Verner v Giannaros - [2015] NSWSC 1406

Supreme Court

New South Wales

Case Name:	Verner v Giannaros
Medium Neutral Citation:	[2015] NSWSC 1406
Hearing Date(s):	21 September 2015
Date of Orders:	21 September 2015
Decision Date:	21 September 2015
Jurisdiction:	Equity
Before:	McDougall J
Decision:	Freezing orders continued.
Catchwords:	PRACTICE & PROCEDURE – interlocutory orders – whether earlier freezing orders should be continued – where plaintiff alleges unconscionable dealing by defendants in respect of property owned by him – where the defendants claim there is no serious question to be tried – where plaintiff suffers from schizophrenia – where impugned transactions consisted of plaintiff’s interest in property being transferred to defendants for nominal consideration – where it would appear that the defendants were aware at all times of the plaintiff’s condition – result that there is a serious question to be tried – whether balance of convenience favours extending the freezing orders – where no evidence that the orders, with appropriate carve-outs for living and legal expenses, would cause undue detriment to defendants – result that orders should be made
Category:	Procedural and other rulings
Parties:	Dale Andrew Verner (Plaintiff) Michael Giannaros (First Defendant) Effy Pantechis (Second Defendant)
Representation:	Counsel: J E Thomson / K Young (Plaintiff) K Jones (Defendants) Solicitors: Philip Gengos & Co (Plaintiff) Deane & Dean Lawyers (Defendants)
File Number(s):	2015/247204

JUDGMENT (EX TEMPORE – REVISED 21 SEPTEMBER 2015)

HIS HONOUR: The plaintiff Dale Verner sues by his tutor, his sister Michelle Verner. Michelle has been appointed as the financial manager of Dale's affairs. That appears to reflect Dale's incapacity, as a result of the schizophrenia that he suffers and with which he was first diagnosed in 1998.
In these proceedings, Dale (if I may call him that without being offensive) seeks relief in respect of a property formerly owned by him located at Dulwich Hill. He says that the defendants have acquired his legal interest in that property by means of unconscientious dealings, or in breach of fiduciary obligations. It appears to be reasonably common ground, or at least not actively disputed, that Dale's father, the late Leonard Verner, transferred that property to Dale in the 1980s. There is some evidence that Leonard, (and again I hope I will not be thought disrespectful by so referring to the late Mr Verner), did so because Dale was incapable of supporting himself.
Leonard had a close friend, the late Ross Giannaros. The evidence suggests that Leonard and Ross (if I may so call him) discussed Dale's care. It is reasonably apparent, even on the defendants' evidence, that Ross was aware in the early 1990s, and perhaps before, that Dale was incapable of looking after his own affairs.
In 1994, Leonard and Ross put together a proposal whereby Dale would transfer a half interest in the Dulwich Hill property to Ross's children, the defendants Michael Giannaros and Effy Pantechis. As before, if I refer to those people by their given names for convenience, I do not do so intending to be familiar, condescending, or offensive.
Ultimately,…

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 Verner v Giannaros

Details

AGLC: Verner v Giannaros [2015] NSWSC 1406
Case: [2015] NSWSC 1406
Decision Date: 21 September 2015

CaseChat Overview and Summary

In the case of Verner v Giannaros, the plaintiff sought to continue earlier freezing orders that restrained the defendants from disposing of certain property. The plaintiff alleged that the defendants engaged in unconscionable dealing in respect of the property, which was owned by the plaintiff. The defendants argued that there was no serious question to be tried, but the court found that there was indeed a serious question regarding the alleged unconscionable conduct. The plaintiff also suffered from schizophrenia, and the transactions in question involved the transfer of his interest in the property to the defendants for a nominal consideration. The court found that the defendants were aware of the plaintiff's condition at all times, leading to the conclusion that there was a serious question to be tried.

The legal issues the court had to decide included whether the earlier freezing orders should be continued and whether the balance of convenience favoured extending the orders. The court considered the defendants' argument that there was no serious question to be tried, but found that the evidence suggested otherwise. The court also considered whether the freezing orders, with appropriate carve-outs for living and legal expenses, would cause undue detriment to the defendants. The court found that there was no evidence to suggest that the orders would cause undue detriment.

The court held that there was a serious question to be tried regarding the plaintiff's allegation of unconscionable dealing. The court found that the balance of convenience favoured extending the freezing orders because there was no evidence of undue detriment to the defendants. The court made orders extending the freezing orders, with appropriate carve-outs for living and legal expenses.

Orders