Torok v Becker

As noted above, the deposit for the sale of the Glenhaven property was released to the deceased on 4 July 2017. Completion of the sale took place on 3 October 2017, so the balance of the purchase price should have been available to the deceased shortly after that date.
It must be noted from the schedule that three payments of $100,000 were made shortly after the deposit was released to the deceased, and six payments, five of $100,000 and one of $90,000, were made in the period between 9 October and 19 October 2017.
$290,000 was paid in respect of Mr Becker's Tesla business (save for part of the 10 July 2017 payment that was used for the deposit on the Beaumont Hills property).
The $100,000 payment on 14 July 2017 is claimed by Mr Becker to have been a repayment for household expenses and past work at Glenhaven and on the deceased's care.
Five of the payments, for a total of $500,000, were made in equal amounts between 12 and 19 October 2017 described as: "Transferred by my mother for us to pay her future expense, living costs and care".
As Mr Becker acknowledged in his affidavit, he has not yet had time to give evidence that explains how these sums were applied for the deceased's benefit. The Court made it clear on the various days of the hearing that it was important that Mr Becker give some indication as to how that money had been applied for the benefit of the deceased. No evidence on that subject was forthcoming.
The following considerations have caused me to conclude that Ms Torok has established a good arguable case that at least a substantial proportion of the payments that have been made out of the deceased's bank account to or for the benefit of Mr Becker were not made by the deceased, or were not made by her of her own free will and without undue influence or unconscionable conduct on Mr Becker's behalf.
In the light of the matters now alleged in the draft amended statement of claim, it is possible that the deceased voluntarily caused the $1,522,272.03 that was paid out of the proceeds of sale of the Glenhaven property to be paid to Mr Becker to enable him to purchase the Beaumont Hills property as a pre-payment of his two million-dollar legacy. However, at present there is no evidence that would satisfy me that, by reason of the conduct of Ms Torok, or the relative breakdown in the relationship between Ms Torok and the deceased, the deceased willingly chose to pay the remainder of her estate to Mr Becker, so that there would remain insufficient assets in her estate upon her death to pay the $1,000,000 legacy to Ms Torok. The deceased's last will was made on 31 August 2016, which was after the time when the nature of the relationship between Ms Torok and the deceased changed during late 2015. If the change in the relationship affected the deceased's testamentary intentions concerning Ms Torok, that was probably reflected in the disparity in the legacies that she included in her will in favour of her children. The evidence at this stage does not support a conclusion that the deceased decided to exclude Ms Torok from her testamentary bounty by giving the balance of her estate away to Mr Becker.
If the deceased made all of the payments herself, that was an extremely improvident course of action, because she left herself with less than $3,000 in cash at the date of her death, plus the realisable value of the shares referred to by Mr Becker. As almost all of the payments had been made by the end of 2017, that was a state of affairs that existed for over a year.
Mr Becker has not even attempted to explain why the deceased made five payments of $100,000 to him over seven days in October 2017 for "her future expense, living costs and care", or what was done with that money. According to Mr Becker's own description of the purpose of the payments, he should have used that money for the care of the deceased and retained any balance for her estate.
It is telling that, notwithstanding the payments of $100,000 to Mr Becker in October 2017, by 22 May 2018 it was apparently necessary for an additional $5,000 to be paid to cover the deceased's living expenses, and further small payments were required to be made thereafter.
The Court made it clear to counsel for Mr Becker during the hearing that it was an important matter for the Court to be told how Mr Becker had applied the money paid to him for the benefit of the deceased, even if Mr Becker could not be expected in the circumstances to provide a detailed account with vouchers. That was important information because it was obviously significant to the likelihood that the deceased had in fact made the payments voluntarily to Mr Becker, and it was also relevant to the issue before the Court as to whether the Court could safely permit Mr Becker to continue with his Tesla parts business using capital to which Ms Torok may ultimately become entitled by reason of the final orders made by the Court. Mr Becker steadfastly declined to provide any explanation.
In par 10 of his 14 November 2019 affidavit, Mr Becker listed the following assets as being in his name or in his company's name: Commonwealth Bank Smart Access account 478 $114,263.14 Commonwealth Bank Smart Access account 473 $2.39 Commonwealth Bank NetBank account 704 $9.19 Westpac Business Account $22,994.60 Digital assets $385,068.87 Tesla aftermarket performance parts $307,748.70 Solicitor trust account $350,000 2016 Ford Ranger $45,000 2018 Ford Raptor $65,000 2019 Suzuki Jimmy $30,000 2005 Nissan Patrol (to be restored) $65,000 2005 Mercedes Van $2,500 2019 Tesla Model 3 Performance $80,000 Total $1,467,586.89

Counsel for Mr Becker advised the Court on 21 November 2019 that Mr Becker's legal fees had increased to $47,079.80 inclusive of GST.
The asset referred to as "Digital assets" consists, as I understand it, of some form of digital currency that Mr Becker acquired for the purpose of trading in order to make a profit. $340,000 of the $350,000 paid into Mr Becker's solicitor's trust account came, as I understand it, from "Digital assets" previously owned by Mr Becker.
The $307,748.70 in "Tesla aftermarket performance parts" concerns specialised Tesla parts acquired by Mr Becker for the purpose of on-sale at a profit. One of the principal issues on this application is whether any order that the Court makes should accommodate the continuing pursuit by Mr Becker of his Tesla parts business.
Mr Becker received $1,522,272.03 out of the proceeds of sale of the Glenhaven property. On Mr Becker's own evidence he and his wife received $1,225,295.80 from the sale of the Beaumont Hills property. As noted, it is not clear why Mr Becker and his wife needed to sell the Beaumont Hills property at a loss of $296,976.23. As that property was purchased with the money paid to Mr Becker on completion of the sale of the Glenhaven property, Mr Becker and his wife should have received that money in their hands. Mr Becker also received sums of $790,539.83 and $1,030,596.42 out of the deceased's bank accounts. The total disposable funds received is $3,046,432.05 (after allowing for the loss on the Beaumont Hills property). Some part of the $790,539.83 may have been paid in the renovation of the Glenhaven property. However, Mr Becker's case was that he had paid a substantial amount for the renovation from the sale proceeds of the house in which Mr Becker and his family had formerly lived before they moved into Glenhaven. Mr Becker should therefore have retained a significant part of the $790,539.83. Of the $1,030,596.42, according to Mr Becker, in the order of $345,000 was paid for the purchase of a Tesla Model X and Tesla parts for the Tesla business. I understand that the Tesla Model X has been sold, so Mr Becker should have received money from that sale.
According to Mr Becker, he has current net assets of $1,318,830.25. The available evidence does not allow any accurate calculations to be made, but it strongly appears that Mr Becker received assets from the deceased with a substantially higher value than his current net assets, and he has provided no satisfactory explanation, at this interlocutory stage of the proceedings, as to what happened to the money.
As I have noted above, this is an important issue because Mr Becker wishes to be permitted to use part of his assets as capital to fund the continuation of his Tesla aftermarket performance parts business to which he attributes a value of $307,748.70 for the parts.
There is an obvious risk that, if the Court permits Mr Becker to take that course, he may lose money. That risk is all the greater if it is the case that any substantial part of the unexplained receipts of Mr Becker from the deceased was lost by improvident or incompetent business dealings by Mr Becker. The absence of an explanation from Mr Becker magnifies the difficulty faced by the Court in trying to make a fair and proper judgment as to where the balance of convenience lies.
A further difficulty arises out of the fact that Mr Becker gave evidence that, from the time he moved into Glenhaven to look after the deceased, he and his wife were responsible for the deceased's care, and as her need for care increased, both Mr Becker and his wife were required to give up ordinary employment. In particular, after the carpet overlocking business failed, Mr Becker said that he attempted to start a business distributing Tesla car parts, which he had to put on hold in order to look after the deceased.
Mr Becker said in par 27 of his 8 November 2019 affidavit that he ceased his carpet overlocking business in 2017, and in par 53: Since I became my mother's full-time carer with Susan, I have not been in receipt of any income. I am trying to generate income at this point in time by resurrecting the Tesla parts business, completing the car restoration and also undertaking courses with Susan for the trading analysis. Otherwise, I am completely reliant upon the sales proceeds of Beaumont Hills to support my family…
Evidence tendered on behalf of Ms Torok showed that, on 20 November 2018, Mr Becker registered a business name "Hills Carpet Binding". Advertising for the business advises that it provides car mats and carpet binding. Ms Torok's solicitor's 19 November 2019 affidavit established that Mr Becker had done some work recently in making mats and rugs from carpet offcuts. Ms Torok did not tender the exhibit to her solicitor's affidavit that he said contained invoices issued by Mr Becker's company for carpet services since 1 January 2019, although the solicitor asserted in his affidavit that such invoices existed.
Mr Becker responded in his 20 November 2019 affidavit by conceding that his company had invoiced about $8,000 for the carpet business in the first half of 2019 (after allowing for an invoice that should have been credited to the Tesla parts business). He said that he had closed the carpet business as at 8 November 2019, so that he could concentrate on importing Tesla spare parts and trading in Bitcoin. Mr Becker accepted that he still retained the machines necessary to conduct the carpet overlocking business, and that he may be able to commence operating as a carpet binding tradesman again.
In his 14 November 2019 affidavit, Mr Becker gave the following evidence concerning his Tesla parts business.
Mr Becker acquired a current model Tesla motor vehicle for $97,960, which I understand from the evidence is used as a demonstration vehicle, and its possession by Mr Becker appears to be a necessary condition of the arrangements which he has with the American distributor of the parts. Mr Becker also ordered parts for $123,271.59. The total price of $221,231.59 was paid out of the proceeds of sale of the Beaumont Hills property. The parts have not arrived in Australia as Mr Becker needs to arrange their transport.
In 2017, Mr Becker also ordered Tesla parts for the sum of $184,477.11. Delivery of these parts was deferred when Mr Becker put his Tesla parts business on hold. These parts are due to arrive in the next two months, and indeed part of the shipment arrived in Australia on the day Mr Becker swore his affidavit.
In par 15 of this affidavit, Mr Becker listed the expenses that he anticipated for the Tesla business for the immediate future, which I paraphrase as follows: a. Freight costs estimated $6,000 b. GST to be paid on arrival in Australia $18,500 (refundable) c. Costs of upgrading existing Tesla to display the parts $5,000 d. Storage of parts pending sale $350 per month e. Duty, taxes and customs fees estimated $2,500-$3,000 f. Charge for moving container to storage estimated $500 g. Travel, promotions, training, installer certifications and website $2,500 h. Travel costs for next 12 months $10,000
Mr Becker said in par 16 that he believed the sum of $80,000 will be needed for working capital to adequately run the Tesla parts business.
In Mr Becker's 20 November 2019 affidavit, he said in par 15 that in the calendar year 2019 he has sold $30,926.76 of Tesla parts. The sales in the period 1 July 2019 to 30 September 2019 were $7,172.73.
Mr Becker provided evidence, which I will accept on this interlocutory hearing, that it is reasonable for him to expect that he will make a gross margin of approximately 43% on the sale of Tesla parts. On the assumption, which Mr Becker claimed to be conservative, that all of the $307,748.70 worth of parts will be sold in the 2020 calendar year, if he achieves the expected sales margin, he would earn a gross profit of $132,331.94. Mr Becker estimated that when all of the parts arrive in Australia, he will need to pay $30,774.87 in GST, although that should be recovered when his next Business Activity Statement is lodged.
Although Mr Becker submitted that Ms Torok had not established a sufficiently strong interlocutory case to justify the Court imposing any further restraint on the use by Mr Becker of his assets than is contained in the undertaking given by him to the Court on 31 October 2019, his counsel provided to the Court, on a without admissions basis, a form of short minutes of order that the Court might consider to be appropriate if it did decide to impose further restraints on Mr Becker.
It will be appropriate to set out the draft short minutes of order in full, as that will provide a suitable framework for the discussion of the orders that should be made, given that I have found that Ms Torok has established that the Court should make orders to preserve the utility of any orders that Ms Torok may achieve at the final hearing of these proceedings: On the basis that the plaintiff and Mr Adam Torok, and each of them, give the undertakings referred to below, the Court orders that: 1. Within 7 days, the defendant to transfer the further sum of $385,000.00 to his solicitors Austin Giugni Martin to be held in a controlled monies account in the name of the defendant. 2. The defendant to forthwith use his best endeavours to sell the 2016 Ford Ranger, the 2019 Suzuki Jimmy and the 2005 Mercedes Van, refereed to at paragraph 10 of the defendant's affidavit dated 14 November 2019. 3. Upon the sale of all three vehicles referred to in order 2 above, the defendant to repay the 2016 Ford Ranger Loan referred to in paragraph 10 of the defendant's affidavit dated 14 November 2019 and to pay the balance of the proceeds of sale, less any reasonable selling expenses, to his solicitors Austin Giugni Martin to be held in the controlled monies account referred to in order 1 above. 4. Subject to orders 5 to 9 below, the defendant not to transfer the monies referred to in orders 1 and 3 above from the controlled monies account until 7 days after final judgment at first instance in these proceedings or further order of the Court. 5. The defendant be permitted to withdraw in each calendar month from the controlled monies account referred to in orders 1 and 3 above the sum of $8,500.00 above in relation to his and his family's living expenses less the following amounts: (a) the amount of any profit made by the defendant in the previous calendar month from the Tesla parts business; (b) the amount of any net salary or wage earned by the defendant in the previous calendar month; and (c) after the 2016 Ford Ranger Loan referred to in order 3 above has been repaid, the sum of $1,102.11. 6. The defendant be permitted to withdraw from the controlled monies account referred to in orders 1 and 3 above a sum to prepay 12 months rental accommodation for the defendant and his family, together with the necessary bond. 7. The defendant be permitted to withdraw from the controlled monies account referred to in orders 1 and 3 above monies required to pay the legal fees which he has incurred for the period to 20 November 2019. 8. Subject to order 9 below, the defendant be permitted to withdraw monies from the controlled monies account referred to in order 1 and 3 above the monies required to pay the legal fees which he will incur in connection with these proceedings and the proposed family provision proceedings to be commenced by the defendant, including to place monies in trust as required for the defendant's solicitors including for counsel's fees. 9. In relation to monies to be withdrawn by the defendant pursuant to order 8 above, the defendant to give the plaintiff 14 days['] written notice of the amount of the proposed withdrawal and the defendant be permitted to make that withdrawal unless the plaintiff has applied to the Court in relation to the payment within the 14 day period. 10. The defendant to notify the plaintiff in writing within 7 days after the end of each calendar month of the deposits and withdrawals made in that calendar month from the controlled monies account referred to in order 1 and 3 above pursuant to orders 1 to 9 above. 11. Within 7 days, the defendant to establish a new bank account in the defendant's name and to transfer the sum of $80,000.00 to that bank account. 12. The defendant to deposit all payments received in respect of the Tesla parts business into the bank account referred to in order 11 above and to make all payments in respect of the Tesla parts business from that account. 13. The defendant to make no withdrawals from the bank account referred to in order 11 above other than: (a) in respect of the Tesla parts business; and (b) in payment of any profit made in any particular calendar month (being the payment referred to in order 5(a) above). 14. The defendant to notify the plaintiff in writing within 7 days after the end of each calendar month of the deposits and withdrawals made in respect of the bank account referred to at order 11 above in that calendar month. 15. Liberty to the defendant to apply for a variation of the above undertaking upon 3 days' notice. 16. Costs reserved. Undertakings given to the Court by the plaintiff and Mr Adam Torok and each of them: (1) The plaintiff gives the usual undertaking as to damages to the Court in respect of the orders referred to above. (2) The plaintiff and Mr Adam Torok and each of them undertake to the Court not to transfer or further encumber the real property located at [redacted] until 7 days after final judgment at first instance in these proceedings or further order of the Court. (3) The plaintiff and Mr Adam Torok and each of them undertake to the Court not to increase the amounts owing in respect of the NAB Home Loan [redacted] and the NAB Business Loans [redacted] above the amounts referred to in paragraph 8 of the plaintiff's affidavit dated 8 November 2019 until 7 days after judgment at first instance in these proceedings or further order of the Court. (4) The plaintiff and Mr Adam Torok and each of them undertake to the Court not to dispose of, deal with or diminish in value the sum of [redacted] held in NAB account [redacted], which is referred to in paragraph 8 of the plaintiff's affidavit dated 8 November 2019, until 7 days after judgment at first instance in these proceedings or further order of the Court and to charge the sum held in that bank account as security for the plaintiff's obligations referred to in undertaking (1) above.
Ms Torok, by leave, responded to Mr Becker's draft short minutes of order by providing the Court with a marked-up version of those short minutes of order containing amendments suggested by Ms Torok.
Noting that Mr Becker stated that his assets included an amount of approximately $114,000 in a Commonwealth Bank account, Ms Torok amended Mr Becker's order 1 to require him also to pay the $114,000 into the controlled monies account.
Ms Torok then amended order 2 to require Mr Becker to sell the 2005 Nissan Patrol as well as the other three vehicles.
Ms Torok then deleted order 5 that made provision for Mr Becker's family living expenses.
That part of order 8 that permitted Mr Becker to pay legal fees for his proposed family provision proceedings and to place monies in trust with his lawyers was also deleted.
Ms Torok deleted orders 11 to 14, which provided for Mr Becker to establish a working capital account of $80,000 to operate his Tesla parts business.
Ms Torok included an order 16 that would require Mr Becker to pay her costs of and incidental to the application for interlocutory relief.
Finally, Ms Torok deleted all of the undertakings in Mr Becker's short minutes of order, and added an order 17 noting that orders 2 and 3 made by the Court on 31 October 2019 were to continue in force.
Apart from increasing the amount placed by Mr Becker into the controlled monies account by $114,000, the changes sought by Ms Torok would prevent Mr Becker using the Nissan Patrol vehicle for the purposes of his Tesla parts business, as he wishes to do. It would deprive Mr Becker of access to specific money for his family's living expenses, and it would prevent him having a capital fund to operate his Tesla parts business. That outcome would jeopardise the value of Mr Becker's existing investment in that business. It would prevent Mr Becker from earning income from that business, and would oblige him, if he could, to support himself and his family by restarting the carpet overlocking business.
I should record that, as it was necessary for the Court to reserve its judgment at the end of the hearing, I made an order permitting Mr Becker to pay the money necessary to secure the lease of a residence for a period of 6 months.
I will start the consideration of what orders are appropriate from the perspective of the position that Ms Torok will likely be in if she succeeds in these proceedings. That is an exercise that necessarily requires some speculation. I propose to put aside, as beyond the present knowledge of the Court, the possible effect of Ms Torok's application for a family provision order. An appropriate assumption is that, if sufficient assets had remained in the deceased's estate, Ms Torok would have received a legacy of $1,000,000. There were, as noted above, apparently sufficient assets in the estate at the date the deceased's last will was made to create a reasonable prospect that Ms Torok would receive this legacy.
Mr Becker received $1,522,272.03 out of the proceeds of sale of the Glenhaven property. He lost $296,976.23 of that amount on the sale of the Beaumont Hills property. He then, as noted above, received sums of $790,539.83 and $1,030,596.42. The total benefit received by Mr Becker was $3,343,408.28, which includes the amount that he subsequently lost.
Mr Becker is likely to be able to establish at the hearing that some amount of that money is properly attributable to renovations of the Glenhaven property and the care and accommodation of the deceased. Those expenditures will be proper charges against the deceased's estate, and should not be notionally considered as being available to pay the legacies provided for in the will.
As, for the purposes of this interlocutory hearing, Ms Torok has treated the $790,539.83 as being presumptively payments for the benefit of the deceased, it will be reasonable for the Court to treat those payments in the same way. For a similar reason, it will be reasonable for the Court to treat the payments to Mr Becker of $1,522,272.03 and $1,030,596.42 as being amounts that Ms Torok may succeed in establishing should not have been paid to Mr Becker. This is not a particularly scientific division, and it may be that Mr Becker will fail to demonstrate that some of the payments within the $790,539.83 total were made for the deceased's benefit, but he may also demonstrate that some of the payments within the $1,030,596.42 total were so made.
If, at the deceased's death, the two amounts of $1,522,272.03 and $1,030,596.42 had remained in her estate, then broadly $2,500,000 would have been available from which to pay the legacies required by the deceased's will. The legacies would likely have abated proportionally, so that Ms Torok would have been paid a legacy of $833,333 and Mr Becker would have received $1,666,666.
In these circumstances, given that the Court cannot realistically make orders that provide complete security to Ms Torok, I have concluded that it will be reasonable to aim to ensure that $800,000 is preserved to protect the utility of the orders that the Court may make in favour of Ms Torok.
Ms Torok is already protected by the $350,000 that is held by Mr Becker's solicitors in accordance with the undertaking given by Mr Becker on 31 October 2019.
Order 1 in the short minutes of order prepared on behalf of Mr Becker would initially add $385,000 to this amount, giving a total of $735,000.
If the vehicles referred to in order 2 were sold, then on the basis of the statement of assets and liabilities given by Mr Becker that is set out above, an amount of $22,500 would be paid into the controlled monies account, less selling costs. That would depend upon Mr Becker being able to sell the vehicles. It would also apparently have the benefit of reducing Mr Becker's call on the fund for living expenses by $1,102.11 per month in accordance with order 5(c).
However, if the withdrawals permitted by the draft short minutes of order were made, and making the arbitrary assumption that the proceedings might be determined by the Court within 12 months, the total in the controlled monies account would be depleted by: (1) $8,500 per month or $102,000 (less any adjustments as per orders 5(a) to (c)); (2) rent and bond of $42,900 in accordance with order 6; (3) $47,079.80 for legal fees to date, plus potentially an unknown amount to hearing in accordance with order 7; and (4) $80,000 as capital for the continuation of the Tesla parts business in accordance with order 11.
Subject to the various adjustments that are possible, particularly if the Tesla parts business achieves some success, over 12 months the amount in the controlled monies account would be reduced by $271,979, to which likely will be added Mr Becker's legal fees to the end of the hearing.
If only those adjustments were required to be made, then the amount in the controlled monies account would be reduced to roughly $465,000.
However, Mr Becker's draft short minutes of order appear to ignore the amounts of $114,263.14 and $22,994.60 in his bank accounts.
If the $114,000 was paid into the controlled monies account, it would initially contain $849,000, and would be reduced to $579,000, instead of $465,000 as a result of the transactions considered above.
It is necessary also to take into account that Mr Becker has Tesla parts, provided they are landed in Australia and all necessary costs paid, with a purchase price of $307,748.70, plus a 2019 Tesla Model 3 vehicle with a value of $80,000, which he uses as a demonstration vehicle in the parts business. Mr Becker also has the Nissan Patrol vehicle said to be worth $65,000. If one accepts those amounts at face value, Mr Becker has an additional amount of $452,748.70 that will be available to meet any judgment obtained by Ms Torok, in addition to the amount in the controlled monies account, which subject to the payment of additional legal fees, should not fall below $579,000, if the additional $114,000 is paid into that account.
Accepting that there is an unavoidable unreality in the arithmetic, there would be assets valued at no less than $1,031,748.70 available to meet any judgment obtained by Ms Torok, no less than $579,000 of which should be immediately available in a controlled monies account (which admittedly does not take account of additional legal fees in a presently unknown amount).
In all of these circumstances, and doing the best I can, I have decided that the Court should make interlocutory orders that have the following effect.
First, Mr Becker should be ordered to pay the additional $385,000 into the controlled monies account.
Secondly, as Mr Becker has not offered any good reason to the contrary, he should also be ordered to pay the additional $114,000 into the controlled monies account. It is that additional payment that is essential to make the balance of the orders reasonably fair in the interests of both parties.
Thirdly, Mr Becker should be left to retain the $22,994.60 in the Westpac account, as a small float to cover contingencies.
Fourthly, I would not require Mr Becker to sell the Nissan Patrol vehicle, although he should be required to sell the Ford Ranger and the Suzuki Jimmy. There should be a general order that Mr Becker should not sell any of his assets, other than the Tesla parts, without the leave of the Court. Although the Nissan Patrol vehicle may not realise the value of $65,000, it will be an asset available to meet any order made in Ms Torok's favour. Its availability is also apparently necessary to aid Mr Becker's operation of the Tesla parts business.
Fifthly, given that the Mercedes van is only said to be worth $2500, I would not require its sale as there is evidence that Mr Becker has used the vehicle for the purposes of his former carpet overlocking business. That will reduce the amount that can be paid into the controlled monies account from the sale of the vehicles by $2,500. The Court cannot make an order that requires Mr Becker to recommence that business in order to add to his family's income, but in the circumstances it would probably be wise for him to do so. For the small sum involved, the Court would not want to preclude him from augmenting his family's income in that way. Further, if Mr Becker does not diligently attempt to earn an income, and relies on the living expenses that the orders will permit him to withdraw from the controlled monies account, he may be at risk of the Court revising the orders on application by Ms Torok.
The sixth matter that requires consideration is whether the Court should permit Mr Becker to withdraw an amount each month from the controlled monies account to cover his family's living expenses. The approach submitted by Ms Torok would effectively deny Mr Becker any monthly income, unless he could earn it from engaging in the carpet overlocking business. Mr Becker has a wife and three children, and neither Mr Becker nor his wife has regular employment. The prospects of success demonstrated by Ms Torok are not so great as to cause the Court to deny Mr Becker an income for his family's living expenses.
Those expenses are set out by Mr Becker in par 12 of his 14 November 2019 affidavit. The total is $7,634.84, which includes a monthly payment of $1,102.11 for the Ford Ranger vehicle, which is to be sold, and what I assume to be $943.73 for the Ford Raptor vehicle, which is to be retained for Mrs Becker's use.
I do not know why Mr Becker has sought an order that he be entitled to deduct $8,500 per month for living expenses, when his affidavit only justified an amount of $7,634.84. In considering the reasonableness of that amount, it must be remembered that it does not include an amount for rent, as that will be separately provided for. I note that the amount allowed for food, including dining out, is $2,400 per month. It is difficult for a court to make a judgment as to the reasonableness of a list of expenses for a family of five without any supporting evidence. However, I have concluded that an amount of $6,000 per month should be sufficient, as some of the expenses should be able to be trimmed.
As I think that order 5 as proposed by Mr Becker should be made, save for an adjustment to the sum allowed, then the amount deducted from the controlled monies account should be reduced by $1,102.11 when the Ford Ranger loan is paid out, and may be further reduced by any profit or income earned by Mr Becker.
The seventh matter is that there is no issue about order 6 being made to enable Mr Becker to pay rent for his family's accommodation.
Also, eighth, orders should be made to enable Mr Becker to pay his legal fees broadly in the terms of orders 7 to 9 proposed by Mr Becker. The orders should provide that Ms Torok may relist the proceedings before me, if I am available, under order 9, to consider the reasonableness of fees charged by Mr Becker's lawyers. It should be assumed that I will require strict economy in the incurring of legal fees, and Mr Becker's lawyers will be at risk if I am not satisfied of the reasonableness of the fees.
Mr Becker has not yet been required to serve his evidence in response to the substance of Ms Torok's claim. Mr Becker must be required to serve his evidence in response expeditiously. He will be required to explain in detail the factual justification for his claim to be entitled to all of the monies paid to him to the exclusion of Ms Torok. He will also be required to explain in detail what happened to all of the money, and in particular how it was applied in repayment of monies owed by the deceased to him or for her benefit. Mr Becker has not yet been required to demonstrate the strength of his case. It has not yet been established that it will be proper to permit Mr Becker to spend a substantial amount of what might turn out to be Ms Torok's money in conducting the defence of these proceedings, as a consideration of the prospects of his success may not warrant that course.
The orders should include leave being granted to Ms Torok to relist the matter before me if she wishes to make an application based on the argument that Mr Becker's evidence does not warrant Mr Becker being permitted to spend substantial amounts on legal fees in the defence of the case, when he could take some other course such as the sale of some of his remaining assets.
The ninth matter is that I consider that the orders should permit Mr Becker to continue with his Tesla parts business. If he can make a profit, then that will be to his and Ms Torok's benefit, as it will reduce the amount that Mr Becker will be entitled to withdraw from the controlled monies account for his family's living expenses. It will also reduce the risk to Ms Torok under the usual undertaking for damages that Ms Torok will be required to give. Although there are reasons to be uncertain as to whether Mr Becker will be successful in restarting his Tesla parts business, the Court cannot foresee the future. It would not be warranted for the Court to impose upon Mr Becker a risk that his investment in the Tesla parts business be wasted. Mr Becker must consider how he will support himself and his family after the completion of these proceedings. The Court should not place his opportunity to make a success of the Tesla parts business in jeopardy.
Order 11 as drafted for Mr Becker assumes that working capital of $80,000 will be sufficient. Mr Becker must satisfy himself of that fact.
The parties should give careful thought to what type of accounts should be provided by Mr Becker to Ms Torok each month. Those accounts should be as simple as possible, but it may be that information concerning the transactions on the bank account will not be sufficient. Ms Torok must be able to ascertain the amount of the profit on sales, and that may not be a straightforward matter to be determined from the bank account details. Mr Becker should only be entitled to use as each month's living expenses the amount to be allowed in order 5. Any monthly profit in excess of that amount should be used to top up the controlled monies account.
There should be a term that requires Mr Becker to deal with the assets in the Tesla parts business, which includes the Tesla motor vehicle, only in the usual course of business, so that the value of those assets that are left after ordinary trading will remain available to meet any order made by the Court in favour of Ms Torok.
Ms Torok should also have leave to relist the matter before me after Mr Becker has traded the Tesla parts business for 3 months to explore, if she wishes, the question of whether Mr Becker has demonstrated a sufficient level of success to warrant the continuation of the interlocutory orders that permit him to operate the Tesla parts business.
Tenth, at this stage of the proceedings, given the interlocutory outcome, the Court should reserve the costs of the application. The application was required to be dealt with over a number of days, but that was in part caused by Ms Torok's late service of her draft amended statement of claim. It was also caused by Mr Becker's need to provide additional evidence to the Court to explain, to the extent that he did give an explanation, the payments that were made to him out of the deceased's bank accounts.
Finally, Ms Torok will be required to give to the Court the usual undertaking as to damages, but not the other undertakings sought by Mr Becker in his draft short minutes of order. No reason has been demonstrated for the Court to depart from the usual procedure in respect of the requirement that a plaintiff give the usual undertaking as to damages to support the making of interlocutory orders against the defendant.
The orders to be made should provide for the future case management of these proceedings.
I have noted above that Ms Torok was required to give an undertaking that she would make an application for expedition. I will not interfere with that undertaking, but I fear that it may not find favour with the Expedition List Judge, particularly if the application is made before the pleadings are complete and Mr Becker has served his evidence. I am concerned that this matter does not satisfy the usual criteria for expedition. The real need for expedition is to obtain as early a judgment as possible in order to avoid the possible outcome that Ms Torok succeeds but the assets available to meet the judgment in her favour have been expended by Mr Becker during the course of the proceedings.
If Ms Torok succeeds on her claim as pleaded in the draft amended statement of claim, she will be enforcing an obligation that Mr Becker owes to the deceased's estate rather than Ms Torok. Prayer 5 of the draft amended statement of claim seeks an order under Uniform Civil Procedure Rules 2005 r 7.10 that Ms Torok be appointed as the representative of the deceased's estate for the purpose of the relief sought in paragraphs 8 to 12 and 15 to 19. The decision in Hewitt v Gardner [2009] NSWSC 705 at [87] would appear to justify the making of that order. The parties did not deal with this question in their submissions, and they have not included such an order in their contending short minutes of order. Given that the parties are the only persons interested in the estate of the deceased, it will be cost-effective if Ms Torok is appointed as the representative of the estate for the purposes of these proceedings in so far as they concern the interests of the estate. The only alternative would be to appoint an administrator ad litem, but that would add unnecessarily to the costs of the proceedings, which plainly is a matter to be avoided.
It appears that the draft amended statement of claim was prepared quickly after the additional payments out of the deceased's bank accounts to Mr Becker were discovered by Ms Torok. It is in the interests of both parties that their legal representatives carefully consider all of the issues that should be raised by the pleadings in this matter. Any need for later amendments will only exacerbate the problem caused by the need to incur legal costs in resolving the dispute as to the deceased's estate. As matters stand, if Ms Torok succeeds, Mr Becker will be ordered to restore money to the estate. If, at that time, there is dispute between the parties as to their entitlements under the will, it will probably be necessary for the Court to make a grant of administration with the will annexed to an appropriate third party in order to resolve any disputes. It would be preferable if all possible disputes could be determined by the Court in these proceedings. That will not be the result if the matter proceeds on the existing draft amended statement of claim. If, say, Mr Becker is ordered to restore $1,000,000 to the estate. Does that mean that the legacies in favour of the two parties abate equally so that Ms Torok receives $333,000 and Mr Becker receives $667,000? What happens if Mr Becker only has sufficient funds to restore $800,000? It may be that Mr Becker establishes that the deceased in fact voluntarily conferred some of the benefits on him. If so, was the result that the $2,000,000 legacy granted by the will was adeemed in equity to the extent of the value of the benefit? It is very much in the interests of the parties for proper attention to be given to all of the questions that may arise under the law of succession, to avoid the possibility of the need for new proceedings after these proceedings have been determined. That will be particularly so if it becomes necessary for an administrator to be appointed.
The parties should consider these reasons, discuss the appropriate short minutes of order to be made, and deliver those orders to my associate within 7 days. To the extent that agreement cannot be reached, competing short minutes of order should be delivered within the same timeframe in the form of short minutes of order prepared for Mr Becker with Ms Torok's suggested amendments made in mark-up on the orders prepared for Mr Becker. If necessary, my associate will arrange to relist the matter for further argument.

At a glance

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Judgment (6 paragraphs)

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