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VIC Money from Ex Boyfriend - Gift or Personal Loan?

Discussion in 'Debt and Bankruptcy Law Forum' started by Jaded, 21 May 2015.

  1. Jaded

    Jaded Member

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    So when my now ex and I were together, he gifted me a large sum of money to pay off my debt so we could begin our lives together. Anyway things did not work out and I now have a restraining order on him so he has gone to a lawyer to order me to pay it back. He is saying we had an agreement that I would pay it back within a year, this is not true as it was a gift not a personal loan.

    The only evidence he may have is an angry text from me saying that I should take out a loan to pay him back to get him out of my life, but I am not sure if he does have this.

    What are the chances I will have to pay him? I am a uni student and do not have the funds.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Jaded,

    The only way your ex can force the money out of you is to sue you. In order to sue you he has to be able to prove on the balance of probabilities that there was an agreement in place between you that you would pay it back. He can rely on any evidence to support this. He will also need to commence court proceedings which will cost money (filing fees to court and also lawyers fees).

    It doesn't sound as if there would be any cogent basis for your ex to successfully sue you for the money. Also, if he is seeing a lawyer - the lawyer will most likely advise him, that if the amount of the gift/loan isn't very large, then the cost of instituting proceedings could exceed the amount he is trying to recover. Making it pointless. However, the lawyer may nonetheless send you demand letters etc to try to get money out of you without commencing court proceedings.

    I would simply maintain your assertion that it was a gift and that he simply can't produce evidence to prove it was a loan, because it wasn't. If you do receive something from his lawyer - request the evidence that they will rely upon to prove it at trial and see what they come up with and go from there. Happy to field your further questions.
     
  3. Jaded

    Jaded Member

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    Hi Sophea,

    Thank you so much for taking the time to respond!
    The amount was for $12,000, so could possibly be worth it for him to go to court.

    When asking to see the "agreement" do I need a lawyer to contact his solicitors or do I do that myself? I feel as though it would be better coming from a lawyer, however cash flow is an issue. I can't use the local Legal Aid, as there is a conflict of interest from a previous issue.

    Thanks again,
    Jaded.
     
  4. Sophea

    Sophea Well-Known Member

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    Hi Jaded,

    Yes you can definitely deal with his solicitors directly without representation of your own, and you are not necessarily at a disadvantage by doing that. Just don't be pro-active, obviously let your ex push it if he wants to pursue it, even though I'm sure you want it over and done with. If you can demonstrate that you know your rights and stand your ground you can still be successful. If you had a lawyer, your ex's solicitor would try to pressure them into negotiating, but its hard to negotiate with a stubborn self represented litigant, often they can just write it off. I would also try to seek a consultation with legal aid if possible, or with a community legal centre. They may be able to provide you with more specific advice having regard to all the circumstances. Obviously this forum is not a place where you can get proper personalised legal advice. But we are always happy to answer general legal questions.

    Btw, how long ago was the loan made? There is a 6 year statutory limitation on the recovery of debts, meaning beyond that time, you cannot sue for them.
     
  5. Tim W

    Tim W Lawyer

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    1. It will be a matter for him to prove that a contract existed between you and he
      about the money and any if, how, and when, it would ever be paid back.*

    2. I agree with @Sophea in that you certainly can deal with the other person's lawyer yourself**
      But that doesn't make it a good idea.

    3. Legal Aid probably doesn't have a conflict of interest.
      But they might not be able to assist you with a civil dispute of this type either.
      It may fall outside the guidelines.


      -----------------------------------------------------------------------------------
    * Lawyers - I am thinking about Balfour and Ermogenous

    ** I should disclose here that I have said, in other posts, that
    "where there is one lawyer, there almost always has to be another"
     

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