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[2026] NSWCA 130
respondent. Appeal dismissed. The appellant was ordered to pay the first respondent’s costs: [108].
A-Civil paid $1 million into First Quadrant’s account, but the Court of Appeal upheld the finding that the loan agreement was with Mr Rose personally. The fact that the cheque went to QPS and some accounting documents referred to QPS did not settle who had borrowed the money. Read in context, the evidence and later communications supported the finding that Mr Rose was the borrower. The Court also upheld the finding that the agreed repayment period was three months, not two months. It dismissed the appeal and ordered Mr Rose to pay A-Civil’s costs.
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A-Civil Aust Pty Ltd advanced $1 million on or about 17 December 2018. It did so by issuing a cheque payable to “QPS”, which was deposited into First Quadrant Properties Pty Ltd’s bank account. First Quadrant was then known as QPS Developments Pty Ltd until its name changed on 28 April 2017. Those circumstances were not disputed on appeal: the money went into First Quadrant’s account and had not been repaid to A-Civil [2].
The central dispute was not whether the transfer was a loan. Mr Rose did not challenge the primary judge’s conclusion that the $1 million was advanced as a loan. He challenged two other findings: that he personally was the borrower, rather than First Quadrant, and that the loan was repayable after three months rather than after two months or on demand [3].
At first instance, A-Civil’s evidence came from its former director Melissa Smith and its then-Acting Chief Executive Officer Nasser Matta. Mr Rose and First Quadrant did not call Mr Rose or Vince Battaglia, who had been involved in the communications about the advance. The primary judge drew Jones v Dunkel inferences from those decisions, and Mr Rose abandoned his challenge to that aspect of the decision at the appeal hearing [18]-[20]. First Quadrant did not take an active part in the appeal [4].
The primary judge found that A-Civil had loaned Mr Rose $1 million for three months, at $50,000 interest per month. Judgment was entered against him for $1,150,000, together with pre-judgment interest [2]. On appeal, the Court of Appeal dismissed Mr Rose’s challenges and ordered him to pay A-Civil’s costs [108].
The Court treated the identity of the borrower as a factual question about what was actually agreed. Because the primary judge had heard the witnesses, the appellate court applied the restraint described in Fox v Percy and Lee v Lee. The Court observed that even without express demeanour-based findings, the trial judge’s impression of the witnesses and immersion in the trial setting inevitably played a part in assessing the evidence [45].
That did not prevent scrutiny of the documents. Mr Rose argued that three post-contractual documents were “unequivocal admissions” by A-Civil that First Quadrant was the borrower: the cheque payable to QPS, a note in A-Civil’s financial statements, and the March 2020 reconciliation [41], [46]. The Court assessed each item in context rather than treating its wording or form as decisive.
The cheque was made payable to QPS on Mr Battaglia’s instruction. Ms Smith’s unchallenged evidence was that the discussions about the proposed loan concerned a loan to Mr Rose, and that she understood QPS to be the company to which the cheque should be made payable [48]-[50]. The Court considered it unsurprising for a lender to pay funds to an account nominated by a borrower. It inferred that Mr Battaglia gave the instruction on Mr Rose’s behalf. The cheque therefore did not materially establish that First Quadrant was the borrower [50]-[51].
The financial statements included a loan entry under “Non-Current: Loans – Unrelated entities” identifying QPS Developments Pty Ltd [54]. But the statements had been prepared and signed by an external accountant, Mr Donkin. Although Ms Smith agreed that she supervised the accounts process, it was not put to her that she had instructed the accountant to identify QPS as the borrower, or that she had seen the statements or noticed the entry. The Court also noted there was no evidence of a director’s resolution about the statements under s 295(4) of the Corporations Act 2001 (Cth) [52]-[56]. The accounting entry remained part of the evidence to consider, but did not amount to an admission by A-Civil about the borrower’s identity [56].
The March 2020 reconciliation also had to be read in context. It covered payments and receipts associated with numerous companies and individuals, not just First Quadrant and Iridium. The “Balance Due” figure included transactions involving that broader group and the loan entry [62]-[66]. Matta said the reconciliation was requested by Battaglia and was intended to show the payments and receipts, while Matta had added notes to a spreadsheet prepared from accounting records [67]-[69]. The Court accepted that the primary judge could accurately say Matta had not prepared the underlying document, even though he had written notes on it [70]-[71].
The heading “Reconciliation of Sums Due from QPS/Iridium” did not, in the Court’s view, precisely identify the borrower. It was shorthand for amounts attributed to a wider group associated with Mr Rose, and the loan entry could be included consistently with A-Civil’s case that the loan was to Mr Rose [66], [72]. Later communications, including a revised reconciliation describing the item as a “Loan to Chris”, supported that reading [87]-[91]. The documents considered together supported, rather than contradicted, the evidence of Matta and Smith [98].
The commercial context also supported the primary judge’s finding. Matta and Smith understood Mr Rose to be wealthy but not cash-rich. That mattered to their assessment of whether to lend him money. The Court saw no evidence that they had investigated First Quadrant’s financial position or obtained a guarantee from Mr Rose. In the absence of an explanation for why A-Civil would accept the risk of an unsecured $1 million loan to First Quadrant, the Court considered that such a loan was objectively unlikely on the evidence [99]-[100].
The Court also upheld the three-month term. The conversations focused on a three-month advance, and Matta’s account was that he told Mr Rose the loan had been approved on the basis that it be repaid within three months. Mr Rose’s statement that he would repay in two months was made while persuading Matta to arrange the loan, and was accompanied by an offer of substantial default interest. The Court treated the two-month statement as “puffery” used as persuasion, not as the agreed repayment date [104]-[106]. Because it upheld the three-month term, it did not need to determine whether a loan with no agreed term would be repayable on demand [107].
The judgment does not announce a new general rule that a person who receives a benefit through a company is necessarily the borrower, or that a cheque paid to a company is legally irrelevant. Its reasoning is specific to the evidence and circumstances of this loan. The Court’s central task was to decide what the parties objectively agreed in this particular oral transaction.
The Court relied on existing principles concerning appellate review and documentary evidence. It referred to Fox v Percy and Lee v Lee when explaining the restraint applicable to review of factual findings, particularly where the trial judge had heard the witnesses [45]. It also referred to J and E Vella Pty Ltd v Hobson for the point that the trial judge’s experience of the trial setting and witnesses can affect an assessment even without express demeanour-based findings [45].
On documentary evidence, the Court referred to ET-China.com International Holdings Ltd v Cheung for the proposition that contemporaneous documents generally provide a reliable reference point, while stressing the contextual qualification: documents do not necessarily provide a complete account and may not record the background known to the participants [42]-[44]. It also considered authorities concerning proof of non-written contractual terms through conduct or admissions, including BH Australia Constructions Pty Ltd v Kapeller, Tomko v Palasty and Lym International Pty Ltd v Marcolongo [41]. The judgment distinguished the documents before it from the “clear and unequivocal statements” described in Tomko [41].
The practical effect of the decision was to apply those existing approaches to an oral loan dispute with competing documentary indications. The cheque and accounting entry were relevant, but neither was treated as conclusive. The Court assessed their origin, purpose, surrounding communications and fit with the evidence about the parties’ commercial dealings. The judgment’s reasoning therefore emphasises contextual evaluation rather than a rule giving automatic priority to one type of document.
On limitation, the parties relied on s 14 of the Limitation Act 1969 (NSW), and the asserted limitation defence depended on the repayment date. Once the three-month term was upheld, the alternative argument that the loan was repayable on demand did not require determination [102], [107]. The judgment does not set out a broader analysis of how s 14 applies to other loan arrangements.
At [43], the judgment adopts the contextual qualification to the usual importance of contemporaneous documents: “Documents and events have to be understood in their context”. In plain English, a document can be important without being self-explanatory. What it means may depend on the surrounding commercial dealings and the evidence of people involved.
At [50], the Court said there was “nothing at all unusual, or improbable” about a lender advancing money at the borrower’s direction. This explains why the cheque being payable to QPS did not compel the conclusion that First Quadrant had borrowed the funds. The Court considered that the payee could have been selected to implement Mr Rose’s borrowing arrangement.
At [56], the Court concluded that the financial statements did not constitute an admission by A-Civil that the loan was made to First Quadrant. The reasoning was evidentiary, not a general declaration that accounting records cannot be admissions. The Court focused on who prepared the statements and the lack of evidence that Smith gave instructions about, saw or adopted the particular borrower entry [52]-[56].
At [72], the Court explained that the reconciliation heading could refer to a broader group of entities and people associated with Mr Rose, rather than identifying the specific contractual borrower. In plain English, grouping debts and transactions under a company heading in a working reconciliation did not necessarily establish which person had agreed to borrow the money.
At [98], the Court’s overall assessment was that the documents, viewed as a whole, supported the accepted evidence. This was not a conclusion that every document pointed in one direction. It followed a detailed analysis of the cheque, financial statements, reconciliation and later communications [48]-[97].
At [105], the Court described the two-month repayment statement as “puffery invoked as a tool of persuasion”. The Court meant that, in context, the statement was an effort to reassure the lender while seeking approval, not the agreed contractual deadline. The three-month term was supported by the broader evidence, including the account of the approval conversation and Smith’s unchallenged evidence [104]-[106].
The judgment is most relevant to disputes where the existence of a loan is accepted or established, but the parties disagree about the identity of the borrower under an oral agreement. It illustrates a situation in which money was advanced to a company’s account, while the lender’s witnesses said they had agreed to lend to an individual associated with that company [2], [10], [21]-[29].
It is also relevant where one party relies on payment records, accounting entries or reconciliations as evidence of the contracting party. The decision shows that their significance may turn on who prepared them, who gave instructions, whether the relevant person saw or approved them, and what the documents were intended to record [52]-[56], [62]-[72].
A further relevant feature is the existence of later communications about repayment. In this case, Matta’s requests for money, Battaglia’s responses, and later references to a loan to Chris formed part of the evidentiary picture [74]-[97]. The judgment illustrates that a later document may clarify a working reconciliation, but its meaning must still be considered alongside the earlier conversations and the commercial setting.
The appeal also involved a challenge to the trial judge’s factual findings after a trial at which the appellant did not give evidence. The primary judge drew Jones v Dunkel inferences, and the challenge to those inferences was abandoned on appeal [18]-[19]. The Court’s treatment of the remaining grounds therefore arose in a record where the accepted lender-side testimony was not met by a competing account from Mr Rose or Battaglia.
Finally, the case involved a limitation argument dependent on the contractual repayment date. The Court’s reasoning may be relevant where a party says an oral loan had a shorter term or was repayable on demand, but it does not determine every question about limitation periods or demand loans. Here, the three-month finding made it unnecessary to decide the alternative demand argument [102]-[107].
The judgment excerpt provides no decisions after Rose v A-Civil Aust Pty Ltd and therefore does not establish how later courts have treated it. It would not be possible, from this judgment alone, to say whether later courts have applied, distinguished or otherwise considered its reasoning.
The judgment itself explains its relationship to earlier authorities. It applies the appellate restraint principles associated with Fox v Percy and Lee v Lee, and relies on J and E Vella Pty Ltd v Hobson concerning the trial judge’s advantage in assessing the evidence [45]. It explains the contextual approach to documents by reference to ET-China.com International Holdings Ltd v Cheung [42]-[44]. It considers authorities about proof of non-written contractual terms and distinguishes Tomko v Palasty because the documents in this case were not comparable to the clear and unequivocal statements described there [41].
Those are the precedent relationships expressed in the judgment itself. Any account of later treatment would require later judgments, which are not included in the supplied text.
The Court expressly left one question undecided: whether, if no repayment term had been agreed, the loan would be repayable on demand. It said that issue was unnecessary to resolve after upholding the three-month term [107]. The judgment therefore should not be read as deciding the legal effect of an uncertain or unstated repayment term.
The Court also did not need to decide whether First Quadrant could have been liable on some other basis. The appeal grounds addressed whether the loan was to Mr Rose or First Quadrant, but the Court upheld the finding that Mr Rose was the borrower. First Quadrant did not participate actively in the appeal [4], and the Court did not decide broader questions about corporate liability, agency or the legal consequences of directing loan proceeds into a company account.
Nor does the judgment establish that accounting records or reconciliations can never amount to admissions. Its conclusion depended on the evidence about preparation, instructions, approval, context and purpose of the particular documents [52]-[56], [62]-[73]. The reasoning leaves open how a different record, for example one clearly adopted by the relevant company decision-maker or specifically prepared to identify the borrower, might be assessed.
Finally, the judgment records that A-Civil’s action was not statute-barred on the term found by the primary judge, but it does not provide a general treatment of all limitation issues arising from oral loans. The alternative on-demand argument was not determined, and the limitation discussion should be read in that procedural and factual setting [3], [102]-[107].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this analysis, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Rose v A-Civil Aust Pty Ltd [2026] NSWCA 130
Hearing dates: 11 June 2026
Date of orders: 14 July 2026
Decision date: 14 July 2026
Before: Payne JA at [1];
Stern JA at [2];
Black J at [109]
Decision: (1) Appeal dismissed.
(2) Appellant to pay the first respondent’s costs.
Catchwords: CONTRACT — construction of oral contract — identification of parties to loan contract — whether post-contractual documents constituted admissions as to the identity of the borrower — whether the primary judge mischaracterised reconciliation document — whether the Court was better placed to assess the identity of the borrower
Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
Corporations Act 2001 (Cth), s 295(4)
Limitation Act 1969 (NSW), s 14
Cases Cited: A-Civil Aust Pty Ltd v Rose [2025] NSWSC 1505
BH Australia Constructions Pty Ltd v Kapeller (2019) NSWLR 367; [2019] NSWSC 1086
ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
J and E Vella Pty Ltd v Hobson [2023] NSWCA 234
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Tomko v Palasty [2007] NSWCA 258
Category: Principal judgment
Parties: Christopher Peter Rose (Appellant)
A-Civil Aust Pty Ltd (First Respondent)
First Quadrant Properties Pty Ltd (formerly QPS Developments Pty Ltd) (Second Respondent)
Representation: Counsel:
T Bagley with B Millington (Appellant)
D L Cook SC (First Respondent)
Solicitors:
Brown Ward King (Appellant)
Shaba & Thomas Lawyers (First Respondent)
File Number(s): 2026/55102
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
This appeal concerned a loan pursuant to which, on or about 17 December 2018, $1 million was deposited by the first respondent, A-Civil Aust Pty Ltd, into the bank account of the second respondent, First Quadrant Properties Pty Ltd (which was known as QPS Developments Pty Ltd up until 28 April 2017). The appellant, Christopher Rose, was at all material times a director of First Quadrant. It was found by the primary judge, and not challenged on the appeal, that the $1 million had been advanced by way of a loan. The primary judge found that the loan was to Mr Rose and was repayable after three months such that, contrary to Mr Rose and First Quadrant’s contention, A-Civil’s cause of action was not statute-barred under the Limitation Act 1969 (NSW), s 14. On appeal, Mr Rose challenged both of those findings, contending that the primary judge should have found that the loan was made to First Quadrant, not to Mr Rose, and that the term of the loan was two months, or it was repayable on demand, such that the claim was statute-barred.
First Quadrant played no active role in the appeal. Its position was explained on the basis that its directors had indicated by emails, attached to an affidavit, that they did not wish to be heard on the appeal. At first instance, both Mr Rose and First Quadrant were named as defendants. In their defence, both Mr Rose and First Quadrant denied that they were the borrower of the $1 million and that denial was never withdrawn. Neither Mr Rose, nor Vince Battaglia who liaised, on behalf of Mr Rose, with Melissa Smith, then-director of A-Civil, and Nasser Matta, then-Acting Chief Executive Officer of A-Civil, gave evidence at first instance. Her Honour drew Jones v Dunkel inferences from the failure of Mr Rose and Mr Battaglia to give evidence. Mr Matta and Ms Smith did give evidence and were cross-examined, and the primary judge accepted their evidence.
The Court (Stern JA, Payne JA and Black J agreeing) held, dismissing the appeal with costs:
As to issue (i)
(1) It is inevitable that the primary judge’s impression of the witnesses and her immersion in the milieu of the trial played a part in her assessment of the evidence: [1] (Payne JA); [45], [101] (Stern JA); [109] (Black J)
J and E Vella Pty Ltd v Hobson [2023] NSWCA 234, applied.
(2) The post-contractual documents relied upon by the appellant, being the cheque for $1 million made out to QPS, the f****inancial statements for A-Civil for the year ended 30 June 2019, and a reconciliation document prepared in March 2020 (March 2020 reconciliation) were not “unequivocal admissions” of A-Civil that First Quadrant was the borrower of the $1 million: [1] (Payne JA); [41] (Stern JA); [109] (Black J)
BH Australia Constructions Pty Ltd v Kapeller (2019) NSWLR 367; [2019] NSWSC 1086; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303; ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24, considered.
Tomko v Palasty [2007] NSWCA 258, distinguished.
(3) As to the cheque, there is nothing at all unusual or improbable about a lender advancing money at the direction of the borrower, and it was readily inferred that instructions were given to A-Civil in this regard by Mr Battaglia on behalf of Mr Rose. No material weight was afforded to the fact that the cheque for $1 million was made out to QPS rather than to Mr Rose: [1] (Payne JA); [50] (Stern JA); [109] (Black J)
(4) The financial statements, which included an entry that the statements had been prepared on the basis of information provided by A-Civil’s director, were prepared by an accountant, Mr Donkin, of Strategic Accounting Advisers Pty Ltd. It was not put to Ms Smith that she gave instructions as to the identity of the borrower as recorded in a note in the financial statements relating to the loan, or that she had noticed that the borrower was there identified as QPS. Moreover, there was no resolution of Ms Smith as director of A-Civil as regards the financial statements. In these circumstances, the financial statements did not constitute an admission but were part of the body of evidence to be considered: [1] (Payne JA); [55]-[56] (Stern JA); [109] (Black J)
(5) The primary judge’s finding that the March 2020 reconciliation was not prepared by Mr Matta was not erroneous having regard to Mr Matta’s evidence that he did not prepare the document but did prepare the notes. Further, viewed in context, the March 2020 reconciliation was neither inconsistent with A-Civil’s contention that the loan was made to Mr Rose, nor was it an admission as to the identity of the borrower: [1] (Payne JA); [70]-[72] (Stern JA); [109] (Black J)
(6) The documents in evidence, viewed as a whole, supported the evidence of Mr Matta and Ms Smith, and the findings of the primary judge, that the loan was to Mr Rose: [1] (Payne JA); [98] (Stern JA); [109] (Black J)
(7) In the commercial context before the Court, including Mr Matta and Ms Smith’s understanding that Mr Rose was wealthy and asset but not cash-rich, and in the absence of any explanation as to why A-Civil might have been willing to expose itself to the commercial risk associated with an unsecured loan to First Quadrant, it is objectively unlikely that A-Civil would have advanced $1 million to First Quadrant, as opposed to Mr Rose: [1] (Payne JA); [99]-[101] (Stern JA); [109] (Black J)
(8) The primary judge had the advantage of seeing and hearing the evidence given at trial. Her Honour did not err in finding that the loan was to Mr Rose and not to First Quadrant: [1] (Payne JA); [101] (Stern JA); [109] (Black J)
As to issue (ii)
(9) The primary judge did not err in finding that the term of the loan was three months from the date it was advanced. Mr Rose’s statement when seeking to convince Mr Matta that he would repay the $1 million within two months should objectively be understood as nothing more than puffery invoked as a tool of persuasion: [1] (Payne JA); [104]-[106] (Stern JA); [109] (Black J)
(10) It was unnecessary for the Court to consider the alternative contention advanced by Mr Rose, that the $1 million was repayable on demand: [1] (Payne JA); [107] (Stern JA); [109] (Black J)
PAYNE JA: I agree with Stern JA.
STERN JA: The key issue in this appeal is the proper characterisation of an oral agreement pursuant to which the sum of $1 million was deposited by the first respondent, A-Civil Aust Pty Ltd into the bank account of the second respondent, First Quadrant Properties Pty Ltd (which was known as QPS Developments Pty Ltd up until 28 April 2017) on or about 17 December 2018. There was no dispute before the primary judge (nor in this Court) that this transfer took place when a cheque for $1 million was made out by A-Civil to “QPS” and paid into First Quadrant’s bank account on 17 December 2018 and that the $1 million has not been repaid to A-Civil despite it having made demands for repayment, through its then-Acting Chief Executive Officer, Nasser (“Nass”) Matta. The primary judge found that the $1 million was advanced by way of a loan by A-Civil to Christopher (“Chris”) Rose (who at all material times was a director of First Quadrant) for a period of three months and that Mr Rose agreed to pay interest on the loan of $50,000 per month: A-Civil Aust Pty Ltd v Rose [2025] NSWSC 1505 at [14], [30]. Reflecting these findings, on 2 February 2026 her Honour made orders that Mr Rose pay A-Civil $1,150,000 and pre-judgment interest under s 100 of the Civil Procedure Act 2005 (NSW) in the sum of $470,912.44.
Mr Rose appeals against the whole of the primary judgment. He presses only two grounds of appeal (grounds 1 and 2 in the Notice of Appeal), neither of which challenges the primary judge’s conclusion that the $1 million was a loan. In ground 1(a), he contends that it was not open to the primary judge to find that the $1 million was made to, and repayable by, Mr Rose. He contends that the primary judge should have found that this was a loan to First Quadrant, not to Mr Rose. In grounds 1(b) and 2, Mr Rose contends that the primary judge erred in finding that the loan was repayable three months after the date of the advance. He says that her Honour should have found that the loan was repayable two months after the $1 million was transferred and, in light of that, that A-Civil’s cause of action was statute-barred (proceedings having been commenced by filing a Statement of Claim on 28 February 2025).
Notwithstanding that Mr Rose’s contentions on appeal directly affect its interests, First Quadrant did not file a submitting appearance and did not seek to make any submissions on the appeal. This was explained by documents annexed to an affidavit of Damian Ward, Mr Rose’s solicitor on the appeal, sworn on 20 May 2026. This demonstrates that (at least as at 19 May 2026, and the Court inferred, when the appeal was heard) the three directors of First Quadrant were Mr Rose, Adam Reeves and Adrian Balatinac, and that each of Mr Reeves and Mr Balatinac had sent an email to Mr Ward indicating that First Quadrant did not wish to take part in the proceedings. In these circumstances, the Court proceeded to hear the appeal without First Quadrant taking any active role.
At all material times Mr Rose was involved in property development as the director of a number of companies, including (as noted above) of First Quadrant, a property developer/builder.
A-Civil is a demolition and civil works contractor. At all material times up until 1 July 2020, Melissa (“Mel”) Smith was a director of A-Civil. At the time the $1 million was advanced, A-Civil had been engaged by some of the companies of which Mr Rose was a director and was working on a project carried out by Iridium Developments Pty Ltd, which appears to be one of Mr Rose’s companies, and was or had been working on a project at Walter Street, which also appears to have been undertaken by one of Mr Rose’s companies. The primary judge found that A-Civil was keen to obtain more such work.
Mr Matta met Mr Rose in late 2017 through Vince Battaglia. Between 2016 and 2020 Mr Battaglia was engaged as a consultant to A-Civil providing the services of a general manager. The primary judge found that, at some time during the period when A-Civil was pursuing repayment of the $1 million, Mr Battaglia went to work for First Quadrant as a project manager. It is not clear when he took that role, although I note that a progress payment certificate issued by First Quadrant for a project in Cronulla described as “Iridium 12018” in June 2019 identified Mr Battaglia as the “Principal’s Representative” and Mr Matta as the contractor’s (being A-Civil) contact name. What is clear, however, is that from prior to 17 December 2018 and continuing throughout the period of communications relating to the loan, Mr Battaglia gave every outward appearance of acting as Mr Rose’s agent in relation to the loan. Further, the primary judge found that there was “acrimony” which led to Mr Battaglia ceasing to work for A-Civil and then representing First Quadrant and Mr Rose when A-Civil pursued the repayment of the $1 million plus interest and that finding is not challenged on appeal.
A-Civil’s Statement of Claim alleged that the $1 million was a loan from Mr Rose, or alternatively from First Quadrant, repayable after three months, which had not been repaid despite demand. A-Civil’s written submissions filed on 31 October 2025, in advance of the hearing, and the oral opening of senior counsel for A-Civil, made it clear that A-Civil’s primary case was that the loan was to Mr Rose, personally.
In their defence, Mr Rose and First Quadrant admitted that the $1 million had been transferred but denied that this was a loan. They also amended their defence, by consent, on the first day of the hearing before the primary judge to allege that the term of “any” loan agreement was either that it was repayable on 17 December 2018 (the date when it was advanced), two months from 17 December 2018 or on demand and that any purported debt was thus extinguished under the Limitation Act 1969 (NSW), s 14.
In their written submissions in advance of the hearing, filed on 31 October 2025, Mr Rose and First Quadrant contended that there was no loan agreement and, if there was, the term was either two months or that it was repayable on demand. They made no contention that the, or any, loan was made by A-Civil to First Quadrant. In that context, senior counsel for A-Civil opened the case by submitting that the parties were “in furious agreement that [First Quadrant] never borrowed the money” and indicated that Mr Rose and First Quadrant did not seek to make any submission in opening to the contrary. Consistent with this position, it was not put to either Mr Matta or Ms Smith, A-Civil’s witnesses before the primary judge, that the loan was in fact to First Quadrant and not to Mr Rose.
An affidavit of Mr Rose sworn on 22 August 2025 was filed and served but not read at trial and Mr Rose was not called as a witness in the defendants’ case. That affidavit is not before this Court. It appears, however, from A-Civil’s written submissions below that Mr Rose’s account as set out in that affidavit was that the $1 million was an investment and not a loan. Whilst, of course, I place no substantive reliance upon this, it explains, as a matter of procedural context, why A-Civil’s written submissions were focussed primarily upon showing that the $1 million was a loan rather than an investment. It also explains why senior counsel for A-Civil opened the case before the primary judge on the basis that there were two issues in the case: was the $1 million a loan or an investment, and if it was a loan, was it statute-barred. By the time the case reached the stage of closing submissions at first instance, Mr Rose and First Quadrant abandoned any alternative explanation for the transfer of the $1 million. Moreover, on the evidence relied upon at first instance, the only explanation before her Honour was that the money was advanced as a loan.
In that context, counsel for Mr Rose and First Quadrant submitted in closing:
I accept in the absence of having called Mr Rose as a witness that your Honour is likely to be persuaded by this document [referring to the cheque] that there was an advance to QPS Developments Pty Ltd of $1 million that carried with it an expectation of a return. That is something that the Court is likely to characterise as a loan to QPS Developments Pty Ltd on the face of this document.
If your Honour was not persuaded by the recollection of particular witnesses, and was reasoning by reference to the primary documents, particularly the most contemporaneous primary documents, there are gaps or uncertainties in at least the identification of the parties to the loan, because the most contemporaneous documents are consistent with it being an agreement with the company, and not with Mr Rose personally, and gaps or inconsistencies in terms of the term of the loan and the rate of interest to be charged.
He added that “your Honour would focus principally on who the funds were received by as the best guide” and would be “far more confident” in drawing a conclusion that “the person or the company who was given the money was the borrower”. Notwithstanding these submissions, as her Honour observed, First Quadrant never withdrew the denial in its defence, verified by Mr Rose, that it had entered into a loan agreement with A-Civil for the $1 million.
A-Civil did not contend that Mr Rose was precluded, having regard to the way in which the case was conducted at first instance, from contending on appeal that the loan was made to First Quadrant. It did, however, submit that this background provided context for the primary judge’s findings. That is, that it was really only as something of an afterthought that the issue at the forefront of the appeal was raised at first instance.
That [First] Quadrant and Mr Rose finally led no evidence which raised for consideration any purpose for A-Civil’s payment of the $1 million cannot be ignored. The forensic decisions made not to call Mr Battaglia, or even finally Mr Rose, despite the service of his statement, in order to establish some other purpose for the $1 million payment, or to dispute the claimed terms of his agreement with A-Civil, must be accepted as helping to establish not only the existence of the loan, but also its claimed terms.
Whilst Mr Rose initially sought to challenge this finding, at the commencement of the hearing of the appeal he abandoned any challenge to this finding.
It followed that the only affidavit and oral evidence before the primary judge was from Mr Matta and Ms Smith, both of whom were cross-examined.
Mr Matta’s evidence, in his first affidavit sworn on 16 May 2025, was that Mr Battaglia first raised with him that A-Civil might make a loan to Mr Rose in or about October 2018, telling him that “Chris needs a ‘short term loan’ for $1 million”. He told Mr Matta that this was because Mr Rose was “asset rich, not cash rich” and needed the money for only three months so he could pay the builder for the fit out “at the Freshwater project”. He said Mr Rose had asked him to ask A-Civil if they could “help him out”. In cross-examination Mr Matta said that he remembered the exact words spoken at that meeting. In circumstances in which there was no evidence from Mr Battaglia, and this would in any event be the natural inference to draw, I would infer that in the conversation set out above Mr Battaglia was acting at the direction of Mr Rose.
Mr Matta said that after this he asked Ms Smith if they could lend the money to Mr Rose but she refused.
Mr Matta said in his first affidavit that a few days or a week later he had lunch with Mr Battaglia, Mr Rose and one other person, during which Mr Rose asked if A-Civil could lend him the $1 million for three months so he could pay the builder, get sign off and get the drawdown from the bank. Mr Matta said Mr Rose said words to the following effect:
Of course I will pay it back within 3 months. I will have the sign off from the builder by then and I will be able to get the drawdown. Like Vince already told you, I will pay A-Civil $50,000 a month for 3 months. I will pay it back in 2 months, but I will still pay 3 months' interest. I am confident that I will pay it back. I guarantee it. Hell, I will even pay default interest of $50,000 a day for each day that I am late! That's how much I can guarantee.
In cross-examination it was put to Mr Matta that “you just can’t remember what was said at [this] meeting” to which he responded “Yes, I can”, later saying that he remembered “very clearly” the terms.
Mr Matta said in his first affidavit that he then discussed the opportunity with Ms Smith, while Mr Rose and Mr Battaglia pursued him by phone. He said he convinced Ms Smith to lend Mr Rose the money, after which he had a conversation with Mr Rose in words to the following effect:
[Mr Matta]: Chris, Mel has agreed to let A-Civil lend you the million bucks. You need to pay it back within 3 months with interest of $50,000 per month.
[Mr Rose]: Thanks Nass. Like I said to you, I guarantee you that I will have it paid back in 2 months.
[Mr Matta]: You need to come to the office and pick up the cheque.
[Mr Rose]: Ok.
After this, he told Ms Smith that Mr Rose would come to the office to collect a cheque for the $1 million. He also explained in his first affidavit the demands he made to recover the $1 million. I discuss these when considering the documentary evidence at [46]-[100] below.
As to the steps that he took to chase repayment of the loan, in his first affidavit Mr Matta said:
By mid-February 2019, Chris and / or [First Quadrant] had not made any payments to A-Civil. Shortly after this date, I called Chris and we had a conversation which included words to the following effect:
[Mr Matta]: Chris, it has been 2 months since the money was lent to you. You have not made any loan repayments as agreed. When will you pay the money?
[Mr Rose]: I am working on it. I am still waiting on the drawdown to come through from the bank. Just give me a few more weeks. A-Civil has given me 3 months to repay and I am paying interest anyway.
[Mr Matta]: Ok.
By 17 March 2019, [Mr Rose] and / or [First Quadrant] had still not made any payments to A-Civil.
Shortly after this date, I called [Mr Rose] and we had a conversation which included words to the following effect:
[Mr Matta]: Chris, what is going on? There have still not been any payments made. The loan needs to be repaid as soon as possible.
[Mr Rose]: I am still waiting for the drawdown to come through. I will try to repay the loan as soon as I can.
Around this time, I also had discussions with [Mr Battaglia] about the repayment of the loan. [Mr Battaglia] said to me words to the following effect:
[Mr Battaglia]: Chris is waiting for the drawdown from the bank and it is taking time. Give him time. He will be paying A-Civil interest so there is nothing to worry about.
… I understood that Chris was wealthy and that he needed a short-term loan because, although he was asset rich, he needed cash for a short while to pay the builder for a fitout which would then get him a sign off and the ability to draw down from the bank.
…
The whole basis upon which Chris convinced me to lend the money was that it was going to be paid back in 2 months and that he was so confident it would be paid back that he was prepared to pay $50,000 in interest per day if it was not paid back in 3 months.
Thus, on Mr Matta’s evidence, he reached an oral loan agreement with Mr Rose at a lunch in late 2018, subject to Ms Smith agreeing, and he was able to convince Ms Smith, the directing mind and will of A-Civil, to agree to the agreed terms of the loan. Further, when he took steps to pursue repayment, Mr Rose did not dispute that the loan was to him and said that he would repay the loan and interest, and Mr Battaglia’s response was also consistent with the loan being to Mr Rose. That evidence, which the primary judge accepted, supported her Honour’s findings that the loan was to Mr Rose.
Mr Rose and First Quadrant contended below that the primary judge should find that Mr Matta’s evidence was unreliable as regards the parties to, and terms of, the loan, particularly having regard to the fact that he was giving evidence about conversations that took place seven years earlier, and noting what Mr Rose and First Quadrant submitted were inconsistencies as between Mr Matta’s evidence and the available documents.
The primary judge gave a number of reasons for rejecting these contentions. First, Mr Matta’s evidence accorded with that of Ms Smith, which was not challenged. Second, Mr Matta’s evidence accorded with the making of the loan and his later pursuit of repayment, Mr Battaglia’s responses and First Quadrant’s continuing denial that money had been loaned to it. Third, Mr Matta’s evidence was not challenged by any competing account either of the conversations or of the loan (in circumstances in which, as set out above, her Honour inferred that the evidence of Mr Rose and Mr Battaglia would not have assisted Mr Rose and First Quadrant’s case) and it provided a commercial explanation for the advance A-Civil made to Mr Rose. Fourth, Mr Matta’s cross-examination did not cast doubt upon her Honour’s conclusions. Fifth, her Honour was persuaded that the loan was something which Mr Matta was likely to remember, particularly given that A-Civil was not in the business of lending.
As for Ms Smith, in an affidavit sworn on 11 June 2025 she said that she had a conversation with Mr Battaglia sometime in late 2018 in which Mr Battaglia said:
Chris needs a loan for $1 million. He will pay it back in 3 months with interest once he gets his drawdown from the bank. He has offered to pay $50,000 interest for each month so in the end you will have the loan repaid plus $150.000. That is a good deal. Can you and Nasser help him out through A-Civil?
… gave the cheque to Vince and said to him words to the effect of “we better get the money back in 3 months*!**”.* Vince said to me “don’t worry, you will get it back”.
As regards these matters, again, I would infer that Mr Battaglia was acting at the direction of Mr Rose.
In cross-examination it was put to Ms Smith that she did not recall precisely what was discussed in the conversations in 2018, to which she responded, “I remember some things, yes”. It was not then put to her that she did not recall any particular conversation she had set out in her affidavit, nor was it put to her that she was not told that the loan was to be advanced to Mr Rose, or that that was not her understanding at the time. No submissions were made to the primary judge that Ms Smith’s evidence was unreliable. Rather, Mr Rose and First Quadrant submitted that Ms Smith’s evidence did not shed a lot of light on what loan was agreed.
The primary judge accepted the evidence of Ms Smith, noting that Ms Smith’s understanding that the loan was made to Mr Rose was not challenged. Her Honour also found that the steps that both Ms Smith and A-Civil pursued reflected Ms Smith’s evidence, that her evidence accorded with the evidence of how she came to be persuaded that A-Civil should loan the funds to Mr Rose, with Mr Rose attending on her at the office to collect the cheque and provided a commercial explanation for the advance A-Civil made to Mr Rose.
Whilst her Honour also found that Mr Matta and Ms Smith “did not have a good understanding of the separate existence of the companies through which they and Mr Rose pursued their commercial activities”, that did not cause her Honour to doubt their evidence as to either the terms of the loan or the identity of the borrower.
The primary judge found that A-Civil loaned Mr Rose $1 million for three months for $50,000 per month interest. Given these findings, her Honour rejected Mr Rose and First Quadrant’s limitation defence. In this regard, her Honour rejected the contention of Mr Rose and First Quadrant that the loan was either repayable after two months or on demand.
As to the characterisation of the advance, her Honour noted that Mr Rose and First Quadrant had not offered any alternative explanation for the admitted deposit of $1 million from A-Civil into First Quadrant’s bank account. Her Honour observed that that left the question of who the money was loaned to. Her Honour found that the evidence established that Mr Rose and A-Civil had a common or objective intention in respect of the loan. In this regard, the primary judge had regard to the evidence of Mr Matta and Ms Smith, to the Jones v Dunkel inferences she drew, and to the available documents, albeit that her Honour acknowledged that the documents did not all point in one direction and that distinctions were not accurately drawn between Mr Rose and First Quadrant in some of the documents.
The essence of Mr Rose’s contention on appeal is that the primary judge erred in finding that the loan was to Mr Rose, and not to First Quadrant. He says that this is a finding which turned not just upon the oral evidence, but upon the contemporaneous documents. Thus, Mr Rose submits that this is a case where this Court should review the primary judge’s credit-based findings as they are either contrary to incontrovertible facts or compelling inferences: see eg Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]. He goes beyond this, moreover, and contends that this Court is better placed to reach such a finding given what he contends is a mischaracterisation or misunderstanding by the primary judge of a spreadsheet attached to an email of 11 March 2020 from Mr Matta to Mr Battaglia, which I will refer to as the March 2020 reconciliation.
Mr Rose contends that the best evidence of the terms of the oral loan contract is what he characterises as “unequivocal admissions” made by A-Civil in, in particular, three post-contractual documents (including the March 2020 reconciliation). He relies upon the principle that non-written components of a contract are capable of being proved by conduct or an admission against interest after the event: BH Australia Constructions Pty Ltd v Kapeller (2019) NSWLR 367; [2019] NSWSC 1086 at [66] and [69]; see also Tomko v Palasty [2007] NSWCA 258 at [13], [19]-[20] (Basten JA), [68]-[69] (Einstein J), Mason P agreeing with both; and Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [143] (Campbell JA, Basten JA and Sackar J agreeing). In this regard, it is of some significance that the admissions upon which reliance was placed in Tomko v Palasty were aptly described by Basten JA at [14] as “clear and unequivocal statements … which support the conclusion that the company was the entity to which the funds were provided”. As will become clear, the matters relied upon by Mr Rose are of a very different character.
Mr Rose and First Quadrant also rely upon the established principle, as set out by Bell P (as his Honour then was, Bathurst CJ and Leeming JA agreeing) in ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 at [25] that:
… contemporaneous documents generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony.
Documents and events have to be understood in their context, and evidence of context will often be furnished by witnesses in their oral evidence. Documents, moreover, will not always present a complete picture of events. Indeed it would be rare that they do. Nor do contemporaneous documents necessarily or invariably convey or record the background or context in which events took place. That background or context will be familiar to the actors at the time of those events but may not always emerge from documents.
The primary judge correctly directed herself by reference to these principles.
In considering Mr Rose’s contentions, the starting point is that the primary judge’s finding that the loan was to Mr Rose is an essentially factual conclusion based upon what her Honour found was actually agreed: see by analogy Lym International at [143]. Whilst Mr Rose relies upon the fact that her Honour did not make “demeanour-based findings”, it is inevitable that the primary judge’s impression of the witnesses and her immersion in the milieu of the trial played a part in her assessment of the evidence: J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 at [214] (Stern JA, Mitchelmore JA agreeing). In these circumstances, Mr Rose’s challenge to this key finding as to the identity of the borrower attracts the principles of appellate restraint set out in Fox v Percy and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28*.* In light of this, Mr Rose’s contentions as to what inferences should be drawn from the available documents, and as to the alleged error of the primary judge in relation to these, assume considerable significance.
The three documents upon which Mr Rose places particular reliance in support of his overall contention that the primary judge erred in finding that the loan was to Mr Rose are:
the cheque, which Ms Smith made out to QPS. The cheque was presented on 17 December 2018 and debited from A-Civil’s account that day;
a note to the f****inancial s****tatements for A-Civil for the year ended 30 June 2019, which were signed by Peter Donkin of Strategic Accounting Advisers Pty Ltd on 15 January 2020; and
the March 2020 reconciliation.
Mr Rose contends that these are the three documents that are most contemporaneous to the oral loan agreement and, on that basis, that they should be given particular significance, particularly given that the affidavit and oral evidence relates to matters which occurred many years prior to the witnesses giving their accounts.
As already noted, Ms Smith’s unchallenged evidence was that, on Mr Battaglia’s instruction, she made the cheque out to QPS. As the payee was identified as being either the named entity “or bearer”, ultimately the payee as entered on the cheque was not determinative of whether First Quadrant was entitled to the $1 million on presenting the cheque.
In her affidavit Ms Smith said that this was a cheque “payable to Chris’s company, which was then called QPS Developments Pty Ltd” (although in fact at that time that company had changed its name to First Quadrant). In oral evidence she agreed that she understood, when writing “QPS” on the cheque, that this was a reference to First Quadrant. Mr Rose submits that this is consistent with First Quadrant being the borrower albeit that it does not exclude Mr Rose being the borrower. He submits that this is not determinative but is an “important starting point” when considering the identity of the borrower.
Given Ms Smith’s unchallenged affidavit evidence that she understood that the loan was to Mr Rose and that her discussions with Mr Battaglia and Mr Matta all focussed upon whether a loan should be made by A-Civil to Mr Rose, I attach no material weight to the fact that Ms Smith made the cheque out to QPS rather than to Mr Rose. There is nothing at all unusual, or improbable, about a lender advancing money at the direction of the borrower and I would readily infer that Ms Smith understood Mr Battaglia to be giving instructions as to the identity of the payee on behalf of Mr Rose. Further, as set out above, I would infer that, in giving these instructions, Mr Battaglia, who had clearly been involved in negotiating the loan on behalf of Mr Rose, was acting on behalf of Mr Rose. It was not suggested that Mr Battaglia had any basis, other than instruction from Mr Rose, to direct the identity of the payee on the cheque.
It necessarily follows that I reject Mr Rose’s characterisation of the cheque as an admission that First Quadrant was the borrower.
As set out above, the financial statements were prepared, and signed, by Mr Donkin. On the front page of the financial statements, Mr Donkin said that the director of A-Civil was solely responsible for the information contained in the financial statements and that they were prepared on the basis of information provided by the director. At the relevant time, the director of A-Civil was Ms Smith.
In cross-examination Ms Smith said that she was responsible for preparing the accounts for A-Civil and that that was done with the assistance of an in-house accountant. She agreed that she supervised the in-house accountant as part of her role as director, that he would have come to her if he had questions about transactions in the accounts, that “if the accounts for A-Civil for 2019 were prepared, [it was] likely that [she was] the person giving instructions about entries in the accounts” and that she would have been careful, to her ability, to ensure that the accounts were accurate.
The financial statements included a redacted entry for “Trade and other receivables” and the note to that entry, under the heading “Non-Current: Loans – Unrelated entities” recorded a loan to “QPS Developments Pty Ltd”. Mr Rose submitted that this entry in the financial statements was an admission that Mr Rose was not a party to the loan and is the “best” or “powerful” evidence of what was agreed orally as to the parties to the loan.
This contention faces insuperable difficulties. First, it is not an entry that was made in the financial statements by A-Civil. It was made by Mr Donkin. Second, whilst Ms Smith agreed that she would be the person giving instructions about entries in the accounts and that she would have been careful to ensure that the accounts were accurate, it was not put to her that she gave instructions as to the identity of the borrower as recorded in the note or that she had noticed that the borrower was identified in the financial statements as QPS. Nor was it put to her that this entry was inconsistent with her understanding, as set out in her unchallenged evidence, that the borrower of the $1 million was Mr Rose. Third, there is no evidence of any resolution by Ms Smith, as the director of A-Civil, declaring that the financial statements comply with the relevant accounting standards and give a true and fair view of the financial position of the company (as required by s 295(4) of the Corporations Act 2001 (Cth)). Fourth, there was no evidence that Ms Smith had actually seen these financial statements.
In these circumstances, contrary to the contention of Mr Rose, the financial statements do not constitute an admission by A-Civil that the $1 million loan was made to First Quadrant and not to Mr Rose. They are, however, one of the documents which form part of the body of evidence by reference to which Mr Rose’s contentions must be considered.
I have all finalised and have printed of [sic] all for you now so when you want to see it im happy to sit thanks
Given that this email does not describe the intended role of, or reason for creating, the reconciliation, before turning to the document itself it is necessary to consider its context.
As set out at [27] above, Mr Matta’s evidence was that, by mid-February 2019, as neither Mr Rose nor First Quadrant had made any payments, he called Mr Rose indicating that he had not made repayments as agreed and Mr Rose told him that he was working on it and was still waiting for the drawdown.
Mr Matta also said around this time that he had discussions with Mr Battaglia about the repayment of the loan and Mr Battaglia also said that Mr Rose was waiting for the drawdown and to give him time. Mr Matta said he then called either Mr Rose or Mr Battaglia once every few weeks or so following up on the payment and each time he was told that the repayments would be made once the funds from the bank drawdown became available. Mr Matta said that between January and March 2020 he continued to pursue Mr Rose and Mr Battaglia for repayment of the loan and he was told by both that the loan would be repaid once the drawdown funds came through. The primary judge evidently accepted this evidence, as she found that Mr Matta had “first asked Mr Rose about repayment” and “pursued [repayment] unsuccessfully” even before the three months had expired.
This is the evidentiary context in which the March 2020 reconciliation must be considered.
The March 2020 reconciliation primarily comprises a table with 11 rows and 3 columns. The first column includes, in each row, a heading in bold type: First Quadrant, Walter Projects, Iridium, Contact, QPS, Stefad Group, Vertical Projects Solutions, Mills Oakley, Vesica Group, Battaglia and Clyde & Co. Two of these (Mills Oakley and Clyde & Co) are law firms. “Battaglia” appears to be a reference to Mr Battaglia and “Contact [Constructions]” is a company associated with Mr Battaglia. Walter Projects, Iridium and QPS (which was a reference to First Quadrant) are companies associated with Mr Rose. It is not clear who the other entities are. Under each heading (or in some cases just above) are a number of narrative entries describing what appear to be payments, going either to or from A-Civil. Reflecting this, the second column is headed “Payment” and the third column is headed “Receipt”. At the bottom of each of the second and third columns are what appear to be the totals of, respectively, payments and receipts. There is also a figure of $4,903,373.16 described as “Nett receipts”. This amount is the difference between the total payments figure of $2,152,221.17 and the total receipt figure of $7,055,594.33.
Underneath this, the following notes appear:
Mr Rose submits that this is an admission that the loan was to one of QPS or Iridium, but not to Mr Rose. Mr Rose places particular emphasis in his submissions on the fact that the loan is detailed under the bold type entry “Reconciliation of Sums Due from QPS/Iridium”.
Q: In this document, you have carefully identified, under different headings, who the relevant company is that particular invoices relate to, haven’t you?
A. These are not invoices. This is an XXT, which the accounts department downloaded off the bank, which showed all payments from - as Vince requested, to show payments that have been paid.
Q. These are payments, not invoices that are recorded?
A. These are payments from the XXT, which is converted to an Excel, which shows the money that was received and the money out for each of these companies that Vince asked for the reconciliation, to show that the money was paid.
…
Q: I was asking you a slightly different question. You prepared this document, didn’t you?
A. I - I - you’re - I prepare - I wrote the notes. This was prepared by accounts from the download from the bank, yes. From the accounts.
So this spreadsheet refers to the email that was sent to Vince on that time, as Vince requested, to break up and show the payments that come in. And as it was sent in March, when was this was done, cause it was going on for so long, this was the - as, you know, the six months of what it - when he - when he was asking about it. So it went six months of interest plus I, well - amongst, you know when you said “did I think”, I was just the - talking about the facts, but I didn’t know - know you can charge - if I was including GST, as you can see. It was just “here’s the figures, here’s all the bank statements, here’s all the payments in now, and the loan still has not been repaid”.
He said that the reference to the loan in the March 2020 reconciliation was a reference to the loan to Mr Rose and that that was his understanding of this document.
Mr Rose contends that the primary judge misconstrued or mischaracterised the March 2020 reconciliation in finding that:
Mr Matta was cross examined about these documents, which he had not prepared. They do not resolve what is in issue.
Whilst it would have been more accurate for her Honour to have said that Mr Matta had not prepared the document but had added the notes and the amount of the loan, her Honour’s statement that Mr Matta did not prepare the document was not inaccurate. What was obviously of significance to her Honour was that Mr Matta had been cross-examined on the document and that the document did not resolve the issue of the identity of the borrower of the $1 million. I thus reject Mr Rose’s contention that her Honour made an important error in how she characterised the March 2020 reconciliation, and that this is a basis upon which this Court could be satisfied that it is better placed than her Honour to assess the identity of the borrower of the $1 million.
In any event, I would not characterise the entry in the March 2020 reconciliation in relation to the loan as being inconsistent with A-Civil’s contention that the loan was made to Mr Rose, still less as an admission by A-Civil as to “who the borrower to the agreement was” (as Mr Rose submitted). As I have already observed, the March 2020 reconciliation purports to identify a net figure owing to A-Civil by entities on, broadly, Mr Rose’s side of the ledger. Given Mr Matta’s unchallenged evidence as to this document, it makes perfect sense that he would have included the loan to Mr Rose in this reconciliation document and, in doing so, would not have been focussing upon describing the borrower with precision. He would have known that Mr Battaglia and Mr Rose would have been well aware of what he was referring to as the loan. In these circumstances, I would not read the heading “Reconciliation of Sums Due from QPS/Iridium” as intending to identify the entity to whom the loan was made. That is consistent with her Honour’s observation that:
It is evident that in various of the documents distinctions were not accurately drawn between Mr Rose and [First] Quadrant.
Hi Vince really need the money from [ ] Chris can you talk to hi[m]. as need money today, do you want me to call him so I can push him or you will talk to him, please get back to me asap
… I spoke to Chris he needs to get Roy to approve
That is consistent with Mr Matta’s account of what he was told as to the basis upon which the loan was needed when the loan was agreed.
On 8 April 2020 Mr Matta texted Mr Battaglia in the following terms:
Hi Vince I need u to really talk to Chris as I need money paid off that sheet its 1mil, even if he pays 250k, I need this [answer] asap or if u like we all can sit if needs to please get back to me thanks.
In his affidavit Mr Matta described these as text messages regarding the repayment of the loan.
Mr Matta sent follow up texts in April to June 2020, indicating the urgency of the situation. On 11 June 2020 he sent a text message to Mr Battaglia saying:
Morning Vince i need the money this week owed by Chris I need a meeting tomorrow and money, if not i have to borrow and interest is on Chris, what time can you and Chris meet tomorrow at my office
Thanks
Nasser before I come in have a look at your spreadsheet again take out all the stuff for Willoughby take out all the staff will contact Constructions which has nothing to do with Chris take out all the stuff that's related to me and then you adding all your payments and all your variations and all the fees and you'll come up with a new balance
Consistent with this, the primary judge found that whilst Mr Battaglia suggested that there were errors in the reconciliation, he did not dispute that A-Civil had made a loan.
Mr Matta responded by text message to Mr Battaglia on 1 July 2020 that “… when you and him needed money i loan it to Chris and now these games …”.
Mr Battaglia then sent Mr Matta an email on 3 July 2020 disputing that certain figures should be in the March 2020 reconciliation. He suggested that there should be a number of headings in the reconciliation, one of which was “loan amount = $”. There followed further acrimonious text messages between Mr Battaglia and Mr Matta. On 14 October 2020 Mr Battaglia sent an email to Mr Matta which included the following:
Confirming our conversation of meeting last night.
1. The issues raised in your spreadsheet are to be totally separated and we are only referring to Cronulla project and the $1m loan and Interest.
2. All works carried out for Walter street has been paid and no further claims or monies are due.
3. Demolition contract was paid in full and no further claims or monies are due.
4. Mills Oakley invoices paid by A-Civil were in fact to deal with the legal issue of Sydney Water Claim for damage to the sewer during early works, I recall the claim been in the order of $90k and to date Sydney Water have not pursued A-Civil for the money, this was a good result for A-Civil. Please send me a copy of the invoices
5. Clyde and Co. it was agreed that it has nothing to do with Cronulla or Chris Rose, I still don’t know what it was paid for but as I said at no time did I direct payment for this.
6. We agreed to separate Vince and Karen wages and affairs from Cronulla as this has nothing to do with Chris Rose.
Nasser, I provided you with a way to do a quick summary on Cronulla, this is the only way to show if Chris still owes you money, as I said to you last night and the past 12 months,
I strongly believe that you were paid everything you were owed for the project, the loan and the interest. This will be proven by the summary and payment schedule.
This email sheds light on the matters in the March 2020 reconciliation. It is consistent with the entries in that document relating to entities related to Mr Rose and also to Mr Rose himself. The fact of the loan is not disputed. Consistent with my understanding of the document, Mr Battaglia describes the March 2020 reconciliation as aimed at identifying what “Chris still owes”.
Mr Matta responded to this email the same day, adding his responses in red type to the email. One of Mr Matta’s responses was that:
Vince I agree with Chris this has gone on long enough and as you know the money was a loan from A-Civil to Chris for $1mil plus the interest of $50k for 3mths and any day late after 3ths would be $50k per day interest. Vince If Chris had paid it back the loan and interest as what was agreed to for the loan this wouldn’t be an issue for anyone especially me. Vince I have help Chris with money and loans for Chris his cash flow and now it has to be documented on Wednesday and paid within a week.
Mr Rose submits that this is the first document emanating from Mr Matta which positively identifies the loan as being advanced to Mr Rose. That ignores the 11 June and 1 July 2020 text messages (at [79] and [82] above). It also downplays the significance of the repeated text messages in which Mr Matta seeks money from Mr Rose, which are equally consistent with him seeking money from Mr Rose personally or from him on behalf of his companies.
Mr Matta sent a revised reconciliation to Mr Rose on 19 October 2020 under cover of an email, with the subject “Reconciliation for Chris Rose outstanding payment”, stating:
See attached all payments from your group of companies and all the payments paid for you by Vince’s Direction, as was your Directions to him as was told to A-Civil. This also includes works for contract and Variation for works completed works for Cronulla.
These are the items that we would like to close-out on Wednesday and be paid for the money that is owed to A- Civil.
Again, this email sheds light on the intention behind the March 2020 reconciliation, namely that it related both to payments to companies associated with Mr Rose but also payments made “for Mr Rose” at Mr Battaglia’s direction.
The revised reconciliation has the same heading in the notes at the bottom of the table to that at [63] above, but describes the loan as:
Loan to Chris 17/12/2018 $50K/mthly intrest till June 2019.
There is nothing in the evidence that suggests any reason why Mr Matta might have described the loan in this way if, in fact, the loan was to First Quadrant and not to Mr Rose. There is nothing in the evidence to suggest that something happened in the lead up to this document which might have prompted Mr Matta to assert that the loan was to Mr Rose if that was not in fact the case. In these circumstances, the more likely explanation is that Mr Matta was adding the additional detail of this being a loan “to Chris” when that was implicit, or assumed, all along.
It can also be noted that the notes underneath the table in this reconciliation included an entry “owed by chris” indicating that the negative figure for total “nett receipts” was owing by Mr Rose. Again, that is consistent with the reconciliation seeking to identify what stands on either side of the ledger between A-Civil on the one hand, and Mr Rose or entities associated with him on the other. Whilst there is still some looseness in this document in its references to Mr Rose and entities associated with him, the description of the loan as being “to Chris” supports Mr Matta and Ms Smith’s evidence as to the loan being to Mr Rose personally.
On 20 October 2020, Mr Rose told Mr Matta that his accountant had a full breakdown of funds paid to Mr Matta and that he would meet with Mr Battaglia the following day. He did not say anything in this email about the loan.
On 21 October 2020 Mr Battaglia sent an email to Mr Matta and Ms Smith advising that Mr Matta’s numbers were wrong and that:
Over the last couple of months I have had repeated allegations, screamed at by Nasser in relation to outstanding debts allegedly owed by Chris Rose and entities associated with him to your company.
The allegation of debts being owed are based on false assumptions, a misunderstanding of the real facts and figures of which Nasser’s figures are confusing and false.
…
A Civil have been paid $1,964,440.33 This was to repay the loan to Chris, interest and to fully meet other financial accommodations A-Civil had extended.
This email is entirely consistent with Mr Matta and Ms Smith’s evidence that the loan was made to Mr Rose and also suggests that for some months leading up to October 2020 Mr Matta had been telling Mr Battaglia that it was Mr Rose who owed money to A-Civil. As the primary judge observed, it is also inconsistent with Mr Rose’s case before her, that the $1 million was not loaned to him personally.
On 24 November 2020, Mr Matta sent an email to Mr Rose which included the following:
Chris can you also please show me how you paid the A-Civil Loan to You Chris which was $1,000,000 with $50,000/mth interest for 3 mths only and any day late after the 3ths was $50,000 per day. Please send me the way you have paid this back as it hasn’t been paid to our account.
I don’t owe you any monies. Please do not contact me again.
It is also important to consider the commercial context in which the $1 million was advanced. As disclosed by their evidence, Mr Matta and Ms Smith understood Mr Rose to be wealthy and to be asset but not cash rich. Mr Matta explained that he took that into account when deciding whether or not a loan should be advanced to Mr Rose and relied upon that in his conversations with Ms Smith when raising the possibility of making the loan with her. It is commercially rational to give significance to Mr Rose being wealthy and having assets in the context of assessing whether or not to make a loan of $1 million to him, but those matters would have no relevance to the commerciality of making a loan to First Quadrant, or to any other corporate entity. Further, there is nothing in the evidence to suggest that Mr Matta or Ms Smith made any enquiries as to the financial position of First Quadrant before advancing the $1 million or that they sought a guarantee from Mr Rose in respect of the loan. In the absence of anything in the evidence to explain why A-Civil might have been willing to expose itself to such commercial risk, it is objectively unlikely that A-Civil would have advanced $1 million to First Quadrant in these circumstances.
These features of the commercial context provide objective support for Mr Matta and Ms Smith’s evidence that the loan was to Mr Rose and not to First Quadrant.
As regards the term of the loan, Mr Rose contends that her Honour erred in finding that the loan was repayable after three months. He contends first that the term of the loan as agreed between Mr Matta and Mr Rose was two months. In the alternative, he says that there was no relevant meeting of the minds as to the term of the loan and this Court would then imply a term that the loan was repayable on demand. On either view, as proceedings were not commenced until 28 February 2025, they were commenced outside of the 6-year limitation period under s 14 of the Limitation Act 1969 (NSW).
The key evidence that Mr Rose relies upon in support of this contention is the two passages from Mr Matta’s affidavits, at [22] to [28] above, in particular, that Mr Rose told Mr Matta that he would pay the loan back in two months, that Mr Matta passed that on to Ms Smith and that Mr Matta took steps to pursue repayment before the expiry of three months after the date when the $1 million was advanced.
Mr Rose’s contention that the primary judge erred in finding that this was a loan for three months should be rejected. The conversations between Mr Rose and Mr Matta had, as their focus, an advance of $1 million for three months. That is what Mr Rose asked for and it is what was ultimately agreed to. When Mr Matta told Mr Rose that he had convinced Ms Smith to lend Mr Rose the $1 million, what he said was that he had to “pay it back within 3 months” to which Mr Rose replied “Thanks Nass”.
Mr Rose’s statement, when seeking to convince Mr Matta that A-Civil should give him the loan, that he would “pay it back in 2 months” (at the same time as offering to pay default interest of $50,000 a day), should objectively be understood as nothing more than puffery invoked as a tool of persuasion.
Similarly, as the primary judge observed, the evidence from Ms Smith set out at [32]-[33] above was not challenged in cross-examination. No contrary evidence was led. That evidence is only consistent with her understanding being that A-Civil would advance the $1 million as a loan for three months. The unchallenged evidence from Mr Matta that in February 2019 Mr Rose said that A-Civil had given him three months to repay the loan (at [27] above) also supports this conclusion.
Given this conclusion, it is unnecessary to consider Mr Rose’s alternative contention that we would find that the term of the loan was uncertain and imply that it was repayable on demand. Grounds 1(b) and 2 of the notice of appeal should be rejected.
It follows that the appeal should be dismissed. As neither party submitted to the contrary, costs should follow the event. The orders I propose are:
Appeal dismissed.
Appellant to pay the first respondent’s costs.
BLACK J: I agree with Stern JA.
**********
Rose
A-Civil Aust Pty Ltd
[2003] HCA 22
(2003) 214 CLR 118
(1959) 101 CLR 298
(2019) 266 CLR 129
Appeal dismissed. The appellant was ordered to pay the first respondent’s costs: [108].
For the reasons that follow, the primary judge did not err in finding that the $1 million loan was to Mr Rose and that it was repayable after three months. The appeal should be dismissed.
There is no dispute that, as Mr Matta said in his first affidavit, the loan referred to in the notes at [63] above is the loan that is the subject of these proceedings (and it was accepted before her Honour that the entry in the notes for the loan was erroneous in two respects: first, that GST was not payable on a loan, and second, that interest was only payable for three months, totalling $150,000).
The Balance Due figure of -$1,009,582.71 is the “Nett receipts” figure of $4,903,373.16 less the “Total Due” figure of $5,912,955.87. The figure given as the “Balance Due” is thus made up of payments to and from both the range of entities identified in the table (and not just QPS and Iridium), and the loan, contract sum and variations in the notes. In these circumstances, I would infer that the heading “Reconciliation of Sums Due from QPS/Iridium”, in the extract at [63] above, is shorthand for sums due from a range of entities (extending beyond QPS and Iridium and including also Mr Battaglia), which Mr Matta considered to be broadly on Mr Rose’s side of the ledger.
That is consistent with Mr Matta’s oral evidence. During his cross-examination he was asked whether he had prepared the March 2020 reconciliation. He responded “yes”, but a little later in the cross-examination the following exchanges took place: