Sokolowski v Craine

1. [1]

   The plaintiff seeks leave to appeal from the decision of Magistrate Halburd in the Local Court at Sydney of 5 February 2018. In that decision, the learned Magistrate gave judgment for the plaintiff in the sum of $37,780.29.

2. [2]

   The plaintiff’s claim, as set out in her amended statement of claim, was for $79,000 plus interest and costs. Her claim arose out of her allegations as to sums of money she loaned to her former de facto partner, the defendant.

3. [3]

   In issue, amongst other things, was whether there was any provision for interest on the loans, whether some items should be set off, and whether various payments made were in truth repayment of the loan and whether any payments she made to the defendant were statute barred by operation of ss 14 and 63 of the Limitation Act 1969 (NSW).

4. [4]

   There was also an issue as to whether the repayments the plaintiff alleges were made would restart the limitation period, pursuant to s 54 of the Limitation Act, and whether acknowledgements of debt signed by the defendant in 2011 and 2012 operated to “re-start” the reckoning of the limitation period.

5. [5]

   This appeal was commenced by summons which was amended both prior to and at the commencement of the hearing. The question of leave and the appeal were argued together.

6. [6]

   I have determined that leave to appeal should be refused as the appeal is without merit for the reasons that follow.

Factual background and issues between the parties

1. [7]

   Around the middle of 1995, the plaintiff met the defendant. Later in the year they commenced a romantic relationship. That relationship ended in about September 2012. During the first phase of the relationship, in early 2003, the plaintiff provided various amounts of money to the defendant by way of loan. Some moneys were repaid directly to the plaintiff in the second phase of the relationship.

2. [8]

   It is not in dispute that some moneys still remain payable by the defendant.

3. [9]

   The last three repayments were made by the defendant on 23 April 2014.

4. [10]

   On 20 December 2016, these proceedings were commenced seeking the sum of $79,000 plus costs and pre-judgment interest. The loans were set out in table form attached to a statement by the plaintiff which was tendered at the Local Court hearing. On the plaintiff’s case, loans were made from February 2003 to October 2012.

5. [11]

   The table refers to various repayments by the defendant, but a number of these are disputed by the defendant as having been sums paid by way of repayment of the loans.

6. [12]

   Also tendered and referred to in the table were two written acknowledgements of balances outstanding, dated 1 April 2011 and 15 March 2012. The plaintiff contended that these documents, along with the various repayments made during the loan period, operate to prevent any of her claim from being statute barred.

7. [13]

   The defendant for his part did not dispute that he was loaned the sum of $35,000 between February 2003 and August 2004, but disputes that the repayments that the plaintiff claims occurred between September 2004 and June 2007 happened, saying that they either did not happen, or whatever financial event occurred, it was not in the nature of a repayment.

8. [14]

   The defendant maintains that the written acknowledgements alone (which he acknowledges signing) are insufficient to prevent any payment made by the plaintiff to the defendant before December 2010 from being statute barred.

9. [15]

   The defendant acknowledged that he owed the total sum of $42,958.28 less the set-offs he claimed and that the arrangement was that the loans were to be interest free unless he died before repayment.

10. [16]

    The set-offs are in respect of the joint expenses associated with keeping pet rabbits and some other specified items.

11. [17]

    The end result, from the defendant’s point of view, is that the sum he owes the plaintiff is $37,460.29.

Local Court proceedings

1. [18]

   The matter proceeded for two days for hearing before the learned Magistrate on 11 October and 6 December 2017. He provided reasons for judgment on 5 February 2018, awarding judgment for the plaintiff against the defendant in the sum of $37,780.29, plus interest on that sum from 20 December 2016 to the date of judgment pursuant to s 100(1) of the Civil Procedure Act 2005 (NSW).

2. [19]

   Both parties were represented by counsel. Both were called to give evidence in chief to add to their statement or affidavit. Both were cross-examined.

3. [20]

   His Honour identified the factual matters that he need to determine were:

The judgment in the Local Court

1. [21]

   After stating the onus of proof was governed by s 140 of the Evidence Act 1995 (NSW), his Honour then went on to examine each of the issues in turn. In doing so he extracted parts of the cross-examination of the plaintiff and the defendant that had a bearing on each issue.

2. [22]

   Dealing with the first issue, the assessed repayments between 2004 and 2007, his Honour made reference to the fact that the entire evidence in chief relied upon the plaintiff in respect of these repayments consisted of 12 words: “during the period September 2004 to June 2007 some repayments were made”.

3. [23]

   The defendant’s evidence on this issue was that he did not make any such repayments and “he does not know what the plaintiff was talking about”.

4. [24]

   There was cross-examination of both the plaintiff and defendant on this issue. The plaintiff claimed in cross-examination that she actually had some documents telling her what amount was owing and the precise repayments during that period at the time that she prepared her statement, but that she “no longer had them”. She later in cross-examination said that she “did not have the document with her”. Then, in re-examination (after the lunch break) the plaintiff produced what she claimed to be the contemporaneous documents in the form of two notes recording both payments and repayments. Those documents were tendered in re-examination. She explained that her lawyers had those documents.

5. [25]

   His Honour observed that it was “passing strange” that the plaintiff claims to have had some contemporaneous documents evidencing payments and repayments, yet elected not to attach them to her statement or even mention them in the statement that she relied upon in the proceedings.

6. [26]

   His Honour observed that the documents did not seem to show the amount of $30,000 being the amount of the first written acknowledgement and strangely the documents were all written in one pen, despite being added to according to the plaintiff’s evidence, over the years between 2003 and 2012.

7. [27]

   There was also evidence that the defendant’s solicitor’s had written to the plaintiff’s solicitors in March 2017 requesting, amongst other things, copies of “any documents constituting or evidencing any agreement to repay amounts which the defendant had been loaned and agreed to be repaid”. The handwritten documents that later became Exhibit 3 were not provided.

8. [28]

   Counsel for the plaintiff argued that the plaintiff did not need to disclose the asserted contemporaneous documents because they did not “evidence the loan agreement”.

9. [29]

   His Honour observed that the failure to include anything about what were asserted to be contemporaneous documents, or to put them in evidence in her statement tendered in the proceedings, reflects poorly on her credit.

10. [30]

    The other document identified by his Honour as relevant to resolving this first issue about repayments alleged to have been made was the first acknowledgement document dated 1 April 2011 which acknowledges the amount due by the defendant to the plaintiff of $30,000.

11. [31]

    His Honour noted that counsel for the plaintiff submitted that by combination of what the defendant said in paragraph [13] of his affidavit and what he said in cross-examination [1] , the defendant in fact accepted that the sum of $48,000 could have been advanced by the time of the first acknowledgement:

12. [32]

    Given that position, counsel submitted, the sum of $30,000 seemed to be an accurate summary of what was owing then and that meant that some repayments must have been made.

13. [33]

    His Honour observed however that the plaintiff alleged that further amounts were loaned by her to the defendant to the value of about $13,400, and if those amounts were not in fact loaned, then the position argued for has less weight.

14. [34]

    His Honour then went on to analyse the evidence in respect of each of the asserted repayments that the plaintiff says that the defendant made to her. He observed that the $1,000 asserted to have been repaid on 5 September 2004 was not supported by any evidence, was not put to the defendant in cross-examination, and so was rejected.

15. [35]

    In respect of the asserted re-payments of $8,000 and $6,000 (from which the plaintiff says she deducted the sum of $3,100 because she had paid taxes on that amount that she had lent to the defendant) as these were not put to the defendant in cross-examination, they were rejected.

16. [36]

    In respect of a repayment that the plaintiff says was made by the defendant on 18 January 2007, the plaintiff relied on Exhibit 3, the “contemporaneous notes” where there was an entry “paid Telstra”. Because these notes were tendered in re-examination, his Honour allowed for further cross-examination of the plaintiff on this issue. His Honour noted that in cross-examination the plaintiff said that the defendant had given her this money as he had made a payment to Telstra “… for a Telstra bill is that right? Answer: Yes”.

17. [37]

    Later in the cross-examination, the plaintiff acknowledged that the defendant did not know that she had been keeping this record (Exhibit 3) and she agreed that he had never seen it.

18. [38]

    It was put to her that she did not discuss with the defendant the fact that this money paid to Telstra had been considered by her to be a repayment of the loan. She replied “I think I did”, but she was pressed “when you think you did, do you remember that you did” and she answered “I cannot remember right now, but we had the discussion because I remember that we said yes this was for Telstra towards Telstra, yes. This one is for the car, yes, I do remember that”.

19. [39]

    His Honour observed that given what was put to the defendant in cross-examination, the plaintiff’s case “seems to have changed”. The defendant was initially asked a number of times whether he had “paid a Telstra bill” for $2,500. He agreed that was possible. But then the questioning shifted to Telstra shares in the same amount. He agreed that he paid for some Telstra shares that were in the plaintiff’s name. He did not remember the date that he bought them and he could not remember on how many occasions he had purchased Telstra shares for the plaintiff. Then there was this question and answer:

20. [40]

    His Honour quoted the rest of the cross-examination (which ended up being quite circular) with the defendant stating that it was “not correct” to say that the Telstra shares in January 2007 for $2,500 was for reduction of the loan saying “no, that was not correct. It would not have been a reduction on the loan, otherwise we would have had it as reduction on the loan”.

21. [41]

    His Honour then dealt with the entry in the plaintiff’s contemporaneous document, dated 1 April 2007 which simply says “for car”. It was not until the defendant was cross examined about this, his Honour observed, that any detail could be ascertained in respect of this alleged payment. The defendant basically responded that it was “possible” that he had made a payment in respect of the plaintiff’s car, and that it “would not necessarily” be his expectation that it would reduce his indebtedness to her.

22. [42]

    The claimed repayment sum of $1,000 in May 2007 “for computer” was not put to the defendant and so was rejected.

23. [43]

    An item marked “to my super” in the sum of $5,000 on 26 June 2007 was suggested to the defendant to be a repayment. He was asked whether he remembered paying it, and he said that he did not remember it. He acknowledged that it was a “possibility”, but he would not expect it would be deducted against the money that he owed the plaintiff unless he made that arrangement.

24. [44]

    His Honour observed [2] that it was difficult to understand why this part of plaintiff’s case, which related to all payments prior to 20 December 2010, was dealt with in her statement comprising her in evidence in chief only by the use of 12 words and that:

25. [45]

    His Honour then observed that perhaps the plaintiff was simply relying on the first acknowledgement to show that some repayments have been made, (uncontroversially), but as his Honour observed “that alone cannot be sufficient”, going on to observe that “it is for the plaintiff to prove the repayments and that they were agreed to be repayments”.

26. [46]

    His Honour then went on to find that the absence of specificity about these items in the statement of the plaintiff that was tendered, led him to be not satisfied that either of the amounts in the July 2005 period were in fact repayments.

27. [47]

    His Honour then dealt with the plaintiff’s counsel’s submissions that in cross-examination the defendant seemed to say that there was some sort of agreement in respect of those items to reduce his indebtedness. His Honour concluded that the plaintiff’s own evidence on this issue was that the repayment relied upon was for a Telstra bill, not for Telstra shares at all. He was accordingly unable to be satisfied that this was in fact a repayment of the loans.

28. [48]

    In terms of the evidence about the 1 April 2007 payment about “the car” his Honour noted that the plaintiff had in cross-examination given evidence that the entry was for some “car-related expenses”, and so he concluded that this could not be considered to be a repayment.

29. [49]

    His Honour also concluded that an amount identified as a payback for a computer or some computer related expenses was not established to be a repayment, and that the plaintiff’s evidence did not come up to proof on that issue.

30. [50]

    In terms of the June 2007 payment for “super”, his Honour observed: [3]

31. [51]

    In short, the plaintiff simply failed to establish, as a matter of fact, any of the asserted payments were, properly considered, repayments.

32. [52]

    The second issue for determination was whether the sums of $2,000 and $1,000 paid by the plaintiff to the defendant on the 29 and 30 March respectively, were loans. His Honour noted that the defendant claimed to have paid cash to contractors working on the plaintiff’s property, and that the moneys were not advanced as loans to him. His Honour observed that the defendant’s response on this was “vague” and that in cross-examination “he did not fare so well”, conceding that he could not actually remember paying tradesman and that it was possible that these payments were loans.

33. [53]

    His Honour observed that the plaintiff was cross-examined on her evidence about this issue and was not shaken. [4] He accepted in the plaintiff’s favour that these amounts were in fact loans advanced to the defendant.

34. [54]

    In respect of the third issue, the sum of $6,041.70 said by the plaintiff to have been loaned to the defendant between 2011 and 2012, his Honour observed that the plaintiff’s statement does not specifically mention this sum at all, other than that the amount is included in the table that was attached to the statement.

35. [55]

    His Honour noted that the evidence is unclear as to whether, by paragraph [27] of his affidavit, the defendant was accepting that these amounts had been advanced to him:

36. [56]

    His Honour concluded that counsel for the defendant had argued that this paragraph simply says that he has no recollection of receiving this sum. Receipt of this sum had also been disputed in the opening and at paragraph 6(b) of the defendant’s case summary document.

37. [57]

    His Honour concluded that the evidence on this subject is ambiguous, and that the defendant was not cross-examined about the issue. The plaintiff was cross-examined and his Honour observed that she did not recall a specific date or an exact amount, and that it seems that the plaintiff included it, because it brought the total to the amount set out in the second acknowledgement that had been signed by the defendant.

38. [58]

    His Honour concluded that the plaintiff carried the onus to prove this amount was in fact advanced, and he was not persuaded on the available evidence that she had discharged that onus.

39. [59]

    The fourth issue was regarding the set-offs. The first set-off in the sum of $4,643 regarding the pet rabbits is one for which the defendant carries the onus of proof. The defendant was cross-examined on this issue and had attached a spread sheet to his affidavit which he said was updated with each purchase.

40. [60]

    His Honour concluded that the only evidence before the Court on this issue was from the defendant and that he was persuaded to accept his evidence. [5]

41. [61]

    His Honour observed that the plaintiff had not put on any evidence about this in her statement, but sought leave to adduce oral evidence in chief on the issue. [6] This was opposed and leave was refused (there is no appeal ground complaining about this decision).

42. [62]

    In relation to the other set-off his Honour was persuaded that there should be a further set-off of payments the defendant made at the request of the plaintiff in the sum of $535 reflecting a computer, a DVD recorder and a City Rock Ball ticket.

43. [63]

    His Honour then went on to analyse the operation of the Limitation Act on the plaintiff’s claim. His Honour concluded that the cause of action accrued when each loan was made and so the effect of s 14, coupled with the effect of s 63 is that at the expiration of the limitation period of 6 years from the date of the various loans, the right and title of the person formerly having a cause of action, is extinguished. [7]

44. [64]

    Sections 14 and 63 of the Limitation Act provide:

45. [65]

    His Honour then made reference to the submission of counsel for the plaintiff that this position is ameliorated by s 54 of the Limitation Act. Section 54 provides relevantly:

46. [66]

    His Honour then referred to the operation of s 21 of the Civil Procedure Act 2005 (NSW) which he noted provides for set-offs of mutual debts and that they were able to be set-off by way of defence as was sought. [8]

47. [67]

    Under the heading “Applying the Facts to the Law” his Honour proceeded with his conclusions. He decided that given that the statement of claim was filed on 20 December 2016, any loans made prior to 20 December 2010 are statute barred. He noted that this is so, “unless there has been a confirmation under s 54” within that period. In the circumstances of this case the confirmations that the plaintiff relies upon are the alleged repayments and the two written acknowledgements.

48. [68]

    His Honour concluded that there “had not been any repayments in the relevant sense”.

49. [69]

    His Honour then went on to deal with the written acknowledgements, noting that they were both executed “after the limitation period had expired”, and so s 54 of the Limitation Act is not engaged, and so the first five payments on the plaintiff’s table of loans are statute barred. [9]

50. [70]

    His Honour then went on to consider the asserted sixth payment in the sum of $13,400 said to be made sometime in 2011 to 2012 concluding that the evidence about it from the plaintiff (which he cites) is not sufficient to support a finding that that sum of money was in fact loaned. [10]

51. [71]

    His Honour observed that in circumstances where the plaintiff carries the onus to satisfy the tribunal of fact about the issue of a loan and its quantum, the plaintiff also has an obligation to indicate the time the loan was advanced where there is a limitation period issue. His Honour cited Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 at [45] in support of that conclusion.

52. [72]

    His Honour concluded [11] that the plaintiff was entitled to recover, taking into account the defendant’s set-off and agreed repayments in the sum of $30,000, a total of $37,780.29.

53. [73]

    His Honour then referred to the argument about pre-judgment interest. After assessing the arguments for and against that, he concluded that s 100 of the Civil Procedure Act provides him with a discretion which has the purpose of allowing a successful plaintiff to be compensated for the loss of use of their money or as a result suffering a real and practical loss: Screenco Pty Ltd v R L Drew Pty Ltd (2003) 58 NSWLR 720. His Honour accepted the defendant’s submissions that the discretion had to be exercised having regard to what is fair between the parties. Given the finding with respect to an agreement that the payment of interest (that is that the parties had an agreement that the loans were not attracting interest unless the defendant died before repayment), he would not make an award of interest to accrue from the date the cause of action accrued for each individual loan amount, but that proper compensation to the plaintiff would be that the defendant pay the plaintiff interest on the sum of $37,780.29 from 20 December 2016 to the judgment date of 5 February 2018.

Appeal grounds

1. [74]

   The grounds of appeal in the Amended Summons were stated to be as follows:

Principles and underlying policy applicable to leave to appeal

1. [75]

   An appeal from the Local Court to the Supreme Court is, as of right, only on a question of law. Section 39 of the Local Court Act 2007 (NSW) provides:

2. [76]

   Questions of mixed law and fact require leave. Section 40 of the Local Court Act provides:

3. [77]

   As a matter of policy, matters involving small disputes should generally be finalised in the Local Court: see MacPhail v MacPhail [2017] NSWSC 942 per Davies J at [75] and [77].

4. [78]

   As stated in Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, Campbell JA (Young and Meagher JJA agreeing) noted at [46]:

5. [79]

   A question of mixed fact and law is a question upon which decision is required on the application of a legal test or a standard to the facts under consideration; the facts as well as the law must be decided, to assess whether the court below reached a wrong conclusion when deciding what result is produced by their interaction: Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [39] per Bryson JA (Santow JA agreeing).

6. [80]

   As stated by Hall J in US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705 (“US Manufacturing”) at [55]:

7. [81]

   That issue is significant in this appeal because a number of the appeal grounds mischaracterise pure questions of fact as “errors of law and fact”, in particular grounds 4, 5 and 6 which can only be errors of fact, if I found them to be errors at all.

8. [82]

   Relevant to the determinations the learned Magistrate had to make, s 140 of the Evidence Act 1995 (NSW) provides as follows:

This Appeal

1. [83]

   Counsel for the plaintiff argued that in respect of ground 1 there was an error of law because the learned Magistrate failed to find that the handwritten note of 15 March 2012 constituted an admission of liability by the defendant to the plaintiff in the sum of $104,000. He argued that the significance of that document was that the plaintiff no longer held a responsibility to establish how the $104,000 was constituted. In oral argument, counsel for the plaintiff developed this argument further, submitting that an evidentiary onus passed to the defendant which he did not meet and that the learned Magistrate was in error because he gave no weight at all to this handwritten note.

2. [84]

   Counsel for the plaintiff was unable to cite any authority for the proposition that there was a shift in the evidentiary onus, but relied on the law in respect of acknowledgements amounting to admissions in terms of the amount due to the plaintiff at that time (see Bucknell v Commercial Baking Co of Sydney Ltd (1937) 58 CLR 155; [1937] HCA 35 and Stage Club Ltd v Miller’s Hotel Pty Ltd (1981) 150 CLR 535 at 164; [1981] HCA 71).

3. [85]

   He argued that this was an error of law as described in [54] of the judgment of Hall J in US Manufacturing:

4. [86]

   because the learned Magistrate failed to consider the document as an admission at all, and gave it no weight at all in that context.

5. [87]

   This was further developed by reference to G E Dal Pont, Law of Limitation (2016, LexisNexis Butterworths) at 17.24-25 dealing with the concept of acknowledgement for the purposes of limitation law being understood as involving an admission that a debt amount remains outstanding.

6. [88]

   Alternatively, it was submitted by counsel for the plaintiff, this could be a question of mixed fact and law (ground 2), and the same submissions apply and leave should be given to correct the error.

7. [89]

   In respect of grounds 3 and 4, it was submitted that the learned Magistrate did not take into account the written acknowledgement of 4 April 2011 as constituting an admission of what the defendant owed to the plaintiff, particularly when read in light of the acknowledgement in his evidence on 11 October 2017 at T57 that “it could have been around that amount” ($30,000) and, his evidence in respect of the repayment of $13,400, (see 11October 2017 at T44), to the effect that, although he does not recall it, it is possible.

8. [90]

   His Honour did not sufficiently deal with the evidence of the plaintiff [12] about how the acknowledgement note was prepared and as said in her evidence that it was prepared by the defendant. It was argued that his Honour’s judgment simply failed to deal with this evidence. Counsel for the plaintiff argued that the defendant’s answer acknowledges that there must have been some repayments. This indicates that the conclusion reached made by his Honour [13] is not only against the weight of the evidence, but is patently wrong because he does not deal with this other evidence. His Honour’s failure as a result to draw the correct inference from the effect of this evidence is an error of law.

9. [91]

   In respect of ground 5, it was submitted that the finding that the plaintiff did not establish the repayments of the loan because they were not referred to in her statement which comprised her evidence in chief, is a negative credibility finding that no judge, acting reasonably, could make because it fails to take into account her evidence on that issue. Payments were included in the typewritten annexure to the plaintiff’s affidavit (although the basis and description of the payments is not included) and the date ranges were explained in cross-examination. [14] The adverse finding regarding the plaintiff’s credibility [15] should not have been made.

10. [92]

    In respect of the repayments dealt with in ground 6 of the appeal, there is an error of mixed law and fact because no judge acting reasonably could have made the finding that was made that these items were not repayments given the evidence available. In support of this allegation I was taken to the defendant’s evidence: [16]

11. [93]

    Counsel for the plaintiff submitted that this evidence is an admission that there was repayment of the loan by way of the Telstra shares purchase.

12. [94]

    In respect of the car, $1000 cash was advanced by the defendant and this is recorded in the documents that comprised Exhibit 6. The superannuation document tendered and the evidence about it [17] acknowledges that it was possible that the defendant paid those amounts into the applicant’s superannuation and that the payments would have reduced his indebtedness to the plaintiff.

13. [95]

    It was submitted that the entirety of his Honour’s reasons demonstrated that he imposed upon the plaintiff a higher burden than the balance of probabilities as set out in s 140 of the Evidence Act. It was not put to the plaintiff that her records regarding repayments were a fabrication, nor could it be. Whilst the plaintiff needed to establish the payments made by the defendant were by way of repayment of the loan, there was evidence from the plaintiff in examination in chief and concessions by the defendant in cross-examination, to the effect that they were repayments.

14. [96]

    Ground 8 raises what counsel for the plaintiff described as “unfair findings” against the plaintiff. It was argued that the first was a “misdirection” in law in determining that the handwritten documents that the plaintiff made should have been produced in response to a subpoena. Further, his Honour made an error of mixed law and fact in concluding negatively in respect of the plaintiff’s credit regarding her failure to put the handwritten documents into evidence when she gave evidence in chief. It was argued that she did not have those documents “with her” in the witness box. It was argued that there was no need to put those documents into evidence when she had an admission that the defendant had signed that the total amount loaned by her between 10 February 2003 and 15 March 2012 was $104,000. Counsel for the plaintiff submitted that the plaintiff did not yet know that the defendant was going to put in issue the repayments he made. The documents did not fall within the terms of the request for particulars tendered, and in any event, the terms of the loan were not in issue and it was not understood that there would be an issue in respect of the effect of the partial repayments. This argument was developed further in oral argument, that those handwritten documents would not have been admissible, and would have been considered to be self-serving and that the cumulative effect in [12], [20] and [23] of the judgment and the credibility finding made by his Honour against the plaintiff was a finding no Magistrate could properly make based on the evidence.

15. [97]

    The defendant’s approach to the appeal was to identify that the only real issue is whether there were any repayments of the loan and, if payments were made, which ones of those made to third parties were truly made as repayments of the loan. The question was determined unfavourably to the plaintiff and it was open to his Honour to conclude that way.

16. [98]

    The legal test is properly set out in his Honour’s reasons in paragraph [11]. The onus was on the plaintiff to prove her case, and this included the onus to prove that the payments made by the defendant to third parties were in the nature of repayments to the plaintiff for the sums she had advanced.

17. [99]

    His Honour simply was not satisfied that the plaintiff had met the onus she held in respect of the case that she made, including the characterisation of those payments as repayments to activate the benefits of s 54 of the Limitation Act.

18. [100]

    In response to the submission that the handwritten notes of the plaintiff made after the loans to make record of the repayments were not admissible, counsel for the defendant submitted that, whilst hearsay, the plaintiff was the author and available for cross-examination and could (and should) simply have included these in her statement. She did not even mention that she kept notes regarding the repayments. Viewing those assertions with circumspection was entirely appropriate and open to his Honour, having observed her giving evidence and being cross-examined.

19. [101]

    His Honour’s judgment gave careful consideration to all of the relevant evidence, even to the extent of including focussed transcript references to provide context to his findings.

20. [102]

    Grounds 1, 2 and 3 are questions of mixed fact and law. There is no identified misapplication of a test or law to these factual conclusions. The findings were not what the plaintiff desired. No submission was made at the hearing before his Honour that the acknowledgements amounted to admissions and so were the end of the issue regarding the amount of the loan. The approach adopted was simply that each side went through the table of individual payments and repayments to prove them, and so prove the total amount due.

21. [103]

    Paragraphs [13], [21] and [22] of his Honour’s judgment make it clear that the acknowledgements were considered and dealt with.

22. [104]

    There is no authority at all for the proposition that there was a shift in the evidentiary onus to the defendant given his admission in respect of the acknowledgement documents.

23. [105]

    The defendant is not saying that he did not make certain payments; he is simply not admitting that those amounts were repayments of the loans between them.

24. [106]

    The plaintiff’s argument regarding ground 3, that as a matter of logic there must have been repayments given the adjustments in the amount owed, is not borne out by the evidence. His Honour did not accept that there had in fact been $48,400 of payments. He was not satisfied that the alleged advance of $13,400 listed in the plaintiff’s list of advances and repayments was in fact made. [18] Without that advance, the total was $35,000, much closer to the acknowledged amount.

25. [107]

    His Honour dealt with this argument at [13], [21], and [22] of the judgment. The findings he made do not disclose appellable error. They were findings open to his Honour on the evidence. The evidence led to an overall position that the defendant was not really sure how much he had borrowed or what repayments were being referred to by the plaintiff. This position is set out in his affidavit at paragraph [25], and as the plaintiff set out in her affidavit in paragraph [13].

26. [108]

    Grounds 4, 5 and 6 are purely questions of fact. It is only in circumstances where a finding of fact was made on the basis of absolutely no evidence that a finding of fact could be said to be an error in a point of law. In support of this submission US Manufacturing [19] was cited:

27. [109]

    The judgment also dealt with what matters are not questions of law in paragraphs [55] and [94]:

28. [110]

    His Honour’s decision carefully set out the evidence upon which he relied, and whilst it may be an evidentiary conclusion about which minds may differ, it is not the role of this Court to undertake a merits review.

29. [111]

    In respect of the complaint regarding the findings about the payments for Telstra shares, [20] it is true that an alternative finding could have been made, however there is certainly nothing that indicates that is a question of law. It is purely a factual issue that was determined against the plaintiff. [21] His Honour extracted the relevant cross-examination that underpinned his conclusion. [22]

30. [112]

    In respect of the issue regarding the asserted payment by way of cash for the plaintiff’s car, paragraphs [18] to [25] of the judgment deal with that issue. It is simply not correct to submit that there was no evidence in respect of this issue. The evidence about it was dealt with. [23]

31. [113]

    The same situation applies in relation to the payment asserted to have been made into the plaintiff’s superannuation fund. This was dealt with by his Honour [24] and the evidence considered in a detailed fashion:

32. [114]

    In respect of ground 7 (which the defendant conceded in oral submissions could possibly be a question of law), it was argued that there was no appellable error because the onus of proving a confirmation under s 54 rests with the party asserting it. The plaintiff had to prove not only that the repayment occurred, but also that there was between her and the defendant in relation to the alleged repayment, an agreement that it would be in repayment of the loan and not, for example, a gift. His Honour correctly identified and applied the standard, including addressing the cogency of the evidence adduced about these issues at [9] – [11] of his reasons:

33. [115]

    His Honour then went on to consider each of the alleged repayments [25] and the evidence in relation to each, and applied the appropriate standard of proof to that evidence [26] in a way which does not disclose any error.

34. [116]

    Ground 8 cannot be a question of law. The Court has found, as a question of fact, that there are issues over the plaintiff’s credibility. This finding on credibility was not simply based on the handwritten notes that were deployed late in the proceedings. The findings in respect of that part of the case also stated that the plaintiff had not met her onus of proof, so even if there is an error in regard to the manner in which his Honour dealt with the allegedly contemporaneous documents, there is no basis to set aside that part of the judgment. His Honour set out a number of bases for his conclusions as to the plaintiff’s credit:

Decision

1. [117]

   Given that I have formed the view that there is no ground of appeal that can be described as one that deals only with a question of law, but the grounds are either mixed questions of law and fact, or exclusively questions of fact, the applicant requires leave to appeal.

2. [118]

   It was submitted, and I agreed, that the evidence going to the question of leave was inextricably bound up with the merits of the appeal, and as a result both aspects needed to be heard together.

3. [119]

   I need to bear in mind that the end result being sought in this appeal is judgment in the sum of $79,000 plus interest and costs rather than judgment in the sum of $37,780.29 plus interests and costs determined by his Honour, a difference of a slightly over $42,000. The amount in issue is relatively small, but no doubt of significant to each party. I need to bear in mind in determining the question of leave to appeal, that I must examine the merits of the arguments advanced in support of the appeal, and pay attention to whether any injustice has been occasioned to either party, such that the intervention of this Court is required: De Armas v Peters [2015] NSWSC 1050 at [27]-[28] per Wilson J.

4. [120]

   In my opinion grounds 1, 2 and 3 are questions of mixed fact and law. In the oral and written submissions provided on this appeal, no direct cross-reference was made to any argument or submissions made to the learned Magistrate that the acknowledgements have some kind of independent, stand-alone significance as an admission.

5. [121]

   Counsel for the applicant candidly submitted on this appeal that he did not say that the acknowledgement(s) should be or could be treated as an admission thus exculpating the plaintiff from any obligation to prove her case or that they amounted to what used to be known as “waiver of proof”. His argument was that the acknowledgement(s) “places an evidentiary burden upon the defendant to establish that the matters contained in it and the promise to pay implicit in that document, don’t exist”. [28]

6. [122]

   This is the “shift in onus” argument for which, counsel also candidly conceded, he had no authority. I do not accept there is any such shift in evidentiary burden or onus. Nor was any such argument raised at the hearing in the Local Court or the case conducted in such a way as to reflect that view. There was vigorous cross-examination of the defendant and the way the plaintiff’s case was run reflected an understanding that the plaintiff held the onus of proof in respect of each sum advances, and each financial transaction between them that the plaintiff claimed was a repayment.

7. [123]

   I have examined the transcript carefully on this issue. In the opening [29] the following is said by Counsel for the plaintiff:

8. [124]

   Regarding the written acknowledgement dated 15 March 2012 for $104,000, the following was submitted before the Magistrate in the opening:

9. [125]

   In the closing address before his Honour, counsel for the plaintiff [32] argued that the Court should view the sums advanced as one loan with one running total, with each repayment being a confirmation of the amounts previously loaned and, in this context, the acknowledgement having the status of “an admission and acknowledgement in one”. [33]

10. [126]

    He argued, using Dalpont, Law of Limitations at 17.52, that the plaintiff’s loans should be treated as a running balance, and so the 11 April 2011 acknowledgement was within 6 years of the 18 January 2007 repayment and so the plaintiff is “home and hosed” in establishing her case. [34]

11. [127]

    Clearly that analysis falls apart if his Honour does not find, as a matter of fact, that there was a repayment on 18 January 2007. That is what his Honour did find and it was open and the evidence for him to do so. He dealt with the argued for status of the acknowledgements, but not in the way the plaintiff wished for. As a result the 2003 and 2004 amounts advanced were not “saved” from the effects of the Limitation Act.

12. [128]

    The acknowledgements and their content were clearly considered and evaluated by his Honour, not just on their face, but regarding the extent to which those acknowledgements could provide an element of support for the plaintiff’s assertions as to the various sums she loaned and the repayments that she asserted were made to her, such that the effect of the Limitation Act could be circumvented.

13. [129]

    Paragraphs [13], [21], [22], [38] and [39] of his Honour’s decision make it clear that careful attention was paid to the written acknowledgements in the context of the way in which the plaintiff’s case presented. For s 54 to have been engaged, the acknowledgements would have had to have been made before the expiration of the limitation period (s 54(1)). Here, as a result of other (valid and open) factual findings made by his Honour, he found that the acknowledgements were executed after the operative period(s) had expired.

14. [130]

    There was no submission made that I can find that the acknowledgements have special status as a stand-alone admission. It is evident from the opening remarks and closing submissions of counsel for the plaintiff that the acknowledgements were deployed to support the argument under s 54 regarding the restarting of the limitation period. It is clear his Honour considered the acknowledgements and their operation in the context of those arguments as they were put at the hearing. He was not in error in the way in which he dealt with the written acknowledgements, as neither operated to solve the plaintiff’s fundamental problem with the expiration of the limitation period in respect of the early sums advanced, and the facts as he found them. Grounds 1, 2 and 3 fail.

15. [131]

    In respect of grounds 4, 5 and 6, I accept the submissions made by counsel for the defendant that grounds 4, 5 and 6 are purely questions of fact and so cannot be the subject of appeal. In any event, I am of the view that the learned Magistrate carefully set out the evidence upon which he relied for finding as he did and provided cogent reasoning, including extracting relevant parts of the cross-examination, that underpinned his conclusions, all of which were clearly open to him on the evidence. Grounds 4, 5 and 6 fail.

16. [132]

    In respect of ground 7, the basis of the argument seems to be that no judge could have reached the conclusion his Honour did in the way he rejected the plaintiff’s case regarding the payments and repayments that he determined were not made out on the evidence. This ground was to an extent “dressed up” as an error of law, by asserting that his Honour had not applied s 140 of the Evidence Act in a proper fashion, requiring a higher level of proof from the plaintiff than that required by s 140.

17. [133]

    I reject this submission. His Honour provided cogent reasoning as to why he concluded that certain matters had not been proved to the appropriate standard of satisfaction. There was no error in the way his Honour approached the evidence or his conclusions about the evidence. Ground 7 fails.

18. [134]

    Ground 8 also was argued to be an error of law because it was underpinned, so the argument went, by a “misdirection” by his Honour to himself that handwritten documents that the plaintiff had were required to be produced in response to a subpoena issued by the defendant earlier in the proceedings. I do not agree there was any such misdirection. His Honour was simply referring to this as a matter for comment.

19. [135]

    The submissions made by counsel for the plaintiff attempted to provide excuses and explanations as to what the plaintiff meant in her evidence regarding her “not having” the documents anymore. She had been cross-examined about the basis for her being able to give evidence about the precise dates and amounts of certain aspects of her case. In this context the plaintiff mentioned that she “had” a document at the time she prepared her statement. She acknowledged she had never shown this document to the defendant. After the lunch break a handwritten document was produced during re-examination. It was apparent on the face of it that it had all been completed in one pen, despite the plaintiff saying that she had completed it over a period of some years.

20. [136]

    Other explanations were offered in submissions by counsel for the plaintiff as to why the document had not been “on the table” earlier. It was submitted that the document did not fall within the terms of an earlier request for particulars and that the document would not have been admissible as it would have been considered to be self-serving.

21. [137]

    Counsel for the plaintiff submitted to this Court that given these matters, the credibility finding that his Honour made about the plaintiff was one no Magistrate could properly make based on the evidence.

22. [138]

    I reject these submissions. When his Honour’s decision is read in its entirety, it was clear that he was evaluating a number of aspects of the plaintiff’s presentation and evidence that he considered to be unsatisfactory. In circumstances where the plaintiff bore the burden of proof in establishing her case, her credibility was clearly a critical consideration. There was no error in the way which his Honour approached the matters that concerned him regarding the plaintiff’s presentation of her case and her veracity or credibility. I reject the submission that the credibility finding made by his Honour was one that no judicial officer could properly make based on the evidence. Ground 8 fails.

23. [139]

    The grounds of appeal all fail, and so there is no utility in granting leave to appeal.

    1. (1)

       Leave to appeal is refused.

    2. (2)

       The plaintiff is to pay the defendant’s costs.