White v White By Her Tutor the NSW Trustee and Guardian [2024] NSWSC 222

Supreme Court New South Wales

Medium Neutral Citation: White v White By Her Tutor the NSW Trustee and Guardian [2024] NSWSC 222 Hearing dates: 20 February 2024 Date of orders: 14 March 2024 Decision date: 14 March 2024 Jurisdiction: Common Law Before: Davies J Decision: 1. Dismiss the amended summons. 2. The plaintiff is to pay the defendant's costs. Catchwords: APPEALS – appeal from Local Court to Supreme Court – proceedings for recovery of $65,000 – where daughter was appointed mother's financial manager from 2013 to 2018 – whilst financial manager daughter transferred $65,000 from mother's bank account to her own – NSW Trustee and Guardian appointed financial manager in 2018 – commenced proceedings in 2022 to recover sum plus interest – where daughter failed to respond to Notice to Produce bank records - Magistrate gave judgment against daughter – whether Magistrate erred by finding daughter retained the benefit of the $65,000 to the detriment of her mother – question of fact – Magistrate did not draw inferences from daughter's failure to produce documents – cannot be said that there is no evidence to support the Magistrate's finding – no error of law – ground rejected APPEALS – appeal from Local Court to Supreme Court – on a question of mixed fact and law – whether Magistrate erred in permitting reliance on a claim for fraud – where fraud allegation was not particularised nor ultimately pursued – where Magistrate made findings on fraudulent concealment not fraud or deceit – where fraudulent concealment was put to the daughter in cross-examination – held no unfairness despite lack of particularisation – leave to appeal refused – ground not made out APPEALS – appeal from Local Court to Supreme Court – on a question of mixed fact and law – question of costs – indemnity costs – where daughter rejected an earlier Calderbank offer – where Magistrate made lump sum costs order at $30,000 – whether Magistrate erred in finding the Calderbank offer was a valid basis to award indemnity costs – held Calderbank offer a valid offer of compromise – no reason shown for grant of leave in respect of ground – leave to appeal refused – summons dismissed Legislation Cited: Limitation Act 1969 (NSW) ss 55, 68A Local Court Act 2007 (NSW) ss 39, 40, 41 Uniform Civil Procedure Rules 2005 (NSW) r 14.14 Cases Cited: BCI Finances Pty Ltd (In Liq) v Binetter (No 4) [2016] FCA 1351; (2016) 117 ACSR 18 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Brown v Dunn (1893) 6R 67 Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 Hamod v State of New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 House v The King (1936) 55 CLR 499; [1936] HCA 40 Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519 In the matter of Mediation & Online Dispute Resolution Operating Network Pty Ltd [2022] NSWSC 5 John Maiolo t/as M & N Peninsular Kitchens & Joinery v Chiarelli [2017] NSWSC 982 RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Sgro v Australian Associated Motor Insurers Ltd (2015) 91 NSWLR 325; [2015] NSWCA 262 Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332 US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705 Young v Queensland Trustees Limited (1956) 99 CLR 560; [1956] HCA 51 Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 Texts Cited: Nil Category: Principal judgment Parties: Gaye Janice White (Plaintiff) Cora White trading as By Her Tutor the NSW Trustee and Guardian (Defendant) Representation: Counsel: J E Treherne (Plaintiff) M Klooster (Defendant)