Trajcevski v Mason [2017] NSWLC 14

Local Court New South Wales

Medium Neutral Citation: Trajcevski v Mason [2017] NSWLC 14 Hearing dates: 13 July 2017 Decision date: 31 July 2017 Jurisdiction: Civil Before: Brender LCM Decision: The defendant pay to the plaintiff $14,652.50, together with interest pursuant to section 100 of the Civil Procedure Act 2005 Legislation Cited: Civil Procedure Act 2005, s 100 Cases Cited: Balfour v Balfour [1919] 2 KB 571 Darmanin v Cowan [2010] NSWSC 1118 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Ottavio v Hayvio Pty Ltd [2011] NSWSC 1125 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Voce v Deloraine [2012] NSWSC 1187 Category: Principal judgment Parties: Natalie Jane Trajcevski (plaintiff) Gregory John Mason(defendant) Representation: Counsel: D Turner (for the defendant)

Solicitors: S Agosta (for the plaintiff) H S Lam (for the defendant) File Number(s): 2016/235410

Judgment 1. Ms Natalie Trajcevski (the plaintiff) and Mr Gregory Mason (the defendant) met in June 2007 and commenced a romantic relationship. They moved in together in August 2009. The plaintiff's evidence, which was not contradicted by the defendant, was that they had a conversation in which they agreed to keep their finances separate and they would pay for their own expenses. Initially they decided not to get a joint account and had their own accounts only, however after they commenced to live together they did open a joint bank account for the convenient payment of joint expenses. They had both suffered financially as a result of previous relationships. At the time they started living together the plaintiff received a lump sum of money from her former partner so she was in a better financial position than the defendant. He had a business which did not prosper. She was in employment. But neither had a great deal of money. He used his American Express (Amex) card for business and personal expenses, and to get "points". She would on occasion reimburse him to his card. They also in due course had a joint account for joint expenses such as rent which either could operate. They both had their own accounts. 2. Initially the plaintiff claimed $29,562.89 by way of 24 loans or advances, reduced by four repayments. This was supported by evidence including particular conversations said to have occurred. Her affidavit was sworn on 12 April 2017. The defendant swore his evidence on 22 March 2017. He did not reply to her affidavit. The plaintiff said in the witness box that after receiving information "by email" she agreed that a number of the claims were not maintainable and she abandoned them. I understood the email was actually the defendant's affidavit. At the hearing an amended statement of claim was filed without opposition which removed 12 of the claims, reduced one claim and made some adjustments to the repayments. Some of the material in the affidavit in support of the original claim was not read, however was in effect cross examined back into evidence on the basis that some of that evidence was clearly wrong and accordingly some of the rest of the evidence should be treated with suspicion. 3. As amended, the claim was put on the basis that there were 10 separate loan agreements (loans 1, 2 and 3 were treated as one loan) and that those agreements were oral and on terms that they would be repayable when the defendant could afford to do so or otherwise on demand. The defendant was given credit for five repayments of or towards the 10 loans, being repayments totalling $6,700. Eight of the ten loans were for round amounts. Each of the repayments was of a round amount. All of the payments are recorded in at least one bank statement or credit card statement. Only the first one is recorded in a communication between the parties. 4. The defendant says that 1) there was no intention to create legally binding agreements, 2) the evidence is insufficiently clear, 3) the terms are void for uncertainty and 4) if there was a term that the amounts were repayable when the defendant could afford it, that time has not arrived. No limitation point was raised.