Aboody v Ryan

Supreme Court of NSW|2014-06-13|Before: Garling J, Patten AJ

Judgment 1On 12 August 2013, Michael Bar-Mordecai, filed a Summons in which he claimed the following relief: "1. An order that the Court grant leave to the plaintiff to extend the time of filing in order to file his Statement of Claim in the supreme Court on Ms Tatyana Daych in spite of the statute of limitation of six years. 2. An order that the plaintiff be granted leave to file a statement of claim for his equity in his former marital unit with Ms Tatyana Daych in the District Court of NSW. Ms Daych being the plaintiff's former de facto wife, on the grounds the grounds that he five years out of time. 3. Costs." (sic) 2On that day, the Court made an order pursuant to s 16(1)(a) of the Vexatious Proceedings Act 2008, that Mr Bar-Mordecai was to serve both the Attorney-General of NSW and Ms Daych with a copy of the Summons and also with a copy of his affidavit of 12 August 2013, upon which he relied in support of his Summons.

Vexatious Litigant 3The applicant, Mr Bar-Mordecai, is a vexatious litigant. 4On 24 February 2005, Patten AJ made an order pursuant to s 84(1) of the Supreme Court Act 1970, with respect to Mr Bar-Mordecai, in the following terms: "1. That Michael Jacob Bar-Mordecai shall not, without leave of this Court institute proceedings in any Court. 2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any Court before the date of this order, shall not be continued by him without leave of this Court." There were other consequential orders: Attorney-General v Bar-Mordecai [2005] NSWSC 142. 5On 1 December 2008, the Vexatious Proceedings Act (the "VP Act"), commenced. Orders pursuant to s 84 of the Supreme Court Act, which were in existence at that time, are now taken to be, and to have effect as if the orders are, a vexatious proceedings order made under s 8 of the VP Act. 6As a result, the VP Act applies to Mr Bar-Mordecai, which means that should he wish to institute any proceedings, then he must do so in accordance with the legislative scheme set out in the VP Act. 7At a hearing of an application of this kind, after orders for service have been made, the Court is exercising a jurisdiction to authorise the commencement of proceedings. That exercise depends upon compliance by an applicant, such as Mr Bar-Mordecai, with s 14 of the VP Act, and also of the Court being satisfied of the necessary conditions under s 16 of the VP Act.

Vexatious Proceedings Act 2008 8Section 14 of the VP Act is in the following form: "14 Application for leave to institute proceedings (1) This section applies to a person ("the applicant" ) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or (b) acting in concert with another person who is subject to an order referred to in paragraph (a). (2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting. (3) The applicant must file an affidavit with the application that: (a) lists all occasions on which the applicant has applied for leave: (i) under this section, or (ii) before the commencement of this section-as required by an order under ... section 84 of the Supreme Court Act 1970 , and (b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on any person unless: (a) an order is made under section 16 (1) (a), and (b) the copy is served in accordance with the order. (5) An appropriate authorised court may dispose of the application by: (a) dismissing the application under section 15, or (b) granting the application under section 16. (6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application." 9By the end of the proceedings, there was no submission made that Mr Bar-Mordecai had failed to comply with any of the requirements of s 14 of the VP Act. Accordingly, except for the provisions of s 14(5), it can be put to one side, for the purposes of considering this application. 10Section 15 of the VP Act is in the following form: "15 Dismissing application for leave (1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers: (a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or (b) the proceedings are vexatious proceedings, or (c) there is no prima facie ground for the proceedings. (2) The application may be dismissed even if the applicant does not appear at the hearing of the application." 11There was no submission made that the affidavit of Mr Bar-Mordecai did not substantially comply with s 14(3) of the VP Act. However, the balance of s 15(1) of the VP Act was relied upon. 12Section 16 of the VP Act is in the following form: 16 Granting application for leave (1) Before an appropriate authorised court grants an application made under section 14 for leave to institute proceedings, it must: (a) order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application, and (b) give the applicant and each relevant person an opportunity to be heard at the hearing of the application. (2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party. (3) The court may grant leave to institute proceedings subject to the conditions that the court considers appropriate. (4) However, the court may grant leave only if it is satisfied that: (a) the proceedings are not vexatious proceedings, and (b) there are one or more prima facie grounds for the proceedings. (5) In this section: "relevant person" , in relation to the applicant for leave to institute proceedings, means each of the following persons: (a) the person against or in relation to whom the applicant proposes to institute the proceedings, (b) the Attorney General, (c) ...." 13The hearing of this application concentrated on whether the applicant had satisfied the Court that the proposed proceedings were not vexatious proceedings, and whether there was one or more prima facie grounds for the proposed proceedings.

Attitude of the Attorney-General 14The Attorney-General appeared, and was represented by Counsel. At all stages during the hearing of the application, the Attorney-General supported a grant of leave to commence the proceedings. This attitude was in marked contrast to the Attorney-General's attitude to previous applications, which he had been accustomed to opposing. 15The change in attitude seemed to have been brought about by the prospect that, if Mr Bar-Mordecai was successful in his claim, and was the recipient of moneys from Ms Daych, the Attorney-General, as a creditor of Mr Bar-Mordecai's, might be paid monies which he was owed.

Amended Application and Pleading 16In considering any application for leave to commence proceedings, it is essential that an applicant provide to the Court as part of the evidence to be relied upon, the pleading in respect of which leave is being sought. Unless an applicant does so, it is not possible for a Court to be satisfied that the proceedings which are proposed are not vexatious, and that there is one or more prima facie grounds for the proceedings. 17The hearing of the application commenced on 14 March 2014. 18At that stage, Mr Bar-Mordecai was moving on an Amended Summons which had been filed on 20 December 2013. The Amended Summons replaced the earlier Summons filed on 13 August 2013. The application remained one for a grant of leave to commence proceedings against Ms Daych: "... to claim his equity in his former marital unit with Ms Tatyana Daych ... Ms Daych being the plaintiff's former de facto wife ...". 19In support of that Amended Summons, Mr Bar-Mordecai relied on an affidavit sworn 4 November 2013, but filed on 20 December 2013. Attached to that affidavit was a draft Amended Statement of Claim dated 4 November 2013 ("the first pleading"). 20The first pleading which was sought to be relied upon, leaving aside matters of particulars, was in the following form: "1. There was a de facto marriage between the plaintiff and the defendant. Particulars ... 2. In 2001 the plaintiff and the defendant purchased a home unit at ... Rosebery in the defendant's name for the $326,000 ... Particulars ... 3. The plaintiff's contributions to the purchase price of the Rosebery unit were as follows: (a) from his equity in his Michael Bar Mordecai Superannuation Fund shares of about $188,000; (b) from his Tower Insurance Michael Bar Mordecai Superannuation Fund equity of about $32,000; (c) from his Michael Bar Mordecai Surgery Account at the Commonwealth Bank in Waverley of about $27,000; (d) with the purchase of the property, the plaintiff paid for 75.76 per cent of the property." 4. Following the purchase of the Rosebery home unit, the plaintiff made the following contributions towards the mortgage repayments of the Rosebery unit as follows ... 5. Between January 2001 and July 2002, the plaintiff and the defendant resided together in the Rosebery home unit, following which the plaintiff left the home unit. 6. From the second half of 2002, and September 2004, the defendant rented one bedroom of the home unit and received rent of about $16,000 in that period. 7. In 2004, the defendant sold the Rosebery home unit at .... Rosebery. Particulars ... 8. The defendant has not accounted to the plaintiff for any part of the proceeds of sale of the Rosebery home unit. 9. In 2009, the defendant purchased a home unit in Bondi Junction using the proceeds of sale from the Rosebery home unit sold in 2004. Particulars ... 10. In the above circumstances: (a) the defendant is liable to account to the plaintiff for the monies received from the sale of the Rosebery home unit as the accounts between them were unsettled; or (b) the plaintiff has an equitable interest in the Bondi Junction home unit. 11. The defendant is liable to the plaintiff for the plaintiff's former equity in the marital home unit. The plaintiff seeks from the defendant: (a) 70% or $150 per week of the rental income of the unit from the defendant from 10.7.2002 to 20.9.2004 with interest to date; (b) his equity on a part of the proceeds of sale of the unit with interest to date; (c) material losses for not being given his share in the equity of the home unit; (d) general compensatory and aggravated damages. 12. The plaintiff delayed from seeking to claim his equity of the home unit from the defendant: Particulars ... 13. The plaintiff had suffered the following losses as a result of the separation from the defendant: (a) loss of equity in the home unit amounting to $1,128,204." 21The plaintiff claimed the following relief in the Statement of Claim: (1)An order that the defendant pay the plaintiff $1,128,204 in damages and compensation, the monies of which were used to purchase the Bondi Junction unit; (2)Alternatively, that the defendant transfer the ownership of the Bondi Junction unit to the plaintiff; (3)General damages; (4)Costs. 22Seemingly, the first pleading was concerned with an entitlement arising out of the de facto relationship between Mr Bar-Mordecai and Ms Daych, which together with the identified monetary contributions, gave, it was alleged, Mr Bar-Mordecai an entitlement to a share of the proceeds of the Rosebery Unit, which share could be traced into the Bondi Junction unit. 23In anticipation of the hearing with respect to the plaintiff's application based on the first pleading, Ms Daych, who was represented by counsel, filed submissions which pointed to a number of reasons why the Court would not grant leave to commence proceedings upon the first pleading, and that the proceedings as they were then proposed were inappropriate and doomed to fail. 24When the hearing commenced on 14 March 2014, evidence was read. In the course of dealing with objections to the evidence, it became apparent that the first pleading did not reflect the case which Mr Bar-Mordecai intended to put if he was granted leave to commence proceedings. 25Mr Bar-Mordecai applied for and was granted, without objection from Ms Daych, an adjournment to enable him to reformulate the pleading which he proposed to bring, if granted leave, and to enable further submissions to be made with respect to that reformulated claim.

A Further Amended Pleading 26On 9 April 2014, when the matter resumed, in accordance with the Court's directions, a Further Amended Summons and a Further Amended Statement of Claim had been filed on 24 March 2014 by means of an appendix to an affidavit of Mr Bar-Mordecai sworn 21 March 2014. This summons and pleading was intended to replace the earlier Amended Summons filed on 20 December 2013. It will be convenient to refer to this pleading as the second pleading. 27The second pleading significantly reformulated the plaintiff's claim so as to move away from the difficulties which had been identified with the first pleading. 28At the commencement of the hearing on 9 April 2014, the plaintiff tendered a further proposed draft pleading which was amended (he said) in minor respects from the second pleading which had been filed in anticipation of the hearing. I will refer to this pleading as the third pleading. 29It was convenient for the Court, and the other parties present did not object, to hear Mr Bar-Mordecai's application upon the basis of the third pleading, which was dated 9 April 2014. For clarity, and future reference purposes, that document was identified as Exhibit F in these proceedings. 30There were significant changes from the first pleading to which I have made reference. 31The third pleading changed the parties. Mr Bar-Mordecai informed the Court that he wished to claim in his own right, and in his capacity as trustee of the Michael Bar-Mordecai Pty Ltd Superannuation Fund. Accordingly, there were two plaintiffs named, both being Mr Bar-Mordecai. 32However, as will be apparent, the third pleading did not differentiate between the plaintiff in either capacity, nor does it describe either plaintiff as first or second plaintiff, as the Uniform Civil Procedure Rules 2005 ("UCPR") would require, nor does it seek to identify separate causes of action upon which either or both of the plaintiffs relied. Accordingly, in the reasons which follow, I have not sought to differentiate their positions. 33It is appropriate to set out the substance of the third pleading. It was in the following terms: "1. In about 2001, the plaintiff and the defendant purchased a home unit at ... Rosebery in the defendant's name for $326,000. Particulars ... (g) there was no contract between the plaintiff and the defendant as to the percentage of ownership of the unit. (h) there were no easements in the plaintiff's favour on the unit property. (i) the plaintiff and the defendant resided at the home unit together from about 15.1.2001 until 10.7.2002, at which time the plaintiff left the home unit. 2. The plaintiff's contributions to the purchase price of the Rosebery unit were as follows: (a) In late December 2000, the Plaintiff lent the Defendant $188,000.00 from his equity in his Michael Bar-Mordecai Pty Ltd Superannuation Fund Shares, and made a cheque to her of about $188,000.00. The Plaintiff told the Defendant that the money was for the purchase of the Rosebery unit. The Defendant agreed. The term of the loan was that the Defendant would repay the loan at the time of the sale of the Rosebery Unit to Michael Bar-Mordecai Pty Ltd Superannuation Fund 'the fund' or to Michael Bar-Mordecai. (b) In late February 2001, the Plaintiff lent the Defendant $32,000.00 from his Tower Insurance Michael Bar-Mordecai Superannuation Fund an amount of about $32,000.00. the Plaintiff told the Defendant that the money was for the purchase of the Rosebery unit. The Defendant agreed. The term of the loan was that the Defendant would repay the loan at the time of the sale of the Rosebery Unit to the fund or to Michael Bar-Mordecai. (c) In late December 2000, the Plaintiff lent the Defendant $27,000.00 from his Michael Bar-Mordecai Surgery account at the Commonwealth Bank in Waverley. The Plaintiff told the Defendant that the money was for the purchase of the Rosebery unit. The Defendant agreed. The term of the loan was that the Defendant would repay the loan at the time of the sale of the Rosebery Unit to Michael Bar-Mordecai. ... 5. Resulting Trust a. Between December 2000 and February 2001, the Plaintiff made payments totalling $247,000 [$188,000 + 32,000 + 27,000] to the Defendant which the Defendant used to purchase the Rosebery unit. b. The Rosebery unit was purchased in the name of the Defendant. c. In the circumstances, the Defendant held the Rosebery unit on trust for the Plaintiff to the extent of his contributions to the purchase price. 6. Constructive Trust a.Between December 2000 and February 2001, the Plaintiff made payments totalling $247,000 [$188,000 + 32,000 + 27000] to the Defendant which the Defendant used to purchase the Rosebery unit. b. The Rosebery unit was purchased in the name of the Defendant. c. It would be unconscionable if the Plaintiff did not have a proprietary interest in the Rosebery unit as a result of his financial contributions. 7. In the circumstances, the Defendant held the Rosebery unit on trust for the Plaintiff to the extent of his contributions to the purchase price. 8. Further, between January 2001 and September 2004 the Plaintiff made contributions to the mortgage repayments totalling $42,600.00 as pleaded in paragraph 4 above. 9. It would be unconscionable if the Plaintiff did not have a proprietary interest in the Rosebery unit which reflected those additional payments. 10. In the circumstances, the Defendant held the Rosebery unit on trust for the Plaintiff to the extent of those additional payments. 11. Between January 2001 and July 2002, the Plaintiff and the Defendant resided together in the Rosebery home unit, following which the Plaintiff left the home unit. 12. On 20 September, 2004, the Defendant sold the Rosebery home unit Particulars ,,, 13. The defendant is liable to the Plaintiff for the Plaintiff's equity in the Rosebery unit. the Plaintiff seeks from the Defendant: a. That the Defendant accounts to the Plaintiff for his share of the proceeds of sale of the Rosebery unit with interest to date; b. Material losses for not being given his share in the equity of the home unit; c. General compensatory and aggravated damages. 14. Further or alternatively, the Defendant has breached her fiduciary duty to the Plaintiff by failing to account to the Plaintiff for his share in the proceeds of sale and is liability to the Plaintiff for damages. 15. The Plaintiff delayed from seeking to claim his equity of the home unit from the Defendant: Particulars ... 16. The Plaintiff has suffered the following losses as a result of the Defendant's wrongdoing: a. $289,600.00 as at 20.9.2004 b. Interest on $289,600.00 from 20.9.2004 to today." 34The relief claimed in the third pleading was substantially different from the first pleading. The relief claimed was in the following form: "17. An order that Ms Daych pay the plaintiff and Michael Bar-Mordecai Pty Ltd Superannuation Fund the $289,600 with interest from 20.9.2004 to date. 18. Costs." 35It can be seen that this is a significantly different pleading. Paragraph 2 identifies monetary contributions which it was pleaded were made by way of loan from the plaintiff to the defendant. The loan was said to be for a specified and identified term - namely that repayment would be made upon the sale of the Rosebery unit. 36Confusingly, the third pleading adds in paragraph 4, a pleading of further monies paid towards mortgage repayments, but which did not form part of the capital contributions. It then claims that the payments made by way of loan meant that the defendant held the Rosebery unit on trust for the plaintiff to the extent of the contributions which he made to the purchase price. 37In paragraph 9, the plaintiff pleads unconscionability as a basis for the Court to hold that he had a proprietary interest in the Rosebery unit. Then in paragraph 13, again somewhat confusingly, the plaintiff claims the defendant is liable to him for "the plaintiff's equity" in the Rosebery unit, and makes various consequential claims. 38Paragraph 14 appears to be an additional cause of action, namely a breach of fiduciary duty by reason of a failure to account with respect to the proceeds of sale of the Rosebery unit. However, in oral submissions on 9 April 2014, Mr Bar-Mordecai informed the Court that he did not press such a cause of action, and was content to have it removed from any future proceedings. Accordingly, it does not require any further detailed consideration. 39In the course of oral submissions on 9 April 2014, counsel for Ms Daych submitted that the third pleading based, as it was, upon a number of loans, was such on the facts and circumstances pleaded, that the plaintiff could not succeed, even if leave were granted and, accordingly, the Court ought refuse leave. 40At the conclusion of the oral submissions of counsel for Ms Daych and in light of those submissions, Mr Bar-Mordecai made a further application to amend his proposed pleadings. Although no written pleading has been filed, it is convenient if I refer to this, again amended, pleading as the fourth pleading. 41Counsel for Ms Daych submitted that the plaintiff should not be given leave to again amend the pleading upon which he proposed to rely if leave was granted to commence the proceedings. Whist recognising that there is always a limit to the number of times that a plaintiff ought be permitted to amend an application such as this, I am satisfied that, in the very unusual circumstances which here prevail, the interests of justice in the speedy and inexpensive resolution of this application, favours a grant of leave. Accordingly, I will grant such leave as may be necessary to enable Mr Bar-Mordecai to advance his application upon the basis that the pleading which should be considered is the fourth pleading. In so doing, it is necessary to make clear that Mr Bar-Mordecai has abandoned the claims which he once sought to make in each of his earlier pleadings.

The Fourth (and final) Pleading 42For the fourth pleading, Mr Bar Mordecai sought leave to amend paragraph 2 of the third pleading which is set out at [33] above, in each of subparagraphs (a), (b) and (c), so as to delete the word "lent" in the first line of each of the subparagraph and insert the word "gave", and then in each of the subparagraphs to delete the final sentence which was the one pleading that there was specified term for the loan. 43That paragraph would accordingly read: "2. The plaintiff's contributions to the purchase price of the Rosebery unit were as follows: (a) In late December 2000, the Plaintiff gave the Defendant $188,000.00 from his equity in his Michael Bar-Mordecai Pty Ltd Superannuation Fund Shares, and made a cheque to her of about $188,000.00. The Plaintiff told the Defendant that the money was for the purchase of the Rosebery unit. The Defendant agreed. (b) In late February 2001, the Plaintiff gave the Defendant $32,000.00 from his Tower insurance Michael Bar-Mordecai Superannuation Fund an amount of about $32,000.00. The Plaintiff told the Defendant that the money was for the purchase of the Rosebery unit. The Defendant agreed. (c) In late December 2000, the Plaintiff gave the Defendant $27,000.00 from his Michael Bar-Mordecai Surgery account at the Commonwealth Bank in Waverley. The Plaintiff told the Defendant that the money was for the purchase of the Rosebery unit. The Defendant agreed." 44Mr Bar-Mordecai submitted that by so amending the third pleading, he could avoid the sting of the submissions of counsel for Ms Daych about the third pleading, including, in particular, the provisions of the Limitation Act 1969, upon which counsel for Ms Daych had relied in his submissions. 45As finally constituted, it can be seen that the fourth pleading which is the basis for Mr Bar-Mordecai's application is an amended version of the third pleading, with the principal effect that paragraph 2 does not plead the making of any loans for a specific term, but rather a gift of the monies there identified. 46Insofar as Mr Bar-Mordecai's fourth (and final) pleading upon which he founds his Application is concerned, it appears that it has the following components: (a)An allegation that in 2001, the defendant purchased a home unit at Rosebery. Prior to, and at the time of the purchase of the home unit, there was no oral or written agreement between the plaintiff and the defendant as to the equity, if any, each would have in the home unit. The defendant's name was the sole name on the title; (b)the defendant undertook the purchase of the home unit, with amongst other things, funding by way of a mortgage of $150,000 to the vendor; (c)the plaintiff and the defendant resided together in a domestic relationship in the home unit for a period of about 18 months, at which time the plaintiff left the home unit; (d)in the period from late December 2000 to late February 2001, the plaintiff personally made a gift to the defendant of $247,000. The gift was provided in three payments, of which $220,000 was drawn by the plaintiff from a superannuation fund of which he was the trustee and a beneficiary. The balance was drawn from a personal account used for the purposes of the conduct of his medical surgery; (e)at the time of the gift of the money by the plaintiff to the defendant, the defendant told the plaintiff that the money was to be used for the purchase of the Rosebery home unit. 47The fourth pleading does not suggest that the money was not used for the identified purpose. 48The plaintiff then claims that, as a consequence of these gifts to the defendant, the defendant held the Rosebery unit on trust to the extent of his contributions, but proportionate to the purchase price. He further pleads that it would be unconscionable if he did not have a proprietary interest in the Rosebery unit as a result of his financial contributions. He bases relief upon a claim for the imposition of a form of trust, either constructive or resulting. 49Whilst the plaintiff goes on to plead that as the Rosebery unit was sold on 20 September 2004, and the defendant retained the entirety of the net proceeds of sale, she has breached her "... fiduciary duty to the plaintiff by failing to account to the plaintiff for his share in the proceeds of sale ...", there is no need to consider this, because as noted above, in his oral submissions, the plaintiff said that he no longer pressed this cause of action.

Discernment 50I am not satisfied that the plaintiff has demonstrated that, by his fourth pleading, he has a viable cause of action, nor that he pleads a cause of action known to the law. As well, I am not satisfied that the plaintiff has pleaded any sufficient basis for the grant of equitable relief. 51Reduced to its simple elements, the fourth pleading alleges that the plaintiff gave the defendant, during their de-facto relationship, a significant sum of money. He pleads, in substance, that the gift was given for a specific purpose, namely the purchase of a home unit. There is no suggestion that the gift was not used for that purpose. 52After the passage of over thirteen years, the plaintiff now seeks to bring proceedings which claim the repayment of the monies which he gifted to the defendant together with interest. He says that the Court ought find that it would be unconscionable, in light of the change in circumstances which has occurred over that period, to permit the defendant to retain the benefit of the monetary gift. 53The plaintiff has had considerable difficulty in pleading a cause of action. In the first pleading, he commenced with an action based apparently upon his relationship with Ms Daych and equitable rights arising from it. He abandoned such an action, and in his second pleading, asserted a cause of action based upon loans being made by him to Ms Daych. 54His third pleading which replaced the second pleading, by adding himself as a second plaintiff, sought to make the claim upon the basis of the loans which were claimed to be for a limited period. Having heard the submissions of counsel for Ms Daych, the plaintiff, apparently persuaded by them, abandoned this claim. 55His fourth pleading, which replaced this pleading, accepted that, contrary to the assertions pleaded in the third pleading, he had not in fact made any loans to Ms Daych, but rather had gifted the monies to her, which he pleaded were repayable to him, in a manner which it must be said was less than clear. 56As counsel for Ms Daych succinctly put in his submissions: If [the amendment] were to be allowed, then your Honour would take the fact of the amendments sought to have been made in the context of the whole of these proceedings as evidence itself that there is no prima facie or no reasonable grounds for any claim to be made by the plaintiff. He is either making it up on the run or doesn't really know. In my submission, it's evidence that he does [not] have reasonable grounds. 57In the absence of the suggestion of unconscionability which is made in the fourth pleading, I could not be satisfied that there is any viable cause of action, or other basis for equitable relief. 58As a general rule, there is no cause of action which enables the donor of a gift once given, to seek repayment of that gift from the donee. The position may, in some particular factual circumstances, be different if the gift could properly be held to be a conditional one. But even if that were so here, and a specific pleading of that kind does not exist, Mr Bar-Mordecai accepts that the only possible condition which may have attached to the gifts, namely the use of the funds for the purchase of the Rosebery home unit, has been fulfilled. 59In the recent decision of the Court of Appeal in Aboody v Ryan [2012] NSWCA 395, Allsop P (with whom Bathurst CJ and Campbell JA agreed) said at [62]: "the governing general principles in respect of relief against unconscionable dealings are to be found in Blomley v Ryan [1956] HCA 81 ; 99 CLR 362, especially at 405 (per Fullagar J) and 415 and 428-429 (per Kitto J); Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 ; 151 CLR 447, especially at 461-62 (per Mason J) and 474-75 (per Deane J); Louth v Diprose [1992] HCA 61 ; 175 CLR 621 at 626-627 (per Brennan J), at 637 (per Deane J) and at 650 (per Toohey J); and Bridgewater v Leahy [1998] HCA 66 ; 194 CLR 457 at 485-486 (per Gaudron, Gummow and Kirby JJ), in which passage Deane J in Amadio is cited." 60The fourth pleading does not provide any detail capable of reflecting an action of the kind to which the governing principles outlined in the authorities refer. The notion of an unconscientious use of power arising out of the circumstance and condition of the parties to the transaction of the giving and receiving of the gifts does not feature in the fourth pleading. 61The fourth pleading does not set out any factual basis for a claim of unconscionability. A proper pleading must do so because of the capacity of such a factual claim to take a defendant by surprise if not properly pleaded: r 14.14(1) UCPR. 62This difficulty was immediately apparent from the oral submissions of the plaintiff, who seemed to encapsulate the basis of his claim of unconscionability in this way: "It is submitted that Ms Daych's actions were serial wrong doings to facilitate her own unjust self enrichment at the plaintiff's and his fund's expense. It is submitted that her actions were deceitful and were not in the public interest. Leave ought to be granted to the plaintiff to seek equitable relief by the filing of the statement of claim to have the money returned having regard to his dire financial circumstances and also regard to Ms Daych's ability to return those monies years later with interest. The plaintiff freely admitted that he could not maintain at arm's length from himself and Ms Daych by seeking legal advice prior to when he entrusted his own and his superannuation funds to Ms Daych in good faith. It is submitted he was mentally compromised at the time immediately following an attempted suicide and was just subject to undue influence perpetrated by Ms Daych to buy a Rosebery unit in her name. However, that did not absolve Ms Daych from returning the plaintiff's personal and superannuation funds once she decided to change the lock of the Rosebery unit and furthermore, once she decided unilaterally to sell that unit." 63If it be the fact that these allegations are those which the plaintiff seeks to base his claims on, then on any view, they are not pleaded in the fourth pleading or even hinted at. The evidence lead in the proceedings did not approach any substantiation of the allegations. It is not clear how the allegations about events taking place well after the gifts were made, could be relevant to a claim of unconscionability. 64If leave were granted to the plaintiff to bring proceedings based upon the fourth pleading, then having regard to these submissions, such an action would be nothing more than a stalking horse which concealed rather than revealed the true allegations which the plaintiff seeks to ventilate. I would readily conclude that such an action would be no more than an occasion to pursue serious allegations of personal misconduct against Ms Daych which have not been pleaded or supported in the evidence before this Court. Any such action would in my judgment be an abuse of process. 65Accordingly, I cannot be satisfied that such an action would not be vexatious proceedings within the meaning of s6(a) of the VP Act.

Conclusion 66I am satisfied, for the reasons given, that the proceedings if commenced would be vexatious proceedings and that there is no prima facie ground for the proceedings set out in the fourth pleading. The application to these conclusions of the provisions of s 15(1) of the VP Act has the effect that I must dismiss the application of the plaintiff which he brings by his Amended Summons filed on 24 March 2014.

Costs 67The plaintiff has failed in his application. He should pay the costs of Ms Daych of the whole of the application including any reserved costs, arising out of the adjournment of the proceedings. If there is any other or different order that Ms Daych seeks, then an application supported by evidence should be made within 14 days of this judgment. 68In light of the attitude of the Attorney-General to the proceedings, it is appropriate that he should pay his own costs.

Orders 69The Court makes the following orders: (1)Further Amended Summons filed 24 March 2014 dismissed. (2)Plaintiff to pay the costs of Ms Daych of the whole application. (3)If Ms Daych seeks any other or different order, then any application and affidavit in support is to be filed on or before 27 June 2014 (4)Attorney-General to pay his own costs of the application.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2014

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (6)

Cited By (1)