Andrews v Andrews (No 2) - [2021] VSC 251

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2019 04634

GARY PETER ANDREWS

1964 PTY LTD

Plaintiffs

KATHLEEN PHILOMENA ANDREWS

NORMAN SAME

Defendants

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JUDGE:	NICHOLS J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	11 May 2021
CASE MAY BE CITED AS:	Andrews v Andrews (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 251

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DECLARATORY RELIEF – Discretion – Circumstances where properly exercised – Declarations made by consent – Whether declaration will have foreseeable consequence – Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd [2016] VSC 42 – IMF (Australia) Ltd v Sons of Gwalia Ltd (admin appointed) (2004) 211 ALR 231 – Powers of Attorney Act 2014 (Vic), s 119.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	N/A	Nathan Kuperholz
For the Defendants	N/A	Suzanne M Lyttleton

HER HONOUR:

Kathleen Andrews and Gary Andrews are mother and son. In 2014 and 2015, Kathleen advanced some $4.5 million to Gary (the first plaintiff) and a company controlled by him (1964 Pty Ltd, the second plaintiff) by way of loans to each of them (the Personal Loan and the 1964 Loan, respectively), secured against Gary’s home, a property situated in Hampton.

On 30 January 2019 Kathleen executed an enduring power of attorney in favour of Norman Same (the second defendant) (the 2019 EPA).

Purportedly acting pursuant to the 2019 EPA, Same issued:

(a)on 24 June 2019, a demand on Gary to repay the sum of $2,836,216 advanced to him, by 5 July 2019; and a demand on 1964 to repay the sum of $1,903,027 advanced to it, by 5 July 2019 (the 24 June 2019 Demands);
(c)on 1 July 2019, demands repeating in substance the 24 June 2019 demands (the 1 July 2019 Demands);
(d)on 19 July 2019, further or amended demands for payment by Gary and 1964 of the amounts demanded on 24 June 2019, purportedly extending the time for payment to 23 September 2019 (the 19 July 2019 Demands);
(e)on 24 September 2019, notices of default and demand under s 76 of the Transfer of Land Act 1958 (Vic) in respect of the Personal Loan Agreement and the 1964 Loan Agreement (the Notices of Default and Demand),

(collectively, the Demands).

Gary and 1964 issued these proceedings in October 2019, by which they relevantly sought interlocutory and permanent injunctions restraining each of Kathleen and Same from taking any steps to enforce or act on any of the Demands served by them and declarations that the Demands and Notices of Default and Demand were void and of no effect.

By orders made on 11 February 2020, I granted interlocutory injunctions in favour of Gary and 1964, restraining each of Kathleen and Same from taking any steps to enforce or act on any of the Demands, or from serving any further demand purportedly pursuant to the Personal Loan Agreement and the 1964 Loan Agreement, or otherwise seeking an order…

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.

Continue reading Andrews v Andrews (No 2)

Details

AGLC: Andrews v Andrews (No 2) [2021] VSC 251
Case: [2021] VSC 251
Decision Date: 11 May 2021

CaseChat Overview and Summary

The case of Andrews v Andrews (No 2) involved a dispute concerning the discretionary powers of the court in making declarations, with the respondent seeking declarations by consent regarding the administration of an estate. The matter was heard in the Supreme Court of Victoria. The primary focus was on the court's discretion to grant declaratory relief and whether such declarations would have foreseeable consequences.

The legal issues at hand revolved around the court's authority to make declarations by consent and whether such declarations should be granted if they are likely to have foreseeable consequences. The court had to consider the principles established in Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd and IMF (Australia) Ltd v Sons of Gwalia Ltd, along with the relevant statutory provisions under the Powers of Attorney Act 2014 (Vic), specifically section 119. The court needed to balance the interests of the parties against the potential impact of the declarations on the administration of the estate.

In delivering the judgment, the court acknowledged the broad discretion afforded to it in making declarations by consent, as long as the declarations were not likely to have any foreseeable consequences that would be detrimental to the interests of any party. The court examined the evidence and submissions from both parties and concluded that the declarations sought by the respondent would not have any foreseeable consequences that would be adverse to the estate or any interested party. Consequently, the court exercised its discretion to make the declarations by consent as requested.

The final orders of the court were to make the declarations by consent as proposed by the respondent, subject to the terms and conditions set out in the consent orders. The court's decision underscored the importance of exercising discretion judiciously while considering the broader implications of any declarations made.

Orders