Torok v Becker - [2019] NSWSC 1662

Supreme Court

New South Wales

Medium Neutral Citation: Torok v Becker [2019] NSWSC 1662
Hearing dates: 12, 14 and 21 November
Decision date: 28 November 2019
Jurisdiction: Equity
Before: Robb J
Decision:
The parties must deliver appropriate short minutes of order to my associate within 7 days (per par 132)

Catchwords: EQUITY — Alleged unconscionable conduct or undue influence — Whether the Court should make interlocutory orders restraining the first defendant from dealing with certain of his assets pending final determination of proceedings for the restoration by the defendant of funds allegedly misappropriated by the defendant to the estate of the parties’ deceased mother — Where it appears the plaintiff has a good arguable case, and the defendant has not satisfactorily explained the disbursement of a substantial part of the deceased’s funds
Legislation Cited: Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Hewitt v Gardner [2009] NSWSC 705
Category: Procedural and other rulings
Parties: Lara Caroline Torok (plaintiff)
David Theodore Becker (first defendant)
David Theodore Becker as executor of the estate of the late Isolde Becker (second defendant)
Representation:
Counsel:
P Folino-Gallo (plaintiff)
J Stephenson (defendants)
Solicitors:
Prime Lawyers (plaintiff)
Austin Giugni Martin (defendants)

File Number(s): 2019/337892

Judgment

The issue on this interlocutory application is whether the Court should make an order restraining the defendant from dealing with his assets pending the determination of these proceedings, and if so what that restraint should be.
The plaintiff, Lara Caroline Torok, is the sister of the defendant, David Theodore Becker (Mr Becker). The parties are the only children of the late Isolde Becker who died on 13 July 2019, aged 82 years.
The deceased's husband, Theodore Becker, died on 6 May 2016, aged 93 years.
Ms Torok commenced these proceedings by statement of claim filed in court on 28 October 2019. In essence, Ms Torok sought declarations that a payment of $1,522,272.03 made to Mr Becker by the deceased from the sale proceeds of the deceased's residence at Glenhaven was obtained by undue influence or unconscionable conduct by Mr Becker, and an order that Mr Becker pay that amount to the estate. Ms Torok also sought an order that Mr Becker holds the net proceeds of the sale of a property at Beaumont Hills, which was purchased using the $1,522,272.03, on trust for the estate.
Alternatively, Ms Torok sought an order under s 59 of the Succession Act 2006 (NSW) that she receive further provision from the estate or the notional estate of the deceased.
The context in which Ms Torok made this claim was the last will of the deceased made on 31 August 2016. By that will, the deceased appointed Mr Becker and a niece of the deceased as her joint executors and trustees. The niece has renounced probate.
In essence, the will divided the deceased's estate as to legacies of $2,000,000 to Mr Becker and $1,000,000 to Ms Torok, with the residue being divided equally between the two children.
It appears that, at the time of…

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 Torok v Becker

Details

AGLC: Torok v Becker [2019] NSWSC 1662
Case: [2019] NSWSC 1662
Decision Date: 28 November 2019

CaseChat Overview and Summary

In the case of Torok v Becker, the plaintiff, Torok, sought relief against the defendant, Becker, concerning the alleged misappropriation of funds from the estate of their deceased mother. The dispute centred on whether Becker had engaged in unconscionable conduct or undue influence, and whether interim orders should be made to restrain Becker from dealing with certain assets. The matter was heard in the Supreme Court of Queensland. The court was asked to determine whether the plaintiff had a good arguable case and whether the defendant had adequately explained the significant disbursement of the deceased’s funds.

The primary legal issue the court had to address was whether the plaintiff had established a prima facie case of unconscionable conduct or undue influence by the defendant. The court also needed to consider whether the plaintiff's request for interlocutory orders should be granted, pending the final determination of the proceedings. This involved assessing the strength of the plaintiff’s case and the defendant's explanations regarding the alleged misappropriation of funds. The court examined the evidence presented and the arguments made by both parties to ascertain whether there were sufficient grounds to issue the requested interim orders.

The court found that the plaintiff had presented a credible and arguable case, indicating that Becker may have misappropriated funds from their mother’s estate. The court was not convinced by Becker's explanations for the disbursement of a significant portion of the deceased’s funds. Based on these findings, the court decided to grant the interlocutory orders, restraining Becker from dealing with certain assets. This decision was made to preserve the status quo and prevent any dissipation of assets that could prejudice the outcome of the final proceedings.

In conclusion, the court ordered that Becker be restrained from dealing with certain assets until the final determination of the proceedings. This outcome was based on the plaintiff's established arguable case and the lack of satisfactory explanation from the defendant regarding the disbursement of the deceased’s funds.

Orders