Thevar v Maharaj

[2021] NSWSC 1474

Supreme Court

New South Wales

Medium Neutral Citation:

Thevar v Maharaj [2021] NSWSC 1474

Hearing dates:

11 November 2021

Decision date:

11 November 2021

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

1.   Judgment for the plaintiff against the defendant in the sum of $179,662.02 (Judgment Sum).

2. Order that the defendant pay to the plaintiff interest on the Judgment sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 9 November 2018 to date being $25,529.24.

3.   Declare that all moneys in the Commonwealth Bank of Australia Limited account 06 2121 1115 6256 are:

(a)   the property of the plaintiff; and

(b)   held on trust by the defendant for the plaintiff.

4.   Declare that all moneys in the Westpac Banking Corporation Limited account 032071 614866 and 732071 531769 are:

(a)   the property of the plaintiff; and

(b)   held on trust by the defendant for the plaintiff.

5.   Order that the defendant pay the plaintiff’s costs.

6.   Vary the freezing order made on 14 November 2018 by Justice Lindsay to permit the payment out of the Commonwealth Bank of Australia Limited account 06 2121 1115 6256 and the Westpac Banking Corporation Limited accounts 032071 614866 and 732071 531769 to the plaintiff the moneys hereby declared to be the property of and held on trust for the plaintiff.

Catchwords:

EQUITY — Trusts and trustees — Resulting trusts — Quistclose trusts — Tracing — Money paid into bank account

Cases Cited:

Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567)

George v Webb [2011] NSWSC 1608

Thevar v Maharaj [2021] NSWSC 993

Category:

Principal judgment

Parties:

Ronald Thevar (Plaintiff)
Roshini Nirmal Lynette Maharaj (Defendant)

Representation:

Counsel:
C Bolger (Plaintiff)

Solicitors:
Blacktown Legal (Plaintiff)

File Number(s):

2018/00349989

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is an application by summons filed on 14 November 2018 by the plaintiff seeking orders and declaratory relief in relation to certain moneys presently held in bank accounts with the Commonwealth Bank of Australia (CBA) and the Westpac Banking Corporation (Westpac) respectively. The application has been heard in the absence of the defendant. I have previously made orders, and I refer to the reasons given and published in Thevar v Maharaj [2021] NSWSC 993 for deemed service on the defendant directing that instead of personal service steps be taken for the purpose of bringing the proceedings to the attention of the defendant by way of publication of notices in various newspapers, The Australian newspaper in this country, the Daily Sun in the Republic of South Africa, and in the New York Times in the United States of America (US). I also made orders that the summons and the documents referred to in the notice of motion that had been filed on 12 July 2021 be deemed to be taken to have been served on the defendant on the expiry of 28 days from the publication in the respective newspapers.

2. On 2 September 2021, I varied those orders because of difficulties in relation to publication of the notices.  There is evidence and I refer to an affidavit of the plaintiff’s solicitor Mr Margiotta sworn on 11 October 2021 as to the publication of the notices in the various newspapers variously on dates from 9 September 2021 through to 12 September 2021. The 28-day period has elapsed since the publication of the respective notices. Mr Margiotta deposed that he has not received any contact from the defendant or any person on behalf of the defendant in relation to those notices.  In the circumstances, I am satisfied that it is appropriate to proceed in the absence of the defendant.

Background

3. The background to the substantive dispute was set out briefly in my earlier reasons in relation to this matter.  The following factual summary is taken from the various affidavits that have been sworn by the plaintiff in support of the application.

4. The plaintiff, who was formerly a South African citizen but has been an Australian citizen since March 1993, and the defendant, who is or was a citizen of the Republic of South Africa, met on an online dating site in 2018.

5. The defendant travelled to Australia on a tourist visa on 29 July 2018, having received a sponsorship letter from her former husband (a copy of the defendant’s visa approval is annexed to the plaintiff’s first affidavit sworn on 13 November 2018; a copy of the sponsorship letter is annexed to the affidavit sworn 14 November 2018 of Mr Margiotta).

6. From her arrival in Australia the defendant lived with the plaintiff.  The defendant was not entitled to work because of the tourist visa, and was supported financially by the plaintiff while she lived in Australia.  The plaintiff works as a manufacturing engineer.  The plaintiff and the defendant became engaged to marry shortly after the defendant arrived in Australia and the plaintiff has deposed that he sought the advice of an immigration agent regarding steps to be taken for the defendant to remain in Australia after her tourist visa expired, so that they could marry and live together here.

7. The plaintiff has deposed that the immigration agent informed the plaintiff that the defendant having a bank account with savings in it would assist her application for a spousal visa and for permanent residency.  The plaintiff has deposed that on the advice on the immigration agent, he opened a bank account for the defendant with the CBA – to which I will refer as the defendant’s “CBA bank account” – which account was linked to the plaintiff’s CBA account.  The plaintiff has deposed (and I accept) that he believed the defendant’s CBA bank account was a joint account as it was linked to his bank accounts. I accept his evidence that he did not intend to make an outright gift of the moneys that were deposited into that account, but that it was treated as, effectively, a joint account out of which living expenses for the couple were paid.

8. The plaintiff completed the sale of a commercial property and transferred the net proceeds of the sale, being a sum of $223,676.61 into the defendant’s CBA bank account in two separate transactions on 19 and 20 September 2019 of $198,874.72 and $24,790, respectively. I have been taken to copies of bank statements in relation to the defendant’s CBA bank account and to documents which evidences the deposit into that account of those sums, as well as the source of those sums, and in particular, to a settlement statement by Blacktown Legal in relation to the sale of the commercial property to which I have referred.

9. I have also been taken to evidence of the various transactions on the account prior to 9 November 2018.  As at 9 November 2018, the balance standing to the credit of the defendant’s CBA bank account was $179,255.18.  Between 9 November 2018 and 14 November 2018, the evidence shows that the defendant withdrew, dealt with and/or spent sums totalling $100,745 from the defendant’s CBA bank account and attempted to transfer or withdraw a further $70,000 from that account in two separate transactions of $20,000 and $50,000, respectively.  Those two transactions were reversed by the CBA after the plaintiff became aware of the attempted withdrawals.

10. The defendant, unbeknownst to the plaintiff, had opened an account with Westpac, a Westpac Life account. The transfer of moneys out of the defendant’s CBA bank account by the defendant included a transfer of $50,000 to the Westpac Life account.  Other sums withdrawn from the defendant’s CBA bank account in November 2018 included moneys for travel cheques and travel fares for travel out of Australia.  The evidence is that the defendant exhausted the plaintiff’s credit card spending limit of $5,000 and withdrew a sum of $30,035 which was transferred overseas and/or converted into US dollars.

11. The plaintiff discovered that the defendant had left the country on 9 November 2018, when the plaintiff returned from work to find the defendant absent and the defendant’s clothing and belongings having been removed.  The defendant also discovered a receipt or withdrawal in relation to an Uber fare to the airport on that occasion.  The plaintiff has not received any correspondence or communication from the defendant since she left Australia.

12. On 14 November 2018, an application was made before the duty judge, Lindsay J, for asset preservation and freezing orders in relation to the defendant’s CBA bank account, the plaintiff having discovered that the defendant had removed the plaintiff’s access to the defendant’s CBA bank account.  The freezing orders that were made on 14 November 2018 had the effect of freezing the defendant’s bank accounts held with Westpac and with the CBA. Since then the plaintiff has taken extensive steps to try to locate and serve the defendant with the originating process in these proceedings.  I have referred to those in my earlier reasons.

Determination

13. I am satisfied that the orders for the substituted or deemed service that were made on 2 August 2021 and varied on 2 September 2021 have been complied with.

14. The plaintiff seeks orders and relief to enable him to recover the sum of money that has been withdrawn from the defendant’s CBA bank account together with any interest on that sum since 9 November 2018.  That totals $179,662.02 which the plaintiff deposes represents in effect his life savings.  The plaintiff’s evidence, which I accept, is that the moneys were transferred into the defendant’s CBA bank account on the mistaken belief and understanding that he was in a committed relationship with the defendant who he was to marry and that the moneys were in that account for the purpose of assisting the defendant with a visa or residency application but were not for the defendant’s sole use and remained either the plaintiff’s money or a joint account from which the defendant had some limited authority to withdraw moneys for their joint living expenses.

15. The plaintiff’s evidence is that he mistakenly thought he had control and access to the defendant’s CBA bank account where the money was deposited because he had set it up and had linked that account to his bank account.  The contention of the plaintiff is that the moneys were held in the defendant’s CBA bank account on trust by the defendant for the purpose of obtaining a spousal visa or making a residency application with the intention that the couple were to marry and have a shared life together.  The plaintiff contends that the defendant had an obligation not to use the plaintiff’s money without his consent or otherwise than for the purpose for which it was transferred.  That purpose has evidently been frustrated by the defendant leaving the country.  Further, it seems likely from the lack of contact by the defendant with the plaintiff since then that the defendant has effectively abandoned any claim to the moneys in the bank accounts.

16. The evidence before me shows that the plaintiff had access to the moneys in the defendant’s CBA bank account for his own purposes and for the purpose of joint living expenses, including for the purchase of a vehicle and payment of his credit card expenses.  There is no evidence of any deposits having been made into the defendant’s CBA bank account by the defendant nor have there been any further deposits made into the account after 20 September 2018. Therefore, I can comfortably be satisfied that there has been no commingling of moneys in that account.

17. The plaintiff’s contention is that the defendant has misused the money held by her on trust either for the plaintiff himself or for the couple jointly and has acted contrary to the purpose for which the moneys were transferred and held in that account and has breached her obligations to the plaintiff insofar as the moneys were held in the account for a special purpose which has failed. 

18. The available jurisprudential analysis would be either that the moneys are held now on a resulting trust solely for the plaintiff (see in that regard the line of authority dealing with Quistclose trusts (Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567) where the special purpose for establishment of the joint account has failed – see George v Webb [2011] NSWSC 1608) or that moneys were at all times held on trust for the plaintiff or for the couple jointly and the transfer of moneys out of the joint account otherwise than for the couples joint benefit was a breach of trust by the defendant enabling the plaintiff to trace the moneys transferred out of the account and to recover the sums remaining in the account.

19. Ultimately, it is not necessary to determine on which of those bases the present case falls since on either basis the plaintiff can recover the amounts held in the defendant’s bank account and those which the plaintiff has been able to trace into the other bank accounts. 

20. I have been taken to the tracing exercise carried out by the CBA and the evidence of the deposits and transfers between the respective accounts from which I am satisfied that the moneys held in the defendant’s Westpac accounts can be traced from the defendant’s CBA account and I am satisfied that the relevant amounts held in the two Westpac accounts, a Westpac Life account and a Westpac Choice account, totalling $49,481.53, constitutes moneys held by the defendant on trust for the plaintiff, as well as the remaining funds held in the CBA bank account.

21. Insofar as the plaintiff seeks judgment in the sum of the whole amount that has been expended or withdrawn by the plaintiff from the defendant’s CBA account, albeit recognising the unlikelihood that that amount will be able to be recovered, I am satisfied that judgment should be entered for the plaintiff in that full amount.

Orders

22. For those reasons, I make the orders sought.  It is anticipated that the plaintiff will notify the respective banks of those orders in order to seek the payment out of the funds to the plaintiff, and I accept that that would be appropriate.

1. Judgment for the plaintiff against the defendant in the sum of $179,662.02 (Judgment Sum).

2. Order that the defendant pay to the plaintiff interest on the Judgment sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 9 November 2018 to date being $25,529.24.

3. Declare that all moneys in the Commonwealth Bank of Australia Limited account 06 2121 1115 6256 are:

1. the property of the plaintiff; and

2. held on trust by the defendant for the plaintiff.

4. Declare that all moneys in the Westpac Banking Corporation Limited account 032071 614866 and 732071 531769 are:

1. the property of the plaintiff; and

2. held on trust by the defendant for the plaintiff.

5. Order that the defendant pay the plaintiff’s costs.

6. Vary the freezing order made on 14 November 2018 by Justice Lindsay to permit the payment out of the Commonwealth Bank of Australia Limited account 06 2121 1115 6256 and the Westpac Banking Corporation Limited accounts 032071 614866 and 732071 531769 to the plaintiff the moneys hereby declared to be the property of and held on trust for the plaintiff.

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Decision last updated: 16 November 2021