Credibility of the Parties and the Witnesses
92In this case, there were disputes about most assertions, as to contributions and otherwise. It is convenient, now, to set out my view of the witnesses in so far as her, or his, evidence bore directly on the issues in the case. It has been necessary to closely evaluate the parties' evidence since credit assumed a decisive significance in deciding a number of these issues.
93Bearing in mind that the Court is dealing with events that occurred as long ago as about 10 years, and no less than five and a half years ago, in expressing my views I remember what McLelland CJ in Eq said in Watson v Foxman (1995) 49 NSWLR 315 at 319:
"... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
94I appreciate that in that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987: see the discussion in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 at [10]-[18].
95I also remember what Kirby J, although in dissent, said in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48:
"[120] ... Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial ... If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that the falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned ...
[121] Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of not real importance. In consequence, they sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law."
96As J Spigelman CJ observed in "Truth and the Law", Lecture delivered at the 2011 Sir Maurice Byers Lecture, 26 May 2011:
"Witnesses can, without any dissimulation or propensity to lie, confidently assert the truth of conversations, observations and events which did not happen. The plasticity of memory impedes the truth finding process. This is not an uncommon phenomenon."
97Finally, I also realise, as Cronin J did in Smyth & Pappas , at [14], that:
"In disputes involving these sorts of relationships, it is conceivable that two people intimately connected to each other in one way or another, can see the same thing in entirely different ways.
On some aspects, however, the evidence does not permit a finding of innocent or mistaken belief, or recollection, or one or other party seeing the same thing in entirely different ways.
98The Plaintiff was cross-examined for approximately 5 hours over two days. Shortly after the commencement of the cross-examination, with the express concurrence of the parties, having been told that she was prepared to do so, and because I considered that the interests of justice required her evidence regarding the de facto relationship and the financial circumstances of the Plaintiff commencing April 2000 and continuing during the period of the de facto relationship for part of which time she had received income from Centrelink to which she was not entitled, I granted a certificate pursuant to s 128 of the Evidence Act 1995 in respect of that evidence. (The parties, in fact, joined in requesting that the court require the evidence to be given and did not require written reasons for the grant of the certificate.)
99It was submitted by the Defendant that the conduct of the Plaintiff in dealing with Centrelink in this way demonstrated dishonest conduct.
100Whether the Defendant told the Plaintiff not to inform Centrelink about their relationship does not really matter. The fact is that the Plaintiff did not do so until well after the end of their relationship, and at, or about, the time of the commencement of the proceedings. It seems likely that the commencement of this matter played a part in motivating her to do so.
101The Plaintiff asserts that she made full disclosure to Centrelink and that she had a debt of $29,000 to it, which debt she was paying off at $80 per month. Since it has been reported to Centrelink, I shall note her previous conduct and consider her evidence in the light of such conduct.
102I comment that I think it more likely than not that the Defendant knew that the Plaintiff was receiving Centrelink payments during the course of their relationship and that he understood that there was some inappropriate financial advantage to be gained by doing this.
103Another matter upon which the Plaintiff was cross-examined related to the non-disclosure, in her affidavit evidence, about the income she had been receiving from boarders who lived with her in the Radcliffe Place property since the date of separation. There were, however, some references to boarders in her affidavit evidence.
104On the second day of the hearing, rent receipt books were produced to the Defendant's legal representatives, and, ultimately, a schedule of income received was produced as an aide memoire. I have earlier referred to this income.
105The receipt of income from a jointly owned asset is a relevant matter and it should have been disclosed earlier, and, more specifically, in the Plaintiff's affidavit evidence in chief. I am unable to say that it was not disclosed in order to mislead the Defendant and/or the Court. Yet, the failure to disclose the income and/or the rent receipt books until such a late stage in the proceedings, is also a relevant matter to be considered in weighing the Plaintiff's evidence.
106Another criticism made of the Plaintiff by counsel for the Defendant was the way in which the Plaintiff gave evidence in cross-examination. She did not allow him to finish the question before she endeavoured to answer it and as a result some of her answers to his questions were unresponsive.
107In regard to this criticism, there is little doubt that the Plaintiff endeavoured to anticipate what counsel was trying to get to, rather than allowing the question to be completed and then focussing on that question. It was necessary, on a number of occasions to ask her to concentrate on the question that was being asked and answer it. An explanation was given that her counsel would have an opportunity to re-examine her.
108Having observed the Plaintiff in the witness box, I do not think that she was doing this intentionally, with a view to making it difficult for the Defendant's counsel, or for the Court. It was clear from her answers to some questions, towards the end of the cross-examination, that she believed that the Defendant misled her into believing that they would have a life together. She was upset and hurt that he had asked her to marry him, she had accepted, and, then, after the date for the marriage had been set, invitations sent, relatives had arranged to attend the wedding from overseas, that he did not do so. In this regard, her emotion was justified.
109She also felt that he had encouraged her to work hard in his businesses, for which work she was not paid (for the most part), and that he had ended the relationship without actually telling her and without compensating her, in any way, for what she had done. The level of her emotion became obvious in some of her answers in cross-examination.
110These matters, at least in part, explain, her desire to inform the court that she was aggrieved by the Defendant's conduct. However, except to the extent that they relate to contributions and then to what is just and equitable, the matters referred to, are not particularly relevant to the issues to be decided in the case.
111The extravagance of the Plaintiff's claim (she sought an order that the Defendant pay her $2.5 million) was another matter that counsel for the Defendant submitted I should take into account in determining her truthfulness. He submitted that her claim, without more, demonstrated that she was prone to exaggeration. There is no doubt that her claim is an extravagant one. However, I do not think that it demonstrates that she was prone to exaggeration.
112Despite these matters, I found the Plaintiff, generally, to be a credible and convincing witness. Overall, she struck me as truthful.
113Despite taking into account the frailty of human memory, and also that, without malice, a person can believe that he remembers things that he has convinced himself must have happened, or because someone has successfully implanted the idea, I formed an unfavourable view of the Defendant's credibility and reliability as a witness.
114For the following reasons, as well as my observations of the Defendant in the witness box, I am satisfied, on a number of important issues, that the evidence of the Plaintiff is to be preferred to the evidence of the Defendant where their evidence is in conflict. That my view is not unduly harsh is demonstrated by what follows.
115It was clear that parts of his sworn affidavit evidence were simply wrong. He accepted in cross-examination, that:
(a) Despite his acknowledged care in preparing the first affidavit, it had been necessary to make a number of corrections to matters stated in that affidavit.
(b) After reading other affidavits, it was necessary for him to make a number of further corrections to his affidavits.
(c) He had wrongly stated that he received monthly amounts from Mr Byrne, which amounts he deposited into a particular bank account. In fact, he did not receive monthly amounts, every month, and he had not deposited each of the amounts that he did receive into that particular bank account. The monthly payments had been made at irregular times, as disclosed in a document (Ex. H), and, on at least one occasion, had been deposited into a different account.
(d) He had based part of his evidence, not on his own knowledge, but on what he had been told by others.
116Specifically, I did not find the Defendant's evidence upon the following matters to be plausible:
(a) He gave evidence, in cross-examination, of a conversation with the Plaintiff in about mid to late October 2005, when he said to her that their relationship was over.
For the first time, on the second day of him being cross-examined (on 30 August 2011), he gave evidence of this conversation. Whilst he accepted that the conversation was an important one, no such conversation was referred to in any of his affidavits. He had not given any oral evidence of such a conversation at any time earlier. His counsel had not put to the Plaintiff that such a conversation had occurred, despite having put a number of other matters, upon which he had been given instructions, to the Plaintiff or her witnesses.
Furthermore, it is inconceivable, if such a conversation with her had occurred, that the Plaintiff would have continued to work in the Defendant's businesses until about mid-January 2006 on the basis that she had been, and without demonstrating any observable emotional reaction to what she had been told.
For example, the Defendant's sister, Mrs Leonie Duffy, to whom I shall refer later, did not mention having observed any emotional conduct on the part of the Plaintiff after the long weekend in October 2005.
Furthermore, neither the Defendant, nor any witness called on his behalf, gives evidence in his, or her, affidavit, of having observed any change in the Plaintiff's involvement in the business, after the long weekend in October 2005, or otherwise after mid-October 2005.
I accept the Plaintiff's, Ms Cronan's, and Ms Chelsey Prior's evidence about the Plaintiff's attendances, after that date, at the Defendant's business. Even Mrs Duffy gave evidence of the Plaintiff continuing to work until Christmas 2005.
(b) The Defendant asserted "numerous" emotional telephone calls between them following the long weekend in October 2005 (when he says the relationship ended).
He does not refer to these conversations in any of his affidavits. Furthermore, the Plaintiff was not cross-examined, at all, on the subject of emotional telephone calls having taken place between her and the Defendant in that period.
Neither the Defendant, nor any witness called on his behalf, give evidence in his, or her, affidavit, of having observed any change in the Plaintiff's demeanour, or attitude, towards the Defendant, after the long weekend in October 2005. One might have expected the emotional state described by the Defendant to have revealed itself to one, or other, persons with whom the Plaintiff worked.
(There was only one occasion referred to in the evidence on which the Plaintiff was observed to be crying whilst at work. That was in about December 2005.)
In this regard, I also refer, once again, to the evidence of Ms Cronan who does not refer to any conversation with the Defendant in their meeting, in November 2005, in which he told her of the end of his relationship with the Plaintiff a month earlier.
The evidence on which both parties agree is that the Plaintiff worked in the business, for only a short time, following her return from Queensland in January 2006, by which time, it was clear that her relationship with the Defendant was over. At this time, the Defendant asked her for the keys to the office and factory.
The Plaintiff's conduct, thereafter, is far more consistent with it being made clear to her, then, that the relationship was over. A few days later, she telephoned the Defendant and said that she did not think she should be helping him in the business any longer.
(c) The Defendant, in January 2006, asked the Plaintiff for the keys to the factory because he had lost his and not because the relationship was over and that he was content to have her continuing working in the business.
If, in fact the conversation were as he asserted, he would have expected her to continue without wages, or other remuneration, as she had been since after April 2001. This challenges commonsense, even if she were permitted to continue to have access to a joint bank account during the period that she continued to work.
I accept the Plaintiff's evidence that it was the conversation, in January 2006, which resulted in him making it clear, and her realising, that their relationship was over.
(d) The conversation that the Defendant said that he had with the Plaintiff about the wedding. He denied that he said words to the effect that effect "I want to postpone the wedding" and asserted that he had said: "I want to cancel the wedding".
The evidence of the Plaintiff, who said that the Defendant had spoken in terms of "postponing the wedding" is much more believable. Ms Cronan corroborates this evidence referring to a conversation with the Defendant relating to the wedding being "postponed".
I also note Ex. K, which is a document in the handwriting of the Defendant, which I find was written on a date after 22 August 2005, in which the words "the Wedding Postponement" are found.
(e) His assertions as to when the relationship ended (whether or not he told the Plaintiff that it had).
Ms Cronan gives evidence of a conversation with the Defendant in about November 2005 (the same conversation in which he used the phrase "postpone the wedding") in which he said "If things don't work out with us (meaning he and the Plaintiff, I would always look after her". This is hardly consistent with the relationship having ended at that time. (I consider, in this regard, that the conversation referred to was likely to have been in September or October, rather than in November 2001.)
The Defendant accepted that, on at least two or three occasions after October 2005, he and the Plaintiff went out together socially, or otherwise attended a function together. On one of these occasions, the Plaintiff's daughter was with them. I found his evidence about the nature of these occasions unconvincing.
The Defendant also did not deny that, on Christmas Day, 2005, he had told the Plaintiff that he loved her as they left the restaurant where they and Chelsey had had a late lunch. This is hardly consistent with the Defendant having ended the relationship.
(f) The Plaintiff did not work from home after April 2001.
I accept the evidence of the Plaintiff and her daughter in this regard, especially as it appears to be consistent with the general description of the type of business being conducted by the Defendant.
(g) That the Defendant had not said that he would make her a co-director of his company.
Ms Cronan gave evidence that the Defendant told her about this and she had remembered his statement about making the Plaintiff a co-director "because it is a big statement to make". I prefer her evidence.
Counsel for the Defendant submitted that the reality was that he did not do so. However, this does not mean that he did not say that he was going to do so.
117Five additional matters should be mentioned as they further justify my conclusions regarding the Defendant:
(i) He had provided various documents to a Bank, in order to borrow funds, the contents of which documents did not disclose the true state of his financial affairs (Ex. C and Ex. F) and which documents he knew were a sham.
(ii) He had stopped making mortgage payments on the Radcliffe Place property in the hope that this might result in the sale of that property - he was "attempting to force a sale". This is a different reason than that provided in his first affidavit, which reason was inability to assist financially because of the current economic climate. That reason might have been a relevant one between May and September 2007. However, in September 2007, he received almost $2.8 million. He admitted that, then, he did not do so because he "was hoping we would be able to come to some sort of settlement".
(After the proceedings concluded, part heard, on 8 June 2011, the Defendant paid one half of the arrears and one of the mortgage instalments.)
(iii) The Defendant could not recall whether he had lodged any documents with the ATO relating to the Plaintiff's employment in the business. Bearing in mind the evidence that he had paid her no wages, superannuation, or any other employment emoluments of any kind, it seemed he is unlikely to have done so. He certainly did not provide her with any Group Certificate. He was not prepared to acknowledge this in the witness box.
(iv) Although not stated in his affidavits, the overall content of which seemed to down-play the nature and extent of the Plaintiff's contributions, he acknowledged in the witness box that throughout their relationship, the Plaintiff had been dedicated, trustworthy and an extremely hard worker in his business. There was no reason for him not to have acknowledged this, fully, and frankly, in his affidavit and no reason for not doing so was offered.
In my view, he had painted a somewhat different picture in his affidavits. This contrasts with the Plaintiff's affidavits in which the Defendant's contributions, for example, to the welfare of the Plaintiff's daughter, Chelsey, are acknowledged.
(v) There was a "striking similarity" between a conversation asserted in his affidavit and the conversation in Mr Byrne's affidavit (to which I shall return).
118I shall deal with the alleged loan by Mr Byrne to the Defendant in more detail later in these reasons.
119The Plaintiff's daughter, Chelsey, was cross-examined. I have no doubt that she was a witness of truth and I accept her evidence. Whilst it is true that she was a young girl when the relationship commenced, she seemed to have a good recollection of the events, particularly those in which she was involved. Her evidence, broadly, corroborated the evidence of the Plaintiff.
120Some criticism was made about her evidence regarding when the relationship had commenced. She stated that she had a conversation with the Plaintiff about moving in with the Defendant "when I was 11 years old". Her 11 th birthday was in mid-March 2001. It was submitted that I should conclude that this meant that the Plaintiff and she did not move into the Fairway Drive property until after her 11 th birthday.
121However, in cross-examination, she confirmed that she and the Plaintiff "had already moved in" with the Defendant at the date of her 11 th birthday and that in her affidavit she had meant the year of her 11 th birthday. I accept her evidence in this regard. It was easier to accept this evidence in light of the Defendant's first affidavit, in which he stated that "in about March 2001, ... the Plaintiff moved into my home at ... Fairway Drive ...".
122This supports the Plaintiff's assertion that the relationship commenced earlier than the date suggested by the Defendant.
123The Plaintiff's daughter, in cross-examination, stated that the Defendant was still in the Radcliffe Place property in January 2006. In her affidavit, she had stated they "continued to live together until January 2006". This Paragraph was not disputed by the Defendant in his late affidavit in reply and is inconsistent with his evidence that he moved out in October 2005 and did not return to live there.
124The Plaintiff's daughter also corroborated the Plaintiff's evidence about the nature, type, and duration, of the work that the Plaintiff performed in the Defendant's business. Because of her age, she attended with the Plaintiff when the Plaintiff was at work, on many occasions, particularly after school and on the weekend. She was able to recollect the times during which she would be at the Defendant's factory, with the Plaintiff, and she described what the Plaintiff would do at those times. She could remember being there sometimes until late in the evening.
125For example, the Plaintiff's daughter said that she often had to take taxis, or that the Defendant would drop her, to school because the Plaintiff was at work "either at the factory, mostly in the office, and sometimes ... at home". She also says that, after school, if she went to the business premises, she would do her schoolwork there. During the week, it was usually always dark outside and late at night when they would leave.
126The Plaintiff's daughter describes some of the work that she, herself, would do to assist in the business, such as folding brochures and letters and putting them in envelopes, or putting brochures under car windshields or in letter boxes. As she got older, she would assist in other ways. The Defendant admits that she did some work "such as packing food, waitressing at functions, cleaning out the storeroom, kitchen and/or freezer and dry food room". He states that she was paid, either by the Plaintiff or by him.
127I accept the evidence of the Plaintiff's daughter, particularly where it conflicts with the evidence of the Defendant.
128Each of the other witnesses whose affidavit was read in the Plaintiff's case was cross-examined. Based upon that cross-examination, there is simply no reason to disbelieve the evidence of each of these witnesses and I accept that evidence. The Defendant's counsel did not submit that I should not.
129I have earlier mentioned the evidence of Lisa Ann Cronan. She gave her evidence clearly and without any prevarication. There was no suggestion of any bias in favour of the Plaintiff and it was not put to her that she was giving evidence only to assist the Plaintiff. She was an impressive witness. The only error I accept that she may have made relates to the date of the conversation with the Defendant relating to postponing the wedding. However, this relatively minor error does not, in my view, adversely affect her evidence.
130In her affidavit, Ms Cronan corroborates the Plaintiff's evidence about the work she was required to do and the times that she observed the Plaintiff being in attendance in the office or in the factory. She also identifies the Defendant and the Plaintiff as the persons to whom she was answerable. However, it was the Plaintiff who she described as "her main point of contact".
131Mr Russek, who met the Plaintiff in 1987 and the Defendant in 2001, was cross-examined about his observations of what the Plaintiff did at work and "the time and effort Helen put into running the business that she was involved in with Graham". He describes a conversation with the Defendant, in which the Defendant stated that the Plaintiff is "basically running the place" and that he "would be lost without her. She organises all the chefs ... she organises all the orders".
132Mr Van Impelen, worked in the Defendant's business in NSW between about October 1998 and March 2007 (except for most of 2005). Therefore, he was an employee of the Defendant during the whole of the de facto relationship of the Plaintiff and the Defendant.
133He, also, spoke of the work that the Plaintiff performed in the deceased's business. He was employed between Thursday and Sunday. He gives evidence of his observations of the Plaintiff working at the Defendant's office at North Rocks, answering the telephone and making booking for functions.
134He states that he would speak to the Plaintiff, generally, by telephone, on Thursday evening, to ascertain if there was any work available on the weekend and that he would attend the factory about half an hour before he was required on either Saturday or Sunday.
135He stated that the Plaintiff attended at the factory between about noon and 7:00 p.m. on most Saturdays that he attended. He said he would speak to her, by telephone, at about noon and then see her when he attended before, and then again after, the function at which he was to work. (This evidence is inconsistent with the evidence of Mrs Duffy.) He said that he had even seen her mopping the factory floor.
136It was a short time after his return in late 2005 that he observed the Plaintiff crying and when questioned she told him that she was having some "difficulties at home" with the Defendant. He remembered that she ceased working in January 2006.
137Ms Fox, the Plaintiff's sister, who visited the Plaintiff three or four times a year, for periods of two or three days at a time, described the work she observed the Plaintiff doing at home, and at the factory, when she attended there with the Plaintiff. On an occasion, she went with the Plaintiff to the factory, at around midnight, to deliver wages.
138She also confirmed that several times in 2002, the Plaintiff and the Defendant attended at training sessions for chefs with regard to Queensland Spit Roasts, another business conducted by the Defendant, which business employed Ms Fox. (This evidence is inconsistent with the Defendant's assertion, in his first affidavit, that the Plaintiff had nothing to do with his interstate businesses.)
139It was to Ms Fox that the Defendant disclosed, in about August 2005, that he was "having second thoughts about the wedding". It was she who organised a counselling session for them to attend at that time.
140In relation to the Defendant's witnesses, I was unimpressed with Mrs Duffy. She was dogmatic about matters that, it seemed to me, she ought not be. For example, she asserted that she was "100 per cent certain" that the Plaintiff had not worked after December 2005. When it was pointed out that even the Defendant accepted the Plaintiff finished working in his business in mid-January 2006, she accepted that she had made a mistake, but said she "thought" that what she said was correct.
141She stated, repeatedly, that she spent a significant amount of time in the office and the factory from which the Defendant's business was conducted and that she was an integral part of that business ("I was there 7 days a week"). This was inconsistent with the Defendant's evidence, which was that for about 6 months she had been "locked out" of the business premises because he regarded her work as "sloppy" and that when she returned she was involved as a chef and waitress and not with the business administration.
142I formed the view that Mrs Duffy was attempting to minimize the role the Plaintiff had played in his business. Overall, I found her to display a somewhat entrenched approach to matters concerning the Plaintiff. I do not accept her evidence where it is inconsistent with the evidence of the Plaintiff or any of her witnesses.
143It was difficult to know what to make of the evidence of Mr Byrne who gave evidence going to establish a debt said to be owed to him by the Defendant. There are causes for concern about his evidence. I shall mention several.
144The agreement about advancing moneys is claimed to have been an oral one that was made in 1999. There was an extraordinary similarity in the words used in the affidavits relating to the conversation between Mr Byrne and the Defendant, to which each had deposed in his affidavit. Apart from a few words, the conversations stated were in almost identical form. It is highly unlikely that they could have had materially identical recollections, so many years after the event, and, accordingly, I have little confidence in the reliability of the affidavit evidence of each deponent on this topic.
145It was clear that Mr Byrne and the Defendant had signed documents, being a residential lease agreement and a commercial lease agreement with the intention of those documents being provided to a Bank from whom the Defendant was seeking to borrow money. Neither had any intention to enter into the leases and each knew that the lease documents were a sham. Mr Byrne did not go into occupation of either premises referred to in the lease and did not ever pay any rent as required in either lease.
146Mr Byrne prevaricated when it was put to him that these documents were false documents, finally saying, somewhat grudgingly, "I guess you could say that".
147I have real doubts about the existence of any loan made by Mr Byrne to the Defendant. Firstly, the total amount said to have been loaned was over $700,000. The alleged loan agreement was not supported by any documents. Mr Byrne agreed that to establish the loan, the Court would have to accept the truthfulness of the two parties to the loan as there was virtually no objective evidence to substantiate any loan agreement.
148Mr Byrne said that in 2005, the Defendant had been the subject of a tax audit by the Australian Taxation Office, when the topic of the loan had been raised as a matter of interest, and at that time, the 1999 conversation had again been discussed. One might have expected, following a tax audit, that there would have been some attempt at documenting the loan transactions in a formal way. There was none.
149Mr Byrne accepted that if either he, or the Defendant, had died, there would have been real difficulties establishing what amounts had been advanced by, or what had been repaid to, Mr Byrne.
150The Bank records that were produced did not demonstrate, clearly, what they were said to show, namely that moneys had been repaid to Mr Byrne as part of this loan transaction.
151To discharge the burden of proof on the existence of the loan and the amount said to remain owing to Mr Byrne by the Defendant, I must feel an actual persuasion of its existence. In Briginshaw v Briginshaw (1938) 60 CLR 336, pp 361-362 Dixon J said:
"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
152Despite these matters, it is necessary to consider the possibility that there was such a loan agreement between the Defendant and Mr Byrne. The Plaintiff accepted that there was some relationship that involved monetary transactions between the Defendant and Mr Byrne. If one accepts the evidence of each as to the transfer of money between them, these transactions, some of which had clearly not been disclosed in the evidence of either, involved hundreds of thousands of dollars. For example, the Defendant asserts that he paid $428,000 to Mr Byrne from the proceeds of sale of part of the Fairway Drive property that was resumed.
153Having observed each of the Defendant and Mr Byrne in the witness box, and having considered the limited material available to reach a decision, I cannot be satisfied of the existence of the loan agreement between the Defendant and Mr Byrne. Even if I were satisfied that there had been such a loan agreement, I could not be satisfied of the amount currently owing by the Defendant to Mr Byrne.
154I do not think this conclusion will impact significantly on the result of the case.
155Mr Spero, the Defendant's accountant also gave evidence. There is no reason not to accept his evidence. Part of that evidence includes that in 2003, the Defendant's taxable income was $18,000; in 2004, it was $20,000 and in 2005, it was $28,628. Whilst it was accepted that these amounts were amounts accepted by the ATO following negotiations during the audit, it is necessary to bear these in mind when considering the financial contribution of the Defendant during these years.
156Mr Spero did not give any evidence about his knowledge of the alleged loan by Mr Byrne to the Defendant. Considering that he was "completely involved" with regard to the process involving the Australian Taxation Office, this is a surprising, and unexplained, omission from his evidence.
157The Defendant's brother, Gary, was cross-examined also. I formed the view that he, too, was attempting to diminish the role that the Plaintiff played in the Defendant's business. However, I note that his involvement was in the office, whilst the Plaintiff worked in the office and in the factory. I do not accept his evidence that the Plaintiff rarely attended the office, or that she only attended with the Defendant and then only for a short time.