IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMERCIAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CI-22-03326

TR CONCRETE CONSTRUCTIONS PTY LTD (ACN 079 028 041) (ATF THE ROTIROTI FAMILY TRUST) & ANOR	Plaintiffs	
		
v		
		
CARMELA CICCONE	Defendant	

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JUDGE:	His Honour Judge Rozen	
WHERE HELD:	Melbourne	
DATE OF HEARING:	16 – 20; 23 October 2023; 16 November 2023 (Closing Submissions)	
DATE OF JUDGMENT:	7 December 2023 	
CASE MAY BE CITED AS:	TR Concrete Pty Ltd & Anor v Ciccone	
MEDIUM NEUTRAL CITATION:	[2023] VCC 2255		

REASONS FOR JUDGMENT
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Subject:	COMMERCIAL LAW
Catchwords: 	Disputed oral loan agreements – Identity of parties to agreements – Account stated – Whether acknowledgment of debt – Agency – Key person not called as a witness – Whether claim or part thereof statute-barred
Legislation Cited:	Bankruptcy Act 1966 (Cth); Limitation of Actions Act 1958 (Vic)
Cases Cited:	Carminco Gold & Resources Ltd v Findlay & Co [2007] FCAFC 194; Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154; Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 185 ALR 152; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Lederberger v Mediterranean Olives Financial (2012) 38 VR 509; Codelfa Constructions Pty Ltd v SRA (NSW) (1982) 149 CLR 337; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76 ALJR 436; Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154; Nurisvan Investment Ltd v Anyoption Holdings [2017] VSCA 141; Watson v Foxman (1995) 49 NSWLR 315; Fox v Percy (2003) 214 CLR 118; Jones v Dunkel (1959) 101 CLR 298; Director, Office of the Fair Work Building Industry Inspectorate v CFMEU [2013] FCAFC 8; York Air Conditioning and Refrigeration v The Commonwealth (1949) 80 CLR 11; Cuthbert v Perrine Architecture Pty Ltd [2014] VCC 59; Ogilvie v Adams [1981] VR 1041; VL Finance Pty Ltd v Legudi [2003] VSC 57; Ingram v Little [1883] 11 QBD 251; Kavia Holdings Pty Ltd v Suntrack Holdings Pty Ltd [2011] NSWSC 716; 1475182 Ontario Inc o/a Edges Contracting v Ghotbi [2021] ONSC 3477; Flinn v Flinn [1999] VSCA 109
Texts Cited:	G E Dal Pont, Law of Agency (Lexis Nexis Butterworths, 3rd ed, 2014); Julian Bailey, ‘Lewis v Wilson: Account Stated Rears its Ugly Head’ (1997) 12 Journal of Contract Law; Peter Handford, Limitations of Actions: The Laws of Australia (Thomson Reuters, 4th ed, 2017)
Judgment:	Parties to confer on orders

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J. Whelen	Russell Kennedy Lawyers	
			
For the Defendant	Mr A. Berger	Peter Falconer & Associates	

HIS HONOUR:

Introduction
1	This case concerns two disputed loan agreements between two families. 
2	The plaintiffs are a company that was engaged in the concreting business and its sole director, Tony Rotiroti (who I will refer to in these reasons as Tony). 
3	The defendant is Carmela Ciccone who will be referred to as Carmela in these reasons.
4	Carmela’s husband Rocco Ciccone, who will be referred to as Rocky, also operated a concreting business known as Lazer Concreting (Lazer). There is a dispute concerning Carmela’s role in the business.
5	During the hearing, counsel referred to the parties and the late Mr Ciccone by their first names for convenience. I will continue that practice without intending any disrespect.
6	It is common ground that Lazer was in financial difficulties in the second half of 2015. It is also common  ground that pursuant to the ‘First Loan Agreement’, or FLA, Tony agreed to allow Lazer to utilise two of his accounts with suppliers. Lazer utilised those accounts by charging them in the amount of $114,222.08. It is not disputed that $2,142.16 was repaid leaving an amount of $112,079.92 owing.
7	The case raises complex factual and legal questions. The evidence took five days and the Court has received detailed written and oral closing submissions from the parties.
8	The central question raised in the proceeding is whether the money was lent by Tony to Rocky and Carmela jointly (as the plaintiff contends) or to Rocky alone (as Carmela contends). Because Rocky died in 2021 before the loan was repaid, the question is important.
9	If the correct position is as Tony contends, there is then a question of whether all or some of his claim is statute-barred under the Limitation of Actions Act 1958 (Vic).
10	Tony makes an alternative case based on the principle of an ‘account stated’. He submits that Carmela acknowledged her indebtedness to him on numerous occasions, most recently in 2021. This part of the claim does not raise a limitations question.
11	It is also common ground that a further sum of $3,340.12 was lent by Tony in August 2017 to pay an outstanding premium owed on Rocky’s life insurance policy. This occurred pursuant to what the parties have referred to as the ‘Second Loan Agreement’ (SLA). The money has not been repaid. Once again, the central question about the SLA was whether the parties to it were Tony and Rocky on the one hand or Tony, Rocky and Carmela on the other. The SLA does not raise a limitation question.
12	The structure of these reasons is as follows:
(a)	Section A sets out some applicable legal principles.
(b)	In section B, I make some general observations about the evidence in the case. Part of this discussion concerns a person who, although important to the narrative, was not called as a witness.
(c)	Section C is concerned with what was referred to in the case as the ‘First Loan Agreement’
(d)	In section D, I consider the evidence of post-contractual conduct and discuss the extent to which this assists in resolving the issues in the case.
(e)	In Section E I consider an alternative case advanced by the plaintiff concerning an ‘account stated’.
(f)	Section F discusses the application of the Limitation of Actions Act 1958 (Vic) to the First Loan Agreement.
(g)	In Section G I consider the ‘Geelong Concrete Pumping’ Debt.
(h)	The Second Loan Agreement is the subject of section H.
(i)	The judgment concludes in section I with a summary of the conclusions and the orders made by the Court to dispose of the proceeding.
A	Legal Principles
13	Tony’s case raises what has been referred to as the ‘simple question as to who, objectively considered, were intended to be the parties to the contract’. As with any question of construction of a contract, determining the identity of the parties requires the court to ascertain what the parties mutually intended. This is a different question to what they each subjectively intended or believed. The belief of one party to a contract about the identity of the other party ‘is a subjective matter, and cannot be taken into account, in accordance with the objective theory of contract, save to the extent that belief has been manifested in his words and actions that are known to the other contracting party’.
14	The task of the court is to consider the matter ‘as a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract’. A court will take into account the commercial purpose and object of the transaction based on an understanding of the background and context in which the parties were operating.
15	The test is an objective one. The legal onus is on the party asserting that a particular party is in fact and law a party to the contract. 
Post-contractual Conduct
16	Because identifying the parties to a contract raises a formation question rather than an interpretation one, post-contract conduct may be able to be considered to ascertain the identity of the parties. This area of the law has been described as unsettled. 
17	In New South Wales, the Courts have taken a ‘restrictive view’ limiting the use that may be made of post-contractual conduct to deciding whether a contract has been entered into at all.
18	However, the position appears to be different in Victoria. In Lederberger v Mediterranean Olives Financial, the Court of Appeal upheld the trial judge’s consideration of post-contractual conduct (the filing of tax returns) in ascertaining the identity of the parties to an investment scheme contract. Pagone J, the trial judge, had relied on evidence of the tax benefits obtained in the years after the contract came into existence.
Co-promisors
19	 Where two people jointly promise to pay a third person, on the death of one of the co-promisors, the surviving co-promisor, but not the estate of the deceased one, is liable on the promise.
20	Where one co-promisor is a bankrupt, the other co-promisor remains liable on the promise and may be sued.
B	The Evidence – General
21	The resolution of the principal issues in dispute turns in large part on evaluating the evidence of witnesses about conversations which occurred up to eight years ago. No records were made of the conversations. None of the participants could have imagined that they would be called upon to relate what was said word for word in a court of law. They had no reason to pay any particular attention to who was saying what. 
22	Without intending any disrespect to those involved, such testimony is notoriously unreliable.
23	A judge called upon to make findings about what was said by people in such circumstances will bear in mind what McLelland CJ in Equity said in the case of Watson v Foxman about the significant challenges presented:
… 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 of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is 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
24	In assessing the credibility of the witnesses, I have taken into account the manner in which they gave their evidence and what is sometimes referred to as their demeanour or appearance. In so doing, I have also followed the observation by three members of the High Court in 2003 that Judges should ‘… limit their reliance on the appearances of witnesses and … reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events’.
The Witnesses
25	It is necessary to make some preliminary observations about the two main witnesses and one person who was not called as a witness.
Tony Rotiroti
26	Tony Rotiroti was an honest witness who did his best to recall relevant events. He gave evidence that he could remember individual occasions when he had discussed financial matters with Rocky, Carmela and Franca. He gave evidence of a number of separate meetings at 53 Barton St and said that he could remember not only who was present but what individuals said. He did this without having any notes or other documents to which he could refer to refresh his memory. I have approached this evidence with some caution as I find it difficult to accept that Tony can now recall, after more than eight years with precision, what individuals at these meetings said. This is not to suggest that Tony was deliberately dishonest but is just a recognition of the passage of time on the human memory and that Tony has an interest in the outcome.
Carmela Ciccone
27	Just as Tony’s precise recollection of the meetings strains credulity so too does Carmela Ciccone’s complete lack of any recollection of most of what occurred at the meetings. Even allowing for her less than perfect English, it is surprising that she recalls so little about what were, on any view, important discussions about the Ciccone family’s financial well-being and their home.
28	Without suggesting Carmela was dishonest, I approach her evidence with caution. As with Tony, Carmela has an interest in the outcome. Where her evidence is contradicted by other evidence, I have generally preferred that other evidence.
Franca Ciccone – was she Carmela’s agent?
29	Franca Ciccone (Franca) is the daughter of the late Rocky and Carmela. She featured heavily in the narrative. She was present for nearly all of the important conversations and meetings. Words were attributed to her by other witnesses and her text messages were included in the court book and were referred to by Tony in his evidence. 
30	Franca sat in court beside her mother for most of the case. The legal implications of her failure to give evidence are discussed later in these reasons. At this point it is necessary to consider the capacity in which Franca made statements and sent text messages. Was she only communicating on her own behalf or was she speaking for her mother?
31	Tony’s pleaded case is that Franca was not only the daughter of Rocky and Carmela but also, ‘at all material times’ their agent. This was denied by Carmela in her defence.
32	Carmela sought further and better particulars of the allegation of agency.
33	Tony’s response to this request was:
(a)	to deny that it was a proper request; and
(b)	to state that ‘the existence of a principal and agent relationship is an allegation of a matter of fact’.
34	In his final submissions, Tony submits that the evidence demonstrates that ‘Rocky and Carmel, over a period of many years, conveyed to the outside world that Franca could say and do things on their behalf’. He further submits that ‘if the evidence discloses that anything of significance was said or done by Franca, especially in writing, she should be treated as having said or done those things as agent for the Ciccones’.
35	In her final submissions, Carmela maintained her position that Franca was not her agent.
36	In response to a question from the bench during oral submissions, Mr Whelen made it clear that Tony’s case is that Franca was the ‘ostensible’ agent for both of her parents. He accepted that there is no evidence of Franca being appointed as her parents’ actual agent.
Ostensible Authority: Legal Principles
37	The doctrine of ostensible authority ‘exposes a principal to liability under a contract effected by a person who lacks actual authority from the principal to effect the contract’. Before this can occur, the principal must have, by words or actions, conferred “apparent” or “ostensible” authority on the person to do so.
38	The effect of an ostensible authority is negative as opposed to positive:
The principal is prevented from denying the agent’s ostensible authority, but cannot rely on that ostensible authority to enforce the contract in question.
39	This is because an ostensible authority, unlike an actual authority:
… creates no direct contractual relationship between the principal and the other contracting party; it operates to prevent the principal from denying that the agent had authority to bind the principal to the (apparent) contract’
40	Ostensible authority is based on the holding out being to ‘the particular individual who says that he relied on it…’. The individual must adduce evidence of having reasonably relied on the representation’.
Ostensible Authority: The Evidence
41	Tony’s evidence was he never received texts or emails from either Carmel or Rocky. Tony said that Franca:
 … was the one who was doing all the admin for [Rocky and Carmela] and she had obviously quite a big say in the business. She had control of all the moneys and the internet banking. I don’t think Rocky and Carmel were up to speed with modern technology. I believe she is pretty tech savvy. So, all of this communication and admin was done through Franca 
42	I accept that Tony was well placed to make this assessment. There is evidence that Franca made transfers of money to him in the course of Lazer’s business and directed him about what accounts to pay her father’s salary into.
43	Carmela was asked about Franca’s role in Lazer. She said that Franca ‘would do what her dad asked her to do’. 
44	There is evidence that third parties other than Tony dealt with Franca acting on behalf of her parents. For example, Mr Cleary, Tony’s accountant said that Franca attended a meeting with him ‘effectively as Carmel’s representative’. Ms Tompkins, a mortgage broker who was acting for Carmel and Rocky ‘mainly liaised with Franca’.
45	Franca completed her father’s bankruptcy state of affairs.
46	There was no suggestion in any of the evidence that when Franca dealt with Ms Tompkins and Mr Cleary that she was doing anything without her parents’ knowledge. It is clear that both Mr Cleary and Ms Tompkins accepted that Franca spoke and acted on behalf of her parents.
Ostensible Authority: Conclusions
47	I do not consider that the position should be any different with Tony. As far as he was concerned, when Franca spoke to him and especially when she communicated with him in writing, Tony had every right to assume that Franca’s parents, as her principals, had conferred ‘apparent’ or ‘ostensible’ authority on her.   
48	I accept that Tony was entitled in his dealings with Franca to proceed on the assumption that she had the authority of her parents to make commitments on their behalf. As the surviving principal, Carmela is prevented by law from denying Franca’s authority.
49	The significance of this for Tony’s various claims against Carmela will be considered at the appropriate juncture later in these reasons.
Franca Was Not Called as a Witness
50	As noted earlier in these reasons, Rocky and Carmela’s daughter Franca features prominently in the narrative of Tony’s financial dealings with the Ciccones.
51	In his final submissions, Tony notes that Carmela did not call her daughter Franca to give evidence and submits that the Court should apply the rule in Jones v Dunkel and:
(a)	conclude that Franca’s evidence would not have assisted Carmela’s case; 
(b)	more confidently draw inferences open to be drawn on the evidence about matters on which Franca could have given evidence; and
(c)	where the evidence of Tony and Carmela is in conflict, and it concerns a matter about which Franca could have shed light, the court can more confidently accept Tony’s evidence.
52	Carmela’s response to this submission was that ‘either party could have called Franca, and so no inference can be drawn against either party’. Carmela relies on the aspect of the rule which holds that if there is an issue between the parties, but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer. She submits that, because Tony has provided no evidence in proof of his case that Franca was Carmela’s agent when dealing with Tony, no question of an inference arises.
Was Franca in Carmela’s Camp?
53	The basal principles of the rule were explained by the Full Court of the Federal Court of Australia in the case of Director, Office of the Fair Work Building Industry Inspectorate v CFMEU:
(a)	the rule in Jones v Dunkel is a principle founded in common sense;
(b)	In some cases, it will be easy to see the witness as equally available to both parties, which view of the world may lead to the conclusion that no inference should be drawn in relation to either; and 
(c)	In other cases, an on-going relationship may continue which may lead to a different outcome.
54	Franca is Carmela’s daughter. She sat with her mother in court throughout the trial. She was clearly in Carmela’s ‘camp’ for the purposes of the rule. While it was of course open to Tony to call Franca as a witness, that is almost always the case in the application of the rule and does not affect the operation of the principle.
55	There being no reason advanced by Carmela as to why she could not have called Franca to testify, and in the absence of the now-deceased Rocky, I accept Tony’s submission about the application of the Jones v Dunkel principles. I conclude that Franca’s evidence would not have assisted her mother’s case and, where there is a basis for drawing an inference in Tony’s favour, I do so more confidently. 
56	However, I cannot and do not use Franca’s absence to fill gaps in Tony’s case. Further, I have borne in mind that the rule does not have the effect ‘… that evidence not called by a party would have been adverse to the party’, but only ‘that it would not have assisted the party’. This distinction is an important one.
C	The First Loan Agreement (FLA) – the pleaded case
57	Tony’s case concerning the FLA was pleaded in paragraphs 5-7 of his FASOC. The case was modified in Tony’s final submissions. It is necessary first to set out the pleaded case:
5	In about mid-October 2015, Rotiroti (alternatively TRC) agreed to advance funds from time to time (the Loans) to Rocco and Ciccone by paying to pay Lazer Concreting’s operating expenses (First Loan Agreement).
PARTICULARS
The Loan Agreement was partly oral and partly performed.
Insofar as it was oral it was constituted by face-to-face conversations in about mid-October 2015 between Rocco and Ciccone, and Rotiroti, (for himself, or for and on behalf of TRC), at the Property during which both Rocco and Ciccone said to Rotiroti words to the effect that they were experiencing financial difficulties, that various creditors of the Lazer Concreting business were threatening to issue proceedings; that they were “black listed” and the Barro Group would no longer supply to them, and that they were in default of their mortgage repayment obligations and were at risk of Perpetual enforcing its mortgage and they wanted to use TRC’s trading accounts to purchase supplies in the short term to enable them to complete jobs.
Insofar as it was performed, the First Loan Agreement was performed by Rotiroti procuring that TRC permit (or by TRC permitting) Lazer Concreting to charge purchases to the TRC trading accounts with the Barro Group and Independent Metal Recyclers, and by TRC paying invoices from Geelong Concrete Pumping addressed to Lazer Concreting.
6	The First Loan Agreement included the following terms:
(a) the Loans would be repaid as soon as possible from the payments they would be receiving from the jobs the Loans would enable the Lazer Concreting business to complete;
(b) if the Loans could not be repaid from the Lazer Concreting business they would be repaid by Rocco and Ciccone by either borrowing against the Property or otherwise selling the Property;
(c) interest would be paid on the Loans;
PARTICULARS
The terms set out in paragraphs 6(a), 6(b) and 6(c) above were oral and constituted by face-to-face conversations in about mid October 2015 between Rocco and Ciccone, and Rotiroti, (for himself, or for and on behalf of TRC), at the Property during which both Rocco and Ciccone said to Rotiroti words to the effect alleged.
In particular:
As to 6(a):
(i) Ciccone said to Rotiroti words to the effect: “As we get the money from the jobs, we’ll pay you”
(ii) Franca, in her capacity as Ciccone’s agent, said to Rotiroti words to the effect: “Don’t worry. As we do jobs, we’ll keep the money aside and pay you back.”

As to 6(b):
(i) Ciccone said to Rotiroti words to the effect: “Even if we have to sell the house and rent, you will get your money”.
(ii) Franca, in her capacity as Ciccone’s agent said to Rotiroti words to the effect that if not repaid by that time, when they sought a loan for an intended extension on the Property, they would seek additional finance to repay the Loans.

As to 6(c):
(i) Franca, in her capacity as Ciccone’s agent, said to Rotiroti words to the effect that it is only fair that they should pay interest on the loan.
(ii) Rotiroti said, in reply to Franca, words to the effect of, “Ok. I’ll pass along the same interest I am paying on the TRC overdraft.”
(d) the Loans would otherwise be repayable on demand; and
(e) Rocco and Ciccone would be jointly and severally liable for the repayment of the Loans.
PARTICULARS
The terms set out in paragraphs 6(d) and 6(e) above are implied to give business efficacy to the First Loan Agreement.
7	Pursuant to the terms of the First Loan Agreement, between 11 November 2015 and 10 November 2016, Rotiroti procured that TRC advance (or TRC advanced) Loans to loan funds totalling $114,222.08 to Rocco and Ciccone.
PARTICULARS
Details of the 29 Loans made by Rotiroti (or TRC) between 11 November 2015 and 10 November 2016 are set out in the attached Schedule A. Each of the Loans was paid from the TRC bank account, being TRC ATF the Rotiroti Family Trust National Australia Bank Overdraft Facility Account BSB 803-646 Account No. 11-978-2038 (TRC Bank Account) either by cheque or electronic funds transfer, on the dates and via the method stated in Schedule A.

58	In his final submissions, Tony did not press the terms pleaded at 6(c) – interest – and 6(e) – joint and several liability.
Background Facts
59	It is to certain objectively established facts about which there is no dispute to which I first turn my attention. They are part of the mutually understood background to the transaction and, in accordance, with the cases discussed earlier in these reasons at [11], are an important part of the context which may be referred to in construing the contract and determining the identity of the parties to the contract.
60	In 2015, one of the local concrete suppliers in Geelong was a company called Barro Group Pty Ltd (Barro). Barro supplies ready-mixed concrete. Tony and his family had been clients of Barro since the 1960s. Both Tony’s company, TRC and Rocky’s business, Lazer, had  accounts with Barro.
61	Tony’s contact at Barro was Mr Maurice Turner. Tony met with Mr Turner monthly for over 20 years. 
62	There was another local supplier to the concreting sector called Independent Metal Recyclers (IMC). IMC supplied steel reinforcement for structural slabs, foundations, and tilt panels. Tony also had an account with IMC.

63	These accounts meant that supplies could be ordered by TRC (and anyone else authorised to use its accounts) and paid for monthly on 30 day terms (instead of ‘cash on delivery’).
Lazer’s financial woes
64	On 17 August 2015, Barro obtained a Magistrates’ Court judgment against Rocky in respect of a debt incurred by Lazer of $17,925. Although the only evidence of this before the court is a record in a ‘Credit File Report for Rocco Ciccone’ dated 25 April 2016, it was common ground in the trial that the judgment related to a debt incurred by Rocky to Barro in the course of his conduct of the Lazer business. Carmela’s evidence was that she was unaware of this.
65	At about this time, Tony came to learn, via his monthly meetings with Mr Turner of Barro, that Mr Turner was concerned about “Rocky and Carmela”. 
66	Mr Turner mentioned his concern on more than one occasion; he did not tell Tony how much they owed to Barro, and Tony did not really want to get involved.
67	At a meeting between Tony and Mr Turner shortly before 20 November 2015, Mr Turner informed Tony that the debt owed to Barro was $20,000. Without any discussion with the Ciccones, Tony volunteered to pay the debt. It is common ground that Tony paid the debt there and then by writing two cheques – one in favour of Barro for the amount of $22,661.48 and the second for $1,196.36 in favour of a Barro subsidiary called Flintstones Garden Supply.
Rocky’s influence over Carmela
68	Carmela explained that, in accordance with her description of ‘Calabrian culture’, Rocky was the head of the family: ‘If my husband say “okay. We’ll have to do that”, I will do it’.
69	Carmela’s unchallenged evidence was that there was a history of Rocky telling her that they needed to re-mortgage the house in times of financial difficulty. Her evidence was that ‘when we couldn’t have enough money, Rocky used to take me to the bank and re-mortgage’. On these occasions, Carmela trusted her husband and would just sign where she was told. She did not read through the papers before signing them and never received any financial counselling.
70	The objective evidence establishes that the Ciccones regularly re-financed 53 Barton St. The title deed records that the Ciccones became the registered joint proprietors of the property in 1979. The title records six mortgages between 1982 and 2000. 

The Meetings leading up to the FLA
71	Much of the oral evidence in the case concerned various conversations and meetings between the parties. At most of the meetings those present were Tony, Carmela, Franca and Rocky. Rocky is now deceased and Franca did not give evidence. The court only heard from Tony and Carmela. Each clearly had an interest in the outcome – they are not disinterested witnesses. Further, there is very little documentation in existence concerning what was discussed and agreed at the meetings. This is of course not surprising as the meetings were informal occasions over coffee between old friends.
72	Tony’s recall of the meetings was vastly superior to Carmela’s. This seems to be acknowledged by Carmela’s counsel whose final submissions were largely based on Tony’s account of the meetings. However, even on Tony’s evidence the precise sequence of the meetings and what was agreed during them is somewhat unclear.
73	This lack of clarity is of course important. Tony’s counsel accepted in his opening submissions that because Tony bears the onus of proof, it is vital that he establish on the civil standard what he claims occurred.
Lazer uses Tony’s Account Three Times
74	The first relevant conversation or meeting was between Tony and Rocky. Carmela and Franca were not present. 
75	The circumstances of that conversation were that some time in the second half of 2015, Rocky told Tony that Lazer was in financial difficulty. Tony said that this conversation took place ‘before I’d come to know of this debt they had’. Tony explained in his evidence that this reference to ‘the debt’ to be the Barro debt. It follows that this first conversation between Tony and Rocky must have taken place before the conversations between Tony and Mr Turner of Barro.
76	Tony’s evidence was that one day out at one of Tony’s jobs that Rocky was helping him with, Rocky said ‘I might have to use your accounts’. At Tony’s suggestion, the two men continued the conversation at Rocky and Carmela’s house where Tony was a frequent and welcome visitor. This was the first meeting at 53 Barton St, the long term home of the Ciccone family.
77	Once at 53 Barton St, Rocky repeated what he had said earlier to Tony. He wanted to get supplies for the Lazer business without having to use his own accounts. His idea was that he use Tony’s account so that Tony would have the responsibility of paying for those supplies within 30 days in line with Barro’s terms of trade. Tony was agreeable: ‘Yeah Rock, why not? As long as you pay me’. Tony said that he would pay the invoice and pass it on to Rocky for reimbursement. It is not suggested that any interest was to be payable.
78	It is common ground that, pursuant to this oral agreement, Rocky used Tony’s accounts on three separate occasions pursuant to this first agreement – on 22 October 2015, on 28 October 2015 and on 6 November 2015. The total value of the supplies charged to Tony’s accounts was $21,994.71.
79	There is no evidence that Rocky had discussed the use of Tony’s accounts with Carmela before raising it with Tony. Nor was it suggested that Carmela was aware of the idea of Lazer using Tony’s accounts. It was never put to her by Tony’s counsel that she was aware of the idea before it was raised by Rocky and Tony in the kitchen of their family home.
80	Nonetheless, Tony maintains that Carmela was a party to this arrangement and is now liable to repay him the sum of $21,994.71.
81	Tony’s case connecting Carmela to this agreement between the two men had two limbs. 
82	First, Tony gave this evidence about the meeting at 53 Barton St:
‘Mr Whelan: What can you remember of that visit?---
Tony: It was a normal visit.  I used to go there often. Um, Rocky and Carmel were there at this stage and during the day, Rocky had asked me about the - my account, if he could use my account. When I got there, he, he said to me, 'I've got to do a job. Um, is it all right if I use your account?' I said, 'Yeah, Rock.' I said, 'Why not?' I said, 'As long as you pay me. I'll give you the bill. Whatever it is, you pay me for it, I'm fine with that.' Carmel was there and she emphasised it. She's gone, 'Don't worry, we'll pay you.' She never ever said no.
83	On the first five lines of this passage of Tony’s evidence, it is clear in my view that he has made an agreement with Rocky. He attributes the following words to Rocky: 
•	I’ve got a job to do;
•	Is it ok if I use your account?
84	In his response to this inquiry, Tony said to Rocky: ‘why not, as long as you pay me’. It is clear that Tony was addressing this to Rocky as an individual. In grammatical terms, Tony’s use of ‘you’ was the second person singular.
85	However, to make his case that the agreement he reached was with both Tony and Carmela, Tony places reliance on the last three lines in the above passage. He submits that when she said ‘we’ll pay you’, Carmela was expressing an intention to be bound contractually along with her husband to repay the proposed loan. 
86	Secondly, according to Tony’s submissions, the evidence establishes that ‘… on each of the three occasions prior to use of the account, Rocky and Carmel requested (by Rocky asking Tony in the presence of Carmel, and Carmel then adding assuring words to the effect that the monies would be repaid), and Tony agreed, that his account could be used’. 
87	I consider that it is significant that this was not Tony’s evidence in chief. While he did give evidence about discussing invoices with Franca, it is clear that these were invoices relating to March 2016 and not October-November 2015. He was referring to his handwritten notes at Court Book 203-207 when he gave this evidence. He said nothing about Carmela’s involvement in the use of his accounts in respect of these three invoices in response to questions from his own counsel (with the exception of the evidence extracted at [79] above).
88	The closest Tony’s evidence came to establishing any discussion about the three October-November invoices involving Carmela was in answer to a question in cross examination. Tony’s evidence was that ‘each of those three occasions [was] at home in front of Carmela’. However, he gave no evidence that Carmela said anything or did anything that might provide a basis for concluding that she was promising to be personally liable for repayment of the $21,994.71. I further note that this was not put to Carmela when she was cross examined.
89	Tony explained the process by which his accounts were used. He said that he had spoken to IMR and Barro in advance telling them that Lazer might be ‘giving you a call’. He accepted that Carmela didn’t make any of those calls.
90	Even accepting Tony’s evidence entirely, I conclude that there is no basis for concluding that Carmela was a co-promisor along with Rocky in respect of this part of Tony’s claim.
91	I am not satisfied in these circumstances that Tony has established that Carmela is liable to him for the money he advanced to Rocky in October and November 2015.
92	Contrary to the way Tony’s case was pleaded, I have concluded that the payment of these three invoices in October and November 2015 preceded what the parties referred to as the ‘big meeting’ that led to the FLA.
93	It is necessary then to examine the evidence of what occurred in the lead up to the FLA.
The Conversation Giving Rise to the FLA
94	According to Tony’s final submissions, the crucial conversation giving rise to the FLA occurred ‘a few’ days after the Barro meeting. This is the meeting that has been referred to as the ‘big meeting’.
95	It became clear in the course of Tony’s evidence that the first three uses by Lazer of Tony’s accounts preceded the big meeting where, on Tony’s case the FLA was reached. This is significant because, even on Tony’s evidence, as noted above, Carmela had little if anything to do with the use of the accounts on those three occasions.
96	On the occasion of the big meeting, Tony responded to a phone request from Franca to come to the Ciccone home.
97	Franca, Rocky and Carmela were home. Because this is the meeting referred to in the particulars in paragraph 6 of Tony’s FASOC, it is necessary to reproduce Tony’s evidence in chief about the meeting in full. 
You said you went around?---I went around to 53 Barton Street. 
Yes?---Where Rocky, Franca and Carmel were there. 
Yes. Can you recall, did they say why you were being asked around?---As I explained before, they'd asked me to come around. Seems it had just, it had come out I paid their bill. If they could use my accounts going forward as they had been blacklisted by the Barro Group. Couldn't get any concrete off them and if they could use my account going forward so they could get back up on their feet.  
Did you remember anything else about that conversation?  Anything anyone said or anything you said?---I did. I  said to them, 'Look, as long as you pay me, as the bills come in, as long as I get paid' and Carmel turned around and goes, 'You will get paid. Even if I've got to sell the house and rent. If it wasn't for you, we would've been out on the street.' 
Is there anything else you remember from that visit? Is there anything else anyone said at that visit?---Just that if they could use my account, that as they do the jobs, I'll get paid. That even if they have to sell the house or go and rent, 'You will get your money.' 
Do you remember anything you said in response to that?---It's been a while, but I do remember saying to them, 'As long as you pay me.'  
Did Rocky speak in this meeting, in this visit?---Very little. Very little. Carmel and Franca were more so speaking and again, I emphasised that they always said to me, 'We will pay you.'  
Do you remember if Franca herself said anything?---Franca had asked me to come around in the first instance and told me that they had been blacklisted and as they do the jobs, they will pay me. I said to them, 'That's fine. As the month goes on, I'll bring you the invoices so you'll see and as long as you pay me.' Carmel turned around and said, you know, 'You know we'll pay you. You're like a brother to us. As long as you don't say anything to my family. I don't want my family to know. I don't want my brothers to know. Promise you won't say anything to them.' So, I was, I was told to be quiet. 
Who were her brothers?---The ones that she was more concerned about was Matt and Ben. But all of them that I can, ah, I can say all of them. 
Do you remember in this meeting her saying why she didn't want you to tell her brothers?---No, she just said that her business is her business and 'I don't want my family to know.' Um, I don't know why the secrets. I don't understand. Um, the embarrassment perhaps. I don't know. She knew I was close with her brothers. 
Is that all you can remember from that visit?---That's all I can recall. All I can recall is them telling me that I will be paid even if they have to sell the house and rent. 'But you will get your money. I'll never forget what you did for us.' 
Yes. So, did you have any more conversations or was that the last conversation about setting up the arrangement? ---At that second visit, that's all I can recall at this stage.
98	A number of features of this evidence should be noted. 
99	First, Tony recalls Carmela and Franca doing most of the talking; Rocky said very little.
100	Secondly, when Franca or Carmela made a request of Tony, it was expressed as ‘could they use my account’.
101	Thirdly, when either Franca or Carmela made a commitment to him it was expressed using the plural ‘we’. This may be contrasted with the use by Carmela of the singular ‘I’ when she told Tony that she did not want her family to know about the arrangement.
102	Fourthly, the repayment term which is pleaded by Tony on the basis of this conversation is that Tony would be repaid from any income Lazer derived from jobs it was able to do as a result of the use of Tony’s account. As Carmela submits, this suggests that Lazer is the primary debtor.
103	Finally, I consider that the various meetings at 53 Barton St to which reference has been made above are best understood as formalising the process initiated by Rocky when he had the informal on-the-job chat with Tony (discussed earlier at [73]). It was on this occasion (in the absence of both Carmela and Franca) that Rocky raised the use of Tony’s accounts by Lazer because the business was in trouble. 
104	I consider that the agreements reached about the use of Tony’s accounts with suppliers were aimed at Lazer being able to trade its way out of trouble. This is the commercial context and purpose of the agreements including the FLA. It is why the question of Carmela’s involvement in the operation and ownership of Lazer is a crucial issue.
Did Carmela Own and Operate Lazer with Rocky?
105	It is to that aspect of the case to which it is necessary to turn. First, it is necessary to recall how the issue was addressed in the pleadings as this was the subject of some dispute in final submissions.
106	In his FASOC, Tony pleaded that Carmela ‘jointly operated the concreting business owned by Rocco and formerly trading as Lazer Concreting …’. In her AD, Carmela denied this and said that Lazer Concreting was at all material times owned and operated by Rocco…’.
107	At paragraph 5(b) of her AD, Carmela pleaded that, as she neither gave nor received from the plaintiff any consideration under the alleged First Loan Agreement, the First Loan Agreement could not be a contract to which she is either bound or a party’.
108	In his Amended Reply, Tony responded to para 5(b) of the AD as follows:
(i)	in consideration for her promise to repay the Loans the first Plaintiff (TRC) agreed to advance money under the First Loan Agreement (the Loans) to herself and Rocco to pay the operating expenses of the Lazer Concreting business (Business); and
(ii)	the Business was owned and operated by the Defendant and her family and she therefore enjoyed the benefit of the Loans.
109	In his final submissions, Tony seeks to downplay this aspect of his case. He submits that his earlier claims that Carmela actually owned or operated ‘Rocky’s business’ were only pleaded in support of his claims for ‘unjust enrichment’ and those claims are now abandoned.
110	However, regardless of the precise position with the pleadings, I am of the view that whether Carmela owned or operated Lazer is an important question because it provides the commercial context in which the FLA was reached.
111	There is no evidence before the court about ownership. I assume that the business had plant and equipment. However, neither party adduced any evidence about this matter. In those circumstances, I conclude that Carmela did not own the business to any extent.
112	On the question of operation, the starting point is the registration of the business name. Lazer Concreting was a business name that was registered to Rocco Ciccone from 2006 until 2018 when the registration was cancelled. Rocky was a sole trader.
113	Further, there is no evidence of Carmela performing any tasks associated with the running of the concreting business.
114	Carmel was asked a series of questions by her counsel about her role in the business:
Did you do any concreting for [Rocky]?---No.  
Did you do any bookkeeping for him - - -?---No.  
Did you do any - write any cheques for him?---No.  
Did you talk with any suppliers?---No. 
Did you go on the computer for him?---No.  
Did you - - -?---I don't know how to use computer anyway.
Did you do any taxes for him?---No. 
Did you do any banking for him?---No.  
Did you ever go to his job sites?---No, very rare. 
Very rarely. Why would you go to a job site?---If I had to ask  him something personal for the family.  
Was that before mobile phones?---Yes.  
But after mobile phones would you visit him on site?---No.  
Did you discuss with Rocco his pricing?---No.  
Did you discuss with him what jobs he was doing?---No.
Did you discuss what jobs he should do?---No

115	There was no challenge to any of this evidence when Carmela was cross-examined. In addition to being unchallenged it is uncontradicted by any other evidence in the case. Further, there is no evidence of Carmela having any skills such as book-keeping which would have enabled her to perform the type of administrative tasks sometimes performed by the domestic partner of a person who is running a business in their own name. 
116	Finally, the unchallenged evidence is that at least some of those tasks were in fact performed by Franca.
117	On the other hand, a number of documents in the file of the mortgage broker, Ms Lyn Tompkins paint a different picture of Carmela’s involvement in the ownership and operation of Lazer.
118	The significance of these documents is two-fold. 
119	First, the source of the information can only be one or more of Franca, Rocco or Carmela or some combination of the three. Ms Tompkins explained that the handwritten worksheet she completed when she first met with the Ciccone family at the coffee shop was based on what she ‘gleaned from my discussions with Franca’. 
120	Secondly, the documents were either signed by Carmela (and her husband) or were completed by Carmela’s agent Ms Tompkins.
121	What the documents record is that Carmela played a role in the business notwithstanding that the business name was only registered in her husband’s name.
122	In answer to a question from the bench, Ms Tompkins stated that there was no benefit to the Ciccones in their dealings with the prospective lending institutions to characterise the business arrangements in this way. I understand this evidence to be that, based on her experience as a mortgage broker, describing the running of the business as shared between the husband and wife did not make it any more likely that the application would succeed.
123	I therefore conclude that the documents record Carmela’s involvement in the business as they do because that is what Ms Tompkins was told by one or more of Franca, Carmela and Rocky.
124	This evidence does not sit all that comfortably with the other evidence discussed earlier that suggests that the business of Lazer was operated by Rocky and Rocky alone and the income from the business was only declared by him as taxable income.
125	Mr Berger, for Carmela, referred to her evidence that she was accustomed to signing legal documents that Rocky told her to sign without first reading them because she trusted her husband. Mr Berger submitted that I should infer that the documents that she signed indicating that she had a role in conducting Lazer should be considered in light of this evidence. 
126	Mr Whelen submitted on Tony’s behalf that I can rely on what is recorded in the documents concerning Carmela’s role in the business ‘because they accurately reflect the true facts’.
Conclusions about Carmela’s Role in the Business
127	On balance, and not without some hesitation, I accept Mr Berger’s submission. I accept that Carmela was a legally unsophisticated person who was very reliant on her husband as evidenced by the history of re-financing the house.
128	Despite the documents that suggest otherwise, all of the other evidence is that Carmela played no role in running the business. 
129	Because I have concluded that the commercial purpose of the arrangement that led to the FLA was to give the business some breathing space and to enable it to trade out of financial trouble, this supports my conclusion that the parties to the FLA were limited to Tony and Rocky. 
130	I accept that Rocky was contractually obliged to repay the loans he received from Tony until such time as Rocky was declared bankrupt. The bankruptcy continued despite Rocky’s death during the bankruptcy. Tony was a creditor identified in the statement of affairs prepared for Rocky by Franca.
131	Rocky’s bankruptcy was discharged with effect from 16 May 2020. As a result, Rocky and his estate were released from the debts.
D	Post-contractual conduct by Carmela
132	Tony also relied on post-contractual conduct by Carmela in support of his case that she was a co-promisor in respect of the FLA along with her husband Rocky. The conduct in question included the efforts by the Ciccones to:
(a)	Refinance their house at 53 Barton Street through Lyn Tomkins, a mortgage broker; and
(b)	Secure money with the assistance of Tony’s accountant, Mr John Cleary.
133	Tony called both Ms Tompkins and Mr Cleary as witnesses in his case. A number of documents in the Court Book were sourced from the files of these witnesses. Because this aspect of the evidence is largely undisputed, it can be summarised quite briefly.
Seeking a Further Loan through Ms Tompkins
134	Tony’s evidence was that an approach from Carmela and Franca led to him making contact with Ms Tompkins who he knew through an acquaintance. Ms Tompkins was a licensed mortgage broker trading as LMT Finance.
135	Carmela disputed this. She said that Rocky asked her to come and see a lady that she now knows was Ms Tompkins. That evidence is consistent with the unchallenged evidence about the history of dealings between Carmela and her late husband concerning financial matters. However, it is unnecessary to resolve this dispute as little turns on it.
136	Tony contacted Ms Tompkins in March 2016 asking if she could help a family he knew very well. He said that the purpose was to help them secure some cash to pay back ‘moneys that he has lent them’. Tony’s involvement ended at that point.
137	Ms Tompkins agreed to help and had two meetings with the family. The first meeting was at Franca’s coffee shop. Present at the coffee shop meeting were Franca and her husband Tony Martino as well as Rocky and Carmela. Ms Tomkins mainly liaised with Franca who was more adept at scanning  documents, emailing, etc than her parents. Ms Tompkins’  authority to act on behalf of the Ciccones was signed by Carmela and Rocky.
138	Ms Tomkins asked Franca to check with the family’s current bank, Resimac, to see if they could ‘get a top up’ from them. Franca came back to Ms Tompkins and said that this could not be done.
139	Ms Tompkins then assisted the family to make a loan application through Homeloans Ltd. 
140	On 19 October 2016 Ms Tompkins was informed that the application was unsuccessful.
141	In February 2017, Ms Tompkins assisted Rocky and Carmela to pursue a further loan through RAMS. This was also unsuccessful. 
Seeking to Refinance through Mr Cleary
142	Tony’s evidence was that in approximately March of 2017, ‘Carmel and Franca and Rocky’ asked him if he could organise a ‘mortgage or a loan to be paid back to me’. He organised a meeting with his accountant John Cleary. Mr Cleary had been Tony’s accountant for many years.
143	Mr Cleary’s evidence was that Tony contacted him and came in to see him with a number of invoices. In his evidence in chief, Mr Cleary said that Tony told him that the invoices recorded amounts that he had ‘lent or paid for on Rocky’s behalf’. Tony told Mr Cleary that Rocky and Carmela were about to lose their house.
144	In cross-examination, Mr Cleary said that Tony told him that he had lent money to ‘Rocky and Carmel’.
145	It is common ground that Tony introduced Rocky and Franca to Mr Cleary at the meeting Tony had organised. Carmela did not attend. Tony’s evidence was that Franca was there ‘on [Carmela’s] behalf’. Mr Cleary’s evidence was also that Franca was there ‘as Carmel’s representative’.
146	Carmela disputed this. She said she knew nothing of the meeting. She was not asked to attend and did not ask Franca to attend on her behalf.
147	At the meeting, there was a discussion about the need to secure Tony’s position. Franca and Rocky expressed their gratitude to Tony for saving the house.
148	After the meeting, on 24 March 2017, Mr Cleary made contact first by phone and then by email with a solicitor to pursue a second mortgage. The contents of the email are significant and it is therefore necessary to reproduce those parts of the email that are relevant:
Hi Cain
Thanks for the discussion on Wednesday.
I met with our client Tony Rotiroti and his friend Rocco Ciccone to discuss a debt rocky has to Tony’s family trust.
The debt is $97,319.84 with interest of about $14,000. The debt has arisen mainly from both Tony allowing Rocco to use his trading account at suppliers and Tony paying debts for Rocco….
Rocco operates his business as a sole trader and has potential to be sued over past work that he has performed.
Rocco has a 50% interest in a house ($480,000) with his wife. The current debt against the house is about $250,000.
Rocco has requested that a second mortgage be taken out over the home to protect Tony’s interests. It is unsure how and when Rocky will be able to repay Tony.
…
149	In cross-examination, it was put to Mr Cleary that he had expressed the debt as Rocco’s rather than Rocco and Carmela’s because it was a business to business loan and the ABN was in Rocco’s name. Mr Cleary’s unconvincing response was that he had drafted the email in that way ‘for an ease of facilitation’.
150	While Mr Cleary was generally an honest witness, he left me with the impression that he was trying to assist Tony in his case. He clearly understood that Tony had to prove that the debt was owed to him by Carmela and at times his evidence was strained to help Tony prove this. This answer was such an occasion.
151	I conclude from Mr Cleary’s evidence, and especially this contemporaneous email, that Tony’s instructions to Mr Cleary were that the debt was owed to him by Rocky alone and not by Rocky and Carmela. While Rocky was alive and had not been declared bankrupt and had a valuable asset in the form of his half share of the property, there was no reason for Tony to claim that Carmela was also indebted to him and he did not. It has only been since Rocky passed away that Tony has made this claim.
152	To the extent that post-contractual conduct by the parties is relevant in identifying who the parties to the FLA are, this conduct by Tony (i.e. the instructions I consider he must have given to his accountant) are more consistent with Carmela’s case than Tony’s.
153	What Mr Cleary wrote in his email was consistent with the business being Rocky’s business. I infer it was also consistent with what was said to Mr Cleary during the meeting.
154	As it transpired, the pursuit of the second mortgage by Mr Cleary went nowhere for reasons that Mr Cleary does not now recall.
Submissions about Post-contractual Conduct
155	Neither party submitted that the evidence of post-contractual conduct was inadmissible in relation to identifying the parties to the FLA. That may be because it cuts both ways.
156	Tony submits that ‘the Ciccones’ post-contractual conduct points one way: it supports the conclusion that Carmel was a party to the [FLA]’.
157	In his final submissions Tony asks the rhetorical questions – ‘why else would the family have been trying to refinance 53 Barton St in March 2016 by putting Carmel forward as a joint applicant with Rocky?’ and ‘Why else would the family have been investigating a second mortgage with Mr Cleary?’.
Conclusions about post-contractual conduct
158	The answer to both of these question may be that the refinancing could not occur without Carmela’s involvement as she had a 50% share in the house. This evidence must be considered in light of Carmela’s unchallenged evidence about the history of mortgages over the house at times of financial difficulty where the pattern was Rocky told her they needed to refinance and she did what he wanted.
159	I consider that this evidence is largely neutral on the identity of the parties to the contract. With one exception, it is equally consistent with Carmela being a party and with her not being a party. That exception is what Mr Cleary recorded in his email extracted at [148] above. That evidence tends if anything to undermine Tony’s case and supports Carmela’s.
160	On balance, I conclude that Tony’s case is not advanced by the post-contractual conduct and that conduct ultimately provides little assistance in resolving the primary issues in the case.
E	Account Stated
161	As an alternative to his contract claim in respect of the FLA, Tony relies on an ‘account stated’. He submits that Carmela, on more than one occasion, acknowledged her debt to him. The occasions on which Tony relies are listed in his final submissions. They include the kitchen table conversations in which, according to Tony, Carmela told him that he would be repaid the money he was owed.
162	The most recent occasion on which Carmela is said to have acknowledged her indebtedness was the Christmas 2021 ‘Ricciardi conversation’. I accept Mr Ricciardi’s evidence that Carmela had said to Tony during this call words to the effect that she knew she owed him the money; she could not presently pay him; but one day when her father died, if she had any money she would be happy to pay him back. 
Account Stated: Legal Principles
163	The law concerning an account stated is clear as appears to be accepted in the submissions of the parties. 
164	As Williams J explained in York Air Conditioning and Refrigeration v The Commonwealth, both ‘the admission of liability and the amount due must be absolute’. In that case, a letter which did not context certain statements of account in a letter of demand and proposed a meeting to discuss repayment was not considered to be an ‘absolute’ admission’.
165	It is well established that ‘an account stated must relate to a specific sum of money’. This is referred to in the authorities as the ‘sum certain’ principle. It does not lie in respect of an unliquidated amount.
Account Stated: Conclusions
166	While some of Carmela’s communications, including the Ricciardi conversation, involved an absolute admission of her indebtedness to Tony, on no occasion did she state an amount that she owed. The authorities make clear that this is a mandatory requirement. I do not accept that Carmela on any occasion relied upon made a sufficiently clear acknowledgement of the amount of her debt. In these circumstances, this aspect of the claim cannot succeed.
167	I do not accept Tony’s submission that such a finding represents the triumph of ‘form over substance in a way that ignores the admitted reality of the situation’. On the contrary, it represents a straightforward application of the agreed legal principles to the facts concerning the FLA as I have found them.
F	Is Tony’s claim statute barred anyway?
168	If, contrary to the findings I have made, Carmela was a party to the loan agreements, is the claim statute-barred in any event?
169	Carmela contends that, if she is found to be a party to the FLA, the bulk of the claim was brought outside of the applicable limitation period and is therefore statute-barred. Specifically, Carmela submits that all but $10,307.88 is barred. That was the amount Tony paid on 13 September 2016 in respect of the Geelong Concrete Pumping invoice. 
170	Section 5(1)(a) of the Limitation of Actions Act 1958 (Vic) (LAA) provides that an action founded on a simple contract must be commenced within six years of the date on which ‘the cause of action accrued’. The proceedings were commenced by the filing of a Writ on 19 August 2022. It follows that 19 August 2016 was 6 years prior to the commencement of the proceedings.
171	The parties disagree about the operation of the limitation period in two respects which will be addressed in turn.
172	The first disagreement concerns whether the FLA is properly characterised as a loan re-payable on demand (as Carmela contends) or a loan re-payable on the occurrence of a specified event (as Tony contends). As will be seen the answer to this question is relevant to the question of the date upon which the cause of action accrued for the purposes of s 5 of the LAA.
173	The second disagreement only arises if the first is resolved against Tony. It concerns the operation of ss 24(3) and 25(1) and of the LAA. Tony submits that the limitation period re-commenced on 22 August 2017 when Carmela’s debt to him was acknowledged on her behalf in a text message sent to Tony by Franca.
Was the First Loan Re-payable on Demand?

174	It is trite law that where there is a loan of money by A to B, in the absence of a contrary agreement, the money is repayable instantly or ‘on demand’. The relevant principle was explained by Fullagar J in the case of  Ogilvie v Adams:
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 indebitatis 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
175	In such a case, the limitation period begins to run from the time the money is advanced.
176	Turning to the present case, Tony pleaded in his Reply that:
(a)	‘it was not until it was determined that the Loans could not be repaid from the Business was the Plaintiff’s right to demand payment from Rocco and the Defendant enlivened’ and 
(b)	‘Only upon Rocco’s Debtor’s Petition being accepted and him becoming a Bankrupt on 15 May 2017, was the right to demand enlivened’.

177	It is therefore Tony’s case, as I understand it, that the contract with Rocky and Carmela contained a term that took it outside of the default position described in the case law. In other words, the contract contained a term that Tony could not make a demand for repayment until an event occurred (to paraphrase Nettle JA). However, my understanding of the line of authorities discussed by his Honour is that the parties must specify, in advance, at the time of making the contract, either a date or an event which once passing or occurring, will trigger the entitlement to demand re-payment. On Tony’s case that did not happen here. The ‘event’ being the acceptance of the Bankruptcy Petition was not in anyone’s contemplation in October-November 2015 when the contract was made. 
178	I therefore conclude that, even if I am wrong in concluding that Carmela was not a party to the FLA, there was nothing about the FLA which took it outside the default position. Time began to run against Tony in relation to the FLA (in respect of all except $10,307.88) more than six years before he filed his writ. That part of his claim is therefore barred by reason of s 5 of the LAA.
An Acknowledgment of the Debt?
179	Tony’s alternative case on the limitations question was first advanced during the trial when he was given leave by me to amend his Reply. It raises the question of whether a text message that Tony says he received on 22 August 2017 was an acknowledgment by Carmela that she was indebted to him within the meaning of s 24(3) of the LAA. That in turn raises two sub-questions:
(a)	Was Franca Carmela’s agent within the meaning of s 25(1) of the LAA?;
(b)	If so, was the text message ‘in writing and signed’ within the meaning of s 25(1) of the LAA?

Was Franca Carmela’s agent?
180	Section 25(2) of the LAA provides that an acknowledgement of a pecuniary claim ‘may be made by the agent of the person by whom it is required to be made’ under s 25(1).
181	Earlier in these reasons I have concluded that Franca’s role on behalf of both of her parents was that of an ostensible or apparent agent although she had not been expressly appointed as their agent.
182	Mr Berger submitted that such a finding, if made, would be insufficient for the purposes of s 25(2) of the LAA because the word ‘agent’ is limited to an appointed agent. The submission was that because important legal rights are affected by the operation of s 25(2).
183	The word ‘agent’ is not defined in the LAA. According to a leading text, ‘the ordinary principles of agency determine who is an agent for this purpose’. The author goes on to state that an agent, for this purpose must be ‘duly authorised’. As noted, I have concluded that Franca was not expressly authorised but that her status as agent was apparent or ostensible to Tony. I therefore conclude that Franca was not Carmela’s agent for the purposes of acknowledging any debt that Carmela may have had to Tony. If I am wrong about this, I will briefly consider the other requirements of the section.
Was the Text Message ‘in Writing and Signed’?
184	While it is strictly unnecessary for me to consider this issue, I will address it briefly in deference to the submissions made by counsel.
185	There is no dispute that the text message identified by Tony was ‘in writing’.
186	However, it was not signed by Franca. Franca did not even include her name at the foot of the message as she did on other occasions.
187	The requirement for an acknowledgement to be signed has historically been strictly enforced. For example, an unsigned acknowledgement will be ineffective even if accompanied by a letter saying the acknowledgment was written at the direction of the acknowledger.
188	Tony’s final submissions contained references to cases in which courts had adopted a flexible approach to the meaning of a ‘signature’ in other circumstances. For example, in Kavia Holdings Pty Ltd v Suntrack Holdings Pty Ltd, Pembroke J accepted that the inclusion of the sender’s name on an email amounted to ‘signing’ for the purposes of a contractual clause which provided that a notice under the contract ‘may be signed’. However, that was quite a different case. Here the statutory requirement is clear (and mandatory) as is the apparent policy of requiring a degree of formality given the significant implications for legal rights of an acknowledgement.
189	Counsel for Tony also referred the court to a judgment of a single judge of the Divisional Court of the Superior Court of Justice in Ontario. The case concerned a very similarly worded provision to s 25(1) of the LAA. Boswell J accepted that the section did not prescribe ‘any particular type of signature’. His Honour observed that ‘the world is changing’ and ‘we live in a digital world now’. On the facts, there was ‘no question’ that the person to whom the message was attributed was that person.
190	This court is of course not bound by that decision. In the absence of binding (or even persuasive) Australian authority, and given the statutory context under consideration, I am not prepared to accept that a text message without the name of the author is a ‘signed’ acknowledgement of a debt for the purposes of the LAA.
Conclusion on the LAA
191	In conclusion, as Tony has not satisfied me that either of his replies to the limitation defence are made out, I confirm that, even if I accepted his primary arguments concerning the contract or account stated, other than the GCP claim and the SLA, his claims against Carmela were commenced outside the limitation period of six years.
G	The Geelong Concrete Pumping debt
192	The evidence about one particular debt stands apart from the others which Tony has grouped as part of the FLA. 
193	That is because I have concluded that it did not arise from Lazer’s use of Tony’s accounts with Barro or IMR.
194	The evidence is that Tony found out in September 2016 that a supplier called Geelong Concrete Pumping (GCP) was pursuing Rocky for payment. Tony’s contact at GCP was Paul Willard. Mr Willard told Tony that he had not been paid by Lazer despite being reassured by Franca that he would be.
195	Once again Tony visited the Ciccones at 53 Barton St to discuss the debt. His evidence was that, after he told them that it was not right that the GCP bill had not been paid, Carmela said ‘can you play it please?’ and ‘if you pay, we’ll fix you up at the end’. Tony also said that ‘they said “please we’d be grateful if you paid it for us”’. Tony did not say that Mr Willard was present.
196	Tony paid the bill of $10,307.88 on 13 September 2016.
197	Carmela’s evidence was that this bill was the subject of a discussion between Tony, Rocky and Mr Willard at 53 Barton St. She overheard but did not participate in the discussion. She denied having asked Tony to pay the bill.
198	It was not put to Tony by Mr Berger that Mr Willard was present during this conversation. Carmela’s submission on this point is that Tony’s evidence ‘implies that Mr Willard was also there.’ I do not accept this. Tony was quite clear about who was present – Rocco, Carmela and Franca. There is no room for any implication about Mr Willard’s presence.
199	In her final submissions about the GCP payment, Carmela concedes that the evidence may demonstrate a joint promise on the part of Rocky and Carmela to repay Tony. She submits that this is the ‘only possible payment that [she] could be liable for’. However, Carmela submits that any repayment term is unclear.
Conclusion regarding the GCP payment
200	I accept Tony’s evidence that, during an informal meeting at 53 Barton St in about September 2016, both Carmela and Rocky asked him to pay this bill and said that they would pay him back. Carmela’s evidence about this meeting is problematic. I find that Mr Willard was not at the meeting and the failure of Mr Berger to put to Tony that he was suggests that this is a matter that Carmela made up. 
201	For the reasons I have earlier explained, I have trouble accepting Carmela’s evidence where it is contradicted by other cogent evidence. Tony’s account of the meeting is cogent. 
202	Further, it is common ground that Franca was at the meeting. Her failure to give evidence about what was said enables me to infer, for the reasons explained at [52] that her evidence would not have assisted her mother’s case. It also enables me to accept Tony’s evidence about the meeting with greater confidence.
203	For these reasons, I find that, at the very least, Rocky made a request of Tony that he pay the bill and committed to pay him back in Carmela’s presence and she assented to it. Any promise made by Rocky in respect of the GCP bill was made with Carmela’s ‘knowledge, consent and authority’. This is sufficient to make Rocky and Carmela co-promisors in respect of the GCP bill. For the reasons explained at [16], her promise survives the death of her co-promisor Rocky and is unaffected by Rocky’s bankruptcy.
204	There was no evidence that Carmela promised to use 53 Barton St to repay this loan.
205	Finally I note that it is no part of Carmela’s case that the GCP payment is statute-barred.
H	The Second Loan Agreement (SLA)
206	It is common ground that on 22 August 2017, within a fortnight of Rocky being diagnosed with cancer, Franca texted Tony asking him for help with paying for her father’s life insurance policy. 
207	Tony immediately responded by once again visiting 53 Barton St. He was asked about that visit:
Who was there?---The whole family was there. So, Franca with her husband and kids, Carmel and Rocky. 

What happened?---They were having dinner at the dinner table and I sat down and I said, 'Look, I can't stay. I'm going to Nat's. I'm already running late.' I didn't know what it was all about. But in this conversation, I get handed an insurance policy.
 
Can you please be taken to court book 613. Is that what you're talking about?---It is.
 
What is that document? What is that photo?---That's, I took a photo because they kept the original. So, I took a photo of that with the bpay and everything that's on their. They asked me - - -
 
Do you recall - - -?---They asked me to - - - 

Sorry?---They handed it to me and they asked me to pay it, if I could pay it. By this time, my, my jaw had dropped. You know, I was, I was struggling financially and, um, Franca gave it to me and said, 'Can you, can you fix this up?’ Carmel's to my left and I, I, I didn't know what to say. I just said, 'Do I have a choice?' She said, 'Not really. Seeing as you've paid everything else, you can put this on the tab. We'll fix you up at the end.' I didn't know what to say. I was running late, so I took a photo of it. I left there. I went to Nat's. I had dinner.

Just before you get there, do you recall anyone else speaking? ---Carmel was indebted. She was, it was just a theme. It was a repeated thing. 'Thank you.' You know, 'If you can pay it.'
Franca goes, 'At least we've got something there as a backup.' I didn't really want to say too much because I knew what it was. The late Rocky was, you know, sitting at the end of the table. I didn't want to make too much of a scene. It, it was a little bit confronting. I was already overwhelmed. Then I, I, I just didn't know how I was going to do it, but I ended up paying it
208	The letter handed to Tony was dated 29 July 2017 and was addressed to Rocky. It was from AIA Australia Ltd. The letter stated that the monthly premium of $835.03 for Rocky’s life insurance policy which was due on 26 May 2017 had not been received. Rocky was informed that his policy had lapsed but could be reinstated if the premiums were brought up to date.
209	There is a handwritten note on the letter which states ‘$835.03 monthly; June, July, August, September; $3,340.12’. The handwriting was identified by Carmela as Franca’s.
210	Carmela recalled the occasion and recalled that Rocky had asked Tony to pay the insurance premium. She accepted that Franca may have said something about ‘putting it on the tab’. 
211	Carmela claimed to have been unaware that the life insurance policy was about to lapse. This is not easy to accept. The policy was one of the few assets that she had and her husband had just been diagnosed with cancer. It seems likely that a family discussion involving Carmela, Rocky and Franca had precipitated Franca’s approach to Tony in the text message.
212	It appears that Tony attributed the comment ‘you can put this on the tab’ to Carmela. Having seen Carmela giving evidence over two days, this type of idiomatic expression in English is not something she would use in my view. I do not accept that Carmela said this and I note that she thought Franca may have said it. I consider Tony may be mistaken in his recollection and that Franca said words to this effect during the dinner table conversation.
213	As with much of Tony’s evidence about conversations at 53 Barton St he did not identify individual speakers. For example, his recollection was that ‘they’ asked me to pay it. This is not a criticism of Tony but merely a recognition of the difficulties of recalling with precision conversations that occurred six years ago. It is an example of the fallibility of human memory discussed in the case of Watson v Foxman (see above at [20]).
214	It is common ground that Tony paid the premium in full later that night. He sent a message to Franca advising her of this at 10.33 pm on 22 August 2017. 
215	There was then an exchange of messages between Franca and Tony upon which Tony places much reliance. The relevant parts of the exchange were as follows:
Tony:	‘… I said to you and your family I don’t have much but with what little I have I hope it helps and maybe one day it’ll pay off. I hope all goes well for your father’.
Franca:	‘Your help has gone above and beyond and we can never thank you enough. It will be repayed [sic] maybe not now but One day. Definitely never forgotten.
216	It is not in dispute that Carmela ultimately claimed the insurance payout after Rocky’s death. She was paid out a lump sum of ‘$ 700,000 or so’.
217	Tony’s submissions about this evidence are that it makes out his case about the SLA which included terms that both Rocky and Carmela promised to repay him $3,340.12. Tony submits that the text message from Franca -  ‘it will be repayed maybe not now but One day’ – ‘properly construed in light of the surrounding circumstances, was an acknowledgement of liability in respect of  was all the help the plaintiffs had provided – in other words it was on “the tab”.
218	As noted earlier, Tony’s case is that Franca was acting as agent for both of her parents when:
(a)	She asked Tony by text to help with the premium;
(b)	She asked Tony to put it on the tab;
(c)	She told Tony that ‘we’ll fix you up in the end’
(d)	She told Tony by text that he will be ‘repayed’.
219	This is an important part of Tony’s case in respect of the SLA.
220	I have concluded earlier in these reasons that Franca was Carmela’s ostensible agent in her dealings with Tony. Carmela is therefore prevented from denying that Franca had authority to bind her contractually.
221	Carmela submits that there was no contract because there was no express promise to repay. I reject this. I consider that Franca twice promised to repay the money – once orally during the dinner table discussion and once in the text message later that evening. These promises were made for Carmela (and Rocky). 
Conclusions about the SLA
222	With the exception of the attribution to Carmela of something I think Franca probably said, I largely accept Tony’s evidence about the conversation at 53 Barton St on 22 August 2017. Once again, Franca’s absence adds to my confidence in doing so.
223	I also accept Tony’s submissions about the legal position. There was a contract between Tony on the one hand and Carmela and Rocky on the other hand as pleaded by Tony. After Rocky’s death, Carmela remains liable for the entire debt.
224	There is no suggestion that the SLA is statute-barred.
I	Summary of Findings and Orders
225	I have concluded that Carmela is liable to Tony in respect of two debts:
(a)	The Geelong Concrete Pumping debt of $10,307.88; and
(b)	The SLA debt relating to the insurance premium in the amount of $3,340.12.
226	I otherwise dismiss Tony’s claim including that part of his claim that sought orders in relation to Carmela’s interest in 53 Barton St.
227	I direct the parties to confer about the form of final orders including interest and costs in an effort to agree upon orders giving effect to this judgment. If they cannot agree on any aspect of the final order, then by 10:00 am on 14 December 2023, each party is to file with my chambers and serve a written submission setting out the final orders agreed upon and those which are sought and the reasons in support together with any supporting material. The submissions are not to exceed five A4 pages with minimum 12 point typeface and 1.5 spacing. 
228	Unless I consider it necessary, I propose to determine the question of final orders and costs on the papers without an oral hearing.
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Certificate
I certify that these 49 pages are a true copy of the judgment of His Honour Judge Rozen delivered on 7 December 2023.
Dated: 7 December 2023
											Andrew Morrison
Associate to His Honour Judge Rozen