Mattila v Gardner (No 2) - [2013] NTSC 32

Mattila v Gardner (No 2) [2013] NTSC 32
PARTIES:MATTILA, Allan Michael Jorma
By his litigation guardian
TERESA LATZER
v
GARDNER, Kelvin

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:106 of 2010 (21032189)
DELIVERED:  2 July 2013
HEARING DATES:  4, 5 and 6 June 2013
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS:

ORDER FOR ACCOUNT – Power of attorney – defendant sole signatory on plaintiff’s bank account – monies disbursed from bank account – defendant to account for amounts misappropriated or wrongly disbursed – onus on defendant to explain what happened to money – money not given as change, but instead spent on alcohol and gambling – failure to account for cash cheques and payee cheques disbursements – judgment for plaintiff –falsifications due and payable to plaintiff plus interest.
Powers of Attorney Act (NT) s 11
Glazier Holdings v Australian Men’s Health (No 2) [2001] NSWSC 6; Mattila v Gardner & Anor [2012] NTSC 76
REPRESENTATION:
Counsel:
Plaintiff:A Young
Defendant:A Wrenn
Solicitors:
Plaintiff:Bradley Solicitors
Defendant:Direct brief to counsel
Judgment category classification:   B
Judgment ID Number:  Sou1303
Number of pages:  29

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mattila v Gardner (No 2) [2013] NTSC 32

No. 106 of 2010 (21032189)
BETWEEN:

ALLAN MICHAEL JORMA MATTILA by his litigation guardian
TERESA LATZER

Plaintiff

AND:

KELVIN GARDNER

Defendant

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 2 July 2013)
Introduction

On 28 September 2012 I delivered my Reasons for Decision in Mattila v Gardner and Anor.[1] The judgment involved a number of claims and counterclaims between Mr Mattila and Mr Gardner, including a claim by Mr Mattila that Mr Gardner had breached his trustee and fiduciary obligations to Mr Mattila by withdrawing some of Mr Mattila’s money from the AMJ Mattila – Building Account and using it for Mr Gardner’s own purposes. In the suit for breach of trust and fiduciary obligations, Mr Mattila claimed the sum of $382,857.00 or, in the alternative, an account.
I ordered Mr Gardner to account to Mr Mattila and pay Mr Mattila any amount which is found to have been misappropriated or wrongly disbursed. At the time I delivered my Reasons for Judgment, I also stated that I would hear the parties further about any ancillary orders in support of the order for an account.
On 4 October 2012 I made the following ancillary orders:
1.Mr Gardner on or before 1 November 2012 is to file and serve on Mr Mattila his detailed account verified by his affidavit of all monies disbursed by Mr Gardner and any other person on his behalf from the AMJ Mattila – Building Account in respect of
(a)The amounts specified in par [100] of the Reasons for Judgment delivered 28 September 2012 (the Reasons for Judgment).
(b)The amount of $132,732.05 specified in par [91] and par [107] of the Reasons for Judgment.
2.Direct that such account shall specify in respect of each disbursement the date…

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 Mattila v Gardner (No 2)

Details

AGLC: Mattila v Gardner (No 2) [2013] NTSC 32
Case: [2013] NTSC 32
Decision Date: 2 July 2013

CaseChat Overview and Summary

The case of Mattila v Gardner (No 2) involved a dispute between the plaintiff, Mr Mattila, and the defendant, Mr Gardner. The central issue was whether the defendant, who had been appointed as the plaintiff's attorney under a power of attorney, had misused the plaintiff's funds. Specifically, the dispute centred on the defendant's role as the sole signatory on the plaintiff's bank account, the service station account, and the disbursement of funds from that account. The defendant was required to provide an account of the funds misappropriated or wrongly disbursed, but failed to do so. Instead, the money was spent on personal items, including alcohol and gambling. The defendant also failed to account for certain cash and cheque disbursements, leading to the plaintiff seeking a judgment for the falsifications, along with interest.

The legal issues before the court included determining the extent of the defendant's misappropriation of funds, the applicable interest rate, and the calculation of interest over the relevant period. The court had to consider the onus of proof and whether the defendant had met his burden to explain the whereabouts of the misused funds. Furthermore, the court needed to decide on the appropriate interest rate and period for calculating interest in the event that a sum was found to be due and payable by the defendant to the plaintiff.

The court found that the defendant had misappropriated a total of $160,465.54, with an amount of $126,465.54 due and payable by the defendant to the plaintiff after certain allowances were made. The court also determined that interest at a rate of 4.85 percent over a period of 2.67 years was applicable, amounting to $34,317.22. The court ordered judgment for the plaintiff against the defendant in the sum of $126,465.54 plus interest of $34,317.22. The parties were to be further heard regarding the costs of the proceedings. The court certified that it had taken an account of the sums due to the plaintiff from the defendant as at 2 July 2013, finding that the monthly account from the Berry Springs Caltex Service Station was part of the sums due.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Those questions and answers have to be considered in a context where Mr and Mrs Gardner had used the service station account to acquire items for their own personal use for sometime before Mr Mattila received his inheritance, they had acquired the account because the service station was conveniently located and they used it regularly, and all of the purchases made at the service station after Mr Mattila received his inheritance continued to be made by Mr and Mrs Gardner. Mr Gardner signed the cheques drawn on the AMJ Mattila – Building Account and, prior to the commencement of this proceeding, he did not account to Mr Mattila about expenditure on the service station account.Conclusion I find that there are a total of $160,465.54 in falsifications and that there is an amount of $126,465.54 due and payable (after an allowance of $90,000.00 to Mr Mattila in respect of his claim for damages against Mr Gardner and after allowance of $124,000.00 to Mr Gardner in respect of his cross claim against Mr Mattila) by Mr Gardner to Mr Mattila. Annexed to my Reasons for Decision is a Certificate of Account to this effect. There is also payable by Mr Gardner to Mr Mattila interest in the amount of $34,317.22. Counsel for the parties both agreed on this calculation of interest in the event that $126,465.54 was found to be due and payable by Mr Gardner to Mr Mattila. The applicable rate of interest is the Reserve Bank cash rate from 5 July 2006 to the present. The average rate of interest over that period has been 4.85 percent. The relevant period for the calculation of interest is 2.67 years. I order that there be judgment for Mr Mattila against Mr Gardner in the sum of $126,465.54 plus interest of $34,317.22. I will hear the parties further as to costs. Pursuant to the order made on 11 October 2012 I hereby certify that I have taken an account of the sums due to the Plaintiff from the Defendant as at 2 July 2013 and I find as follows – SUMS DUE TO THE PLAINTIFFItem A Monthly Account Berry Springs Caltex Service Station

Ratio Decidendi

Legal Principle Established

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