Archer v Archer

[2009] NSWSC 1321

CITATION:	Archer v Archer & Ors [2009] NSWSC 1321 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	25 November 2009
JUDGMENT DATE :	25 November 2009
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
EX TEMPORE JUDGMENT DATE:	25 November 2009
DECISION:	Application to discharge injunction dismissed. Defendant to pay plaintiff's cost of the application.
CATCHWORDS:	EQUITY - equitable remedies - injunctions - plaintiff claims beneficial interest in bank accounts - application to discharge injunction over accounts - distinction between freezing order and injunction - lack of evidence to justify discharging injunction
LEGISLATION CITED:	Guardianship Act 1987 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Jackson v Sterling Industries Ltd (1987) 162 CLR 612
PARTIES:	Plaintiff: Raymond Bruce Archer By His Tutor Mark Robert Jumikis First Defendant: Gary Archer Second Defendant: Commonwealth Bank of Australia Third Defendant: National Australia Bank Limited
FILE NUMBER(S):	SC 4296/08
COUNSEL:	Plaintiff: Mr L Ellison SC First Defendant: Mr Gary Archer (Self-Represented) Second Defendant: No appearance Third Defendant: No appearance
SOLICITORS:	Plaintiff: Bartier Perry First Defendant: Mr Gary Archer (Self-Represented) Second Defendant: No appearance Third Defendant: No appearance

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY

SLATTERY J

WEDNESDAY 25 NOVEMBER 2009

4296/08 RAYMOND BRUCE ARCHER BY HIS TUTOR MARK ROBERT JUMIKIS v GARY ARCHER; COMMONWEALTH BANK OF AUSTRALIA AND NATIONAL AUSTRALIA BANK LIMITED

JUDGMENT

1 HIS HONOUR: Raymond Bruce Archer died on 26 August 2008. Gary Archer is his son. Just before Raymond’s death Gary was closely caring for him. When under Gary’s immediate care Raymond executed a will in Gary’s favour and gave Gary his enduring power of attorney. During this final period of Raymond’s life Gary also transferred some of Raymond’s funds into Gary’s bank accounts.

2 Prior to Raymond’s death on 8 August 2008 the Guardianship Tribunal made a financial management order that Raymond’s estate be managed under the Guardianship Act 1987 and that Mark Robert Jumikis be appointed Raymond’s interim financial manager. Mr Jumikis, was appointed to represent Raymond in these proceedings. After Raymond’s death the plaintiff continued to represent Raymond’s estate as plaintiff in the proceedings.

3 The plaintiff alleges that the funds transfers took place whilst Raymond exclusively depended on Gary. The plaintiff also alleges by reason of Raymond’s highly debilitated medical condition, his physical isolation by Gary and his distance from hospital care and other circumstances set out in the statement of claim that the funds transfers are now liable to be set aside. Gary contests the plaintiff’s allegations. In related Probate proceedings in this Court Mr Jumikis as plaintiff also takes issue with Gary that when Raymond executed the will in Gary’s favour that Raymond was of full capacity and that he understood that he was disposing of the assets of his estate in the manner provided in the will.

4 The plaintiff has filed evidence in support of his allegations. Gary has filed evidence in response. Gary vehemently denies the truth of all the plaintiff’s allegations of improper influence over Raymond. The truth or otherwise of these allegations is not for determination today. Before me today are issues arising from orders made by the Court on previous occasions.

5 A short relevant procedural history of the matter is that on 19 August 2008 the Court granted injunctions over various bank accounts of Raymond and Gary. Those injunctions were extended on 23 August 2008. Raymond then died on 26 August 2008. On 28 August 2008 Mr Jumikis commenced to act as the representative of Raymond’s estate.

6 On the basis of evidence adduced before him on 23 September 2009 Rein J made further orders extending the injunctions so as to bring within their restraint all the accounts in Gary’s name into which the proceeds of Raymond’s accounts had been transferred.

7 The recent background is that after a contested application brought by Gary, on 2 November 2009 Palmer J declined to discharge the existing injunctions. On that occasion His Honour adjourned these proceedings and the related probate proceedings to Monday 7 December for mention. This is next Monday week.

8 It is clear from the transcript of what occurred before Palmer J that his Honour had in mind - and Mr Ellison confirms this – that on 7 December 2009 a hearing date would be fixed for both matters. It can therefore, be expected that both sets of proceedings will be heard in the early part of the New Year.

9 Gary brought this application urgently by notice of motion in the duty list today. The orders Gary seeks today are the following:

“1 Discharge orders 1 & 2 made on 19 August 2008 28 August 2008 and 23 Sept. 09.

2 The funds Held by the Trustee Guardian Public Trustee & Guardian to be returned to my Account. And all stops removed.

3 Appeal to the Supreme Court or Administrations Decisions Tribunal - Was not made aware of any such hearing or was my father Raymond Bruce Archer.

4 Applie for All Costs.” [sic]

10 In substance Gary seeks a discharge of the orders previously made so that he can, as he says, take himself “out of destitution” and provide enough funds for him either adequately to represent himself in these proceedings or to get legal advice. To the extent that Gary seeks orders that might be construed as an appeal against the making of orders under the Guardianship Act 1987 (NSW), a motion in these proceedings is not a competent vehicle for such an appeal to be launched. I will therefore disregard this part of the motion and deal with the balance.

11 Gary argued his case by specifically identifying three bank accounts that he submitted had been improperly frozen by the orders already made. He said these three accounts contain his funds and are accounts that he has owned and operated for a long time. He says that they were improperly frozen or closed by the two named banks when the freezing orders were served upon the banks. He further says that this action deprived him of moneys, he claims are his. Two of those three accounts are with the National Australia Bank. The other is with the Commonwealth Bank. It would be a serious disadvantage to Mr Archer if the bank account closures were wider than the Court orders justified. I therefore explored the evidence on this issue in the course of argument. In conformity with the Court’s policy of reducing the risk of identity theft, these three accounts are not further identified in this judgment.

12 However, upon closer questioning Mr Archer confirmed that the Commonwealth Bank account is one which he admits has received funds which were originally Raymond’s. It is evident from the material which has been adduced by the bank on this application, through the affidavit of William Holman Andrews of 23 September 2009, annexure J, that the other two accounts were only opened in September this year. The evidence also shows that the funds in those accounts were sourced from accounts the subject of freezing orders.

13 That is the relevant evidence about those particular accounts other than the counter assertion by Gary Archer that the moneys in them were his and had been his for a long time. On that evidence there is no basis for me to commence making directions about an inquiry as to whether there has been an error by the National Australia Bank in closing these accounts.

14 Gary Archer’s other complaints to the Court relate to his lack of funds for defending himself and his apparent destitution. As to Gary Archer’s alleged destitution, even from what he says himself, this seems partly to be caused by his failure to be able to live at home with his wife. This circumstance is not obviously a consequence of the injunction obtained in these proceedings.

15 On the question of releasing funds for legal advice or possibly for living expenses an injunction has been granted here because the plaintiff claims a beneficial interest in the funds in these various bank accounts. This is not purely a freezing order where an exception for reasonable defence legal expenses would be a normal condition of making the order. In this case the plaintiff claims that it is beneficially entitled to all the funds in the enjoined bank accounts in Gary’s name. The existing orders are to preserve the subject matter of the proceedings. Where a plaintiff claims such a beneficial entitlement and has some evidentiary basis for the claim it would not be usual to allow a defendant to access those funds to expend upon the legal costs of defending himself. This is a point of distinction between a freezing order and an injunction. The practice of allowing a freezing order to be varied to permit payment of expenses is inconsistent with holding rights against the assets restrained: Jackson v Sterling Industries Ltd (1987) 162 CLR 612, at 642 per Gaudron J.

16 In those circumstances I will dismiss the application.

17 Mr Ellison seeks costs of the application on behalf of the plaintiff. Gary has not identified any factor that would displace the usual order that costs follow the event. I therefore order the defendant to pay the plaintiff’s costs of this application.

18 I order that the exhibits may be returned.

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01/12/2009 - Incorrect year - Paragraph(s) 6