Suzanne Marie Ryan and Mary Agnes Briggs as executrices of the estate of the late Patrick Joseph Donoghue & Anor v Prenitha Srimath Wikramanayake & Anor [2013] NSWSC 1150

Supreme Court New South Wales

Medium Neutral Citation: Suzanne Marie Ryan and Mary Agnes Briggs as executrices of the estate of the late Patrick Joseph Donoghue & Anor v Prenitha Srimath Wikramanayake & Anor [2013] NSWSC 1150 Hearing dates: 6 & 7 December 2012 Decision date: 21 August 2013 Jurisdiction: Equity Division Before: Slattery J Decision: Plaintiffs' claims dismissed. Directions made for submissions on costs Catchwords: CONTRACT - construction and performance of contract - accommodation bond paid under Resident Agreement for occupation of units in an aged care facility - residents occupy units in facility for about seven months - residents since deceased - residents' executrices claim return of accommodation bonds - whether the defendants received the accommodation bonds - whether the defendants are liable to restore the accommodation bonds - whether the accommodation bonds are returnable under the Resident Agreement, or by other means - effect of Aged Care Act (Cth) on agreement. EQUITY - constructive trust - whether defendants hold accommodation bonds on constructive trust for the plaintiffs - whether defendants assisted in a breach of trust or breach of fiduciary duty by the facility lessor. TORT - interference with contractual relations - defendants aware of requirement in Resident Agreement for return of accommodation bonds - whether by demanding the bonds from the retirement village operator the defendants have intentionally interfered in the Resident Agreement between the residents and the facility operator. TRADE PRACTICES - misleading and deceptive conduct - defendants aware that aged care facility operator may transfer residents accommodation bonds to defendants in response to demand by defendant controlled company - whether defendants engage in misleading or deceptive conduct by not disclosing that information to residents and prospective residents of the aged care facility. Legislation Cited: Aged Care Act 1997, Ch 4, Div 27 Trade Practices Act 1974 (Cth) s 52, s 75B Fair Trading Act 1987 Aged Care (Bond Security) Act 2006 Cases Cited: Compaq Computer Australia Pty Ltd v Merry, Payes, Bunnett, Sharp, Bassat, Kras, Horman & Thomson (1998) 157 ALR 1 Daebo Shipping Co Ltd v The Ship Go Start [2012] FCAFC 156 Demagogue v Ramensky (1992) 39 FCR 31 Commonwealth Bank v Mehta (1991) 23 NSWLR 84 Kimberley NZI Finance Ltd v Torero Pty Limited (1989) ATPR (Digest) 46-054 Yorke v Lucas [1985] HCA 65, (1985) 158 CLR 661 Cutler v Wandsworth Stadium Ltd [1949] AC 398 Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 Sovar v Henry Lane Pty Limited (1967) 116 CLR 397 Category: Principal judgment Parties: First Plaintiff:- Suzanne Marie Ryan and Mary Agnes Briggs as executrices of the estate of the late Patrick Joseph Donoghue Second Plaintiff:- Suzanne Marie Ryan and Mary Agnes Briggs as executrices of the estate of the estate of the late Marie Josephine Donoghue First Defendant:- Prenitha Srimath Wikramanayake Second Defendant:- Margaret Anne Wikramanayake Representation: Counsel: First & Second Plaintiff:- J. Van Aalst First & Second Defendant:- P. Bolster Solicitors: First & Second Plaintiff: Ian Geddes, Cater & Blumer First & Second Defendant: Robert Tassell, Pikes and Verekers Lawyers File Number(s): 2009/337417 Publication restriction: No