Grebnev v Lazareva & 1 ors [2007] NSWSC 187 | Case summary

JUDGMENT 1 HIS HONOUR: The plaintiff comes from Russia. At material times, he was unemployed. He was married. There was a separation from his wife. The defendant appears to have been a lady of means. What has been described as a close relationship came into being between her and the plaintiff. There were proposed business arrangements. Monies were paid by the defendant either to the plaintiff or on his behalf. The plaintiff alleged that he made a payment in respect of a proposed business venture (restoration and sale of a property at Cremorne). 2 A falling out took place between the plaintiff and the defendant. The plaintiff made a demand upon the defendant (a claim in excess of $100,000). The defendant sought the repayment of monies paid by her. Their disputes led to court proceedings. 3 The defendant brought proceedings in the Local Court (her claim was in the order of $51,000). Her claim sought the recovery of monies in respect of seven alleged payments. The plaintiff brought a cross-claim in the sum of $20,000. He had largely abandoned the earlier demand and was now alleging payment made in respect of stamp duty on the Cremorne property. 4 The proceedings were heard by Kearney LCM. The hearing extended over three days. The defendant was successful in recovering the sum of $46,750. The plaintiff's cross-claim was unsuccessful. 5 The Magistrate had evidence from three witnesses, together with documentary material. The witnesses provided statements and were cross-examined. The defendant gave evidence in her own case. The plaintiff gave evidence and also relied on evidence from his wife. 6 The task presented to the Magistrate was one of fact finding. The defendant alleged the making of seven separate payments as loans. The plaintiff contended that the first of those payments (which was in the sum of $2,000) was a loan which was later forgiven. He contended that the remaining six payments were either gifts or remuneration for services. The defendant put in issue whether or not the alleged payment in the sum of $20,000 had been made. 7 The Magistrate found for the defendant in respect of six of the payments. He found that the plaintiff had failed to make out the cross-claim. 8 The plaintiff has filed a Summons in this Court. It seeks to challenge the decisions made by the Magistrate. It is alleged that there has been error in point of law. The plaintiff bears the onus of satisfying the Court that there has been such an error and that it justifies the disturbing of the decisions. 9 The hearing took place on 7 March 2007. The parties have made written submissions, which have been supplemented by oral material. On the day of the hearing, the plaintiff sought to amend the Summons (inter alia, adding a fresh ground of appeal and seeking additional relief). The application was opposed. Short notice had been given of the application. The defendant was not in a position to meet the amendments. There was a lack of utility in what was sought. For, inter alia, these reasons the application was refused. 10 The primary (if not the sole) attack on the judgement of the Magistrate was that of failure to sufficiently disclose his reasoning process. Other matters were mentioned during submissions (including contentions such as difficulty in being able to distinguish between what were recitations of evidence and what were findings of fact). These matters were of little moment and were really just mentioned in passing. 11 The judgement of the Magistrate was delivered on 22 November 2005 (the last of the hearing days). It was delivered ex tempore (in circumstances where it would seem that he had some prior opportunity to consider the matters in issue). 12 In addressing the case presented by the defendant, he correctly observed that she had the onus to establish her case on the balance of probability (he referred to the ingredients of each of the seven transactions and referred to the nature of the transaction and to the amounts involved). 13 In the performance of the fact finding process, he was confronted with conflicting evidence. The resolution of that conflict required him to address questions of credibility and reliability. He resolved those questions in favour of the defendant. 14 His judgement (which obviously refers to the defendant as "the plaintiff" and to the plaintiff as "the defendant") contains the following [p3-4]:- "There is conflicting evidence in relation to the transactions and what was to be the nature of the transactions. The resolution of that is assisted by the introduction of this diary in which the defendant made entries, the plaintiff says to acknowledge the amount of the loan and to facilitate the amount which he had to repay, the defendant saying that it was only to facilitate for his benefit a record of the amount of the gifts he had received, although he did not like gifts, should the association or the relationship break up. Where there is a conflict in the evidence, I accept the version put forward by the Plaintiff. I am able to do that by rejecting the defendant's version of the circumstances surrounding the initial transaction which formed an application for a loan and an undertaking to repay it which was forthcoming and that set the scene for the following five transactions and possibly part of the sixth transaction which I propose to reduce". 15 The thrust of the plaintiff's case is one of failure to sufficiently disclose the reasoning process behind the credibility and reliability finding made in favour of the defendant. There was reference to a number of authorities (including Hadid v Redpath [2001] NSWCA 416). 16 The duty to give reasons has been the subject of observations in numerous cases. It serves various functions (including enabling a party to exercise a right of appeal and to enable an unsuccessful litigant to understand an adverse decision). It is well established that what will suffice will vary from case to case. It is accepted by the plaintiff that the task is not one in which there should be performance of perfection. 17 One area of attack was directed to the second of the two paragraphs of the judgement, which have been earlier recited. In my view, that attack was misconceived. 18 The proceeding paragraph had indicated the nature of the conflict that was had in mind by the Magistrate (and he mentioned therein certain matters concerning a diary which assisted him in the resolution of the conflict). There was conflict in the versions offered concerning the initial transaction and of surrounding circumstances. Whilst minds may differ as to what was intended by him, it seems to me that the Magistrate was intending to say that he found the evidence given by the defendant (who was the plaintiff before him) concerning the circumstances as being more probative and as explaining subsequent transactions. His observation has to be seen in the context of what was earlier said in the judgement. What was said in that paragraph is not the only matter that was presented as explaining how he came to reach his findings on credibility and reliability. There are many observations contained in other paragraphs of the judgment which disclose his thinking. 19 I shall briefly mention certain of these observations. He noted that the defendant was fairly specific in relation to the circumstances surrounding the transactions. He observed that although the plaintiff could recall conversations he was "not terribly specific". He observed that the plaintiff was somewhat vague in relation to financial matters. He had regard to the plaintiff's failure to call a Mr Teracov (a witness who may have been able to give cogent evidence concerning one of the transactions) and of his lack of recollection in respect of aspects of that transaction. Mr Teracov had made a loan to the plaintiff, which required re-payment. Mr Teracov's evidence may have been probative to corroborate the plaintiff's version concerning circumstances of re-payment. The re-payment involved a source of funds from the defendant in the sum of $6,000 (the Magistrate observed that this was a matter that had been initially overlooked by the plaintiff). He also made observations as to the evidence given by the plaintiff's wife. He observed that there were differences between her evidence and that of the plaintiff. He also observed that her evidence was of little assistance where the plaintiff had been "somewhat vague". 20 In my view, there was an abundance of material to support the Magistrate's findings on credibility and reliability. I have merely mentioned certain of the express observations made by the Magistrate concerning that matter. I consider that he has sufficiently disclosed his reasoning process for those findings. 21 Two further observations may be added. Mr Wilson (the solicitor appearing for the plaintiff) appeared to be labouring under no difficulty in the presentation of his client's appeal. Also, I consider that the contents of the judgment sufficiently enabled the plaintiff to understand why he was unsuccessful in the lower court. 22 An attack was also made on the manner in which the Magistrate dealt with the cross-claim. The judgment contains the following [p4]:- "In respect of the defendant's cross-claim, there is nothing to support his claim that he introduced money into Australia. There is documentary evidence to support that. There is nothing to support the fact that subsequent to that, he made available to the plaintiff the amount of $20,000 for the purposes of their business relationship which is disputed by the plaintiff." 23 It may be that what was said in the paragraph could have been better expressed. What was said therein has to be read in the context of the earlier findings on credibility and reliability and what was subsequently said ("the defendant has not established his cause of action"). The judgment informed him that he had failed to prove the disputed allegation of payment. 24 It seems to me that what the paragraph was intended to convey was that despite the finding of there being documentary evidence to support the plaintiff's introduction of money into Australia, he had failed to make out his cross-claim on the balance of probabilities. 25 The judgement also contains the following [p4]:- "In respect of the claim, there will be a verdict for the plaintiff. That will be for an amount of $46,750. I have reduced the claim of $6,000 by $4,650 being the average between $4,600 and $4,700." 26 There seems to be no dispute that these observations throw up a small arithmetical error (it may be regarded as being de minimus). It seemed to be regard as being too small to justify the trouble of correction. If correction is required, it may be dealt with under the Slip Rule. I did invite the parties to consider consenting to a variation of the judgement sum. This invitation was not pursued. 27 In this judgement I have expressly dealt with the matters that were argued orally. I have also had regard to all of the submissions made on behalf of the plaintiff. Many of these did not give rise to any avenue of appeal. In my view, he has failed to discharge the onus of demonstrating an entitlement to relief. Accordingly, the appeal fails. 28 The Summons is dismissed. The plaintiff is to pay the cost of the Summons. The exhibit may be returned. **********

Grebnev v Lazareva & 1 ors

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Judgment (9 paragraphs)

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