Dresler v Mrish - [1999] NSWSC 523

CITATION: Dresler v Mrish [1999] NSWSC 523

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 3402/93

HEARING DATE(S): 8 and 22 April 1999

JUDGMENT DATE:
2 June 1999

PARTIES :

Mark Oliver Dresler (P)
George Mrish (D1)
Lawhouse Pty Limited (D2)
Registrar General (D3)

JUDGMENT OF: Master McLaughlin

COUNSEL : Mr. J. Van Aalst (P)
Mr. P. Newton (D)

SOLICITORS: Hardings (P)
Philip J. Beazley (D)

CATCHWORDS: Summary judgment; Plaintiff is administrator of estates of his parents and his brother; First defendant murdered parents and brother; Plaintiff seeks recovery of moneys and properties paid and transferred by his parents to defendants; Those payments and transfers are asserted to have been in consequence of undue influence, threats and blackmail by first defendant; Relief claimed is of an equitable nature; Application of equitable doctrine of tracing; Whether procedure for summary judgment is available; Effect of Supreme Court Act 1970, section 88; Whether there is a real issue of fact to be decided; Limited participation in present application allowed to administrator of intestate estate of first defendant.

ACTS CITED: Supreme Court Act 1970

DECISION: See paragraph 78

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SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Wednesday, 2 June 1999
z
3402 of 1993 MARK OLIVER DRESLER -v- GEORGE MRISH
JUDGMENT
1 MASTER: By notice of motion filed on 30 November 1998 the plaintiff, Mark Oliver Dresler, seeks, substantively, summary judgment pursuant to Part 13 rule 2 of the Supreme Court Rules. 2 The proceedings were instituted by statement of claim filed by the plaintiff on 29 July 1997. That statement of claim named three defendants, George Mrish, Lawhouse Pty Limited, and the Registrar-General. A submitting appearance has been filed on behalf of the Registrar-General. Lawhouse Pty Limited is a company which at all material times was under the control of the first defendant. 3 A defence was filed by the first and second defendants on 28 September 1998. 4 The plaintiff brings the substantive proceedings in his capacity as administrator with the respective wills annexed of his parents Oliver Dresler and Thelma Dresler (each of whom died some time between 11 June 1993 and 19 June 1993) and as administrator of the intestate estate of John Herbert Dresler, the brother of the plaintiff and the only other child of their parents (who died on or about 29 March 1993). (I shall refer to the late Oliver Dresler and the late Thelma Dresler as “Mr and Mrs Dresler” and to the late John Herbert Dresler as “John Dresler” or “John”.) 5 In the events which have happened, the plaintiff is beneficially entitled to the entirety of the estate of each of his parents and of his brother. 6 By the proceedings the plaintiff seeks to recover certain assets belonging to his parents which were allegedly transferred by them to either the first defendant or the second defendant and certain payments allegedly made by his parents to those defendants. It is the assertion of the plaintiff that the various transfers and payments…

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.

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Details

Case: [1999] NSWSC 523
Decision Date: 2 June 1999

CaseChat Overview and Summary

The matter in question involved Dresler, who was the administrator of the estates of his parents and brother, suing Mrish, the first defendant, who had been found guilty of the murder of Dresler's parents and brother. The plaintiff sought recovery of monies and properties that his parents had paid and transferred to the defendants. The plaintiff alleged that these payments and transfers were made due to undue influence, threats, and blackmail exerted by the first defendant. The relief sought was of an equitable nature, involving the application of the equitable doctrine of tracing. The court was tasked with determining whether the procedure for summary judgment was applicable and the effect of section 88 of the Supreme Court Act 1970. The court also had to consider whether there was a real issue of fact to be decided. The administrator of the intestate estate of the first defendant was granted limited participation in the present application.

The court had to address several legal issues, including whether the plaintiff's claim was suitable for summary judgment. The plaintiff argued that the application of the equitable doctrine of tracing was straightforward, and there were no genuine issues of fact to be resolved. The court had to determine whether the procedure for summary judgment could be applied in cases involving equitable relief and the implications of section 88 of the Supreme Court Act 1970. The court also needed to assess whether there were any real issues of fact that precluded the application of summary judgment.

The court found that the doctrine of tracing was an equitable remedy and that the procedure for summary judgment was not precluded by the nature of the claim. The court held that section 88 of the Supreme Court Act 1970 did not apply to equitable claims, as it was limited to cases where there was a real issue of fact to be decided. The court concluded that there were no real issues of fact that precluded the application of summary judgment. The court allowed the application for summary judgment, ordering that the plaintiff recover the moneys and properties that had been paid and transferred by his parents to the defendants.

The court made several orders in relation to the summary judgment application. The court ordered that the first defendant return the monies and properties that had been paid and transferred by the plaintiff's parents. The court also ordered that the administrator of the intestate estate of the first defendant be given notice of the orders and allowed to make submissions on the application. The court further ordered that the first defendant pay the plaintiff's costs of the application.

Orders