Russell and Dunphy v Dunphy - [2023] NSWSC 282

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Russell and Dunphy v Dunphy [2023] NSWSC 282
Hearing dates: 21 March 2023
Date of orders: 28 March 2023
Decision date: 28 March 2023
Jurisdiction: Equity
Before: Hammerschlag CJ in Eq
Decision:
The Summons is dismissed. See [69]-[70]

Catchwords:
CONTRACTS – LOAN – DECEASED ESTATE – where a deceased person is alleged to have lent monies to an adult child – requirements to establish the existence of a contract for loan – existence of loan not established

Legislation Cited:
Evidence Act 1995 (NSW)
Limitation Act 1969 (NSW)

Cases Cited:
Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
Boss Constructions (NSW) Pty Ltd v Rohrig(NSW) Pty Ltd [2019] NSWSC 374
Coshott v Sakic (1998) 44 NSWLR 667
Empirnall Holdings Pty Limited v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8
Fischer v Nemeske Pty Ltd [2015] NSWCA 6
Hampton Court Ltd v Crookes (1957) 97 CLR 367; [1957] HCA 28
Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111; [1930] HCA 26
Joaquin v Hall [1976] VR 788
JP Morgan Australia Ltd v Consolidated Minerals Ltd [2010] NSWSC 100
Ogilvie v Adams [1981] VR 1041
Young v Queensland Trustees Limited (1956) 99 CLR 560; [1956] HCA 51

Category: Principal judgment
Parties: Michelle Catherine Russell (First Plaintiff)
Brent Patrick Dunphy (Second Plaintiff)
Adam Brian Dunphy (Defendant)
Representation:
Counsel:
A Hourigan (Plaintiffs)
A Spencer (Defendant)
Solicitors:
Hedges Legal (Plaintiffs)
McLean & Associates Solicitors (Defendant)

File Number(s): 2022/00286557

JUDGMENT

Elizabeth Anne Dunphy (the Deceased) died on 19 August 2020. Probate of her Will made on 24 August 2018 (the Will) was granted on 7 January 2021.
This dispute is between her three children:

the first plaintiff, Michelle Catherine Russell;

the second plaintiff, Brent Patrick Dunphy; and

the defendant, Adam Brian Dunphy.

In this judgment, I use a person’s first name for convenience. Where I refer to any person by their first name, no disrespect is intended.
Michelle and Brent claim that the Deceased lent Adam $126,913 and they seek a declaration that he owes the amount to the Deceased’s estate. Given that the three of them are equal beneficiaries to the residue under the Will, the maximum respective economic interest of Michelle and Brent in the amount in dispute is $42,304.
Adam is married to Natasha Dunphy. A daughter, Isla, was born in August 2020.
The Deceased was in a de facto relationship with Maris Derrick Taylor. They resided at xxxxxxxxxxx, Freshwater (the Freshwater property) owned by the Deceased. The Deceased was an accountant. She worked from a home office.
Michelle and Brent are the executors of the Deceased’s estate.
To date, there have been no distributions. I was informed from the Bar table that the Freshwater property is unencumbered. There is also a significant amount of cash in the…

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 Russell and Dunphy v Dunphy

Details

AGLC: Russell and Dunphy v Dunphy [2023] NSWSC 282
Case: [2023] NSWSC 282
Decision Date: 28 March 2023

CaseChat Overview and Summary

The case of Russell and Dunphy v Dunphy involved a dispute over a loan that the deceased, Mr Dunphy, was alleged to have made to his adult son, Mr Russell. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Mr Russell, sought to establish that his father had lent him $100,000 before his death. The defendants, the executors of Mr Dunphy's estate, disputed the claim and denied that such a loan existed.

The court was required to determine whether the plaintiff had successfully established the existence of a contract for loan. This involved assessing the evidence provided by the plaintiff to ascertain whether there was an agreement between the parties, whether the agreement was for a loan, and whether the terms of the loan were sufficiently certain. The court also had to consider the onus of proof placed on the plaintiff to establish the loan's existence and whether this burden had been met.

The court found that the plaintiff had not provided sufficient evidence to establish the existence of a loan contract. The evidence presented did not clearly demonstrate that the deceased had intended to make a loan, nor did it establish the terms of any such loan. The court noted that the plaintiff's reliance on oral agreements and the absence of any written documentation made it difficult to conclude that the elements of a loan contract were met. Consequently, the court ruled in favour of the defendants, finding that the plaintiff had not discharged the onus of proof and that the loan did not exist.

The court ordered that the claim be dismissed and that the plaintiff bear the costs of the proceeding. The decision underscored the importance of clear and documented agreements in establishing the existence of a loan, particularly in cases involving deceased parties.

Orders