Gudmundsen v Carrington
[2012] NSWSC 147
•28 February 2012
Supreme Court
New South Wales
Medium Neutral Citation: Gudmundsen v Carrington [2012] NSWSC 147 Hearing dates: 2 February 2012 - 3 February 2012 Decision date: 28 February 2012 Jurisdiction: Equity Division Before: Stevenson J Decision: Dr Gudmundsen is entitled to equitable compensation from Ms Carrington in relation to the funds she transferred from the Business Account to her accounts between 2 July 2008 and 8 August 2011 with exceptions.
Catchwords: EQUITY - equitable compensation - misappropriation of funds - employer and employee - unauthorised payments - whether misappropriated funds used by employee for benefit of employer Legislation Cited: Evidence Act 1995 Cases Cited: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 67 ALJR 170,
Sutherland Shire Council v Dietz [2004] NSWCA 53,
De Gioia v Darling Island Stevedoring & Lighterage Co Ltd [1941] 42 SR (NSW),
Breen v Williams (1995) 186 CLR 71Texts Cited: Young, Croft, Smith On Equity (Lawbook Co 2009) Category: Principal judgment Parties: Dr Ken Joseph Gudmundsen T/A Lismore Skin Clinic (Plaintiff)
Nina Carrington (Defendant - no appearance)Representation: Mr Julian O'Sullivan (Plaintiff)
Streeterlaw (Plaintiff)
File Number(s): 2011/382554
Judgment
The plaintiff, Dr Ken Gudmundsen, is a dermatologist and operates a specialist medical practice under the name "Lismore Skin Clinic" ("the Clinic") at 186 Molesworth Street, Lismore.
In early 2006, Dr Gudmundsen engaged the defendant, Ms Nina Carrington, as his bookkeeper at the Clinic.
In January 2008, Dr Gudmundsen appointed Ms Carrington as his practice manager on a full time 5 day a week basis.
In the proceedings, Dr Gudmundsen claims that Ms Carrington has misappropriated from him some $490,000.00 and seeks equitable compensation in that amount.
The proceedings
The proceedings were commenced on 30 November 2011. On that day White J made an asset freezing order against Ms Carrington and adjourned the proceedings until 2 December 2011.
On 2 December 2011, White J extended the freezing order until 7 December 2011 and adjourned the proceedings to that date. White J ordered that the summons, and Mr Gudmundsen's affidavit of 30 November 2011 be taken to have been served on Ms Carrington on 1 December 2011.
On 7 December 2011, Bergin CJ in Eq fixed the matter for hearing on 2 February 2012 and extended the freezing order until 5pm that day.
Ms Carrington has, at no time, appeared in the proceedings. She did not appear when called at the commencement of the hearing before me on 2 February 2012.
Furthermore, Ms Carrington has not been personally served with any documents in the proceedings. However, the Summons and Dr Gudmundsen's affidavit (and its exhibits) were left at a property she owns at Highland Park in Queensland, and she has received by email, and acknowledged, the Amended Summons and Dr Gudmundsen's affidavit of 11 January 2012 (and its exhibits). She has also received from Dr Gudmundsen's solicitors SMS notifications to her mobile telephone of the progress of the litigation, the making and extension of the freezing order, and the fixing of 2 February 2012 as the date for the hearing of the matter. I am satisfied that she is aware of the proceedings, and of the nature of the allegations and claims made against her by Dr Gudmundsen.
It appears that Ms Carrington now resides in New Zealand.
On 31 January 2012 Ms Carrington forwarded to Dr Gudmundsen's solicitors a document called "Statement for the Court in Regards to Allegations made by Ken Gudmundsen against Nina Carrington" dated 31 January 2012 and she informed those solicitors that "this statement is to be put to the Court".
Mr O'Sullivan, who appears for Dr Gudmundsen, did not tender that statement but, very properly, drew it the Court's attention.
On 2 February 2012, during the first day of the hearing, Ms Carrington sent Dr Gudmundsen's solicitors a further document addressed to the Court and making a further statement "in regards to the allegations that Ken Gudmundsen has made against me".
On 6 February 2012, after Judgment had been reserved, my Associate received a number of emails from Ms Carrington, to some of which were attached documents that Ms Carrington wished to draw to my attention.
For that reason, on 6 February 2012, I indicated to the parties (including Ms Carrington) that I would not deliver judgment in the matter until 28 February 2012 in order to give Ms Carrington an opportunity to make such application as she wished in the proceedings.
Since then Ms Carrington has contacted my Associate on a number of occasions by email and has forwarded to my Associate by mail an document purporting to be an affidavit setting out various matters said to be relevant to these proceedings.
Ms Carrington also contacted the Assistant Manager Client Services of the Court and on 27 February 2012 sent by email a copy of her affidavit to that person.
However, on 24 February 2012, at my direction, my Associate wrote to Ms Carrington as follows:
"I refer to your email received at 4.49pm this afternoon.
This [was] matter was heard on 2 and 3 February 2012.
On 3 February 2012 His Honour directed that Dr Gudmundsen file any further affidavit evidence by 5pm that day.
His Honour has taken into account the affidavit served pursuant to that order because the affidavit was filed pursuant to a direction made by His Honour arising out of Dr Gudmundsen's participation in the hearing of the proceedings on 2 and 3 February 2012.
You are in a different position. You have not entered an appearance. You have not participated in the proceedings. You did not appear when the matter was called on for hearing. You did not participate in the trial.
As you have not entered an appearance in the proceedings and have not participated in the proceedings, His Honour cannot take into account material that you send me or the Court informally by mail or by email.
Judgment will be delivered at 9.30am next Tuesday 28 February 2012 unless you make an application of the kind I have described in previous correspondence.
That Judgment will be based upon, and only upon, the evidence properly before the Court - that is the evidence adduced by Dr Gudmundsen.
If you wish to seek leave to place evidence before the Court in accordance with the Court's procedures you will need to appear, either in person, or by a solicitor or barrister, or by some other person, before His Honour next Tuesday 28 February 2012 at 9.30am."
Ms Carrington has not done any of these things.
As Ms Carrington has not appeared, and gives no direct evidence of any of the matters that she has asserted in the documents she has sent to the Court, I am unable to take them into account.
In the result, the only evidence before the Court is that of Dr Gudmundsen, which I must treat as uncontradicted.
That evidence was to the following effect.
Background
When Ms Carrington was engaged as practice manager in June 2009, she agreed to work on a full time 5 day a week basis and be paid $45.00 per hour.
Dr Gudmundsen agreed with Ms Carrington that she could work overtime on certain conditions. First, Ms Carrington had to seek to work such overtime in advance. Second, Dr Gudmundsen had to give his approval to Ms Carrington working additional hours in advance.
Thereafter Ms Carrington, on two separate occasions, requested a pay increase. On both occasions Dr Gudmundsen refused to agree to such increase.
As practice manager, Ms Carrington had unrestricted access to Dr Gudmundsen's banking accounts, including his business account at Westpac Banking Corporation ("Business Account"). Ms Carrington also had the ability to transfer funds, using B-Pay or Westpac's "pay anyone" function to make payments from the Business Account.
On 8 August 2011, Dr Gudmundsen decided to conduct an audit of the practice. He informed Ms Carrington of his intention on 9 August 2011. On 15 August 2011, Ms Carrington removed all her personal items from the Clinic. By an email sent to Dr Gudmundsen on 16 August 2011, Ms Carrington resigned from "Lismore Skin Clinic as of today and will not be back due to that manner in which I am being treated".
Dr Gudmundsen was told by another member of staff that, shortly after Dr Gudmundsen announced that the audit was to take place, Ms Carrington stated "If Ken has an audit I'm gone. I'm out of here".
Following Ms Carrington's departure, Dr Gudmundsen conducted an investigation as to the state of financial affairs of the practice.
Dr Gudmundsen has referred the matter to the Police, whose investigations are continuing.
The commencement of these proceedings, and the application to White J for ex parte relief, was prompted by information received by Dr Gudmundsen in late November 2011 that Ms Carrington was planning to leave Australia for New Zealand to pursue an employment opportunity in Nelson.
Schedules setting out transfers of funds
Dr Gudmundsen has produced schedules to prove the loss he claims he has suffered as a result of Ms Carrington's conduct. These schedules set out transfers of funds made between 2 July 2008 and 8 August 2011 from his Business Account to two accounts maintained by Ms Carrington. One account is in her own name, and the other account is styled "Experience Clothing". The business name "Experience Clothing" is owned by Ms Carrington. There are approximately seven hundred individual transfers over a period of 25 months totalling approximately $490,000.00.
These schedules were prepared by reference to bank statements produced by Westpac in respect of the Business Account and by "payment receipt" documents generated by Westpac in respect of transfers made from Dr Gudmundsen's Business Account. Those "payment receipt" documents nominate the account to which such payments have been made. In relation to some transactions, Dr Gudmundsen has also had access to documents produced on subpoena in respect of Ms Carrington's bank accounts.
In his affidavit evidence, Dr Gudmundsen claimed that not one of the transfers was authorised by him. Implicit in Dr Gudmundsen's evidence was that not one of the transfers was used by Ms Carrington to discharge a clinic obligation or expense.
Dr Gudmundsen has calculated the salary that Ms Carrington was entitled to be paid, and has deducted that figure from the totality of the allegedly unauthorised payments.
As Dr Gudmundsen's legal advisors did not have access to certain banking documents until subpoenas were issued in these proceedings, the analysis has taken place in respect of two separate periods, and the result is as follows.
For the period 2 July 2008 to 30 September 2010 Dr Gudmundsen claims $199,104.43 calculated as follows: -
Allegedly unauthorised payments
$356,791.43
Less Ms Carrington's salary entitlement
$157,687.00
$199,104.43
In respect of the period 27 September 2008 to 16 August 2011: -
Allegedly unauthorised payments
$352,093.16
Less Ms Carrington's salary entitlement
$57,420.00
$294,673.16
The summary schedules prepared in respect of both periods also record the descriptor given, evidently by Ms Carrington (Dr Gudmundsen did not create them and did not authorise anyone but Ms Carrington to do so), in the Clinic's records of the transactions and the dates and amounts of the transactions.
This approach to the calculation of Dr Gudmundsen's loss is said to be necessary because of the "chaotic" state of the entries made by Ms Carrington in the Clinic's MYOB bookkeeping records and because of what Dr Gudmundsen describes as being a failure by Ms Carrington to keep adequate records and the alleged deliberate creation by Ms Carrington of false records of the books and accounts of the Clinic.
Dr Gudmundsen gave evidence that he had engaged a forensic accountant, a Ms Bateman, to produce an analysis of the Clinic's accounts such as would reveal the extent of any misappropriation of funds by Ms Carrington.
Ms Bateman is reported to have stated that the MYOB records of the practice were "unusable" for this purpose.
Dr Gudmundsen has not adduced evidence from Ms Bateman, or from any other forensic accountant dealing with this, or any other question concerning Ms Carrington's activities.
In the result, what has been placed before the Court is a list of over seven hundred transactions. Each of these transactions undoubtedly represents a transfer of funds from the Business Account to one or other of Ms Carrington's accounts. Dr Gudmundsen has asserted in his initial affidavit that all these transactions were unauthorised by him.
Various descriptors appear in the Clinic records in relation to these transactions. Some of these descriptors include "petty cash", "wages", "uniform", "practice expense", "general expense", "stationery", "general expense", and "management expenses". There are also a large number of transactions, occurring on an approximately weekly basis from September 2009, described as "Ken's drawings" or "Ken drawings".
There are a large number of transactions described as "Molesworth House". Molesworth House is the name of the premises owned by Dr Gudmundsen, from which he conducts his dermatology practice.
From the beginning of 2011 there are a number of transactions described as "wage repay" in respect of various employees at the Lismore practice - thus "Petria wage repay", "Gerrie repay", "Margo wage repay", "Kathy wage repay" and "Karen wage repay".
In that regard Dr Gudmundsen said, in one of his affidavits, that he had become aware, in early 2011, that Ms Carrington had paid, from her own account, the wages of one of Dr Gudmundsen staff, Ms Petria Brown. He said that Ms Brown had told him that she had received her pay from Ms Carrington's account and enquired as to why that was so. Dr Gudmundsen said he had a conversation with Ms Carrington as follows: -
"Dr Gudmundsen: Nina, what is this about payments to Petria Brown from your account?
Ms Carrington: We didn't have enough in the cheque account to pay this. I was helping you out by paying it myself. You can pay me back when your current situation is better. I am helping you out.
Dr Gudmundsen: Yeah, ok, but keep a close eye on this".
In his affidavit, Dr Gudmundsen did not suggest that he was surprised to hear that Ms Carrington had been paying staff wages from her own funds, or that he asked her not to do so in the future.
Dr Gudmundsen gave oral evidence before me. After the conclusion of that evidence, Dr Gudmundsen swore a further affidavit of 3 February 2012 giving more giving more detailed evidence in respect of the various categories of transfers from the Business Account to Ms Carrington's account.
Some important matters
Before considering the detail of that evidence, I mention some matters that I must bear in mind.
The first is that Dr Gudmundsen makes very serious allegations against Ms Carrington. Dr Gudmundsen claims that Ms Carrington made the transfers from the Business Account to her accounts without his authority. Thus, in effect, Dr Gudmundsen alleges that Ms Carrington has misappropriated the funds. The allegation is one of dishonesty.
When considering whether I am satisfied, on the balance of probabilities, that Dr Gudmundsen's allegations are correct I must bear in mind the gravity of the allegations: Evidence Act 1995 s 140(1).
As the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 67 ALJR 170 at 170 per Mason CJ and Brennan, Deane and Gaudron JJ:
"The ordinary standard of proof required of a party who bears the onus in civil litigation in this party is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary, 'where so serious a matter as fraud is to be found'. Statements to effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct".
Another matter concerns Ms Carrington's likely knowledge of the true position.
There is no doubt, on the evidence before me, that Ms Carrington caused the transfers to be made from the Business Account to her accounts. It is Ms Carrington, alone, who has full knowledge of what use she made of these funds. In particular, it is Ms Carrington, alone, who knows the extent to which she used the funds for the purpose of the Clinic, and the extent to which she used the funds for her own purposes.
Ms Carrington is well aware of the existence and pendency of these proceedings. She has not come to the Court to give evidence setting out her side of the story and to explain what use she has made of the funds that she has transferred into her accounts.
In Sutherland Shire Council v Dietz [2004] NSWCA 53, the Court of Appeal cited with approval the observations of Jordan CJ in De Gioia v Darling Island Stevedoring & Lighterage Co Ltd [1941] 42 SR (NSW) 1 at 4:-
"...where the facts were peculiarly within the knowledge of the defendant and it was difficult for the plaintiff to produce them, then 'very slight evidence pointing to [the] existence [of facts essential to the plaintiff's case] may be treated as sufficient to justify a jury in holding that they do exist' ".
Finally, if and to the extent that I am satisfied that Ms Carrington was not entitled to transfer funds to her accounts, the inevitable conclusion is that she has misappropriated those funds.
In those circumstances it appears to me the position is clear and is summarised in Young, Croft, Smith On Equity (Lawbook Co 2009) at [6.1010] as follows: -
" An employee or agent who steals moneys from, or diverts moneys intended to be paid to, the employer or principal, and either holds the moneys or invests them, will hold the funds or investment on trust for the employer of principal: Black v S Freedman & Co (1910) (12 CLR 105 at 110).
In Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75 (CA), Spigelman CJ (with whom Handley and Santow JJA agreed) concluded that stolen funds were held on a presumed or resulting trust, rather than a constructive trust, for defrauded credit card holders. His Honour stated:
'A case of simple theft involves a transfer of property about which the transferor was entirely unaware. The transferee holds any property into which the stolen property has been converted on trust in a manner which should be seen as automatic'."
Further, to the extent that Ms Carrington has misappropriated her employer's funds, she has acted in breach of her fiduciary duty. As Mr O'Sullivan submits, a fiduciary relationship may exist between an employer and an employee. This is particularly so where the relationship is one of trust and confidence. In this case, Ms Carrington was charged with handling her employer's money and managing his practice and had a fiduciary duty to her employer not to obtain an unauthorised benefit from the relationship ( Breen v Williams (1995) 186 CLR 71 at 113 per Gaudron and McHugh JJ).
Evidence relating to transfers
I turn now to the detail of the evidence concerning the transfers.
The starting point must be the evidence establishing that Ms Carrington transferred the funds in question to her accounts. On the face of it, this was highly irregular behaviour involving, as it did, an employee of the medical practice, transferring a little under half a million dollars from her employer's account to her own, over a period of some two years.
In his initial affidavit evidence, Mr Gudmundsen said that all the transfers were made without his authority.
In his oral evidence, Dr Gudmundsen said: -
"I did not authorise or was never aware the money was transferring, moving from my account to her account and she never informed me of that situation at any stage in her employment".
However, as Dr Gudmundsen conceded, there emerged in evidence examples of circumstances where it was clear that Ms Carrington had used some of the funds transferred for Clinic purposes and that, over the two-year period in question, he did become aware of some of these matters.
I will set out the detail of this below. However, I should add that, on the basis of all evidence, I accept Mr O'Sullivan's submission that the inference to be drawn is that Ms Carrington made two types of payments. First, Ms Carrington made some payments to Dr Gudmundsen's creditors for which she was entitled to be reimbursed. Second, she made unauthorised payments which were masked as authorised payments.
Miscellaneous expenses
In relation to the circumstances where it does seem that Ms Carrington did use part of the funds for what I shall describe as "legitimate" purposes, Dr Gudmundsen said: -
"There are miscellaneous expenses where she may have, due to my request, bought lunches or small items in which I would obviously be agreeable to repaying her for those services".
When asked how often, and in what amount these transactions occurred Dr Gudmundsen said:-
"In general, it would be small amounts as needed, as the practice needed. I would estimate that in a year in would be less than $10,000.00 if I was to add it all up".
As the period during which the transfers took place was a little over two years, I take this evidence to involve an acceptance by Dr Gudmundsen that, overall, some $20,000.00 of the funds transferred were used by Ms Carrington for this legitimate purpose.
This amount must therefore be deducted from the amount recoverable by Dr Gudmundsen.
Ken drawings
Further, from September 2009 there are regular (almost weekly) transfers, usually in the sum of $500.00, described as "Ken drawings".
In relation to those transactions, Dr Gudmundsen gave the following affidavit evidence: -
"In relation to transactions referred to as "Ken Drawings", in about 2009, I had a discussion with Nina Carrington to the following effect:
NC: The practice's finances are bad. We need to put you on a wage of $500 per week to make sure that we keep the finances under control.
KG: OK .
Following that conversation[s], Nina handed to me cash of $500 per week each week. I assumed and understood that the cash was withdrawn from my own bank account. At no time did Nina indicate that she was paying me from her own funds and then reimbursing herself from my bank account. Accordingly. I assumed that she would have reason to reimburse herself for my drawings of $500 per week.
I am informed by Shweta Kumar of Streeterlaw and believe that she has added up the totals for each amount described as 'Ken Drawings' in the First Spreadsheet and the Second Spreadsheet and that their total is $44,701.06."
Cleary, in relation to these transactions, Ms Carrington was authorised to transfer funds from the Business Account.
In final submissions, Mr O'Sullivan accepted that these transactions, totalling $44,701.06, could not be claimed.
Wage repay
In his affidavit of 30 November 2011, Dr Gudmundsen gave evidence concerning the payment of wages by Ms Carrington from her own account to Ms Petria Brown. Dr Gudmundsen did not suggest he was surprised to hear about this and did not suggest that he asked Ms Carrington to desist from such conduct in the future.
Dr Gudmundsen said the conversation with Ms Brown (and later with Ms Carrington) took place in early 2011. This appears to correspond with transfers described as "Petria wage repay" on 3 and 9 February 2011 in the sums of $1,491.70 and $1,430.75 respectively. It appears that these are the payments referred to in the evidence set out above.
Mr O'Sullivan accepts that Dr Gudmundsen is not entitled to claim those amounts.
However, I think the matter goes further. There are a large number of other "repay" transactions involving persons, who I assume are employees of Dr Gudmundsen, known as Andrew, Anne, Karen, Kerry, Jessie, Tamara, Margo, Marta and others.
It must have struck Dr Gudmundsen as quite extraordinary that his employee would, out of her own funds, pay the wages of another of his employees (Ms Brown). Evidently, the matter caused no surprise or concern to Dr Gudmundsen. He must have known, at the very least, that there was a possibility that Ms Carrington would adopt the procedure she engaged in in relation to Petria Brown with other employees as and when necessary.
In the light of the evidence given by Dr Gudmundsen regarding the matter of Ms Brown, and in all the circumstances, I am not prepared to conclude that any of these "repay" transfers were unauthorised.
For these reasons, I am not prepared to allow Dr Gudmundsen any amount in respect of any of the "repay" transactions.
Transfers to Dr Becker
There were a number of transactions described as "Gerrie repay" or similar.
Dr Gudmundsen said that "Gerrie" was Dr Gerrie Becker who also practises from the premises at Molesworth Street in Lismore.
In his affidavit of 3 February 2012, Dr Gudmundsen gave this evidence: -
"I am informed by Dr Becker that:
(a) on about 20 June 2011 the defendant paid him $5,000 and that the defendant was reimbursed for this amount from my Business Cheque Account on 21 June 2011;
(b) on 16 June 2011 he was paid $5,000 and this appears to have been reimbursed to the defendant on 16 June 2011 from my Business Cheque Account;
(c) on 5 May 2011 he was paid $3,000 by the defendant but it appears from my Business Cheque Account statements that she was transferred $7,500 to herself on 4 May 2011, leaving $4,500 unaccounted for".
What this evidence reveals is that, on three occasions, Ms Carrington paid Dr Becker funds ($3,000.00 on 5 May 2011, $5,000.00 on 16 June 2011 and $5,000.00 on 20 June 2011), evidently in respect of his wages or other remuneration.
On the last two occasions Ms Carrington reimbursed herself for the amount actually paid by her to Dr Becker. However, on the first occasion she "overpaid" herself $4,500.00.
In these circumstances, Mr O'Sullivan accepts that Dr Gudmundsen is not entitled to claim the $13,000 that Ms Carrington did pay to Dr Becker and for which she has obtained reimbursement from the Business Account.
Stationery and kitchen items
Mr O'Sullivan also accepts that Dr Gudmundsen was not in a position to say accurately how many of the payments for stationery or kitchen items were authorised and that accordingly the item for "stationery" of $6,614.54 and for kitchen items (described as "fridge and dishwasher") for $2,696.00 cannot be claimed.
Other transfers
In relation to many categories of transfer, the only evidence that Dr Gudmundsen was able to give about the transactions was that either he did not know what the transactions were supposed to relate to and/or that neither he, nor Ms Carrington's successor as practice manager (Ms Kathy Klem) had been able to locate any invoices, receipts or other primary accounting records or other paperwork that appeared to relate to those transactions.
The categories of transactions (as described in the Clinic records) which fall into this category are as follows: -
- Admin
- Business meeting
- Cash dockets reimb
- Citibank repaid
- Computer
- Cosmetics
- Drawings
- General expense
- Jessie vacation care (Jesse is Dr Gudmundsen's son)
- Management
- Marketing and Promotion
- Medical supplies
- Mgement expenses
- Mobile
- Accessories
- Expenses
- Optus
- Phone/internet
- Powermax repay
- Practice expense
- Practice amenities
- Procedure room acc
- Printer repay
- Professional meetings
- Reimbursement
- Repayment comp
- Robina set up (Dr Gudmundsen's practice had rooms at Robina)
- Secretarial
- Sensis
- SSS repayment
- Stationery repay
- Storage
- Surgery exp
- Telstra
- Theatre accessories
- Training
- Travel comp exp
- Variety
In relation to these categories of transactions, it is conceivable that some of the transfers made by Ms Carrington were used for Clinic purposes. On the evidence before me, I am unable to say either way.
The fact that Dr Gudmundsen and Ms Klem cannot locate any invoices or other documents tends to suggest no Clinic obligations were discharged. It may be that forensic accounting analysis of the kind to which I have referred earlier in this judgment could have cast further light on the matter.
As Mr O'Sullivan accepts, the evidence in this regard is not wholly satisfactory.
However, this is an area where, to paraphrase the words of Sir Frederick Jordan cited above, the facts are peculiarly within the knowledge of Ms Carrington and, because of the state in which Ms Carrington has left the Clinic's books and records, it has proved difficult for Dr Gudmundsen to produce precise proof.
I also take into account the circumstances of Ms Carrington's resignation. Ms Carrington resigned suddenly in August 2011, in the face of Dr Gudmundsen's announcement that he proposed to conduct an audit. This strongly suggests that Ms Carrington was not prepared to confront Dr Gudmundsen in relation to the transfers she had made or to provide to him, directly, an explanation.
In those circumstances, and in the absence of any evidence from Ms Carrington explaining the position, I am prepared to accept Dr Gudmundsen's admittedly generalised evidence as sufficient to establish that Ms Carrington has not used the monies transferred under these headings for the purposes of the Clinic.
Dr Gudmundsen was able to give more specific evidence of the following categories of matters.
Advertising
In relation to a transfer of $1,000.00 on 3 March 2011, described as "Advertising", Dr Gudmundsen said that his practice was to pay for all advertising on his credit card, rather than out of the Business Account. Dr Gudmundsen did not produce documents or copies of any credit card statements to justify this evidence. However, it is not contradicted and I am prepared to accept it. As Dr Gudmundsen paid for advertising from his credit cards, there is no reason why Ms Carrington would transfer to her own account an amount for advertising.
Postage
On 8 July 2011 there are two transactions described as "Aust post balance" and "Aust post repay" for $200.00 and $1,406.00 respectively. Dr Gudmundsen gave evidence that the Clinic would normally spend around $200 a month on stamps. In those circumstances I am prepared to infer that Ms Carrington made the $200.00 transfer to pay for stamps during July 2011.
However, on the basis of this evidence it seems unlikely that she also used the $1,406.00 transfer for proper purposes and I find that Dr Gudmundsen is entitled to recover that amount.
Conference costs
There are a number of transfers labelled as "conference" or similar.
There is a transfer dated 10 November 2010 for $10,000.00 described as "conference costs". Dr Gudmundsen gave evidence that neither he nor any member of his staff attended any conference in or about November 2010.
There are two transactions styled "conference expenses" for 21 March 2011 totalling $1,700.00. Dr Gudmundsen said he did attend a conference in March 2011 but that he paid for the conference on his Mastercard.
There is a transfer on 10 April 2011 described as "conference expenses" in the sum of $2,021.29. Dr Gudmundsen said he did not attend any conference in or about April or May 2011.
There is a transfer dated 25 May 2011 described as "conference expenses" in the sum of $730.00. Dr Gudmundsen said neither he nor any member of his staff attended any conference in or about May 2011.
Finally, there are transfers dated 1 August 2011 (that is only a few weeks before Dr Gudmundsen announced the audit and Ms Carrington resigned as Practice Manager) described as "conference costs" and "conference travel" in the total sum of $4,181.60. Dr Gudmundsen said he did not attend any conference in August 2011. He said a number of his nursing staff did attend a conference but that the costs of that conference were paid by the conference provider.
In these circumstances I am satisfied that Ms Carrington was not entitled to any of these payments and that she has disguised the transfers by using the labels "conference" and the like.
Electrical expenses
There is a transfer on 6 October 2010 described as "electrical expenses". Dr Gudmundsen gave evidence that he paid all electrical expenses directly either by cheque, by credit card or by direct bank transfer. In these circumstances there was no reason for Ms Carrington to transfer these funds to her account.
Management of Molesworth House
On 15 April, 19 April, 7 June, 24 June and 14 July 2011 there were transactions styled "M house expenses" or "MH" or "MH management" or similar. It appears that "MH" stands for "Molesworth House" which is the name of business premises, owned by Dr Gudmundsen, from which he conducts his practice. Dr Gudmundsen gave evidence that the premises are freehold title and that he is not aware of any liability he has to pay any person expenses for the "management" of the premises. In these circumstances I am satisfied that Ms Carrington was not justified in making these transfers.
Petty cash
There are a large number of items described as "petty cash". For example in June 2011 there is a total of $3,850.00 transferred as "petty cash". Dr Gudmundsen gave evidence that whilst the Clinic did have a petty cash float, the amount of that float was usually in the order of $500.00 per month. In those circumstances, to the extent Ms Carrington has transferred more than $500.00 in any month, I find that she was not justified in doing so.
Professional costs
On 3 and 11 December 2010 there are transfers described as "professional costs" in the sums of $310.88 and $2,000.00 respectively. Dr Gudmundsen gave evidence that he had not engaged any professional person during that period. I find that these payments were not justified.
Uniforms
In July 2011 there are transactions described as "uniform" or "uniforms". Dr Gudmundsen gave evidence that some of his staff wore uniforms but that no new uniforms had been provided in or around July 2011. I find these transfers were not justified.
Waiting room
There are various transfers described as "waiting room". Dr Gudmundsen only gave evidence in respect of one transfer, being for an amount of $500.00. He said that he did not know what this transaction was but that the waiting room had no new furniture of magazines which would amount to $500.00. I find that this transfer was not justified.
There are other, smaller transfers described as "waiting room". For example there is a transfer dated 6 June 2011 in the amount of $56.65. For the reasons outlined above, in the absence of any explanation from Ms Carrington, I cannot be satisfied she used any of these transfers for Clinic purposes.
Transactions with no description
There are some transactions, mainly in September, October and November 2008, in respect of which no description appears in the Clinic records. Dr Gudmundsen said he had no idea what these transactions were supposed to relate to. In the absence of any evidence from Ms Carrington about these transactions I conclude that they were not made for a proper purpose.
Summary
Thus, in summary, my finding is that Dr Gudmundsen is entitled to equitable compensation from Ms Carrington in relation to the funds she transferred from the Business Account to her accounts between 2 July 2008 and 8 August 2011 with the following exceptions: -
(a) The $20,000.00 referred to in paragraphs 68 to71 in respect of the "miscellaneous expenses";
(b) The $44,701.06 referred to in paragraphs 72 to 75 in respect of "Ken drawings";
(c) All of the staff "wage repay" transactions referred to in paragraphs 76 to 82 above;
(d) The transfers in respect of Dr Becker except for the $4,500.00 referred to in paragraphs 83 to 88 above;
(e) The amounts for "stationery and kitchen items" referred to in paragraph 89 above;
(f) The $200.00 for postage referred to in paragraphs 100 and 101 above;
(g) Any transfers which do not fall within the categories of transactions referred to in paragraphs 90 to 116 above.
I direct that Short Minutes of Order be brought in to reflect these reasons.
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Decision last updated: 29 February 2012
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