DISTRICT COURT OF QUEENSLAND

CITATION:	Marsden v Fels & Anor [2020] QDC 307	
PARTIES:	SYDNEY FRANK MARSDEN
(Plaintiff)

v

ROSS GREGORY FELS
(First Defendant)

PATRICIA BETTY FELS
(Second Defendant)
	
FILE NO/S:	D929/17
	
DIVISION:	Brisbane	
PROCEEDING:	Civil	
ORIGINATING COURT:	District Court of Queensland	
DELIVERED ON:	3 December 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	26 and 27 October 2020	
JUDGE:	Richards DCJ	
ORDER:	1.	The first and second defendants pay to the plaintiff the sum of $226,428.93; and
2.	The first and second defendants pay to the plaintiff interest from 15 March 2017 in the sum of $44,034.69; and 
3.	The first and second defendants pay the plaintiffs costs of and incidental to this proceeding as assessed unless otherwise agreed.	
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – RECOVERY OF COSTS – REPAYMENT – where the plaintiff won a substantial sum of money - where the plaintiff advanced money to the first defendant for the repayment of the second defendants mortgage – where the plaintiff requests repayment of the money advanced to the first defendant on the basis the money was a loan – where the first defendant contends the payment of money from the plaintiff was a gift 
EQUITY – PRINCIPLES – UNJUST ENRICHMENT – whether there is a case of unjust enrichment in relation to the second defendant - where the second defendant did not request the loan be advanced from the plaintiff – where the payment of the money was a benefit that was provided to the second defendant in a personal capacity – where the plaintiff paid the money to the first defendant to assist the second defendant on the promise that it would be repaid – where the money advanced by the plaintiff allowed the first defendant to receive an interest free loan minus establishment fees – where the money advanced by the plaintiff allowed the second defendant to retain her home in circumstances where she would have otherwise been evicted   	
CASES:	Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295	
COUNSEL:	Mr R J Oliver and Ms Shepherd for the plaintiff.
First defendant appeared on his own behalf.
Second defendant appeared on her own behalf.	
SOLICITORS:	Bartels Lawyers for the plaintiff	

[1]	The plaintiff has claimed the sum of $226,428.93 from the first defendant and/or the second defendant as monies loaned to them between 21 February 2014 and 27 March 2014.  He also claims interest pursuant to the Civil Proceedings Act 2011.  
BACKGROUND
[2]	The second defendant is the daughter of the first defendant.  She had financial difficulties and owned a home under mortgage at 13 Talganda Street, Woodridge.  Action was taken by the mortgagee when she fell behind in her payments and on 14 December 2012 a judgment sum in the amount of $126,403.59 was awarded in favour of Permanent Custodians Limited against the second defendant, together with costs.  
[3]	The first defendant decided to try to buy the home from his daughter for the outstanding sum owed to the mortgagee.  They obtained finance in the sum of $190,000.00 through RAMS home loans with the intention of purchasing 13 Talganda Street, Woodridge by paying off her debts.  Unfortunately, that sale was unable to be advanced without a release of the mortgage and the release of the mortgage was not possible without the prior payment of the outstanding amount of money.
[4]	The plaintiff, Sydney Marsden was in a relationship with Denise Schnitzerling.  The first defendant Ross Fels was married to June Fels. June and Denise had been friends for over 40 years.  They lived close to each other and they often socialized.  The night before Father’s Day in September 2013, Frank Marsden and Denise Schnitzerling were at the Waterford Hotel when they won over $2m in Keno.  
[5]	The original intention was to keep the win anonymous but Ross and June read about the win in the paper and realized that the article was about their friends.  June rang Denise and after some cajoling she admitted that they had won the money.  They went to see them soon after and because of their friendship, offered to give them  $50,000.00.  They accepted the gift but wanted it paid in cash instalments.  The evidence differs as to why it was paid in instalments but not much turns on the reason. It was common ground that whatever was given to them was paid in cash.   The plaintiff says three cash payments were made, two of $20,000.000 and one of $10,000.00 by December 2013.  The first defendant says that there were three payments of $10,000.00 made and $20,000.00 was retained by the plaintiff.
THE MONEY
The Plaintiff’s evidence 
[6]	The plaintiff’s case is that in December 2013 the first defendant mentioned to Mr Marsden and Ms Schnitzerling that Patricia, their daughter, had some problems with her house and asked if he would be able to loan them approximately $48,000 to stop the house being repossessed.  Mr Marsden assumed that it was for arrears of mortgage payments and possibly some costs.  The first defendant said that he would give them a proof of debt and draw up a method of repayment and Mr Marsden was satisfied with that arrangement.  There were some further discussions about them trying to obtain a loan through a financial company such as RAMS but in late February Mr Marsden said that Mr Fels told him that he had to go to court the next day to try to stop the eviction and would they still be able to lend him $48,000.00?  Mr Marsden indicated that he would organise a bank cheque but Mr Fels told him to wait because he would not know the full amount until they got to court.  
[7]	The first defendant denies any conversation about $48,000.00 or asking for help and says that the plaintiff knew that they were having troubles with the mortgagor over payments in relation to the second defendant’s house, much earlier than December 2013.
[8]	It is common ground that the first defendant went to court in February of 2014 and as a result of that court action, Denise Schnitzerling at the request of either Ross or June drew a bank cheque in the sum of $152,070.48 to the Permanent Custodians on behalf of Patricia in satisfaction of the court order.  It is also common ground that the cheque was likely picked up by June Fels and then Ross and Patricia Fels delivered the cheque to Gadens Solicitors to be paid to Permanent Custodians.
[9]	The first and second defendants were again before the court on 4 March 2014.  The plaintiff gave evidence that the first defendant indicated to him that they would have to go to court again and they could still lose the house.  The plaintiff said he asked them how much it would be and he was told that he won’t know until they get to court; but he was again told that it would be repayed.  
[10]	On 4 March 2014, June Fels called Denise Schnitzerling and told her that $60,000.00 was required and so arrangements were made for another bank cheque payable to Permanent Custodians for $60,000.00 to be given to June.  
[11]	The final payment was on 27 March 2014.  The plaintiff gave evidence that they were again told the house was being repossessed and they had an eviction notice that was to operate from the Saturday.  The plaintiff said at that stage he said to them, “We’ll just lend you the money because we’re not going to let those bastards take the house.”  So on 27 March 2014 they gave them $14,358.45.  Mr Marsden gave evidence that he was only ever told that they would get a proof of debt and the method of repayment.  Mr Marsden said that Patricia Fels was kept in the dark in relation to what was happening; that there was a gate between the dividing back fence of the two defendant’s properties but it was obvious they didn’t want her to be a party to the conversations.
[12]	After the final payment was made, the plaintiff said that the relationship between the parties soured and they did not really see them and when they saw Mr and Mrs Fels they were not acknowledged.  He said the last time he had spoken to the first defendant was when he came round after giving June the $14358.45 and he came around to thank him and Mr Marsden said to him, “Remember it’s only a loan, it’s not a gift.  I don’t care if it takes two or three years” or whatever it was and he hugged him and said “thank you very much”.
[13]	On 18 August 2016 a letter was sent under instructions to the first defendant demanding repayment of the money.  It was, he said, an interest-free loan between friends.  
[14]	On 29 January 2015 the first defendant arrived unannounced and dropped a document around to the plaintiff’s house giving it to Ms Schnitzerling.  The plaintiff was not at home at the time.  It was a Certificate of Indebtedness acknowledging that $226,428.93 was a loan and was to be repaid.  (The first defendant acknowledges that he did drop that document around but that it was not meant to acknowledge that he had a debt to the plaintiff.)
[15]	In cross-examination the plaintiff accepted that the first defendant did not personally approach him and asked specifically for $152,070.48, $60,000.00 and $14,358.45.  The plaintiff accepts that that in fact was the case.  The plaintiff also indicated that he did not have any direct dealings with the second defendant.  
Denise Schnitzerling
[16]	Denise Schnitzerling gave evidence and her evidence was consistent with the plaintiff’s although given the passage of time (seven years), it is unsurprising that she was unsure of the detail of some of the transactions.  She did however give evidence that initially they were asked for a loan of $48,000.00 but that when it came to court that amount increased to $152,070.48 then $60,000.00 then $14,358.45.  She gave evidence that on one occasion the first defendant came round to her house and asked if the plaintiff would sign a statutory declaration to say that the money they had lent was completely his debt and not Patricia’s but they declined to do that. 
Ross Fels
[17]	Mr Fels, the first defendant, gave evidence that he was offered the gifted money by the plaintiff and he did not want to take it; but they insisted and in the end they agreed that they would take it but that Frank would retain the money until they needed it.  About a fortnight later they asked for $10,000.00 and they took that to pay some bills.  He also gave evidence that he had let the plaintiff know some time earlier that there was a problem with the mortgagee and his daughter’s house and that he had arranged a loan to pay for the outstanding amount of money and he was going to take ownership of the home.  Unfortunately, because Permanent Custodians would not give the title to the property to the first defendant, the home loan fell through and they were unable to purchase the property.
[18]	The first defendant gave evidence that he had never asked for $48,000.00 and in fact he had never asked for any money in December of 2013.  He said the only money that had ever been mentioned was the gifted money.  On 21 February 2014 he said his daughter was given an eviction notice which was to be carried out on 5 March 2014 at 10.00am.  He said in September 2013 the plaintiff and Denise Schnitzerling had told them that they would stop them from taking the house.  Upon receiving the eviction notice the first defendant rang up RAMS and they said that they could not have the loan.  His wife then rang up Denise Schnitzerling and he was told by his wife that Frank was getting the money and that is what happened.  He said his wife went around to Denise’s house, picked up the cheque and he drove, with the cheque and his daughter, to Gadens Lawyers and handed it over.  
[19]	Unfortunately, $152,070.48 was not the full payment and there was a further hearing on 4 March 2014 where it was ordered that the second defendant had to pay $60,000.00 by 4.00pm that day.  Upon leaving the court the second defendant was upset and collapsed and the first defendant’s wife, June, went and spoke to Denise Schnitzerling and again a cheque for $60,000.00 was drawn to the benefit of Permanent Custodians. 
[20]	He said the final court appearance was on 27 March 2014 and there was a court order made for the payment of $14,358.45.  There was a discussion between himself and his wife where he said to her, “we can’t go and ask Frank to spend any more of their money on this” but that they still had $20,000.000 in the plaintiff’s possession and so they asked Denise Schnitzerling to take it out of that gifted money, which they did.
[21]	In December of 2015 his wife June came home after visiting Denise Schnitzerling and said to him “Denise is demanding from you something that says you owe Frank the money”.  This is the first he had ever heard of owing money, he says.  She was very distressed and so he said, “OK” and he drew up the Certificate of Indebtedness and signed it, had it stamped and witnessed, gave it to his wife and she took it round to Denise.  He said: 
“And I maintain to this day that was not an admission that I had ever borrowed money from Frank.  I considered it was nothing more than an appeasement to try and protect the friendship between my wife and Denise who had known each other for well and truly 40 years.”
[22]	In 2016 the first defendant filed a Statement of Claim against Permanent Custodians Limited seeking the sums of $152,070.48, $60,000.00, $14,358.45 in damages and $452,000.00 in exemplary damages.  In that Statement of Claim he pleaded that he had in fact asked for the money from the plaintiff and borrowed that money from him.  In cross-examination the first defendant dealt with that question of the certificate of indebtedness and the statement of claim as follows:
“QUESTION:	You told her Honour when you asked about the certificate of indebtedness that you wanted to appease your wife? 
ANSWER:	Yes. 
QUESTION:	And secondly you wanted to use that evidence in your claim against Permanent Custodians?
ANSWER:	Yes.
QUESTION:	To clarify that if it was required. OK but the intention was that you have it there and, if need be, you would use it to pretend.
ANSWER:	I totally agree yes. 
QUESTION:    Just let me finish my question, to pretend to Permanent Custodians that you owed Frank 220 odd thousand dollars despite the fact that you say you never owed him a cent. Is that putting it fairly? 
ANSWER:   That is a fair assumption. Alright I use the word assumption.
QUESTION:	Well it’s not an assumption. That’s what you intended to use it for. You wanted to pretend to Permanent Custodians that there is a debt owed where, in fact, it is your position that there is no debt owed?
ANSWER:	My. 
QUESTION:	Is that correct?
ANSWER:	The intention.
QUESTION:	Just answer my question? Is that correct?
ANSWER:	No.
QUESTION:	It’s not correct. Tell me why it’s..
ANSWER:	It’s not correct.
QUESTION:	Not correct?
ANSWER:	 I’ll tell you why it’s not correct because Frank knew I was putting in a statement of claim. Frank knew and approved that statement of claim. Frank knew of and approved I was stating in that claim that he gave me the money.
QUESTION:	Alright.
ANSWER:	Frank knew that.
QUESTION:	Hang on we’re not talking about Frank, just a minute
ANSWER:	But this is where the indebtedness document goes back to. It was there simply to assist him to get his money back.
QUESTION:	No I’m talking about your intention was the use for the certificate of indebtedness you’ve told us that you prepared it and signed it to keep your wife happy ok. The second purpose for you to prepare and sign it was so that you could pretend to Permanent Custodians that you had a debt to Frank is that correct?
ANSWER:	I would have to say yes.
QUESTION:	Right and the fact is that your position now and then is that there’s no debt correct?
ANSWER: 	yes.
QUESTION:	So you’re prepared to put a false position to Permanent Custodians when you prepared the statement of claim correct?
ANSWER:	Yes.”
[23]	The cross-examination then diverted to the $48,000 loan question but the exchange continued:
“QUESTION:	And you said here in paragraph 119, you made contact with Mr Marsden and explained to him the urgency of obtaining a further cheque of $63 – 60,000 are you telling the court that that statement is not correct?
ANSWER:	Today it’s not. Back then the intent was to get Frank’s money back.
QUESTION:	Well?
ANSWER: 	But today your Honour I freely admit that’s what I wrote in there back in 2016.
QUESTION: 	Well I’m just trying to.
ANSWER:	I just need to make it clear if I 
QUESTION:	You’re saying it was?
ANSWER:	I never.
QUESTION:	Correct back then but not correct today?
ANSWER:	 I never attested to this as being a completely truthful document. This was the statement of claim. 
QUESTION: 	It’s a court document. The court expects the court documents to be true Mr Fels?
ANSWER: 	I agree with you your Honour but I can see some things even here today that aren’t in my opinion true. But yes look back then alright I’m going to say it’s true because I wrote it.
QUESTION:	Hang on.
ANSWER: 	I wrote it.
QUESTION:	So you say it’s true now?
ANSWER:	It was true back then it has to be true now.
QUESTION:	 Alright and you’re saying it’s true now. Alright and then in paragraph 120 you go on to say that you got the bank cheque then you told us what you did with that. Then we move on to the other amount of $14,000 and that’s picked up mainly about paragraph 152. You talk about going to court, you talk about counsel and Permanent Custodians wanted a further cheque for $14,358 by 3 April. Now then you talk about the application to court and paragraph 155 you say that the plaintiff that’s you was forced to borrow further $14,358 from Mr Marsden just to stop Permanent Custodians depriving his daughter and his grandchild of their home. Now is that statement true?
ANSWER:	Yes.
QUESTION:	 It is true alright so what you’ve told us about using the balance $20,000 in cash which you say was never paid is that statement true?
ANSWER:	Yes.
QUESTION:	Alright so it’s true you were using the money you say you’ve already owed?
ANSWER:	Yes.
QUESTION: 	It’s true you say that you had to borrow a further $14,000 from Mr Marsden is that true?
ANSWER:	Well I’m between a rock and a hard place. I have to agree with it’s written down there.
QUESTION:	Alright well I’m giving you an opportunity to explain. Either one it’s true or one is false which one is it?
ANSWER:	Well I’m gonna say very clearly in here is false.
QUESTION: 	That’s false. So you made a false statement in statement of claim?
ANSWER: 	It looks that way.
QUESTION:	All right and with respect to the borrowing of $152,000 it looks like that’s a false statement?
ANSWER:	Have to agree with you yes.
QUESTION: 	And it looks like the purpose for your evidence preparing a certificate for indebtedness was also false statement?
ANSWER: 	Yes ok it’s false in so much that yes”
[24]	Therefore having acknowledged the debt with a deed of acknowledgment drawn up by himself and then issued proceedings where he pleaded that he’d obtained the money from the plaintiff, Mr Fels has now given evidence that in fact all of that was untrue and that the court should rely on his current claim which is that he never asked for the money at all and it was money that was volunteered to the benefit of his daughter without any request at all from himself. 
June Fels
[25]	June Fels gave evidence that they were offered a gift of $50,000. They took three lots of $10,000 and $20,000 but it was not given to them immediately. She said in September 2013 they told the plaintiff of their problems with Gadens Lawyers and that they had obtained a home loan through Rams Home Loans. She said that the plaintiff at that stage was insistent that they not take that loan and he was going to give them money to save the house as he didn’t want those bastards to get their hands on it because he’d had trouble with Pepper Home Loans himself. She said Mr Marsden indicated that they weren’t to get the loan as he was going to help them.  He wanted the house saved for the daughter. She said they didn’t ask him for a cent but he was insistent that that’s what he wanted to do.
[26]	She gave evidence that Mr Fels never personally asked Mr Marsden for $152,000 and that she asked Denise. He did not ask for $60,000, she was person who asked for that and then she also asked Denise for the $14,358 but told her to take it out of the remaining $20,000 gift that had been promised to them. She said she could not remember any discussion about a proof of debt or payment plan. She did say that Denise rang and asked her to tell the first defendant that Frank wanted something in writing that he owed him money and he was happy with just a note with his signature on it which was taken round to him by this witness. She said there was no tension between her and Denise over the document acknowledging the debt.
Andrew Fels
[27]	Andrew Fels gave evidence that he heard Mr Marsden offer money to save the second defendant’s house. His evidence was vague in relation to time and circumstance and no other witness had suggested that he was present for this conversation. He also suffers from significant mental health issues for which he is medicated. 
Patricia Fels 
[28]	The second defendant gave evidence that she did not ask for any money from the plaintiff. She had no conversations with the plaintiff and the money was given to her without any contact between herself the plaintiff. Her evidence was not controversial as the plaintiff’s case is that he did not have contact with her about this money.
Discussion
[29]	There is no dispute that the plaintiff advanced the sum of $226,428.93 by way of three cheques payable to Permanent Custodians Limited. That money was used to satisfy the judgment made against the second defendant that was ordered in relation to arrears of payment under a mortgage over the second defendant’s home at 12 Talganda St, Woodridge.  It is also common ground that the money has never been repaid to the plaintiff.
[30]	It is difficult to pin down exactly what the case is for the first defendant.  Whilst at the end of cross-examination he agreed that the money was a gift, the final position stated in the first defendant’s cross-examination is as follows:
QUESTION:	“There was a discussion about that with Frank and Frank advanced the money didn’t he?
ANSWER:	No. I never had a discussion with Frank or Denise about obtaining any money to protect my daughter’s house.  Never.
QUESTION:	So what are you saying?  I’m confused.  Are you saying that they just volunteered to give you $220,000.00?
ANSWER:	Well it’s about time someone hit the nail on the head here.
QUESTION:	Yes?
QUESTION:	They just
ANSWER:	They started
QUESTION:	Come in Ross. Here’s a cheque for $220,000.00.  Is that what you – is that your case?
ANSWER:	No.  What I’m saying is Frank himself said to me back in later September of 2013 – don’t worry about the bank loan.
QUESTION:	Okay.
ANSWER:	We are you going to do this – we meaning Denise and Frank.
QUESTION:	Alright so
ANSWER:	We are going to save that house.  At no time, sir, at no time sir, did Frank say we are going to lend you money but we expect you to pay it back to us.  Never occurred; it never happened.
QUESTION:	So your position now is that this straight out gift to you for the benefit of your daughter - is that your position?
ANSWER:	I am not saying it was a gift.  I am saying what they done was simply this - hey come and said ‘We’re gonna give you this money”.
QUESTION:	Well it’s a gift?
ANSWER:	Well if you wish to put a terminology of ‘gift’ on it, I’ll accept that.”
[31]	The second defendant’s case is that she simply did not ask anyone for anything.  As far as she was concerned her parents were going to buy the house for the amount of the debt until her father came and said “don’t worry about it”; Frank was paying for the debt.  She did, however, acknowledge that with the money advanced by Mr Marsden the debt was paid and now the house is mortgage-free.
[32]	The first discussions between the plaintiff and the first defendant occurred in 2013 and the majority of the loan payments were made at the beginning of 2014.  The payment of money was made between two friends who trusted each other.  It is therefore unsurprising that there are no formal documents setting out the loan. Mr Marsden was happy to advance an interest free loan to his friend given his good fortune in winning a large amount of money.  I accept the submissions made on behalf of the plaintiff that it would be unlikely that even in the light of a substantial Keno win, that the plaintiff would advance by way of gift a sum of $226,000.00 to the second defendant, being the daughter of his friend, particularly in light of the fact that they had generously given a gift of $50,000.00 to the first defendant and his wife.
[33]	The first defendant acknowledged that he owed the plaintiff a debt.  The Certificate of Indebtedness was drawn up and signed by the first defendant on 29 January 2015 and acknowledges that the sum of money was made as a loan and has to be repaid.  I do not accept that that document was drawn up in an effort to save the friendship between the first defendant’s wife and the plaintiff’s partner.  The first defendant’s wife does not say that there was any pressure by the plaintiff’s partner for this to occur.  
[34]	Further, on 24 August 2016 the first defendant forwarded an email to the plaintiff’s solicitors indicating that:
“There never was and never has been any verbal or written agreement stating payable on demand.  The only time-frame that was mentioned to me was ‘I don’t care if it takes two years or five years.”
[35]	This indicates that there had been some previous discussion about repayment of the money.  Further, in that email, the first defendant indicated that he was making an effort to pay Frank.  
[36]	Finally, the Statement of Claim drafted and filed by the defendant acknowledges that he obtained money from the plaintiff and that the money was borrowed from the plaintiff. 
[37]	The first defendants cross examination was to the effect that he was drafting documents acknowledging the debt despite his position that he did not owe any money and had never asked for or personally received any money from the plaintiff. I do not accept this to be the case. 
[38]	I do not accept the evidence of the first defendant that he did not ask Mr Marsden for money initially and although it is clear that he did not personally ask for the sums of $152,070.48, $60,000 and $14,358.45, I accept that the request from his wife was a request made on his behalf in furtherance of the agreement between the two men that Mr Marsden would assist the first defendant by lending him the money necessary to save his daughters home. I accept the evidence of the plaintiff and Denise Schnitzerling in preference to the evidence of Ross, June and Andrew Fels where their evidence differs. This is because the first defendant has acknowledged the debt previously in writing, court documents and email. Further, it makes logical sense that the money was a loan rather than an outright gift.    
[39]	Demand was made by the plaintiff for the repayment of the money on 18 August 2016 and I accept that money remains payable to Mr Marsden, who from the goodness of his heart, loaned the money to the first defendant to assist his daughter in retaining her home. It should be repaid.
Unjust enrichment
[40]	The plaintiff is abandoning his claim that the second defendant was a party to a loan between the first defendant and the plaintiff.  However, the plaintiff claims that there is a case of unjust enrichment in relation to the second defendant.
[41]	The second defendant was the recipient of the total amount of money paid by Mr Marsden to Permanent Custodians Limited.  It is common ground that she did not ask for the money.  
[42]	In order to prove unjust enrichment the plaintiff must prove that there was firstly a benefit, secondly chosen by the defendant and thirdly the benefit must have been provided to the defendant in his or her personal capacity. 
[43]	 In this case the payment of the money was a benefit that was provided to the second defendant in a personal capacity.  However, the plaintiff must show that the benefit was chosen by the second defendant by some word or action.  Proof of the choosing of the benefit is assessed objectively.  Until a person has manifested some choice of the benefit, she is not enriched. She is free to choose whether to accept the benefit and until such time as she has accepted unequivocally the gift.  
[44]	There is a presumption that acceptance of money is a choice of benefit such as where a plaintiff satisfies a debt that the defendant was legally required to pay.  This is the case here where there was a mortgage that resulted in a judgment which was about to result in the repossession of the defendants home. The second defendant chose to accept the benefit offered by the plaintiff when she accepted the money to satisfy the debt owed to the Permanent Custodians to save her house from repossession.  The benefit was the retention of the home unencumbered.  
[45]	I accept that the enrichment which the second defendant received was unjust because the money was paid by the plaintiff on the promise that it would be repaid. It was never intended to be a gift to the second defendant. 
[46]	It was noted in Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295 at [183] – [185] by Justice Edelman:
“The presence of an unjust factor is an indispensable requirement to demonstrate the facts upon which a plaintiff relies for a claim that a defendant had no “right to retain” the benefit and was unjustly enriched. The unjust factor may also affect the availability or scope of defences, such as change of position, which rely upon pleading facts which fall within established and developing rules concerning circumstances which reduce or extinguish a defendant's duty to make restitution by “any matter or circumstance which shows that his or her receipt (or retention) of the payment is not unjust.”
[47]	Both defendants benefitted from the plaintiffs generosity. The first defendant was given an interest free loan and was saved the expense of establishment fees. The second defendant was able to retain her home in circumstances where she would have surely been evicted. 
Conclusion
[48]	I find that the plaintiff has shown that the money paid by him to the Permanent Custodians totalling $226,428.93 was paid on behalf of the second defendant by way of loan to and at the request of the first defendant. The second defendant has received the benefit of those funds to the detriment of the plaintiff. 
[49]	The first and second defendants are ordered to pay to the plaintiff the sum of $226,428.93 together with interest calculated from 15 March 2017 at $44,034.69. The total sum payable by the first and second defendants being $270,463.62.
[50]	The first and second defendants are ordered to pay the plaintiffs costs of and incidental to this hearing as assessed unless otherwise agreed.