JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION	:	PERTH

CITATION	:	TREVOR -v- LOW [2000] WADC 212

CORAM	:	NISBET DCJ

HEARD	:	14 AUGUST 2000

DELIVERED	:	24 AUGUST 2000

FILE NO/S	:	CIV 4342 of 1999

BETWEEN	:	GARY JOHN TREVOR
Plaintiff
 
AND
 
JENNIFER ELIZABETH LOW
Defendant 

Catchwords:
Practice and procedure - Summary judgment - Appeal from Deputy Registrar's refusal to enter - Respondents' defence inherently incredible - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed - Summary judgment entered

Representation:
Counsel:
Plaintiff	:	Mr J Hanly
Defendant	:	Ms S Richardson
Solicitors:
Plaintiff	:	Hotchkin Hanly
Defendant	:	Williams & Co

Case(s) referred to in judgment(s):

Banque de Paris et Des Pays‑Bas (Suisse) SA v Costa de Naray [1984] 1 Lloyd's Rep 21
Dewar v Dewar [1975] 2 All ER 728
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331
Fancourt v Mercantile Credit Ltd (1983) 154 CLR 87
Hunt v Knabe (No 2) (1992) 8 WAR 96
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
National Westminster Bank PLC v Daniel [1993] 1 WLR 1453
Webster v Lampard (1993) 177 CLR 598

Case(s) also cited:

Cordinup Resorts Pty Ltd & Ors v Terana Holdings Pty Ltd (1997) 143 FLR 18
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Heydon v Perpetual Executors Trustees and Agency Company (WA) Ltd (1931) 45 CLR 111
Jenkins v Wynen [1992] 1 Qd R 40
Motor Auction Pty Ltd & Anor v John Joyce Wholesale Cars Pty Ltd & Ors (1997) 138 FLR 118
Perpetual Trustee WA Ltd v Goyder, unreported; SCt of WA; Library No 990138; 24 March 1999

1	NISBET DCJ:  By his statement of claim issued with his writ of summons out of this Court on 23 November 1999 the plaintiff claimed from the defendant the total sum of $70,930.  Of this sum $70,000 was said to have been advanced by seven payments of $10,000 each made 9 May 1995, 8 June 1995, 10 July 1995, 15 August 1995, 15 October 1995, 19 February 1996 and 25 May 1999.  The $930 was said to have been advanced by the plaintiff to the defendant on or about 14 April 1999 in Melbourne for the purchase of two ceramic figurines.  The plaintiff claimed that all of these amounts were loans.
2		Further, the statement of claim pleaded that the plaintiff made a demand for repayment of the loans by letter dated 8 July 1999 in consequence of which the defendant drew a cheque for the sum of $10,150 representing the sum of $10,000 borrowed 25 May 1999 and interest, and presented it to the plaintiff.  The plaintiff presented the cheque for payment on or about 13 August 1999 and it was dishonoured.
3		The plaintiff applied for summary judgment by summons dated 14 January 2000 supported by an affidavit sworn 23 December 1999.  The defendant opposed the application for summary judgment and filed an affidavit sworn by her 8 February 2000.  In this affidavit the defendant claimed that all of the advances of money by the plaintiff to her were by way of gift.
4		In determining the summary judgment application the Deputy Registrar entered summary judgment for the plaintiff in the sum of $10,150 together with interest thereon at 6 per cent per annum from 13 August 1999 (ie the Supreme Court rate on judgments) and granted the defendant unconditional leave to defend the plaintiff's claim as to the balance.
5		By notice of appeal filed 25 February 2000 the plaintiff appeals from the Deputy Registrar's refusal to enter summary judgment in respect of $60,000 of the balance of his claim, conceding that there was an arguable case in respect of his claim for $930 advanced in respect of the purchase of the figurines from the art gallery in Melbourne.
6		An appeal from a Deputy Registrar to a Judge of this Court is a review de novo:  Hunt v Knabe (No 2) (1992) 8 WAR 96; Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.  The plaintiff filed a further affidavit sworn 19 May 2000 which provided considerably more detail of the nature and circumstances in which he paid the $60,000 to the defendant.  The defendant responded with a further affidavit sworn 8 August 2000.
7		In his affidavits the plaintiff proves that he advanced the sum of $60,000 to the defendant by the first six payments of $10,000 detailed above.  In her affidavits the defendant acknowledges receipt of the six payments of $10,000 each and deposes in her affidavit sworn 8 August 2000 that she received these payments in the following circumstances:  she and the plaintiff commenced a personal relationship in or about November 1990 at which time she was 29 years of age and employed as a chartered accountant by the firm in which the plaintiff was a partner, namely Ferrier Hodgson.  It is not clear but it seems that the plaintiff was at that time separated from his wife of some 20 years and the defendant was a single woman.  Some time in early 1995 the defendant decided to leave Ferrier Hodgson and commence practice on her own account which she did on 8 May 1995.  Taking up the narrative from par 4 of the defendant's affidavit sworn 8 August 2000 the defendant deposed:
"Prior to starting my business, I prepared some figures on my expected cash flow requirements, which I discussed with Trevor.  In early May 1995 Trevor said to me words to the effect 'Would $10,000 help?'  I said to him words to the effect 'Yes that would be wonderful'.  A day or two later, Trevor gave me a cheque in the sum of $10,000 ('the first payment').  I accepted the first payment as a gift from Trevor.  Trevor and I did not have any other discussions about the first payment at that time or at all until after our personal relationship ended on the 7th July 1999.  Trevor did not say the first payment was a loan or that I was to repay the first payment. ….
6.	On five further occasions in the months following the commencement of my business, Trevor again offered me the sum of $10,000 ('the further payments') to help me with my cashflow.  Trevor and I had little discussion about the further payments that he gave me.  He said to me on each occasion words to the effect 'Would a further $10,000 help?'  I accepted the further payments as a gift from Trevor."
8		In my opinion the defendant fails at the threshold.  If these are the only words upon which she relies to establish that the six payments of $10,000 each made by the plaintiff to her were gifts, and I can see no others upon which she relies anywhere in her affidavits, then these words are inadequate to confer a gift.  In order to establish a gift between strangers firstly the gift must be by way of either deed or delivery, secondly there must be a clear and distinct act of gift, and thirdly evidence that a gift was intended by the putative donor:  Halsbury's Laws of England 4th ed vol 20 (re-issue) paras 1, 2 and 5.  The intention of the donee of a gift to receive moneys advanced as a gift are not relevant because a gift is effective when a donor intends to make a gift and the donee receives the thing given and keeps it, knowing that he or she has it:  Dewar v Dewar [1975] 2 All ER 728
9		There is another obstacle for the defendant.  Following the collapse of the personal relationship of the parties on 7 July 1999 the plaintiff wrote to the defendant requesting the repayment of all of the money he had advanced to the defendant.  In his affidavit sworn 19 May 2000 the plaintiff thought that that demand was made together with interest (par 14 refers).  He did not keep a copy of that letter.  The defendant did and it is exhibited to her affidavit sworn 8 August 2000.  It reads as follows:
"Dear Madam
I refer to our telephone conversation of yesterday afternoon where-in you confirmed that you would repay the loan funds I had provided to you today.
When the cheque is ready for collection please telephone Ms L Robinson of this office to arrange pick up."
10		The defendant's response of the same day reads as follows:
"Dear Gary
Repayment of loans
I refer to your letter of even date.
Please find enclosed a cheque for the sum of $10,150 being repayment of the $10,000 borrowed on 25 May 1999, plus interest.  Please note that the cheque is dated for tomorrow and I ask that you wait until tomorrow before presenting the cheque.
With regard to the initial loan of $60,000 unfortunately I am not in a position to repay this loan immediately.  I had not anticipated the immediate call-up of this loan and as you are aware, I have recently re-mortgaged my house to the maximum to settle the dispute with my former partners.
I am aware that you wish this loan to be repaid as soon as possible and will make every endeavour to do so.  As a minimum repayment schedule, I will ensure that I make a payment of $5000 per month until the balance plus interest is cleared.  If I am able to clear the balance sooner, I will do so.
I hope the above arrangement is acceptable to you."
11		On any interpretation this is a clear admission by the defendant of her indebtedness to the plaintiff for the sum of $70,000.  It is particularly noteworthy that interest was offered and paid in respect of $10,000 of the borrowed money, when it had not been sought by the plaintiff.
12		The defendant seeks to distance herself from the clear and unequivocal admissions in this letter in par 16 of her affidavit sworn 8 August 2000 wherein she deposes:
"I referred to a 'loan of $60,000' and '$10,000 borrowed' in my letter in response to the description Trevor used in his discussion with me on 7 July and his letter of 8 July and because, although the first and further payments were not loans but gifts in the course of our relationship, I intended to return at least part of those gifts when I was able to, as our personal relationship had ended.  I also did not want to further inflame the situation between us by referring to the payments as a gift.  I was feeling frightened of Trevor at that time.  There had been a terrible row between us on the previous day when we had ended the relationship.  Trevor had broken the front windows of my house and had pounded the rear of my car with his fist.  I had never seen him in such a state."
13		In my opinion this explanation is highly incredible.  The papers disclose that the defendant is a mature woman approaching 40 years of age with many years experience as a chartered accountant.  I was informed by counsel for the plaintiff without demur by counsel for the defendant that the defendant is on the Supreme Court list of approved company liquidators.  I can safely infer that in her work as a chartered accountant, on innumerable occasions she would have drawn accounts which contained references to loan accounts.  She would have known the difference between a loan and a gift.  She would have known the difference between a legal and a moral obligation.  By stating that she simply used the language of the plaintiff in reference to these moneys as loans when they were truly gifts because of the difficult situation existing between her and the plaintiff at the time does not withstand close analysis.  Why would her position have been any worse had she told the truth as she alleges it to be?  Namely that she regarded these advances by the plaintiff as gifts but having regard to the fact that they were made in pursuance of a personal relationship she felt a moral obligation to repay them and she would?  What difference would that make to the plaintiff when obviously all he wanted was his money back?  It seems to me that the defendant has no answer to these questions.  Putting the matter as plainly as I can, I do not believe the defendant.
14		I appreciate that the test in determining whether or not to enter summary final judgment is one which requires me to find that there is no real question which ought to be tried:  Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; Fancourt v Mercantile Credit Ltd (1983) 154 CLR 87; Webster v Lampard (1993) 177 CLR 598.  The matter which calls for consideration is whether the defendant can show a reasonable defence to the action or if there is an issue or question in dispute which ought to be tried or that there ought for some other reason be a trial of the claim:  Dey, Fancourt and Webster (supra).  Where however there is a mere assertion in an affidavit of a fact which if arguable may be the basis of a valid defence, this does not, of itself, provide a basis for leave to defend.  The court must look at the whole situation and ask itself whether the defendant has satisfied it that there is a fair or reasonable probability of the defendant having a real or bona fide defence.  The court is not bound to accept an assertion of the defendant on affidavit if it is self‑contradictory and inconsistent with other parts of her own evidence, in this case her own letter previously referred to.  If, on the face of it, the evidence of a defendant is not credible then there is no fair or reasonable probability of the defendant having a defence:  National Westminster Bank PLC v Daniel [1993] 1 WLR 1453, Banque de Paris et Des Pays‑Bas (Suisse) SA v Costa de Naray [1984] 1 Lloyd's Rep 21; Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 at 341 and Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109.
15		In my opinion the plaintiff's claim for summary judgment satisfies all of these tests.  The defendant's case is so inherently improbable that there is in truth no real issue to be tried and I will direct that summary final judgment be entered for the plaintiff.