Peter and Florence Sherwin have won a court battle to have their ex son-in-law repay more than $1 million given in four instalments between 1999 and 2002. Plus interest. 26 year old Craig Commens and the Sherwin’s 19 year old daughter Maria (nicknamed Rusty) left Walhallow station together in 1986 when Dalby-born Craig worked for Sherwin as a mustering pilot. They were married a year later and half a dozen years on, the first of four children were born.
According to newspaper reports (The Australian and NT News), Peter Sherwin claims that he and his wife Florence wouldn’t have gifted the money to Craig and Maria because their feelings were so hurt when Craig Commens and their daughter left the family cattle station without making an announcement first (also given as the reason why the Sherwins refused to attend their daughter’s wedding in Adelaide, although mailed an invitation). Tellingly, Peter Sherwin told the court he was equally upset about his daughter leaving unannounced, and them taking the station plane without his knowledge. And while it was described in court as ‘stealing’ the station plane; it was argued by Craig Commens that a) Maria, as a Sherwin family member employed by the Sherwin Pastoral Company, had the authority to authorise use of the plane and b) the plane was returned (not kept – or damaged, hidden or sold on; so not actually ‘stolen’ as most people understand the word to mean.)
The blindingly obvious question is – why on earth would anyone loan $1.12 million, without signed loan agreement/s, other than a vague mention of a signed document for $500,000 (which doesn’t sound like it was independently witnessed, or had repayment arrangements or interest rates spelt out). Is Peter Sherwin seriously suggesting that although he started with nothing and built up a multi-million dollar business and didn’t trust his son-in-law because he left with his daughter and took the station plane without his permission; he ‘loaned’ this bloke more than $1 million, without signed and independently witnessed paperwork for the full amount? And no terms and conditions or repayment schedule spelt out in writing?
And it raises the question – if someone gives you something; and one party later claims it was a loan – then who has the primary responsibility of proving it was always meant to be a loan rather than a straightforward gift? Surely this responsibility of proof is logically on the giver, not the receiver? Surely it is up to the person who is handing out the money to prove it was clearly understood by all parties to be a repayable loan, from the outset (via signed and independently witnessed paperwork), it is not up to the recipient to prove it was a gift? Surely reasonable people would presume that if large amounts of money are loaned (anything above a few tens of thousands, at least), then standard paperwork is arranged – not just verbal agreements (which become an impossible-to-really-verify case of one person’s word against another’s, if it all ends in tears).
The judges decision here should have all daughter and son-in-laws quaking in their boots. I can just see it, Bill divorces Barbara and Bill’s parents ask Barbara for all the Christmas & birthday gifts given to her over the years, money towards a jointly owned car or house or children’s education; because they were just loans, money to be had while the marriage lasted, and to be repaid the instant it was not! Plus interest, at a rate determined by a court after the marriage breaks up. The $1.12 million was apparently given to Craig and Maria Commens between 1999 and 2002; yet it was only when they were separated (they’ve since divorced, in late 2008) that the Sherwins pursued repayment. They are also seeking interest, which the judge has ordered to be $180,104. Curious, since there were evidently no signed loan agreements stipulating that interest was payable – dates or amounts. Craig and Maria Commens were joint business partners. Surely, if the amounts involved were loans not gifts, or intended to stay only in their daughter’s hands, they should have ensured it was all kept in their daughter’s name, or a trust account for their children, if that was the Sherwins intention?
The Sherwins claimed the money was ‘loaned’ on the understanding that it would be repaid when the farm/s became profitable enough, or when land was sold. Why would Craig Commens sell the land, if he had ever been told the entire sale proceeds would then have to be repaid? Surely he would have retained ownership of the land – leasing it out if necessary – until those who gave the money were no longer around, thus ensuring no repayment was necessary? The fact that Craig Commens sold some of the land seems to back up his claim that there was never any mention of an expectation to repay the money received.
According to the NT news two of the four Sherwin siblings were given money for being ‘loyal’ and for ‘hard work’ (Sharon $3 million and John $5 million) while the two other siblings ‘and their families’ were ‘loaned’ money.
Lessons to be learned here? Thoroughly check out the prospective in-laws prior to marriage, if you want any prospect of a court-case free one – and if you accept money, don’t kid yourself that you aren’t risking selling your soul or that it will be reeled back in when it suits the giver. (The old adage about there being no such thing as a free lunch, is true.)
Just one of the stations owned by Peter Sherwin, Alroy (NT) sold for more than $70 million in March 2008. So the $1 million is being chased for reasons other than financial necessity. For the judge to state that Craig Commens has lied to the court out of spite and ‘bitterness towards his in-laws’, with no mention of the motivation of his parents-in-law, is a laugh. Surely the judge couldn’t have found fault with just one party in this case? Is it simply abysmal court reporting and journalism? Perhaps both. Certainly it seems odd that journalist Paul Toohey states ‘Commens repeatedly attempted to attack the elderly Sherwins on small points that had nothing to do with the law but, to his mind, showed them up as poor in-laws’; yet the same criticism wasn’t levelled at the Sherwins for attempting to show Craig Commens up as a bad son-in-law – such as Peter Sherwin describing Commens as ‘running away like a mongrel dog’ and Florence Sherwin accusing Craig as being an alcoholic, yet her daughter was only an alcoholic because ‘Commens was her supplier’ and ‘when I saw my daughter I could not believe any man would leave her in that condition’. Her daughter is now forty and has presumably been able to take responsibility for herself and her own actions, without her parent’s permission, for more than half her life – right back to when she chose to leave home as a 19 year old (legally old enough to vote, drive, drink, own property, be married and have children). Her daughter did not have to attend the court, allegedly due to psychiatric/psychological problems – evidence provided by Sherwin’s expensive legal team; yet Maria Commens is now deemed fit enough to share custody of the children, only months later.
Craig Commens had no money for legal representation because his assets had been frozen pending the divorce; yet he couldn’t qualify for legal aid due to the assets in his name. Peter Sherwin is able to afford whatever quality legal representation he wishes to have – which in this case was two lawyers and a Q.C. The excuse for the delay of legal proceedings was that they were worried legal proceedings would damage their daughter’s marital relationship, so they waited until it had irretrievably broken down! (Because Maria didn’t have to appear in court, we are left wondering what she would have said about it all.)
Mr Maurice, Q.C., clearly ran rings around proceedings standing on his ear, it’s probably the easiest money he’s ever earned, with a judge happily eating up all the ‘evidence’ expertly presented. His submission that Peter Sherwin’s insistence on seeing some financial details of Craig and Maria Commens business was evidence that the money given was a loan not a gift; accepted by the judge, is ridiculous. As a parent, I happily give our children money when I am satisfied it is being judiciously spent or saved, but the supply dries up instantly when I believe the hard-earned money I am handing over is being squandered. If I’m not sure which it is, then I ask for evidence. We’re talking pocket money here but the principle surely applies all the more to larger amounts. For Mr Maurice Q.C. to suggest that a parent’s request for evidence of sensible financial management prior to handing over a substantial sum of money is evidence that they are making a loan rather than a gift is either disingenuous or he is an unusually generous parent. Or he simply has so much cash he can afford to squander it willy nilly and can’t remember ever living otherwise. Refer to the Supreme Court of the Northern Territory judgement of J Southwood (30 October 2008). For goodness sake, people don’t even donate to a charity unless they believe the charity is going to use the money wisely. One sniff of money wastage and public donations dry up instantly.
For a judge to find that an unrepresented person completely inexperienced in legal matters and court appearances was a wholly unreliable witness whereas millionaires with a Q.C. and legal team and specialist witnesses (such as a doctor testifying that the daughter of the plaintiff, one of the defendants, was unfit to attend court) presented as being ‘logical and internally consistent’, is like some sort of bad joke, and makes an ass of our legal system. Does this judge really believe the public is so dumb that we don’t know that a very expensive legal team would ensure their clients presented their story as consistently and advantageously as possible? What to mention and what must not ever be mentioned? Isn’t this the sort of advice that the high legal fees are paying for? And isn’t it obvious that someone completely unused to the legal system and court appearances would inevitably make errors, especially when questioned by people paid a lot of money to trip them up? A daunting situation, if ever there was one! This sort of pronouncement from a judge should make the blood run cold of every person interested in the Australian justice system which purports to ensure that everyone receives an equal hearing. An equal hearing is surely impossible with such an inequality of representation.
And there has not been the slightest hint of an explanation as to why the court hearing was in Darwin, when everyone concerned – and the land involved – is all in Queensland.
It was very odd that no attention was drawn to the fact that the two largest amounts – $500,000 each – were paid just prior to Christmas in 1999 and 2001 (23 December and 19 December, respectively). Anyone glancing at this fact alone would instantly think ‘generous Christmas gift from millionaire parents/in-laws’. It’s also very odd that someone would repeatedly ‘loan’ money to someone even though they professed to being convinced, for quite a while, that the money was being very badly managed. Logically they might be inclined to give a gift to help someone out of a hole, to keep the wolf from the door, but surely they wouldn’t continue to ‘loan’ large amounts of money, honestly expecting it would be repaid? Was Peter Sherwin expecting a miracle in which Craig Commens was suddenly going to win lotto or sprout amazing financial management abilities, at the ripe old age of about 40, thus not only repaying all the money he and Rusty had been given, but interest as well?
It was reported in the Australian newspaper that Peter Sherwin’s daughter Maria was suffering from some sort of psychiatric problem (Depression? In remission? Court too stressful? I suspect court appearances are too stressful for everyone involved; and if you believe the figures, nearly every fourth man and his dog suffers from depression – so that would be a lot of non-court appearances) and is an alcoholic. Her parents funded her divorce proceedings and expenses (just as they had apparently agreed to fund cosmetic surgery due to excessive weight gain, as also reported in the media). There’s next to no mention of Maria’s siblings and their role in the Sherwin family business. There’s no mention of Peter Sherwin’s past – best described as colourful. Originally a drover, he’s climbed the land ownership ladder with an interesting track record.
Craig Commens may not be a good businessman and he may have lost a lot of money on the land. He may or may not have been hoping to end up owning a good sized station of his own. He may or may not have done the majority of the raising of their four children, especially when they were young and their mother was unable to care for them; rather than spending enough time on the farm to give it a chance of being profitable. (Running a farm and raising 4 young children are both full time, long-hour jobs – completely impossible to do both properly, single-handedly.) But he’s not the first bloke to have these dreams and difficulties. But Peter Sherwin is unique – and notoriously secretive.
The media reports and court proceedings just leave the public with a truckload of unanswered questions – and top of the list is – why weren’t all these questions asked, and answered, in court?
Craig Commens is apparently legally unable to appeal the court’s decision. The Sherwins have recently lodged another claim against the father of their grandchildren – for $1.5 million. And Craig Commens assets are still frozen. Since they divorced late last year, his ex-wife has joint custody of the children, so presumably she will now be deemed fit enough to appear in the upcoming court proceedings.
One has to feel a great deal of sympathy for the grandchildren involved. Fortunately they live in a small, supportive rural community.
It’s about time our major Australian newspapers got off their backsides and started raising the quality and quantity of reporting of rural-related news. This is a top example of idle journalism. There’s a real saga to be told here, worthy of a blockbuster book or film, with serious legal and justice issues involved, that don’t just apply to the rural sector. Yet it is being skimmed over to the point of being virtually ignored. Search the internet and you’ll only find a handful of versions of the story, all of which are basically identical – complete with identical errors – and none of them go anywhere close to explaining the whole story or giving an accurate impression of the events and personalities involved.
And where’s a lawyer prepared to step in on Craig Commen’s behalf? Surely he’d have a good chance of defending the case against the Sherwin’s second claim for money?
Tags: Pastoral companies