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Ash v Ash

Ash v Ash

Case [2016] VSC 577 27 September 2016

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S CI 2016 01190

GRAHAM BARRY ASH (who sues by his administrator Suzanne Lyttleton)	Plaintiff
- and -
VANESSA MARIA ASH & ORS (in accordance with the schedule hereto)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2016
DATE OF JUDGMENT:	27 September 2016
CASE MAY BE CITED AS:	Ash v Ash
MEDIUM NEUTRAL CITATION:	[2016] VSC 577

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FIDUCIARY DUTIES — Where plaintiff alleges breach of fiduciary duties against defendants — Barnes v Addy (1874) LR 9 Ch App 244

PRACTICE AND PROCEDURE — Where plaintiff seeks summary judgment — Whether defendants have no real prospect of success — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 — Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 – Civil Procedure Act 2010, s 63(1)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J L Smith	Bardoel & Associates
For the Defendants	Mr P W Lithgow	Neill Ogge Lawyers

SCHEDULE

GRAHAM BARRY ASH (who sues by his administration Suzanne Lyttleton)	Plaintiff
- and -
VANESSA MARIA ASH	First defendant
- and -
BRADLEY GRIMM	Second defendant
- and -
G. B. ASH & CO PTY LTD (sued as trustee of the Eighth Gombak Nominees Pty Ltd Superannuation Fund and G. B. Ash Family Trust)	Third defendant

HER HONOUR:

Introduction

The plaintiff, by his administrator, seeks relief arising from alleged breaches of fiduciary duty by his daughter (‘the first defendant’) in her capacity as his attorney, and against his son-in-law and the first defendant’s husband (‘the second defendant’) and the third defendant (the corporate trustee of a family trust and superannuation fund established by the plaintiff). The first defendant was appointed the plaintiff’s attorney under an enduring power of attorney (financial) dated on or about 1 December 2012 (‘the power of attorney’).

By amended statement of claim filed 30 June 2016, the plaintiff, by his administrator, seeks relief arising from alleged breaches of fiduciary duty by the first defendant in her capacity as his attorney, and against the second defendant and the third defendant based on the principles espoused in Barnes v Addy.[1] The plaintiff claims that the conduct of the first defendant pleaded gave rise to breaches by her of her duties to avoid conflict and not to profit from her position.
[1](1874) LR 9 Ch App 244 (‘Barnes v Addy’).

On 30 May 2016, the first and second defendants filed a defence to the plaintiff’s statement of claim dated 1 April 2016.[2] Counsel for the defendants informed the Court that it was unlikely that the first and second defendants would file a further amended defence in response to the plaintiff’s amended statement of claim.
[2]First and second defendants, ‘Defence of the defendants to the plaintiff’s statement of claim’, 1 April 2016 (‘the first and second defendants’ defence’).

The third defendant filed a defence to the plaintiff’s amended…

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 Ash v Ash

Details

AGLC: Ash v Ash [2016] VSC 577
Case: [2016] VSC 577
Decision Date: 27 September 2016

CaseChat Overview and Summary

The case of Ash v Ash involved a dispute between the plaintiff and two defendants, who were related by family ties. The plaintiff alleged that the defendants had breached their fiduciary duties owed to her, and sought summary judgment for the relief claimed. The defendants argued that the plaintiff’s claims were speculative and did not have a real prospect of success. The matter was heard in the Supreme Court of Victoria. The court had to decide whether the plaintiff had established a prima facie case that the defendants had breached their fiduciary duties and whether the defendants had any real prospect of successfully defending the plaintiff’s claims.

The legal issues before the court were whether the plaintiff had made out a prima facie case that the defendants had breached their fiduciary duties, and whether the defendants had a real prospect of successfully defending the claims. The court had to consider the applicable principles of law and evidence in determining whether the plaintiff’s claims were speculative or not. In particular, the court had to consider the relevant provisions of the Civil Procedure Act 2010 and the applicable case law.

The court held that the plaintiff had made out a prima facie case that the defendants had breached their fiduciary duties. The court found that the defendants had a conflict of interest and had acted in a way that was not in the best interests of the plaintiff. The court also held that the defendants did not have a real prospect of successfully defending the claims. The court found that the defendants’ arguments were speculative and did not have any merit. The court therefore granted the plaintiff’s application for summary judgment. The court ordered that the defendants pay the plaintiff’s costs of the application.

Orders