Bevacqua v Forza Familglia Pty Ltd

Catchwords: CONTRACTS — Breach of contract — Alleged oral contracts to lend money between people who were romantically involved — Onus of proof of repayment on Defendant — Central issue is Defendant alleges that $400,000 was handed over to the Plaintiff in black bags in part to repay a debt and in part to hold safely — Defendant’s evidence rejected — Defendant failed to discharge onus to prove repayment and Plaintiff succeeds in proving outstanding loan

Cases Cited: Coshott v Sakic (1998) 44 NSWLR 667
Puntoriero v Higgins [2025] NSWDC 244
Young v Queensland Trustees Limited (1956) 99 CLR 560

Category: Principal judgment

Parties: Julie Marie Bevacqua (Plaintiff)
Forza Familglia Pty Ltd (First Defendant)
Warren Jack (Second Defendant)

Representation: Counsel:
K Ginges (Plaintiff)
W Jack (Litigant in person) (Second Defendant)
Solicitors:
The Law Shoppe (Plaintiff)

File Number(s): 2024/470223

Publication restriction: Nil

JUDGMENT; ex tempore (revised)

1. By statement of claim that has been amended on a number of occasions, the last time being 7 March 2025, the Plaintiff sues Warren Jack, the second Defendant (“Mr Jack”), for approximately $470,000 being what the Plaintiff contends is the outstanding balance on two loans she made to Mr Jack.

2. The case is pleaded upon a number of legal bases, but fundamentally it is a contract case, the cause of action being moneys lent.

3. The context in which the dispute arises are that the Plaintiff, who originally was employed by Mr Jack’s company (the First Defendant), became romantically involved with Mr Jack and over time fell in love with him. On his own evidence from time to time, Mr Jack was in love with the Plaintiff. If he is to be believed, from time to time he drifted from that position and was having relationships with, perhaps, other people including his former wife, without the Plaintiff being aware that he was perhaps not as committed to their relationship as she thought he was.

4. Nonetheless, the objective setting of the transactions the subject of these proceedings is that the Plaintiff and Mr Jack were romantically and intimately involved.

5. What flows from that, as is so often the case, is that the Plaintiff implicitly trusted Mr Jack, which is why she says that she loaned him two large amounts of money without those loans being documented in any way, shape or form.

6. It is common ground that the Plaintiff did lend Mr Jack money from time to time, in particular it is accepted that in January 2021. She lent Mr Jack $500,000 to allow him to buy a very expensive Ferrari motor vehicle which loan was documented by email, and which money has been repaid in full by Mr Jack.

7. It is also now, although it has not always been, common ground that, what is described as the first loan, or the first component of the Plaintiff’s claim, in fact was a loan of $102,000. Mr Jack originally “emphatically” denied that such a loan ever existed, but his position now is that there was such a loan, but it has been repaid.

8. The Plaintiff’s claim can be broken down into two components. The first is the loan that it is now accepted she made to Mr Jack of $102,000 in June 2019 which she says remains unpaid and the second is what is described in the pleading as “the Marsden Street loan” which was various advances by the Plaintiff to Mr Jack totalling $300,000, again which she says was lent by her to Mr Jack pursuant to an oral agreement that he repay that money together with some interest, in distinction to the first loan which had no agreement to pay interest which she also says is unpaid.

9. The fundamental factual issue, ultimately, between the parties, although any review of the pleadings and early affidavits put forward by Mr Jack would not expose the issues in this way, but ultimately the issues are as follows. Mr Jack accepts that the first loan of $102,000 was a loan and was repayable as alleged by the Plaintiff but his answer is it was repaid in cash on 19 November 2019.

10. In relation to what is described as the “Marsden Street Loan,” being the alleged loan for the amount of $300,000, Mr Jack denies the existence of any such loan. He accepts that moneys totalling $300,000 was transferred by the Plaintiff to him as alleged, but his explanation for what those payments represent also turns on the alleged events of 19 November 2019.

11. I immediately then come to what is alleged to have occurred on 19 November.

12. Ultimately Mr Jack’s narrative of what occurred after dinner that evening, was that he gave to the Plaintiff in either a leather bag, or two leather bags, cash totalling about $400,000.

13. His evidence is that $100,000 of that cash was in repayment of the $102,000 loan and that $300,000 of that cash was him giving to the Plaintiff money which was to remain his money but was to be held by her in safe keeping for him to protect himself from his gambling habits because he could not trust himself not to gamble the money away unless it was held by someone else in safe keeping. If that be what the arrangement was, then $300,000 handed over that night would be properly characterised as having been held on trust by the Plaintiff for him, probably a bare trust which meant that she had to give it back to him whenever he called for it which he says he did in early November 2019 because he needed the money at the time of the advances. If $400,000 was handed over and that was its characterisation, then I would dismiss the Plaintiff’s claim.

14. Dealing then shortly with a question of law, the onus of proof in relation to what I see as the central issues is different in relation to the $102,000 component of the claim and the $300,000 of the claim is different. That is because in relation to the $102,000 part of the claim, Mr Jack’s defence is that that debt was discharged by payment. That being the case, Mr Jack has the onus of proof. He has to allege and prove payment by way of discharge to an action for debt in respect of a fully formed contract, see Young v Queensland Trustees Limited (1956) 99 CLR 560 per Dixon, McTiernan and Taylor JJ at 569-570; and Coshott v Sakic (1998) 44 NSWLR 667 at 670.

15. On the other hand, the onus of proof of proving an outstanding loan lies with the Plaintiff. That is the position for the $300,000 claim. In this case the question of onus probably does not matter because, as I have said, the resolution of each aspect of the case boils down to consideration as to whether the alleged payment of $400,000 occurred on 19 November 2019. Only if such a payment in fact occurred, will questions of characterisation arise. The Plaintiff gave evidence and was cross examined. Notwithstanding that she was cross-examined by a litigant in person and therefore it was not, perhaps, as effective as if a lawyer had been involved, she was confronted with the allegations, that is that the $102,000 was repaid and that the $300,000 was given to her for safe keeping by provision of it in cash in a bag on 19 November. She emphatically denied those allegations. I was impressed with her as a witness. Her position in the case has been steadfast from the time she first made demand for repayment of the amount she is claiming in some emails that she wrote in May 2024. Her position has not changed since that time and absent cogent evidence to contradict her evidence I would act on it even though part of her evidence alleges an oral undocumented loan agreement which are notoriously difficult in terms of proof, a topic which I discussed in a case called Puntoriero v Higgins [2025] NSWDC 244 at [10]. Like that case, here there is no question as to particular conversations, the central fact is, objectively, whether $400,000 in cash was handed over or not. This either occurred or it did not. It is not an event that could be forgotten or misremembered. One or the other of the Plaintiff and Mr Jack can not be telling the truth as this event.

16. One of the reasons I would be persuaded, absent other cogent evidence, as to the $300,000 informal loan is because it is common ground in this case firstly that the Plaintiff and Mr Jack were in a romantic relationship, secondly that she was, to use the words of at least one of the witnesses, somewhat obsessed with him, but thirdly and most importantly that it is common ground that there was an earlier oral undocumented loan arrangement, being the arrangement for $102,000. It can be seen that it was nothing out of the ordinary for these people to have informal loan arrangements for large amounts of money.

17. That leads me then to the evidence of Mr Jack and his witnesses insofar as those witnesses seek to corroborate the allegation of the payment of 400 odd thousand dollars of cash on 19 November 2019.

18. Mr Jack represented himself in this case. He appeared from the Philippines by video link which had its difficulties and of course makes it somewhat more difficult for me to assess his credit by reference to his demeanour and the way he presented in court. However, that being said I am comfortably satisfied, not just because of the way he presented as a witness which, in my opinion was to say the least suboptimal, nor just because his evidence changed so dramatically during cross-examination that he was forced to accept that his earlier evidence was deliberately untrue, but by reference to a number of objective features that he is not telling the truth when he says that $400,000 was handed to the Plaintiff in black bags on 19 November 2019. To put it bluntly, his explanation is implausible, makes no sense, and I do not believe him.

19. His narrative has changed remarkably since he first came to grips with the Plaintiff’s claim.

20. As I have said, originally in relation to the $102,000 aspect of the claim he, to use the words of his defence, “emphatically” and “categorically” denies the existence of any such loan. He now accepts such a loan, so that assertion by him or on his behalf must have been known by him to be false at the time it was made.

21. He was cross-examined about this and his explanation was it seems that he did not read the document prior to it being filed and that he told the solicitor who was acting for him at the time that there was such a loan and it had been repaid and for some reason unknown to him that solicitor, instead of putting that into the defence and you would not have to be a very experienced lawyer to know that that was a very good defence to a claim for outstanding money, instead, contrary to the instructions, the lawyer denied the existence of the loan at all.

22. When combined with other aspects of Mr Jack’s evidence, I do not believe that he told his lawyer that the $102,000 loan existed and has been repaid. I think it is much more likely that, in fact, he told the lawyer what he would now say was a lie, that is that there was never any such loan. That reflects very poorly on his credit.

23. Secondly, in relation to the $400,000 alleged payment on 19 November, again Mr Jack’s narrative has changed over time. As I have said, his original version in his affidavits (although it is unclear what his answer was in the defence) his original version was that he had a gambling problem, the Plaintiff was aware of that gambling problem, that he had a lot of cash lying around his house because he was a gambler (apparently at that point in time a very successful one) he could not trust himself to not gamble his money away and so he swept up all the cash in the house and came to an arrangement with his then girlfriend that she hold the money and keep it in safe keeping in the top shelf of a cupboard in her childhood bedroom, in a home where she no longer lived, in her father’s house for safe keeping.

24. During the course of his evidence, that narrative changed dramatically as to the source of the $400,000. He now says his original evidence was deliberately false. I am now told by Mr Jack the money was not the proceeds of gambling but was from a third party and formed part of a real estate transaction where he had received $400,000 in cash. His reason for why he gave that cash to the Plaintiff remains because he had a gambling problem. However, that is not what he told Mr Alston, who is his friend and confidant, at a time that is unclear, however must have been after 19 November. At some point, according to Mr Alston, Mr Jack told Mr Alston that he handed the $400,000 (again without delineating between the 300,000 and the $100,000) to the Plaintiff for safe keeping because he needed to protect his own assets and those of his company’s from his sister who at the time he alleged was stealing money from him and/or his company.

25. If that is what he told Mr Alston at the time and if he is now telling me the truth, then he must have been telling Mr Alston a lie for no apparent reason other than to keep his gambling secret. But that seems unlikely because it is an objective fact that at the time he was accusing his sister of defrauding his company.

26. There is also an issue as to what actually happened on 19 November. Mr Jack says that the Plaintiff was there having dinner at his place and that on the night she developed an extremely bad back which effectively made her immobile and it was either that night or the following morning when the agreement was made and the bags of cash were carried out to her care.

27. However, there is objective evidence, being a physiotherapist’s certificate that demonstrates that the Plaintiff did have a bad back on or about that date, but that the injury had occurred some days prior to 19 November.

28. The reason 19 November becomes a critical date that must be set in stone for the purpose of Mr Jack’s evidence making sense is that it is by reference to the transaction from which Mr Jack says he got the cash from the other party, and he places that on 19 November.

29. It has to be said that the explanation, whether it be to protect himself from his own gambling addiction or to protect the cash money from his alleged fraudulent sister, upon analysis is at least implausible, perhaps to the point of fanciful. My analysis of what Mr Jack says happened is this. He had a girlfriend who he trusted, he had a large amount of cash which he wanted kept safely, he decided that the safest place for that cash to be kept was in a cupboard in his girlfriend’s father’s house where his girlfriend did not live. He was satisfied that was a safe place to keep it because his girlfriend had told him from time to time that his father was very rich, presumably to satisfy him that his father would not steal the money if he found it in the cupboard. However, the Plaintiff’s brother is a paraplegic who lives in the house, the father is a very elderly gentleman, the evidence of the Plaintiff is that they both have carers and cleaners regularly come into the house. Mr Jack knew this. Quite frankly, I cannot think of a less safe place to store $400,000 than in a cupboard in a disused bedroom in a house where various unknown cleaners and carers come in and out of on a regular basis. In any event, I still do not understand even though I asked Mr Jack directly why he did not simply put the money in a bank account, or as Mr Ginges who appeared for the Plaintiff put to him, a term deposit which would have financial consequences if it was accessed early and his explanation seemed to be that he did not have the ability to open bank accounts which makes no sense at all to me.

30. Mr Jack says that I should not accept the Plaintiff’s version of events because of what he says is a late demand by her. There are two answers to that submission. Firstly, I am satisfied that the Plaintiff still thought they were in a romantic relationship and still trusted him till much long after he had decided to move on with the lady who is now his current wife and decamp to the Philippines it seems with a large amount of his or his company’s assets. Secondly, she did write him two clear letters of demand in February and May 2024 which were at page 22 of what became exhibit A which clearly stated her position in relation to both the 100,000 and the $300,000 component of the claim and which he did not respond to in any way, shape or form.

31. Mr Jack’s explanation about the emails in his affidavits was quite clearly that his position was that those emails had been concocted by the Plaintiff, they were a fabrication, they had never been sent, and they were fraudulent evidence being put forward by the Plaintiff.

32. He was forced in cross-examination to resile from that position. He now accepts that the emails were sent by the Plaintiff on the date they bear and that they were received on his computer on that date, but that for some reason he did not notice them, either because they went to spam or he just did not notice them.

33. I find that explanation implausible. Firstly, there is no reason why these emails would have gone to his spam account. They are from his previous girlfriend from whom he would have received lots of emails. The subject matter is “loan update”. There is nothing about those emails that in my experience of dealing with email would cause a computer to think that they were some sort of junk mail. Secondly I just do not accept that he would not have read them if they were in his inbox. If he had read them, there was a ready answer to the claim being that the $100,000 had been repaid and the $300,000 was simply her making good money she was holding for him. The lack of an early and clear response to that effect in relation to both aspects of the claim, which as I have said, when the matter became litigated, you do not even find in the defence makes me confident that Mr Jack has made up his evidence as things have gone wrong.

34. For all those reasons, I do not accept Mr Jack’s evidence that $400,000 was handed over in a bag on 19 November. I consider his evidence to be deliberately untrue.

35. Insofar as Mr Jack relies on the evidence of Mr Alston, I think that evidence really is no more than Mr Alston telling me that at some unknown point of time, Mr Jack told him that the Plaintiff held $400,000 for him as safe keeping which, as I have said, is no longer his case and that he was doing so to protect that money from his sister which, as I have said, it no longer his case.

36. As far as Mr Seon is concerned, he gave evidence to the effect that he was told similar things. He was told about the $400,000 being held safely for Mr Jack by the Plaintiff, but again when he was told that is entirely unclear and he was at pains to emphasise that he did not know any of this by reference to any direct knowledge, ie seeing the money or hearing a discussion between the Plaintiff and Mr Jack. Rather again he was doing no more than relaying what Mr Jack had told him at some point in time. So, I really do not put any weight on any of that evidence. There is other evidence that seems to demonstrate the preponderance of the evidence seems to demonstrate and I am satisfied that Mr Jack did have a gambling problem. I am not satisfied that the Plaintiff knew about it for two reasons. I think if she knew about it, she would not have lent him any money on an unsecured basis at any time and secondly, both the Plaintiff and his friends told me that the Plaintiff was embarrassed about his gambling issues and kept it secret from people if he could. Having said that, I do not accept his gambling was at the levels he describes, but I do not think that really matters since his explanation as to $300,000 lying around the house as proceeds of gambling has fallen away.

37. For all those reasons, I am not satisfied that Mr Jack has discharged his onus in proving that the $102,000 loan has been repaid and I am satisfied that the $300,000 which is accepted was transferred from the Plaintiff to Mr Jack was upon the express contractual basis that it was a loan repayable with interest at the agreed rate and therefore I propose to enter judgment in favour of the Plaintiff against Mr Jack in an amount which Mr Ginges will now tell me because he has prepared a schedule of interest.

[Discussion regarding interest calculation…]

38. As far as interest is concerned, there is no express agreement as to payment of interest in relation to the $102,000 loan alleged. I do not think the circumstances of the relationship between the parties that I would imply a term for payment of interest. The contractual obligation was to pay the money on demand. The first demand for repayment that I am aware of was 20 February 2024. Accordingly, I propose to allow interest calculated at the court rates from that date up until today. As to the $300,000 component, I am satisfied that there is an express term for payment of interest at 5%, none of which has been paid and so I have calculated that from the date of the advance until to date.

39. The total inclusive of interest of the judgment will therefore be $467,866. My orders are judgment for the Plaintiff in the sum of $467,866 inclusive of interest against Mr Jack. As far as the First Defendant is concerned, I cannot see that it has played any active role in the proceedings at all. Order 2 is claim against the First Defendant is dismissed.

[Submissions concerning costs…]

40. The last order is that as between the Plaintiff and the First Defendant, there will be no order as to costs. As between the Plaintiff and Mr Jack, Mr Jack is to pay the Plaintiff’s cost of the proceedings on an indemnity basis.

41. For those reasons, my orders are:

42. Judgment for the Plaintiff against the Second Defendant in the sum of $467,866, inclusive of interest.

43. The claim against the First Defendant is dismissed.

44. As between the Plaintiff and the First Defendant, no order as to costs.

45. As between the Plaintiff and the Second Defendant, the Second Defendant is to pay the Plaintiff’s costs on an indemnity basis.

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