Iris Stewart v Douglas Foster [1994] ACTSC 32 (8 April 1994)

SUPREME COURT OF THE ACT

IRIS STEWART v. DOUGLAS FOSTER
No. SC199 OF 1992
Number of pages -12
Contract

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Contract - Loan - Money advanced by sister to brother - Personal property changing hands - Whether intended to create legal relationships

HEARING

CANBERRA, 15-17 March 1994
8:4:1994

Counsel for the Plaintiff: R J Arthur

Instructing Solicitors: Manfred Stinson and Kildea

Counsel for the Defendant: R Mildren

Instructing Solicitors: Vandenberg Reid

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the defendant.

2. Costs reserved.

DECISION

MASTER A HOGAN In this action the plaintiff seeks to recover from the defendant as money lent three sums totalling $58,000.

2. The plaintiff and the defendant are brother and sister. In 1990 they were on amicable, though not particularly close, terms. The defendant had been suggesting that the plaintiff and her husband join him and his wife on a camping trip in the outback. She had been intending to join him, at least for a part of the trip.

3. However, at about that time she won $1,300,000 in Tattslotto. She suggested to her brother that perhaps they would not need to camp out for the whole trip. He rather thought that was the point of it.

4. Then, as part of a shopping promotion, she won a number of airline tickets to the USA. She then announced that they were not going to the outback; they were going to the States. The evidence is conflicting about whether she was to go as well, but I do not think that matters. Her brother said that he was not very anxious to go to the States on such a trip. He was very interested in vintage motor vehicles and would really only want to go there to look for a car to buy, rather than as a tourist, and he could not afford such a trip at that time.

5. She told him that money was not really a problem and asked how much he would need. He said $40,000. Describing her response in neutral terms, she said that she would provide that sum. He accepted the airline tickets and she gave him a cheque as well, made out in favour of Thomas Cook, the travel agent, for $40,000.

6. That is the first sum that is in dispute. The defence alleges that the money was advanced by the plaintiff as a gift, not as a loan. It also alleges that the defendant had, before the action was brought, repaid to the plaintiff approximately $20,000. The plaintiff denies she ever received any repayments.

7. The defendant and his wife travelled to America in mid July 1990. While there he bought a number of vintage motor vehicle parts and arranged for their carriage to Canberra by Fliaway Freight company. They returned home at about the end of August 1992.

8. In mid September there was a discussion between the defendant and the plaintiff about a 1929 model A Ford Coupe, which had once been owned by their mother, but which the defendant knew was in the possession of a Mr Harmer in Young. The defendant had discussed with Mr Harmer buying the vehicle from him, though a price had not been agreed.

9. In late September, during a journey on which the plaintiff drove the defendant to Yarrawonga in Victoria, they stopped at Young and the vehicle was purchased for the sum of $12,500, which the defendant agrees was provided by the plaintiff. That is the second sum at issue.

10. The original defence asserted that the defendant had repaid that sum of $12,500. The defence was later amended. The relevant paragraphs are not felicitously expressed, but refer to an arrangement whereby the defendant agreed to transfer to the plaintiff a Dodge truck and a number of other items of personalty. The nature of the defence, and whether it succeeds, must be discussed in the light of the evidence rather than the pleadings. It suffices at this stage to say that the plaintiff denies that there was any connection between her paying for the Ford Coupe and such handing over as did take place of the Dodge truck and other goods. She alleges that the truck was given to her son John, in consideration of some awnings which she transferred to the defendant.

11. On about 27 September 1990, at the same time as the trip to Yarrawonga took place, the defendant went to the premises of Fliaway Freight Company in Fyshwick and took delivery of the car parts that had been brought from America. The plaintiff went to Fyshwick also. She says that she then provided to the defendant the sum of $6,000, to pay the freight and customs charges for the goods which were delivered. That is the third sum which forms part of the claim.

12. The defendant denies that the plaintiff provided that sum, or any part of the moneys that were paid for freight or duty. He alleges that he still had some cash left from the proceeds of the travellers cheques that they had purchased for the trip to America, and that he used that cash to pay the freight and customs charges.

13. As would be usual in a dispute of this nature, documentary evidence is sparse or non-existent, and very much depends upon the credibility of the parties and the witnesses.

14. Towards the end of 1991 or the beginning of 1992 there had been an estrangement between the families, and the continuing bitterness and resentment was apparent in much of the evidence and the way that it was given, on both sides.

15. The plaintiff and the defendant's wife attributed it to an argument between Stanley and Peter, their respective sons. The bitterness was most apparent, though not necessarily the deepest, on the part of the defendant. I think that the explanation of the cause of the estrangement given by the ladies is more probable than his. But the evidence did not disclose why the estrangement was as deep and as bitter as it evidently was. This litigation obviously did not make things better.

16. I might mention in this context that counsel for the defendant, no doubt on his client's instructions, opened his cross-examination of the plaintiff on the second day of the hearing by extracting admissions from her of two convictions for shoplifting. She did not make the admissions willingly. Nevertheless I do not regard that subject matter, or her responses to the questions about it, as being particularly helpful in deciding matters of credit in this case. Some experience as an advocate has left me with the feeling that it is quite possible for a person to have been convicted of such an offence despite an inherent honesty, and the circumstances that can give rise to such offences can involve very little moral culpability on the part of the offender. The circumstances of these particular offences, mercifully, were not probed. They do not materially affect the weight that I would give to her sworn evidence in this case.

17. But the fact that a brother, in defending a claim for debt brought by his sister, instructed his counsel to raise such a matter highlights the bitterness with which the battle was conducted. That comment implies no criticism of either counsel, both of whom exercised care and tact to keep the dispute to its legal dimensions.

18. It is also characteristic of this type of dispute that a great deal of time was spent on contesting peripheral matters which arose as "corroborative detail, intended to give verisimilitude to an otherwise bald and unconvincing narrative." The result is that none of the principal witnesses could escape valid criticism of their credibility, based on the likelihood or otherwise of their evidence about such peripheral matters. I think it preferable to base my decision as far as possible on the inherent probabilities of the transactions as indicated by the uncontested facts, although it will be necessary to comment on the credibility of some of the witnesses so far as the main facts are concerned.

19. I also agree with the submissions made in argument that it is necessary in this case to decide whether the arrangements that were entered into, such as they were, were intended by the parties to have legal consequences. I was referred to Jones v Padavatton (1969) 2 All ER 616. In that case Dankwerts LJ said (at 620):
Counsel for the daughter argued strenuously for the view that the

parties intended to create legally binding contracts. He relied
on the old case of Shadwell v Shadwell [1860] EWHC J88 (CP); (1860) 9 CBNS 159 and
Parker v Clark (1960) 1 All ER 93; (1960) 1 WLR 286.
Counsel for the mother argued for the contrary view that there
were no binding obligations, and that if there were they were
too uncertain for the court to enforce. His stand-by was
Balfour v Balfour (1919) 2 KB 571; (1918-19) All ER Rep 860.
The principles involved are very well discussed in CHESHIRE AND
FIFOOT ON CONTRACT (6th Edn.), at pp. 94-96. Of course, there
is no difficulty, if they so intend, in members of families
entering into legally binding contracts in regard to family
affairs. A competent equity draftsman would, if properly
instructed, have no difficulty in drafting such a contract. But
there is possibly in family affairs a presumption against such
an intention (which, of course, can be rebutted). I would refer
to ATKIN, LJ's magnificent exposition in regard to such
arrangements in Balfour v Balfour (1919) 2 KB at pp. 578-580;
(1918-19) All ER Rep at pp. 865, 865.
There is no doubt that this case is a most difficult one, but I
have reached a conclusion that the present case is one of those
family arrangements which depend on the good faith of the promises
which are made and are not intended to be rigid, binding
agreements. Balfour v Balfour was a case of husband and wife, but
there is no doubt that the same principles apply to dealings
between other relations, such as father and son and daughter and
mother.

20. It is instructive to read again what Lord Atkin said in Balfour v Balfour (1919) 2 KB at 578-580; (1918-1919) All ER Rep 860 at 864-865:

The defence to this action on the alleged contract is that the
husband says he entered into no contract with his wife, and for
the determination of that it is necessary to remember that there
are agreements between parties which do not result in contracts
within the meaning of that term in our law. The ordinary example
is where two parties agree to take a walk together, or where there
is an offer and an acceptance of hospitality. Nobody would
suggest in ordinary circumstances that those agreements result in
what we know as a contract, and one of the most usual forms of
agreement which does not constitute a contract appears to me to be
the arrangements which are made between husband and wife. It is
quite common, and it is the natural and inevitable result of the
relationship of husband and wife, that the two spouses should make
agreements between themselves, agreements such as are in dispute
in this action, agreements for allowances by which the husband
agrees that he will pay to his wife a certain sum of money per
week or per month or per year to cover either her own expenses or
the necessary expenses of the household and of the children, and
in which the wife promises either expressly or impliedly
to apply the allowance for the purpose for which it is given.
To my mind those agreements, or many of them, do not result in
contracts at all, and they do not result in contracts even though
there may be what as between other parties would constitute
consideration for the agreement. The consideration, as we know,
may consist either in some right, interest, profit, or benefit
accruing to one party, or some forbearance, detriment, loss, or
responsibility given, suffered, or undertaken by the other. That
is a well-known definition, and it constantly happens, I think,
that such arrangements made between husband and wife are
arrangements in which there are mutual promises, or in which there
is consideration in form within the definition that I have
mentioned. Nevertheless they are not contracts, and they are not
contracts because the parties did not
intend that they should be attended by legal consequences. It
would be the worst possible example to hold that agreements such
as this resulted in legal obligations which could be enforced in
the courts. It would mean that when a husband made his wife a
promise to give her an allowance of 30s. or 2 pounds per week,
whatever he could afford to give her for the maintenance of the
household and children, and she promised so to apply it, not only
could she sue him for his failure in any week to supply the
allowance, but he could sue her for non-performance of the
obligation, express or implied, which she had undertaken upon her
part. The small courts of this country would have to be
multiplied one hundredfold if these arrangements did result in
fact in legal obligations. They are not sued upon, and the reason
that they are not sued upon is not because the parties are
reluctant to enforce their legal rights when the agreement is
broken, but they are not sued upon because the parties in the
inception of the arrangement never intended that they should be
sued upon. Agreements such as these, as I say, are outside the
realm of contracts altogether. The common law does not regulate
the form of agreements between spouses. Their promises are not
sealed with seals and sealing wax. The consideration that really
obtains for them is that natural love and affection which counts
for so little in these cold courts. The terms may be repudiated,
varied, or renewed as performance proceeds, or as the
disagreements develop, and the principles of the common law as to
exoneration and discharge and accord and satisfaciton
are such as find no place in the domestic code. The parties
themselves are advocates, judges, courts, sheriff's officer and
reporter. In respect of these promises each house is a domain
into which the King's writ does not seek to run, and to which his
officers do not seek to be admitted.
The only question in the present case is whether or not this
promise was of such a class or not.

21. The transaction where those considerations are most relevant is that concerning the $12,500, which the plaintiff provided for the purchase of the Ford Coupe from Mr Harmer.

22. That transaction took place on about 29 September 1990.

23. The amended defence does not accurately reflect the true nature of the defence relied upon at the hearing. Paragraph 6 admits that the plaintiff paid the sum of $12,500 to or on behalf of or for the benefit of the defendant, being for the purchase of the Ford Coupe. That accords with the evidence. All agree that the plaintiff provided a cheque for $12,500, which was handed to Mr Harmer, in exchange for which Mr Harmer delivered the Coupe to the defendant.

24. Paragraph 7, (as further amended), alleges that the sum was paid by the plaintiff to the defendant pursuant to an agreement that in consideration of the plaintiff transferring the Coupe to the defendant, the defendant would transfer to the plaintiff a Dodge truck, some tables and chairs and some parts for the Dodge truck. Pursuant to that agreement the defendant transferred the truck and other items to the plaintiff, and the plaintiff transferred the Coupe to the defendant.

25. In reality, as the evidence emerged, what was intended was to allege an agreement whereby the plaintiff promised to provide the funds needed for the defendant to purchase the Coupe, which in the event amounted to $12,500, in consideration of the defendant's giving the Dodge truck and parts to the plaintiff's son and the tables and chairs to the plaintiff. That agreement was, in effect, said to have been discharged by performance on both sides.

26. The Reply admits that the Dodge truck and parts were delivered to the plaintiff's son, but alleges a different agreement, namely one made in May 1990, whereby the Dodge truck was to be transferred to the plaintiff's son in consideration of the transfer of some awnings from the plaintiff to the defendant. The defendant's evidence is that before he went to America he had a discussion with Mr Harmer about buying the Coupe. He had been negotiating to buy it for some years, without success. At about the same time, the plaintiff approached him and asked to buy from him his Dodge truck, for her son to use in a wood carting business. She suggested to him that she buy the Coupe for him and he give her the truck. He agreed.

27. His wife also gave evidence that she was present and heard the plaintiff say to the defendant that she would purchase the Coupe for him if he gave her the truck, on condition that he restore the Coupe and use it at the wedding of her daughter Margaret.

28. The plaintiff's son John gave evidence that his mother had informed him that she and the defendant had, to use a neutral term, made an arrangement for him to have the truck, and while the defendant and his wife were away in America he went to the defendant's home and picked up the truck. He had to do some work on it in order to render it roadworthy and have it registered. After some years of the sort of work to be expected from a wood carting venture he sold it for $1,000.

29. The plaintiff's evidence was that her daughter was to be married in early 1991 and that late in 1990 the defendant suggested to her using the Ford Coupe at the wedding, as her daughter wanted vintage cars for the bridal party. It was common ground that it was used for that purpose on that occasion.

30. A Christmas party for the Car Club was also held at her home at the end of 1990, and the defendant, at his own suggestion, supplied some long tables, 30 chairs and a gas cylinder for a barbecue. His son later took 20 chairs back, but the plaintiff still had the other items in her possession.

31. She agreed that she had arranged for her son to acquire the Dodge truck from the defendant, but said that the defendant had offered to exchange the truck for some awnings that she had acquired, but not used, for her previous home. There were four awnings, which she had bought "on special", and she claimed they were worth $8,000, although she paid less.

32. The defendant agreed that he did receive some awnings from the plaintiff. One was produced and tendered in evidence. It is still in its plastic wrapper. The defendant's evidence was that she had told him to take the awnings. If he could not use them perhaps some of the children could. They were still in his shed, unused. They did not fit the windows of his house.

33. Expert evidence was given that the current retail price of such an awning, installed, would be from $298 to $411.

34. I find my view of the plaintiff's credit affected by this evidence. Even without the uncontradicted independent evidence it is obviously a gross exaggeration for the plaintiff to claim they were worth $8,000. Although she claimed to have the receipts they were not produced on either of the two subsequent days of the trial.

35. I am positively satisfied that there was no arrangement such as was alleged in the Reply, that the truck was in exchange for the awnings.

36. The defendant also claimed that after he formed the view that the plaintiff had paid too high a price for the Ford Coupe, he told her she could keep the tables and chairs and gas cylinder.

37. The only certainties in this convoluted story are that the plaintiff provided $12,500 for the purchase of the Ford Coupe which had once belonged to their mother, the defendant took possession of it and performed work on it, and it was used on the occasion of the wedding of the plaintiff's daughter. The plaintiff has some tables and chairs and a gas cylinder which she acquired from the defendant. The defendant has some awnings which he acquired from the plaintiff. The awnings are of no use to him. They have a value but it may well be less than the value of the Dodge truck. The plaintiff's son has a Dodge truck which he acquired from the defendant, which required repair work in order to render it fit for registration, and the defendant did not receive any money in payment for the truck.

38. Despite the best endeavours of the plaintiff's legal advisers I do not think that those facts can be shuffled and shaped to fit the legal categories that the plaintiff's case requires in order to succeed on this issue.

39. I am comfortably satisfied that there was a series of transactions, in none of which did any of the parties contemplate the creation of legal relationships, and they were not linked together in such a way as to constitute a contract discharged by performance.

40. It may well have been present to the plaintiff's mind when she decided to buy their mother's old car for her brother that it should be used for her daughter's wedding. It may even have seemed fair enough to him that if she was generous enough to do that he should give her son the Dodge truck, which was obviously not of much use to him, if the dog could be allowed to chew through the brake hose while it rested and rusted unused in the yard.

41. But those are just the sort of family arrangements which are not contracts. Could the parties have contemplated that the plaintiff could sue for damages if the Coupe had been too dirty to be suitable for use at the wedding? Would it have been suggested at the time the arrangement about the truck was made that some adjustment might be required to cover the cost of the work needed to make it fit for registration?

42. I am quite satisfied also that the handing over of the tables and chairs, and of the awnings, were not connected in any way with the providing by the plaintiff of the money to buy the Coupe. They are further examples of the attitudes of give and take that existed between brother and sister at the time, and serve only, to my mind, to show how likely it was that the plaintiff would provide the money for her brother to acquire the Coupe, which he would use at her daughter's wedding.

43. This part of the claim fails, not because the $12,500 was repaid, as first pleaded in the defence, or because there was an agreement to accept the Dodge truck and parts and the tables and chairs in exchange, as in the amended pleading, but simply because when the plaintiff paid it neither she nor the defendant contemplated the creation of a legal liability in him to repay it.

44. It is not so obvious that the same analysis applies to the claim for $40,000. It was a much larger sum of money, for a start. The defendant and his wife, if they are to be believed, showed by their conduct in repaying about half of it that they did not at the time regard it as a simple gift.

45. The plaintiff's evidence was that when she offered the airline tickets to the defendant there was no mention of money. She claimed that he rang her one night and asked her to lend him some money for the trip. She asked, "How much?". He said "$40,000". She said "OK". He said he would pay her back "when he got his third party money in November". She handed over the cheque to his wife at Belconnen Mall the next day.

46. In corroboration the plaintiff called her brother, Mr Errol Foster. It was not suggested that he took one side or the other in the falling out between his brother and sister and the families. He gave evidence of a conversation with the defendant in which the defendant said he had borrowed $50,000 from the plaintiff and that he had to give it back after he got his claim through.

47. It was suggested in cross-examination that the conversation did not take place. Only the defendant contradicted it. His wife did not. Neither counsel based any submissions on the strange variation in the amount at issue. I do not think that this evidence weighs very heavily in the balance.

48. The defendant's version was that there was no telephone conversation. The question of the money arose during a conversation at his home, after his sister had raised the proposal of going to America. He said he did not have the money to do what he wanted to do even if he went to America. She said that money was no problem and asked how much he wanted. He replied, "$40,000". She said, "Well, the money's yours". He said, "If ever I can repay it or part of it I will". She replied, "I don't want nothing, Doug, the money's yours". There was no mention of his pending litigation.

49. He also said that she asked him not to tell her husband that she was giving him the money.

50. I had the impression that in his evidence in chief the defendant was talking about a single conversation.

51. In cross-examination the discussion expanded into three meetings, at the first two of which the plaintiff's husband was present, but not at the last, when she had asked him not to tell her husband.

52. The plaintiff's husband gave evidence. He did not claim to have been present at any of the conversations. He did say that the plaintiff had told him she was lending her brother $40,000. I do not see any reason why she would not have done so. There was no reason why he would not have access to the bank statements even if he did leave the financial arrangements to his wife.

53. I do not think that there ever was any suggestion that the advance should be concealed from him. To that extent I do not accept the defendant's evidence, nor that of his son, who spoke of a conversation tending to show that he found out about it much later. But the whole issue is an example of a peripheral matter that does not greatly assist in resolving the case.

54. The evidence of Ruth Foster, the defendant's wife, was that there was, first, a conversation shortly after Easter in which they were told about the lottery win, and discussed the changes that might entail for the camping trip.

55. The next was also at her house, in June, when the change of plans to a trip to America was discussed. Her husband said he did not want to go, as he did not have the money to do what wanted. The plaintiff said that money was no problem, but no amount of money was mentioned.

56. Then there was a later conversation at her house again, when the plaintiff asked the defendant how much he needed, and the defendant told her $40,000. There was, according to her, nothing said during that conversation about repayment. On that minor point she differs from her husband.

57. Although I do not accept her evidence that the plaintiff asked them not to tell her husband about the advance, I think that her description of the conversations is the most likely to be accurate. She gave her evidence with every appearance of care, and without any display of hostility. She made no attempt to play down her obvious view that she considered at the time that she and her husband were under a moral obligation to repay the money.

58. It seems probable to me that when the discussions took place there was no exact time fixed for repayment, but there was an expectation on the part of the plaintiff and the defendant that the money would be repaid, as and when the defendant could afford it. It was also known to both of them that a principal source of funds for repayment would be the proceeds of the defendant's litigation. But I do not find that there was a contractual obligation created requiring the defendant to repay any unpaid balance at that time.

59. That hypothesis is supported by the conduct of the defendant and his wife. Mrs Foster was cross-examined about her claimed ability to recall the purpose of various withdrawals from the bank account, which she said were used to make repayments to the plaintiff. There were some withdrawals the purpose of which she did not remember. But she did not attempt to lump them in with the repayments. She was able to recall the circumstances of a number of the others that would help her to remember their purpose.

60. The plaintiff simply denies that she received any repayments at all. Her case is that she expected to be repaid. Both the defendant and his wife acknowledged at least a moral obligation to repay if and when they were able to do so. The defendant's bank statement shows that they had funds from which to make payments over the period referred to by Mrs Foster. There were withdrawals consistent with a series of payments. Over that period they were still on good terms. I think that the inherent probabilities support the impression that I formed, that the evidence of Mrs Foster was, in general, more reliable than that of the plaintiff, especially on this issue.

61. In the passage cited above from Jones v Padavatton, Dankwerts LJ spoke of a possible presumption in family affairs against an intention to create legal relationships.

62. If there is such a presumption, it is only a factual one, not a legal one. And it would carry little weight in a case such as this, where the parties are not husband and wife, but brother and sister, and the transaction was a simple one of an advance of a substantial sum of money with an expectation on both sides of repayment.

63. Nevertheless, even without reliance on any such presumption, I am satisfied that at the time the $40,000 was handed over, neither the plaintiff nor the defendant comtemplated the creation of legal relationships with respect to the advance.

64. The plaintiff's claim for $40,000 fails for that reason. I venture to comment that what was disclosed in the evidence about the reason for the falling out between the two families did not seem to me to make any difference to the moral obligation to repay the balance, but that is a matter for the consciences of the defendant and his wife, not for legal remedies.

65. The plaintiff claims that shortly before the trip to Yarrawonga when the Ford Coupe was purchased the defendant rang her and asked her to lend him $6,000 because the container with the car body and parts was arriving. She went to her bank at Fyshwick to obtain a bank cheque for $6,000 made out in favour of Quarantine, but the teller checked the address, and because the details were doubtful, persuaded her to take cash, in the form of $100 bills. She also took $3,000 for herself for the trip to Yarrawonga. She gave her brother $6,000 in cash, which he used to pay the freight company. Her evidence was not corroborated in any way. There is some irony in one answer that the plaintiff gave during her cross-examination, when she was being asked about the repayments alleged to have been made by Mrs Foster. Counsel put to her, "And I want to suggest to you that it was all paid in cash?". She responded, "Yes, because they've got no way of proving. That's why they say cash".

66. The defendant's evidence was that when he and his wife returned from America they still had travellers cheques to the value of about $5,000, which they cashed into Australian money either at Los Angeles or Sydney. The balance, to make up the total of $6,000, or $6,600, he and his wife had in cash. I note from Exhibit 1 that he and his wife had nothing like $1,000 in their bank account at that time, 27 September 1990. However, it would be likely that they would have some money left at the end of the trip and would use it to pay the freight on the car parts, since that had been the purpose of the trip and of borrowing the money that paid for the travellers cheques. He agreed that the plaintiff was with him and his wife when they collected the car parts from the freight company.

67. Mrs Foster's evidence was that they had about $6,500 in cash, the proceeds of the travellers cheques cashed at Los Angeles. She used that money to pay for the freight and duties. The plaintiff did not give them any part of it. But she was present in the office when the payment was made.

68. Preferring as I do the evidence of Mrs Foster to that of the plaintiff, I am simply not satisfied that the plaintiff did provide the money to pay for the freight and customs.

69. But even if she did, I would hold that it was paid in the same circumstances as the $40,000, namely, with an expectation on the part of all three that it would be repaid, but without any intention on the part of any of them that legal relationships were being created.

70. There must therefore be judgment for the defendant on the whole of the claim.

71. The basis on which the plaintiff's claim has failed was not really raised on the pleadings, though no objection was taken on that ground at the hearing. I fear that the course of the litigation would have been no different if it had been.

72. To an extent it is understandable that the proceedings were brought, when the defendant, having made some repayments, brusquely told the plaintiff that she would receive no more, in the context of a family squabble that was really no fault of hers. The defence that the $40,000 was a gift was never really abandoned, and on that issue the defendant was bound to fail, on the basis of his wife's evidence, if not of his own. My initial inclination is to make no order for the costs of the action, but as counsel has not been heard on that issue I reserve the question of costs for argument.