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

1. 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.

2. 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.

3. 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.

4. 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.

5. At the time of the lottery win the Plaintiff and the Defendant were in a personal relationship which has since come to an end.

6. 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.

7. 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 win being registered in the office of NSW Lotteries in the name of the Defendant.

8. By arrangement between the Plaintiff and Defendant, NSW Lotteries was directed to pay proceeds of the lottery win into a joint account that the parties opened with the Westpac Bank for that purpose.

9. From time to time, including for a short time following the breakdown in their personal relationship, the parties shared proceeds of the lottery win; but, in time, the relationship did come to an end, the Defendant unilaterally closed the joint account, and he began to appropriate proceeds of the lottery win for himself. He nevertheless conducted himself in a manner consistent with an acknowledgment that the proceeds of the win were those of the Plaintiff rather than himself.

10. Because of her personal circumstances, including impecuniosity, the Plaintiff was unable immediately to initiate legal proceedings against the Defendant. Any delay on her part in institution of these proceedings has been explained.

11. The next annual instalment of the lottery win is due to be paid on or about 19 December 2015.

12. The primary relief sought by the Plaintiff is a declaration that she is the sole beneficial owner of the annuity payable by NSW Lotteries in December 2015 and following years, together with an order vesting in her the entitlement to receive those annuity payments from NSW Lotteries, coupled with an order that the Defendant compensate her for lottery proceeds that he has, to date, appropriated to himself without her consent.

13. Upon the evidence adduced in the proceedings, I am satisfied that the Plaintiff is entitled to relief of this character.

14. In calculating her entitlement to equitable compensation for lottery proceeds appropriated by the Defendant to himself, allowances have been made in his favour, and against the Plaintiff, for sums which might arguably have been paid to or retained by him on the basis of acquiescence on the part of the Plaintiff or a belief held by him as to her acquiescence.

15. Viewed in that way, the amount for which the Defendant should compensate the Plaintiff comprises an amount of $36,745, representing part of the annuity paid on or about 19 December 2011; an amount of $7,000, representing part of the annuity paid on or about 19 December 2013; and an amount of $75,000.00, representing the annuity paid on or about 19 December 2014, the sum of which three amounts totals $118,745.

16. The amount to be awarded to the Plaintiff by way of compensation ($118,745) should have added to it the sum of $13,481.65 as an award of pre-judgment interest under s100 of the Civil Procedure Act 2005 (NSW), bringing the total judgment sum to $132,226.65.

17. Accordingly I make the following orders:

1. DECLARE that the Plaintiff is the sole beneficial owner of the entitlement to receive from New South Wales Lotteries Corporation Pty Limited an annuity of $75,000.00 in respect of NSW Lottery ticket number 565-021118-014 drawn on 19 December 2008.

2. ORDER that the entitlement to receive that annuity from New South Wales Lotteries Corporation Pty Limited be vested in the Plaintiff for her own use and benefit.

3. NOTE that, by these orders, the Plaintiff is entitled to give to New South Wales Lotteries Corporation Pty Limited a direction that the annuity payable by the company on or about 19 December 2015 be paid to her or as she may direct.

4. ORDER that the Defendant pay to the Plaintiff the sum of $132,226.65 (representing an award of compensation to the Plaintiff, including interest under s100 of the Civil Procedure Act 2005(NSW), for the Defendant's appropriation of annuity payments referable to the period to date).

5. ORDER that the Defendant pay the Plaintiff's costs of the proceedings.

6. RESERVE to the parties liberty to apply for such, if any, consequential relief as may be necessary in the working out of these orders.

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