Tschirn v Australian Executor Trustees Ltd

[2015] SASCFC 95

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

TSCHIRN & ANOR v AUSTRALIAN EXECUTOR TRUSTEES LTD

[2015] SASCFC 95

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Bampton)

29 July 2015

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL

The appellants are defendants in the action. The first and second appellants cared for the godmother of the first appellant for two years. During such time there were withdrawals from the godmother’s back account of $600,000 through 2000 withdrawals. The respondent, executor to the godmother’s estate, brought an action to recover the money that had been withdrawn.

The appellants applied for summary judgment or the striking out of the respondent’s Statement of Claim. The application was dismissed by a Master of this Court. The appellant’s appeal to a single Judge of this Court was dismissed. The appellant sought permission to appeal that judgment to this court.

Held (The Court):

1. The matters that must be proved by the plaintiffs to establish a prima facie case of undue influence are reasonably arguable.

2. The defendants will not be prejudiced in the conduct of their defence by the particulars ordered by the Master.

3. The principles of law which the applicant contends are best dealt with on the basis of findings of fact made at trial.

4. Permission to appeal is refused.

WORDS AND PHRASES CONSIDERED/DEFINED

"will", "estate", "permission", "undue influence"

TSCHIRN & ANOR v AUSTRALIAN EXECUTOR TRUSTEES LTD
[2015] SASCFC 95

Full Court:   Kourakis CJ, Stanley and Bampton JJ

1. THE COURT:      The applicants are husband and wife and are the defendants in the action.  They cared for the husband’s 93 year old godmother over a period of two years.  In that time $600,000 was withdrawn from her bank account through 2000 ATM withdrawals.  The plaintiff, an executor of the will of the deceased, has brought this action alleging that the defendants used their special relationship of influence over the deceased to persuade her to give them the money withdrawn from the account to spend “primarily for their own benefit”. 

2. By an interlocutory application the applicants sought summary judgment or, in the alternative an order striking out the Statement of Claim.  The application was dismissed by a Master of this Court.  The Master’s decision was confirmed on appeal by a judge of this Court.  The applicants seek permission to appeal to the Full Court against the decision of the Judge.

3. We agree with the Judge that the plaintiff’s contention as to the matters it must prove to establish a prima facie case of undue influence in the circumstances of this case are reasonably arguable.

4. The evidence that the deceased withdrew about $600,000 over a two year period and gave it to her godson whilst in his care is capable of supporting an inference that she did so under his influence. 

5. We agree with the Master that the defendants will not be prejudiced in the conduct of their defence on the provision of the particulars ordered by him in [24] of his Honour’s reasons.

6. In particular, the plea that the withdrawals were “primarily for the benefit” of the defendants will not unduly embarrass the applicants at trial.  Even though there are many withdrawals there is likely to be a large degree of factual commonality in the evidence about them.  The primary question at trial will be whether the withdrawn funds were retained by the deceased or given to the defendants and, if the latter, whether the deceased was unduly influenced to do so.  The question of who “benefited” from the expenditure of the funds is a secondary issue.

7. The principles of law for which the applicant contends are best dealt with on the basis of findings of fact made at trial and, when, or if, an appeal is brought against the final judgment in this matter.

   Conclusion

8. Permission to appeal is refused.