Rowena and Jazmin Clancy
303 Mr Condon was in a relationship with Rowena from approximately 2009 to 2015. Although that relationship ended, he claimed that they remained close until 2020. As mentioned previously, Rowena is the mother of Ms Jazmin Clancy (Jazmin) and Chantelle. It appears that, throughout most of the period of Mr Condon's and Rowena's relationship, all three of Rowena, Jazmin and Chantelle lived at the same address with Mr Condon. Mr Condon claimed that, during the continuance of that relationship, he considered Jazmin and Chantelle as his daughters and treated them as such, although what he meant by that is not entirely clear.
304 The relevance of these relationships is that, from 2010 to 2011, and during the Relevant Years, Rowena and Jazmin made regular deposits into Mr Condon's safe or his bank accounts. He claimed that the purpose of these payments was for Rowena and Jazmin to accumulate savings, and that he would return their money to them when they wished to purchase something. In other words, he acted as a bank for them, allowing them to save up for whatever it was that they wished to acquire. It was neither immediately clear nor sufficiently explained why they simply did not open their own bank accounts. Indeed, if it was in fact the case that Mr Condon would return their money to them when they asked for it, as he contended, there did not seem to be any apparent point to his purported guardianship of their funds. Further, the arrangement allegedly put in place was only vaguely detailed. Although it was said that he was keeping the money as savings, it is apparent that he used it for his own purposes as and when he desired, and did not set it aside or keep it separated from his own funds. He did not, himself, keep any account of the amounts that he received from Rowena and Jazmin. It is also relevant, as explained further below, that, at least from late 2015, the money was paid by Rowena and Jazmin into his BOQ 8201 account and that, when making those payments, they included a notation as to the alleged purpose of the payments which was often inconsistent with the notion that they were savings.
305 Mr Condon gave evidence to the effect that the payments to him from Rowena or Jazmin were made in 2010 to 2011, as well as subsequently. In relation to the Relevant Years, it seems that Rowena commenced making payments in or around early November 2015, and Jazmin commenced doing so in or around late January 2017. It is not irrelevant to note that, in this respect, they commenced after the relationship between Rowena and Mr Condon had come to an end and, in the case of Rowena, in particular, only quite shortly after that time. It is also not irrelevant that, throughout the period in which these payments were made, Rowena and Jazmin were residing at 66 Ingham Road.
306 In his affidavit of 11 June 2021, at paragraph [138], Mr Condon made the following statement:
I have reviewed my records and have prepared a table, for the purpose of these proceedings, detailing the payments I received from Rowena Clancy throughout the Relevant Period. Annexed to this affidavit and marked CGC-1 Tab 54 is a true copy of a table summarising the payments I received from Rowena Clancy throughout the Relevant Period.
307 Tab 54 is headed, "Funds held for Rowena Clancy in BOQ account 21678201", and contains a schedule purporting to list the payments received from Rowena by date, along with the amount of the payments, whether the amounts were withdrawals or deposits, and the alleged balance held by Mr Condon after each. This document seems to have been prepared for the purposes of this litigation, and does not constitute a contemporaneous record. The same can be said for a similar document concerning the amounts received from Jazmin, which was behind Tab 67 of the affidavit. Neither of these documents adds to the weight of the evidence adduced by Mr Condon. They merely assist in setting out that evidence.
308 Despite what Mr Condon said in paragraph [138] of his affidavit, in cross-examination, he agreed that he had not prepared the schedules at Tabs 54 and 67 at all, but that his solicitors had done so from bank statements that he had given to them. He did not recall whether he had made any annotation on these statements indicating the origin of the various recorded payments. It is plain that he did not review the records in question, and he acknowledged that he did not have any independent recollection of the receipt of any specific payments. He also admitted that there were no other documents that showed what payments into his bank account were made by Rowena and Jazmin, with the result that there is presently nothing before the Court to verify the accuracy of the entries in the tables. Ultimately, there was no evidence as to how his solicitors were able to ascertain the amounts that had been received from either Rowena or Jazmin. As was noted in the Commissioner's written submissions, there was also no evidence at all as to the origin of certain payments included in the schedules. In particular, there were two payments in January 2018 of $1,500 each for which there was no description of any payee or purpose for payment, and yet these payments were apparently designated by Mr Condon (or someone else on his behalf) as payments made by Jazmin. The same is true of the regular payments of $250 allegedly made by Jazmin from 11 January 2018. The reality is that there was no real evidential basis for assuming that these payments were actually made by Jazmin. The assertions that she made the payments were no more than conjecture.
309 The Commissioner's submission that, throughout the course of his evidence, Mr Condon's recollection of the payments made by Rowena and Jazmin was poor at best must also be accepted. It was clear that he was uncertain as to the basic facts surrounding those payments.
310 Tabs 54 and 67 of Mr Condon's affidavit of 11 June 2021 do not prove the facts to which they purport to relate and, on that basis, Mr Condon has failed to establish that the payments set out in the schedules behind those tabs were from Rowena or Jazmin, or that they were in fact received on the dates alleged.
311 Tab 54, which purports to record the payments from Rowena, indicates that they were made from 3 November 2015. As explained by Mr Condon, this was after a particular period of time during which Rowena had left Townsville but subsequently returned. He and Rowena were not, at that time, in a relationship, though Rowena continued to live at 66 Ingham Road. The document records the receipt of approximately $100 per week, although different amounts were paid in from time to time. The amounts increase over time and, in the 2018 income year, Rowena was making regular payments of $1,000 per month. From the evidence, it appears that, during the 2016 to 2018 income years, Rowena paid Mr Condon a total of $34,502.
312 Mr Condon asserted that some of these payments were, in fact, made by Rowena's father. It was not explained why they were then described as being from Rowena. Similarly, two payments into Mr Condon's account, being $1,000 on 12 January 2018 and $1,250 on 9 March 2013, were identified as being from Rowena despite there being nothing indicating that to be the case.
313 As Mr Condon admitted, when Rowena paid the funds into his account, she regularly included, as a description for the deposits, the words "rent" or "savings rent" or sometimes "savings". That fact did not appear to be disputed, although the actual bank statements containing those notations were not adduced. Rowena did not give evidence on behalf of Mr Condon. The natural inference that arises from Rowena paying amounts into Mr Condon's bank account, at a time when they were not in a relationship and she was living in a house owned by his company, and her describing those payments as "rent", is that the payments were in fact in the nature of rent. This inference is made stronger by the fact that many of the payments were of regular sums, such as $250 per week or $1,000 per month.
314 As noted previously, Mr Condon claimed that the amounts so received were Rowena's savings, and that she was effectively using his bank account as her own. This explanation was sought to be buttressed by evidence that she had previously saved money with him, which had accumulated to a total of $50,000, and he had paid that amount to her by bank cheque on or around 9 February 2015. A significant amount of time at trial was taken up cross-examining Mr Condon as to the veracity of this evidence, including the alleged obtaining of the bank cheque and its delivery to Rowena. Despite that, the evidence remained somewhat scant. In his affidavit of 23 March 2022, Mr Condon deposed, at paragraph [65], that he had obtained a copy of the bank cheque and annexed it to his affidavit. However, the document attached was not a copy of the bank cheque, but instead a copy of a page from a statement for his BOQ 9681 account, which showed that, on 9 February 2015, immediately after depositing $50,000 into the account, he withdrew that same amount. He confirmed the withdrawal of that amount in his affidavit of 16 November 2022, and he also referred there to the bank cheque attached to his earlier affidavit. This evidence also did not establish that a bank cheque had been drawn in the amount of $50,000 and given to Rowena. However, as it transpired, other evidence was produced to verify the existence of the cheque.
315 This evidence in relation to the bank cheque was poor and disorganised, though it was sufficient to establish that the cheque was drawn in favour of Rowena on 9 February 2015. Even if these facts were accepted, however, there was very little else which supported the contention that the cheque related to an arrangement by which Rowena had deposited money into Mr Condon's account for saving. The only evidence of the alleged depositing of the money prior to the production of the cheque was his testimony, which itself must be regarded as insufficient for reasons expressed above. In addition, the circumstances described in this testimony suggested substantially different arrangements. Mr Condon said that, prior to February 2015, Rowena had been putting money into his safe and that was how it had accumulated. It was alleged that, from November 2015, Rowena made regular deposits into his bank account. That would seem to suggest some other type of arrangement.
316 Rowena was not called to verify whether or not the payments made by her to Mr Condon were "rent" or "rent / savings", as identified in Mr Condon's own documentary evidence. The matter must therefore be determined in reliance on this evidence, together with any available corroborating material. The difficulty here is that, whilst there was some corroboration of Mr Condon's assertion that he drew a bank cheque in favour of Rowena, his evidence as to the reason for which he drew the cheque remained unsupported. The fact that he drew a bank cheque for Rowena in early 2015 does not explain why he did so, nor does it explain the subsequent deposits that were contended to reflect savings. One must rely solely upon his uncorroborated evidence to draw the necessary connection between the drawing of the bank cheque and those subsequent deposits into his account.
317 Whilst the payments made by Rowena were not uniform over the entire period, they were largely so. Though there were some more sizeable payments made from time to time, that does not negate the proposition that the payments were mostly rent. For instance, though Ms Chen pointed to a payment of $13,000 to Mr Condon as an example of an extraordinary payment, that does not affect the characterisation of the other payments.
318 Relevantly, there was no evidence that Mr Condon had repaid Rowena the sum of $34,502, which had allegedly accumulated as a result of her deposits since 2015. In particular, there was nothing to indicate that a further bank cheque was drawn in her favour in repayment of that amount, or that the amount had been repaid in some other manner. It was not even alleged that an attempt had been made to repay it, or that Rowena had asked for it. It is most unlikely that, if the $34,502 did belong to Rowena, she would not have sought repayment at some time, especially since the payments comprising that total amount were made after the end of her relationship with Mr Condon.
319 Mr Condon sought to rely upon the evidence of Ms Jessica Casey, an office worker at the TPAIA, to the effect that she had had a conversation or conversations with Rowena, in the course of which the latter had said that her payments to Mr Condon were savings. Ms Casey said that, when Rowena came into the TPAIA office, she had assisted her to identify in Mr Condon's bank statements payments that were either her savings or Jazmin's savings. Objection was taken to Ms Casey's evidence on the basis that it was hearsay, and that objection should be sustained. Ms Chen was given leave to adduce whatever admissible evidence Ms Casey could give on this issue, but there was none. That said, in cross-examination, Ms Casey did indicate that she went through bank statements from BOQ with Rowena, and identified on them which of the payments were Rowena's savings and which were Jazmin's. Ms Casey claimed that she checked over the tallying of the amounts that Rowena identified as savings for herself and for Jazmin, as Rowena was uncertain in her ability to do so. It was not suggested that Mr Condon was involved in this activity.
320 Although the hearsay evidence of Ms Casey adduced in cross-examination is admissible, it is of little weight in the circumstances. That is especially so given that Rowena identified the payments as deposits for "rent" from time to time. Moreover, Ms Casey's evidence is only of what was said to her, and she had no independent understanding of the nature of the deposits. To accept her statements as evidence of the truth of the fact that Rowena and Jazmin were saving money by depositing it into Mr Condon's account requires it to be accepted, first of all, that Rowena's prior statements to Ms Casey were truthful. That step should not be taken. Regardless, in Mr Condon's written submissions in reply, it was accepted that Ms Casey's assertions as to what she was told by Rowena amounted only to evidence of the fact that those things were said to her, and not evidence of their truth. On that basis, her evidence does not establish the facts in issue.
321 The alleged records of this arrangement, comprising the bank statements marked up by Rowena and Ms Casey, were supposedly kept in a manila folder in the TPAIA office but were not produced. It was submitted that Mr Condon could not find them, and that they may have been taken by the AFP or destroyed in the 2019 floods. However, the references to particular evidence in Mr Condon's written submissions in support of that explanation do not assist. Ms Casey's evidence was that the documents were kept in Mr Condon's office, which was not said to have been flooded. Ultimately, there was no evidence as to the whereabouts of those documents, and Mr Condon's failure to produce them permits an inference to be drawn that their contents would not assist his case.
322 In support of the contention that the amounts were savings, Ms Chen also relied on the fact that the total of the amounts exceeded what might be considered reasonable rent for a house in the Townsville area at the relevant time. However, there was no substantive evidence to support that proposition and it was mere assertion.
323 Mr Condon's evidence in relation to the money received from Jazmin was to much the same effect as that in relation to the money received from Rowena. The payments from Jazmin were made in the 2017 and 2018 income years and totalled $15,500. Again, it appears that Jazmin was living at 66 Ingham Road at the time. The payment made from 24 January 2017 to 2 January 2018 were regular, at $120 per week. There followed two payments of $250 on 4 January 2018, then two subsequent payments of $1,500 and then, from 11 January 2018 to 22 June 2018, payments of $250 per week. It seemed to be accepted that Jazmin also described the payments that she made to Mr Condon's account as "rent" or "rent savings" from time to time. It can be inferred, in the absence of any compelling evidence to the contrary, that such descriptions were deliberately given as an indication of the nature of the payments. Again, the parties were content to proceed on the basis that the payments had been so described, despite the corresponding bank statements not being put into evidence.
324 Mr Condon claimed that he was unable to repay the amounts to Jazmin because his accounts had been frozen as a result of the actions of the Australian Taxation Office and the making of a garnishee order. Again, however, there was no evidence of any demand by Jazmin for repayment of the $15,500, either before or after the freezing of the account. This was no doubt unusual, given that the amounts had been "saved" for multiple years and Mr Condon was no longer in a relationship with Rowena. On the basis of Mr Condon's evidence, the Court is to believe that both Jazmin and Rowena have effectively abandoned their interest in substantial sums of money, which they had saved over relatively long periods of time. That is an unlikely scenario.
325 An unusual issue arose as to the amount that Mr Condon claimed that he held for, or owed to, Jazmin. In evidence, he claimed that the amount owing was $35,000, but it is unclear from where that figure was derived, as the document at Tab 67 of his affidavit of 11 June 2021 indicated that the total sum paid into his account by Jazmin was $15,500, as at the end of the 2018 income year. However, in his affidavit of 23 March 2022, he identified a bank cheque that he paid to Jazmin in the sum of $20,000, dated 21 March 2019. The annexed document is, in fact, a request for a bank cheque, but it does seem to suggest that a cheque in that amount was drawn. No explanation was given for this payment, nor was it taken into account in Mr Condon's discussion of his financial arrangements with Jazmin.