, and his wife, intended the defendant to have as a gift; a gift given in recognition of the care and attention which the defendant had given the couple, above and beyond the call of duty, over a decade. 87He was adamant in his denial that the defendant had exercised any form of undue influence over him or his wife. He insisted that, on the contrary, the defendant had resisted conferral of any financial benefit on her and that, consequentially, he had had to be persistent in demanding that she, first, accept the money, and then, retain it. He regarded the payment as a gift of honour, morally due from himself and his wife, both of whom were, he insisted, involved in the making and implementation of the decision to confer the gift. His resentment against his son's familial supervision manifested itself in his presentation of the decision as one made deliberately without reference to his son. 88Mr Gould Senior's strength of personality has manifested itself in several ways in connection with these proceedings. First, with his wife's acquiescence, he determined to do justice to the defendant, as he perceived honour required them to do justice to her, by conferring a substantial financial benefit upon her. Secondly, he determined to confer a substantial benefit on the defendant without consulting his son or immediately advising him of it. Thirdly, he maintained his support for the defendant in the teeth of his son's angst and notwithstanding a degree of alienation that has caused within the Gould Family. Fourthly, he stood his ground against the social pressure deployed against him by his son's overt depiction of him as having "lost it". Fifthly, he encouraged the defendant not to be intimidated by Mr Gould Junior's demands for "repayment" of moneys to the plaintiff. Sixthly, he swore an affidavit in support of the defendant's defence of these proceedings. Seventhly, when it became apparent, in the course of the final hearing of the proceedings, that it would be desirable for him to be joined in the proceedings and separately represented, he instructed a solicitor and a barrister, independent of the defendant, to consent to his joinder and to represent him in the proceedings. Eighthly, he attended Court, with a display of humility, dignity and defiance against his son, intent not merely upon allowing himself to be cross examined on his affidavit, but also to speak his own mind. THE AMBIT OF THESE PROCEEDINGS 89Even if it were possible, it would not be expedient, to allow these proceedings - ostensibly limited to a claim by the plaintiff against the defendant - to be diverted into a royal commission about either the true ownership, entitlement to control and internal management of the plaintiff or the Power of Attorney that Mr Gould Junior ostensibly holds from his father, but the validity (or, at least, due exercise) of which is hotly contested. The proceedings, as constituted, are not well adapted for an orderly determination of these fundamental disputes within the Gould Family. 90The plaintiff, under the ostensible control of Mr Gould Junior, has deliberately refrained from claiming any relief in these proceedings against Mr Gould Senior. When it became apparent that Mr Gould Senior's joinder might be necessary or desirable to ensure that all questions in dispute could be finally determined, the plaintiff opposed his joinder and disclaimed any intention of claiming relief against him. It was left to the defendant, on a cross summons, to claim declaratory relief designed to ensure that the plaintiff, the defendant and Mr Gould Senior are all bound by the Court's judgment. 91Despite suggestions made during the course of the proceedings, by mere assertion only, that Mr Gould Senior is suffering from "dementia", no challenge has been made to the retainer of the solicitor and barrister retained to act for him. No application for the appointment of a manager of Mr Gould Senior's estate has ever been made, and none has been foreshadowed during the course of the proceedings. 92To some extent, perhaps not fully evident on the evidence adduced in these proceedings, the disinclination of the plaintiff and Mr Gould Junior to claim any relief against Mr Gould Senior may represent the benefits of incumbency. Mr Gould Senior now lives in a nursing home, apparently with few unmet needs. His son is ostensibly in control of the plaintiff and its assets. ANALYSIS 93When he wrote up the books of the plaintiff in 2011 Mr Gould Junior characterised the $227,820.71 paid to the defendant as a misapplication of the plaintiff's money. He did not, as he might have done, treat it as a repayment by the plaintiff of the company's indebtedness to Mr or Mrs Gould Senior. He did not debit it to the loan account of one or both of his parents. He did not countenance the possibility that it should be treated a part-payment by the company of its indebtedness to his parents, coupled with a voluntary gift by Mr and Mrs Gould Senior, jointly or severally, to the defendant. 94Neither on 12 April 2010 nor in the days that followed did Mr and Mrs Gould Senior, subjectively, turn their minds to a particular characterisation (vis á vis the plaintiff) of the transaction they effected when they paid out the defendant's home loan. 95In their minds, subjectively, they were entitled, vis á vis the company, to do what they did, whether the moneys paid out for the benefit of the defendant might, by others, be characterised: (a) as a payment by the plaintiff directly to the defendant; or (b) as a repayment to them jointly or severally of moneys owed by the plaintiff to them, coupled with a gift by them to the defendant. 96They both intended, and persisted in their intention, to confer a gift on the defendant. Although they genuflected in the direction of calling the transaction a "loan" in order to persuade her to be at ease in accepting their gift, it was never their intention that she repay the money. They intended it to be a gift, not a loan. 97The plaintiff contends that prevarication on the part of the defendant as to whether she would accept the money as a gift, or on the part of Mr Gould Senior as to whether it might instead be characterised as a loan, should ground a finding that any "gift" made to the defendant was, in law, incomplete. It contends, as may be accepted, that for a transaction to take complete effect as a gift both donor and donee must, in effect, intend that the transaction be a gift; the donor must intend a gift and the donee must accept it as such: May, The Law of Fraudulent and Voluntary Conveyances (3rd ed, London, 1908), ch 2, especially at pp 358-359; In Re Everett [1917] SALR 52 at 57-59. 98As against the defendant, the plaintiff bears the onus of proving the character of the payment made for her benefit on 12 April 2010: Heydon v Perpetual Executors Trustee & Agency Co (WA) Limited (1930) 45 CLR 111 at 113; Coshott v Sakic(1998) 44 NSWLR 667 at 671D-E; Motor Auction Pty Limited v John Joyce Wholesale Cars Pty Limited (1997) 138 FLR 118 at 132-133. 99More generally, the plaintiff bears the onus of proving each essential element of its case against the defendant: Currie v Dempsey (1967) 69 SR (NSW) 116 at 125. Thus, it bears the onus of proving its allegation that Mr Gould Senior acted without authority in withdrawing funds from the plaintiff's bank account, and in directing the bank to transfer those funds into the defendant's bank account. Likewise it bears the onus of proving that the defendant had actual, or constructive, notice of any lack of authority on the part of Mr Gould, and of any breach of duty (fiduciary or statutory) on his part. 100In making these observations I am mindful that, by a cross-claim, the defendant seeks declaratory relief against the plaintiff and Mr Gould Senior. 101In the absence of a competing, contrary claim to relief, an applicant for a declaration may ordinarily be taken to bear the burden of satisfying the Court of facts which (in the absence of proof of other facts) would justify a grant of that relief: Massoud v NRMA Insurance Limited (1995) 62 NSWLR 657 at 660; Blanch v British American Tobacco Australia Services Limited (2005) 62 NSWLR 653 at 655 [5] - 656 [10]. 102This accords with the general proposition, which informs much learning about onus of proof, that a party making an allegation of fact generally, for reasons ultimately justified by reference to experience and considerations of fairness, bears the burden of proving that fact: JH Wigmore, Evidence in Trials at Common Law, Vol 9 [2486]; JD Heydon, Cross on Evidence (9th Australian ed, 2013), para [7060]. 103Into this equation must be factored the broad, flexible, discretionary character of declaratory relief (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582), a grant of which (for example) does not require proof of a "cause of action" in the traditional sense (Guaranty Trust Company of New York v Hannay & Company [1915] 2 KB 536 at 572), and the availability of a "reverse declaration" as a formal expression of a court's determination, without necessity of a cross-claim, that a plaintiff's claim for relief be dismissed (PW Young, Declaratory Orders (Butterworths, Sydney, 2nd ed, 1984), para [606]; Civil Procedure Act 2005 NSW, s 90; Uniform Civil Procedure Rules 2005 NSW, r 36.1). 104Where the onus of proof resides on an application for declaratory relief must, ultimately, turn on questions of substance, not mere form, and those questions may be informed by considerations of fairness, including established practice, if any. 105This is consistent with the approach taken on an assessment whether a refusal to grant a declaration operates as a final determination: A Hudson Pty Limited v Legal & General Life of Australia Limited (1985) 1 NSWLR 701 at 712C, 716D-E and 718D. The Court looks to the substantive character of the parties' contest, not merely the form of relief granted. 106In the present proceedings the defendant's cross-claim serves as a means of ensuring that, notwithstanding the plaintiff's refusal to join Mr Gould Senior as a defendant in the principal proceedings, he (and his privies in interest) can be bound by the Court's determination vis á vis the defendant. 107The cross-claim takes the form of a cross-summons, with no pleadings independent of the pleadings filed in the principal proceedings. Vis á vis the plaintiff, a grant of declaratory relief on the cross-claim is, in substance, similar to the making of a reverse declaration on the plaintiff's statement of claim. 108The presence of the defendant's cross-summons does not detract from the fact that the substantive character of the proceedings is to be found in the allegations made, and the relief claimed, by the plaintiff in its statement of claim. 109I approach my determination of the parties' factual contest on this basis; but, nevertheless, mindful of a need to approach the evidence of all members of the Gould Family, and the defendant, with special care (and independent scrutiny) because of their personal relationships; the respective ages of Mr and Mrs Gould Senior; and the fact that the defendant served as a carer for the older couple in and about, and long before, April 2010. 110A number of objective facts stand in the way of the plaintiff being able to discharge the burden of proof on the case it alleges against the defendant: (a) Mr Gould Senior plainly believed (as he still does) that he had authority to effect the business he transacted in favour of the defendant on or about 12 April 2010. (b) That belief was based on reasonable grounds insofar as, at least: (i) he and his wife were directors of the plaintiff. (ii) with the acquiescence of his son (who claims, ultimately, to have owned and controlled the plaintiff in and about April 2010) and his wife, he was authorised by the plaintiff, without limit, to operate the plaintiff's bank account and to transact business (including the payment of "wages" for the older couple and, apparently, payment of their personal expenses generally) on behalf of the plaintiff. (iii) the plaintiff owed to each of him and his wife respectively a debt, repayable on demand, in excess of the amount he caused to be paid to the defendant's account. (iv) as I have found, in causing money to be paid to the defendant he acted with the knowledge and approval of Mrs Gould Senior. (c) Mr Gould Senior (as I have found, in consultation with his wife) initiated the payment of funds to the defendant. (d) As manifested in the evidence he gave in these proceedings, and in his conduct of the proceedings as a party, in causing the disputed moneys to be paid into the defendant's bank account Mr and Mrs Gould Senior acted freely and voluntarily. (e) There is no suggestion that, at the time Mr Gould Senior caused the disputed moneys to be paid out to the benefit of the defendant or at any other time, the plaintiff was or was likely to be insolvent. (f) The defendant believed that all members of the Gould Family acquiesced in the payment made for her benefit. (g) That belief was based on reasonable grounds insofar as, at least: (i) Mr Gould Senior, at least implicitly, assured her that Mr Gould Junior was aware that the payment was to be made to her. (ii) Mr Gould Senior and his wife had been offering, for a period in excess of a year before 12 April 2010, to provide financial assistance to her to assist her to pay off her mortgage. (iii) The defendant had observed, over time, that Mr and Mrs Gould Senior had regular, unfettered access to funds of the plaintiff via cash withdrawals from the bank. (iv) The defendant had observed that the plaintiff bore the name of Mr Gould Senior and, ostensibly, was a company owned and controlled by him. (v) Mr Gould Senior had custody of the plaintiff's banking records and authority, vis á vis the bank, to effect the transfer of money that took place on 12 April 2010. (vi) Mrs Gould Senior confirmed to her that the payment effected in her favour was intended by both the Goulds Senior to be a gift from them to her and, by that confirmation, implied that the moneys paid to her were, in substance, theirs to give. 111The fact that there is no suggestion that the plaintiff was (or was ever likely, by reason of the payment made to or for the benefit of the defendant on 12 April 2010, to be), insolvent undermines the plaintiff's contention that any authority that Mr Gould Senior had (with or without the agreement of his wife) to effect the payment was constrained by a need to have regard to the interests of creditors: Spies v The Queen (2000) 201 CLR 603 at 635 [93] - 637 [99]); RP Austin, HAJ Ford and IM Ramsay, Company Directors: Principles of Law and Corporate Governance (Lexis Nexis Butterworths, Australia, 2005), paras [7.10] and [10.3]. 112Disputes about the existence, nature and extent of authority, in Mr Gould Senior (and his wife), to transact the business transacted in April 2010 can be determined within the framework of the Gould Family's arrangements for conduct of business of the plaintiff. 113The plaintiff lacks standing to assert on behalf of Mr Gould Senior (and he stridently objects to any suggestion) that the defendant exercised any form of undue influence over him in relation to the conferral of the disputed benefit upon her. The plaintiff, itself, cannot claim to have had such a relationship with the defendant as to call in aid of its case against her a presumption that she exercised undue influence over it, as a corporate identity, or over Mr Gould Senior as one of its directors. Equity generally looks to the substance, rather than merely the form, of relationships and dealings. The interposition of a corporate vehicle between an abused person and his or her abuser would be unlikely, of itself, to preclude an application of general equitable principles about undue influence or fiduciary obligations. However, the circumstances of this case do not call for an application of a presumption of undue influence against the defendant, in the interests of the plaintiff, or a finding that she owed a fiduciary obligation to the plaintiff. 114Had Mr Gould Senior himself, personally, challenged the efficacy of the transaction effected in favour of the defendant, so far as it concerned a transfer of property by him or on his account to her, I would have proceeded on the basis that the defendant (as the carer/housekeeper/bookkeeper of an elderly man from whom she received a large benefit) should be presumed to have exercised undue influence upon him to procure the benefit: Johnson v Buttress (1936) 56 CLR 113 at 133-135. However, even if a presumption of undue influence could be marshalled against her, the evidence given by Mr Gould Senior, coupled with her own, would have rebutted it. 115In the proceedings as constituted, and in the light of the evidence (including, but not limited, to the evidence of Mr Gould Senior) there is no compelling reason for characterisation of the transaction of 12 April 2010 as a misapplication of the plaintiff's money in favour of or by the defendant rather than (for example) a repayment by the plaintiff of part of its indebtedness to Mr Gould Senior, coupled with a gift of the repaid moneys by him in favour of the defendant. 116The fact that Mr Gould Junior, in 2011, caused the plaintiff's accounts to be written up as recording a debt owed to the company by the defendant, rather than recording a reduction in the loan accounts of Mr and Mrs Gould Senior (jointly or severally), is determinative of no issue in these proceedings. The accounts reflect Mr Gould Junior's case rather than prove it. They do not, on my findings, reflect the reality of what, in fact, happened in April 2010. 117Although a company's books of account may be admissible in particular circumstances (Corporations Act 2001 (Cth), ss 542, 1305-1306; Potts v Miller [1940] 64 CLR 282 at 301-305, especially 305), their probative value may depend, as here, on the circumstances in which, when, by whom, and for what purpose they have been written up. They are not, in these proceedings, particularly persuasive, let alone conclusive, of any fact in issue. The outcome of these proceedings depends upon an assessment of facts independent of the accounts of the plaintiff as written up by, or under the direction of, Mr Gould Junior in the midst of controversy leading to litigation. 118Under the practical control of Mr Gould Junior, the plaintiff insists that the money paid out to the defendant on 12 April 2010 must, up to and including the time of its receipt by the defendant, be characterised as money of the company; and that Mr Gould Senior did not (acting alone or in concert with his wife) have any authority from the company to pay the money to the defendant. In my judgement, that pitches at too high a level both the case that the defendant has to meet and her forensic challenge. 119The manner in which Mr Gould Junior allowed his parents to conduct the affairs of the plaintiff - ostensibly as their family company, paying themselves "wages" and apparently paying personal expenses at will - provides a firm foundation for a finding that Mr and Mrs Gould Senior had implied actual authority to make, on behalf of the company, the payment, to or for the benefit of the defendant, that was in fact made. 120However, although the evidence supports such a finding, adoption of it would require close analysis of the extent to which such a payment could be said to have been a payment for a company purpose. That analysis could, in its turn, require a detailed investigation of: (a) the circumstances in which (as he alleges) Mr Gould Junior came to own and control the plaintiff; (b) the nature of the business, or businesses, conducted by or in the name of the plaintiff; and (c) the course of relationships within the Gould Family, and the conduct of business of the company, over a substantial period of time. 121The defendant is entitled to contend, as she does, that a disposition of these proceedings in her favour must follow if: (a) the payment made to or for her benefit can be characterised as a payment made on the account of Mr and Mrs Gould Senior jointly or severally; and (b) Mr and Mrs Gould Senior, jointly or severally, had sufficient authority in the conduct of the affairs of the plaintiff to draw down on their loan account(s) for the purpose of funding the payment made to or for the benefit of the defendant. The plaintiff bears the onus of excluding such a case. In any event, without excluding the possibility that Mr and Mrs Gould Senior had authority to pay company funds to the defendant, I am satisfied that she has, at least, established that they had authority to draw down on their loan accounts sufficiently to make the payment made to her. 122A key factual inquiry in the proceedings is whether, on 12 April 2010, Mr Gould Senior (in particular) had, as an officer of the plaintiff, the company's authority to withdraw from the company's bank account the sum of $227,820.71 in reduction of the greater sum standing to his credit in the loan account of the company. 123In my judgement, that question should be answered in the affirmative. Mr Gould Senior was authorised by the plaintiff, vis á vis its bank, to withdraw the disputed sum; there is no suggestion that, vis á vis the bank, the transaction was irregular. He (and his wife) had regular, liberal access to funds of the plaintiff. He (and his wife) had custody of the banking records of the plaintiff, and a general authority to operate the company's bank accounts. 124Although Mr Gould Junior may have harboured private reservations about what his parents should do without his express approval, in my estimation he deliberately acquiesced in his father exercising authority, without fetters, over the disposition of company funds. Revealing in that regard is his considered statement (in the letter dated 26 July 2011 he addressed to the defendant): "You will appreciate that because of my love for my father I have permitted him to operate and act as if he were a man of substance [Emphasis added]." 125Mr Gould Junior may, privately, have harboured a hope, or an expectation, that his father would not do anything outside the ordinary course of business of the plaintiff as he may have perceived it; but he did not establish that as a limitation on his father's authority, either within the management structure of the plaintiff or with his parents personally. 126I find that Mr Gould Senior had, at least, implied actual authority (with or without the acquiescence of his wife) to effect the transaction effected in favour of the defendant, on 12 April 2010, as a part-repayment to him of the debt owed to him by the plaintiff (or, equally, as a part-repayment to him and his wife of the debts owed to them respectively by the plaintiff): Hely-Hutchinson v Brayhead Limited [1968] 1 QB 549 at 583-584, 586-587 and 592-593; Corporate Affairs Commission (NSW) v Transphere Pty Limited (No 2) (1985) 9 ACLR 1005 at 1009; Brick and Pipe Industries Limited v Occidental Life Nominees Pty Limited [1992] 2 VR 279 at 361-362. 127In the proceedings as constituted, as between the plaintiff and the defendant I am not satisfied that the sum of $227,820.71 paid into the bank account of the defendant bore, at the time of its payment into that account, the character of property of the plaintiff. 128I am minded to find, on the contrary, that it bore the character of personal property of Mr and/or Mrs Gould Senior, via a repayment to them by the plaintiff of part of a debt owed by the plaintiff to them respectively. That characterisation of the transaction is consistent with a level of actual authority which I am comfortably satisfied that Mr Gould Senior did have in the operation of the plaintiff's affairs. In their dealings with the defendant, Mr and Mrs Gould Senior spoke in terms of the transfer of money being their gift to her, not a gift of the company. Objectively, an available inference (which I am prepared to draw) is that they paid her from money drawn down from one or the other of their loan accounts with the company. 129Upon an assumption (contrary to this assessment of the evidence) that the money paid into the defendant's bank account bore at that time the character of company property, the plaintiff contends that, on a proper assessment of the evidence of Mr Gould Senior and the defendant, the transaction was, at least, a loan made by the plaintiff to the defendant, repayable on demand. 130That contention is based upon evidence, given by both Mr Gould Senior and the defendant, of protestations on her part on and after 12 April 2010 that she did not accept the gift proffered to her. 131In my judgement, the plaintiff's contention should be rejected. One needs to examine the conduct of the Goulds senior and the defendant (particularly in the period between 12 - 30 April 2010 or thereabouts) bearing in mind that, in the defendant's Thai culture (more so, perhaps, than that of Australia), a succession of refusals to accept a gift might be - and in this case was - part of the etiquette, but no mere formality, in a process of acceptance of the gift. 132Mr Gould Senior, in particular, understood that, and his understanding of it was, I infer, part of the reason why he persisted pressing upon the defendant the concept of a gift, in an active endeavour to have her accept the money as a gift. At one point or another he invited her to treat the money as a "loan" and she ostensibly acquiesced in that; but he all the while intended that it be a gift, he persevered in pressing the money upon her as a gift and, consistently with Thai cultural norms, she remained open to its characterisation as a gift. 133She remained open, also, to the possibility that, having accepted the money as a gift, she could, at a later time, independently decide to repay it. Her subsequent ongoing care for Mr Gould Senior in his estrangement from his son is an illustration of a genuine desire both to respect him and to reciprocate the kindness shown to her by the Goulds Senior. 134Her evidence, which I accept, is that she finally acquiesced in characterisation of the money as a gift when, after experiencing Mr Gould Senior's persistent overtures, she received the birthday card of 30 April 2010 addressed to her in fulsome terms by both Mr and Mrs Gould Senior. 135This evidence has the ring of truth about it when one bears in mind, not only Thai cultural norms, but also the close, quasi-family relationship between Mr and Mrs Gould Senior and the defendant. 136The defendant was no fly-by-night user of Mr and Mrs Gould Senior. Before and after the events of April 2010 she manifested a friendship and loyalty towards the Goulds inconsistent with attribution to her of the status of a manipulative fellow traveller. That friendship and loyalty, to Mr Gould Senior in particular, continued after he had, by disclosure of the gift to her, incurred the wrath of Mr Gould Junior. He lived with her for a year before moving into aged care accommodation. They remain close. 137The heaviness of Mr Gould Junior's hand in dealing with both the defendant and his father, in and following his intervention in the affairs of his parents as they intersect with those of the plaintiff, put paid to the possibility that, by an independent and voluntary decision, the defendant might, without any legal obligation to do so, undo what was done in April 2010. CONCLUSION 138On the findings I have made, the plaintiff's claims for relief against the defendant must fail. I propose, accordingly, to dismiss the plaintiff's Further Amended Statement of Claim filed 25 March 2013. 139By her cross-claim, the defendant seeks declaratory relief to the effect that neither Mr Gould Senior nor the plaintiff has any right, title or interest in the sum paid to or for her benefit on 12 April 2010. Consistently with his conduct of the proceedings, Mr Gould Senior submits to the grant of such relief. On the findings I have made, dismissal of the plaintiff's claims for relief in the principal proceedings carries with it a determination in favour of the defendant on her cross-claim. 140I will allow the parties an opportunity to be heard on the precise form of orders to be made (including, in particular, on the question of costs) but, prima facie, the following orders should be made: (1) Order that the Further Amended Statement of Claim be dismissed. (2) Declare that the defendant is absolutely entitled to retain for her own use and benefit the whole of the sum of $227,820.71 paid to the credit of her mortgage account with Australia & New Zealand Banking Group Limited out of an account of the plaintiff with the Bank on 12 April 2010. (3) Declare that neither the plaintiff nor Mr Gould Senior has an interest in, or entitlement to, that sum. (4) Order that the costs of the proceedings (including proceedings on the cross claim) be paid by the plaintiff. 141In the affidavit he swore in support of the defendant Mr Gould Senior invited the Court, not only to dismiss the plaintiff's proceedings against the defendant, but to make an order that Mr Gould Junior, personally, pay the costs of the proceedings. 142Although I will entertain whatever submissions may be made as to the costs of the proceedings, as presently advised I am reluctant to act upon Mr Gould Senior's invitation. To do so would require an exploration of hotly contested narratives, within the Gould Family, about the internal governance of the plaintiff. Those narratives have been unnecessary to explore, in detail, in the determination of the proceedings between the plaintiff and the defendant. They are largely collateral to that contest. A fair determination of them would, I suspect, require, if not merit, separate proceedings, differently constituted. ********** 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. Decision last updated: 16 August 2013