Crossingham v Crossingham

Judgment 1HIS HONOUR : In Chan v Zacharia (1984) 154 CLR 178 Deane J said at 205: " ... one cannot but be conscious of the danger that the over-enthusiastic and unnecessary statement of broad general principles of equity in terms of inflexibility may destroy the vigour which it is intended to promote in that it will exclude the ordinary interplay of the doctrines of equity and the adjustment of general principles to particular facts and changing circumstances and convert equity into an instrument of hardship and injustice in individual cases ... There is 'no better mode of undermining the sound doctrines of equity than to make unreasonable and inequitable applications of them.'" [Citation of authority omitted.] 2These proceedings raise those considerations. The proceedings are for an account. The plaintiffs, Cathrine and Megan Crossingham, are sisters. The defendant, Kimberley Crossingham, is their brother. From about December 2003 the defendant became the carer of the parties' father, Ernest Crossingham, following Ernest Crossingham's suffering a stroke. The defendant continued in that role until Ernest Crossingham's death on 3 September 2010. The defendant had access to his father's bank account with the Commonwealth Bank of Australia ("CBA"). His father had given him the PIN for the account. The defendant withdrew moneys from the account to pay household bills and for the care and maintenance of his father. He also admits using money drawn from the account for his own purposes. 3Ernest Crossingham made a will on 30 January 2004. By his will the deceased appointed his son Kimberley and his daughter Cathrine as the executors and trustees of the will. He left his estate to his children in equal shares. The defendant had four children, namely, Kimberley, Cathrine, Megan and Lisa Arscott. 4The estate is modest. It consisted of a house in Murrie Street, Windang (that was purchased by the first plaintiff Cathrine Crossingham for $385,000), a credit balance in the account with the CBA of $7,381.15, and superannuation with Colonial First State to the value of approximately $34,000. 5The defendant continued to draw on the account after his father's death. Between 3 and 30 September 2010 he withdrew $8,230, most of which appears to have been used for his own purposes. 6The plaintiffs seek an order that the defendant account to the estate on a wilful default basis both for the moneys withdrawn after the deceased's death and also in respect of all moneys that the defendant withdrew from his father's account during his father's lifetime. 7The orders sought include that the defendant file and serve a detailed account on a wilful default basis as follows: " The Court: