Bryant v Quinn

Background

1. The appellant is the niece of the respondent. From at least 2011, the appellant was involved in a dispute with her grandmother (the respondent's mother) in relation to a property owned by the grandmother in Blakehurst (Blakehurst Property) (apparently involving a failed arrangement for the appellant to care for the respondent's mother in return for a share of a property purchased by the respondent's mother - see the summary of the dispute as set out in the primary judgment at [5]-[14]).
2. The appellant commenced proceedings in the Supreme Court in relation to her dispute with the respondent's mother (the Supreme Court Proceedings). The respondent seems to have sided with the appellant in relation to that dispute (certainly, he acknowledges as much in the submissions made by him on this appeal), which may well explain the respondent's willingness to assist the appellant to meet her legal costs of those proceedings as he did (see below). The dispute between the appellant and the respondent largely relates to the respondent's claim that the moneys he provided to the appellant towards her legal costs of those proceedings and of the subsequent appeal (in total $60,592.57) were by way of a loan, whereas the appellant contended that the moneys were a gift.
3. The appellant was successful in the Supreme Court Proceedings against her grandmother, and in defending the subsequent appeal; and the appellant obtained costs orders in her favour. In September 2013, two payments totalling over $460,000 were paid into the appellant's solicitor's trust account and on 8 October 2013 the appellant received the sum of $446,405.75, following the judgment in her favour.
4. The appellant then acquired a property in Riverwood (the Riverwood Property), and the respondent provided to the appellant in 2013 a bank cheque for $34,660 for the stamp duty payable in respect of the purchase by the appellant of that property.
5. Payment of the costs orders in both the Supreme Court Proceedings and the appeal proceedings was received by the appellant in late 2016 or 2017.
6. The dispute that arose between the appellant and respondent, which led to the District Court proceedings the subject of the present appeal, was as to whether the appellant was obliged to refund to the respondent the moneys that he had provided in respect of her legal costs and stamp duty.
7. The respondent sued the appellant in the District Court (the statement of claim being filed on 24 September 2019 and an amended statement of claim being filed on 27 May 2020) for the repayment of moneys provided by him to the appellant between 14 February 2011 and 24 October 2013, alleging that he made a series of loans to the appellant (totalling the sum of $103,352.57) in the relevant period. There was no dispute that the moneys claimed had been provided (save for a sum of $8,000 that was not admitted by the appellant, but which was found by the primary judge to have been paid by the respondent on about 3 May 2013).
8. The respondent alleged that the moneys were advanced by way of loan, pursuant to an oral loan agreement entered into by the parties in or about late 2010 to early 2011, which oral loan agreement was said to be the subject of two subsequent alleged oral amendments (the first in or about September 2013 and the second in or about August 2014). In the respondent's affidavit evidence, the agreement was asserted to be to the effect that the respondent would lend the money to the appellant and that the appellant would then pay the respondent back if she was successful in the proceedings. (The respondent's oral evidence in cross-examination was problematic, to say the least, in establishing any such agreement.)
9. The appellant denied the alleged loan agreement and maintained that the moneys provided to her were a gift (i.e., an unconditional gift).
10. There was no claim by the respondent based on restitution or unjust enrichment arising out of the retention by the appellant of moneys recovered by way of her legal costs in the earlier successful proceedings involving her grandmother in circumstances where the respondent had funded at least a proportion of those costs. (The irony of the present proceeding is that the appellant seems to have recognised that, had the claim in the District Court been one for restitution based on unjust enrichment, then she may have been hard pressed to defend such a claim - yet the consequence of success in this appeal may well be that on a remittal of the matter there could be just such a claim raised against her.)
11. There was also a dispute in the District Court proceeding as to whether the respondent's claim for return of the moneys (apart from the sum of $34,660 paid for the stamp duty on the Riverwood Property in 2013) was statute-barred pursuant to the provisions of the Limitation Act 1969 (NSW) (Limitation Act) on the basis that, as the loan agreement was pleaded as being one payable on demand, the cause of action accrued the moment the funds were received by the borrower.
12. The primary judge largely upheld the respondent's claims (see below) albeit that his Honour did so (at least in relation to the amounts paid towards legal costs) on the basis that the moneys were provided by way of a conditional gift (as opposed to by way of a loan, as the respondent contended, or by way of an unconditional gift, as the appellant contended). The nub of the appellant's present complaint is that such a claim (i.e., a claim that there was a conditional gift) was not pleaded; and that to determine the proceedings and grant relief on a claim that was not pleaded amounted to a denial of procedural fairness.

Primary judgment

1. At [19], the primary judge noted that the moneys claimed by the respondent fell into the following groups: first, moneys paid to the solicitors acting for the appellant in the Supreme Court Proceedings and appeal therefrom ($55,000 paid between 14 February 2011 and 31 May 2011 in relation to the costs of the Supreme Court Proceedings; and a further payment of $5,692.57 by way of cheque provided on 12 June 2012 to cover the costs of the appeal against the Supreme Court decision); second, a claimed $8,000 loan which the respondent said that he paid to the appellant on 3 May 2013; and, third, the sum of $34,660 which the respondent paid on or about 24 October 2013 which covered the stamp duty for the purchase of the Riverwood Property.
2. The primary judge's findings depended in large part on his Honour's assessment of the credibility of the parties to the dispute, and the various other witnesses in the proceedings. It is apposite to note his Honour's findings in this regard at the outset.
3. As to the credit of the respondent, the primary judge said (at [20]) that: Mr Quinn was not always a careful witness. He was at times hasty with his answers without giving careful regard to the questions. As a result, on some occasions his evidence was inconsistent with his affidavit. He did on occasions make concessions, including that his recollection of long ago conversations was unlikely to be accurate. Whilst I accepted him to be honest, his occasional lack of care with his evidence, and his difficulty recalling matters long ago, and some oral evidence inconsistent with his affidavit, meant that it was difficult to rely on his evidence.
4. By contrast, as to the appellant, the primary judge said (at [21]) that: Ms Bryant appeared to be a more careful witness, and not argumentative, but as indicated, some of her answers conflicted with the documentary evidence, particularly on amounts of money. If demeanour were determinative, I might have been inclined to favour Ms Bryant. But Ms Bryant's credit was damaged by her erroneous statements to Mr Quinn with regard to her financial position at the time of the Riverwood purchase, where she asserted without explanation that she told Mr Quinn she had received $360,000 from the Blakehurst property when she had received over $446,000.
5. The primary judge considered (at [22] of the primary judgment) the appellant's evidence that she did not seek assistance from the respondent, in the context of the payments received by the appellant from the respondent in June 2012, May 2013 and October 2013 and the appellant's own evidence as to her statement to the respondent in June 2012 that she was "struggling to cope emotionally and financially" and that her lawyer had asked her for money and she was "struggling to pay it". His Honour further considered the precise amount of the cheque then provided by the respondent (from which his Honour inferred that the appellant must also have informed the respondent of the precise amount that she was to pay her solicitors), and the statement which the appellant deposed she had made to the respondent about her inability to afford the stamp duty in respect of the Riverwood Property and misstatement as to the amount she had received from the Blakehurst Property. In light of the foregoing, his Honour concluded (at [24]) that the appellant's evidence (about not asking for money or discussing her financial affairs, and receiving only $360,000 from the sale of the Blakehurst Property) appeared disingenuous and misleading. At [25], the primary judge said he found the appellant's evidence about the timing of her conversation about an inability to pay the stamp duty (that is, prior to any proposed price being determined, offered or agreed, or the liability for or amount of stamp duty being determined) unlikely.

Appeal

1. The appellant appeals on the following grounds: 1. The trial judge at [51] erred in awarding the respondent plaintiff $50,729.24 on the basis of a conditional gift. Particulars a. The respondent did not plead a conditional gift but rather pleaded his case as being one founded on a breach of loan agreement/s payable on demand. b. No application was made by the respondent to amend his pleadings. c. The trial judge erred in failing to consider the appellant's submissions that the respondent ought to be confined to his pleadings and that the case ought to be decided on the basis upon which the parties pleaded their case. d. The trial judge decided the case on a basis outside the pleadings and particulars of the parties e. The trial judge granted relief not available on the pleadings. f. The trial judge denied the appellant procedural fairness. g. The findings were otherwise plainly wrong in that the evidence did not establish the existence of any conditional gift. h. Otherwise, that aspect of the respondent's claim was statute barred by reason of the Limitation Act 1969. 2. The trial judge erred at [62] in awarding the respondent $5,692.57. Particulars a. The trial judge erred in finding that money was advanced by way of a loan. b. The finding was plainly wrong. c. Otherwise, that aspect of the respondent's claim was statute barred by reason of the Limitation Act 1969. 3. The trial judge erred at [96] in awarding the respondent $34,060.00. Particulars a. The trial judge erred in finding that money was advanced by way of a loan. b. The finding was plainly wrong.
2. Ground 1 thus relates to the sum of $55,000 advanced in respect of the appellant's legal costs at first instance in the Supreme Court Proceedings; ground 2 to the costs of the appeal; and ground 3 to the stamp duty.

Ground 1 - $55,000 paid to the appellant's solicitors

Appellant's submissions as to ground 1

1. Although a variety of particulars are put forward in respect of ground 1, in essence the complaint by the appellant is that the trial judge granted the respondent relief which was not founded on the pleadings, and thus the appellant says she was denied procedural fairness. There is also a complaint that the primary judge failed to consider the submission made at the hearing to the effect that the respondent should be confined to his pleadings.
2. The appellant emphasises that there was no pleading by the respondent of a claim based on a conditional gift; that there was no evidence to that effect; and that, up until the final submissions (and after the evidence had closed), the respondent's case in relation to the moneys paid to the appellant's solicitors was one founded on a breach of an oral loan agreement (referring to the amended statement of claim filed on 27 May 2020 at [1]-[4]). The appellant emphasises that the respondent pleaded that the loan was "repayable on demand" and says that, on the pleaded case, the respondent's claim in relation to the $55,000 would have been out of time.
3. The appellant points to the affidavit evidence of the respondent which dealt with alleged oral conversations that gave rise to the alleged loan agreements (see at [20], [21] and [24] of the respondent's affidavit sworn 8 October 2020), noting that (at [20]) the respondent gave evidence of having a conversation with the appellant to the effect that he said "Susan, I will pay the remaining solicitor's fees for this case and you can repay me if you are successful which I think you will be" in response to which the respondent deposed that the appellant said "OK and thank you"; which evidence was undermined by the evidence in cross-examination to which I have referred above. As to the appellant's affidavit evidence, it is said that this was directed towards addressing the alleged conversations that were said to have given rise to the loan agreement or its alleged amendments; and that there was no reason by the time the trial commenced on 24 February 2021 to suspect that the respondent's claim for the $55,000 paid to Mr Tsolakis was founded on a claim of conditional gift.
4. The appellant says that, had she (the appellant) been on notice of such a claim, one matter that the appellant's evidence could have dealt with was the issue of detrimental reliance on the assumption that the gift was unconditional (such as evidence to the effect that, given the failure of the respondent to do anything for so many years following the payment of the moneys, the appellant was left with the impression that the gift was "completely and unequivocally unconditional" and that, in reliance on that conduct, the appellant made financial decisions to her detriment). Reference was made in this context to the fact that the appellant had sold the Riverwood Property and purchased another property.

Respondent's submissions as to ground 1

1. As to grounds 1(a)-(f), the respondent argues that the authorities on which the appellant relies deal with proceedings where a party has attempted to claim relief outside the bounds of its claim (Banque Commerciale; Benn v State of New South Wales); or where a party has failed to address a claim articulated by the other party (Dranichnikov); and that the present is not such a case.
2. The respondent says that he pleaded his case as a loan or series of loans noting that the appellant, by her defence, denied that the advances were loans, asserted that they were gifts, and said that, even if they were loans, recovery of those loans was statute barred. The respondent draws from this that the question of the advances being gifts (subject to conditions or otherwise) was clearly in issue between the parties; and he argues that the appellant cannot now complain that the primary judge made a finding in respect of part of the moneys advanced (in line with the appellant's defence) that the advances were gifts (merely because his Honour also found that those advances were conditional gifts). It is said that the issue of whether the advances were loans or gifts was one of the two principal live issues (together with the issue of limitations if the advances were found to be loans) between the parties.
3. The respondent further says that the appellant's submissions misconceive the purpose of pleadings, noting that UCPR r 14.7 provides that pleadings are to contain only a summary of the material facts on which the party relies; and that the inferences of law to be drawn from the pleaded facts need not be stated. The respondent argues, in effect, that having pleaded the relevant facts, it was open to the respondent to "present, in argument, any consequences of which the facts permit" (see In re Vandervell's Trusts (No 2) [1974] Ch 269 at 321-322 per Lord Denning MR and at 324 per Lawton LJ); and the respondent notes that a submission to that effect was made by him on 8 April 2021.
4. Pausing here, there is a difference between a party being permitted to make submissions as to the legal consequences of the facts as pleaded; and the judge being permitted to deal with the issues in the proceedings beyond those which were pleaded by the parties (without consent or acquiescence by the parties of a departure from the pleadings).

Determination as to ground 1

1. As to the pleading complaint (i.e., that the primary judge erred in determining the claim for the $55,000 on a basis not pleaded - i.e., on the basis of a conditional gift), I consider that this is made good.
2. It is well recognised that there is a distinction between pleadings and particulars (see Scott LJ in Bruce v Odhams Press Limited [1936] 1 KB 697 at 712-713 per Scott LJ; Pinson v Lloyds and National Provincial Foreign Bank Limited [1941] 2 KB 72 at 75-76 per Scott LJ); and that the requirement for pleading is that the statement of claim state the material facts (and need not plead the conclusions of law to be drawn from those facts, if established). However, it is also well known that the issues to be determined at hearing are those as framed by the pleadings and that departure from the case as pleaded is not permitted unless the parties have consented or acquiesced in such a departure (see Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited (2008) 73 NSWLR 653; [2008] NSWCA 206 (Ingot NSWCA) at [424] per Ipp JA; see also the decision at first instance: Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets (No 6) (2007) 63 ACSR 1; [2007] NSWSC 124 (Ingot) per McDougall J).
3. In Ingot, McDougall J implicitly recognised that in some circumstances the parties might, by their conduct of the case, acquiesce in the widening of the pleaded case. There, however, various of the counsel for the various defendants had repeatedly stated that they were responding to the plaintiff's pleaded case from which the plaintiff ought not be allowed to depart. The same can be said of the present case. Counsel for the appellant made plain on a number of occasions that the appellant objected to a departure from the pleaded case (and that the pleaded case did not raise a claim for equitable relief or relief on the basis of unjust enrichment or the like). That included complaint in the course of final closing submissions on 8 April 2021 to the claim in effect being recast as a claim for a conditional gift.
4. On appeal, in Ingot NSWCA, Ipp JA considered the authorities and principles relevant to whether a party would be allowed at trial to depart from its pleaded case, noting that there may be a departure from the pleadings where adherence to them would be unjust or unfair (citing Banque Commerciale at 286-287 per Mason CJ and Gaudron J). Here, however, it is the departure from the pleadings that is said to be unjust or unfair to the appellant.

Ground 2 - $5,692.57 on account of the appeal costs

1. The appellant notes that the evidence with respect to the payment of the sum of $5,692.57 was brief: the appellant deposed in her affidavit that the respondent had handed her a cheque for $5,692.57 in about June 2012 which she used for the appeal costs; the respondent had contemporaneously written on his cheque butt "LOAN" against this payment.
2. The primary judge (at [61]) said that the matter was finely balanced; but concluded that the payment was a loan. The appellant submits that this finding was plainly wrong and is not supported by the respondent's oral evidence. Reference is made again to the evidence given by the respondent in cross-examination (at T 39ff) to the effect that there was no discussion about the repayment of the moneys paid to the solicitor, including the smaller amount of $5,692.57 in relation to the appeal costs; the respondent's statement as to the lesser sums (after having said that the appellant never said anything about repayment of money) being "[w]ell, they were proceeding at the time, it was an ongoing loan" (see at T 40.6-7).
3. It is noted that, later in cross-examination (at T 43.10-32) with respect to the $5,692.57 paid towards the appeal costs, there was the following evidence: Q. I'm going to suggest that at no point did you say, "I'm going to give you this $5,692.57, but I want the money back." A. Not at that point, I'd already told her that. Q. I'm going to suggest to you, at no point did Susan agree to pay back the $5,692.57. A. At that point, I was lending Susan money all the time. She was running out of money for paying bills and everything else. I was lending her money, the little amounts I lent her, she paid back. But anything over more than $2,000, she never paid back. Q. Let's focus on this amount - $5,692.57. Would you agree with me when I say that there was never a conversation to the effect of-- A. I'm agreeing with that, yeah. Q. And I'm going to say that when she asked for that money, she didn't say, "Uncle Terry, can you please loan me $5,692.57?" A. Yes. Q. There was never a conversation when you gave her the cheque where she said, "Uncle Terry, I will one day repay the $5,692.57." A. Susan never, ever said anything like that. But she knew what I had previously said.
4. The appellant further contends that, even if the primary judge did not err in his characterisation of the payment as a loan, the claim for this amount was statute-barred from 12 June 2018 (being six years after the money was paid). It is said (by reference to the above evidence of the respondent in cross-examination) that there was no clear evidence of the repayment terms. The appellant says that the primary judge was wrong to conclude (at [62]) that any obligation of repayment did not arise until the recovery of the funds from litigation. The appellant says that this finding is not consistent with the evidence nor with the manner in which the respondent pleaded his case (as a loan repayable on demand).

Respondent's submissions as to ground 2

1. The respondent maintains that the finding that the advance of $5,692.57 was a loan is not plainly wrong, noting that the primary judge reviewed the evidence given by each of the parties and found that the advance was a loan, including by having regard to the contemporaneous note made by the respondent on the cheque butt of "LOAN". The respondent says that the extract by the appellant from the respondent's cross-examination (at [44] and [45] of the appellant's submissions), demonstrates that the respondent's evidence was that there was "an ongoing loan" and that the matter had been previously discussed between them ("I'd already told her that" - see at T 43.10-12).
2. Similarly, it is submitted that his Honour's finding that the terms of the loan included that the loan was repayable only when the appellant received funds from the litigation (which occurred on 13 September 2013) was open on the evidence presented.

Determination as to ground 2

1. The circumstances in which findings based on credibility assessments may be found to be erroneous are well established (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28] per Gleeson CJ, Gummow and Kirby JJ; as further explained by Kirby J in CSR Ltd v Della Maddalena (2006) 224 ALR 1; [2006] HCA 1 at [19]-[21]).
2. Insofar as the submissions on the present appeal effectively seek to revisit the credit findings made by the primary judge or suggest that they, or the conclusions drawn from them, were erroneous, there is nothing in my view to warrant the conclusion that his Honour's findings were glaringly improbable, contrary to compelling inferences, or inconsistent with incontrovertible evidence nor is there any evidence to support the proposition that there was a misuse of (or failure to use) the advantage his Honour had in assessing the witnesses before him.
3. The complaint made by the appellant is that the primary judge relied on what was written on the cheque butt (by the respondent) as to the characterisation of the payment and submitted that this was reliance on an uncommunicated subjective state of mind that would not be determinative of the issue as to whether or not a loan had been made. However, that was simply one of the factual matters to which his Honour must have had regard. Highly relevant in the present case was his Honour's assessment of the credit of the witnesses when considering the evidence of the appellant and respondent as to the circumstances in which this amount was advanced. Insofar as the appellant relies upon the respondent's cross-examination (as extracted in the appellant's submissions) and submits that this does not support the conclusion that this was a loan or that it was not repayable unless and until there was success in the proceeding (and also points to the uncertainty as to what would objectively be understood by success in the proceeding), I accept that there was little objective contemporaneous evidence. Ultimately, the primary judge accepted the account given by the respondent (albeit one which was not wholly consistent as between his affidavit and oral evidence). However, I am not persuaded that the factual finding (as to the existence of the loan and when it was repayable) has been shown to be plainly wrong. Therefore, in my opinion ground 2 is not made good.

Appellant's submissions as to ground 3

1. The third ground of appeal relates to the finding by the primary judge (at [93]) that the moneys paid in respect of the stamp duty were a loan. The appellant contends that this finding was plainly wrong, being against the weight of the evidence. The appellant argues that: first, the evidence of the respondent on this point was severely undermined during his cross-examination; and second, the evidence of the appellant was corroborated by a number of other family members present at the time of the conversation where the stamp duty was discussed and it is said that there was nothing in the cross-examination of these witnesses that suggested that there was any issue with their reliability or credibility.
2. The appellant says that the "high-water mark" of the respondent's case with respect to the stamp duty was the evidence to which he deposed at [35] of his affidavit but that the cross-examination of the respondent (at T 39ff, to which I have already referred) exposed a number of difficulties with this account. The appellant says that this oral evidence was completely inconsistent with what is deposed to at [35] of the respondent's affidavit.
3. Reference is made by the appellant as to the respondent's cross-examination at T 48.45ff, in which the respondent first said at [35] of his affidavit was half wrong and then said that it was entirely wrong (see T 49.5-27): Q. You depose to a conversation that you say you had with Susan at para 35. Do you want to read it to yourself? A. Yes. Q. That's a conversation that you say you would have had about six and a half years ago. A. Once again, it's hard to remember exactly, but I'll agree with you. Q. Would you agree with me when I say that when it comes to your recollection of what was actually said six and a half years ago, you might be mistaken about what you have said? A. No, I didn't read it, I'm sorry. Yes, yes. I said that. No, no, I disagree with the granny flat bit of it, because we had already decided - that was one of the reasons why we bought the house in the first place, that it had a granny flat. Q. So, is this conversation wrong? A. Well, 50% of it is, yes. Q. Can you tell the court what 50% of that conversation is wrong? A. No, I'm sorry. Reading it again, no, none of it's right. Q. None of that's right. A. No. HIS HONOUR: I'm sorry, do you say you agree with 35 or you disagree with it? WITNESS: I disagree with it, your Honour. I'm sorry, I didn't read it carefully. MOUTSALLEM Q. So just so we're clear, what you're telling the Court now is p 35 of your of your trial affidavit is wrong. A. No, I don't remember saying that in those words, but I'll accept - I'll say yes. Q. No, no, you don't have to accept something if you don't want to. Can you go to para 38, please, of your affidavit, which is towards the bottom of the page? Have a read through that. And let me know when you are done. A. Well, I've said it, so I must agree with that. Q. Well, you don't have to. I'm going to suggest to you that that conversation did not occur. A. No, it did, yes it did. Q. Is it possible that you might be mistaken? A. No.

Respondent's submissions as to ground 3

1. In response to the two arguments relied upon by the appellant in asserting that the primary judge was plainly wrong in finding that the moneys advanced for the stamp duty were a loan, the respondent submits as follows.
2. As to the first of the two arguments (i.e., that the evidence of the respondent was undermined in cross-examination), the respondent says that the extract from the transcript of his cross-examination relied upon by the appellant is inconclusive. It is submitted that it shows that the respondent was confused about precisely what was being put to him and who it was alleged had said what; reference being made to the following evidence in that regard (at T 49.36-38): Q. So just so we're clear, what you're telling the Court now is p 35 of your of your trial affidavit is wrong. A. No, I don't remember saying that in those words, but I'll accept - I'll say yes.
3. The respondent also places emphasis on the statements made by him in cross-examination to the effect that the relevant conversation in [38] of his affidavit did take place (see at T 49.40-50).
4. As to the second of the two arguments raised by the appellant (the corroboration of the appellant's evidence by family members), the respondent says that the findings made by the primary judge as to the credit of the appellant as a witness would not lightly be set aside, and that, given those findings, the primary judge's findings as to the facts surrounding the advance of the moneys used to pay the stamp duty are not plainly wrong.
5. The respondent places emphasis on the evidence which inclined the primary judge to find that the appellant was an unreliable witness (namely, the evidence relating to the conversation surrounding the request for payment of the moneys for the stamp duty and when the conversation took place). In particular, reference is made to his Honour's reasons (at [73]), where his Honour said that the appellant's evidence concerning the stamp duty transaction was problematic (for the reasons there stated). As to the issue of corroboration by the appellant's family members, the respondent points to the review by the primary judge at [75]-[83] of the evidence of those family members and his Honour's conclusion at [83] (as set out at [26] above), which it is said refutes the submission by the appellant that it was necessary for the respondent to have established that the appellant's family members "all lied, concocted their evidence or otherwise were all coincidentally mistaken about the same matter".

Determination as to ground 3

1. Again, this ground raises a challenge to the factual finding made by the primary judge, which was dependent on his Honour's assessment of the witnesses (in particular the appellant and respondent, but also the other family members). Much weight is placed by the appellant on the inconsistency in the answers given by the respondent in his cross-examination. However, the primary judge had the advantage of seeing and hearing the respective witnesses, and, relevantly, formed the view that (although the respondent was careless or confused from time to time) the respondent's account as to the stamp duty was credible (and the other family members' accounts were less compelling for the reasons there given). It is not correct to say that the respondent's account could only be accepted if the other family members were shown to have lied or to have concocted their evidence. A judge may accept one version of conflicting evidence without concluding that the other version was dishonest. In saying that he was compelled to choose between the accounts of the appellant and respondent, his Honour was not ignoring or disregarding the fact that other family members had given evidence in support of the appellant's account, he was clearly indicating that it was a question of which version of events was to be accepted.
2. I am not persuaded that the findings of the primary judge in relation to the payment made in respect of the stamp duty were clearly wrong. Thus, ground 3 is not made good.

Conclusion

1. For the reasons set out above, I consider that the appeal succeeds only on ground 1 and that, in that regard only, the matter should be remitted to the District Court for re-hearing.
2. As to the costs of the proceedings (at first instance, and on appeal), the respondent submitted that if there were to be success by the appellant on part of the appeal, then there should be an order for costs that "reflected the shared spoils … of the case". The appellant submitted that, taking into account the fact that the appellant succeeded at first instance on the $8,000 claim, then if there were to be success on grounds 1 and 2, the appropriate order would be for the appellant to recover two-thirds of the costs at first instance and (on the basis that most of the time and written submissions were spent on the appeal on grounds 1 and 2) the appellant should have an order in her favour for the costs of the appeal.
3. On the basis that there has been a mixed success on the appeal, I would propose that the respondent should pay 50% of the appellant's costs of the appeal.
4. As to the costs of the hearing at first instance (when, on the face of the pleading, in the absence of amendment, it would appear that the appellant should have succeeded in respect of the claim of $55,000, in addition to her success on the claim for $8,000; but where there was approximately just under half of the case on which the respondent rightly succeeded), I propose that there be no order as to costs in respect of the first instance proceedings to date and that costs of further proceedings should be at the discretion of the District Court.
5. Finally, I would simply add that this is yet another unfortunate case of a dispute between family members where the ongoing costs of the dispute are likely to be disproportionate to the amount in issue. In circumstances where there remains in issue the princely sum of $55,000 (which when adjusted by the primary judge for the amount recovered out of the costs orders made in the Supreme Court Proceedings amounted to $50,729.24), and remittal of the proceeding will simply occasion further costs in this matter, I would encourage the parties to consider mediation of the dispute (invoking, if they wish to do so, the procedure for Court-annexed mediation available in the Supreme Court).
6. Accordingly, I would propose the following orders: 1. Allow the appeal in relation to ground 1. 2. Set aside Order 1 of the orders made by Taylor SC DCJ on 13 September 2021 insofar as it requires that the appellant (Ms Susan Bryant) pay to the respondent (Mr Terence Quinn) the sum of $50,729.24 (see the calculations at [93] of his Honour's reasons). 3. Remit to the District Court for re-hearing the claim by the respondent (the plaintiff in District Court proceedings 2019/298560) for recovery of payments made by the respondent towards the appellant's legal costs of the Supreme Court Proceedings involving a dispute between the appellant and her grandmother. 4. Set aside Order 2 of the orders made by Taylor SC DCJ on 13 September 2021 and in lieu thereof order each party to bear her and his own costs of the proceeding at first instance (noting that the costs of any further proceedings in the District Court on the remittal be borne as directed by the District Court). 5. Order the respondent to pay 50% of the appellant's costs of the appeal. 6. Grant liberty to the parties to apply to my Associate to refer the matter for Court-annexed mediation of the remaining issues in dispute.

Endnotes

1. Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51 at 566 (Dixon CJ, McTiernan and Taylor JJ); Argyll Park Thoroughbreds Pty Ltd v Glen Pacific Pty Ltd (1993) 11 ACSR 1 at 4 (Drummond J).
2. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ), [66] (McHugh J); see also Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 at [76] (Heydon, Crennan and Bell JJ).
3. (2019) 266 CLR 129; [2019] HCA 28 at [55] (Bell, Gageler, Nettle and Edelman JJ). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2022