Dresler v Mrish [1999] NSWSC 523

Dresler v Mrish [1999] NSWSC 523

The plaintiff is entitled to summary judgment in relation to the identified assets and sums, as there is no arguable defence to the claims of undue influence and tracing. The summary judgment procedure is available in this equitable proceeding even if elements of fraud are alleged, because the claims and relief sought are of an equitable nature and s 88 does not bar such procedure in this context.

Parties
Plaintiff: Mark Oliver Dresler; First Defendant: George Mrish; Second Defendant: Lawhouse Pty Limited; Third Defendant: Registrar General
Jurisdiction
Australia
Judgment Date
02 June 1999
Procedural Posture
Summary Judgment Application / Interlocutory Application for Summary Judgment Prior to Trial
Outcome
Summary judgment granted in large part for the plaintiff; matter stood over for orders to reflect conclusions.
Legal Topics
Summary Judgment, Undue Influence, Tracing, Constructive Trusts, Fraud, Administration of Estates
Equity Civil Procedure Trusts Summary Judgment Undue Influence Tracing Constructive Trusts Fraud +1 more

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Parties

Mark Oliver Dresler

Plaintiff

George Mrish

First Defendant

Lawhouse Pty Limited

Second Defendant

Registrar General

Third Defendant

Procedural Posture

Summary Judgment Application / Interlocutory Application for Summary Judgment Prior to Trial

Legal Issues

  1. 1 Whether the plaintiff is entitled to summary judgment for recovery of assets transferred to or held by the defendants.
  2. 2 Whether summary judgment procedure is available in cases involving allegations of fraud under s 88 of the Supreme Court Act 1970.
  3. 3 Whether there are any arguable defences or real issues of fact requiring trial, particularly regarding the nature of the transfers as gifts, for value, or the result of undue influence/threats/blackmail.

Ratio Decidendi

The plaintiff is entitled to summary judgment in relation to the identified assets and sums, as there is no arguable defence to the claims of undue influence and tracing. The summary judgment procedure is available in this equitable proceeding even if elements of fraud are alleged, because the claims and relief sought are of an equitable nature and s 88 does not bar such procedure in this context.

Court Disposition

Summary judgment granted in large part for the plaintiff; matter stood over for orders to reflect conclusions.

Orders

  • The matter is stood over to a date to be fixed for the bringing in of Short Minutes of Order to give effect to the conclusions herein.
  • Plaintiff entitled to summary judgment in relation to Banksia Street property, Merino Parade property, Bilbomar mortgage, Dalton Street property, proceeds of sale of Adams Street property, and various sums of money (excluding two disputed sums).