New South Wales Supreme Court CITATION : Dresler v Mrish [1999] NSWSC 523 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3402/93 HEARING DATE(S) : 8 and 22 April 1999 JUDGMENT DATE : 2 June 1999 Mark Oliver Dresler (P) PARTIES : George Mrish (D1) Lawhouse Pty Limited (D2) Registrar General (D3) JUDGMENT OF : Master McLaughlin COUNSEL : Mr. J. Van Aalst (P) Mr. P. Newton (D) SOLICITORS : Hardings (P) Philip J. Beazley (D) CATCHWORDS : Summary judgment; Plaintiff is administrator of estates of his parents and his brother; First defendant murdered parents and brother; Plaintiff seeks recovery of moneys and properties paid and transferred by his parents to defendants; Those payments and transfers are asserted to have been in consequence of undue influence, threats and blackmail by first defendant; Relief claimed is of an equitable nature; Application of equitable doctrine of tracing; Whether procedure for summary judgment is available; Effect of Supreme Court Act 1970, section 88; Whether there is a real issue of fact to be decided; Limited participation in present application allowed to administrator of intestate estate of first defendant. ACTS CITED : Supreme Court Act 1970 DECISION : See paragraph 78 - 26 - SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER McLAUGHLIN Wednesday, 2 June 1999 z 3402 of 1993 MARK OLIVER DRESLER -v- GEORGE MRISH JUDGMENT 1 MASTER: By notice of motion filed on 30 November 1998 the plaintiff, Mark Oliver Dresler, seeks, substantively, summary judgment pursuant to Part 13 rule 2 of the Supreme Court Rules. 2 The proceedings were instituted by statement of claim filed by the plaintiff on 29 July 1997. That statement of claim named three defendants, George Mrish, Lawhouse Pty Limited, and the Registrar-General. A submitting appearance has been filed on behalf of the Registrar-General. Lawhouse Pty Limited is a company which at all material times was under the control of the first defendant. 3 A defence was filed by the first and second defendants on 28 September 1998. 4 The plaintiff brings the substantive proceedings in his capacity as administrator with the respective wills annexed of his parents Oliver Dresler and Thelma Dresler (each of whom died some time between 11 June 1993 and 19 June 1993) and as administrator of the intestate estate of John Herbert Dresler, the brother of the plaintiff and the only other child of their parents (who died on or about 29 March 1993). (I shall refer to the late Oliver Dresler and the late Thelma Dresler as "Mr and Mrs Dresler" and to the late John Herbert Dresler as "John Dresler" or "John".) 5 In the events which have happened, the plaintiff is beneficially entitled to the entirety of the estate of each of his parents and of his brother. 6 By the proceedings the plaintiff seeks to recover certain assets belonging to his parents which were allegedly transferred by them to either the first defendant or the second defendant and certain payments allegedly made by his parents to those defendants. It is the assertion of the plaintiff that the various transfers and payments were made by reason of the exercise by the first defendant of undue influence, threats and blackmail on the late Mr and Mrs Dresler. 7 On 5 October 1996 George Mrish was found guilty by a jury of the murder of Mr and Mrs Dresler and of John Herbert Dresler. He was sentenced to 28 years' imprisonment. On 29 July 1998, whilst in prison, the first defendant died by his own hand. 8 On 15 December 1998 an order was made that, pursuant to Part 8 Rule 16 of the Supreme Court Rules, the proceedings continue in the absence of a person representing the estate of the first defendant, and, further, that any judgment or order subsequently entered or made in the proceedings shall bind the estate of the first defendant to the same extent as the estate would have been bound had a personal representative of the first defendant been a party to the proceedings. 9 The first defendant died intestate. He left a widow, Donna Marie Mrish (to whom I shall refer as "Mrs Mrish") and seven children (six of those children were born to the marriage of himself and his wife; the seventh was an ex-nuptial child). The inventory of property filed in the application of his widow for a grant of administration of the first defendant discloses assets totalling $564,000. Letters of administration were granted to Mrs Mrish on 7 April 1999. Upon intestacy Mrs Mrish as the widow of the first defendant is entitled to $150,000, plus six-thirteenths of residue. 10 By notice of motion filed on 12 March 1999 (that being after the institution of the present application for summary judgment by the plaintiff) Mrs Mrish made application that she, as the administrator of the estate of the first defendant, be substituted for him in the proceedings, and that she be allowed to be heard upon the hearing of the present application for summary judgment. 11 As a result of that application an order was made that Donna Marie Mrish be permitted to represent the interests of the first defendant, now deceased, in relation to any claim by the plaintiff against the asset referred to in item 4 of the inventory of property which is annexure C to the affidavit of Phillip James Beazley sworn 26 March 1999, but that the applicant not otherwise be permitted to participate in the proceedings. Item 4 of the inventory of property is headed "Money in Banks or Financial Institutions" and the item itself appears as, "Money held on trust by Hardings, Solicitors being proceeds of sale of the property known as 73 Adam Street, Guilford", to which is ascribed an estimated or known value of $140,000. 12 When the application for summary judgment (which on 24 February 1999 had been specially fixed to be heard on 8 April 1999) was called on for hearing on that latter date a further application was made by Mrs Mrish (by way of notice of motion filed that day, 8 April 1999), by which Mrs Mrish sought, substantively, an order that the hearing fixed for that day be vacated and an order that Mrs Mrish be appointed to represent the estate of the first defendant for the purposes of the present proceedings. 13 It will be appreciated that the second of those applications, the appointment of Mrs Mrish to represent the estate of the first defendant, was an application in substance identical to that which was heard and determined less than two weeks previously, on 26 March 1999. 14 The Court on 8 April 1999 refused the application that Mrs Mrish be permitted to participate generally in the proceedings, and refused the application for a vacation of that day's hearing date. However, the Court ordered that the order made on 26 March 1999 be varied by substituting for the words "the asset referred to in item 4" the words "the assets referred to in item 1 (b) and item 4". Item 1 (b) of the inventory of property appears under the heading "Real Property" and is described as "property at Orange being Lot 5, Portion 8 in Deposited Plan 8843 as described in Folio Identifier 5/8/8843 (estimated)" to which is ascribed an estimated or known value of $150,000. 15 The reason for the orders made on 26 March 1999 and 8 April 1999 was that the summary judgment sought by the plaintiff in the substantive proceedings will affect those two specific items of property which are asserted by Mrs Mrish to be assets in the estate of the first defendant, and in respect whereof Mrs Mrish and her six infant children, as well as the ex-nuptial child of the deceased (who is also an infant) would have an interest. 16 Mrs Mrish was represented by Solicitor and Counsel at the hearing of the application for summary judgment. 17 The affidavit evidence relied upon in support of that application included an affidavit of the plaintiff Mark Oliver Dresler sworn 7 July 1993, and a further affidavit of the same deponent sworn 6 March 1998. 18 During the course of the hearing Counsel for Mrs Mrish sought to read the affidavit of George Mrish sworn 20 April 1998. That application was opposed by the plaintiff. For the reasons set forth in the separate judgment delivered by me on 8 April 1999 I refused that application. 19 It has already been recorded that the present application is brought by the plaintiff pursuant to the provisions of Part 13 rule 2 of the Supreme Court Rules. Subrule (1) of that rule provides, Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff --- (a) there is evidence of the facts on which the claim or part is based; and (b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed, the Court may, by order, on terms, give such judgment for the plaintiff on that claim or part as the nature of the case requires. 20 The evidence relied upon by the plaintiff as constituting the facts on which the claim or part is based is substantially the evidence of the plaintiff himself contained in his affidavits of 7 July 1993 and 6 March 1998, and the evidence of Dennis John Robertson set forth in his affidavit of 24 July 1997. 21 The proceedings are grounded upon equitable principles relating to the existence of constructive trusts, and upon the application of the equitable doctrine of tracing. 22 Essentially, it is the case for the plaintiff that between 30 June 1992 and 30 June 1993 the combined assets of Mr and Mrs Dresler (including the assets of the Dresler Family Trust) had diminished by at least $916,654. (The Dresler Family Trust was an entity of which the late Mr Dresler was trustee and Mr Dresler and their two sons were nominated beneficiaries; it was used by the late Mr Dresler as a vehicle by which certain of his business affairs were conducted.) Evidence to support that conclusion emerges from the report of Mr Robertson, a chartered accountant, (whose report, annexed to his affidavit of 24 July 1997, performs a tracing exercise in respect of the assets formerly held by Mr and Mrs Dresler and assets which subsequently came into the ownership of the first defendant). It should here be noted that the expert evidence of Mr Robertson was objected to on behalf of Mrs Mrish, and was admitted into evidence over that objection. 23 The evidence as to the overbearing of the wills of Mr and Mrs Dresler in consequence of undue influence, threats and blackmail by the first defendant emerges both expressly and by inference from the affidavits of the plaintiff. 24 I am satisfied that there is evidence of the facts on which the claim of the plaintiff is based. 25 The evidence relied upon by the plaintiff as fulfilling the requirement of paragraph (b) of Rule 2 (1) is the affidavit of Colin James Skelton, the solicitor for the plaintiff, sworn on 8 April 1999. Paragraph 2 of that affidavit states, Having regard to the instructions given to me by the Plaintiff, the documents produced to this Court by the Commissioner for Police and the report and findings of Dennis John Robertson, it is my belief that the First Defendant has no defence to the Statement of Claim filed herein and that the Plaintiff is entitled to the relief sought. 26 The foregoing paragraph of Mr Skelton's affidavit was objected to on behalf Mrs Mrish, and was admitted into evidence over that objection. It was subsequently submitted by Counsel for Mrs Mrish that the deponent of that affidavit was not adequately qualified to express the belief stated in paragraph 2 of that affidavit. However, Counsel subsequently withdrew that submission. 27 I am satisfied that the affidavit of Mr Skelton of 8 April 1999 complies with the requirement of paragraph (b) of rule 2 (1). 28 It becomes necessary, therefore, to proceed to a consideration of whether the Court should exercise the discretion vested in it under rule 2 and give summary judgment for the plaintiff. 29 At the outset, it must be recognised that the plaintiff bears the responsibility of establishing that he is entitled to summary judgment, and that in the circumstances of this case there is no triable issue. 30 It must be appreciated, however, that no evidence has been placed before the Court by the first defendant or the second defendant in the present application. Even if the affidavits relied upon by Mrs Mrish in her applications in respect to her entitlement to participate in the application for summary judgment were relied upon by her in that application (and, strictly, they are not before the Court in the present application for summary judgement, since they were not read or relied upon by Mrs Mrish at the hearing of that application), she does not of her own knowledge depose to any matters relevant to the issues between the parties which emerge upon the pleadings (apart from the fact, to which I shall later again refer, that the first defendant forged the signature of Mrs Mrish upon a mortgage and that the first defendant admitted to having forged her signature on a document). Only the first defendant, who verified the defence of the first and second defendants, had or would have had personal knowledge of those matters and events. I have already recorded that I rejected the application of Mrs Mrish to place in evidence the affidavit of the first defendant sworn 20 April 1998. 31 Since the first defendant is dead, no evidence would be available from him at a final hearing if it were necessary for the proceedings ultimately to go to trial. That is a fact which, in my view, should not be overlooked, when approaching the present application. It means that, if the matter were to proceed to a final hearing, the plaintiff would be put to proof of his case, but that, as I understand it, there would not be any evidence available to be tendered on behalf of the first and second defendants which would address the issues of undue influence, threats and blackmail. 32 It was submitted on behalf of Mrs Mrish that, not only did the plaintiff bear the responsibility of establishing his entitlement to summary judgment, but that it was also for the plaintiff to satisfy the Court that there is no real question to be tried. Counsel for Mrs Mrish properly emphasised that, since the plaintiff carries the onus of satisfying the Court of his entitlement to summary judgment, it is not for Mrs Mrish or the defendants affirmatively to establish the defence. 33 Further, Mrs Mrish submitted that summary judgment should be refused upon the following grounds. Firstly, that, by reason of section 88 of the Supreme Court Act 1970, the procedure for summary judgment is not available in the instant case. Secondly, that there is a real issue of fact to be decided. 34 It has already been observed that the present application is brought pursuant to the provisions of Part 13 rule 1 of the Supreme Court Rules. That rule falls within Division 1 of Part 13. Rule 1 of that Part provides, This Division applies to all proceedings except proceedings within the application of section 88 of the Act (which relates to cases of fraud and other matters). 35 Section 88 of the Supreme Court Act provides, Proceedings on a common law claim in which there are issues of fact --- (a) on a charge of fraud against a party; or (b) on a claim in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, shall be tried with a jury. 36 It was submitted on behalf of Mrs Mrish that where, as here, there is a charge of fraud against a party (said to be the assertion of the plaintiff of fraud perpetrated by the first defendant against at least Mr and Mrs Dresler --- Mrs Mrish refers to paragraphs 3, 5, 6, 10 and 13 or the statement of claim), the plaintiff is precluded from availing himself of the summary judgment procedure contained in rule 2 of Part 13. 37 I have been taken by Counsel for Mrs Mrish to the decision of the Court of Appeal in Horrobin v ANZ Banking Group (1996) 40 NSWLR 89, especially to the judgement of Mahoney A-CJ, who, at 96-97, considered the effect of section 88 of the Act upon an application for summary judgment. That was a case in which the respondent bank had, at first instance, sought to recover from the appellant certain mortgaged property, and the appellant by his defence had raised equitable principles, including an assertion of fraud perpetrated by the bank. His Honour said, at 97, that "[t]he fact that the issues of fact in question arise in relation to a defence rather than in respect of the plaintiff's claim does not, as such, exclude the operation of section 88". However, His Honour then continued, But it is at least arguable that, for other reasons, section 88 does not apply. The fraud relied on is not mere equitable fraud. It is, on one view of the defence, fraud arising from a direct and deliberate misrepresentation or warranty: see generally Newton Chemical Limited v Arsenis [1989] 1 WLR 1297. However, the relief to be given to the defendants if they succeed in establishing their claim of fraud against ANZ will or may be equitable relief rather than common law relief. It is not clear how far section 88 is intended to apply if, that this ground be common law deceit or fraud, the relief sought is relief which, in its concurrent jurisdiction, would be given by a court of equity. This is matter which, in a suitable case, will require consideration. In such circumstances, operation of section 88 has not been determined in this State. It is in my opinion not necessary to pursue further the construction of section 88 because of the matters to which I shall refer. Section 88 is framed in mandatory terms: "shall" is used. But its operation may, I think, be qualified by the circumstances. Thus, I do not doubt that the parties may, by agreement, dispense with a jury trial even in a case fairly within the section. There are no doubt cases in which the relief sought against the fraudster is such that it is not possible or appropriate to have what is to be done to be decided by a jury's verdict. Having regard to the form of the defence and of the relief which is or may be claimed by the defendants, it may be arguable that the proceeding, the defence, is not one "within the application of section 88…." within Part 13 rule 1. I therefore do not decide the appeal upon that basis. I prefer to reach my decision upon the fact that the relevant defence is not "so clearly untenable that it cannot possibly stand": General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130. 38 It seems to me that, whilst His Honour in Horrobin clearly did not regard that case as an appropriate vehicle for a definitive consideration of the overall effect of the operation of section 88, he was obviously of the view that that section (the clear intent of which was to preclude the summary judgment procedure in cases which ultimately are to be decided by a jury) might not have application to a situation where, although a charge of fraud is made, the final relief is of an equitable nature. 39 In the instant case the charge of fraud (encompassed by the assertions of undue influence, threats and blackmail) is made by the plaintiff against the first defendant. There is no suggestion that the first defendant acquired by fraud the various properties in respect to which the plaintiff now desires to apply a tracing exercise. That is, it is not suggested that as against the vendors of those properties the first defendant exercised fraud. What is being asserted by the plaintiff is that the funds which the first defendant used to acquire those properties were funds which, through fraud, he had obtained from Mr and Mrs Dresler; and that, in consequence, those funds may by the plaintiff be traced into the properties held by the defendants which were acquired with those fraudulently obtained funds. 40 The relief which the plaintiff seeks is relief of equitable nature. The proceedings have, properly, been instituted in the Equity Division. It is in my view not without significance that the provisions of section 88 deal with "[p]roceedings on a common law claim". The present is not a common law claim by the plaintiff. The proceedings presently before the Court are an equitable claim grounded upon equitable principles and seeking equitable relief. This is not a claim grounded upon, for example, contract or tort. Such a claim would clearly fall within the description of proceedings on a common law claim. 41 I am not persuaded that section 88 of the Supreme Court Act precludes the availability to the plaintiff of the summary judgment procedure set forth in Part 13 rule 2 of the Supreme Court Rules. 42 I turn then to the second ground upon which Mrs Mrish relies in opposition to the present claim for summary judgment. That ground is that there is a real issue of fact to be decided. 43 The principles here relevant are well known and do not need to be repeated. (See, for example, General Steel Industries Inc. v Commissioner for Railways (NSW) at 130.) 44 It is not necessary for the Court to conclude that the defendant would certainly succeed at a final hearing. It is sufficient if the Court concludes that the defences raised are not "hopeless" or "manifestly groundless" (Wentworth v Rogers (No.5) (1986) 6 NSWLR 534, especially per Kirby P). 45 Counsel for Mrs Mrish submitted, correctly, that it is for the plaintiff to establish that there is no defence --- that it is not for Mrs Mrish or the defendants to establish that there is a defence. 46 The arguable defence relied upon by the first and second defendants was that the moneys which were given by Mr and Mrs Dresler to the first defendant were given gratuitously. That such was the fact can, so it was submitted by Mrs Mrish, be inferred from the letters which are annexures Y and Z to the affidavit of the plaintiff sworn 7 July 1993. The statement in paragraph 72 of that affidavit that the deponent "can say from such letter that I have never known my father to sign his signature "Wally Dresler" as he has always used the words "O. Dresler" (which statement was admitted over the objection by the first and second defendants) may entitle the Court to draw the inference that that letter either was forged or was written under duress. (It is of interest here to note that each of the letters of 17 February 1993(annexure Y), purported to be signed by each of Mr and Mrs Dresler, and 17 February 1993 (annexure Z), purported to be signed by Mrs Dresler alone, purports to have been witnessed by one H Blunden. No evidence have been placed before the Court in the present application concerning that purported witness.) 47 However, the submission that the foregoing letters support an argument that the moneys transferred from Mr and Mrs Dresler to the first defendant constituted gifts by them to the first defendant is a submission which is inconsistent with the case for the defendants as disclosed in the defence (verified by affidavit of the first defendant sworn 20 April 1998 and filed on 28 September 1998). 48 By paragraph 12 (ii) of the defence the first defendant expressly admits that the money and assets particularised in paragraphs (b), (d), (e), (f), (g) and (h) [which moneys, I here interpolate, total $285,016.73 and which assets comprise the property situate at and known as Merino Road, Noraville] were transferred, paid or assigned to the first defendant [sic]on or about the dates particularised by the plaintiff, and in relation to 12 (g) and 12 (h) on about 18 November 1992 and on about 11 November 1992 respectively. Subparagraph (iii) of paragraph 12 of the defence expressly asserts that each of the items of money and assets referred to in subparagraph (ii) was transferred, paid or assigned to the defendant for valuable consideration and pursuant to agreement entered with Mr and Mrs Dresler on the dates referred to in subparagraph (ii). Subparagraph (iv) expressly asserts that it was a term of the agreement for transfer, payment or assignment of each of the items of money referred to in paragraph 12 (b), (d), (e), (f) and (g) that the defendant would pay to Mr and Mrs Dresler or either of them the cash amount equivalent to the amount transferred, paid or assigned to the defendant, together with an additional 10 percent paid in cash for the benefit of Mr and Mrs Dresler. Subparagraph (v) expressly pleads that it was a term of the said agreement for transfer, payment or assignment of the said money to the first defendant that Mr and Mrs Dresler would supply to the first defendant "written letters of gift for the benefit of the defendant" and in consideration of the first defendant's cash payments of equivalent amounts together with the said additional 10 percent to Mr and Mrs Dresler. 49 Further, subparagraph (vi) of paragraph 12 of the defence expressly pleads that as to the property situate at and known as 2 Merino Road, Noraville, the transfer or assignment of that asset to the first defendant was in consideration of the payment of $130,000 in cash by the first defendant to Mr Dresler at about the date appearing on the contract for sale. 50 In the light of the foregoing assertions expressly pleaded in paragraph 12 of the defence, it is not open to Mrs Mrish to submit that the transfers and payments of money and property referred to in the foregoing subparagraphs of that paragraph were made gratuitously, or that the letters were which are annexures Y and Z to the plaintiff's affidavit of 7 July 1993 somehow support the existence of such gifts. According to the defendants' pleading, those letters were provided in fulfilment of an agreement between Mr and Mrs Dresler of the one part and the first defendant of the other part, whereby, so it is alleged on the part of the first defendant, Mr and Mrs Dresler received valuable consideration for the transfer of the Noraville property and the payment of the moneys. That is, even on the case for the defendants pleaded by them in the defence, Mr and Mrs Dresler would be entitled, under the terms of the agreement so pleaded by the defendants, to receive from the first defendant an amount of $456,518.40 (being the totality of the foregoing sum of $285,016.73, together with the attributed payment of $130,000 for the Noraville property (totalling $415,016.72), together with an additional 10 percent upon that total figure). 51 Accordingly, as to the Noraville property and as to the various amounts of money referred to in subparagraphs (b), (d), (e), (f) and (g) of paragraph 12 of the statement of claim, I am satisfied that there is no arguable defence, and that the plaintiff is entitled to summary judgment in respect to the claims for relief relating to those various assets. 52 By paragraph 13 (a) of the defence the defendants admit that the property situate at and known as 26 Banksia Street, Eastwood (which was and had for many years been the family home of Mr and Mrs Dresler and of their children) was transferred by Mr and Mrs Dresler to the second defendant pursuant to a contract for sale executed by Mr and Mrs Dresler, in consideration of the payment of $280,000 in cash by the first defendant to Mr Dresler. 53 Apart from the assertion (contained in paragraph 13 (a) of the defence and repeated, in more general terms, in paragraph 14 (b) (i) of that pleading) that the payment for the Banksia Street property was made in cash by the first defendant, no particulars of such payment are supplied in the pleading. Neither is any information about that alleged payment made in any of the evidence filed on behalf of Mrs Mrish in the present application. No such cash has been located by Mr Robertson or by the plaintiff. The evidence of Mr Robertson concerning the various financial transactions of the Mr and Mrs Dresler with the first defendant supports the inference that, despite the verified defence asserting such a cash payment, no such cash payment was ever received by Mr and Mrs Dresler for the transfer of their family home, in which they continued to reside until the time when they were murdered by the first defendant. 54 The objective circumstances of this case make it extremely unlikely that Mr and Mrs Dresler, who had lived in the Eastwood residence for almost 26 years, since December 1967, and who had made it their family home throughout that period and who had expressed to the plaintiff their intention to remain there for the rest of their days, would have transferred that property to the first defendant for a payment in cash, the existence of which payment is supported only by the assertion contained in paragraph 13 of the defence. 55 I am satisfied that the plaintiff is entitled to summary judgment in respect to the Banksia Street property. 56 By paragraph 13 (b) of the defence the first and second defendants admit that the mortgage which is referred to in paragraph 13 (b) of the statement of claim as the Bilbomar Mortgage was transferred or assigned to the second defendant by agreement entered between Mr Dresler and the first and second defendants in consideration of the payment by the first defendant to Mr Dresler of $145,000 in cash. It is asserted in that paragraph of the defence that that amount was paid by the first defendant subsequent to and on the day of transfer, and particulars are given concerning a letter dated 19 January 1993 from Gates Moffit, Solicitors, to Mr Dresler, a mortgage dated 12 February 1993 and a reassignment of interest dated 12 February 1993. 57 There is no evidence, apart from the assertion contained in paragraph 13 (b) of the defence, of the fact of the alleged payment by the first defendant to Mr Dresler in respect to that mortgage, or concerning the details or circumstances of that alleged payment in cash. No such cash has been located by Mr Robertson or by the plaintiff. The evidence of Mr Robertson concerning the various financial transactions of Mr and Mrs Dresler with the first defendant supports the inference that, despite the verified defence asserting such a cash payment, no such cash payment was ever received by Mr and Mrs Dresler. I am not satisfied that there is a triable issue concerning the alleged payment by the first defendant of this amount of money in cash to Mr Dresler. 58 It appears to me to be of considerable significance in approaching the defence of the first and second defendants that the various transfers and assignments of money and assets by Mr and Mrs Dresler to those defendants was made for valuable consideration, and the further assertion that such valuable consideration was paid by the first defendant to either Mr and Mrs Dresler or Mr Dresler alone in cash, that the first defendant not long thereafter murdered each of Mr and Mrs Dresler. That is a significant objective fact, which should not be disregarded in the present application for summary judgment. If there had been no undue influence, threats or blackmail exercised by the first defendant upon Mr and Mrs Dresler, or if the first defendant had, in fact, made the cash payments asserted by him in the defence to have been made, there would have been little or no reason for him to have murdered Mr and Mrs Dresler. It is in my view an entirely legitimate and obviously logical inference to be drawn from the fact that the first defendant murdered Mr and Mrs Dresler, that he did not make the cash payments subsequently by him alleged to have been made, that he did not enter into an agreement whereby he would return, with an additional 10 percent, various sums of money paid to him and a house property transferred to him, and that in causing those transfers to be made he exercised upon Mr and Mrs Dresler undue influence, threats or blackmail. 59 In this regard I also consider it to be not without significance that Mrs Mrish herself, in her affidavit of 6 April 1999, states at paragraph 16 that the first defendant forged her signature on a mortgage to Westpac Banking Corporation, and states at paragraph 25 that the first defendant admitted to having forged her signature on a document. 60 I now turn to the summary judgment sought by the plaintiff in respect to the property at 58 Dalton Street, Orange (claimed in prayers 8 - 10 of the Statement of Claim) and the property at 73 Adams Street, Granville (claimed in prayers 11 - 13). It is in respect to the Dalton Street property and the proceeds of sale of the Adams Street property (items 1 (b) and 4 respectively in the inventory of property of the first defendant) that Mrs Mrish has been permitted to participate in the hearing of the present application of the plaintiff. It is in respect to those assets (or, more accurately, in the case of the Adams Street property, in respect to the fund representing that asset) that the plaintiff in the present application seeks to apply the equitable doctrine of tracing, so that the plaintiff will be able to have resort not merely to a judgment for moneys obtained by the first defendant from Mr and Mrs Dresler, but to these specific assets which, so the plaintiff submits, presently represent those moneys. 61 The evidence relating to the Dalton Street property included Exhibit B. Part of that exhibit consisted of the diary notes of the manager of the Westpac Banking Corporation at Bathurst, where the first defendant conducted an account. The diary note for 9 October 1992 discloses that on that date the first defendant informed the manager that a deposit of $155,000 had been expected on 7 October. The note continued, "Mentioned he is contracting to purchase a house for $85K in Orange suitable for conversion to 4 units. Intends paying cash for it from above deposit when to hand and then approaching us for finance to develop." The diary continues with a later entry on the same date, "George phoned - cheque to be deposited today. Cheque to purchase Orange property may need to be drawn shortly." 62 On 12 October 1992 the first defendant deposited into his account with the Bathurst branch of Westpac a cheque drawn in favour of Mrish Demolition & Construction by BT Financial Services Limited in the sum of $155,016.73. That amount represented the entirety of a fund invested by the late Mr Dresler with BT Financial Services Limited (Annexure DJR - 62 to report of Mr Robertson). 63 The Dalton Street property was acquired by the first defendant shortly thereafter for $85,000. The transfer of that property to the first defendant was dated 27 November 1992. 64 It was submitted on behalf of Mrs Mrish that there is nothing to connect Mr Dresler's $155,016.73 with the Dalton Street property. 65 Nevertheless, I am satisfied that it is a legitimate inference to be drawn from the statements made by the first defendant to his bank manager on 9 October 1992 that the first defendant proposed to use the expected amount of $155,000 (an amount identical, except for $16.73, to that obtained by him from Mr Dresler) for the acquisition of the Orange property. The first defendant purchased the Dalton Street property shortly thereafter. Although there is no evidence of the date of settlement of the purchase, the transfer was executed less than seven weeks after the first defendant obtained Mr Dresler's money. 66 There is no evidence that the first defendant acquired any other property in Orange apart from the Dalton Street property. There is no evidence of any other funds being available to the first defendant to meet the purchase price of $85,000, apart from the amount of $155,017.73 from Mr Dresler, which the first defendant stated to the bank manager he expected already to have received, and from which sum he proposed to pay cash for the purchase of a house in Orange. 67 I am satisfied from the foregoing evidence that there is no arguable defence to the tracing exercise which, if performed in the manner submitted on behalf of the plaintiff, would entitle the plaintiff to the relief which he seeks in respect to the Dalton Street property. 68 There remains only to be considered the claim of the plaintiff in respect to the proceeds of sale of the property situate at and known as 73 Adams Street, Granville. Those proceeds of sale constitute item 4 in the inventory of property of the first defendant and are one of the assets in respect of which Mrs Mrish has been given an opportunity to be heard in the present application. (I note that in the inventory of property the property is referred to as "73 Adam Street, Guilford", whilst in the pleadings and in the evidence it is referred to as 73 Adams Street, Granville: the latter appears to be its correct designation.) That property was purchased by the first defendant on 11 September 1992 for $113,500. It was sold by the Westpac Banking Corporation as mortgagee in possession in September 1997. 69 That property was paid for, in part, by a bank cheque in the sum of $101,774.69 in September 1992. Substantial deposits, of $100,000 and $25,000 were made on 20 July 1992 and 30 July 1992 respectively into the account of the first defendant, trading as Mrish Demolition & Construction. In respect to the deposit of $25,000 on 30 July 1992, particulars of cheques disclose that that deposit was made up of three cheques, one drawn on the Westpac Banking Corporation ($5,000) and two drawn on the Advance Bank (each in an amount of $10,000). The deposit of $100,000 is revealed by the details on the deposit slip as having consisted of two bank cheques, one in an amount of $20,000 from the ANZ Bank at Eastwood, and the other in an amount of $80,000 from the Advance Bank at North Sydney. The evidence of Mr Robertson discloses (in paragraph 4 (b) of his report) that on 17 July 1992 there was a withdrawal from the Advance Bank account in the name of W & TD Dresler, paid to Mrish Constructions, and that on the same date there was a withdrawal from the ANZ Bank account (in the name of K Austin for Dresler Family Trust) in the amount of $20,000, paid to Mrish Constructions. There is an identicality of amounts, an identicality of the banks, and a close proximity between the date of the withdrawal from the accounts controlled by Mr and Mrs Dresler on 17 July 1992 and the deposits made into the account Mrish Demolition & Construction three days later. 70 Counsel for Mrs Mrish has correctly identified the issue as being the identity of the moneys used for the purchase of the Granville property. Despite the submission made on her behalf that there is no evidence available from which the Court can infer that the bank cheque in the amount of $101,774.69 was drawn from funds obtained from Mr and Mrs Dresler, I am satisfied that there is a legitimate, indeed an almost unassailable, inference available that the bank cheque which the first defendant used to purchase the Granville property had its origin in payments made from the foregoing accounts controlled by Mr and Mrs Dresler. 71 Mrs Mrish submitted that there is no evidence from which the Court can infer that the bank cheque in the amount of $101,774.69 was drawn from funds obtained from Mr and Mrs Dresler. I have already expressed my view that the identicality of withdrawals and the proximity of dates more than justifies such an inference. Mrs Mrish also submitted that there is no evidence that the bank cheque was drawn from an account conducted by the first defendant. The bank cheque was in fact drawn at the request of LJ Hooker, Granville (as appears on the back of the requisition for such a bank cheque). I do not have any difficulty in drawing the inference that where the purchase price of a piece of real estate has been made by way of a bank cheque requisitioned by a firm of estate agents, that the source of those funds for the purchase of that bank cheque was the purchaser of the property, rather than the estate agents, acting from motives of personal benevolence. The purchaser of the Adams Street property was the first defendant. 72 I have already referred to the assertions made in the defence concerning the two sums of $80,000 and $100,000. There is, in fact, no basis upon which the Court could refuse summary judgment for the plaintiff against the first defendant in respect to those sums. The only question is whether the relief of the nature which the plaintiff seeks (be it by way of summary judgment or be it by way of relief at a final hearing), being relief which requires the Court to be satisfied that those sums were used for purchase of the Granville property, can be appropriately awarded to the plaintiff. The totality of the evidence on behalf of the plaintiff is already before the Court concerning the tracing exercise upon which the plaintiff seeks to rely in support of relief against the Granville property. That evidence consists of the evidence of Mr Robertson and of the various documents comprising Exhibit B in the application before me. That evidence satisfies me that there is no arguable defence to the tracing exercise which, if performed in the manner submitted on behalf of the plaintiff, would entitle the plaintiff to the relief which he seeks in respect to the proceeds of sale of the Adams Street property. 73 It will be appreciated that by paragraph 12 (i) of the defence the first defendant denied any transfer or payment to him in respect to the amounts of moneys referred to in paragraph 12 (a) ($98,606 on about 29 July 1992) or (c) ($10,000 on 5 August 1992) in the statement of claim. The evidence of Mr Robertson (paragraph F.4 (b) (viii)) concerning those amounts is that at the date of his report he "had not been able to determine who received those funds". In the light of that evidence, I am not satisfied that the plaintiff has established an entitlement to summary judgment in respect to those two amounts. Apart from the denial in the defence to which I have referred, the evidence appears to be silent concerning those amounts. Accordingly, the plaintiff has not established an entitlement to summary judgment in respect to those two amounts. 74 However, I consider that the plaintiff has established an entitlement to summary judgment of the nature sought concerning the Banksia Street property, the Merino Parade property, the Bilbomar mortgage, the Dalton Street property and the proceeds of sale of the Adams Street property. Further, that the plaintiff has established an entitlement to summary judgment in respect to the various sums of money set forth in prayer 14 of the statement of claim, other than the two amounts, to which I have already referred, set forth in paragraphs (a) and (c) of that prayer. The plaintiff is entitled to a declaration of the nature sought in prayer 15, together with an order for payment of a sum of money of the nature sought in prayer 16 (although the precise calculation of that sum will need to be performed), together with interest thereon pursuant to section 94 of the Supreme Court Act. I consider that the plaintiff is also entitled to summary judgment for the taking of accounts of the nature sought in prayer 17, together with an order for costs. 75 It will be appreciated that, in consequence of the death of the first defendant, relief in the precise terms sought in the statement of claim is no longer appropriate. Accordingly, I propose to stand the matter over to a suitable date, to enable the plaintiff to bring in short minutes of order reflecting my foregoing conclusions. 76 The plaintiff has been successful in respect to his claim for summary judgment in relation to the two assets concerning which Mrs Mrish was granted leave to participate in the hearing of the present application. I should here record that, although the leave granted to Mrs Mrish was of a strictly limited nature, the participation in the hearing before me by her Counsel and Solicitor was conducted in a fashion which, in substance, constituted a total opposition to the entitlement of the plaintiff to any summary judgment whatsoever in his favour. 77 Although I have not heard any submissions as to costs, it seems to me appropriate in those circumstances that, to the extent that the plaintiff may not be able to recover his costs from the estate of the first defendant or from the second defendant, the costs of the notice of motion filed by him on 30 November 1998 should be paid by Donna Marie Mrish. If however Mrs Mrish wishes to be heard concerning costs, I will give to her an opportunity to do so. 78 Accordingly, the only order which I presently make is as follows: 1. I stand the matter over to a date to be fixed by arrangement with my Associate, for the bringing in of Short Minutes of Order, to give effect to my conclusions herein. ********** Last Modified: 06/02/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.