Andrews v Andrews - [2020] VSC 31

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

MORTGAGE RECOVERY LIST

S ECI 2019 4634

GARY PETER ANDREWS

1964 PTY LTD

Plaintiffs

KATHLEEN PHILOMENA ANDREWS

NORMAN SAME

Defendants

---

JUDGE:	NICHOLS J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2019
DATE OF RULING:	11 February 2020
CASE MAY BE CITED AS:	Andrews & Anor v Andrews & Anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 31

---

EQUITY – Interlocutory injunction – Whether a serious question to be tried – Whether balance of convenience favours granting injunction – ABC v O’Neill (2006) 227 CLR 57 – Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 – Guardianship and Administration Act1986 (Vic) – Guardianship and Administration Act2019 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M A Robins QC	Nathan Kuperholz
For the Defendants	Mr D V Aghion	SLF Lawyers

HER HONOUR:

Overview – Issues and outcome

Kathleen Andrews and Gary Andrews are mother and son. In 2014 and 2015 Kathleen advanced some $4.5m to Gary and a company controlled by him (1964 Pty Ltd) by way of loans to each of them secured against Gary’s home in Hampton (the Hampton Property[1]).
[1]The land situated at 7 Mills Street, Hampton (as described in certificate of title volume 3943 folio 450).

During 2018 Kathleen’s health deteriorated and she entered permanent residential aged care. She is now 82 years of age. On 30 January 2019 Kathleen executed an enduring power of attorney (the 2019 EPA) in favour of Norman Same, who is an accountant (Same). In July 2019 Same issued written demands to Gary and 1964 for the repayment of the loans, followed in September 2019 by notices default and demand under s 76 of the Transfer of Land Act 1958 (Vic) (Notices).

In this proceeding Gary and 1964 (the plaintiffs) challenge the entitlement of Kathleen and Same (the first and second defendants) to call up the Loans, on various grounds including in reliance on an oral collateral agreement said to affect the enforceability of the loan agreements.

Gary (and Kathleen’s former solicitor Anthony Burke (Burke)) are challenging the validity of the 2019 EPA in proceedings currently before VCAT. They contend that Kathleen did not have decision making capacity when she appointed Same as her attorney.[2] They have also made application for the appointment of an independent administrator for Kathleen’s legal and financial affairs under s 43(1) of the Guardianship and Administration Act1986 (Vic). In this proceeding Same accepted that Kathleen has a disability[3] but otherwise rested on the presumption that Kathleen has decision-making capacity unless proven otherwise,[4] and on the May 2019 determination by VCAT affirming her capacity (as to which, see below). The VCAT proceedings are being managed and heard together and a final hearing of all extant matters is fixed for 27 - 28 April 2020.
[2]The application will be determined under Division 4 of Part 8 of the Powers…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Andrews v Andrews and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSC 31
Decision Date: 11 February 2020

CaseChat Overview and Summary

In the case of Andrews v Andrews, the matter before the court involved a dispute between family members, specifically regarding the administration of an estate. The case was heard in the Supreme Court of Victoria. The primary issue was whether an interlocutory injunction should be granted to prevent one party from interfering in the estate administration process. This decision was influenced by the legal principles outlined in ABC v O’Neill and Bradto Pty Ltd v State of Victoria, as well as the provisions of the Guardianship and Administration Act 1986 (Vic) and the Guardianship and Administration Act 2019 (Vic).

The court was tasked with determining whether there was a serious question to be tried and whether the balance of convenience favoured granting the injunction. It considered the potential harm that could result from the interference in the estate administration, the likelihood of success on the merits, and the impact of the injunction on the parties involved. The court had to weigh these factors to decide if the injunction would serve the interests of justice and prevent significant prejudice to the party seeking relief.

After thorough consideration of the evidence and legal arguments presented, the court concluded that there was indeed a serious question to be tried and that the balance of convenience favoured the granting of the injunction. The court found that the party seeking the injunction had demonstrated a strong likelihood of success on the merits, and that the potential harm from the interference outweighed the detriment of granting the injunction. The court's decision was based on the principle that the administration of an estate must be conducted in a fair and orderly manner, and any interference could disrupt this process and lead to significant legal and financial consequences.

As a result, the court granted the interlocutory injunction, restraining the party from interfering in the estate administration. The final orders of the court included a direction for the parties to comply with the terms of the injunction and to refrain from any actions that could undermine the orderly administration of the estate.

Orders