Russel Down twisted and turned in multiple failed attempts to avoid repaying the balance well overdue on a $60,000 loan received from his sister fifteen years ago.
The District Court dismissed his claim that the loan was made not to him personally, but to his Auckland used car dealership, wound up insolvent back in 2013.
He was ordered to honour a 2022 family agreement with payment from his share of their late father’s estate; another agreement he denied existed.
Evidence was given of Mr Russel borrowing $60,000 from his sister Christine Hill and her husband back in 2009, to purchase stock for his car dealership on Wairau Road in Auckland’s North Shore.
The loan was unsecured. No interest was agreed.
Partial repayments were made in dribs and drabs over the next four years, leaving $31,500 still unpaid in early 2013, several months before his car yard folded.
Arrangements were firmed up in early 2022 when Mr Down signed an acknowledgement that money was still owed, agreeing to assign to his sister the inheritance he expected from their late father’s estate; this to be in full and final payment.
It was only later in court that he admitted ever signing this agreement.
The court was told their father died in 2005 with each of his children to receive a one-eighth share of the family home in Levin, with sale postponed until his widow chose to live elsewhere.
In late 2023 she shifted out. The house was sold, with Mr Down in line to receive a $68,000 inheritance.
The house sold for a far greater sum than anyone anticipated at time of the 2022 family arrangement where Mr Down agreed to hand over all his expected inheritance in repayment of the $31,500 unpaid debt.
Sister Christine told the court it was understood when signing that her brother’s potential inheritance could come in at either more or less than what was owed; each side took the risk.
If it was less, she was going to take the loss, Christine said.
Later, Christine decided out of fairness to her brother that she would not claim his full $68,000 inheritance, instead taking $40,500: the unpaid debt still owed of $31,500 plus $9000 as interest.
Mr Down agreed to this compromise; making a ten dollar test payment into her nominated bank account, ostensibly a precursor to payment of the agreed $40,500.
The court was told Mr Down then kept his entire inheritance, refusing to pay his sister anything.
Judge Rowe ordered payment of the agreed $40,500; on equitable grounds of promissory estoppel.
Terms of the compromise were agreed.
Mr Down’s oral agreement was further evidenced by his conduct in making the ten dollar test payment.
Sister Christine took him at his word, deciding in response not take any action freezing payment he might otherwise receive from their later father’s estate.
This response was to her detriment; now unable to freeze Mr Down’s share as he had already received payment.
Ordered to pay the agreed $40,500, Mr Down cannot now go back on his word, Judge Rowe said.
Hill v. Down – District Court (24.08.26)
26.243