Berg v Wills [2026] QCA 40

[2026] QCA 40 COURT OF APPEAL MULLINS P BRADLEY JA FREEBURN J Appeal No 5129 of 2025 DC No 1690 of 2024 DAVID BERG First Appellant TESSA MAREE WILLS Second Appellant v JO-ANNE GAY WILLS Respondent BRISBANE WEDNESDAY, 11 MARCH 2026 JUDGMENT [1] BRADLEY JA: On 9 October 2025, after a trial in the District Court, the respondent obtained judgment for $472,616.63 (including interest)1 against the first appellant and $493,055.21 (including interest)2 against the second appellant. The appellants were ordered to pay the respondent’s costs of the District Court proceeding. The learned trial judge gave ex tempore reasons for the judgment. [2] The appellants have appealed against the judgment. They are a couple. At all relevant times, they lived at a property owned by the first appellant (the property). The respondent is the aunt of the second appellant. [3] The key facts are not in dispute: 1 Principal of $346,856.41 and interest from 28 October 2019 to judgment of $125,760.17. 2 Principal of $361,856.41 and interest from 28 October 2019 to judgment of $131,198.75. -- 1 of 5 -- 2 (a) On 26 July 2019, the respondent paid $250,000 into the appellants’ bank accounts. Of this total, the respondent paid $200,000 into an account that reduced from $270,000 to $70,000, the amount that the first appellant owed to a bank that held a registered first mortgagee over property. The respondent paid the $50,000 balance into another account of the second appellant. (b) On 30 July 2019, the first appellant and the respondent sent an email to the first appellant’s solicitor. The email referred to a telephone conversation with the solicitor earlier that day. It instructed the solicitor to “draft a deed of trust as you explained” with the “details” being the name and date of birth of each of the first appellant and the respondent, and the address of the property. By the email, the first appellant and the respondent also asked the solicitor to “confirm that there is no other deed of trust or encumbrance on this property.” (c) On 16 August 2019, the solicitor obtained a current title search of the property. It revealed the first appellant was the registered owner of an estate in fee simple; a bank was a registered first mortgagee; and the first appellant’s parents were the registered second mortgagees. (d) Between 20 and 30 August 2019, the respondent paid $20,000 to the first appellant’s bank account. (e) In September 2019, the respondent moved to live at the property. (f) Between 4 September and 20 November 2019, the respondent paid $41,250 to the first appellant’s bank account. (g) On 4 October 2019, the first appellant repaid $1,000 to the respondent; and on 30 October 2019, the first appellant repaid $250 to the respondent. (h) Between 9 September and 29 October 2019, the respondent paid $39,856.46 to third parties at the request of the appellants, including $13,810 to Superior Sheds, $12,273 to Steve McLean (Sun Gods Solar), and $10,000 to Steve Vella. (i) In November 2019, the respondent left the property. (j) The appellants have never repaid the balance of the amounts the respondent paid to the appellants or to others at their request. That total balance is $361,856.46.3 3 It was common ground that $15,000 of this total was a loan from the respondent to the second appellant. This is reflected in the different sum in the judgment the respondent obtained against each appellant. -- 2 of 5 -- 3 [4] The appellants’ case at the trial was that: (a) In about August of 2019, the second appellant and the respondent agreed that the respondent would loan money to the second appellant “with no sum limit or terms discussed.” (b) At some time, all the parties agreed to vary the arrangement about the monies paid by the respondent to the appellants (or at their request and direction) so that it was a loan. (c) On or around 27 June 2021, the second appellant and the respondent arranged that no repayment of the loan would be required for three years and that the loan would be due on or around 1 July 2024. [5] By 5 November 2021, the respondent was referring to “the $362K I loaned you”; and the second appellant was telling the respondent, “We have already told you that you are getting your money back. We are selling our property to let you get your money.” [6] There are two grounds of appeal. Ground 1 – that this is an action on an oral agreement to dispose of an interest in land [7] The appellants contend that the trial judge erred in giving judgment because s 59 of the Property Law Act 1974 (or the relevant section of the Property Law Act 2023) prevents the respondent bringing an action upon the agreement between the appellants and the respondent about the money the respondent paid. [8] There are a series of elements to this ground: (a) The appellants contend that the agreement between the appellants and the respondent is an oral agreement to dispose of an interest in land. (b) They also contend that the payment of the money by the respondent and the email sent to the first appellant’s solicitor on 30 July 2019 are not unequivocal acts consistent only with the existence of the agreement. [9] The appellants did not formally defend against the respondent’s claim on the basis of this ground. They were not legally represented in the proceedings below. Their case below and in this Court is that there was no oral agreement to dispose of an interest in land and that the funds advanced by the respondent were a gift. -- 3 of 5 -- 4 [10] Whatever the nature of the oral agreement, when made, shortly afterwards, and before the respondent made further payments, the parties agreed to treat the respondent’s payments as a loan. The respondent did not seek specific performance of or damages for breach of a contract to dispose of an interest in land. She sought damages for breach of the loan agreement (that is the “Agreement as varied”). This was the reason the trial judge gave judgment: “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 repayment of the money.” [11] The loan agreement does not raise the s 59 issues. Nor does the alternative claim for money had and received. In the circumstances, Ground 1 would not result in the judgment being set aside. Ground 2 – the alternative finding of money had and received [12] Ground 2 concerns the trial judge’s alternative finding that the money the respondent advanced is owing to her as money had and received by the appellants. [13] The appellants contend that the respondent failed to plead the “precise basis” on which they contend the appellants were unjustly enriched. This pleading criticism does not sit very well, given the appellants’ departure in the appeal and below from their defence. [14] In any case, the basis of the respondent’s common law claim is pleaded. The funds were advanced. They have not been repaid. The appellants have retained the benefit of the payments. The respondent remains out of pocket. No other fact would be required for the appellants to comprehend the respondent’s alternative claim. [15] The effect of the payments was to reduce the first appellant’s liability to the bank secured over the property, and to provide funds for the use of the appellants and to pay for expenses incurred by the appellants, including improvements to the property. The appellants have not repaid most of the funds. As the trial judge accepted, the respondent was entitled to recover the money she advanced as money had and received in the alternative to the loan claim. [16] So, ground 2 also fails. -- 4 of 5 -- 5 [17] The appellants have no remaining defence to the respondent’s claim. In their defence below they allege that the payments were a gift. That contention was rejected by the trial judge and is not pursued or challenged in this appeal. [18] In the circumstances the appeal should be dismissed with costs. [19] MULLINS P: I agree. [20] FREEBURN J: I agree also. [21] MULLINS P: The order of the Court is: Appeal dismissed with costs. -- 5 of 5 --