Risa Gall v Andrew Minh Luan Pham - [2015] NSWSC 1710

Supreme Court

New South Wales

Medium Neutral Citation: Risa Gall v Andrew Minh Luan Pham [2015] NSWSC 1710
Hearing dates: 13 November 2015
Date of orders: 13 November 2015
Decision date: 13 November 2015
Jurisdiction: Equity
Before: Lindsay J
Decision:
Declaration that the plaintiff is beneficially entitled to the proceeds of a lottery win, with consequential relief

Catchwords: EQUITY - Equitable remedies – Declaration and vesting order - Equitable compensation - Plaintiff entitled to equitable relief for defendant’s appropriation of lotteries win – Plaintiff sole beneficial owner of annuity payable by NSW Lotteries
GAMBLING AND LIQUOR – Gambling regulation and offences – Lotteries – Agreements relating to lottery tickets and prizes – Personal relationship between parties – Arrangement for payment of proceeds into joint account – Breakdown of personal relationship – Determination of beneficial entitlement to lottery proceeds
Legislation Cited: Civil Procedure Act 2005 (NSW),
Cases Cited: -
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Risa Gall
Defendant: Andrew Minh Luan Pham
Representation: Counsel:
Plaintiff: B Le Plastrier with JA Granger
Solicitors:
Plaintiff: Turner Freeman Solicitors

File Number(s): 2015/00132068

Judgment – EX TEMPORE

The Plaintiff seeks declaratory and consequential relief to establish, as against the Defendant, that she is beneficially entitled to the proceeds of a lottery win that provided for the winner to receive an annuity in the sum of $75,000.00 for 15 years, commencing on 18 December 2009.
Despite substantial endeavours on the part of the Plaintiff's solicitors to serve on the Defendant notice of the proceedings (including the Plaintiff's Statement of Claim, notice of the listing of the proceedings for final hearing today and the Court Book relied upon by the Plaintiff at the final hearing), the Defendant has not at any time appeared in the proceedings.
I am satisfied that the Plaintiff has complied with orders made by the Court for substituted service on the Defendant of notice of the proceedings, including notice of the listing for final hearing. I accept that the Defendant has had reasonable notice of the pendency of the proceedings, in fact.
At the direction of the Court, notice of the proceedings has been given to New South Wales Lotteries Corporation Pty Limited (“NSW Lotteries”), the administrator of the Plaintiff's lottery win. That company, through solicitors, has formally confirmed that it will abide the Court's determination of the proceedings.
At the time of the lottery win the Plaintiff and the Defendant were in a personal relationship which has since come to an end.
The winning lottery ticket, in respect of the NSW Lotteries product known as "Win For Life", drawn on 19 December 2008, was purchased by the Defendant as a gift for the Plaintiff.
Because the Plaintiff, at that time, had but a limited right of residence in New South Wales and she was apprehensive about practicalities associated with receiving the annuity; because she was, at that time, expecting that she and the Defendant would remain in their relationship; and because she trusted him, the Plaintiff acquiesced in the lottery…

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: [2015] NSWSC 1710
Decision Date: 13 November 2015

CaseChat Overview and Summary

The plaintiff, Risa Gall, sought equitable relief from the Federal Court of Australia against Andrew Minh Luan Pham, her former partner, for his appropriation of her lottery winnings. Pham was ordered to pay equitable compensation to Gall. The plaintiff claimed that she was the sole beneficial owner of an annuity payable by NSW Lotteries and that Pham was not entitled to any of the proceeds. The court had to determine whether Pham was a beneficial owner of the annuity and if Gall was entitled to equitable relief for the defendant’s appropriation of the lottery win.

The court considered whether Pham had any beneficial interest in the lottery proceeds. It was established that the plaintiff and defendant had a personal relationship and had an arrangement to pay the proceeds of the lottery into a joint account. However, the relationship deteriorated, and the defendant began to assert ownership of the lottery proceeds. The court had to decide whether Pham had a beneficial interest in the annuity and whether Gall was entitled to equitable relief for the defendant's appropriation of the lottery win. The court also considered whether the plaintiff was entitled to equitable compensation for the defendant's actions.

The court found that Pham was not a beneficial owner of the annuity. It held that the plaintiff was the sole beneficial owner of the annuity payable by NSW Lotteries. The court further held that the plaintiff was entitled to equitable relief for the defendant's appropriation of the lottery win. The court ordered Pham to pay equitable compensation to Gall for his appropriation of her lottery winnings. The court determined that the plaintiff was entitled to a declaration that she was the sole beneficial owner of the annuity, and that Pham had no beneficial interest in it. The court also ordered that the annuity be vested in the plaintiff.

The final orders included a declaration that the plaintiff was the sole beneficial owner of the annuity, vesting the annuity in the plaintiff, and ordering Pham to pay equitable compensation to Gall for his appropriation of her lottery winnings. The court held that Pham was not a beneficial owner of the annuity and that the plaintiff was entitled to equitable relief for the defendant's appropriation of the lottery win.

Orders