Boland v MGF Holdings Pty Ltd

[2022] NSWSC 451

Supreme Court

New South Wales

Medium Neutral Citation:

Boland v MGF Holdings Pty Ltd [2022] NSWSC 451

Hearing dates:

11 April 2022

Date of orders:

11 April 2022

Decision date:

11 April 2022

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

(1) District Court Proceedings 2021/00314351 be transferred from the District Court to the Supreme Court pursuant to s 140(1) of the Civil Procedure Act 2005.

(2)   The proceedings so transferred into this Court be transferred to the Equity Division.

(3)   Mr Boland’s costs in these proceedings be Mr Boland’s costs in the cause in the proceeding that have been transferred to this Court.

Catchwords:

PRACTICE AND PROCEDURE – transfer from District Court – no question of principle

Legislation Cited:

CivilProcedureAct 2005

Category:

Principal judgment

Parties:

Mark Boland (Plaintiff)
MGF Holdings Pty Limited (Defendant)

Representation:

Counsel:
L Nurpuri (Plaintiff)
E Cohen (Defendant)

Solicitors:
Hammond Nguyen Turnbull (Plaintiff)
Litigation Specialists (Defendant)

File Number(s):

2022/37085

EX TEMPORE Judgment

1. This is the hearing of a summons, seeking the transfer of proceedings in the District Court into this Court, pursuant of s 140(1) of the Civil Procedure Act 2005. As the proceedings do not involve a claim for damages arising for personal injury or death, the limitations on transfer specified in s 140(3) do not apply.

2. The plaintiff in this Court, Mr Mark Boland, is the executor of the estate of the late Mr Peter Francis Monaghan. Mr Monaghan died on 8 December 2020. Probate of his will was granted to Mr Boland on 26 May 2021.

3. As at the date of his death, Mr Monaghan was the director of two companies: one being the defendant to this matter and the plaintiff in the District Court, MGF Holdings Pty Ltd (“MGF Holdings”); and the other being Monaghan and Gleeson Funeral Directors Pty Ltd (“Funeral Directors”). Mr Monaghan held one‑third of the shares in each company. Mr Scott Gleeson held the remaining two‑thirds of the shares in each company. Mr Gleeson is the surviving director of both companies.

4. The District Court proceedings were commenced by a statement of claim filed 5 November 2021 by MGF Holdings, against Mr Boland, in his capacity as the executor of Mr Monaghan’s estate. They seek recovery of the amount of $511,939.82. The statement of claim records that Mr Monaghan was the financial officer of MGF Holdings, for the period from 4 May 2004 until 8 December 2020. They further plead that MGF Holdings was the trustee of the Monaghan and Gleeson trust, and allege that between May 2004 and 8 December 2020, Mr Monaghan borrowed money from the trust. The particulars of the amount owing refer to a balance sheet entry prepared for MGF Holdings as at 30 June 2020 by accountants which is said to record that sum as owing.

5. The sum of $511,939.82 is clearly a substantial amount. It is not too far below the maximum amount that the District Court can consider in such cases. It is not an uncommon amount for proceedings in this Court, to seek recovery of a sum of around that level.

6. There are two other sets of proceedings that have been commenced in the Equity Division of this Court. The application for transfer rests upon the relationship said to exist between the District Court proceedings and those two proceedings.

7. By a statement of claim filed 20 October 2021, Mr Gleeson commenced proceedings in the Equity Division against Mr Boland, also in his capacity as the executor of the deceased estate. Mr Gleeson seeks declarations that Mr Boland holds certain real estate on trust for Mr Gleeson, as well as the shares in the two companies, that is, MGF Holdings and Funeral Directors. It also seeks recovery of certain sums said to represent liabilities incurred by the late Mr Monaghan on credit cards in the name of Mr Gleeson.

8. The pleading alleges that Mr Gleeson and Mr Monaghan operated a funeral business known as Monaghan and Gleeson Funerals through two companies, being MGF Holdings and Funeral Directors. The pleading further alleges that, from around 2005 to around 2006, there were various promises exchanged between the late Mr Monaghan and Mr Gleeson, whereby in exchange for Mr Gleeson incurring obligations as a borrower of funds, and as a party to a building contract, there was the redevelopment of certain property that was owned by Mr Monaghan.

9. The pleading alleges that in performance of that agreement, Mr Monaghan made a will in 2006 leaving that property, and his shares in the two companies, to Mr Gleeson; that he later breached that agreement by altering his will in September 2019 and not making provision to that effect. Further, the pleadings in relation to the amount said to be owing for the wrongful use of the credit card also appear to be related to the conduct of the funeral directing business.

10. The other statement of claim was commenced by Funeral Directors in November 2021 against Mr Boland, again in his capacity as an executor of Mr Monaghan’s estate. It alleges that between 27 January 2000 until 8 December 2020, Mr Monaghan acted in breach of his duty to act in the best interests of Funeral Directors by making payments from his bank account for his own purposes, and not the purposes of the company. The statement of claim seeks an order for the taking of accounts, as well as an order for the payment of certain amounts on account of diverted funds received for prepaid funerals and, in the alternative, judgment for the sum of $168,000 for money said to have been lent by Funeral Directors to Mr Monaghan, together with interest.

11. The defendant to the summons before me, which is the plaintiff in the District Court, MGF Holdings, resists the application for transfer. It contends that its claim in the District Court is a relatively simple one in that, as I have noted, it particularises a debt based on accounting records. It says that there is no relevant overlap between the three sets of proceedings and notes that they all involve different plaintiffs.

12. Stepping back and looking at the three proceedings as a whole, it is clear that they all involve claims brought by parties in the same interest even if they are not the same legal personalities. They all make claims upon the estate of the late Mr Monaghan and, one way or another, they all relate to the affairs of what appears to have been their joint funeral director business.

13. Mr Boland has a responsibility to protect the interests of the estate. He approaches all three pieces of litigation as a stranger; that is, he was not personally involved in the events the subject of the claims. To that extent, he is in something of an evidential disadvantage. On the face of it, his ability to obtain access to documents, specifically financial records of the various plaintiffs relating to the funeral business, to consider the position of the estate in relation to each claim and how they relate to one another, will be critical to the proper discharge of his functions as the executor.

14. Leaving aside the question of whether the proceedings would be heard together, that matter alone suggests that there is a compelling reason why the three pieces of litigation should, at the very least, run together, in that the pretrial issues which can be expected to turn around access to documents will necessarily overlap.

15. Further, given the matters raised and the position of the parties, I can see at least a reasonable likelihood that there would be determination to run all three cases together. If that were to occur, then it is not hard to see how questions of evidence, means of proof, and potentially credibility, would overlap between the three cases.

16. Given that the amount sought to be recovered by the proceedings in the District Court is otherwise very substantial then, when all these matters are considered together, I consider that the case for transfer is compelling. Accordingly, I consider it is in the interests of justice for the proceedings in the District Court to be transferred to this Court. Accordingly, I will make order 1 in the summons filed 8 February 2022.

[Parties addressed]

17. I further order the proceedings so transferred into this Court be transferred to the equity division.

[Parties addressed on costs]

18. The plaintiff in the summons, that is, Mr Boland, seeks his costs of the application to transfer. Subject to one matter, I can see the force in that. I found the case for the application to transfer to be compelling and it was resisted by the defendant. The one matter of hesitation is that whether these cases are ultimately related and whether it is ultimately necessary for them to be heard together, will not really be known until further interlocutory steps are taken.

19. In those circumstances, I think the most appropriate order is that Mr Boland’s costs in these proceedings be Mr Boland’s costs in the cause in the proceedings that have been transferred into this Court.

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Decision last updated: 13 April 2022