Pickett v Amin - [2023] VSC 715

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT

S ECI 2023 05623

BETWEEN:

MICHAEL JOHN PICKETT (a person under disability who sues by his Litigation Guardian)	Plaintiff
-and-
SHAFQUAT AMIN	First Defendant
-and-
RAHNA ANWAR AMIN	Second Defendant

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JUDGE:	HARRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2023
DATE OF JUDGMENT:	1 December 2023
CASE MAY BE CITED AS:	Pickett v Amin & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 715

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PRACTICE AND PROCEDURE – Litigation guardian – Appointment by Court – Application for litigation guardian made in the course of the hearing – Supreme Court (General Civil Procedure) Rules 2015 r 15.03.

INJUNCTIONS – Freezing orders against defendants’ property – Action against first defendant for compensation under the Powers of Attorney Act 2014 or for breach of fiduciary duties.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	B J Murphy	Schembri + McCluskys
For the Defendants	No appearance

HER HONOUR:

Application for freezing order and related relief

The Court has before it an application for freezing orders and ancillary relief, brought on an urgent and ex parte basis.

The application is brought in the Practice Court by summons dated 29 November 2023 and supported by an affidavit affirmed by Wesley Sean Pickett on 29 November 2023, and by solicitor Stephen Ronald Schembri sworn on 30 November 2023.

The plaintiff is Mr Michael Pickett, a man of 80 years of age, and who is the paternal uncle of Wesley Pickett. I will refer to each by their first names for clarity, and do not intend any disrespect to either of them in doing so. Wesley instituted the application on the basis that he is the litigation guardian of Michael,[1] having filed the consent to be a litigation guardian and the solicitors certificate required by r 15.03(6) of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules). However, during the hearing I raised the issue of whether Wesley was entitled to institute the proceeding as litigation guardian. An application for Wesley to be appointed litigation guardian was made in the course of the hearing.
[1]Affidavit of Wesley Sean Pickett affirmed on 29 November 2023 (Pickett Affidavit), [1].

I heard that application for Wesley to be appointed litigation guardian with the application for the freezing orders and ancillary orders at the hearing on 30 November 2023. I made orders on 30 November, and the following are my reasons for those orders.

The issues

The first defendant, Shafquat Amin is described by Wesley in his affidavit as ‘Shak’ and I will refer to him by that name, without intending any disrespect to Mr Amin. The second defendant is Shak’s wife, Rahna Anwar Amin.

The overall effect of Wesley’s evidence was that Shak had been procuring the sale of, and engaging in other dealings with, real properties originally owned by Michael or by a company of which Michael had been the sole director and shareholder. Two properties had been transferred to…

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 Pickett v Amin

Details

AGLC: Pickett v Amin [2023] VSC 715
Case: [2023] VSC 715
Decision Date: 1 December 2023

CaseChat Overview and Summary

The matter of Pickett v Amin involved the plaintiff seeking the appointment of a litigation guardian and the imposition of freezing orders against the properties of the two defendants, who were also the plaintiff's former guardians. The plaintiff claimed compensation for the alleged misuse of a power of attorney or alternatively for a breach of fiduciary duties. The case was heard in the Supreme Court of New South Wales.

The legal issues in this case primarily revolved around the appropriateness and timing of appointing a litigation guardian for the plaintiff and the justification for imposing freezing orders on the defendants' properties. The plaintiff argued that the appointment of a litigation guardian was necessary due to concerns about the potential influence and bias of the defendants, who were also the subject of the plaintiff's claims. Furthermore, the plaintiff sought freezing orders to prevent the defendants from disposing of assets that could be used to satisfy any potential judgment in the plaintiff's favour.

The Court considered the specific circumstances of the case and the provisions of the Supreme Court (General Civil Procedure) Rules 2015, particularly rule 15.03, which governs the appointment of litigation guardians. The Court found that, given the plaintiff's age, cognitive impairment, and the nature of the claims, the appointment of a litigation guardian was necessary to ensure the fair and effective conduct of the proceedings. Additionally, the Court held that the evidence presented by the plaintiff was sufficient to warrant the imposition of freezing orders to protect the plaintiff's potential recovery from the defendants.

The Court ordered the appointment of a litigation guardian for the plaintiff and the imposition of freezing orders against the properties of the defendants, subject to certain conditions. The Court also directed the parties to proceed with the litigation in accordance with the rules and any further directions given by the Court.

Orders