Thevar v Maharaj [2021] NSWSC 1474 | Case summary

Supreme Court of NSW|2021-11-11|Before: Ward CJ, Lindsay J

Judgment

HER HONOUR: This is an application by summons filed on 14 November 2018 by the plaintiff seeking orders and declaratory relief in relation to certain moneys presently held in bank accounts with the Commonwealth Bank of Australia (CBA) and the Westpac Banking Corporation (Westpac) respectively. The application has been heard in the absence of the defendant. I have previously made orders, and I refer to the reasons given and published in Thevar v Maharaj [2021] NSWSC 993 for deemed service on the defendant directing that instead of personal service steps be taken for the purpose of bringing the proceedings to the attention of the defendant by way of publication of notices in various newspapers, The Australian newspaper in this country, the Daily Sun in the Republic of South Africa, and in the New York Times in the United States of America (US). I also made orders that the summons and the documents referred to in the notice of motion that had been filed on 12 July 2021 be deemed to be taken to have been served on the defendant on the expiry of 28 days from the publication in the respective newspapers.
On 2 September 2021, I varied those orders because of difficulties in relation to publication of the notices. There is evidence and I refer to an affidavit of the plaintiff's solicitor Mr Margiotta sworn on 11 October 2021 as to the publication of the notices in the various newspapers variously on dates from 9 September 2021 through to 12 September 2021. The 28-day period has elapsed since the publication of the respective notices. Mr Margiotta deposed that he has not received any contact from the defendant or any person on behalf of the defendant in relation to those notices. In the circumstances, I am satisfied that it is appropriate to proceed in the absence of the defendant.

Determination

I am satisfied that the orders for the substituted or deemed service that were made on 2 August 2021 and varied on 2 September 2021 have been complied with.
The plaintiff seeks orders and relief to enable him to recover the sum of money that has been withdrawn from the defendant's CBA bank account together with any interest on that sum since 9 November 2018. That totals $179,662.02 which the plaintiff deposes represents in effect his life savings. The plaintiff's evidence, which I accept, is that the moneys were transferred into the defendant's CBA bank account on the mistaken belief and understanding that he was in a committed relationship with the defendant who he was to marry and that the moneys were in that account for the purpose of assisting the defendant with a visa or residency application but were not for the defendant's sole use and remained either the plaintiff's money or a joint account from which the defendant had some limited authority to withdraw moneys for their joint living expenses.
The plaintiff's evidence is that he mistakenly thought he had control and access to the defendant's CBA bank account where the money was deposited because he had set it up and had linked that account to his bank account. The contention of the plaintiff is that the moneys were held in the defendant's CBA bank account on trust by the defendant for the purpose of obtaining a spousal visa or making a residency application with the intention that the couple were to marry and have a shared life together. The plaintiff contends that the defendant had an obligation not to use the plaintiff's money without his consent or otherwise than for the purpose for which it was transferred. That purpose has evidently been frustrated by the defendant leaving the country. Further, it seems likely from the lack of contact by the defendant with the plaintiff since then that the defendant has effectively abandoned any claim to the moneys in the bank accounts.
The evidence before me shows that the plaintiff had access to the moneys in the defendant's CBA bank account for his own purposes and for the purpose of joint living expenses, including for the purchase of a vehicle and payment of his credit card expenses. There is no evidence of any deposits having been made into the defendant's CBA bank account by the defendant nor have there been any further deposits made into the account after 20 September 2018. Therefore, I can comfortably be satisfied that there has been no commingling of moneys in that account.
The plaintiff's contention is that the defendant has misused the money held by her on trust either for the plaintiff himself or for the couple jointly and has acted contrary to the purpose for which the moneys were transferred and held in that account and has breached her obligations to the plaintiff insofar as the moneys were held in the account for a special purpose which has failed.
The available jurisprudential analysis would be either that the moneys are held now on a resulting trust solely for the plaintiff (see in that regard the line of authority dealing with Quistclose trusts (Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567) where the special purpose for establishment of the joint account has failed - see George v Webb [2011] NSWSC 1608) or that moneys were at all times held on trust for the plaintiff or for the couple jointly and the transfer of moneys out of the joint account otherwise than for the couples joint benefit was a breach of trust by the defendant enabling the plaintiff to trace the moneys transferred out of the account and to recover the sums remaining in the account.
Ultimately, it is not necessary to determine on which of those bases the present case falls since on either basis the plaintiff can recover the amounts held in the defendant's bank account and those which the plaintiff has been able to trace into the other bank accounts.
I have been taken to the tracing exercise carried out by the CBA and the evidence of the deposits and transfers between the respective accounts from which I am satisfied that the moneys held in the defendant's Westpac accounts can be traced from the defendant's CBA account and I am satisfied that the relevant amounts held in the two Westpac accounts, a Westpac Life account and a Westpac Choice account, totalling $49,481.53, constitutes moneys held by the defendant on trust for the plaintiff, as well as the remaining funds held in the CBA bank account.
Insofar as the plaintiff seeks judgment in the sum of the whole amount that has been expended or withdrawn by the plaintiff from the defendant's CBA account, albeit recognising the unlikelihood that that amount will be able to be recovered, I am satisfied that judgment should be entered for the plaintiff in that full amount.

Orders

For those reasons, I make the orders sought. It is anticipated that the plaintiff will notify the respective banks of those orders in order to seek the payment out of the funds to the plaintiff, and I accept that that would be appropriate. 1. Judgment for the plaintiff against the defendant in the sum of $179,662.02 (Judgment Sum). 2. Order that the defendant pay to the plaintiff interest on the Judgment sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 9 November 2018 to date being $25,529.24. 3. Declare that all moneys in the Commonwealth Bank of Australia Limited account 06 2121 1115 6256 are: 1. the property of the plaintiff; and 2. held on trust by the defendant for the plaintiff. 1. Declare that all moneys in the Westpac Banking Corporation Limited account 032071 614866 and 732071 531769 are: 1. the property of the plaintiff; and 2. held on trust by the defendant for the plaintiff. 1. Order that the defendant pay the plaintiff's costs. 2. Vary the freezing order made on 14 November 2018 by Justice Lindsay to permit the payment out of the Commonwealth Bank of Australia Limited account 06 2121 1115 6256 and the Westpac Banking Corporation Limited accounts 032071 614866 and 732071 531769 to the plaintiff the moneys hereby declared to be the property of and held on trust for the plaintiff.

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: 16 November 2021

Thevar v Maharaj

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