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Barkley v Barkley Brown

Barkley v Barkley Brown

Case [2009] NSWSC 76 24 February 2009

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CITATION: Barkley v Barkley Brown [2009] NSWSC 76

HEARING DATE(S): 15, 16, 17, 18 and 19 December 2008

JUDGMENT DATE :
24 February 2009

JURISDICTION: Equity Division

JUDGMENT OF: Ward J at 1

DECISION: The defendant held liable to account. Declined to order further account. Consequential relief.

CATCHWORDS: EQUITY – equitable remedies – accounts and inquiries – whether defendant should be ordered to account to deceased’s estate for withdrawals made from deceased’s bank account – whether defendant owed fiduciary duties to the deceased – HELD – defendant acted as deceased’s agent, owed a fiduciary duty to keep accounts and should be ordered to account - EQUITY – general principles – undue influence and duress – whether defendant’s account that withdrawn amounts were gifts from deceased to or for the benefit of the defendant and/or to or for the benefit of the first plaintiff should be accepted – whether relationship between defendant and deceased gives rise to presumption of undue influence – whether presumption displaced by evidence – HELD – relationship such as to give rise to presumption of undue influence – presumption not displaced by evidence – account that withdrawn amounts were gifts not accepted.

CATEGORY: Principal judgment

CASES CITED: Allen v Tobias (1958) 98 CLR 367
Asset Risk Management Limited v Hyndes [1999] NSWCA 201
Asset Risk Management Limited v Hyndes (unreported, 2 April 1998)
Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 23
Commonwealth Bank of Australia Limited v Amadio (1993) 151 CLR 447
Doss v Doss (1843) 3 Moo Ind App 175; 18 ER 464
Gray v Haig (1855) 20 Beav 219; 52 ER 587
Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 29
Hospital Products Ltd v United Surgical Corporation (1984) 156 CLR 41
Huguenin v Basely (1807) 14 Ves Jun Supp 372; 34 ER 1138
In re Coomber [1911] 1 Ch 723
Johnson v Buttress (1936) 56 CLR 113
Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548
Lord Chedworth v Edwards (1802) 8 Ves Jun 46; 32 ER 268
Nelson v Nelson (1995) 184 CLR 538
NWR FM t/a North West Radio v Broadcasting Commission of Ireland & Anor [2004] IEHC 109
Pearse v Green (1819) 1 Jac & W 135; 37 ER 327
Peninsular and Oriental Steam Navigation Co v Johnson [1937-1938] 60 CLR 189
Rapid Metal Developments (Australia) Pty Ltd v Rosato [1971] Qd R
Re Sharp (FCA unreported 12 December 1992)
Rhodes v Bate (1866) LR 1 Ch App 252
Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699
Spong v Spong (1914) 18 CLR 544
The Ophelia [1916] 2 AC 206
Thomas v High (1960) 60 SR (NSW) 401
Urane v Whipper [2001] NSWSC 796
Warman International Ltd v Dwyer (1995) 182 CLR 544
Whereat v Duff [1972] 2 NSWLR 147
Winefield v Clarke [2008] NSWSC 82
Yasuda Ltd v Orion Underwriting Limited [1995] QB 174

TEXTS CITED: Sir Anthony Mason, "The Impact of Equitable Doctrine on…

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 Barkley v Barkley Brown

Details

AGLC: Barkley v Barkley Brown [2009] NSWSC 76
Case: [2009] NSWSC 76
Decision Date: 24 February 2009

CaseChat Overview and Summary

The matter before the court was between Barkley, the plaintiff, and Barkley Brown, the defendant. The dispute centred on whether the defendant should be ordered to account to the deceased's estate for withdrawals made from the deceased's bank account and whether the defendant owed fiduciary duties to the deceased. The case was heard in the Supreme Court.

The court was tasked with determining the legal issues surrounding the fiduciary duties of the defendant to the deceased and the nature of the withdrawals from the deceased's bank account. Specifically, the court had to decide whether the defendant owed a fiduciary duty to the deceased, and if so, whether the defendant should be ordered to account for the withdrawals. Additionally, the court needed to assess whether the defendant's claims that the withdrawn amounts were gifts were credible and whether the relationship between the defendant and the deceased gave rise to a presumption of undue influence.

In reaching its decision, the court found that the defendant acted as the deceased's agent and thus owed a fiduciary duty to keep accounts. The court held that the defendant should be ordered to account for the withdrawals made from the deceased's bank account. Furthermore, the court determined that the relationship between the defendant and the deceased was such as to give rise to a presumption of undue influence. The court found that this presumption was not displaced by the evidence, and therefore the defendant's account that the withdrawn amounts were gifts was not accepted.

The final orders of the court were that the defendant, Barkley Brown, should account to the deceased's estate for the withdrawals made from the deceased's bank account. The court did not accept the defendant's claims that the withdrawals were gifts and found that the relationship between the defendant and the deceased gave rise to a presumption of undue influence.

Orders