Singer v Spiewak
[2018] VSC 521
•10 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS EQUITY AND PROBATE LIST
S CI 2017 02409
| MARGO SINGER (who sues on behalf of the estate of Thomas Spiewak, deceased) | Plaintiff |
| v | |
| GRAZYNA SPIEWAK | First Defendant |
| MARCIN SPIEWAK | Second Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February 2018 and 30 August 2018 |
DATE OF JUDGMENT: | 10 September 2018 |
CASE MAY BE CITED AS: | Singer v Spiewak and anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 521 |
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PRACTICE AND PROCEDURE – Application for summary judgment on basis that defences to breach of fiduciary duty by an attorney have no real prospect of success – Defences not fanciful – Summary judgment refused – In the alternative, in the exercise of discretion the case should go to trial – Civil Procedure Act 2010 (Vic) ss 63 and 64.
ENDURING POWER OF ATTORNEY – Attorney executed transfer of deceased’s home into the name of the deceased jointly with their son – Surplus proceeds of sale of deceased’s prior home largely distributed to attorney and their son – Attorney and son allege that the deceased gave oral instructions for these transactions – Not alleged by the plaintiff that the deceased lacked capacity to do so – Plaintiff claims that the attorney acted in breach of her fiduciary duty to the deceased – Various defences alleging that the transactions fell outside the scope of the duty or the deceased gave informed consent – Held that defences not fanciful – Powers of Attorney Act2014 (Vic) ss 1, 42, 63, 64, 65.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Newton | Maurice Blackburn Lawyers |
| For the First and Second Defendants | Mr J Rizzi | Savage & Co Pty Limited |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Outline of the facts............................................................................................................................. 1
Plaintiff’s claims............................................................................................................................... 10
Applicable law.................................................................................................................................. 11
Summary judgment.................................................................................................................... 11
Breach of fiduciary obligation................................................................................................... 13
Powers of Attorney Act 2014 (Vic)............................................................................................... 16
Issues and submissions................................................................................................................... 20
Plaintiff......................................................................................................................................... 20
Defendants................................................................................................................................... 22
Consideration.................................................................................................................................... 25
Orders................................................................................................................................................. 27
HER HONOUR:
Introduction
The plaintiff seeks summary judgment in her favour in respect of some of the aspects of her claim. The application was first argued before me on 22 February 2018 and was adjourned on that day, part way through the defendants’ submissions, after the parties reached an in principle agreement for the whole proceeding. The application came before me for further hearing on 30 August 2018 after the settlement agreement broke down. By agreement, the hearing resumed at the point at which it had concluded i.e. part way through the defendants’ submissions. The plaintiff did not rely on any substantive evidence - her submission is that the defendants’ have no real prospect of success even on their own evidence. The defendants rely on four affidavits - one sworn by each defendant, and two from the firm of solicitors who acted on the sale and purchase the subject of the application.
I have concluded that summary judgment should not be given, and so it is not appropriate for me to express my views on the evidence or legal submissions before me in much detail. Unless the dispute is resolved by agreement, it will go to trial and the affidavit evidence to date will need to be assessed in the context of any further evidence given, and cross examination. However, I do think it helpful to set out some aspects of the evidence and how the application was argued before me, and to identify the way I have approached the determination of the application.
Outline of the facts
The parties agree in their pleadings on many of the underlying facts. Where the facts are not agreed on the pleadings, the plaintiff concedes that I should approach this application on the basis that the defendants will be able to prove the evidence on affidavit in their case at trial. The affidavits sworn by each of the defendants are lengthy and dense. I set out below only an outline of their evidence.
The plaintiff (Margo) is the daughter of Tomasz Spiewak (Mr Spiewak) (described in the title to the proceedings as Thomas Spiewak) by his first marriage. The defendants are respectively Mr Spiewak’s second wife (Grazyna) and his son by that marriage (Marcin, but known as Martin). Margo and Martin are the only children of Mr Spiewak, who died on 7 February 2017 at the age of 80 years. Mr Spiewak and Grazyna were divorced when Martin was a child (on Grazyna’s evidence in 1990, when Martin was nine; on Martin’s evidence when he was about four),[1] but each of Grazyna and Martin depose that Mr Spiewak and Grazyna remained on good terms and saw each other regularly. They also depose that as Mr Spiewak aged, he called on Grazyna for help when required, and that his reliance on her increased from early 2014 as his health deteriorated.
[1]Affidavit of Grazyna Spiewak sworn 22 December 2017 (Grazyna’s Affidavit) [3]; Affidavit of Martin Spiewak sworn 22 December 2017 (Martin’s Affidavit) [2].
By his last will, dated 25 January 2016 (Will), Mr Spiewak appointed Martin to be his executor and gave his estate equally to Margo and Martin. Mr Spiewak’s only substantial asset as of the date of his Will was the home in which he lived and of which he was the sole registered proprietor, situated at and known as 5 Jackson Avenue, Mont Albert North (Jackson Avenue). In late 2016, Jackson Avenue was sold and the bulk of the proceeds of the sale applied to the purchase of another property situated at and known as 213/12‑14 Dickens Street, Elwood (Dickens St). Dickens St was acquired in the names of Mr Spiewak and Martin as joint tenants. Accordingly, on Mr Spiewak’s death the Dickens St property became the sole property of Martin. The balance proceeds of the sale of Jackson Avenue were distributed principally to Martin and to a lesser degree to the first defendant, Grazyna. As a consequence of the manner of dealing with the sale of Jackson Avenue and purchase of Dickens St, there is no dispute that the estate had no substantial assets as at the date of Mr Spiewak’s death.
Martin did not seek a grant of probate of Mr Spiewak’s estate, presumably because there were no appreciable assets. Margo sues on behalf of the estate, but has not sought any Court order appointing her in that capacity. If she is successful and orders made for the return of assets to the estate, an appointment of an administrator or executor for the estate will be required.
The transfer that placed Dickens St into the joint names of Mr Spiewak and Martin was not signed personally by either of them as transferees. It was signed on behalf of each of them by Grazyna. Mr Spiewak granted Grazyna an enduring power of attorney (financial), operative immediately, on 6 July 2016 (Enduring POA). At that time he was in hospital, having fallen at Jackson Avenue and become unconscious. Dickens St was apparently purchased by contract dated 5 August 2016.[2] According to Grazyna’ evidence, Mr Spiewak had moved from Box Hill Hospital to a transitional care facility shortly before, on 1 August 2016.[3] Grazyna’s evidence is that she described Dickens St to Mr Spiewak and discussed its purchase with him prior to the contract being signed. Her evidence is that he said to her ‘Please purchase the property on my behalf’.[4]
[2]The contract is not in evidence, but this is the date pleaded in the Defence and was not disputed before me.
[3]Grazyna’s Affidavit [35].
[4]Ibid [36].
The contract is not before me, but given Grazyna’s evidence, and evidence from the solicitors who acted on the sale and purchase, I infer that the contract did not contain explicit reference to Martin as a joint purchaser. The purchase price was $675,000.
Jackson Avenue was sold on 13 September 2016 for $860,000. It is admitted on the pleadings that the sale was effected by Grazyna on behalf of Mr Spiewak pursuant to the Enduring POA.[5] On Grazyna’s evidence, Mr Spiewak was in the transitional care facility until 25 October 2016.[6]
[5]Statement of Claim and Defence, each at [14].
[6]Grazyna’s Affidavit [52].
The sale of Jackson Avenue and the purchase of Dickens St both settled on 11 November 2016. The parties agree on their pleadings that on 1 November 2016, Martin granted Grazyna, his mother, a power of attorney.[7] The power of attorney is not before me, and the evidence is not explicit as to whether Martin signed it in Melbourne, or overseas. On Martin’s evidence, he largely lived in Thailand from January 2011. He visited Melbourne once or twice a year, seeing his father during those visits, and spoke to him on the telephone regularly. His father visited him in Bangkok twice, once in 2011 and once in 2013.[8] Martin returned to Melbourne in the period 16 July 2016 to 24 July 2016. As noted earlier, Mr Spiewak had been admitted to hospital on 4 July 2016. Martin deposes to a number of conversations with his father about the sale of Jackson Avenue and the purchase of another home, more suitable to his physical needs, during the July visit. On one of those occasions, on 23 July 2016, Mr Spiewak signed a document that is exhibited to Martin’s affidavit. The document states, amongst other things, that Mr Spiewak agreed to sell Jackson Avenue to buy a unit in the St Kilda/Elwood area ‘for me to settle’ (after renting an apartment in that area first if required).[9]
[7]Statement of Claim and Defence, each at [11].
[8]Martin’s Affidavit [5]-[6].
[9]Exhibit MS-1 to Martin’s Affidavit.
Martin deposes to telephone conversations with his father after he returned to Thailand, but does not say that he visited Melbourne again after July 2016 prior to his father’s death. It is open to infer from his evidence that he did not,[10] which would suggest that he did not sign the power of attorney he granted to his mother in Melbourne.
[10]Martin’s Affidavit [31].
Grazyna’s evidence is that on the same day that Mr Spiewak said he wished to purchase Dickens St for his new home (which on her evidence was ‘on or about 3 August 2016’)[11] she and he had a conversation about the balance of the sale proceeds from Jackson Avenue, after the purchase of Dickens St. At that time, they estimated that Jackson Avenue would be sold for $900,000. On that basis, given the purchase price of Dickens St would be $675,000 the difference would have been $225,000. From this, on Grazyna’s evidence, they deducted various costs and expenses. Grazyna does not depose that they calculated the balance figure, but on the evidence she does give of their discussions the excess sale proceeds would have been in the order of $156,650. She deposes that Mr Spiewak said certain things about how he wished these funds to be applied, which included statements about payments to be made to Martin and payments to her. The payments to Grazyna were, according to her evidence, to be reimbursement to her of $1,000 for Martin’s engagement rings; payment to her of $5,000 as compensation for the time she had spent with Mr Spiewak and work lost; and interest on the money she lent him for the deposit of $67,500.00 for Dickens St.[12]
[11]Grazyna’s Affidavit [36].
[12]Ibid [38]-[40].
Grazyna deposes that she contacted Mr Jack Cyngler, of Cyngler Kaye Levy Lawyers, who acted on the purchase of Dickens St (and the sale of Jackson Avenue) ‘on or around 3 or 4 August’ and told him about the money that Mr Spiewak said he wanted to give her. As a consequence of Mr Cyngler’s reply, Grazyna visited Mr Spiewak ‘again’ and told him that Mr Cyngler needed him to confirm that he wished to make that payment.[13] Her evidence is that Mr Spiewak agreed to do so, and also told her in the same conversation that he wished Martin to be a joint proprietor on the Dickens St title.[14] Her evidence is:
Tomek said:
OK, I will speak to him. I have also decided that I want Martin as joint proprietor on the Dickens Street title as if I am required to move into a nursing home on a permanent basis, it would be easy for Martin to sell the property and arrange for a bond in case he needs to do this for me. I know the property would be 50% in Martin’s name, and he would be entitled to half of the proceeds of the house, but I have spoken with Martin, who has promised to help me financially in the future.
[13]Ibid [41].
[14]Ibid.
Grazyna then rang Martin and Mr Cyngler and told each of them that Mr Spiewak had requested that the Dickens St house be put in both names. She rang Mr Cyngler in the presence of Mr Spiewak, and handed Mr Spiewak the telephone so that he could speak to Mr Cyngler.
Martin and Mr Cyngler each give evidence of a conversation with Grazyna ‘on or about 5 August 2016’ to the effect that Mr Spiewak wished to place the Dickens St property in his and Martin’s name jointly.[15] Martin deposes that his mother also told him that she and Mr Spiewak would cover his wedding expenses, and give him and his wife to be a wedding gift of $22,000. He deposes that ‘sometime in the following week’ he rang his father and words were said to the following effect:
[15]Martin’s Affidavit [26] and affidavit of Jack Cyngler affirmed 22 December 2017 (Mr Cyngler’s Affidavit) [2].
Dad said:
I would like Dickens Street to be in our joint names, as I want you and May to spend as much time with me as possible, even potentially living with me when you need. This means you would be the sole owner after I pass away. I also want the property to be in your name so no one can pressure me into a decision I have to make in the future without your protection and approval.
I said:
This really isn't necessary, dad, as we (my mother, May and me) would gladly look after you in any case. However, if that is your decision I am fine with it, and I will respect your wishes and make sure you are protected. Thank you as well for the wedding and engagement gifts.
Dad said:
You're welcome Martin, god bless you.[16]
[16]Martin’s Affidavit [27].
Mr Cyngler’s evidence is that Grazyna told him that she had signed the contract on behalf of Mr Spiewak; Mr Spiewak had told her that he wished Martin and him to be joint proprietors; and she had spoken to Mr Spiewak about being compensated in the sum of $5,000 for her time off work assisting him. Mr Cyngler deposes that Grazyna passed the telephone to Mr Spiewak, and he then had a conversation with Mr Spiewak (who he calls ‘Tomek’) in which the following words were said:
Tomek said:
I want Dickens Street to be in both mine and Martin's names as joint proprietors.
I said:
OK, but you must be aware that as a joint proprietor the survivor will take the whole property upon the death of the other. Therefore, this property would not form part of your estate.
Tomek replied:
I understand. That's what I want. I also want Grazyna to get $5000 which she had requested for her time lost for assisting me with my health and the clean-up for the sale of Jackson Avenue and with regard to the purchase of Dickens Street.[17]
[17]Mr Cyngler’s Affidavit [3].
Mr Cyngler does not depose to any other conversation with Mr Spiewak before the transfer of Dickens St to him and Martin as joint proprietors. Grazyna executed the transfer as attorney for each of them, apparently in each instance witnessed by Mr Cyngler.[18] As noted, it appears that Martin was in Thailand at this time, but there is no evidence as to whether or not Mr Spiewak could have signed the transfer personally. At this time he was already living in Dickens St, on licence.
[18]Exhibit DS-6 to the affidavit of Dana Smart sworn 22 December 2017.
Mr Cyngler deposes to a conference with Mr Spiewak at his offices at which Mr Spiewak was accompanied by a family friend on or about 22 December 2016 i.e. after the settlement of the purchase of Dickens St in joint names. At that conference, Mr Cyngler’s evidence is that he ‘read slowly through’ (the inference may be that he read aloud to Mr Spiewak but this is unclear) the fi`nal letters to Mr Spiewak relating to the sale of Jackson Avenue and purchase of Dickens St and gave copies of certain documents to Mr Spiewak. His evidence is that he had a conversation with Mr Spiewak in these terms:
I said:
If you die before Martin, he will take the whole share of the interest in the property and it will no longer form part of your estate.
Tomek said:
I am happy with this and your explanation. I am happy with the documents and the cheques.[19]
[19]Mr Cyngler’s Affidavit [6].
Grazyna refers to Mr Cyngler in her evidence as ‘our solicitor’.[20] Mr Cyngler had prepared the Will for Mr Spiewak in January 2016, by which Mr Spiewak left his estate to Margo and Martin in equal shares. He also prepared the Enduring POA granted by Mr Spiewak to Grazyna on 6 July 2016. Each of those documents is in evidence,[21] and bears Mr Cyngler’s signature as a witness. I proceed on the basis that Mr Cyngler had met Mr Spiewak at least twice before he spoke to him on the telephone while Grazyna was present on 5 August 2016.
[20]See, for example, Grazyna’s Affidavit [41] and [43].
[21]They were put into evidence at my request, without objection, and are marked Exhibits A and B respectively.
The defendants also rely on an affidavit of Dana Smart, a law clerk at Cyngler Kaye Levy Lawyers. She deposes that she sent a transfer of land to the solicitors for the vendors of Dickens St on 16 August 2016 for signature by the vendors. The transferee on that transfer was Mr Spiewak solely. Ms Smart says that she had not been instructed at that time to include Martin as a joint transferee. She deposes that she became aware that he was to be a proprietor as a result of a telephone call from Grazyna to their receptionist on 26 October 2016. She contacted the solicitors for the vendors asking them to include the second transferee, Martin, on 2 November 2016.
Martin deposes to one further conversation with Mr Spiewak after their conversation in early August 2016 about the allocation of the excess sale proceeds of Jackson Avenue. On his evidence, that telephone conversation took place on or about 26 October 2016, after Mr Spiewak had moved into Dickens St on licence, in the course of which the following was said:
Dad said:
I want you to look after the excess funds from the sale of the house, which should be over $100,000. I asked your mum to transfer the amount to your bank account on my behalf, which you had set-up for me when I wanted to purchase the Mitford street property. The money is for half of your wedding expenses, plus your engagement gift of $11,000.00 from me, and I also want to help you with a deposit for your house once you return to Melbourne in 2017 with May, which you can use the remainder of the funds for.
I said:
Thank you so much for helping me, dad.
Dad said:
I wish you and May all the best and god bless you both. Thank you for looking after me so well. I look forward to your return so we can spend more time together. But there is a chance I may need to move into a care home in the future. If this is the case, and need to sell the house, can you please make sure that I can have the entire proceeds from the sale of the house to make the payment?
I said:
Yes dad of course. It is your money. And don't worry, I will always help you in the future. Mum is really doing most of the help for you, so it might be nice if you give her some money as well to cover her expenses.
Dad said:
That won't be a problem. I want to give your mother $5,000 to upgrade her economy flight, as she is very sick, and I am worried she won't be able to attend your wedding. I want her to be comfortable.
I said:
Thank you dad, I will tell her.[22]
[22]Martin’s Affidavit [30].
Grazyna deposes to conversations with Mr Spiewak about the cost of supported accommodation if he needed to move out of Dickens St and three more conversations about his reasons for wishing Dickens St to be in the joint names of him and Martin and the distribution of the excess proceeds of sale.[23] Those conversations took place on her evidence around the middle of August 2016,[24] on 26 October 2016,[25] and on or about 19 November 2017 (sic- presumably this is meant to be 2016).[26]
[23]Grazyna’s Affidavit [44]-[47]
[24]Ibid [45]- [47].
[25]Ibid [58]-[60].
[26]Ibid [64]-[65].
The excess proceeds of the sale of Jackson Avenue, after the purchase of Dickens St, were in the sum of $121,963.50. They were distributed as follows: [27]
[27]Letter dated 18 November 2016 from Cyngler Kaye Levy Lawyers to Mr Spiewak being part of Exhibit JC-1 to Mr Cyngler’s Affidavit.
To Mr Spiewak
$7,000
To Grazyna
$6,683.05
To Martin
$108,280.45
In addition to the portion of the proceeds of sale paid to her, the defendants agree that in the period September to December 2016 Grazyna withdrew $33,645.04 from Mr Spiewak’s bank account as his attorney.[28] The defendants plead that these withdrawals were made with Mr Spiewak’s express permission.[29] Grazyna gives evidence that she met many expenses for Mr Spiewak initially from her own resources, and later reimbursed herself with cash withdrawn from his account with Mr Spiewak’s full knowledge and consent.[30] She sets out a detailed list of expenses she incurred on behalf of Mr Spiewak from 2 September 2016 to 9 December 2016, which total $36,392.87.[31]
[28]Statement of Claim and Defence, each at [26].
[29]Defence [27].
[30]Grazyna’s Affidavit [54].
[31]Ibid [55]-[56].
Plaintiff’s claims
In her statement of claim, the plaintiff alleges that, in so far as Grazyna signed the transfer of Dickens St into Martin’s name as joint tenant with Mr Spiewak, she acted in breach of her fiduciary duty to Mr Spiewak as his attorney.[32] The plaintiff makes the same allegation in respect of the payments from the excess proceeds of sale to Grazyna and to Martin, and the withdrawals from Mr Spiewak’s bank account.[33]
[32]Statement of Claim [29].
[33]Ibid [31], [33] and [35].
In addition, or in the alternative, the plaintiff alleges that it would be unconscionable for the transfer into Martin’s name as joint tenant to stand, and for the defendants to retain the benefit of the payments to them from the excess sale proceeds and the withdrawals. This alternative cause of action asserts that Mr Spiewak was in a position of special disadvantage viz a viz Grazyna.
As a third additional or alternative cause of action, the plaintiff alleges that the acquisition of Dickens St, the payments to the defendants, and the withdrawals were not authorised by Mr Spiewak and so are liable to be set aside. Finally, the plaintiff asserts that Grazyna has taken possession of Mr Spiewak’s motor vehicle without his permission.
In this application, the plaintiff relies only on alleged breach of fiduciary duty in respect of the transfer of Dickens St into Martin’s name as joint proprietor, the payments made to the defendants from the proceeds of sale of Jackson Avenue, and the withdrawals from Mr Spiewak’s bank account. She does not rely on the alternative causes of action of special disadvantage, or lack of authorisation, and does not seek summary judgment in respect of the motor vehicle. The document signed by Mr Spiewak on 23 July 2016 contains a statement that he gives his car to Martin.[34]
[34]Exhibit MS-1 to Martin’s Affidavit.
In this application, the plaintiff seeks the relief lettered B and C in her statement of claim, and foreshadows that if she is successful in obtaining summary judgment she will seek to be appointed administrator of the estate and obtain the consequential relief lettered D, E, and F. The relief lettered B seeks a declaration that the transfer of Dickens St is invalid insofar as it transfers that property to Martin as a joint proprietor with Mr Spiewak. The relief lettered C seeks a declaration that Martin holds Dickens St unencumbered on trust for the estate of the deceased. The consequential relief lettered D seeks an order that Martin transfer Dickens St unencumbered to Mr Spiewak’s estate. The consequential relief lettered E and F seeks repayment to the estate by Martin and Grazyna respectively of the amounts received by them from the balance proceeds of sale. The plaintiff agrees that these orders would first require the appointment of an executor or administrator for the estate. The plaintiff does not seek in this application the orders for an account by Grazyna of her administration of Mr Spiewak’s financial affairs that are lettered I and J, or any of the other consequential or alternative relief lettered K-N.
Applicable law
Summary judgment
The plaintiff seeks summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (CPA) and r 22 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules). Section 63, which confers the power to grant summary judgment, is qualified by s 64, which confers a residual discretion to refuse summary judgment in certain circumstances. Those sections relevantly provide as follows:
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
…
64 Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
The test for summary dismissal was formulated by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (Lysaght).[35] The majority of the Court, Warren CJ and Nettle JA, held that the test is whether the respondent to the application, here the defendants, has a ‘real’ as opposed to a ‘fanciful’ chance of success. The majority described the test as being ‘to some degree a more liberal’ test than the previous test, which required the applicant to show that the respondent’s case was hopeless, or bound to fail. They cautioned, however, that ‘the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried’.[36]
[35](2013) 42 VR 27.
[36]Ibid [35].
In Mandie v Memart Nominees Pty Ltd (Mandie)[37] the Court of Appeal affirmed the Lysaght test i.e. that ‘no real prospect of success’ means a fanciful prospect of success. The Court was directed to authorities that preceded the CPA, and language that was employed by members of the Court of Appeal to explain the test in Utility Services Corporation Ltd v SPI Electricity Pty Ltd (Utility Services).[38] In that case, in overturning the decision of a trial judge to refuse a pleading amendment, Dixon AJA, who delivered the leading judgment, endorsed the ‘no real prospect of success’ test in s 63 of the CPA describing the proposed pleading as one which was not ‘fanciful or futile’.[39] The other two members of the Court allowed the amendments on the basis that they were ‘arguable’, or ‘not unarguable’.[40] The applicant in Mandie argued that the correct test is whether a proposed amendment (or here, a proposed defence) is not arguable, fanciful or futile, and it is clear that it gives rise to no real question to be tried. The Court of Appeal affirmed that the test is ‘no real prospect of success’, in the sense of being fanciful. Their reasoning does suggest, however, that they considered the various other words used in Utility Services to be essentially to the same effect as ‘fanciful’. The Court reiterated that the CPA has ‘changed the litigation landscape’ and that older authorities which preceded the CPA must be approached with caution.[41]
[37][2016] VSCA 4 (Mandie).
[38](2012) 35 VR 628.
[39]Ibid 641 [48].
[40]Respectively, Beach AJA at [8] and Bongiorno JA at [1].
[41]Mandie [42].
Summary judgment will more readily be given where the resolution of the dispute turns on a question of law, rather than on a question of fact.[42] In Re Demediuk, McMillan J held that ‘(W)here the prospects of success at trial involve a consideration of the evidentiary foundation of a claim, as opposed to the adequacy of a pleading, it is desirable that there should be a full trial of the claims’.[43] That case concerned allegations of testamentary undue influence. Her Honour found that the defendants who made those allegations had no real prospect of success on their current evidence, but exercised the s 64 discretion to refuse summary judgment for the plaintiff, and require a full trial.
[42]Mutton v Baker & anor [2014] VSCA 43 [19] (Santamaria JA).
[43][2016] VSC 587 [18] (McMillan J) (Re Demediuk).
Breach of fiduciary obligation
The parties agree that an attorney is a fiduciary of his or her principal. Fiduciary duties prohibit a fiduciary from taking a benefit where:
i) There is a conflict (or significant possibility of conflict) between the fiduciary’s personal interest and duty to the principal (conflict rule); or
ii) The benefit arises by use of the fiduciary position (profit rule).[44]
[44]Chan v Zacharia (1984) 54 CLR 178 (Chan v Zacharia). I discussed fiduciary obligations in Lambrou v Lambrou [2018] VSC 141 (Lambrou).
In this case the most significant benefits that are the subject of challenge flowed to Martin, not directly to Grazyna. Grazyna was, however, the instrument by which those benefits accrued to her son, Martin. The plaintiff submits that the transactions giving rise to those benefits are accordingly still liable to be set aside if in conferring them she misused her position as a fiduciary.[45] The defendants do not disagree, and so I proceed on that basis.
[45]Haywood v Roadknight [1927] VLR 512, 517 (Dixon AJ); Szmulewicz & ors v Recht and anor [2011] VSC 368 [15] and [72] (Habersberger J).
A transaction that would otherwise be in breach of the conflict rule may survive if the principal gave his informed consent.[46] Informed consent requires full disclosure of all relevant facts. What is required for informed consent is a question of fact in all the circumstances of the case. Depending on those circumstances, independent and skilled advice from a third party to the principal may be required.[47]
[46]Chan v Zacharia; Groenveld Australia Pty Ltd v Wouter Nolten (2010) 80 ACSR 562; Ashv Ash [2016] VSC 577 (Ash).
[47]Maguire v Makaronis (1997) 188 CLR 449, 466-467; [1997] HCA 23.
An antecedent question to that of breach of duty is the scope of the power conferred on the fiduciary, and so the ambit of his or her duties. The scope of a fiduciary’s duties will depend on the nature of the relationship between principal and fiduciary and the facts of the case.[48] In Lambrou v Lambrou (Lambrou) I held that this principle, which most commonly is applied in the context of commercial relationships, also applies to the scope of the fiduciary duties imposed on an administrator.[49] The plaintiff did not contest the proposition that it also applies to the determination of the scope of duties imposed on an attorney, although she notes that there is no limitation imposed on the powers conferred on Grazyna in the Enduring POA itself.
[48]Hospital Products Ltd v US Surgical Corporation (1984) 156 CLR 41 (Mason J); Links Golf Tasmania Pty Ltd v Sattler [2012] FCA 634 (Jessup J).
[49]Lambrou.
In Tobin v Broadbent the High Court held that general words in a power of attorney should not be construed as authorising the attorney to deal with the property of the principal for the attorney’s own benefit, and that something ‘more specific and quite unambiguous’ is required.[50] The defendants contend in this case that the scope of the power conferred on Grazyna by the Enduring POA was limited by the express oral directions later given by Mr Spiewak. They contend that in accordance with the general law of agency, the donor of a power of attorney has the right to later instruct the donee not to act on the power or to act on it only in a stated way, and that these later instructions may be oral even where the power of attorney is under seal.[51]
[50](1947) 75 CLR 378 at 401 (Dixon J); see also 391 per Latham CJ and 398 per Starke J.
[51]R v Holt (1983) 12 A Crim R 1, 14 (Tadgell J), as applied by Austin J in Vickery v JPP Custodians [2002] NSWSC 782 [18].
To similar effect, the defendants contend that at common law a transaction conferring a benefit on the attorney or another may not infringe the conflict rule, where the benefit is the inevitable consequence of the proper exercise of the power. They rely on the analysis of Lindsay J in Reilly v Reilly to this effect:[52]
Where a fiduciary (such as an agent) exercises a power which results in his or her obtaining some incidental benefit, there may be nothing per se improper with his or her having that benefit if the benefit itself is, in the circumstances, an inevitable consequence of his or her properly exercising the power which produces it. A beneficiary (principal) may be able to upset such an exercise of power only if he or she can show that the fiduciary (agent) exercised it with the dominant purpose in mind of obtaining that benefit irrespective of the interests of his beneficiary (principal): Paul Finn, Fiduciary Obligations (Federation Press, Sydney, 2016 reprint), paragraphs [103]-[104], citing, inter alia, Smith v Cock (1911) 12 CLR 30 at 36.[53]
[52][2017] NSWSC 1419.
[53]Ibid [116].
That case concerned the gift by the attorney of the deceased, who was her husband, of a farming property, his most substantial asset, to some of their children, to the detriment of another child. That child was by the deceased’s will the intended beneficiary of that property. At the time of the gift, the deceased lacked capacity. The attorney made the gift to give effect to her own personal view of what was fair as between the siblings.[54] Lindsay J held on the facts that the gift was a fraud on the power of attorney because it was made for an improper purpose serving the attorney’s own interests. He held that the attorney was liable to account to her husband’s estate for the gift, even though she herself did not financially benefit from it.[55]
[54]Ibid [126].
[55]Ibid [129]-[131].
The defendants also directed me to Re Narumon Pty Ltd (Re Narumon),[56] a Queensland case. In Re Narumon, the second wife of the deceased extended a death benefit nomination in respect of her husband’s superannuation as his attorney after he had lost capacity. The effect of the death benefit nomination was to benefit her and their son. She essentially sought retrospective approval of the nomination. Bowskill J granted that approval, on the basis of the portion quoted above from Reilly v Reilly. The judge held that although the wife and son benefited from the extension of the death benefit nomination it was not in circumstances where there was any conflict between her interests in that regard, and her duty to her husband as attorney. This was because on the evidence the extension was consistent with her husband’s own actions prior to his incapacity.[57] The court considered that in these circumstances the extension of the death benefit nomination was not a ‘conflict transaction’ within the meaning of the Powers of Attorney Act 1998 (Qld). It is important to note that the application was not opposed.
[56][2018] QSC 185 (Re Narumon).
[57]Ibid [84].
Given my conclusion that summary judgment should not be granted on the facts, I do not analyse the legal basis for the defendants’ contentions further.
Powers of Attorney Act 2014 (Vic)
Mr Spiewak granted the Enduring POA to Grazyna after the commencement of the Powers of Attorney Act 2014 (Vic) (POA Act). The POA Act includes provisions relating to the duties of an attorney under an enduring power of attorney. Sections 63 - 65 as they were in force at the time of the impugned transactions provided:
63 Duties of attorney
(1) An attorney under an enduring power of attorney—
(a) must act honestly, diligently and in good faith; and
(b) must exercise reasonable skill and care; and
(c)must not use the position for profit, unless permitted under section 70; and
(d)must avoid acting where there is or may be a conflict of interest unless the power so authorises; and
(e)must not disclose confidential information gained as the attorney under the power unless authorised by the power or by law; and
(f)must keep accurate records and accounts as required by section 66.
(2)Nothing in this section is to be taken to affect any duty an attorney has at common law.
64 Conflict transactions
(1)An attorney for financial matters under an enduring power of attorney has a duty not to enter into a transaction in that capacity if the transaction is one in which there is or may be a conflict between—
(a) the duty of the attorney to the principal; and
(b) the interests of the attorney, or a relative, business associate or close friend of the attorney.
(2) Subsection (1) does not apply—
(a) - (c) (not here relied upon)
65 Permitted conflict transactions
(1)Despite section 64, an attorney for financial matters under an enduring power of attorney may enter into a conflict transaction if the principal, before the time of the transaction, authorises the attorney to enter into—
(a) the transaction; or
(b) the kind of transaction; or
(c) conflict transactions generally.
(2)Despite section 64, an attorney for financial matters under an enduring power of attorney may continue a conflict transaction that the attorney has entered into and that is not completed, if—
(a) the principal validates the entering into of the transaction; and
(b)at the time of validation the principal has decision making capacity for the transaction.
(3)Despite section 64, the principal under an enduring power of attorney may validate a conflict transaction an attorney for financial matters under an enduring power of attorney has entered into that has been completed if, at the time the principal gives the validation, the principal has decision making capacity for the transaction.
(4)Despite section 64, an attorney for financial matters under an enduring power of attorney may enter into a conflict transaction if VCAT, before the time of the transaction, authorises the attorney to enter into—
(a) the transaction; or
(b) the kind of transaction; or
(c) conflict transactions generally.
(5)Despite section 64, VCAT may validate a conflict transaction that an attorney for financial matters under an enduring power of attorney has entered into that has been completed.
(6)A transaction that is validated by the principal under subsection (2) or (3) or VCAT under subsection (5) is taken to be valid from its commencement.
(7)In this section—
conflict transaction means a transaction that an attorney must not enter into under section 64.
Section 70 provided an exception for remuneration specifically authorised by law or by the enduring power of attorney.
Section 63(1)(d) as it applied at the time of the impugned transactions only expressly permitted a conflict transaction where the enduring power of attorney itself so permitted. This was arguably inconsistent with the provisions of s 65 allowing authorisation of a conflict transaction by the principal or VCAT as well. The POA Act was amended by the Powers of Attorney Amendment Act 2016 (Vic) (the Amending Act), in this respect, and others. The Amending Act commenced on 1 May 2017, after the transactions the subject of this application had been completed.
There are questions that might arise in relation to the provisions of the POA Act that were only touched on by the parties in this application. One is whether the POA Act changes the common law in relation to the fiduciary obligations of an attorney. The plaintiff submits that it does not, having regard to the purpose identified in paragraph (a) to s 1 as follows:
1 Purposes
The purposes of this Act are to—
(a)consolidate and provide for certain aspects of the law relating to powers of attorney, including the following—
(i)the principles to be applied by persons acting under enduring powers of attorney or under the provisions of this Act relating to enduring powers of attorney; and
(ii)the powers and duties of attorneys under enduring powers of attorney; and
(iii)the protection of persons whose affairs are being dealt with under enduring powers of attorney; and
Section 42 is also relevant. That section since the inception of the POA Act has provided as follows:
42 Principal may continue to exercise power
To avoid doubt, the giving of an enduring power of attorney does not affect the principal's power to do anything that the principal is otherwise legally capable of doing.
Section 63(2), quoted above, expressly provided at the time of the impugned transactions, and still does, that the statement of duties set out in that section do not affect any duty that an attorney has at common law. Accordingly, I proceed on the basis the POA Act does not derogate from the common law as to the power of a principal to direct his attorney under an enduring power to act in a certain way, or as to the common law duties of a fiduciary, in particular the requirement of informed consent if a transaction that confers a benefit on the attorney or a third person is to withstand challenge.
On this interpretation, the reference to ‘authorisation’ in ss 63(1)(d) and s 64, and to ‘validation’ in s 64 must mean informed authorisation (pre the transaction) and informed validation (post the transaction). There is a possible tension between this interpretation and the stipulation in s 64 that ‘validation’ requires decision making capacity, when that stipulation does not appear in relation to ‘authorisation’. If both must be informed, then it would be necessarily implied that the principal has decision making capacity.
A further question is the impact, if any, of the difference between the authorising provision in s 63 (1)(d) as it applied at the relevant time and the power to authorise in s 65.
It is not necessary to determine these questions in this application, given my conclusion on the facts, and so I do not express a final view. The POA Act does not, on my brief research and that of counsel, appear to have been the subject of consideration by a court in Victoria.[58] If necessary, interpretation will be a matter for trial.
[58]As noted earlier, the Queensland case of Re Narumon discusses the powers of attorney legislation in Queensland. The Victorian POA Act has been considered in at least one decision of the Victorian Civil and Administrative Tribunal - EML (Guardianship) [2018] VCAT 766.
Issues and submissions
Plaintiff
The plaintiff submits that there is only one issue in this application - whether the defendants have a real prospect of success of establishing that Mr Spiewak gave informed consent to the transfer of Dickens St into his name jointly with Martin, and to the distribution of the excess proceeds of sale of Jackson Avenue. This submission is put on the basis that on the pleadings, and on the defendants’ evidence, there is no doubt that the impugned transactions were effected by Grazyna in her capacity as the attorney, and so fiduciary, for Mr Spiewak and that the transactions resulted in benefit for Grazyna and Martin. In the plaintiff’s submission, those benefits are liable to be set aside unless the transactions were effected with the informed consent of the principal.
The plaintiff submits that the defendants have no real prospect of success of establishing that Mr Spiewak gave informed consent. She relies in this regard on factors relating to Mr Spiewak personally - his age; his ill health and apparently declining capacity (as shown by his admission to hospital and the poor condition of Jackson Avenue); and his dependence on Grazyna for his welfare. She also relies on matters relating to his estate. These are that his real property was his only asset of significance; that according to the provisions in the Will, which was recent, his estate was to be divided equally between his two children; and the apparent suddenness, even on the defendants’ case, of a change from what would have been the perfectly normal transaction of purchasing a more suitable home in his own name to the highly unusual one of putting it in joint names. Finally, the plaintiff submits that even assuming the defendants could prove that Mr Spiewak said what they set out in the affidavits in their case, it would not show he gave informed consent. Counsel for the plaintiff submits that the reasons Mr Spiewak gave the defendants, on their evidence, for placing Dickens St into joint names, do not make sense and so show he did not fully appreciate the implications of joint ownership.
The plaintiff concedes that independent legal advice is not always essential for consent to be informed. However, she submits that given the suspicion that would reasonably arise from the matters set out above, it was incumbent on the defendants to ensure that Mr Spiewak had comprehensive and completely independent legal advice on the proposed transaction, before proceeding with it.
The plaintiff submits that the advice given by Mr Cyngler was neither independent, nor adequate. The plaintiff submits that the advice was not independent because Mr Cyngler, on the evidence, was the solicitor for both Mr Spiewak and Grazyna and he confirmed instructions from Mr Spiewak to place Dickens St into joint names only on the telephone, in a call initiated by Grazyna and while Mr Spiewak was in her presence.
Counsel for the plaintiff submits that the advice was also inadequate. He submits that Mr Cyngler should have asked Mr Spiewak why he wanted to put Dickens St into joint names. He submits that in a context where Mr Spiewak envisaged potentially needing the whole of the value of Dickens St to fund a nursing home placement, proper legal advice would have alerted him to the difference between changing his will, which was revocable, and the proposed joint transfer, which was not. The plaintiff submits that Mr Cyngler should have expressly alerted Mr Spiewak to the provisions of the Will, made only 18 months before, and that transfer of Dickens St into joint names with Martin would defeat the intention of the Will to divide his estate equally between Margo and Martin. Mr Cyngler should also, in the plaintiff’s submission, have advised Mr Spiewak as to the prospect of litigation after his death if the intention of the Will was defeated in this way.
The plaintiff submits that Mr Cyngler’s evidence of his conference with Mr Spiewak after the sale of Jackson Avenue and purchase of Dickens St had completed and the excess funds from the sale been distributed is also incapable of showing that Mr Spiewak ratified the transactions. Counsel for the plaintiff submits that on the evidence the conference was extremely superficial and Mr Spiewak’s statement that he was ‘happy’ could have been a statement of resignation, rather than positive consent.
The plaintiff also notes that Mr Cyngler gave no advice to Mr Spiewak in relation to the disposition of the excess sale proceeds.
Defendants
The defendants do not take issue with the proposition that the transactions resulted in a benefit to Grazyna and to Martin, and that if effected by Grazyna as a fiduciary they are liable to be set aside unless Mr Spiewak gave his informed consent to them. However, they submit that informed consent is only one of a number of possible lines of defence to the allegations of breach of fiduciary duty, in respect of which they have a real prospect of success.
The first line of defence is their submission that the scope of Grazyna’s duty as a fiduciary pursuant to the Enduring POA excluded the decision to place Dickens St in the joint names of Mr Spiewak and Martin, and the decisions as to how the excess sale proceeds from the sale of Jackson Avenue were to be applied. On this argument, there was no breach because there was no duty in those respects. Grazyna acted on the express instructions of Mr Spiewak to put Dickens St into joint names and as to how to distribute the excess proceeds.
Alternatively, the defendants submit that if Grazyna’s duty as attorney extended to these decisions, then they have a real prospect of success of proving that Mr Spiewak gave informed consent, or authorised the transactions. This is the pleaded defence to the withdrawals from Mr Spiewak’s bank account.
An alternative, or additional, line of argument advanced by the defendants is that the impugned transactions were arguably not conflict transactions at all, as the benefits conferred on Grazyna and Martin were an inevitable consequence of Grazyna properly exercising her power as directed by Mr Spiewak.
The defendants advance these defences both under the common law, and pursuant to the POA Act. They concede that not all these defences are currently pleaded, but say that they arise on their evidence.
The defendants submit that they have a real prospect of success of defeating the plaintiff’s claims in relation to the Dickens St purchase, on the basis of the various things said by Mr Spiewak about the excess proceeds of sale of Jackson Avenue and ownership of his new home from December 2015 (when he had proposed moving to a property at Mitford St, Elwood) to July to October 2016 (in relation to the purchase of Dickens St). They submit that the Court could infer that Mr Spiewak was aware of the contents of his Will but was willing to change his estate planning. They submit that placing Dickens St into joint names can be seen as a form of estate planning, against the backdrop of Mr Spiewak expressing disappointment in his older child, Margo; concern that she may try to pressure him into a decision he did not want to make; request that his younger child, Martin, look after him; and concern that Martin would need funds when he started a family.[59]
[59]In this regard, the defendants directed me to Martin’s Affidavit [17], [19] and [27] and Grazyna’s Affidavit [27] and [47] in particular.
The defendants stress that, at least in respect of breach of fiduciary duty, the plaintiff does not allege that her father lacked the capacity to make decisions for himself. They submit that the evidence shows, or is capable of showing, that it was Mr Spiewak who in fact made the decisions to purchase Dickens St; to put it in joint names; and as to the distribution of the excess proceeds from the sale of Jackson Avenue. On this analysis, in executing the transfer so as to place Dickens St into joint names, and in giving instructions to Cyngler Kaye Levy Lawyers as to the distribution of the excess proceeds from the sale of Jackson Avenue, Grazyna was not exercising any discretion, but was simply the mechanism by which Mr Spiewak’s instructions were carried out.
In relation to informed consent, the defendants point to particular statements made by Mr Spiewak that they submit show, or are capable of showing, that he understood the implications of placing Dickens St into joint names. They submit that his statements show he understood not only that Dickens St would pass entirely to Martin on his death, but also that once it was in joint names he was no longer entitled to the whole of its sale proceeds, if he needed to sell it to purchase supported accommodation.[60]
[60]Counsel for the defendants referred me, in particular, to the statements by Mr Spiewak deposed to in Martin’s Affidavit at [30].
In relation to the role played by Mr Cyngler, counsel for the defendants submit that there is no evidence that Mr Cyngler acted for Grazyna in any capacity other than in her role as attorney for Mr Spiewak. In other words, despite Grazyna’s description of Mr Cyngler as ‘our’ solicitor, he acted only for Mr Spiewak on the purchase of Dickens St. The defendants submit that whether Mr Cyngler’s advice to Mr Spiewak was sufficient to establish informed consent, in the context of the other evidence, is a matter for trial.
Consideration
The parties take a different approach to the identification of the issues before the Court in this application. Counsel for the plaintiff contends that the issue of scope is merely a recasting of the necessity for informed consent. The same submission could perhaps be put in relation to the defendants’ proposed defence that the transactions were not conflict transactions at all, because they were entered into at the direction of Mr Spiewak. It may be that rather than distinct issues, the issues identified by the defendants of scope, informed consent and direction are merely different lenses through which to view the central factual questions – whether Mr Spiewak himself, as opposed to his attorney Grazyna, directed the impugned transactions, or gave informed consent to them.
The plaintiff also makes the point that the current defence does not squarely plead that executing the transfer and giving instructions as to the distribution of the excess sale proceeds of Jackson Avenue were beyond the scope of Grazyna’s duties as attorney, or were done by her at the direction of her principal, Mr Spiewak. While this is a valid point, r 22.05 of the Rules permits the Court to assess whether a defendant has a real prospect of success on the facts on the basis of the evidence, not the pleading. The Court will require or permit amendment of the pleading if it does not correspond to the evidence. That is the basis on which I proceed.
I accept the plaintiff’s submission that the transactions were such as to reasonably arouse suspicion. They invite explanation, and the defendants have put forward their explanations. A striking feature of the defendants’ evidence in this application is that, except in relation to placing Dickens St into joint names, it is not corroborated by any third party. The defendants’ case is that Mr Spiewak directed the impugned transactions, or consented to them, in conversations with them alone, save for his statements to Mr Cyngler, which were only about placing Dickens St into joint names, not the distribution of the Jackson Avenue sale proceeds. Even the statements that on the evidence Mr Spiewak made to Mr Cyngler prior to the completion of the purchase of Dickens St were in the presence of one of the defendants. Further, there is no documentary evidence to support Mr Spiewak’s instructions in relation to placing Dickens St into joint names or distribution of the sale proceeds of Jackson Avenue. Mr Cyngler does not exhibit any file note to substantiate his recollection of the conversation. There is no explanation in the evidence before me as to why Mr Spiewak himself did not sign the impugned transfer. He was, by that stage, out of hospital and transitional care, and living in Dickens St, Elwood. The defendants obtained Mr Spiewak’s consent in writing to the sale of Jackson Avenue, and to giving his car to Martin, but not to the far more significant subsequent transactions. This written consent was also witnessed by a third party, again in contrast to the later transactions.
As against these considerations, the plaintiff does not contend in this application that Mr Spiewak lacked the capacity to himself make the decisions of which she complains, or to give informed consent to them. This case is different from cases, such as Lambrou and Ash v Ash,[61] where the person in respect of whom the power was exercised was lacking in capacity. Further, for the purposes of this application the plaintiff is required to accept the evidence in the defendants’ case as to what Mr Spiewak said and the wishes he expressed on various occasions. Those statements, if proved at trial, support the defendants’ case, albeit that some of them may also be capable of supporting the plaintiff’s case, that Mr Spiewak did not sufficiently understand what he was proposing. In my view, the sufficiency and credibility of the defendants’ case is a matter for trial. Irrespective of the way the defences advanced by the defendants on their evidence are viewed, I do not consider that the plaintiff has shown that none of them have a real prospect of success.
[61]Lambrou; Ash.
To put it another way, the plaintiff has not satisfied me that all the proposed defences are fanciful. This standard is less stringent than the pre - CPA test of ‘bound to fail’ i.e. no prospect of success, but not by much. Assuming (as I am required to do in this application) that the defendants can prove the statements by Mr Spiewak to each of them, and to Mr Cyngler, to which they depose, then they have a prospect of success that is more than fanciful.
I reach this conclusion in relation to each of the impugned dealings – the transfer of Dickens St into joint names; the payment of $6,683.05 to Grazyna; the payment of $108,280.45 to Martin; and the withdrawals by Grazyna from Mr Spiewak’s pension account. The evidence does not quantify every aspect of the payment to Martin, in particular the amount that Mr Spiewak considered Martin may need for a deposit for his own home. The defendants submit that precise quantification was not required to show that Mr Spiewak directed the payment, or gave informed consent to it. In my view, this is not a fanciful submission, and so is also a question for trial.
If I am wrong in my application of the test, and properly considered summary judgment could be given in respect of at least some of the impugned transactions, then I would decline to do so on the basis of paragraph (a) of the s 64 discretion. In Re Demediuk,[62] McMillan J exercised the discretion in a case concerning allegations of undue influence that had no real prospect of success on the current affidavits. Her Honour noted that no reply affidavits had been filed in the application, and that the evidence had not been tested under cross examination. She considered that given these matters and the serious nature of the allegations, they should be tested at trial. consider the same approach should be taken here, if I am wrong in my conclusion that summary judgment does not lie. It is in the interests of justice that the defendants have the opportunity to put their explanations for the transactions at trial, and that the plaintiff has the opportunity to test them.
[62]Re Demediuk.
Orders
I ask the parties to prepare orders to give effect to these reasons, including as to costs, and will hear them further if they do not agree. Those orders should include an order reflecting the typographical corrections I made by leave to paragraphs 21(i), 39 and 40 of the defence in the course of argument, in respect of which I do not require an amended defence to be filed and served. The orders should also include a timetable for the further interlocutory conduct of the proceeding, including any further amendment to the pleadings.
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