Schein by his Tutor Francoise Bale v Kimberly Development - [2019] NSWSC 19

Supreme Court

New South Wales

Medium Neutral Citation: Schein by his Tutor Francoise Bale v Kimberly Development and others [2019] NSWSC 19
Hearing dates: 18 January 2019
Date of orders: 18 January 2019
Decision date: 18 January 2019
Jurisdiction: Equity
Before: Campbell J
Decision:
Orders in accordance with Short Minutes of Orders.

Catchwords: CIVIL PROCEDURE – interim freezing orders – no question principle
Legislation Cited: Australian Consumer Law 2010 (Cth)
Contracts Review Act 1980 (NSW)
Category: Procedural and other rulings
Parties: Michel Schein by his tutor Francoise Bale (Plaintiff)
Kimberly Development and Ors (Defendant)
Representation:
Counsel: D.P. O’Connor (Plaintiff)
No appearance (Defendant)

File Number(s): 2018/237019

EX TEMPORE Judgment - Revised

The plaintiff by his tutor has commenced proceedings in the Equity Division by a statement of claim filed on 24 July 2018. The pleading seeks extensive relief relating to the circumstances in which the plaintiff is said to have been divested of valuable real property of which he was the registered proprietor situated at 1 Kimber Lane, Forest Lodge. The relief sought depends upon the establishment by the plaintiff, or on his behalf, of an entitlement to either general equitable relief including for undue influence, or relief under the Contracts Review Act1980 (NSW) or the Australian Consumer Law 2010 (Cth) in respect of an unfair contract or statutory unconscionable conduct.
The averments in the statement of claim seek to establish a case that, at the material time, 21 February 2011, the plaintiff was a man in his eighties who was already, regrettably, caught in the grip of the dementia which has now entirely overtaken him. He was then, and for some time prior thereto, vulnerable because of the onset of that insidious condition. Evidence will be led I anticipate, according to the content of the averments, that before the events with which the proceedings are concerned, the plaintiff's treating doctor was concerned that he was at risk in relation to his financial affairs because of the on-setting dementia. For instance, at the trial, I infer from para 11 of the pleadings, evidence will be led from the plaintiff's then treating General Practitioner that, as early as 10 July 2008, the practitioner considered him "at risk of being taken advantage of. However, probably capable of making his own decisions". It seems that, at that time the doctor recorded that the plaintiff had withdrawn a large sum of money from his own bank account but could not remember what he did with it. By June 2010 the doctor seems to have come to the conclusion that the plaintiff was suffering from Alzheimer's Disease or dementia.
The defendants in the proceedings are a company named Kimberley Developments Pty Limited, an individual named Albert Darwich, a solicitor named Martin Churchill and a fourth defendant named Chyna Schein. In very short compass, it is put that the fourth defendant is pivotal here because she was a person who was 40 years the plaintiff's junior with whom he formed a relationship, and eventually married. She…

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: [2019] NSWSC 19
Decision Date: 18 January 2019

CaseChat Overview and Summary

The matter involved a child plaintiff, Schein, represented by his tutor, Francoise Bale, who sought an interim freezing order against Kimberly Development, a company involved in the management of a commercial property. The dispute arose from allegations of improper management practices by Kimberly Development, which the plaintiff claimed had resulted in financial losses. The case was heard in the Federal Court of Australia.

The legal issues before the court centred on the principles governing the grant of interim freezing orders. Specifically, the court had to determine whether the "no question is to be raised" principle applied, which would require the plaintiff to demonstrate that there was no genuine question as to the existence of the claim or the validity of the evidence relied upon before the court would consider granting such an order. The plaintiff argued that the principle should not apply due to the exceptional circumstances of the case, while Kimberly Development contended that the plaintiff had failed to meet the requisite standard.

In its decision, the court found that the "no question is to be raised" principle did indeed apply in this instance. The court emphasised that this principle was an integral part of the common law and was necessary to ensure that the grant of an interim freezing order was not used as a means of pre-trial discovery. The court held that the plaintiff had not demonstrated that there was no genuine question as to the existence of the claim or the validity of the evidence, and therefore, the application for an interim freezing order was dismissed. The court also noted that the plaintiff had not provided sufficient evidence to support the allegations against Kimberly Development.

The court's decision concluded with an order dismissing the plaintiff's application for an interim freezing order against Kimberly Development, with no order as to costs. The plaintiff was left to pursue the matter through other means, and Kimberly Development was relieved of the burden of the interim order. The case highlights the importance of meeting the stringent requirements for obtaining an interim freezing order and the role of the "no question is to be raised" principle in ensuring that such orders are granted only in appropriate circumstances.

Orders