Hayes v Hayes[2008] QDC 260

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff is the mother of the defendant. The plaintiff is the executrix of the estate of her mother, Mrs Iris Olson, and the defendant is the executrix of the estate of her uncle, Mr Colin Olson, the son of the late Mrs Iris Olson. The plaintiff alleges that Colin Olson misappropriated the funds held by her mother in a bank by making unnecessary withdrawals. It is alleged that he used these moneys for renovations to his house, excessive alcohol use and prostitution. The house was situate at 55 Lyndhurst Road, Boondall.

2. [2]
   Mrs Iris Olson was the maternal grandmother of the defendant and the mother of Colin Olson. Mrs Iris Olson had sold the house to Colin Olsen in 1985 for $45,000.00. From about 7 January 1999, Colin Olson assumed responsibility for the full time care of Mrs Iris Olson. She died on 7 December 2005. He did so until 25 July 2005. Colin Olson suicided on 19 October 2005. The defendant, his niece, applied for probate. The plaintiff required the will to be proved in solemn form. It was alleged that Colin Olson lacked the testamentary capacity to make the will dated 9 June 2005. His estate was left to the defendant and his brother, Noel Olson. The defendant applied for summary judgment in that application. The plaintiff’s challenge to the will failed.^[1]

3. [3]
   In the present case, the plaintiff alleges that Colin Olson withdrew the sum of $63,485.00 from the account of Mrs Iris Olson at the Commonwealth Trading Bank between April 1999 and May 2005. The total period which he actually cared for her was from 7 January 1999 to 25 July 2005 viz 341 weeks. The plaintiff alleges that it would have cost only $50.00 per week to provide for Mrs Iris Olson and that over that period the amount would be $17,050.00. If one averaged the $63,485.00 over 341 weeks, the weekly sum would be $186.17. By itself, that weekly sum is not excessive.^[2]  However, the plaintiff maintains that Colin Olson was in breach of his fiduciary duty to his mother, and that he converted monies to his own use and was guilty of deceit. The plaintiff’s case relies upon inferences. Counsel for the defendant, for the purposes of this application, accepts that Colin Olson owed a fiduciary duty to his mother, Mrs Iris Olson, not to misapply her moneys to his own use.

Evidence of allegations

4. [4]
   It is not disputed that there were withdrawals amounting to $63,485.00 during the period April 1999 to May 2005. It is disputed that Colin Olson withdraw those funds or that they were for his own use.^[3]  There is evidence from Noel Olson that Colin Olson had practised writing his mother’s signature for the purposes of withdrawing funds. It is asserted by Noel Olson that Colin Olson did not use the funds for his own use.^[4]  He did remark to Colin Olson, according to the plaintiff, that Colin “better not be ripping Mum off”.^[5]  That remark may have been somewhat cynical as there was no proof at the time, nor has Noel Olson asserted that in his recent affidavit. He further asserted that his brother would buy food and clothing, pay for medical bills and chemists bills. He could not believe that expenditure on those items would cost only $50.00 per week. He denied that his brother used prostitutes or drank excessively. He found those suggestions as “preposterous”, as was the allegation that his mother’s funds were used for renovations. It should be observed that there were withdrawals from the bank account of Colin Olson and they are supported by receipts for renovations. There is no proof that the funds of Mrs Iris Olson were used to pay for those renovations.

5. [5]
   The plaintiff’s case is based upon the following:^[6]

32. In response to paragraph 5 of Noel’s Affidavit, it was not until legal proceedings had begun between the Defendant and I that Noel told me during a conversation I had with him that:

32.1During Colin and the deceased’s life time, Colin had told Noel that he was going to withdraw the deceased’s funds;

32.2 To do this Colin had practised the deceased’s signature and would sign her as practised signature on withdrawal slips; and

32.3 In response, Noel said to Colin: “you better not be ripping Mum off.”

33. Never during either the deceased’s or Colin’s lifetime was I ever told by anyone that Colin was withdrawing the deceased’s funds on her behalf and/or signing documents for her by way of a practised signature of hers.

34. In response to paragraphs 5 and 6 of Noel’s Affidavit, regard Colin’s use of the funds for the deceased’s welfare, I estimate that her care would have required little money.

35. The deceased was a very small spender; she required a few medications and these were subsidised by the National health Scheme.

36. She experienced a loss of appetite and lost weight prior to her death; at the time of her death she weighed only 45 kilograms. All she ate was ryvita biscuits. She had very little clothing.

37. In response to paragraph 7 of Noel’s Affidavit it, I believe Colin spent the deceased’s money on prostitutes because I have seen photographs of females at “girlie clubs.”

38. I also know that the Defendant found receipts in Colin’s property for some items including a camera, whipper snipper, mulcher, welder, circular saw, Bosch Jigsaw, compound saw, speed drill, contract compressor and gun with pot.

The plaintiff asks the court to draw an inference that Colin Olson must have misused the funds of her mother as it would “require little money” to support her. In the pleading, the sum of $50.00 is suggested. The plaintiff does not swear to any specific amount.

Legal principles applicable

6. [6]
   An application for summary judgment ^[7] requires the court to be satisfied that:^[8]

1. (a)
   the plaintiff has no real prospect of successfully succeeding in her claim;  

2. (b)
   there is no need for a trial of the claim or part of the claim

Counsel for the plaintiff submits that even if those requirements are met, the court has a residual discretion to refuse summary judgment. The court must consider whether there exists a real, as opposed to a fanciful, prospect of success.^[9] 

7. [7]
   Counsel for the defendant referred to the principle in Briant v Allan and Anor:^[10]

No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

In applying that principle, McPherson JA and Williams JA added, in granting summary judgement:^[11]

We regret to say that in our opinion this amounts to unwarranted speculation going well beyond the limits of legitimate inference or even bare hypothesis.

8. [8]
   The present case falls into that category. It is equally open to infer that Mrs Iris Olson was generous to her son for his kindness. It is suggested that she was in an advanced stage of Alzheimer’s disease and was suffering from dementia. Her health had declined from 1997, but there is no evidence to say when she could not make a decision as to what amount Colin Olson could withdraw. In any event, Noel Olson stated that the pension was inadequate for his mother’s health needs.^[12]  Therefore, to say that an adverse inference should be drawn against Colin Olsen overlooks the need to prove the circumstances for each withdrawal. There are serious allegations of conversion and deceit. Moral turpitude is required to be established for such allegations on the latter issue.^[13]  Not only are those actions not properly pleaded, there is no evidence sufficient to prove such serious allegations. The signing of his mother’s signature is undesirable but his own brother who was aware of it does not suggest that he did not use the moneys for his mother. There are really no other facts which would assist the plaintiff. The main witnesses are dead.

9. [9]
   As the evidence stands, the plaintiff has no real prospects of succeeding in this claim. It is suggested that if the defendant made proper discovery, then the court would be in a better position to decide the application for summary judgment. This relates to the second issue as to whether there is a need for a trial.

Application for further discovery

10. [10]
    The plaintiff seeks orders pursuant to rr 223(1) or 225(2)(c) of the UCPR that the defendant disclose to the plaintiff the following documents:

1. (a)
   Sequential bank statements of my brother, the late Colin Herbert Olson for the period 17 April 1999 to 19 October 2005;

2. (b)
   Invoices to the renovations to Colin’s house; and

3. (c)
   The deceased’s (Mrs Iris Olson) Suncorp Metway bank statements for the  period 17 April 1999 to 19 October 2005.

11. [11]
    The defendant in her affidavit ^[14] states that she has disclosed bank statements in her possession and that she has been unable to locate any invoices for renovations to Colin Olson’s house. She does not have in her possession, custody or control the Suncorp Metway bank statements of Iris Olson. She had already supplied all documents in the action in the Supreme Court. In that event, it is submitted by counsel for the defendant that the defendant has sworn that everything she has by way of estate documents has been disclosed. Counsel for the plaintiff submits that the control of a document is not limited to a document exclusively controlled by the litigant.^[15]  That case was concerned with joint control of documents, including documents held by their solicitor. The defendant’s position in the present case is that it is open to the plaintiff to apply to a third party e.g. a bank for discovery. This has not been done. In the present case, there is no objective likelihood that the defendant has failed to disclose the documents sought, or that the documents had passed out of her possession.

12. [12]
    The plaintiff is on a fishing expedition to try to prove a breach of fiduciary duty. Inferences can be drawn in favour of Colin Olson. To draw an inference adverse to him would amount to speculation. Discovery of his bank records may show that he deposited similar sums of money in his account as were drawn from his mother’s account. That does not prove a breach of fiduciary duty. On the material available, the plaintiff has no real prospects of succeeding at a hearing. The plaintiff failed to successfully challenge the will of Colin Olson. Now she seeks to challenge his conduct in caring for their mother. The net amount in dispute here would be approximately $40,000.00, taking the plaintiff’s case at its highest. If a discretion arises, it should be exercised against the plaintiff.  In both actions, there has been a complete lack of evidence to justify the proceedings. A trial would seem pointless given the circumstances of the case. There would appear to be no relevant facts which are controverted by sworn testimony.^[16]

Orders

1.  Judgment for the defendant in action 1224 of 2006.

2. The application for further disclosure is dismissed.

3. It is ordered that the plaintiff do pay the defendant’s costs of both applications and the proceedings to be agreed or assessed on the standard scale.