Critchley v Collins

[2004] SASC 10

Critchley v Collins

[2004] SASC 10

Civil

1. GRAY J.                Helena Agnes Collins purchased a house property in suburban Adelaide.  The monies paid at settlement allowing for stamp duty and adjustments totalled $388,491.64 (the settlement sum).  Ms Collins obtained an indefeasible title.  There was no mortgage.

2. Complications arose some weeks after settlement when it was discovered by the broker, Michael Henry Critchley, that Ms Collins had only provided $5000.00 towards the settlement sum.  It transpired that the balance of the settlement sum had come from monies held in Mr Critchley’s trust account on behalf of unrelated third parties.  It transpired, as appears later in these reasons, Mr Critchley’s office accepted an assertion by Ms Collins’ agent, Robert Wayne Collins, that the balance of the monies required for settlement had been electronically transferred on behalf of Ms Collins to Mr Critchley’s trust account.  This had not in fact occurred.

   The Proceedings

3. Once Mr Critchley understood that the balance of the settlement sum had come from monies that he held on trust for third parties, proceedings were issued.  Mr Critchley sought a declaration that he and Ms Collins held an interest in the property as tenants in common in proportions reflecting their contributions to the settlement sum.  Mr Critchley alleged that Ms Collins only provided $5000 toward the settlement sum.  It was said that through the fraud of her agent, Mr Collins, trust beneficiaries of Mr Critchley paid the major portion of the settlement sum.  It was claimed that a resulting trust arose.  Mr Critchley applied for immediate relief under Supreme Court Rule 25.02.[1]  He sought an order that the property be sold at public auction and the proceeds divided.  Mr Critchley claimed that Mr and Ms Collins were liable for any shortfall suffered by Mr Critchley.

   [1] 25.02    (1) … the  plaintiff may after the time of issuing his summons take out an application for immediate relief.

4. Initially urgent ex parte injunctive relief was granted:

   [R]estraining Helana Agnes Collins whether by herself, her servants or agents from selling, transferring, charging, encumbering, leasing or otherwise dealing with the [property];

   [R]estraining Robert Wayne Collins whether by himself, his servants or agents from selling, transferring, charging, encumbering, leasing or otherwise dealing with the [property].

5. Mr Collins appeared on the adjourned hearing and sought the discharge of the injunctive order.  He filed an affidavit alleging that:

   -Ms Collins’ funds had been transferred into Mr Critchley’s trust account;

   -Ms Patterson, an employee of Mr Critchley, and Mr Critchley had confirmed to Mr Collins personally that Ms Collins’ funds had arrived and that settlement would proceed;

   -that Mr Critchley’s claim was vexatious and had a tendency to cause prejudice and embarrassment to Mr and Ms Collins.

6. Ms Collins was present in court.  Mr Collins informed the court that Ms Collins had received a workers compensation settlement, that monies were held on her behalf by the Workers Compensation Tribunal, that he had arranged for the balance of the settlement sum to be forwarded to Mr Critchley’s trust account…