Canberran awarded $762,023 in damages for historical sexual abuse: ND v AB [2022] ACTSC 197
On 3 August 2022, the ACT Supreme Court handed down a decision considering the assessment of damages in historical abuse matters. In ND v AB [2022] ACTSC 197, the plaintiff was awarded a total of $762,023 for damages for sexual abuse committed by the defendant when she was a child in Canberra in the early 1980s.
The proceedings relate to the sexual assault of the plaintiff, known as “ND”, by the plaintiff’s uncle, known as “AB”, in approximately 1980 to 1981. The plaintiff suffered repeated sexual, physical and emotional abuse perpetrated by the defendant on about a weekly basis. This abuse commenced when the plaintiff as in Year 5 at about the age of 11 and continued into Year 6. The plaintiff estimates that this abuse occurred on more than 20 occasions.
After being found guilty by a jury on 6 December 2019, the plaintiff brought a claim against the defendant in assault, battery and negligence and claimed past and future economic loss, out-of-pocket expenses, past and future domestic assistance and aggravated damages. A default judgment was entered in favour of the plaintiff by McCallum CJ on 14 April 2022 after the defendant failed to enter a defence (ND v AB (No 2) [2022] ACTSC 100).
The matter for determination by Mossop J in the most recent proceedings was therefore the assessment of damages. At Paragraph 68 of the judgment, he states:
Plainly enough, the assessment of damages must take into account the immediate experience and effects of the abuse itself. However, more significant are the long-term consequences of that abuse upon the plaintiff’s mental state, her personality structure and her relationships throughout her life. That involves consideration the counterfactual situation in which she was not abused.
In regard to general damages, Mossop J reflected upon the severity and extent of the abuse, being an instance of at least 20 occasions of penile-oral penetration or digital penetration, together with the gross abuse of the family relationship. At Paragraph 70, he states that this is the kind of sexual abuse which ‘may readily be accepted would cause very significant long-term consequences for the child’. These consequences, Mossop J continues, have manifested themselves in the form of anxiety, panic and depression, as well as in the plaintiff’s difficulty with family and sexual relationships, a damaged sense of self, self-consciousness and a perceived lack of self-worth. Combined with the defendant’s instruction of secrecy and his manipulation of the young plaintiff’s desire to protect her cousins, Mossop J held that an appropriate award of general damages in this case was $240,000 including aggravated damages. The interest on the past component of general damages was $117,342.
In drawing this conclusion, Mossop J did consider various other challenges the plaintiff had faced in her life which may have contributed to her psychological injury. These included the separation of her parents, the lack of contact with her father, and the failure of various businesses, all of which cannot be causally attributed to the sexual assaults. However, in reliance of the evidence provided by Associate Professor Quadrio, Mossop J concluded that in addressing challenges in life, the plaintiff was likely to have been impeded by the long-term psychological consequences of serious sexual abuse at her young age, and as such the amount was not reduced (at [71]).
In relation to economic loss, the plaintiff submitted that had it not been for the abuse then it is likely that she would have had a greater degree of stability in her employment history. However, Mossop J also considered how the plaintiff’s working life involved disruptions caused by work injuries and child raising, as well as business failures which cannot be directly tied to the sexual abuse. Nevertheless, the evidence of the plaintiff and Dr Quadrio establish conditions which are likely to have reduced the plaintiff’s earning capacity. As a result, Mossop J held that it was only possible to address the question of past and future economic loss at a high level of generality, and he awarded the plaintiff $200,000 for past economic loss and $150,000 for future economic loss.
The plaintiff was also awarded damages for domestic care in the amount of $19,150 and out-of-pocket expenses in the amount of $35,531 in consideration of the regime of psychological or psychiatric treatment suggested by Dr Quadrio.
If you would like to read the judgment yourself, you can access the case here: ND v AB (No 3) – ACT Supreme Court
Beverage Freight [2022] NSWSC 874
Breach or fiduciary? Hmm, how about neither!
In 2001, some Companies came together to incorporate a new company to contract with a big client. The client’s work would then be shared between the shareholders.
The new company would invoice the big client, and each shareholder would then invoice the new company such that the new company never made a profit.
A dispute arose: did that 2001 agreement establish a partnership?
The 2001 agreement did not create a partnership including because no profit was shared.
The new company did the work for the big client from 2001 to 2012.
Through this time there was discontent about the allocation of the work between the shareholders.
In 2012 the big client made a direction that the new company was to ensure its trucks were speed limited.
There were heated exchanges between the new company’s shareholders about the certification of the speed limiters installed on relevant trucks.
The Plaintiffs said the speed-limiter issue was a pretext manufactured to remove the Plaintiffs from the business.
The Court disagreed, finding: the big client had a legitimate concern about speed limiters.
After an August 2012 meeting, the content of which was subject to heavy dispute, Newer Company was founded without the Plaintiffs involved.
The Plaintiffs claimed the pivot from the new company to the newer company was a breach of the 2001 agreement, or the relevant fiduciary duties owed.
The Plaintiffs said the Defendants had caused the new company’s work with big client to cease in order for the newer company to do that work.
There was a “troubling inconsistency” in relation to some of the Plaintiff’s evidence of the 2012 meeting.
The Court found it was not implausible that the Plaintiffs attempted to take their own “shot” of working with the big client after the 2012 breakdown in the relationship, rather than sit with a deal they considered unfair.
The Plaintiffs claims were made for their own benefit and not for the benefit of the new company.
After a heavy and lengthy analysis of the evidence, the Plaintiffs failed in all of their claims.
Plaintiff’s failed to show that the natural persons were parties to the 2001 agreement and the companies, are not in partnership.
If you require assistance with any kind of corporate dispute you should seek legal advice.
Our team of qualified corporate and commercial lawyers at Chamberlains Law Firm can assist you with these issues to ensure that the dispute is managed correctly.
Tzavaras [2022] NSWSC 359
One brother, trustee, Plaintiff, tried to wind up a Company, he owned with his elderly mum and two other brothers. The family trust whose approximate $5.8m corpus included some real estate related to a family auto repair business formerly operated by the trustee.
(There was also a s66G issue that we will ignore.)
Plaintiff had left the auto repair business in 2012.
In a 2012 letter, Plaintiff’s lawyers wrote a letter confirming Plaintiff intentionally “walked out” of the family business.
Plaintiff did not attend any meetings of the trust from 2012 tough received and signed some occasional documents.
One of the Defendant’s brother’s auto repair businesses later operated from the trust’s real estate rent free from around 2013.
Plaintiff claimed he was oppressed as a shareholder of the trust by having been excluded from management, having not received dividends or the benefit of a loan account, the trust failing to charge the Defendant’s brother’s business rent, the trust losing money on a failed transaction, and the other brothers having rent-free benefit of the trust’s holiday apartment.
The Plaintiff tendered accounting evidence based on the incorrect assumption that the value of the shares in a trustee Co was proportionate to the assets of the trust.
The Plaintiff pressed for a windup, and no other remedy.
The Plaintiff was unwilling to meaningfully re-engage, apparently believing he would have to work for the Defendant’s brother free to do that. The Plaintiff complaint about rent free use of the trust’s premises range hollow when he did the same thing with his race cars.
In relation to the Plaintiff’s oppression claims, the Court found: it was not oppressive for the Plaintiff not to be involved day-to-day management of the trust where he had expressed a wish to cut ties and if that was wrong then the remedy is for the Plaintiff to be provided with notices of future meetings and company documents, not a winding up.
While a failure to pay dividends may be oppressive, here no dividends were paid to any shareholder and drawings were made as part of a regime the Plaintiff absented himself from including for elderly mum’s benefit.
The Defendant’s brother’s business occupying the Tee property rent free could be oppressive, but the remedy would not be wind up the Tee, but to direct it to charge rent.
The directors of the Tee falling victim to a financial fraud was not oppressive.
The use of the holiday unit rent free is not prohibited nor oppressive.
The Plaintiff failed in all of his oppression claims.
If oppression had been made out, the windup sought by the Plaintiff would not have been the appropriate relief.
The Plaintiff also failed in seeking a windup on the just and equitable basis.
If you require assistance with any kind of corporate dispute you should seek legal advice.
Our team of qualified corporate and commercial lawyers at Chamberlains Law Firm can assist you with these issues to ensure that the dispute is managed correctly.
Worthington v Hallissy [2022] NSWSC 753
Mum and dad – elderly and unwell – sued two of their kids, and their son-in-law.
First: the fascinating procedural issues.
One child and the son-in-law filed submitting appearances. Another child (who we won’t discuss further here) resisted Mum and Dad’s claim and made a cross claim.
During the final hearing, the submitting daughter later sought to withdraw her submitting appearance and actively contest the proceedings.
That daughter had been legally represented at the time of her submission and had taken advice on the implications.
She said she had not thought any orders would bite against them and their spouse at the time, despite a letter sent at the time suggesting otherwise.
Her own evidence showed she had been aware money orders were being sought against her months before the hearing and she did not seek to contest Mum and Dad’s claim. She still wanted leave to appear at the hearing so a “mutually beneficial settlement” could be explored at hearing.
The Court found the issues the daughter sought to agitate should have been raised earlier and been subject to an application to withdraw her submitting appearance earlier.
The daughter had not fully responded to a notice to produce issued in the proceedings.
The daughter had in the week before the hearing indicated being prepared to pay the amount sought and said she had the money to do so, raising no resistance to the relief.
The daughter made a choice to submit with the benefit of legal advice and only sought to depart from that position at final hearing, implausibly claiming that was when she realised she had a right to be heard.
The Court concluded justice could not allow the daughter to be relieved of her forensic decision to submit in order for her to bring a case she had previously given no notice of.
And so, what were the facts the Court was considering?
In 2011, the daughter and son-in-law purchased a property for a little over $1m.
In 2013, Dad entered into a deed with daughter and son-in-law by which it was agreed Dad would be 50% beneficial owner of the property. Daughter and son-in-law held Dad’s interest on trust. Dad paid $600K.
Dad also paid for other improvements to the property.
In 2016, daughter and son-in-law sold the property for $2.15m. That was not paid to Dad or kept separate from their other funds.
In mid-2020 Dad began to ask for his share of the money. He was unsuccessful.
Various steps were taken – mediations, family discussions and the like. Daughter’s offer to pay Dad some unspecified amounts if he signed a mediation agreement were not consistent with her duties as trustee.
Two payments daughter purported to make were in the form of dishonoured cheques.
The Court ordered half the sale proceeds had to be repaid to Dad.
If you require assistance with any kind of commercial dispute you should seek legal advice.
Our team of qualified corporate and commercial lawyers at Chamberlains Law Firm can assist you with these issues to ensure that the dispute is managed correctly.
SCS Super Pty Ltd [2022] NSWSC 686
A trustee sought judicial advice from the Court that it would be justified in amending a super fund trust deed. The proposed change would allow it to charge a fee to be paid from the fund.
(The Trustee sought and was granted non-publication orders in respect of some of its commercial evidence because if it became public it could be exploited by competitors.)
The fund, which originally related to educators associated with a specific religion, had around 80K members and $10.5bn under management.
The Trustee had never been paid for administering the fund and held nominal capital of $6 beneficially.
Managing a fund of this size, the Trustee had to do complex work, which it did not outsource. As such it bore the associated risk.
Pursuant to the trust deed, the Trustee enjoyed an indemnity from the fund in relation to the costs it incurred.
Recently, following the Hayne Royal Commission, the law changed.
The change effectively meant that the Trustee and its directors could not be indemnified for statutory liabilities from the fund.
Thus, the Trustee risked being made insolvent if a penalty ended up being applied.
(That said, the Trustee was not aware of an allegation of a breach of trust or imminent penalty.)
If made insolvent, the Trustee would be removed, administrators likely appointed, and a new trustee appointed – all at substantial cost, which would be visited on the fund’s members.
The Trustee considered various alternatives like raising capital and obtaining different insurance; while noting it also had no access to an indemnity from a third party because it did no outsourcing.
The Trustee sought advice from barristers on the proposed deed amendments and engaged with the regulator on the proposed change to the trust deed.
The Court respectfully usefully summarises all the relevant issues which include:
The Court may provide judicial advice in the best interests of the trust and if the trustee acts in accordance with the advice it is deemed to have behaved in accordance with its duties.
The Court was satisfied the proposed amendment was proper and lawful and ordered that the Trustee would be justified in proceeding as planned.
If you require assistance with any kind of trust inquiry you should seek legal advice.
Our team of insolvency lawyers at Chamberlains Law Firm can assist you with these issues to ensure that the trust is managed correctly.
Campbell v Campbell [2022] NSWSC 554
In the 1970s, Dad – a farm owner – planned to transfer his farm into a trust with a trust company as trustee and his family as beneficiaries.
If it worked, his wife and 4 kids could take the benefit of the farm without paying death duties.
At this time, rural families often faced death duties at “confiscatory levels” when farms passed to the next generation.
Dad died in 1976. Mum died in 2017. A number of disputes arose between the siblings and executors. Sadly, the legal fees associated with those eventually required the sale of the farm.
(For the child who worked the farm and hoped to go on, this loss was – understandably – sharply felt.)
Mum’s executors, and the son who would inherit the farm from her estate, said the farm was held by the trust company on a bare trust for Mum.
The farm had been acquired by Dad, from his father, in the 1950s. Over time, various parcels were added to it, and it was operated by various different partnerships.
After Dad’s 1976 death, Mum and the kids continued to work the farm.
Over the decades, Mum tried to discuss succession planning with the family, unsuccessfully.
Mum died in 2017 with her estate valued at $12.5m – crucially, that valuation was based on the assumption she (and not beneficiaries of the 1975 trust) owned the farm.
The Court’s understanding of the 1975 transaction was helped by the contemporaneous notes made by a young lawyer who was a family member (and who would go to the bar and take silk decades later.)
Their notes included a notation that it was likely that the scheme to avoid death duty would succeed. They were surprised to hear, decades later, that the effect of the transfer was in question.
Various documents were executed, and resolutions of the trust company and related entities passed. Ownership of the farm passed to the trust company.
After Dad’s death, his executors entered into various transactions on the basis Dad’s beneficial interest in the land had been validly transferred.
This conduct included a “well crafted, detailed and thoughtful” letter from Mum whose contents would not make sense unless Mum believed the transfer was effective.
In the following decades the parties proceeded as if the transaction had been effective including: Mum and others making a statutory declaration, swearing an affidavit, receiving legal and restructuring advice, the trust company giving guarantees, and the trust company’s repeated mortgaging of the farm over decades.
The Court found the trust company paid Dad valuable consideration for the transfer of the farm, and so the farm was part of the assets of the trust.
The scheme was effective, in accordance with how it had been treated by all relevant parties until 2020.
If you have questions or you need help, contact our Wills and Estates specialists team today.
Goo v Sim [2022] NSWSC 420
The plaintiffs claimed they paid $160K cash to defendant in connection with an online payment business.
The defendant said the $110K was appropriately spent on business expenses and defendant’s salary, and the $50K was for some units in a unit trust.
The parties’ dealings were informal: a lack of documents, cash only payments, few bank records etc.
One of the plaintiffs facilitated currency exchanges and money transfers between Australia and Korea.
A plan was hatched to expand that business to include online payments, with that work to be done by the defendant.
There was heavily contested evidence about the dealings before the venture kicked off.
The defendant gave the plaintiffs advice on the Korean requirements for the venture, advising around 100 million Korean Won (~AUD$100K) would be needed.
The defendant was given $109K in cash from one of the plaintiffs.
On collection of the funds the defendant signed a “loan agreement” which they understood would later be destroyed.
The funds were transferred to the Korean entity under the defendant’s control, which was created to operate the venture.
One of the plaintiffs said they paid a further $50K from their safe to the defendant to, the relevant plaintiff said, finish the venture.
The defendant denied receiving the $50K payment on that basis.
The venture never traded.
The plaintiffs said the defendant had breached various duties and sought the return of the $160K.
The Court found purpose of the payment of the $110K from the plaintiffs to the defendant was for the venture, and that the defendant accepted the funds on behalf of the venture.
The Court found some, but not all, of the funds were used by the defendant for the venture. Other funds were used for their own benefit e.g. to pay off personal credit cards.
No fiduciary obligations arose between the parties. The plaintiffs had no special vulnerability giving rise to any.
The Court considered a no purposive Quistclose trust arose because the evidence showed the parties intended for the $110K to become part of the working capital of the Korean venture.
Crucially, the plaintiffs did not allege that the recipient of the $110K, the Korean entity, owed any obligations to repay any money.
The evidence did not suggest the defendant had stolen the money, meaning a Black v Freedman trust (where a third party who takes the benefit of stolen money must repay it) does not arise.
Further, the defendant was not obliged to repay the $50K sum. This payment was found to be consideration for the defendant transferring their units in a unit trust (which was done), not a payment made for the venture.
The plaintiff’s claim was dismissed.
If you require assistance with any kind of corporate dispute you should seek legal advice.
Our team of qualified corporate and commercial lawyers at Chamberlains Law Firm can assist you with these issues to ensure that the dispute is managed correctly.
Calacoci v Calacoci [2020] NSWSC 476
Five partners, three plaintiffs and two defendants – from the same extended family carried on a partnership. There was no written agreement.
The second defendant was married to the first defendant.
The partnership business was owning rental property (shops and units) and collecting rent. The first defendant took a leading role and was a paid a management fee. All partners were paid drawings, controlled by the first defendant.
Drawings were paid 1/4 to each plaintiff, and 1/8 each to the defendants.
The partnership was dissolved in 2019. Issues regarding public auction versus “buyout” of the partnership property arose.
The central issue: what was each partner’s entitlement?
The shops were owned 1/4 by each plaintiff with the defendant’s jointly the remaining 1/4. The units were owned with each partner having a 1/5 interest.
The plaintiffs contended for a “four quarters” approach to the units, and the defendant for a “five fifths” approach.
The first defendant historically signed off on partnership financials on the “four quarters” basis but later claimed to have done so without inquiry.
The defendants leant on s24 of the Partnership Act 1892 (NSW) asserting that all partners share equally in profits and losses absent other agreement.
The plaintiffs relied on s21 to argue assets bought with the partnership funds (as the units were) are partnership assets.
The plaintiffs said they had no knowledge of the units being purchased in “five fifths” and did not look closely at the sale contracts and letters received in relation to the sale – an error “on par” with the first defendant’s ignorance of the financial documents he signed.
The financial records of the partnership had similar discrepancies; sometimes “four quarters”, sometimes “five fifths” and sometimes another basis.
The plaintiffs were unsophisticated and relied on the first defendant to manage the partnership’s affairs.
The solicitor who acted for the partners on purchasing the units gave basic conveyancing advice, not partnership “structure” advice.
In favour of “five fifths”: the plaintiffs signed contracts, accepted payments, and managed their tax affairs on this basis.
In favour of “four quarters”: the units were bought with partnership money, drawings were paid on this basis, the first defendant was paid a management fee, there was no agreement to vary the partnership proportion, and successive financial statements were prepared on this basis.
The Court found, on balance, “four quarters”.
If you require assistance with any kind of corporate dispute you should seek legal advice.
Our team of qualified corporate and commercial lawyers at Chamberlains Law Firm can assist you with these issues to ensure that the dispute is managed correctly.
Elder abuse is any act done by a trusted person which causes harm or distress to an older person.
Financial abuse is the most common form of elder abuse in Australia. Some common examples of financial elder abuse can include:
Unconscionable conduct is a legal principle which is often relevant to elder abuse. A contract or exchange between two parties is unconscionable if the exchange is extremely unfair or overwhelmingly favours the party in a stronger bargaining position. An exchange which involves unconscionable conduct is legally unenforceable because it defies good conscience.
The three legal elements to prove unconscionable conduct are:[1]
Elderly people might be at a special disadvantage in a contract or exchange if they are extremely frail or unwell, or struggle to understand the nature of the exchange.
Mentink v Olsen[2]
The case of Mentink v Olsen discusses unconscionable conduct and elder abuse. In this case, Ms Olsen died of terminal illness at age 75. She was survived by her husband, Mr Olsen, and her daughter from a previous marriage, Ms Mentink.
Ms Mentink had lived at the deceased’s home and had been her primary carer for 5 months before her death. Ms Mentink was also present at the medical appointment in which the deceased was informed that her condition was terminal.
A few days before her death, Ms Olsen had withdrawn $2.2 million from a term deposit account and gifted it to her daughter. Mr Olsen commenced proceedings against his stepdaughter, claiming she had obtained the money by unconscionable conduct or undue influence over her mother and was liable to repay the amount to the estate.
The court found that Ms Mentink had acted unconscionably and was liable to repay the $2.2 million to her mother’s estate.
Ms Olsen had suffered from a special disadvantage because she was extremely elderly, unwell, exhausted and confused at the time. The court also found that Ms Mentink was aware of her mother’s condition and had taken advantage of her. Even if Ms Mentink had not actively encouraged the gift, acceptance of such a substantial amount of money would still be unconscionable as Ms Mentink had witnessed at close range her mother’s indecisive and compulsive behaviour.
The transaction could not be considered fair or reasonable since the money was pulled from a term deposit which involved shared funds between the deceased and Mr Olsen. The deceased would have needed to receive independent legal or financial advice to even understand if she could gift the money to her daughter in the first place.
Elder abuse is a serious issue to be considered with Australia’s aging population. If you have concerns of elder abuse or would like advice regarding legal arrangements between family members, we recommend that you speak to our Private Wealth team. Our lawyers will be able to assist in determining the legal capacity of any elderly person and any dangers of undue influence or unconscionable conduct.
[1] Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447.
[2] [2020] NSWCA 182.
In two separate cases, the NSW District Court has handed down large fines in fatality matters.
In SafeWork NSW v Aussie Skips Recycling Pty Ltd [2022] NSWDC 276 a worker, Mr Girishanth Singarajah died when a front-end loader reversed over him as he was picking and sorting through waste piles by hand. The tragedy happened while he was working in South Strathfield on 24 May 2018, under the employment of Aussie Skips Recycling Pty Ltd (Aussie Skips).
The District Court Judge Russell found that Aussie Skips did not have adequate precautions in place in relation to readily foreseeable collisions between workers and heavy machinery, stating that the “likelihood of the risk occurring was high”. The employer provided financial, administrative and emotional support to the employee’s family in Sri Lanka by visiting them and offering to make a contribution to the employee’s community.
Aussie Skips was fined $525,000 along with Mr Emmanuel Roussakis, the general manager, who was fined $60,000 after both pleading guilty in relation to the accident. Both Aussie Skips and Mr Roussakis were further ordered to pay the costs of the prosecutor.
In the other case, SafeWork NSW v Mondiale VGL Pty Ltd [2022] NSWDC 275 a worker, Mr Ian Marlow was crushed to death by a reversing reach stacker weighing over seventy tonnes. At the time, the employee was working for Mondiale VGL Pty Ltd (Mondiale) (previously Visa Global Logistics Pty Ltd) on 29 November 2018 at its Banksmeadow site.
The judge stated that the evidence showed “the occasional presence of workers and heavy machinery being in the same area had developed over time but had not been noticed or prohibited.” The judge said that Mondiale knew of the risk which was obvious and highly foreseeable considering their services included freight forwarding, storage and customs clearance.
Mondiale provided financial support to Mr Marlow’s family, has held memorials on the anniversary of his death and has introduced the “Ian Marlow Award” for driver achievement.
Mondiale was fined $375,000 in relation to the accident.
The Work Health & Safety Act 2011 (WHSA) provides for the duty of care owed by a Person Conducting a Business or Undertaking (PCBU) to its workers:
while the workers are at work in the business or undertaking
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
The WHS has a penalty unit system to replace monetary amounts for offences under the Act and the Work Health and Safety Regulations. The value of a unit is increased every year subject to the consumer price index. The 2022-2023 penalty unit value is set at $107.47.
For example, an offence under s 31(1) of the Act – Gross negligence or reckless conduct – has a maximum penalty amount of 3,465 units for an individual (3,465 penalty units x $107.47 = $372,383), 6,925 units for an Officer of a PCBU (6,925 penalty units x $107.47 = $744,229.75), or 34,630 units for a PCBU body corporate (34,630 penalty units x $107.47 = $3,721,686.10).
Employers are urged to ensure they have proper systems in place to ensure safety, whilst Company Officers and Managers are reminded of their non-delegable duties to exercise due diligence to ensure the Company complies, or they can be prosecuted themselves.
Chamberlains Law Firm is able to assist in auditing your legal/WHS systems to ensure compliance and provide urgent legal assistance in the event of a serious workplace incident.