Torok v Becker [2019] NSWSC 1662

Torok v Becker [2019] NSWSC 1662

The plaintiff established a good arguable case that at least a substantial proportion of the payments made from the deceased's accounts to or for the benefit of the first defendant were not made by the deceased, or were not made freely and without undue influence or unconscionable conduct. Because the first defendant had not satisfactorily explained substantial disbursements of the deceased's funds, interlocutory orders were warranted to preserve assets likely to be available to satisfy any final relief, but the restraints should be calibrated to preserve about $800,000 while allowing limited living expenses, legal fees, rent and operation of the Tesla parts business under controls.

Jurisdiction
Australia
Judgment Date
28 November 2019
Procedural Posture
Equity Proceedings Concerning Alleged Undue Influence, Unconscionable Conduct, Breach of Fiduciary Duty and Alternative Family Provision Relief / Interlocutory Application for Asset Restraint Pending Final Determination
Outcome
The Court directed the parties to deliver appropriate short minutes of order within 7 days, reflecting reasons that further interlocutory asset preservation orders should be made and costs reserved.
Legal Topics
['undue Influence' 'unconscionable Conduct' 'interlocutory Asset Preservation' 'estate Assets' 'fiduciary Duty' 'family Provision' 'representative Proceedings for an Estate']
['equity' 'succession' 'civil Procedure'] ['undue Influence' 'unconscionable Conduct' 'interlocutory Asset Preservation' 'estate Assets' 'fiduciary Duty' 'family Provision' 'representative Proceedings for an Estate']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Alleged Undue Influence, Unconscionable Conduct, Breach of Fiduciary Duty and Alternative Family Provision Relief / Interlocutory Application for Asset Restraint Pending Final Determination

Legal Issues

  1. 1 ["Whether the Court should make interlocutory orders restraining the first defendant from dealing with assets pending final determination of claims relating to funds allegedly misappropriated from the deceased's estate." 'Whether the plaintiff had established a good arguable case that payments and transfers from the deceased to or for the benefit of the first defendant should be restored to the estate.' 'What form of asset preservation orders would fairly protect the utility of any final orders while permitting the first defendant to meet living expenses, legal fees and operate his Tesla parts business.']

Ratio Decidendi

The plaintiff established a good arguable case that at least a substantial proportion of the payments made from the deceased's accounts to or for the benefit of the first defendant were not made by the deceased, or were not made freely and without undue influence or unconscionable conduct. Because the first defendant had not satisfactorily explained substantial disbursements of the deceased's funds, interlocutory orders were warranted to preserve assets likely to be available to satisfy any final relief, but the restraints should be calibrated to preserve about $800,000 while allowing limited living expenses, legal fees, rent and operation of the Tesla parts business under controls.

Court Disposition

The Court directed the parties to deliver appropriate short minutes of order within 7 days, reflecting reasons that further interlocutory asset preservation orders should be made and costs reserved.

Orders

  • ["The parties must deliver appropriate short minutes of order to the judge's associate within 7 days." 'If agreement cannot be reached, competing short minutes of order must be delivered within the same timeframe.' 'If necessary, the matter will be relisted for further argument.']