IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMERCIAL DIVISION	Revised
Not Restricted
Suitable for Publication	
  GENERAL List
Case No. CI-20-00540

Mark Rajic 	First plaintiff	
		
and		
		
Marija Rajic	Second plaintiff	
		
v		
		
Michelle Ascenzo as administrator of the Estate of the late Mark Rajic	Defendant	
---

JUDGE:	His Honour Judge Woodward 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	8–12 and 18 February 2021	
DATE OF JUDGMENT:	3 March 2022	
CASE MAY BE CITED AS:	Rajic & Anor v Ascenzo as administrator of the Estate of the late Mark Rajic	
MEDIUM NEUTRAL CITATION:	[2022] VCC  210		

REASONS FOR JUDGMENT
---
Subject:		CONTRACTS

Catchwords: 	Advance of funds by parents to children – whether the advance was a loan or a gift – no contemporaneous written agreement or other record – consideration of the totality of the evidence including relevant objective facts and the weight of the oral evidence – presumption of advancement not engaged

Cases Cited:	Wirth v Wirth (1956) 98 CLR 228, Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, Federal Commissioner of Taxation v Rawson Finances Pty Ltd [2012] FCA 753
---

APPEARANCES:
	Counsel	Solicitors	
For the plaintiffs	G Devries	Tonkin Legal Group	
			
For the defendant	L Wirth	Eales & Mackenzie Melbourne	

HIS HONOUR:
Summary and outcome
1	This proceeding is a dispute among family members over money. More particularly, the plaintiffs allege that a payment of $220,000 made to each of their two children Mark Rajic (“Mark”) and Katrina Swanson (“Katrina”) soon after a meeting in mid-November 2015, was a loan. Katrina has agreed that the payment was a loan, and repaid it in September 2019.
2	The defendant was at all relevant times Mark’s wife. Mark died suddenly and unexpectedly from a heart attack on 9 February 2019. In her capacity as the administrator of Mark’s estate, the defendant resisted the plaintiffs’ claim. Her primary defence at trial was that the plaintiffs have failed to discharge their onus of proving that the payment was a loan. In support of that defence, she submits that the facts establish that the payment was in fact a gift. 
3	In my judgment, the evidence as a whole supports the conclusion that the payment of $220,000 to Mark on 3 December 2015 was a loan on the terms the plaintiffs allege. There will therefore be judgment for the plaintiffs against the defendant in the sum of $220,000 plus interest and costs.
4	The plaintiffs claim interest at the agreed rate of $550 per month to 3 December 2020 (the due date for repayment) and pursuant to statute thereafter. It is not clear to me why the agreed rate would not continue to apply at least up until the commencement of the proceeding, and arguably until judgment. On costs, these should be ordered on the standard basis (in default of agreement), unless there have been any offers of compromise or other matters not presently before me that would support a different order.
5	The parties will be invited to agree on the form of orders to give effect to these reasons, including on interest and costs. Failing agreement, they are directed to submit brief written submissions in support of the orders they seek. Final orders will then be made on the papers.
Factual background 
Purchase of the South Morang property
6	Originally from Croatia, the plaintiffs have lived in Australia for several decades and raised their two children, Mark and Katrina here. At the time of the trial of the proceeding, the plaintiffs were self-funded retirees, relying on a combination of superannuation and cash to fund their living expenses. The defendant was married to the plaintiffs’ son Mark, until Mark’s death in February 2019.
7	The defendant met Mark in 2002 and they became engaged on 10 March 2004. On 23 March 2004, Mark entered into a contract of sale to purchase a block of land in South Morang (“South Morang property”). The evidence is that the plaintiffs provided the funds for most or all of the deposit for this purchase. That sum is not the subject of any claim in this proceeding.
8	The defendant’s evidence was that Mark had told her the plaintiffs had agreed to fund the deposit on the South Morang property, because they had also funded the deposit on Katrina’s first home in Greensborough. The plaintiffs and Katrina all denied that the plaintiffs had funded the deposit on Katrina’s first home. 
9	From 2003 to 2008, the defendant and Mark lived with the plaintiffs. They married in 2006, and work commenced on the construction on their home at the South Morang property that year. In 2008, construction of the home was completed and the defendant and Mark moved in to the South Morang property, where the defendant still lives. 
10	During and after the construction, the plaintiffs made a number of gifts to Mark and the defendant to help to establish them in their new home, including by contributing to the construction of the driveway and the fence and gate, and paying for some landscaping. They also purchased a number of items of furniture and electrical equipment for the home.
11	As at the end of financial year 2014–2015, Mark’s home loan account balance with the bank was $221,567.63. He had made approximately $103,000 in “special repayments” on the loan, which was available to be redrawn. Mark’s bank had calculated that if Mark continued making the special repayments at the same rate, he would repay the loan in full in a little over eight years.
Initial discussion of the $220,000 payments
12	The first plaintiff retired in 2011 and, in 2014, the plaintiffs sold an investment property for $452,000. The proceeds of that sale were later used by the plaintiffs to pay the $220,000 to each of Katrina and Mark in the circumstances discussed below. There are a number of material differences in the accounts of the parties as to how the idea of the payments first arose and the timing, content and participation in the discussions leading up to the payments. Resolving those differences is at the heart of resolving the issues in this proceeding.
13	According to the plaintiffs, Mark first raised with them the possibility of him borrowing some of the proceeds of the sale of their investment property to (in effect) replace his bank loan. The first plaintiff said that he initially declined, but later discussed the matter with the second plaintiff, and they decided to help both their children. The plaintiffs said they then arranged a meeting with Katrina and Mark in mid-November to discuss it. They denied that there were phone calls between Mark and the first plaintiff in the lead up to the meeting when Mark sought to clarify the plaintiffs’ expectations about any payment. 
14	The defendant gave evidence that the plaintiffs first raised the matter with her and Mark when they were at the plaintiffs’ house in “the second half of the year… around October, maybe a little earlier”. Her evidence was to the effect that the first plaintiff told her and Mark that “Katrina had approached them about getting some money…to build a bigger place and that if he was going to give it to her, he wanted to give it to both children”. The defendant later said that the first plaintiff described it as an “early inheritance”. She said that Mark responded that he and the defendant would talk it over and get back to the plaintiffs.
15	According to the defendant, she and Mark went home and discussed the matter. She said that she was worried that the plaintiffs would feel they had some say about how she and Mark would spend the money and Mark said that he would talk to his father and clarify his expectations. The defendant gave evidence that she overheard this phone call, in which Mark sought to clarify what the plaintiffs were proposing and to make clear that “if we take this that you don’t sort of get a say at how we spend our finances and what we do with it”. The defendant’s evidence was that it was following these phone calls that the November meeting was arranged with the plaintiffs, Katrina and her family, the defendant and Mark.
16	Thus it is not in dispute that a meeting took place in around mid-November 2015 to discuss a payment by the plaintiffs to each of Mark and Katrina. However, the parties are at odds about who was present during the meeting and the content of the discussion. 
The November 2015 meeting
17	The first plaintiff’s evidence was that the meeting was attended by only the plaintiffs, Mark and Katrina. He said that he began the meeting by asking Katrina and Mark how much they owed on their respective home loans. Katrina answered first, saying she owed about $220,000. Mark said he owed just a little bit over $220,000. The first plaintiff then said: “Okay, I will lend both of you $220,000 each”, but that Mark did not need to start paying interest until he had repaid the bank in full.
18	On the subject of interest, the first plaintiff’s evidence was that he told them that they were to pay 3%, which was a lot less than they were paying to the bank. He also explained that, because the interest would fund his day to day living expenses, “I don’t want any excuses for them to miss out on the interest payments”.
19	The first plaintiff gave evidence that he then asked when they were going to pay him back. Katrina said that she would repay the money when she bought a bigger house and sold her existing one. She was planning to buy a new house in the next three or four years. The first plaintiff said he was fine with that and then asked Mark when he would repay the loan. According to the first plaintiff, Mark responded that he would pay it after five years. He said he could use the savings from not having to pay the bank to undertake home improvements and buy a car. After five years, he would redraw $220,000 on the home loan and pay the first plaintiff back.
20	The first plaintiff denied that the discussion took place among the plaintiffs, the defendant and Mark and Katrina and her husband John, with Katrina and John’s children in another room watching television. The first plaintiff said they never talked about money at dinner. The first plaintiff also denied that he said because the $220,000 the plaintiffs were giving to each of Katrina and Mark was coming from funds on a term deposit earning 3% interest, they would need to continue to look after the plaintiffs by paying the same amount of money that they would have been earning on that term deposit.
21	It was then put to the first plaintiff that Katrina and John responded: “that would be fine” (or words to that effect), but that Mark said he and Michelle would need to discuss it. The first plaintiff responded emphatically that: “Michelle was never present when we talked about finances”. Finally, the first plaintiff denied having a telephone conversation with Mark later that night or the next day, during which Mark said (in effect) that it was a very generous offer but that he and the defendant wanted to make clear that, in providing this early inheritance, the plaintiffs did not get a say in how Mark and the defendant spent their money.
22	Katrina’s evidence was that the meeting in November 2015 came about after she had received a telephone call from her mother (the second plaintiff), “advising me that my brother had asked to borrow money to pay his home loan and they asked me if I wanted the same arrangement”. Katrina said that her mother invited her to the plaintiffs’ home to discuss it with her father. Katrina’s account of the meeting was to the same effect as her father’s.
23	In relation to what she described as the interest payments, Katrina’s evidence was that she paid the $550 each month by withdrawing varying cash amounts either from the ATM or when she was grocery shopping, and giving the cash to her parents when she went to pick up her children from the plaintiffs’ home. She said there may have been one occasion when she paid by a bank transfer.
24	It was not in dispute that Katrina arranged to repay the $220,000 on 23 September 2019, being the date on which she settled on the sale of her property.
25	Katrina denied that she had asked for financial help to buy a bigger home after her parents had sold the investment property. She also said she did not recall there being a dinner at the time of the meeting in November 2015. Like her father, Katrina denied all of the key elements of the meeting as alleged by the defendant, including the presence at the meeting of her husband John and the defendant, and the request for payments to compensate the plaintiffs for losing the benefit of the money on term deposit.
26	John Swanson’s evidence was brief. He agreed that he, Katrina, Mark, the defendant and the plaintiffs would get together for social occasions. He could not recall how many times each year but said: “It would be birthdays, special occasions, Christmas, those sorts of things”, at various locations. Importantly, he said there were no occasions where he was in attendance and the defendant was also in attendance, where there were any discussions of financial matters.
27	In cross examination, Mr Swanson agreed that there was possibly a dinner in November 2015 at the plaintiffs’ home, with Katrina, Mark, the defendant, the plaintiffs and his and Katrina’s children. However, he denied that the first plaintiff said he wanted to talk about money (or that the terms of any payments to each of Katrina and Mark were discussed) at that dinner.
28	The second plaintiff’s evidence was also broadly consistent with that of the first plaintiff. In examination in chief, she said that the meeting in November took place because Mark rang her to ask if he could borrow some money and she replied that he would have to ask his father. The first plaintiff initially said no, but after they discussed it further, he agreed, and the meeting (including Katrina) was arranged. The second plaintiff said she was present for the meeting but going in and out.
29	In cross examination, the second plaintiff denied the defendant’s version of what transpired leading up to the meeting. As to the meeting itself, there was a point in her evidence where the second plaintiff appeared to be conflating two events. First, the meeting she had referred to earlier in her evidence and, second, a dinner in November attended by the whole family (including the defendant, John Swanson and her grandchildren). In the end, the second defendant accepted that there may have been a dinner in November 2015, probably for her birthday which is in November. However, she was clear that there was no business discussed at the dinner. She said the business discussion was “later on”.
30	The defendant’s evidence concerning the meeting was consistent with the case put to the plaintiffs’ witnesses in cross-examination. She said that the relevant discussion took place after a dinner attended by the plaintiffs, Mark and herself, Katrina and John Swanson and the latter’s two children. After the children left to watch television in another room, the first plaintiff brought up the money, saying that he wanted to discuss the early inheritance that was proposed. According to the defendant, the first plaintiff said he did not want to just give the money because it had been in a term deposit earning 3% interest and he considered it only fair that they did not lose money. Katrina readily agreed, but she and Mark said that he and the defendant would discuss it and get back to the plaintiffs.
31	The defendant next gave evidence that, after she and Mark got home, they had a conversation. She said she was very hesitant because of the fact that the arrangement  had gone from an offer with no strings attached to suddenly having strings attached. She was particularly worried about the fact that the payments seemed to be indefinite. However, Mark replied that he did not mind helping out his parents a bit since his parents had helped them and he felt comfortable with the proposal. She said she was prepared to follow Mark’s judgment on this.
32	The defendant next described a telephone conversation she overheard between Mark and the first plaintiff, when Mark gave details of what was owing on his bank loan. After the phone conversation he told her that it turned out Katrina owed a similar amount on her mortgage “so his parents were going to give us $220,000”. The defendant concluded this part of her evidence-in-chief by describing events leading up to the payment of the $220,000 in December of that year.
33	Two matters of particular note were put to the defendant in cross-examination. The first was, in effect, that it was “bordering on unbelievable” that two people who were determined to pay off their mortgage as soon as they could would “look a gift horse in the mouth”. The defendant asserted that they were in no need of the money and so they wanted to discuss it before agreeing. The second was that the recollections of the plaintiffs’ witnesses that the defendant was not present during the November discussion of the money were more accurate than her own. She disagreed. 
34	The plaintiffs paid the $220,000 each to Katrina on 27 November 2015 and to Mark on 3 December 2015. The payment to Mark was made by way of a bank transfer to Mark’s Commonwealth Bank home loan account, leaving a balance of $629.15, which Mark paid off that same day. However, Mark and the defendant left Mark’s loan account in place.
35	Despite the attention given to them in the evidence, the events after the November meeting and the subsequent payments are only peripherally relevant. This is because they essentially go only to issues of credit and are of only limited assistance, even on that issue. I will therefore keep my summary of that evidence brief, as follows:
(a)	Mark commenced the $550 payments by way of an automatic bank transfer to the plaintiffs’ account on the 19th of each month commencing in January 2016 and ceasing shortly after Mark’s death in February 2019.
(b)	Katrina’s evidence (referred to above) was that she made the payments mostly (if not entirely) in cash (she thought there may have been one payment by bank transfer).
(c)	Mark and the defendant incurred several significant expenditures commencing in around 2017, funded for the most part by drawdowns on Mark’s home loan account. These included the purchase of a new car in 2017 and home improvements at the South Morang property during 2018. By early 2019, the balance of the home loan had risen to $134,000.
(d)	In the days after Mark’s death, there were two meetings among family members to discuss arrangements for Mark’s funeral, followed by the funeral itself and a wake, and then a meeting between the first plaintiff, Katrina and the defendant involving the collection of a part of Mark’s ashes. The meetings before the funeral were also attended (relevantly) by the defendant’s brother Rick Ascenzo and father Remo Ascenzo.
(e)	During the course of the meetings before the funeral, the defendant first expressed a wish and later announced a decision that Mark would be cremated. This upset the first plaintiff (and therefore his daughter, Katrina), as did a decision on the style of Marks coffin. Katrina gave evidence that they were taken aback by the defendant’s decisions and the fact she had not consulted them.
(f)	The funeral was held on 20 February 2019, which all parties attended, with a wake at the South Morang property held after, which the plaintiffs did not attend.  
(g)	The meeting to collect part of Mark’s ashes was on 2 March 2019. Both the first plaintiff and Katrina gave evidence that during this meeting, the defendant said words to the effect of “I know I owe you money and it’s your retirement”. They said the defendant also said she did not know how much the loan was and the first plaintiff informed her it was $220,000.
(h)	The defendant denied that she said the words attributed to her, but that the first plaintiff did raise the question of the money and she replied that that she was unprepared for the conversation and would prefer to discuss it at a later date.
(i)	Unsurprisingly, the defendant accepted that a lot of what happened after Mark’s death “is a complete blur”, and that her memory of that time was “not one hundred percent”. 
(j)	Following this meeting, the first plaintiff made several phone calls to the defendant regarding the money, which distressed the defendant. On 14 March 2019, the defendant’s brother Rick Ascenzo contacted the first plaintiff by telephone to tell him that, from that point, his contact with the defendant should be only through him.
(k)	In mid to late April 2019, Katrina and her husband arranged to update their wills, which thereafter provided in effect that their estate was to pass to their own children at 25, but that if the children pre-deceased them, their estate would pay $220,000 to the plaintiffs.
(l)	There were two meetings on 27 July and on 4 August 2019, attended by the first plaintiff, Katrina and her husband John and Rick and Remo Ascenzo, to discuss the plaintiffs’ claim to the $220,000. Katrina recorded the meetings, without informing Rick and Remo Ascenzo that she was doing so. These recordings were later informally transcribed. Some foreshadowed arguments about these recordings, transcripts and some other notes of the meetings attracting without prejudice privilege, were abandoned and all went into evidence. There was no dispute of any substance about what was discussed at the meeting.
(m)	There were only two things that occurred at the meetings of possible relevance. The first is that the first plaintiff and Katrina made various statements concerning the plaintiffs’ financial position, pension entitlements and other matters that that the defendant submits the first plaintiff knew to be false.
(n)	Second, there were discussions about whether the first plaintiff had anything in writing to prove the loan, and at one point Remo Ascenzo (the defendant’s father) is recorded as saying that the defendant had told him that he should “forget about the paper, we owe [the first plaintiff] the $200…”. There was then some backtracking by Mr Ascenzo on that statement. But, in evidence, Rick Ascenzo said he was present when the defendant said that to her father.
Submissions
36	The parties’ closing submissions were made in writing, commencing with the submission by counsel Mr Wirth for the defendant, followed by Mr Devries for the plaintiffs and then Mr Wirth in reply.
The defendant’s submissions
37	Defendant’s counsel began his submissions by stating that the single issue for determination in the proceeding was whether the conversations in 2015 involved the provision by the plaintiffs of a loan to their son Mark. Counsel submitted that the direct evidence is sparse and he emphasised the absence of any documentation recording the alleged loan. He noted the trite proposition that the plaintiffs bore the onus to prove their case. It follows that, to dismiss the claim, the court does not need to be satisfied on the balance of probabilities that the money was a gift. 
38	Defendant’s counsel next dealt with the presumption of advancement. Given the circumstances of the case, he said it was tempting to think that the presumption of advancement has work to do. He submitted that it does not and, even if it did, it would simply result in the onus lying on the plaintiffs to prove their claim (an onus they already carried). I agree. As counsel explained, the presumption of advancement is not engaged where a parent alleges a loan to a child, because a loan assumes the transfer of title to the money in consideration of a promise to repay. This gives rise to a personal monetary claim, not a claim with respect to a proprietary interest in a fund, and the arguable divergence of the legal and beneficial interest does not arise.
39	However, counsel nevertheless submitted that the broader principle underlying the presumption of advancement still has a role to play. He referred to Dixon CJ’s observation in Wirth v Wirth that the presumption of advancement has obtained a justification in “the greater prima facie probability of a beneficial interest being intended in situations to which the presumption has been applied” and argued:
“So, in this case, the (undocumented, unsecured) transfer of a substantial sum of money from a parent to a child is, prima facie, more probably a gift than a loan.”
40	Defendant’s counsel concluded the section of his submissions dealing with the plaintiffs’ burden of proof by identifying a number of important principles to be applied in considering the credibility of witnesses. He also discussed the objective factors relied on by the plaintiffs in support of their case. I have set out counsel’s submissions on these matters at some length, because they are a useful reminder of how a court should approach the assessment of credibility in cases where (as counsel put it) credibility looms large. 
41	Defendant’s counsel submitted as follows:
“The credibility of a witness and his or her veracity may be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his or her motives and to the overall probabilities [citing Armagas Ltd v Mundogas SA (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1, 57].”
42	Counsel continued:
“In Onassis v Vergottis, [[1968] 2 Lloyd’s Rep 403, 431, noting that Croft J applied this statement of principle in Fourniotis v Vallianatos (2018) 56 VR 85 at 89-90 [7]] Lord Pearce explained the various matters that a trial judge takes into account in considering the credibility of a witness’s evidence. His Lordship considered, among other things, the possibilities of a truthful or an untruthful witness; the witness telling “something less than the truth” on an issue; the witness being mistaken; the frailty of recollection; and the witness being affected by unconscious bias or wishful thinking. His Lordship observed that “contemporary documents are always of the utmost importance” and, in weighing the probabilities, “motive is one aspect of probability”. His Lordship concluded:
‘All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.’”
43	I agree with and adopt counsel’s summary above. However, in my view, his application of these principles to the facts of this case is more controversial. First, he submits that, significantly for this proceeding, the absence rather than the presence of documents “bears upon the assessment of credibility”. While I accept that the absence of documents is a relevant consideration, I am not persuaded that it bears on credibility. 
44	I also have difficulty with counsel’s next submission. He begins by stating the (unimpeachable) proposition that the allegation of the oral loan agreement bears close scrutiny and that “the Court ought to look for corroboration”. He continues: 
“Like in circumstantial cases, where there is no direct evidence, the totality of the evidence must be considered. To have regard to a single fact as determinative would be erroneous. Adapting what Winneke P said Transport Industries Insurance Co Ltd v Longmuir [[1997] 1 VR 125, 129]:
‘The task … [is] to consider the weight of the combination of facts proved to [the Court’s] satisfaction and then to determine whether the combined weight of those facts and circumstances supported the inference, as a matter of probability, that [the parties entered into a loan agreement in the form alleged].’”
45	However, counsel then appears to contradict these propositions by submitting that it is “insufficient for the plaintiffs to point to the advance of money and to the regular payments and say that these matters are consistent with their allegations” and “it would be erroneous reasoning to regard the monthly payments of $550.00 from Mark to the plaintiffs as evidence of the loan agreement”. I would accept that the advance itself and the monthly payments of $550 are not conclusive evidence of a loan. But, to my mind, both of the matters (and particularly the monthly payments) are potentially important objective elements of the “totality of the evidence” and the “combination of facts”.
46	Counsel for the defendant then undertook a detailed analysis of the competing versions of key events, before his final section, “Synthesis: The Gift Was Not a Loan”. The more salient aspects of this analysis were as follows:
(a)	counsel noted a number of instances where, he asserted, the evidence is incomplete, including lack of evidence about:
(i)	how Mark knew of the sale of the investment property prompting him to ask for a loan and why his financial circumstances prompted him to request a loan;
(ii)	why the first plaintiff first declined the loan to Mark and then decided to double the outlay;
(iii)	how the first plaintiff knew his proposed interest rate of 3% was lower than Mark and Katrina were each paying to the bank; and
(iv)	the timing of Katrina’s plans for buying a bigger house and repaying the loan, compared to the first plaintiff interrogating Mark’s proposal of a five year term;
(b)	that there was not a single document recording so much as the word “loan”, “interest” or “repayment”, including on the various bank transfers, heightened by the absence of any security;
(c)	these matters stood in stark contrast to the first defendant’s assertions that the payments were his “retirement money”, which he would not have parted with in the absence of a promise that it be repaid;
(d)	the defendant’s purported oral acknowledgements of the debt are vague and, if (as the plaintiffs allege) she was not present when the oral loan agreement was reached, it was not put to her that Mark told her about the loan (although I note that counsel later submits the evidence showed that the defendant and Mark discussed everything, including all significant financial decisions);
(e)	the defendant’s account of the 2015 conversations is more comprehensive and credible;
(f)	the proposition that the plaintiffs would lend, undocumented and unsecured, $220,000.00 to Mark is inconsistent with parents who were critical of Mark’s spending habits and with the first plaintiff’s decades of conservative and safe investment practices;
(g)	Mark did not need a loan and there is no evidence of him first approaching his bank to arrange an interest only loan or of any conversation with Mark about why he needed to borrow the money;
(h)	the evidence that the payment to Katrina was a loan was not credible because:
(i)	her tabulation of her cash withdrawals based on her bank statements showed that the withdrawals only rarely totalled $550 per month, and the total was $1,610 (almost three months) short, notwithstanding the evidence of the first plaintiff that there would be “no excuses” for missing payments;
(ii)	Katrina prevaricated on her plans to buy a bigger house;
(i)	there was no discussion of the loan or the issue of repayment at any time after the payments and before Mark’s death – the first plaintiff failed to seek an update, despite Katrina prevaricating on buying a bigger house and Mark’s purchase of a car and spending on home improvements;
(j)	aspects of the first plaintiff and Katrina’s evidence of what was said on the occasion of the collection of part of Mark’s ashes were improbable, particularly that the defendant would admit owing the money, not know the amount involved and then assert (on being told the amount) that repaying it would mean she would have to sell her home;
(k)	the first plaintiff’s assertion at the time of collecting the ashes that he was entitled to the $220,000, was inconsistent with the evidence that repayment was not due until 3 December 2020;
(l)	the circumstances of the preparation and the content of the new wills of Katrina and John Swanson are inconsistent with the existence of a loan by the plaintiffs to Katrina; and
(m)	a number of the first plaintiff’s statements made during the meetings with (among others) Rick and Reno Ascenzo in July and August 2019 were lies or half-truths.
47	In summing up his submissions in support of the defendant’s case that the payment of $220,000 was not a loan, the defendant’s counsel submitted that:
(a)	the plaintiffs’ claim that they advanced $220,000.00 to Mark by way of loan, and not a gift, is opportunistic and disingenuous:
“To Michelle, the plaintiffs were meant to be family. But they did not even want her to marry their son. Whatever the state of the relations after the wedding, they clearly soured after Mark’s death. As a consequence of the bitterness over the handling of Mark’s funeral arrangements, particularly his cremation, all four of Marko, Marija, Katrina and John want to keep the money in the family – meaning taking it out of Michelle’s hands.”;
(b)	the better view of the evidence is that the first plaintiff decided to sell the investment property and let his children have the benefit of the proceeds, Katrina needed the money but Mark did not and therefore initially declined the offer to avoid the plaintiffs having control of Mark and the defendant’s lives, and that there was logic in the agreement to continue to care for the plaintiffs by making the monthly 3% payments;
(c)	on this latter point, counsel added: “The lack of commerciality of the proposal is consistent both with the familial context in which it arose and a lack of intention to create legal relations”; and
(d)	the plaintiffs’ claim was borne of revenge and greed, it was not until after Mark’s death that the plaintiffs first alleged the payment was a loan and Katrina was a willing participant in the plaintiffs’ false claim, because there was much for her and her family to gain in the long run.
The plaintiff’s submissions
48	In his submissions, the plaintiffs’ counsel Mr Devries began by noting a number of matters that were not in dispute, namely:
(a)	the claimed the sum of $220,000 was transferred by the first plaintiff to Mark on 3 December 2015;
(b)	Mark paid to the plaintiffs the sum of $550 on or about the 19th day of each month from January 2015 to February 2019 (inclusive);
(c)	$550 per month equates to 3% per annum of $220,000;
(d)	the claimed sum of $220,000 has not been repaid to the plaintiffs;
(e)	no monthly payment of $550 (or any other sum) has been made to the plaintiffs by Mark’s estate since February 2019.
49	Like the defendant’s counsel, the plaintiffs’ counsel identified the issue for determination as to whether the loan agreement asserted by the plaintiffs was entered into between them and Mark. He continued:
“The determination of that issue depends upon the answer to a relatively straightforward question: did the meeting in mid to late November 2015 between the Plaintiffs, their daughter Ms Katrina Swanson and [Mark’s estate], as asserted by the Plaintiffs, take place and, of lesser significance, did the series of meetings and telephone discussions in 2015 as asserted by Ms Ascenzo take place?”
50	Counsel asserted that it is unclear whether it is the defendant’s case that one meeting did not take place, or that it did take place, but the matters discussed in it were not as testified to by the plaintiffs and their witnesses. He said that it was never put to either of the plaintiffs or Katrina that the meeting they all gave evidence of never happened but, rather, there were other, antecedent meetings and telephone calls. He continued:
“Furthermore, none of those attendees at that meeting was directly challenged on the content of the discussion at that meeting. At best, the Defendant relied upon an inferential challenge based on the content of meetings and telephone calls asserted by Ms Ascenzo and denied by the Plaintiffs and attempts to attack the credit of each of the Plaintiffs’ witnesses.”
51	The asserted failure by the defendant to put to the plaintiffs’ witnesses that the meeting they gave evidence about did not occur, and to challenge those witnesses on the content of that meeting, is a refrain that repeats several times in plaintiffs’ counsel’s submissions. He notes that it was not even put to any of the plaintiffs’ witnesses that the meeting they testified to may have been a post-dinner meeting, at which allegedly both the defendant and Mr Swanson were present. He then identified further reasons why the plaintiffs’ witnesses’ version of the meeting and its contents should be accepted (in effect) as follows:
(a)	the payment of $550 on the 19th of each month from 19 January 2016 until Mark’s death is more consistent with the payment of interest on the $220,000 advanced to him than any other explanation;
(b)	in contrast, the notion that $550 per month was to be paid indefinitely to replace interest forgone by the plaintiffs is highly improbable, reinforced by the fact that the defendant failed to continue the payments after Mark’s death and has not provided a plausible explanation for that failure;
(c)	the suggestion that Katrina made the repayment of the $220,000 to help the plaintiffs’ case would have required her to have ensured the settlement of the sale of her first home at a time that enabled her to repay the plaintiffs between when she knew of the dispute and when the proceedings got underway – that was not put to Katrina and is implausible;
(d)	similarly, Katrina was not challenged on her evidence that she paid her parents an average of $550 per month between January 2016 and when she repaid the $220,000 and while the first plaintiff was challenged on the piecemeal nature of the payments, he was not challenged on their total or average;
(e)	the defendant’s repeated assertions that the plaintiffs never liked her and disapproved of the way she and Mark spent their money were denied by the plaintiffs and were inconsistent with various objective facts. But, if they were true, it would make it even more likely that the plaintiffs would ensure any money advanced was a loan and not a gift;
(f)	if the plaintiffs unilaterally changed the characterisation of the $220,000 payment in retaliation for the defendant’s decision to cremate Mark and choose a coffin they disapproved of, it is unlikely that they would not have done the same in relation to the deposit on the South Morang property and the funds they provided for landscaping and furniture;
(g)	in relation to any statements made by the first plaintiff or Katrina at the meetings in July and August 2019 that might be capable of being shown to be inaccurate, there was no evidence that either of them believed their statements were inaccurate;
(h)	it is inherently implausible that Mark would have simply declined a substantial gift, at least without first asking about how much was on offer and whether there were any strings attached;
(i)	it is even more implausible that any of the defendant, Mark or Katrina would have accepted a gift of $220,000 in return for which they would be paying $550 every month forever, or at least until the $220,000 was returned: “Those payments are more consistent with a loan than a gift”; and
(j)	the evidence of the defendant saying she knew that she owed money to the first plaintiff when the first plaintiff and Katrina came to collect the ashes, and the recounting at the meeting on 27 July 2019 of her making a similar comment to her father, is an admission against interest and goes to the defendant’s credit.
52	Plaintiffs’ counsel also responded at some length to the defendant’s closing submissions, including by responding to the defendant’s allegations of deficiencies and contradictions in the plaintiffs’ evidence. He concluded by submitting that the plaintiffs are entitled to judgement in the sum of $220,000 plus interest. 
The defendant’s submissions in reply
53	Defendant’s counsel commenced his reply submissions by responding to the plaintiffs’ argument that it was not put to the plaintiffs and Katrina that a meeting where the defendant was not present did not happen. He submitted that the argument is misplaced and nothing turns on it. He said that the plaintiffs and Katrina, on the one hand, and the defendant, on the other, gave evidence consistent with their respective cases. The case that was put to the plaintiffs and Katrina was plainly inconsistent with their evidence-in-chief and consistent with the defendant’s case.
54	The other matters raised in the defendant’s reply submissions were in substance that:
(a)	the plaintiffs had not grappled with the defendant’s evidence about the conversations she had with Mark in the plaintiffs’ absence that are entirely at odds with their version of events;
(b)	the plaintiffs criticise the defendant for having a hazy memory but there is no allegation of her outright lying:
“She appropriately admitted when her recollection was imperfect; she was strident about that which he could remember; she was consistent in her evidence both in chief and in cross-examination it is understandable, particularly in the aftermath of her husband’s sudden death, that she would have difficulties recalling some events of that time. It is also understandable, but she would have difficulties recalling details of events and conversations that occurred over five years ago but did not bear any significance until the events of 2019”; 
(c)	the alleged oral acknowledgements by the defendant of a debt would not assist the court as a meaningful admission against interest.
Analysis
55	It is not in dispute that the outcome of this proceeding turns on a single question of fact. Namely, did the plaintiffs and Mark agree in or about mid-November 2015 that the plaintiffs would lend $220,000 to Mark for a term of five years, with interest payable monthly at the rate of 3% per annum? It is not in dispute that the plaintiffs bear the onus of establishing that fact, and whether they discharge that onus depends for the most part on the credibility of their evidence and that of their daughter Katrina and her husband John, weighed against the defendant’s evidence.
56	There are also objective facts that bear upon the issue, but they are few and far between. Importantly, there is no contemporaneous written record constituting or referring to the existence of any loan agreement. I will begin my analysis by making some general observations about the witnesses and their evidence before moving on to my more detailed findings.
Evidence – general observations
57	By orders made on 21 October 2020, Judge Marks ordered that, pursuant to s67(4) of the Evidence Act 2008 (Vic), the Court directs that s63(2) of the Act applies to evidence set out in exhibit FS-1 to the affidavit of Fabio Salemi sworn on 7 October 2020. The effect of the order was that the hearsay rule did not apply to evidence of particular representations made by Mark and heard by others (primarily the defendant). In the end, the effect of orders was more limited than might have been expected, for two reasons.
58	First, I excluded evidence of a proposed witness, Carole Smith, a work colleague of Mark’s, who was expected to give evidence of Mark telling her that he had received a gift from his parents of part of the proceeds of the sale of an investment property. I excluded the evidence not because of any hearsay objection, but rather because the evidence of Mark telling someone about his belief of the nature of the payment would not have been admissible even if he had been present to give that evidence. It would have been no more than a prior consistent statement about his subjective belief of the nature of a transaction entered into 19 months earlier.
59	Second, the defendant’s evidence was that she was present at the time of what were (according to her evidence) the two critical discussions concerning the payment, in October and November 2015. Thus, representations made to her by Mark at other times relating to the terms of payment added nothing of substance to her own direct evidence on that topic. In any event, I generally overruled objections by plaintiffs’ counsel to the defendant’s evidence relating to matters of the kind referred to in Judge Marks’ orders, both because doing so was consistent with those orders and because the evidence was of limited relevance. 
60	Turning to the evidence itself, there were several factors at play that are relevant to the assessment of the evidence generally. The first is that, at the time of the trial, the relevant events took place a little over five years earlier. A time period of that duration can affect the reliability of recollections in at least two ways. First, memories of words spoken and the sequence and timing of events will have become blurred and conflated. Second, those involved have had a considerable period during which they will have ruminated about, discussed and perhaps re-cast the events in their minds.
61	As a result of these matters, there is a real likelihood that witnesses will have reconstructed some events to better suit their personal narrative of what they believe would have happened. This is a notorious human response to difficult events – it is essentially a combination of “the witness being mistaken; the frailty of recollection; and the witness being affected by unconscious bias or wishful thinking”, referred to in the extract from Onassis v Vergottis, quoted above. In this case, the interposing of a tragic event (Mark’s death) is likely to have exacerbated these factors.
62	I did not have the impression that any of the witnesses was deliberately and knowingly lying. The first plaintiff presented as a reliable witness with a good recollection of events. At various points, the defendant’s counsel sought to portray both plaintiffs as heavy drinkers. I found this line of questioning unhelpful and unconvincing, and I note that counsel did not ultimately contend that their recollection of relevant events was affected by alcohol.
63	I was also unpersuaded by counsel’s suggestions that the asserted erroneous statements made by the first plaintiff during the July and August 2019 meetings reflected adversely on the reliability of his evidence at trial. To my mind, they were no more than the kinds of uninformed and exaggerated assertions the frequently occur in informal negotiations of this kind.
64	The second plaintiff disclosed early in her evidence-in-chief that in December 2020 she had suffered two small strokes which had affected her ability to clearly recall events. Consistently with this, the second plaintiff made appropriate concessions that she could not remember some matters. She nevertheless demonstrated a reasonably good memory of important discussions, including some events where other family members were not present. In particular, her evidence of the phone call from Mark when she said he first raised the possibility of borrowing money, came across as a clear recollection, unaided by evidence from any other witness or any documents. 
65	Katrina also presented as a forthright witness. She clearly enjoys a close relationship with both her parents, no doubt because of their shared involvement with her children. While I accept that she had a motive to embellish and reconstruct events to suit the plaintiffs’ case, I was not persuaded that she did so in any material respect. While there was a noticeable consistency in her and the first plaintiff’s accounts of relevant events, I did not see this as resulting from a joint attempt to concoct a story. It is more likely that it resulted from the undoubtably frequent discussions she and the plaintiffs have had about events since the dispute first arose.
66	Mr Swanson’s evidence, while brief, focussed on the single key event of the alleged family meeting when (according to the defendant) the details of the gift were finalised. His evidence was all the more compelling because of this narrow focus. Mr Swanson conceded that there may have been a dinner in November 2015 along the lines suggested by the defendant, but was very clear in his evidence that there was no discussion of financial matters at that time. Because of his limited involvement, I accept that he would have recalled such a discussion if it had occurred, and I had no reason to doubt the veracity of his account. 
67	In evidence in chief, the defendant outlined that, due to her chronic pain condition, she takes medication for pain management, which has the effect of diminishing her ability to concentrate and focus. She nevertheless seemed to me to have  good recall of most events. The defendant appropriately conceded that there were some gaps in her recollection, particularly in the period after Mark’s death. As with all the other witnesses, the defendant did not come across to me as either evasive or dissembling. 
68	The only reservation of substance that I have about the defendant’s evidence is that, in some respects, it was almost too polished. Her recitation of the detail of some events was confident and precise, in circumstances where a greater degree of prevarication might have been expected. For example, there seemed to me to be no hesitation about how the evening of the key family dinner unfolded, when there would have been several similar family dinners both before and since. This was reinforced by the way her counsel put the defendant’s case to the plaintiffs’ witnesses – there did not appear to be any room for nuance or for the possibility that some important matters were discussed in the defendant’s absence, and later relayed to her by Mark.
69	At the conclusion of the defendant’s evidence, I was left with the impression that some of the events she described had been reconstructed over time from a combination of actual events, discussions with Mark and her own sense of how events would or should have unfolded. It is likely that this was not a conscious process, but rather one engendered by unconscious bias and wishful thinking. 
70	As with all other witnesses, I had no reason to doubt the veracity of the evidence of the defendant’s brothers, David and Rick Ascenzo. However, most of that evidence (particularly as it related to their observations of the demeanour of the plaintiffs at family events) was of limited relevance. To the extent that it was relevant, it essentially confirmed the evidence of other witnesses and (in the case of Rick’s evidence) what was in the transcripts of the meetings in July and August 2019. 
Evidence of the November 2015 meeting
71	Nothing of substance turns on how the meeting in mid-November came about, except to the extent that the plaintiffs say that Mark asked about borrowing money and the defendant says that, from the outset, the proposal was for a gift. I was unpersuaded by the defendant’s counsel’s submission that the plaintiff and Katrina’s evidence on this issue was undermined by the lack of evidence on certain matters of detail. An example of this is defendant’s counsel’s suggestion that there was no evidence about how Mark knew of the sale of the investment property that the plaintiffs allege prompted his request for a loan. In my view, it is inconceivable that this sale of a substantial family investment would not have been generally known among family members.
72	As noted above, I considered that the second plaintiff’s evidence of the initial phone call from Mark asking to borrow money, as well as her response (“You have to ask your Dad”), both natural and convincing. Similarly, it is plausible that the first plaintiff’s initial instinctive reaction to a request by Mark for a loan would be to say no. It was common ground that he was careful with his money and was concerned to ensure that he and his wife has sufficient resources to fund their retirement. However, after further reflection and discussion with the second plaintiff, he could well have decided that he could help his children with a low interest loan for a few years, and be no worse off than he would be by leaving the funds on a term deposit. 
73	Turning to the meeting itself, consistently with Mr Swanson’s evidence, I accept that there may have been a family dinner at the plaintiffs’ house in around November, probably to mark the second plaintiff’s birthday. However, I am satisfied that this was not the occasion when the circumstances for the payments of $220,000 to each of Katrina and Mark were discussed, for three reasons. First, as explained above, I found Mr Swanson’s evidence on this issue compelling. Second, as with other issues in dispute, the weight of the oral evidence otherwise favours this conclusion. Third, I accept the plaintiffs’ evidence that they did not discuss family financial matters in the presence of the defendant. 
74	Expanding on the third reason, the consistent evidence of all witnesses was that the plaintiffs are private and family orientated people. It is entirely plausible that they would much prefer to have a discussion about what was, in essence, a private family decision, only with their children.
75	Further, the defendant went to some lengths to adduce evidence that the plaintiffs (and particularly the second plaintiff) disapproved of the defendant, including in relation to her role in the decisions she and Mark made about how to spend their money. This was denied by the plaintiffs. While I was not persuaded that the animosity was at the level suggested by counsel for the defendant, I accept the plaintiffs carried at least a low level of disapproval or disappointment in the defendant as a daughter-in-law. This makes her participation in a family discussion of money even more unlikely.
76	The defendant gave detailed evidence about her and Mark’s relationship, and how they “discussed everything together” relating to finances and neither would “make a decision on the spot without discussing it together and thoroughly”. I am satisfied that Mark would have taken the time to discuss such a significant financial decision with the defendant, including by describing in detail the matters discussed with his parents and Katrina at the pros and cons of the payment. In my view, the likely explanation for the defendant’s evidence about the November meeting is that she has conflated a family dinner in mid-November with this discussion with Mark at around the same time about the proposed payment, and imagined herself at the meeting. 
Evidence of a loan
77	Of course, a finding about who was present at the time the payment was discussed does not entirely dispose of the single issue in this case. I accept (as plaintiffs’ counsel was at pains to emphasise) that the defendant did not directly put to the plaintiffs’ witnesses a scenario in which the meeting they gave evidence about (that is, a meeting where the defendant was not present), involved the terms of a gift and not a loan. However, I do not propose to overlook that possibility. In my view, the omission in how the defendant’s case was put on this and other issues, resulted from an overly literal view of the requirements of the so-called rule in Browne v Dunn, rather than from a deliberate forensic choice.
78	Putting to one side the detail of the alleged meetings, there are a number of factors relied on in defendant’s counsel’s submissions that, to my mind, have some force in supporting the defendant’s primary submission that the plaintiffs have failed to establish the payment was a loan. Probably the most compelling is the submission that there was not a single document recording the word “loan”, “interest” or “repayment”, including on the various bank transfers. And coupled with that is the submission that this absence of a relevant descriptor is all the more concerning, given the first plaintiff’s apparent careful management of his money, including his evidence about the ongoing payments being the plaintiffs’ “retirement money”.
79	With some hesitation, I have concluded that this can be explained by the nature of the relationship of the parties. As plaintiffs’ counsel submitted, this was not a commercial transaction. Indeed, defendant’s counsel made a similar point, albeit in seeking to explain the defendant’s version of the $550 payments. He said that the lack of commerciality of the payment arrangement is consistent with the familial context in which it arose.
80	In my view, the same can be said of the failure to document the loan. The first plaintiff was clearly intelligent but, despite the defendant’s counsel’s submissions to the contrary, he presented to me as somewhat lacking in financial acumen. Further, based on my observations of the plaintiffs during their evidence, their failure to identify any need to document the terms of a loan to their children was unsurprising. 
81	I also have some reservations about the evidence of the cash payments of $550 by Katrina. In contrast to what the plaintiffs appeared to expect of Mark, it was a surprisingly informal approach to the interest payments, apparently resulting in a small shortfall in the total payments due. On the other hand, it is not in dispute that each of Mark and Katrina were obliged to make the payments, so the defendant did not argue that the payments were a sham. The only question is whether they were in the nature of interest on a loan, or an indefinite and non-binding payment in acknowledgment of a gift. I comment on that matter below.
82	Other matters relied on in counsel’s submissions were less persuasive. In particular:
(a)	the proposition that the plaintiffs would lend, undocumented and unsecured, $220,000.00 to Mark is inconsistent with parents who were critical of Mark’s spending habits and the first plaintiff’s safe investment practices – to my mind this is no less applicable to a gift than a loan, and probably more so;
(b)	Mark did not need a loan and there is no evidence of him first approaching his bank to arrange an interest only loan – Mark already had a loan (which the payment of $220,000 from his parents effectively refinanced) and did so at deposit rate of interest, which is invariably significantly lower than a bank’s lending rate;
(c)	there was no discussion of the loan after the payments and before Mark’s death – I accept plaintiffs’ counsel’s submission on this; there was no reason to discuss it;
(d)	the first plaintiff’s assertion at the time of collecting the ashes that he was entitled to the $220,000, when the repayment was not due until 3 December 2020 – in my view, the effect of the first plaintiff’s comment was that “I am owed the money”, not “the money is now due”;
(e)	the circumstances of the Katrina and John Swanson’s wills – although the language used in the wills is somewhat incongruous, I am not satisfied that this is a sufficient basis (alone or in combination with other factors) for impeaching Katrina’s evidence on what occurred at the November 2015 meeting. Further, if it was indeed a gift, there was no reason to refer to the sum of $220,000 in the wills at all; and
(f)	the plaintiffs had not grappled with the defendant’s evidence about the conversations she had with Mark in the plaintiffs’ absence that are entirely at odds with their version of events – I adopt plaintiffs’ counsel’s submission on this issue: evidence of these matters is, for the most part, not receivable if (as I have found) the terms of the concluded loan agreement were reached at the meeting in mid-November 2015.
83	There are three further factors that in my judgment reinforce the conclusion that the payment was a loan on the terms the plaintiffs allege. These are:
(a)	the regular $550 payments are best seen as payments of interest;
(b)	the admissions made by the defendant after Mark’s death; and
(c)	the weight of the oral evidence. 
The regular $550 payments
84	In my view, the advance of the $220,000 alone is obviously a necessary fact in proving the loan, but is otherwise a neutral consideration. On the one hand, I agree with defendant’s counsel that the rationale underpinning the presumption of advancement discussed by Dixon J in Wirth v Wirth does (by analogy) weigh against the fact of the advance supporting the existence of a loan.
85	On the other hand, the evidence showed that the advances to both Mark and Katrina constituted a substantial proportion of the capital savings and superannuation that the plaintiffs had built up over their working lives. It does seem to me unlikely that they would permanently part with such a large sum of money, just as they were embarking on their retirement, particularly if (as the evidence suggests) they were hoping not to apply for pensions.
86	In this context, I am not persuaded by defendant’s counsel’s submission that the plaintiffs could “afford” to give an early inheritance of $440,000. They could only afford it in the sense that they had the funds available to them. But, even on the defendant’s calculations, parting with those funds permanently would have reduced their reserves of cash and superannuation by almost a third (from $1.4 million to $960,000), at a time when the plaintiffs were still in their early sixties.
87	Turning to the monthly payments of $550, in my judgment these are a material (although not decisive) consideration. The circumstances of these payments constitute precisely the type of objective fact that courts should look for to corroborate the oral evidence in circumstantial cases. I reject the defendant’s counsel’s submission that it would be erroneous to regard the payments as evidence of the loan agreement. They are (to paraphrase defendant’s counsel) part of the totality of the evidence that must be considered, in determining the issue in this case. 
88	It is not in dispute that both Mark and Katrina agreed to pay the plaintiffs the sum of $550 per month and that Mark and the defendant paid this amount until the month after Mark’s death in 2019. Plaintiffs’ counsel invited me to conclude that the payment of $550 on the 19th day of each month is more consistent with payment of interest than any other categorisation. I agree. I also agree that the notion that Mark and the defendant would agree to pay $550 per month indefinitely is improbable. 
89	In arguing a contrary view, defendant’s counsel cited Edmonds J in Federal Commissioner of Taxation v Rawson Finances Pty Ltd, as follows:
“The essence of a loan of money from A to B is a corresponding contemporaneous obligation on the part of B to repay the money transferred… [a]bsent that obligation, the transfer of the money from A to B is something else – a gift, a payment by direction, a payment of repayment of an anterior obligation – but it is not a loan. The obligation of repayment is not proved by subsequent payment of the same amount, let alone a different amount… [r]ather the obligation of repayment is proved by the terms of the contract under which the money was transferred…”
90	Counsel submitted that: “Similarly, it would be erroneous reasoning to regard the monthly payments of $550…as evidence of the loan agreement”. In my view, this misconstrues Edmonds J’s remarks. His Honour is discounting the relevance of subsequent payments as constituting evidence of repayment of a loan. Here, there is no suggestion that the payments of $550 were loan repayments – rather, the plaintiffs say they were payments of interest at 3% per annum, being the rate agreed at the November 2015 meeting.
The defendant’s admissions
91	There is evidence of two potentially relevant admissions made by the defendant after Mark’s death, discussed in the factual narrative above. The first is the evidence of the first plaintiff and Katrina that when they attended the South Morang property to collect Mark’s ashes, the defendant said words along the lines of “I know I owe you some money”. The second is reference in the transcript of the meeting on 27 July 2019 to the defendant’s father saying that the defendant had said to him that he should “forget about the paper, we owe [the first plaintiff] the $200…”, and Rick Ascenzo’s evidence at trial that he was present when the defendant said that to her father. 
92	In relation to the first of these admissions, I am satisfied on balance that the defendant made a remark to the effect suggested. While the defendant denied doing so, she made the frank admission that (unsurprisingly) she was “in a complete fog” at this time and her memory was not “one hundred percent”. Further, she accepted that she agreed that a conversation about money was required. It is not clear why this would be so, if the payment was a gift. I also consider it unlikely that, despite the difficulties in the relationship with the defendant that emerged shortly after Mark’s death, the first plaintiff would have been so insensitive as to raise the issue of the loan at such a distressing moment, if it had not first been mentioned by the defendant. 
93	Turning to the second admission, defendant’s counsel submitted that it was vague and, at best, might have been an expression of her opinion about some obligation to the plaintiffs, but that as an admission about a legally enforceable obligation, it was valueless. Plaintiffs’ counsel argued in response that the plaintiffs did not rely on the defendant’s statement as evidence of its contents, but rather as an admission against interest. Accordingly, the evidence should not be excluded as an inadmissible post-contractual statement.
94	I agree. In my view, both statements reflect a more contemporaneous and thus more reliable version of the defendant’s understanding of the nature of the arrangement with the plaintiffs, than that portrayed by her evidence at trial. As I have said, I do not find that the defendant was deliberately lying in her evidence about these matters. Rather, I am satisfied that her description of relevant matters was infected by reconstruction. In that limited sense, I agree with plaintiffs’ counsel that the statements go to her credit. However, I do not wish to overstate the significance of this finding. By itself, it would probably be insufficient to support judgment for the plaintiffs. It is this finding in combination with the other factors discussed in these reasons that lead to that result.
The oral evidence
95	I disagree with defendant’s counsel’s submission that the evidence of the plaintiffs’ witnesses has no real forensic value. Indeed, in a case where there is no written loan agreement or other relevant contemporaneous documents, the oral evidence has enhanced importance. I have set out above my views on the credit of the witnesses. Those views lead inevitably to the conclusion that the version of the meeting in mid-November 2015 advanced by the plaintiffs must be preferred. Thus the weight of the oral evidence supports the conclusion that the plaintiffs have discharged their onus of proving that the payment of $220,000 to Mark on 3 December 2015 was a loan on the terms they allege. 
- - -
Certificate
I certify that these 33 pages are a true copy of the judgment of His Honour Judge Woodward delivered on 3 March 2022.
Dated: 3 March 2022. 
Claire Findlay
Associate to His Honour Judge Woodward