Thorne v Todhunter - [2022] VSC 284

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2021 04021

BETWEEN:

BARBARA JANET THORNE (who sues on behalf of and for the benefit of the estate of Kay Patricia Thorne, deceased) & ANOR (according to the Schedule attached)	Plaintiffs
v
TIMOTHY LEMPRIERE TODHUNTER	Defendant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2022
DATE OF JUDGMENT:	31 May 2022
CASE MAY BE CITED AS:	Thorne & Anor v Todhunter
MEDIUM NEUTRAL CITATION:	[2022] VSC 284

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PRACTICE AND PROCEDURE – Application for summary dismissal on the basis the plaintiffs’ lack standing and procedural irregularity – Interests of justice do not favour summary disposal of proceeding – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 22.16 – Civil Procedure Act 2010 (Vic), ss 62-64 – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; 42 VR 27, applied – Batistatos v RTA (NSW) (2006) 226 CLR 256, applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	S T Pitt of counsel	Moores
For the Defendant	P Pascoe of counsel	Hicks Oakley Chessell Williams Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 2

Writ....................................................................................................................................................... 5

Relevant legal principles.................................................................................................................. 8

The defendant’s submissions........................................................................................................ 10

The plaintiffs’ submissions........................................................................................................... 12

Standing as a preliminary issue................................................................................................ 13
Standing – Sufficient personal interest to seek declaratory relief........................................ 14
Standing - Executors of unproved wills.................................................................................. 16
Standing - Beneficiaries of deceased’s estate.......................................................................... 16
Capacity of defendant................................................................................................................ 19
Section 64 of the CPA................................................................................................................. 19

The defendant’s conditional appearance.................................................................................... 21

Consideration.................................................................................................................................... 22

Conclusion......................................................................................................................................... 27

HIS HONOUR:

Introduction

Kay Patricia Thorne (deceased) died on 11 July 2019. She is survived by her husband, Timothy Todhunter, the defendant, and two children from her previous marriage, Barbara Thorne and Michael Thorne, the first and second plaintiff respectively.

On 29 October 2021, the first and second plaintiff commenced this proceeding against the defendant. The proceeding was commenced by writ and general indorsement. The general indorsement states that the first and second plaintiffs ‘sue on behalf of and for the benefit of the estate of …the deceased’. The first and second plaintiff claim that the defendant breached his fiduciary duty to the deceased in undertaking financial and property transactions on her behalf from at least 1 November 2015 until her death. They further claim that the defendant has retained proceeds of the sale of property to which the deceased was beneficially entitled. The plaintiffs say that as a result, the estate of the deceased is entitled to various declarations, including that:

(a) the defendant hold the proceeds of sale of various properties on trust for the estate; and

(b) the defendant was acting as the deceased’s agent in relation to some bank accounts from 1 November 2015.

The plaintiffs also seek orders for the defendant to provide an account in relation to the trust property.

This ruling is about whether the plaintiffs’ proceeding should be dismissed on the basis that they do…

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 Thorne v Todhunter

Details

AGLC: Thorne v Todhunter [2022] VSC 284
Case: [2022] VSC 284
Decision Date: 31 May 2022

CaseChat Overview and Summary

In the matter of Thorne v Todhunter, the dispute arose from a claim for damages related to alleged breaches of contract and misrepresentation. The plaintiff sought to hold the defendant accountable for these alleged actions. The case was heard in the Supreme Court of Victoria. The defendant sought to have the plaintiff's claim summarily dismissed, arguing that the plaintiff lacked standing and that there were procedural irregularities in the filing of the claim.

The court was tasked with determining whether the interests of justice favoured summary disposal of the proceeding. This involved considering the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the Civil Procedure Act 2010 (Vic). Additionally, the court examined the principles set out in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd and Batistatos v RTA (NSW). The court considered the overarching objective of the Civil Procedure Act to facilitate the just, quick and cheap resolution of the real issues in the proceeding, weighing this against the potential prejudice to the parties if the matter was summarily dismissed.

The court found that the interests of justice did not favour summary disposal of the proceeding. It determined that the plaintiff's claim was not without merit and that there were no significant procedural irregularities that would justify dismissal. The court emphasised the importance of allowing the merits of the case to be determined through the regular judicial process. Consequently, the defendant's application for summary dismissal was dismissed. The plaintiff's claim proceeded to trial, with the court setting aside the interim orders that had been made in favour of the defendant.

Orders