Wylie v Orchard

Case [2020] QDC 86

DISTRICT COURT OF QUEENSLAND

CITATION: 

Wylie v Orchard [2020] QDC 86

PARTIES: 

LYNETTE MARGARET WYLIE
(Plaintiff/Applicant)

V

ELIZABETH MARGARET ORCHARD
(Defendant/Respondent)

FILE NO/S:

2848/17

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT: 

District Court at Brisbane

DELIVERED ON:

19 May 2020

DELIVERED AT:

Brisbane

HEARING DATE: 

25 March 2020

JUDGE:

Porter QC DCJ

ORDER:

1.    Plaintiff’s application for summary judgment dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – application for summary judgment for fraudulent breach of trust – where the Applicant advanced $100,000 to the Respondent under a Loan Agreement – whether advance was held on trust  – where the plaintiff alleges the monies were then dishonestly disbursed in fraudulent breach of trust – where the plaintiff must show the breach of trust was fraudulent to answer a limitations defence  –  where the plaintiff alleges the monies were dishonestly disbursed to third parties – where the Respondent was subsequently convicted of fraud under 408C of the Criminal Code – whether under s 79(2) of the Evidence Act that conviction is evidence of disposition of the monies by fraudulent breach of trust –whether application for summary judgment should be granted.  

Legislation

Criminal Code Act 1899 (Qld) ss. 7, 408C

Evidence Act 1977 (Qld) ss. 79(2), 79(3)

Evidence Act 1995 (NSW) ss 91, 92

Uniform Civil Procedure Rules 1999 (Qld) rr. 151, 292, 375, 376

Limitation of Actions Act 1974 (Qld) ss. 10(1)(a), 27(2), 38

Cases

Barclay’s Bank Ltd v Quistclose Investments Ltd [1970] AC 567

Batey v Potts (2004) 61 NSWLR 274

Black v S. Freedman & Co Ltd (1910) 12 CLR 105

Global Currency Exchange Network Limited v Osage 1 Limited [2019] EWHC 1375

Halley v Law Society [2003] EWCA Civ 97

Hogan v Gill  (1992) Aust Torts Reports 81-182

Jacobsen v Suncorp Insurance and Finance (No. 2) [1992] 1 Qd R 385

Kerr v Nominal Defendant (1987) 5 MVR 175

COUNSEL:

M Jones for the Plaintiff/Applicant

K Lee (sol) for the Defendant/Respondent

SOLICITORS:

Australian Law Partners for the Defendant/Respondent

SUMMARY

  1. This is an application by the plaintiff (Ms Wylie) for summary judgment pursuant to Rule 292 Uniform Civil Procedure Rules 1999 (UCPR).  Ms Wylie advances three claims against the defendant, Ms Orchard: a claim under a loan agreement, a claim in deceit and a claim for breach of trust. These three claims arise out of the same circumstances, being Ms Wylie’s advance of $100,000 to Ms Orchard on about 18 October 2010.   

  2. Ms Wylie seeks summary judgment only on her claim based on breach of trust. Central to that contention is Ms Wylie’s reliance on the evidentiary effect of Ms Orchard’s conviction after trial of an offence against s. 408C of the Criminal Code arising out of the transaction the subject of these proceedings. Ms Wylie contends that the effect of that conviction, taken together with Ms Orchard’s own evidence filed on this application and other uncontentious facts, is sufficient to make good the proposition that Ms Orchard has…

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Details
AGLC
Wylie v Orchard [2020] QDC 86
Case
[2020] QDC 86
Decision Date

CaseChat Overview and Summary

Wylie v Orchard is a case before the court concerning an application for summary judgment in respect of a fraudulent breach of trust. Ms Wylie, the Applicant, claims that she loaned $100,000 to Ms Orchard, the Respondent, under a Loan Agreement, and that the Respondent dishonestly disbursed the funds in breach of trust. Ms Wylie argues that the breach of trust was fraudulent, and that this is relevant to defeating a potential limitations defence. Ms Orchard was subsequently convicted of fraud under s 408C of the Criminal Code. Ms Wylie contends that this conviction is admissible as evidence of fraudulent breach of trust under s 79(2) of the Evidence Act 1977 (Qld). The court must determine whether the conviction can be used as evidence of fraudulent breach of trust, and whether the application for summary judgment should be granted.

The court considered the application of s 79 of the Evidence Act 1977 (Qld) to the conviction in question. The court found that s 79(2) allowed the conviction to be used as evidence that the Respondent committed the offence. However, the court also found that s 79(3) required the court to identify the acts and state of mind constituting the offence. The court noted that the indictment and written particulars were not tendered, but could be identified from the summing up and sentencing remarks. The court held that the conviction could not be used as evidence of fraudulent breach of trust because the specific acts and state of mind constituting the offence could not be identified.

The court dismissed the application for summary judgment. The court found that the conviction could not be used as evidence of fraudulent breach of trust, and that the application for summary judgment should be dismissed.

The court did not make any further orders.

Orders

Orders of the court

1. Plaintiff’s application for summary judgment dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Wylie relies on s. 79(3) Evidence Act 1977 (Qld). The whole section is relevant. Section 79 provides:79 Convictions as evidence in civil proceedings (1) In this section— civil proceeding does not include an action for defamation. convicted means a finding of guilt for an offence, on a plea of guilty or otherwise, and whether or not a conviction was recorded. (2) In any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in that proceeding, that the person committed that offence. (3) In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence. (4) This section applies— (a) whether or not a person was convicted upon a plea of guilty; and (b) whether or not the person convicted is a party to the civil proceeding. It is necessary in applying subsection (3) to identify “the acts” committed and the “state of mind” possessed which “at law constitute that offence”. Neither the indictment nor the written particulars were tendered. Indeed, it appears from the summing up that there were no written particulars. However, the terms of the indictment and the Crown case can be identified from the summing up and the sentencing remarks. In the summing up, His Honour informed the jury, relevantly:Members of the jury, Ms Orchard is charged with one offence – and you have a copy of it – that on the 19th day of October 2010 at Logan Central in the State of Queensland she dishonestly obtained a sum of money from Lynette Margaret Wylie, and the sum was of a value of $100,000. …Before you could convict, the prosecution must prove, first, that the defendant obtained property from any person. And “obtained” includes to get or to gain or to receive, to acquire in any way. Second, that the action of the defendant must have been done dishonestly. And in this case it is the obtaining. To prove that the defendant acted dishonestly, the prosecution must prove that what the defendant did was dishonest by the standards of ordinary honest people. So that is the standard by which you have to judge whether what the accused person did was dishonest. And then there is the extra allegation here about the value of what was obtained. Of those, really, three ingredients, it does seem to me that as, in line with the way counsel have made their submissions, there is just one real issue for you to decide. But before you could convict, you have to be satisfied of all of the ingredients beyond reasonable doubt, that the defendant obtained – and it is pleaded to be money, and she obtained it, and that it more – it was $100,000, and that she obtained it dishonestly. The real contest seems to be whether she obtained it dishonestly, because there is no real dispute about the fact that the complainant drew a cheque for $100,000 in the defendant’s name and the defendant obtained the cheque. …And the prosecution case seems to be that there was an agreed plan, that there was evidence of discussions before the heads of the agreement was signed, and then the document itself, and that the fund was put to a different purpose to that set out in the documents and the discussions. And so the accused obtained the money dishonestly. The defence case, as I follow it, is that the defendant believed the complainant knew the heads of the agreement was merely a mechanism. And the word used was a “ruse” for a purpose of this entity Bank On Property. And so there was no deception. And that there is no evidence that the accused did not plan to allocate the money according to what was understood. And so you would at least have a reasonable doubt that the defendant dishonestly obtained the money. But I will come back – hopefully more clarity will be given when I review counsels’’ arguments. …Now, Ms Cupina submitted again that a question is whether the obtaining of the $100,000 cheque was dishonest, that you would look at the conduct before the singing of the agreement, the agreement itself, and the post-conduct, how the money was disbursed, in order to reach a conclusion of guilt. There was a dinner on about the 15th of October. There was discussion about 15 per cent interest on property – on the amount until the house was built, and then a new idea of purchase of a refund partnership. Then on the 19th of October, Ms Orchard was at Ms Wylie’s house with a USB stick. They printed the document and signed it. And Ms Cupina took you to the document and submitted that when you consider the discussion that preceded it and the terms of the document, followed by how the fund was used, you’d be satisfied that the obtaining of it was dishonest by ordinary standards. That is to say, it’s about what Ms Orchard represented to Ms Wylie.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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