Bagumya v Kakwano

(iv) The stay order issued by the Registrar on 14 December 2009, in this matter, is, on and from the date of this judgment, set aside.

CATCHWORDS : APPEAL AND REVIEW - appeal from magistrate - contractual dispute - determined by magistrate on facts - not solely question of law - appeal dismissed and leave to appeal dismissed

LEGISLATION CITED : Contracts Review Act 1980 Local Court Act 2007

Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA 57; (2008) 238 CLR 570 Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220 CASES CITED : Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 The Queen v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100 Williams v R [1986] HCA 88; (1986) 161 CLR 278

PARTIES : Rukas Bagumya (Plaintiff) Thomas Kakwano (Defendant)

COUNSEL : Self represented (Plaintiff) M K Rollinson (Defendant)

SOLICITORS : Self represented (Plaintiff) Clive Mills & Associates Solicitors (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: The plaintiff, Rukas Bagumya, appeals a decision of Magistrate Kok, of 29 June 2009, in which the learned magistrate dismissed Mr Bagumya's claim for the payment of money said to be owed under a contract. 2 Essentially, Mr Bagumya alleged that he had initially lent to the defendant, Thomas Kakwano, an amount that, with interest, added up to $30,000. This amount was lent over a period of time and, in effect, was part of an arrangement in which Mr Kakwano and/or his father, Ernest Kakwano, requested that Mr Bagumya pay university fees and certain other expenses associated with the study program of Thomas Kakwano in Australia and that those moneys would be repaid. The amount advanced, according to Mr Bagumya, totalled something less than $30,000 and an agreement was reached for the repayment of $30,000 (which included interest up to the end of October 2003, after which further interest would be payable). 3 The learned magistrate, from whom this appeal is brought, considered that she was "unable to find the plaintiff's claim established to the requisite standard of proof" and dismissed the claim. Facts 4 The plaintiff and the defendant's family had been close for many years and were close in Uganda during the plaintiff's childhood, before he immigrated to Australia. There was evidence at the hearing, below, that the defendant's father assisted with caring for the plaintiff, after the death of the plaintiff's father. 5 In or about 2000, the defendant's father, Ernest, contacted the plaintiff and arranged for him to assist with initial payment of university fees and accommodation for his son, the defendant. It was the intention and/or agreement of Ernest that the amounts paid by the plaintiff would be reimbursed. For reasons, which are currently irrelevant and relate to a downturn in the business conducted by Ernest, the reimbursement took longer than had originally been agreed. Further, it seems that the defendant, for some period, lived with the plaintiff at his home. 6 In his amended statement of claim in the Local Court, the plaintiff claimed an amount of $18,140, being the balance of moneys paid by him on behalf of the defendant (and not repaid) between 2000 and 2002. 7 The learned magistrate found that the plaintiff advanced amounts for fees of $8,811.70, $6,663.70, $8,819.20, which made a total of $24,294.60. Further, the plaintiff paid for books in the sum of $3,100. There was a Medibank contribution paid by the plaintiff on behalf of the defendant of an amount of $275 and graduation expenses of $184. The amounts advanced by the plaintiff for or on behalf of the defendant totalled $27,853.60. This amount was claimed and not reimbursed punctually. 8 The plaintiff, Mr Bagumya, relies on a document dated 25 February 2003 and executed sometime after that date. The document is in the following terms: " Agreement For Money Owed

The amount of $30,000 (Thirty Thousand dollars. AUD) is owed to Rukas Bagumya for University fees plus interest accrued. This will be payable until October 2003 when the interest rate will change. Penalty interest rates will be incurred after this period.

The proposed payment plan is instalments. The amount and payment is to be negotiated.

              Rukas Bagumya Thomas Kakwano Ernest Kakwano"

9 The document before the Court, seemingly in its original form, was executed only by Rukas Bagumya and Thomas Kakwano. There is a copy of the document that seems to have been executed also by Ernest Kakwano. The document was executed at different times. It seems that Mr Bagumya executed the document on 27 February 2003. Mr Ernest Kakwano seems to have executed the document on 4 March 2003. Each of the documents, that is the "original" and the copy thereof signed by Ernest Kakwano, bears handwritten notes, some in copy form and some in original. 10 The original, which, in form, is an executed copy of a fax transmission report, does not include original signatures. Nevertheless, there are original handwritten notes, seemingly written on 12 December 2004, in which, it seems, Mr Thomas Kakwano acknowledges "receipt of copies of statements for fees owed on UNSW study. An arrangement will be discussed in the near future for payments as agreed between Rukas Bagumya and myself. Mr Ernest Kakwano is no longer obligated [sic] to pay these fees." There is a reference to a further meeting. 11 The "copy" document, which is the only document in evidence containing or purporting to contain the copy of a signature by Ernest Kakwano, has a number of original notes on it, in different pen. Some of them state amounts paid for three semesters over 2000 and 2001, an amount paid for a "DIMA Visa" for 2002 and a list of payments made towards university fees, which list totalled $13,479.17. It seems that the document purports to set out the amounts paid by Mr Bagumya, on behalf of Mr Kakwano, being amounts that total $27,123.10 and payments and reimbursement thereof totalling $13,479.17. The balance (according to the documents) is $13,643.93. 12 These documents were described by the learned magistrate as "evolutionary with annotations in several hands which indicate some of the claims and counter claims being urged by the different parties". With that description I agree. Her Honour found that the documents, while acknowledging the approximate outlay by Mr Bagumya, fell short of constituting a binding agreement to repay the entirety of the sum of $30,000, with or without interest thereafter (i.e. the amount of $30,000 was the total reimbursement to be made, and, as at the dates of the documents, was to be reduced by amounts already paid). 13 The learned magistrate made the following findings of fact as to the payment of amounts. I have already set out the findings of fact, of the learned magistrate, in relation to the payments made by Mr Bagumya on behalf of the defendant. These totalled an amount of $27,853.60. In relation to "repayments" the learned magistrate made the following findings: "As to the issue of repayments, Rukus and Ernest both say that in the early period, 2000 to 2002, Ernest sent certain moneys to Sydney and arranged for his sister to do likewise on account of fees paid by Rukas. Evidence of these payments is sketchy, only supported by bank documents showing the … despatch to Australia, which do not specifically concern credit to Rukas' account.

However, whilst Rukas generally denied he received these amounts, he also asserted they were actually sent, not in respect of university fees but for unspecified immigration expenses. The court is satisfied that the amounts were in fact sent to him and were a reimbursement of the university fees he had advanced.

The court finds the following payments were made by or on behalf of Ernest in November 2000, $4,133.13, in August 2001, $4,205.72 and in September 2002, $4,923.45. The three amounts therefore totalling [sic] $13,262.30. In addition, Thomas claims to have made various claims [sic] himself from moneys he had in Australia. In 2001 a series of cash payments amounting [sic] to $8,200. In July 2002 a sum of $2,500 from the tax refund [sic]. From September to December 2005 a series of cash claimants [sic, for which I read "payments"] amounting to $1,860. In January 2007 an amount of $2,000 and in March 2007 a further amount of $8,000.

… [B]ecause they were all cash amounts and in the face of denial by Rukas, the evidence is unsatisfactory. Rukas conceded that some of the above amounts were paid. The evidence satisfies the court that except for the cash payments of $8,200 all the amounts listed totalling $14,360 were in fact paid by [sic, read "to"] Rukas. There is virtually no evidence that any amounts were advanced by Rukas for expenses other than university fees ….

It would seem even in the light of these documents [a reference to the evolutionary memoranda] that the last three amounts on the list representing the final payments Thomas actually made would appear to be just about the correct amounts then due." 14 As already stated, her Honour, having found those facts, determined that, on the evidence available to the Local Court, the plaintiff had not made out his claim on the balance of probabilities and dismissed the plaintiff's claim. 15 Having dealt with the facts and, to some degree, the judgment of the Local Court below, it is necessary to deal with the nature of the appeal to the Court and then analyse all of the aspects to reach a conclusion. Before doing so, I should comment that, as is clear from the transcript, the judgment of her Honour, while delivered at an adjourned date, was an ex tempore judgment, the version that was before the Court, being an uncorrected version of the transcript. As a consequence, any implicit criticism that may arise from the wording in the above extracts, ought, necessarily, be qualified by the proposition that it is likely some of those words have been mistranscribed or the punctuation (and consequential grammar) inserted in a way that her Honour would not have. 16 Additional to the two documents already mentioned, there are two further documents that require mention. (There are numerous other documents that I do not mention.) The first was an "Acknowledgment of Meeting & Sub-Agreement" (as the parties described it). The second document is a formal document, drafted as an agreement. 17 The first document, seemingly drafted shortly after a meeting between the plaintiff and the defendant on 9 February 2005, refers to the meeting and describes the meeting as one "regarding repayment on [sic, read "of"] money owed for student fees". It refers to a restructuring of the loan to reduce interest and expressly acknowledges that the exact amounts of payments is not yet known. The document does not mention the amount owing, or any debt relating to payments other than "Student fees". Further, it refers to a "concrete agreement" to be reached later. 18 The second document is described as a Loan Agreement and is formal in structure and dated 17 February 2005. It was not executed by the defendant (or his father). 19 Neither of those documents add to the factual matrix that would determine the issues before her Honour, and do not affect the outcome of the appeal. 20 Further, the contract (if it were a contract) was oral and may have been evidenced or acknowledged in writing. But subsequent conduct of the parties, if not a variation of the oral contract, or if not replacing (i.e. by reducing to writing) the contract, is irrelevant to the terms of the contract: Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA 57; (2008) 238 CLR 570 at [35]. This is not a case where an oral agreement has been reduced to writing. Nature of the appeal 21 An appeal from the Local Court to this Court is governed by the following legislative provisions in the Local Court Act 2007: " 39 Appeals as of right

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

(2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.

(2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court:

(b) a judgment or order made with the consent of the parties,

(c) an order as to costs." 22 As can be seen from the foregoing provisions, an appeal from the Local Court to this Court may be taken "as of right" "only on a question of law": see s 39(1) of the Local Court Act, above. Otherwise, if the ground of appeal were to involve a question of mixed law and fact, leave to appeal is necessary. There is a complication to the foregoing that is unnecessary for the Court to determine. It is not absolutely clear whether s 40(2) of the Local Court Act limits an appeal as of right under s 39(1) of the Act or extends s 40(1). 23 Since the judgment purportedly under appeal is not an interlocutory judgment or order, not a judgment made with the consent of the parties and is not, at least in relation to the substance of the matters raised on appeal, an appeal against an order as to costs, s 40(2) of the Local Court Act has no application. To the extent that the appeal related only to the question of costs, leave would be necessary. With the possible exception of an appeal permitted by s 40(2) of the Local Court Act, an appeal that involved a question of fact and did not involve a question of law is not permitted by the Act. 24 Given the contrast in expression between the terms of s 39(1) and s 40(1), the term "only on a question of law" must mean on a question of law alone. Further, a ground of appeal that involves no question of law, but only a question of fact is not a ground that would enable an appeal under s 40(1) of the Local Court Act. Questions of law and questions of mixed law and fact 25 The commencement point for the determination of whether any particular ground of appeal is only a question of law or involves a question of mixed law and fact must be the terms of the statute, the purpose of the legislature in enacting these provisions, and the context in which they are found. As was noted by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 73: "The critical nature of the line drawn … between factual and legal matters varies with the purposes it serves." 26 Plainly, the legislature has quite deliberately restricted the nature of appeal to this Court from the Local Court. The right of appeal is severely restricted and, while leave to appeal can be granted in a wider class, it is nevertheless a restricted class. 27 There is much authority on the meaning of the term "question of law", when contrasted to the meaning of a question of mixed law and fact and/or a question of fact. Clearly, in this legislation, the legislature has used "question of law" in contradistinction to "involving a question of mixed law and fact". As a consequence, an appeal "only on a question of law" will not include an appeal that involves a question of mixed law and fact. Nor, obviously, would it include an appeal involving only a question of fact. 28 The expression "only on a question of law", therefore, takes on a meaning identical to "a question of law alone". The latter expression has been the subject of much authority and I confirm the approach to that question that I expressed in Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220. See also Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 and Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202. 29 An exercise of discretion, the admission of evidence, findings on evidence and the determination of fact based upon the totality of evidence before a tribunal, are not solely questions of law and an appeal from such decisions does not raise solely a question of law: see Williams v R [1986] HCA 88; (1986) 161 CLR 278 at 287 and 301-302. In that case, Mason and Brennan JJ (as their Honours then were) said: "An appeal on the ground of the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone. The manner in which a discretion is exercised depends upon the judge's appreciation of all the facts of the case, so that an error of law which leads the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence." Grounds of appeal 30 Mr Bagumya was self-represented. He filed extensive written submissions, which were supplemented by further submissions and addressed on them. At the conclusion of the proceedings he filed further submissions in reply. Based on the Amended Summons and the written submissions filed by the plaintiff, the grounds of appeal from her Honour's decision may be best distilled as follows:

(i) that the plaintiff was denied procedural fairness;

(ii) that the learned magistrate erred by accepting the credibility of the defendant and the defendant's father;

(iii) that the learned magistrate erred by finding that the defendant had been a bankrupt person;

(iv) that the learned magistrate's reasons were inadequate and did not disclose her findings of fact or refer to any law;

(v) that the learned magistrate erred in not finding that the contract was void due to duress or under the Contracts Review Act 1980;

(vi) that the learned magistrate erred by finding that the plaintiff's amendment to the Statement of Claim was time-barred;

(vii) that the learned magistrate erred by failing to address the partly oral and partly written agreements, particularly three written memoranda dated 25 February 2003, 12 December 2004 and 9 February 2005; and

(viii) that the learned magistrate erred by failing to find that the defendant was not estopped from denying that he had entered into an agreement with the plaintiff. 31 I shall seek to deal with these grounds in order. However, during the course of the proceedings, a number of these grounds were either expressly or implicitly abandoned. Ground (i): Denial of procedural fairness 32 The factual basis for this contention was that the plaintiff was not provided copies of certain diary entries prior to the hearing before her Honour. Firstly, while a denial of procedural fairness will generally involve a question of law, it is, necessarily, a question of mixed law and fact, because it depends upon an analysis of the proceedings. Nevertheless, I will deal with the ground as if it were an appeal only on a question of law. 33 During the course of the proceedings, there were a number of exchanges between the Court and Mr Bagumya. During the course of one of those exchanges (Transcript, 23 April 2010, at page 4 and following) the basis of the procedural fairness ground was explored. Ultimately, Mr Bagumya conceded, in this Court, that, in relation to the diary that was tendered, the complaint involved a complaint that Mr Bagumya was not provided with copies of the diary at the time it was tendered. Mr Bagumya now has copies and there is nothing in the diary upon which the learned magistrate relied and nothing in the diary which prejudiced Mr Bagumya's case. These aspects were also conceded by Mr Bagumya. 34 Further, another diary was referred to in a statutory declaration, but was not tendered. Complaint was made as to that fact. The second diary was not before the Local Court and was not relied upon by the learned magistrate. Nothing in that gives rise to a denial of procedural fairness to Mr Bagumya. 35 Most importantly, to the extent that the diaries were used for the purpose of proving that payments were made by Mr Bagumya (this being the purpose for which they were tendered), which payments were loans requiring repayment, the learned magistrate found in the plaintiff's favour. 36 A second aspect of the allegation of denial of procedural fairness was a complaint that Mr Bagumya's former solicitor, Mr Morrissey, was called without notice. Mr Bagumya described that course as "unethical". 37 Whatever one may consider is good practice, as to whether, as a matter of courtesy, parties should exchange witness lists, the calling of Mr Morrissey was not unethical, and the law does not require, absent a direction of the court, the exchange of witness lists. In any event, as Mr Bagumya concedes, Mr Bagumya did not complain about, or object to, the calling of Mr Morrissey, and the evidence adduced by the calling of Mr Morrissey neither prejudiced Mr Bagumya, nor was a basis for any finding of her Honour. Mr Morrissey's evidence was plainly not a basis for a finding by the learned magistrate against the interests of Mr Bagumya. 38 In those circumstances, there is no factual basis for the denial of procedural fairness, there is no prejudice to Mr Bagumya in what he says are procedural irregularities and, further, there was no denial of procedural fairness. This ground of appeal is rejected. Ground (ii): The credibility of the defendant and the defendant's father 39 Quintessentially, questions of credibility are questions of fact. Her Honour was entitled to make findings as to the credibility of each of the witnesses, particularly where there were conflicting accounts of events. There was independent evidence, being documentation, which supported the evidence, or some of it, of these witnesses, and Mr Bagumya's inconsistency in versions, albeit some of which was given from the Bar table, were matters that her Honour was entitled to take into account. 40 Mr Bagumya, it will be recalled, initially asserted that he had not received certain payments, and then, during the course of closing submissions to her Honour, asserted that he had received the moneys from the defendant, or his father, but they were paid for purposes other than the repayment of the loan. 41 Notwithstanding the ex tempore nature of the judgment delivered by her Honour, her Honour was careful to consider the evidence of each of the witnesses, conflicting statements, and the probative supporting documentation in respect of each. The plaintiff has not established that her Honour erred in accepting the evidence. Even if the plaintiff had established error, the error would be an error of fact and would not give rise to a ground of appeal. 42 This ground of appeal is also rejected. Ground (iii): The finding on the defendant's bankruptcy 43 During the course of the evidence before her Honour, there was passing reference of the bankruptcy of the defendant. The evidence was not significant. Further, any allegation that the defendant was bankrupt, or had been in the past bankrupt, did not form any part of her Honour's reasoning. There is no finding, in this regard, either to the prejudice of the plaintiff, or at all, and the issue does not give rise to an appeal. Her Honour made no finding as to the defendant's status in relation to bankruptcy. Even if her Honour had, mistakenly, come to the conclusion that the defendant was bankrupt, this, at best, would be a question of mixed law and fact, and, most probably, would be solely a question of fact. 44 If it were alleged that there was no evidence (as distinct from no evidence that should be believed) that the defendant was bankrupt, the question may involve a question of law, but it would not be only a question of law: see The Queen v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100 at 119, per Dixon, Williams, Webb and Fullagar JJ. It would, very much, depend upon an analysis of the evidence before her Honour. 45 As stated, her Honour made no finding as to this issue. If her Honour were to have made such a finding, it would, at its highest, involve a question of mixed law and fact. The ground of appeal is rejected and, to the extent necessary, leave to appeal on such a ground is not granted. Ground (iv) and (v): Inadequacy of reasons, duress and Contracts Review Act 46 As stated, and restated, the judgment delivered by her Honour was ex tempore. Her Honour's judgment was, essentially, a judgment that, on the facts, Mr Bagumya had not proved, even on the balance of probabilities, that moneys were owing, under the agreement, and that there remained moneys to repay, being moneys advanced by Mr Bagumya for the defendant's student fees. 47 The basis of that finding of fact and conclusion as to onus are plainly and clearly set out by her Honour. Mr Bagumya criticises the reasons for judgment, because they do not deal with each and all of the questions of law. It was unnecessary, and probably inappropriate, for her Honour to deal with each and every question of law that was or had been raised. 48 In some respects, the inadequacy of reasons ground subsumes Ground (v). Plainly, her Honour did not find, and did not deal with, an argument that the contract was void due to duress or under the Contracts Review Act. Such a claim, if it were successful, would not have advantaged Mr Bagumya. It was unnecessary for her Honour to deal with those claims, because her Honour found, as a fact, that the moneys that had been advanced on behalf of the defendant, had been repaid. 49 The reasons for judgment, delivered by her Honour, were short and succinct, yet disclosed fully her Honour's reasoning process in coming to the conclusion that she did. This ground of appeal and Ground (v), complaining that her Honour did not deal with the argument that the contract was void either for duress or under the Contracts Review Act, are rejected. Ground (vi): The limitation period 50 As I understand this ground, Mr Bagumya raises the criticism of her Honour that, in her judgment, her Honour did not deal with the limitation period argument and/or that her Honour did not allow an amendment to the Statement of Claim because the claims therein were time-barred. Even if all that Mr Bagumya submitted, on these issues, were correct, it could not advance Mr Bagumya's cause in any manner. 51 The basis of her Honour's judgment, to repeat, was that there was an agreement between the plaintiff and the defendant, the defendant was required to pay back moneys advanced on his behalf, and the moneys were paid back. Thereafter, no issue associated with limitation periods, the Contracts Review Act, and/or duress (each of which, if successful, would not assist Mr Bagumya) can or could be determinative, and it was unnecessary for her Honour to deal with any of those issues. Ground (vii): Failure to address memoranda 52 During the course of the hearing before this Court, Mr Bagumya conceded that her Honour dealt, at length, with the nature of the agreement, which was initially oral and the nature of the "evolutionary documents", which were an acknowledgement of the fact that moneys had been outlaid and were required to be repaid. 53 Mr Bagumya conceded that the only issue with which her Honour was concerned, and the manner in which she concluded it, was that there existed an agreement between the plaintiff and the defendant. There were issues as to the terms of the agreement and there were issues as to how much, if anything, was repaid. At page 14 of the Transcript of 23 April 2010, the following exchange occurred: "HIS HONOUR: … My understanding of her Honour's judgment was there was an agreement. There were payments made and the last lot of payments made were roughly equivalent - I am paraphrasing her Honour - roughly equivalent to what was left owing under the agreement and therefore you hadn't satisfied the onus on the balance of probabilities that there was still money owing under the agreement; is that not right?

PLAINTIFF: Yes, sir. My point is there was still money owing.

HIS HONOUR: I understand that point. Her Honour found there was an agreement to pay money.

PLAINTIFF: Yes, your Honour, so the issue is how much money was paid.

HIS HONOUR: That's an issue of fact." 54 Ultimately, the factual basis for this ground of appeal is not available. Her Honour did address the partly oral and partly written agreements and the memoranda that acknowledged that moneys had been paid on account of the defendant and were required to be repaid. This ground is also rejected. Ground (viii): Estoppel 55 Frankly, I do not understand how this ground, if it were available, would advance the plaintiff's appeal. Essentially the plaintiff argues that the defendant was estopped from denying that there was an agreement, moneys were advanced and there was a requirement to repay the moneys. As I understand the main thrust of the submissions of the defendant, which submissions were accepted by her Honour below, there was an acceptance that moneys had been advanced, that there was an agreement, and that there was a requirement to repay the moneys advanced. Her Honour found that the moneys were repaid. No alleged estoppel could salvage Mr Bagumya's claim before the learned magistrate (or on appeal) given those findings. This ground is also rejected. Conclusion 56 None of the grounds of appeal have merit. None of them would give rise to orders of this Court overturning the judgment of her Honour. The judgment of her Honour was one based upon conclusions of fact, namely, that the moneys advanced had been repaid. 57 It should be noted that no party raises any issue associated with her Honour's application of the law relating to either the burden of proof or the onus of proof. No issue is taken as to whether this was a claim in debt or for breach of contract. No ground of appeal that has been raised involves solely a question of law. Most of the grounds raised do not involve a question of mixed law and fact. The Court is not minded to grant leave on any question of mixed law and fact. In any event, if leave were to have been granted, the appeal would be dismissed. 58 The Court makes the following orders:

(i) The application for leave to appeal and the appeal is dismissed;

(iii) The plaintiff shall pay the defendant's costs of and incidental to these proceedings, as agreed or assessed;

(iv) The stay order issued by the Registrar on 14 December 2009, in this matter, is, on and from the date of this judgment, set aside.

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