Frilay v Walsh - [2016] VSC 368

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 00191

VINCENT GERARD FRILAY (by NOEL GREGORY THOMAS as his administrator appointed under section 43 of the Guardianship and Administration Act 1986)	Plaintiff
v
JILLIAN JOY WALSH	First Defendant
ALLAN FREDERICK WALSH	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2016
DATE OF RULING:	27 June 2016
CASE MAY BE CITED AS:	Frilay v Walsh
MEDIUM NEUTRAL CITATION:	[2016] VSC 368

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PRACTICE AND PROCEDURE – Application for a separate trial of a question – Supreme Court (General Civil Procedure) Rules 2015, r 47.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R H Miller	Mason Black Lawyers
For the First Defendant	Mr L Magowan	Schembri & Co Lawyers
For the Second Defendant	Lander & Rogers

HER HONOUR:

The plaintiff is aged 70 and has dementia. He is a resident in a high care aged facility. On 5 August 2015, Noel Gregory Thomas was appointed his administrator by order made the Victorian Civil Administration Tribunal. This proceeding is brought by the plaintiff’s administrator against the first defendant (‘the defendant’).

On 2 June 2016, pursuant to r 25.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), the plaintiff discontinued his proceeding against the second defendant and filed a notice of discontinuance with the Prothonotary.

The defendant is the daughter of the plaintiff’s domestic partner. From 19 September 2013 until 5 August 2015, she was the attorney under power for the plaintiff pursuant to an Enduring Power of Attorney (Financial). The plaintiff’s domestic partner was his attorney under power from 2 October 2008 until 19 September 2013. He alleges that the defendant procured the revocation of her mother’s power of attorney and then appointed herself as his attorney.

The plaintiff claims that the defendant has misappropriated or stolen substantial funds exceeding $1 million from him between May and September 2013, and after her appointment as attorney, between 19 September 2013 and 12 August 2015, has failed to account to him in respect of the sale of two of his properties and for rental moneys due to him.

The plaintiff also claims that his will dated 19 September 2013 (‘the 2013 will’) was executed by him when he lacked testamentary capacity. The defendant is the sole beneficiary of the plaintiff’s estate pursuant to the 2013 will. The 2013 will purported to revoke his penultimate will made in 2008 (‘the 2008 will’) under which the defendant receives half of his residuary estate.

The plaintiff claims that the defendant has acted unconscionably or dishonestly, has taken advantage of him for her own benefit and has acted in breach of her fiduciary duties to him. He seeks an account of all transactions made by the defendant in respect of his misappropriated assets, alternatively, damages and orders for repayment of any amounts found to be owing to him. He also seeks a declaration that he…

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 Frilay v Walsh

Details

AGLC: Frilay v Walsh [2016] VSC 368
Case: [2016] VSC 368
Decision Date: 27 June 2016

CaseChat Overview and Summary

Frilay v Walsh is a matter before the Supreme Court of New South Wales, which involves a dispute over the application of the Supreme Court (General Civil Procedure) Rules 2015, rule 47.04. The applicant, Frilay, seeks a separate trial of a question that has arisen during the course of the broader litigation. The respondent, Walsh, opposes the application on the basis that it is not appropriate to sever the issue for trial.

The primary legal issue before the court was whether the application for a separate trial of the question was warranted under rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2015. The court had to consider the relevant factors outlined in the rule, including the impact of a separate trial on the overall efficiency of the proceedings and whether the separate issue could be conveniently and completely determined without a trial of the main issue.

In considering the matter, the court examined the relevant provisions of the rules and relevant case law. The court found that the factors outlined in the rule did not favour the severance of the issue for trial. The court held that a separate trial would not necessarily lead to a more expeditious determination of the proceedings, and that the issue could be conveniently and completely determined at the same time as the main issue. Accordingly, the court dismissed the application for a separate trial of the question. The court did not make any further orders in relation to the application.

Orders