Madden v Madden [2014] NSWSC 1098 (7 August 2014)

Last Updated: 14 August 2014

Supreme Court New South Wales

Case Title:	Madden v Madden
Medium Neutral Citation:	[2014] NSWSC 1098
Hearing Date(s):	7 August 2014
Decision Date:	07 August 2014
Jurisdiction:	Equity Division
Before:	Stevenson J
Decision:	Application for leave to re-open refused
Catchwords:	PROCEDURE - application by plaintiff to re-open case after judgment pronounced but before final orders entered - material relied on in support of application available but not tendered at the hearing - whether material is of probative value - whether material contradictory of evidence already given by the plaintiff - whether delay in the application prejudicial to the defendants
Legislation Cited:	Bankruptcy Act 1966 (Cth)
Cases Cited:	Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 Falloon v Madden; Madden v Madden [2012] NSWSC 652 Madden v Official Trustee in Bankruptcy and Prentice [2014] FCA 446 Wentworth v Woollahra Municipal Council (No 2) [1982] HCA 41; 149 CLR 672
Category:	Interlocutory applications
Parties:	Alexander William Madden (Plaintiff) Michael Patrick Madden as executor of the estate of the late Margaret Rose Falloon (First Defendant) Eve Karen Falloon (Second Defendant) Chad Russell Falloon (Third Defendant)
Representation
- Counsel:	Counsel: M B Evans (Plaintiff) R N O'Neill (Second and Third Defendants)
- Solicitors:	Solicitors: Abraham Legal Pty Ltd (Plaintiff) Coleman Greig Lawyers (Second and Third Defendants)
File Number(s):	SC 2011/25063

EX TEMPORE JUDGMENT (REVISED)

Introduction

1. I heard these proceedings on 16 and 17 April, 3 May and 13 June 2012 and gave judgment on 14 June 2012 (Falloon v Madden; Madden v Madden [2012] NSWSC 652) ("the judgment"). In these reasons I shall use the defined expressions adopted in the judgment, and will not, except so far as is necessary, set out the background or reasoning in the judgment.

2. A central issue before me in 2012 was the extent to which Bill paid for the purchase, in Margaret's name, of the Woolooware property. I concluded (at [135] of the judgment) that Bill and Margaret contributed very nearly equally to the purchase price of Woolooware and that it followed that Margaret's estate held 50.5 per cent of the interest in Woolooware on a resulting trust for Bill (at [137] of the judgment).

3. Another issue before me was the source of funds used, on 23 December 2004, to discharge the Radcliffe debt secured by mortgage over the Woolooware property. I accepted Bill's evidence that the source of those funds was the proceeds of sale of the Exceller Avenue property, which, at the relevant time, was registered in the name of Woolooware Investments (see [188] to [190] of the judgment). However, as I could not come to any conclusion as to whether Bill made any financial contribution to the purchase of the Exceller Avenue property, I could reach no conclusion concerning Bill's claim that Margaret's estate was indebted to him in an amount equal to the payout of the Radcliffe loan (see [191] of the judgment).

4. As a number of matters remained for consideration following delivery of my judgment of 14 June 2012, no orders have yet been made in the proceedings.

5. One of those issues was that, as Bill was a bankrupt at the relevant time, any interest that Bill had in Woolooware had vested in the Official Trustee. To resolve that issue, Bill commenced proceedings in the Federal Court of Australia. Those proceedings have now been resolved by a judgment of Farrell J given on 8 May 2014 in Madden v Official Trustee in Bankruptcy and Prentice [2014] FCA 446. The effect of her Honour's reasons is that Bill's interest in the Woolooware property has re-vested in him pursuant to s 127 of the Bankruptcy Act 1966 (Cth).

The application before me

6. By notice of motion filed on 5 June 2014 (almost two years after delivery of the judgment) Bill now seeks leave to re-open his case "on the issue of the nature and extent of his equitable interest" in Woolooware and to read affidavits made by him, by his former solicitor, Mr Christopher Jurd, and by his current solicitor, Mr Daniel Abraham.

7. In effect, Bill seeks to tender the documents annexed to Mr Abrahams' affidavit which are said to be relevant to the issues referred to at [2] and [3] above.

8. The affidavits of Messrs Madden, Abrahams and Jurd are read to explain the circumstances in which the application is now made.

9. This is not the first application made by Bill to re-open his case. On 13 June 2012, the day before judgment, Mr Evans, who appears for Bill, sought to read an affidavit by Mr Sid Hawach, a solicitor then acting for Bill. Mr Hawach purported to give evidence that Bill had "personally provided settlement funds" which Mr Hawach used to pay out the Radcliffe loan on 23 December 2004. For the reasons set out in an ex tempore judgment I delivered that day, I rejected that application.

10. Eve and Chad oppose Bill's application. Michael, Margaret's executor, and Bill's son, does not oppose it.

Background

11. These proceedings were commenced by Statement of Claim filed on 25 January 2011. At that time, Mr Jurd was Bill's solicitor. Bill swore two affidavits, one in chief on 1 June 2011 and the second in reply on 10 August 2011.

12. In about October 2011, Mr Jurd was diagnosed with a serious illness. Mr Jurd continued working on a reduced basis for some time. However, his health deteriorated and he gave up work in March 2012.

13. On the recommendation of Mr Hawach, Ms Jacqueline Saldaneri of Saldaneri and Associates, assumed conduct of the matter. In late March 2012 Mr Jurd left all his files on his desk for collection by Ms Saldaneri. In his affidavit, Mr Jurd said:

"As I recall there were two piles of files, each about two feet high plus a box with various loose papers and small files".

14. Ms Saldaneri filed an appearance for Bill in court on 16 April 2012, the day the hearing commenced. Ms Saldaneri was in court during the hearing and instructed Mr Evans.

15. In July 2012, a month after the judgment was delivered, Bill retained Mr Abraham as his solicitor. Mr Abraham advised Bill to get his files from his former solicitor. Bill did nothing for 12 months because, he said, he was recovering from surgery from an injury in late 2012.

16. Mr Abraham followed Bill up and in June 2013 Bill obtained the file from Ms Saldaneri. Bill doubted the file was complete. Nonetheless he made no further enquiries until late 2013 when, for the first time since March 2012, he spoke to Mr Jurd. Bill told Mr Jurd that he expected there would be more documents in the file and that Mr Jurd said:

"There were a number of files I had worked on and I left all those files with Sid [Hawach]. Do you know if they checked the secure room in the office where Sid stored documents".

17. Bill then asked Ms Saldaneri about the "secure room". Ms Saldaneri said she was unaware of such a room. A couple of days later Ms Saldaneri said she had located a "large box of files" from a "filing room which was locked". Bill collected those documents from Ms Saldaneri in late 2013 and delivered them to Mr Abraham in January 2014.

18. Nonetheless, this application was not made until June 2014. There was no explanation provided as to what happened between January and June 2014.

Relevant principles

19. The question whether leave should be granted to re-open is one which must be exercised with great caution and having regard to the public interest in maintaining the finality of litigation: Wentworth v Woollahra Municipal Council (No 2) [1982] HCA 41; 149 CLR 672 at 684 per Mason ACJ and Wilson and Brennan JJ.

20. In Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300, the High Court said that a case may only be re-opened where a party has, without fault on his or her part, not had the opportunity to be heard (per Brennan J at 309 and Dawson J at 317).

21. In Autodesk Mason CJ said at 303:

"...it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing."

The documents were available

22. In my opinion, a fundamental hurdle to Bill's application in this matter is that each of the documents now sought to be tendered was available at the hearing. Although it is clear that the documents did not come to Mr Evans's attention, each was in Mr Jurd's possession in March 2012, evidently in the "box with various loose papers" about which Mr Jurd gave evidence (see [13] above). They were thus available to be annexed to Bill's affidavits sworn in 2011, collected by Ms Saldaneri in March 2012 or tendered at the hearing before me in April 2012.

23. How it was that, in the transfer of Bill's files from Mr Jurd to Ms Saldaneri, the relevant documents were lost sight of, or not adverted to and not drawn to Mr Evans's attention, and how they ultimately came to be stored in the "secure room" to which Mr Jurd referred (see [16] above) is not revealed in the evidence.

24. Ms Saldaneri was not called to give evidence and her absence was not explained.

25. What is clear is that if there has been any "misapprehension" by me of the facts by reason of the documents now sought to be adduced not being tendered at the trial, that misapprehension is attributable "solely to the neglect or default of the party seeking the rehearing" (to adopt the words of the Chief Justice in Autodesk.)

26. The defendants, Chad and Eve, through their counsel, conducted the hearing upon the basis that Bill had deployed all of the evidence available to him. Although I have not yet made final orders (primarily because of the issues arising from Bill's bankruptcy) there has been what Chad and Eve were entitled to regard as a final determination of the issues referred to at [2] and [3] above.

27. For these reasons alone, my opinion is that Bill's application should be dismissed.

Some documents of little or no probative value; other documents are contradictory of evidence given by Bill

28. In any event, for the reasons that follow, the documents which are the subject of the application for leave to re-open in my opinion either cast no, or no significant light on the issues that I was called upon to determine; or contradict evidence that Bill has already given on those questions. For those further reasons I am not prepared to give Bill leave to re-open.

Margaret's contribution to Woolooware - Margaret's bank statements

29. The first category of documents sought to be tendered are records from the Australia and New Zealand Banking Group Limited. Those records comprise, first, 17 pages from Margaret's bank statements from 30 December 1993 to 28 March 1995, and, second, a memorandum dated 9 August 1999 from the "voucher management team" at the ANZ to a solicitor, a Mr Chris Ford. That memorandum sets out some details concerning the deposits made to Margaret's account in 1994 and annexes a deposit slip dated 8 March 1994 concerning a deposit of $80,000 to Margaret's account.

30. At the hearing in 2012 only one of these pages from Margaret's bank statements were tendered. It is referred to at [108] of the judgment. During the hearing I was told that this was the only available page from Margaret's bank records and that as the ANZ had destroyed its records from 1994 and 1995, it could not respond to a subpoena.

31. I have no doubt that Mr Evans conducted the case upon the basis of his belief that the one page from Margaret's bank statement was all that was available. However, the fact is that somewhere in his legal team's records, there were to be found all of the bank statements.

32. I concluded from the one page of Margaret's bank statement that was tendered, and from other evidence, that Margaret had contributed an amount of $401,046.72 to the purchase of Woolooware. That sum is comprised by the three amounts that I referred to at [118] of the judgment. The first was a sum of $71,000 that I concluded was from the deposit paid to Margaret in respect of the sale of her property at Kareela. The second sum, $129,000, was an amount that I held was probably paid to her by the purchasers of the Kareela property in advance of the Kareela settlement, see [99-107] of the judgment. The third was an amount of $200,353.33 shown as a debit on 3 February 1995 (the day before the settlement of the Woolooware purchase) on the one page from Margaret's bank statement in evidence.

The $200,353.33

33. As Mr Evans points out, the full set of bank statements reveals that the $318,208.08 standing to the credit of Margaret's account as at 28 December 1994 (the first figure on the one page tendered during the hearing) was the product of a large number of deposits made to her account throughout 1994. Those deposits were often in large round figures. The deposits included that of $80,000 to which I have referred, the deposit slip for which referred to a bank cheque of $80,000 and was signed "M Falloon".

34. Mr Evans submitted:

"On the basis of that evidence the court should find that the sum of $201,046.73 drawn from Margaret Falloon's ANZ account on 3 January 1995 was not money available to Mrs Falloon from the sale of the Kareela property but, rather, money paid into Mrs Falloon's account by or on behalf of Bill Madden and thus not a contribution by her but a contribution by him to the purchase of the Woolooware property."

35. I accept that perusal of all of the bank statements makes clear that the source of the 3 February 1995 debit of $201,046.73 was not from the sale of Kareela. However, I did not make a finding that that sum was funded from the proceeds of Kareela; the finding I made was that that sum had been paid from the sums standing to Margaret's credit: see [108-116] of the judgment.

36. More importantly, there was no evidence before me at the hearing that Bill made any of the deposits to Margaret's account. The evidence is, first, that the funds were credited to an account in Margaret's name. Second, the one deposit slip in evidence appears to be one that was completed by Margaret.

37. Mr Evans said he could adduce evidence, now, from Bill to the effect that he had made the deposits to Margaret's accounts in 1994 from his own funds. I am not, however, prepared to allow Bill, at this very late stage, to give such evidence. That evidence was available to be given, and should have been given, at the hearing before me in 2012.

The $129,000

38. As to the sum of $129,000, my finding that this was probably used to help fund the Woolooware purchase was based on documents which suggested that this sum was paid by the purchasers of Kareela to Margaret prior to the settlement of the Kareela property: see [99-107] of the judgment.

39. Mr Evans submitted that the full set of bank statements showed that the $129,000 had not been deposited to Margaret's account and that, on 6 February 1995, $200,000 had been withdrawn from the account.

40. Mr Evans also submitted:

"The withdrawal of the $200,000 from the ANZ account on 6 February 1995 suggests some other purchase or investment by Mrs Falloon of the Kareela moneys. On the balance of probabilities on the whole of the evidence now available it is more likely that Mrs Falloon would have used the $129,000 for the same purpose as the $200,000 rather than using it for the purchase of Woolooware."

41. I do not see the absence of a deposit of $129,000 to Margaret's account as casting any doubt on my findings. If, as I inferred, based on the material before me, the $129,000 was used to partly fund the Woolooware purchase, it is likely it was paid directly to the relevant solicitor's trust account, or to the purchaser of Woolooware rather than into the ANZ account.

42. Further, I do not see the hypothesis advanced by Mr Evans, as set out at [40] above, as being any more likely than the conclusions to which I came.

The $71,000

43. Mr Evans did not suggest that the ANZ documents were relevant to my conclusions concerning this amount.

The source of funds to repay the Radcliffe debt

44. The balance of the documents the subject of Bill's application related to the issue at [3] above, namely, the repayment of the Radcliffe debt.

45. The first document was an order made on 29 March 2005 in proceedings 5449 of 2001 in this Court. In those proceedings Bill was the plaintiff and Richard James Porter, in his capacity as Liquidator of Woolooware Investments, was defendant.

46. On that order there is a notation that Bill "will accept in full satisfaction of payment of [a debt the subject of the proceedings], the net proceeds of the sale of the defendant's property located at 7 Exceller Avenue, Bankstown".

47. In his affidavit, Mr Abraham has asserted that this showed that Exceller Avenue was "attributable" to Bill.

48. However, at the trial, Bill's evidence was that on 23 December 2004 (some three months before the making of this notation) he used the proceeds of Exceller Avenue to pay the Radcliffe debt (see [185] of the judgment). Thus, on Bill's evidence, the notation is irrelevant.

49. Another document is what appears to be a page from Woolooware Investments' management accounts entitled "cash management account". That document contains entries suggesting that the sale of Exceller Avenue occurred in February 2006, rather than on 23 December 2004 (when the Radcliffe debt was paid). While that evidence is consistent with the matters I noted in the judgment at [186], it contradicts Bill's evidence at [185].

50. Mr Evans submitted that these pieces of evidence could be reconciled on the basis that Bill obtained a bridging loan in December 2004, which he used to discharge the Radcliffe debt, and that it was this bridging loan that was discharged from the proceeds of the Exceller Avenue sale in February 2006.

51. However, Bill gave no such evidence before me, either in his affidavits or when he gave evidence on the 13 April 2012. Further, as I have mentioned, on 13 June 2012, I rejected Mr Evans' attempt to re-open to have Mr Hawach or Bill to give such evidence. I am not prepared to allow Bill to give such evidence now.

Delay

52. Finally, this application was made almost two years after the delivery of judgment. Although no final orders have been entered, my judgment represented a final determination of the issues in respect of which the documents now sought to be tendered are said to be relevant.

53. Were I to grant leave to re-open, Eve and Chad would be prejudiced by the delay, at least insofar as they would incur further costs.

54. I accept that because of the terms of Margaret's will (set out at [14] of the judgment), the delay in bringing this application has not delayed the time at which Eve and Chad might ultimately enjoy the fruits of the Margaret's legacy.

55. I also accept that Bill and his legal team have been obliged to spend time and resources on the Federal Court proceedings, only recently resolved.

56. However, the process by which Bill ultimately gained access to the box in the "secure room" was leisurely indeed, and Mr Abraham has had access to the documents since January 2014.

Conclusion

57. In all those circumstances, I have come to the conclusion I should not grant Bill leave to re-open.

58. I make the following orders:

(1) I order that the plaintiff's notice of motion of 5 June 2014 be dismissed with costs.

(2) I grant the parties leave to apply on short notice to my Associate to arrange a date for the further mention of the matter.

(3) I note that on that occasion I will expect to be told what issues remain for determination and what the parties propose as to how that determination should take place.

(4) I reserve for consideration on that mention date Mr O'Neill's application for an order that the costs of today be assessed and payable forthwith.

**********