Wills v Berg [2025] QDC 219

[4] She also apparently earns, and has for some time earned, a living as a property developer, on a residential basis. Her evidence was that she had bought and sold residential properties. In that context, it certainly seems that the plaintiff had significant financial means at relevant times.

[5] Her evidence was that the defendants approached her to ask for financial assistance. They were under mortgage stress at the time and were also interested in developing a horse training business on their property which would require, amongst other things, construction of some suitable facilities.

[6] The plaintiff described how she came to an agreement with the defendants about this. She had initially inquired, particularly of the first defendant, Mr Berg, why there were not other relatives of his who could assist, and was told that - incorrectly, it seems - that the relationship with his parents was too strained.

[7] In fact, as the evidence establishes at material times his parents had advanced him money, which was secured by some loan agreement, and evidenced by the fact that there was a registered second mortgage on the property to his parents, apart from the first registered mortgage to the ANZ Bank.

[8] Thus in August of 2019, whilst staying at the property, the plaintiff described how the agreement was reached. In exchange for a payment by her to the defendants of $250,000, she would become a half owner of the property; she could reside at the property, possibly in the context of the discussion about a tiny house, which is a term of art, but describes the kind of small mobile or semi‑mobile construction which is also referred to by the parties, and has previously been described in photographs.

[9] She would also, that is the plaintiff would, also become a one-half owner of the prospective horse training business to be operated on the property. This was all proven up by the plaintiff's oral evidence, and as Mr Hackett submits, is largely unchallenged. Whether it is unchallenged or not it certainly does not appear to be directly contradicted in any substantial way, and indeed some elements of it do seem to be common ground on the pleadings.

[10] On the 26th of July, the plaintiff paid pursuant to the agreement, as she outlined, the sum of $250,000 to the bank accounts nominated by the defendants. She described how she went to the bank with the first defendant. $200,000 went to a mortgage facility and $50,000 went to another facility.

[11] The context had been that she had been told that the mortgage stress that the defendants were under would be relieved by the $200,000 payment which would reduce the mortgage debt to about $70,000. This is supported by bank documents that are consistent with those assertions.

[12] In September 2019, and as Mr Hackett argues pursuant to the agreement which as far as the plaintiff knew was on foot, the plaintiff moved to the property and resided there. This, again, seems to be common ground. On the 30th of July, 2019 the evidence seems to establish something that the first defendant does not recall, but as I understand his evidence does not vigorously contest, which is that he spoke to a solicitor, Mr Collinson of Beaudesert Legal, and received advice from him about a deed of trust which he subsequently instructed Mr Collinson to prepare in an email of the same date.

[13] That document is Document 11 in the trial bundle, that is the printout of the email, and does set out the relevant features relied upon by the plaintiff. The email came from Mr Berg's email address. It went to Beaudesert Legal and copied to the plaintiff. In terms it says, "Hi Glenn", that is Mr Collinson, "as discussed earlier today regarding deed of trust, please draft it as you explained with the following details".

[14] The names of Mr Berg and Ms Jo-Anne Wills are set out, and their dates of birth, and the Wagonwheel Road property is mentioned and it said, "You have details of this property on file already", and Mr Collinson confirmed that that is correct, having previously acted in another regard for Mr Berg in relation to the property. The email continues, "If you can, please confirm that there is no other deed of trust or encumbrance on this property. Let us know if you require any further details. Regards, Dave and Jojo." That is Mr Berg and the plaintiff. Mobile phone numbers are inserted and the document asserts that it was sent from "my iPhone" that is Mr Berg's iPhone inferentially - and it does seem to be an inference that is inescapable - on the 30th of July 2019 at 3.33pm.

[15] Understandably, the plaintiff refers to that piece of evidence as being strongly supportive of really her evidence about the coming into being of the agreement which was planned to be embodied in a deed of trust. In my view, those inferences relied upon by the plaintiff in that regard are inescapable.

[16] Mr Berg, in his evidence, while denying having sent that email said that he had no memory of the conversation with Mr Collinson. I discussed with Mr Hackett during submissions exactly what to make of the email given that it is something of a point of contention in the case. The email does seem to have emerged from the defendant's side of the argument in one way or another, for a number of reasons including that it is not suggested that the plaintiff sent it, and it does begin with the words, "Hi Glenn, as discussed earlier today regarding deed of trust." Mr Berg did not recall the discussion with Mr Collinson, but did not, as I understand his evidence, deny it.

[17] As Mr Hackett submits, Mr Collinson's evidence was that the deed of trust referred to in the email between the plaintiff and the first defendant in respect of the property could only be to record a trust whereby the first defendant held the property on trust for himself and the plaintiff, different to the registered legal interest, otherwise there was no point to a deed of trust, and I accept the logic of that submission.

[18] The defence filed by the defendants, who are self‑represented, engages in the issues in a number of different ways. There is initially a denial of an oral agreement that the plaintiff would become a half owner in the property, rather it is asserted that there was to be a gift, and there were no contractual relations. Curiously, it is denied that the defendants nominated the bank accounts into which the moneys were deposited, whereas the evidence in the trial is all one way on that topic, and clearly enough the first defendant did instruct where the money was to be deposited. The defence does, however, go on to admit the deposits of the $200,000 and the $50,000.

[19] I pause to note that the chronology goes on that somewhat later between August and November 2019, a further $96,856.46 was advanced in ways set out in the plaintiff's schedule of the transactions which has become part of Exhibit 1. This was, as the plaintiff described, pursuant to further requests from the defendants, and as the plaintiff also pointed out that despite those further advances, she did not seek to increase her share in the defendants' property to more than the one half which she said had been agreed.

[20] It is also common ground that there were yet further advances at the request of the second defendant on or around the 14th and 20th of November of $5,000 and $10,000, specifically requested by the second defendant. Those deposits are admitted in paragraph 8(a) of the defence.

[21] Paragraph 10(a) of the defence pleads that the plaintiff varied the moneys from a gift to a loan in an informal oral arrangement, whereas the first and second defendant agreed under duress. To the extent that subparagraph of the pleading makes that admission, the plaintiff embraces it in the plaintiff's reply. The admission is that at some stage, at least, the money advanced was to be treated as a loan.

[22] For the purposes of the merits of this action, it seems to me that the distinction between the two pleaded cases, therefore, is really somewhat illusory or a distinction without a difference in the sense that it is common ground that at relevant times, namely, when the plaintiff started to demand that the money be repaid, she was asking for a repayment of a loan, for moneys advanced.

[23] As Mr Hackett submits, the plaintiff orally demanded that the defendants transfer a one half share of the property to her, pursuant to the agreement, on the 28th of October 2019, and the defendants refused to do so. The demand and refusal are admitted in the defence.

[24] The plaintiff gave evidence of that and is uncontradicted. She also gave evidence that she asked for a caveat or a second mortgage which were also refused, and she then demanded the return of her money, and it seems to be common ground that she was told, "Trust us, we will return your funds. We would rather die than not return your money." If there were any doubt about that it is removed by the fact that this commentary was recorded in a subsequent text message and that is document 60, page 410 of the court book from the 21st of February 2022.

[25] The parties fell out and the plaintiff left the property in early November 2019. On the 14th and 20th of November she nevertheless made the further payments to which I have referred. There have been, since that time, a number of demands orally and in writing for repayment of the moneys by the plaintiff, and they are established by the plaintiff's unchallenged oral evidence, and in a documentary sense there are documents referred to in the trial bundle identified by the plaintiff during the evidence. Those include, as set out by Mr Hackett, Documents 40 to 44, 46, 48 to 52, 53 and 54.

[26] There is email confirmation of receipt of two demand letters at least in November 2023 and December 2023 in Document 55, page 282 of the trial bundle, which is emailed from the second defendant to the plaintiff and copying in the first defendant and another email address, acknowledging receipt of the letters of demand. Parts of that document are redacted for reasons which I am not aware of, and I presume are not relevant.

[27] I note that there is an attachment, I think, which is the dated the 11th of January 2024. I have only read enough of that to identify that it seems to come from the defendants, and that it contains the endorsement "without prejudice save as to costs". So I will not read anymore of the text of that document.

[28] So the plaintiff's case is factually reasonably simple. Despite it being common ground that the advances of the money were made, and demands being made orally and in writing, the defendants have refused to repay the moneys and these proceedings are to recover the outstanding debt.

[29] To the extent it is necessary to further catalogue the evidence, there is certainly a text message on page 411 of the trial bundle acknowledging that the money is outstanding and saying that the defendants were trying to sell their property to repay the plaintiff. Thus the plaintiff argues that the agreement is established by a number of evidentiary sources, her uncontradicted oral evidence, and supported by the email sent by apparently the first defendant to his solicitor, Mr Collinson's evidence, the payment initially of the two sums amounting to $250,000, and the plaintiff's own actions in moving to the property at the relevant time. The agreement was further varied on the plaintiff's case by the payment of the further advances to which I have referred.

[30] As argued by the plaintiff, the defence does not really plead a defence to the claim. If there was a gift initially, it is admitted that the gift was varied to be a loan repayable in three years. Despite requests, the loan has not been repaid and thus, as I said earlier, it seems to me on the reading of the pleadings that there is not very much legally in issue in the case.

[31] The plaintiff urges me to find the agreement alleged by the plaintiff, as I have outlined - and it seems inescapable with respect that I should do so - and I do make those findings, namely, that there was agreement in the terms outlined by the plaintiff.

[32] It remains, though, to deal with some other issues which were raised by the defendants, who are self‑represented, but who have done their best, it seems to me, particularly Ms Tessa Wills, to present what they see as their case to resist the claim by the plaintiff.

[33] I pause to note to the extent it matters, there does seem to be a certain lack of logic underpinning the defendants' resistance to the plaintiff's claim. Where they concede that what might have been a gift initially, or conceived as one, was converted to a loan, as they plead, if they are to retain the money then it seems to me, they would be unjustly enriched.

[34] In any case, one of the things, understandably, and relevantly raised by the defendants is that the agreement is unenforceable because of the lack of a signed memorandum in writing relating to the contract which was for disposal of an interest in land. This is in contradiction of the Property Law Act 1974 section 59, and the Property Law Act 2023 section 7, and possibly section 8, which also requires writing for the creation of particular interests in land including the creation or declaration of a trust.

[35] Of course, it is important to note in the factual overview that as the evidence demonstrates the plaintiff was constantly trying to have the relevant agreement reduced to writing, and thus the contact that I have mentioned with Mr Collinson, the solicitor.

[36] What is said by the plaintiff that even if her claim, based on the agreement, were to fail for a lack of writing, there is simply no answer to the ultimate claim which would then arise for moneys had and received.

[37] What the plaintiff does rely on is that there is some writing, namely, the email from the first defendant to Mr Collinson and sufficient acts of part performance, namely, the payments and the going into possession of the property to perfect the agreement in the absence of writing. Mr Hackett refers to McBride v Sandland [1918] HCA 32; [1918] 25 CLR 69. Relevantly, elements of part performance essential to raise the equitable doctrine include the act relied on being unequivocally, and in its own nature referable to some such agreement as that alleged, that is, it must be such as can be done with no other view than to perform such an agreement.

[38] In relation to that element, it could be debated as to whether the simple payment of money without more might be equivocal. The defendants would seek to argue that it was equivocal and equally consistent with a gift. That is, however, to misunderstand, in my conclusion at least, the overall factual matrix that is it was not just a payment of the money, and not just from one occasion, but it is accompanied by her moving to the property so that that is an act which is unequivocally consistent with the existence of the agreement and there is collateral supporting evidence of the agreement in the email and the evidence by Mr Collinson.

[39] The second element of the formulation from McBride v Sandland is that by some such agreement as that alleged. This means some contract of the general nature of that alleged and that was described by the plaintiff in her evidence.

[40] The third element is that the proved circumstances in which the act was done must be considered in order to judge whether it refers unequivocally to such an agreement as is alleged. If the circumstances under which possession was given are proved, then the court may judge whether the act indicates permission or contract, and if contract, its general nature.

[41] The expression of some agreement is used in contradistinction to specific terms of the agreement, and not in the most general sense of any agreement whatever.

[42] That is an important distinction made by the High Court in my conclusion. It is in the background of the overall factual matrix that I must consider whether the plaintiff's actions overall point unequivocally to such an agreement as is alleged. In my conclusion, they do, for the reasons I have outlined.

[43] The fourth element described in McBride v Sandland, was that it must have been done by the party relying upon it on the faith of the agreement, and further the other party must have permitted it to be done on that footing. I reach those conclusions as well. The plaintiff was relying on the faith of the agreement, and in my conclusion the defendants were permitting it, namely, the payments into the accounts, and the plaintiff moving to the property on the footing of the existence of the agreement.

[44] Finally, it must be done by a party to the agreement, and in this case the acts or part performance were done by the plaintiff in the way she described. As Mr Hackett submits the plaintiff's unchallenged evidence establishes those requirements in respect to part performance.

[45] That being the case, the conclusion is that there was an agreement of the kind alleged pursuant to - the fine details of which have not been proven in the case, and are not necessary for the plaintiff to prove. There was an advancement of a loan, there is demand for it to be repaid and it has not, and on the plaintiff's case she is entitled to relief in the form of orders compelling the repayment of the money.

[46] Dealing with some other things that were raised by the defendant - and I should say that the second defendant Ms Tessa Wills has done her best to advance relevant arguments for the defendants. She referred to the presumption of advancement, however, that principle relevantly in the present circumstances would only have application between a parent and a child, and that is not the relationship under discussion.

[47] There was reference to assertions of duress and or laches, in my view there is no particular laches in the present case. The evidence, including the text messages, indicate clearly that the plaintiff did pursue repayment of these moneys without any particular delay. In relation to duress, it is not really clear what is meant by the defendants, but in my view there is no view of the evidence to the effect that one could conclude the plaintiff applying any improper duress to the defendants.

[48] It was argued at one point, certainly in the defendants opening, that the agreement or its enforcement might be precluded by the arrangements met between the first defendant and his parents, and therefore in some way perhaps the agreement was a nullity. Mr Hackett argues simply that such assertions are nonsensical. Certainly, they have no merit in my conclusion. It does Mr Berg no credit, I must say, that it seems to be fairly clear on the evidence that the existence of his agreement with his parents and the fact that they had advanced money reflected in the registered mortgage on the deed was concealed from the plaintiff at all relevant times.

[49] As I have mentioned, the defendants do raise section 59 of the Property Law Act 1974 and section 7, and I think should raise section 8 of the Property Law Act 2023 to similar effect. For the reasons I have outlined in my conclusion those statutory provisions demanding evidence in writing of these kinds of arrangements are not a barrier to the plaintiff recovering on the agreement in the situation where it is perfected by acts of part performance. Laches, even if it did exist, which in my conclusion it does not, is not relevant where the relief claimed is not equitable. It is either pursuant to the contractual arrangements in the agreement or it is the money count of money had and received.

[50] There is reference by the defendants to the Planning Act 2016, and if they have had trouble with the construction on their land. I fail to see how that is attributable in any way to the plaintiff. The defendant does argue that there is no equitable mortgage because there was no delivery of the deed, and that may well be correct, but an equitable mortgage is not something that the plaintiff relies on.

[51] My conclusion is that the agreement has been enforced as the plaintiff describes at all material times. It is an agreement she is entitled to enforce by claiming that the defendants, by their actions, have repudiated it and demanding damages for breach of contract, as set out in the pleadings. This results in a slightly different remedy as against the two separate defendants.

[52] If I am wrong about my conclusion as to the enforceability of the agreement because of conflict with the Property Law Acts, I do accept the alternative submission of Mr Hackett, that that would give rise to a properly pleaded claim, which it is in the pleadings, of money had and received, and the remedy would be the same. So if I am wrong about the validity of the agreement, I do find that the same money would be owing under the money count of money had and received.

[53] Thus I will hear the parties in more detail about the orders, but what the plaintiff argues is that there should be judgment for the plaintiff against the first defendant for the sum of $346,856.46, plus interest of $125,760.17 and against the second defendant for the slightly larger amount of $361,856.46 plus interest of $131,198.75 for the reasons set out by Mr Hackett in the schedule setting out the interest claim.

[54] The plaintiff submits that costs should follow the event which would certainly be the normal course, but the parties should be heard on the form of a costs order after delivery of judgment because of formal negotiations apparently. Mr Hackett, firstly, is there anything more at this stage, but I do have a question for you in a moment?

MR HACKETT: Nothing more to say. I was going to hand up the offers and explain the order I seek.

HIS HONOUR: So just before we come to that, what you gave me, I think, is the interest calculation concerning the first defendant.

HIS HONOUR: Is there a separate one for the second ‑ ‑ ‑

MR HACKETT: I thought I handed your Honour two. If not, I have a spare. So does your Honour ‑ ‑ ‑

HIS HONOUR: Right. Just hand up the second defendant's.

MR HACKETT: The second defendant's is the larger one.

HIS HONOUR: Hang on. Maybe we have got it. Yes. No. We have got it. It is okay. So those will just be documents that go on the file and they just show what the calculations were. Okay.

MR HACKETT: One matter that arises from your Honour's reasons. When you found the agreement, you said in August, whereas the pleaded case in the evidence was - - -

MR HACKETT: - - - in the week prior to 1 August.

[55] I did make a mistake when I was saying that. And I realised that after I'd said it. So what the actual chronology was, as you quite rightly say, it was in week prior to - leading up to the 1st of August, and I think the payments were made on the 26th of July from memory.

HIS HONOUR: So to the extent I said that wrongly a moment ago. I'll correct that.

MR HACKETT: Your Honour, may I hand up - I only have one copy, but my side made two offers: one on 2 October this year and one on 17 March this year, but the earlier one - we've beaten both of them, but it's the earlier one that I'm going to ask your Honour to order indemnity costs from that date.

HIS HONOUR: From the date of expiry of the offer.

MR HACKETT: Yes. Normally it's the date of the offer because the expiry bit doesn't matter. It wasn't accepted.

HIS HONOUR: Is it from the date of the offer. I thought normally you get the grace period while it's running

MR HACKETT: I don't mind if it's 14 days later. It makes little difference. It'd be 31 March then, wouldn't it. Fourteen days onto that would be 31 March.

HIS HONOUR: So those sums are less than the amount of the judgment?

HIS HONOUR: Yes. I should just have a look at the rule for completeness. Do you know what number of the UCPR?

HIS HONOUR: Something oh nine. Rule 356. It's without prejudice. Yes. It's after the day of service of the offer. Rule 362(b).

MR HACKETT: So your Honour, in my submission, the appropriate order is that the defendants pay the plaintiff's costs to be assessed on a standard basis up until 17 March this year, and thereafter on the indemnity basis.

HIS HONOUR: Yes. Okay. I understand. Ms Wills, do you want to say anything about that?

HIS HONOUR: Do you know about the rules of court here or - on this topic?

HIS HONOUR: So what the Uniform Civil Procedure Rules say, which you might've heard of. It seems to me you've done quite a bit of work on this, I must say. I'll just tell you about part of the Rules that deals with offers to settle. It's Chapter 9, Part 5 of the Rules, rule 352 onwards. Rule 360 says - and the idea of these rules is that if you make a formal offer to settle, it encourages the parties to settle because there's consequences if you don't - - -

HIS HONOUR: - - - and you lose. Right. Which is what's happened here.

HIS HONOUR: So relevantly, the rule applies if "the plaintiff makes an offer that is not accepted by the defendant; and" they obtain "an order no less favourable than the offer" - in other words, they beat the offer - and "the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed". There's no suggestion to the contrary here. The second sub-rule says unless you show that another order is appropriate, "the court must order the defendant to pay the plaintiff's costs on the standard basis, up to and including the day of service of the offer" - which was the 17th of March 2025 - "and calculated on the indemnity basis, after the day of service of the offer". So unless there's something unusual that I don't know about, that would be the order under the Rules.

MS WILLS: Your Honour, the - we just - I try - we tried to do mediation and that was refused so that's all I've got to say really.

HIS HONOUR: Well, in the circumstances that have been discussed - and I'll make the printout of the email of the 17th of March 2025 Exhibit 2.

[56] In the circumstances that have been discussed, my conclusion is that the plaintiff should have her costs on the basis I have described, that is the defendants are to pay the plaintiff's costs calculated on the standard basis up to and including the 17th of March 2025 and calculated on the indemnity basis after that day.