Boyd v Thorn

1. [1]

   HIS HONOUR: These proceedings were commenced on 6 April 2016 by the filing by the plaintiff, Mr Ian Boyd, of the statement of claim naming as the defendant Mrs Catherine Thorn who is the executrix of the estate of the late Betty McAuley. The statement of claim, amongst other relief, sought orders setting aside orders made by Robb J following a judgment delivered on 25 August 2014 in proceedings number 2011/91377 in which Mrs Thorn was plaintiff and Mr Boyd defendant.

2. [2]

   An amended statement of claim was filed by Mr Boyd in these proceedings on 4 May 2016. I am dealing with a notice of motion filed by Mrs Thorn in which she seeks an order that the proceeding be summarily dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), or alternatively that the amended statement of claim be struck out.

3. [3]

   Robb J delivered two principal judgments in the proceeding 2011/91377, which I will call the 2011 proceeding.

Background

1. [4]

   I had occasion to consider the background to this matter in a judgment given earlier this year (Boyd v Catherine Margaret Thorn as Executrix of the Estate of the late Betty McAuley [2016] NSWSC 588). I venture to repeat what I there said as to the background to the 2011 proceeding.

2. [5]

   On 24 March 2016 Mrs Dawn Boyd filed a summons in proceeding 2016/91811 in which she sought orders to set aside the orders made by Robb J on 13 March 2015 on the ground that she was a necessary party to the proceeding in which those orders were made but had not been joined.

3. [6]

   I heard her application on 7 April 2016 and at the same time there was listed before me for hearing a notice of motion that had been filed by Mrs Thorn seeking the appointment of trustees for sale of the Sutherland property.

4. [7]

   On 11 May 2016 I acceded to Mrs Boyd's application and set aside the orders made by Robb J on 13 March 2015 on the ground that Mrs Boyd was a necessary party to the application for those orders but had not been joined (Boyd v Catherine Margaret Thorn as executrix of the estate of the late Betty McAuley [2016] NSWSC 588). I made orders then for the joinder of Mrs Boyd as a second defendant and for the rehearing of that application. That application is now listed for hearing at the end of July before Rein J.

5. [8]

   Insofar as Mr Boyd's amended statement of claim seeks to set aside orders made by Robb J on 13 March 2015 it is now otiose, as those orders have already been set aside. But his application goes further. In substance, he also seeks to set aside the orders made on 6 November 2014 on the grounds that they were procured by fraud.

6. [9]

   Mr Boyd also seeks orders setting aside the grant of probate made in favour of Mrs Thorn in respect of Mrs McAuley's estate.

Procedural challenge

1. [10]

   Before proceeding with the merits of the application, it is necessary to say something about a procedural challenge that Mr Boyd raised in written submissions delivered before today's hearing. Those matters were not pressed in the course of oral submissions but I did not understand them to have been abandoned.

2. [11]

   The chronology of events so far as the present application is concerned are as follows: As I have said, the statement of claim was filed on 6 April 2016. On 29 April 2016 Mrs Thorn filed a notice of motion seeking summary dismissal of the proceeding and in the alternative an order that the statement of claim be struck out.

3. [12]

   As I have said, the amended statement of claim was filed on 4 May 2016. On 5 May 2016 a registrar made orders extending the time for the filing of a defence until a date after the defendant's notice of motion had been heard and determined. Other orders then made included that the defendant be granted leave to file an amended notice of motion in relation to the amended statement of claim, and that notice of motion be filed by 19 May 2003 together with any further evidence in support of it on which the defendant would rely. Orders were made for the plaintiff to serve any evidence and the matter was stood over to the registrar's list on 12 July 2016.

4. [13]

   On 11 May 2016 I varied those orders by fixing the defendant's notice of motion for summary dismissal for hearing before me on 14 June 2016 and I directed that any further affidavits by any party in relation to that notice of motion were to be served by 27 May 2016.

5. [14]

   Those orders were made in the context that the orders made by the registrar provided for the notice of motion to be amended. As it was, the notice of motion, as amended on 19 May 2016 simply sought an order that the amended statement of claim be struck out, rather than that the statement of claim be struck out.

6. [15]

   The substance of the matter clearly was that the defendant was seeking summary dismissal of the proceeding and was seeking to have the amended statement of claim struck out if the proceeding were not summarily dismissed.

7. [16]

   On 6 June 2016 Mr Boyd sent a letter to my associate in which he sought an adjournment of the hearing until mid to end of July. One of the grounds of the application was that due to his wife's health he had been unable properly to prepare for today's hearing and the other was that his employer had rescheduled simulator training for this week. His occupation is that of a commercial pilot.

8. [17]

   I refused that application on 9 June 2016 for reasons which I then gave noting that today had been fixed for hearing of the defendant's amended notice of motion.

9. [18]

   In written submissions Mr Boyd has contended that:

10. [19]

    In a further written submission Mr Boyd repeated his contention that Mrs Thorn was in default in filing a defence and said that the Court's decision to allow the defendant's solicitor, Mr Paterson, to comment on his request for an adjournment when the defendant was in default and had no legal rights on the progress of proceedings, together with the Court's rejection of his request for an adjournment, suggested a bias that only further consolidated his allegations that the proceedings were an abuse of process. He also submitted that the defendant should be precluded from having any extra time to file a defence and submitted that because the defendant's notice of motion filed on 29 April 2016 had been "invalidated" by the filing of the amended statement of claim, the hearing set for today was invalid.

11. [20]

    There is no substance to these submissions. So far as the complaint is made that the defendant is not entitled to be heard because she is in default of the time for filing a defence, it can be observed first that even if she were in default, it not being a default in compliance with the Court’s order, such default would not preclude her maintaining this application; but secondly, the orders of the Registrar on 5 May 2016 provided for the extension of the time for filing of the defence until the defendant's notice of motion has been heard and determined.

12. [21]

    So far as the complaint that the notice of motion had been "invalidated" by the filing of an amended statement of claim is concerned, there is simply no legal basis for that contention. The matter has been appropriately dealt with by the notice of motion’s being amended to refer now to the amended document.

13. [22]

    Substantially the same issues arise in relation to either the original statement of claim or the amended statement of claim and no prejudice could be identified.

14. [23]

    Finally, I should record that no application was made that I should recuse myself from dealing with this application on the ground of actual or apprehended bias.

Findings of Robb J: Catherine Margaret Thorn as executrix of the estate of the late Betty McAuley v Boyd [2014] NSWSC 1159

1. [24]

   Turning to the substance of the application, it is convenient to summarise the key findings of Robb J that illustrate the context in which the allegations in the amended statement of claim are raised.

2. [25]

   Mr Boyd was the nephew of Mrs Betty McAuley. She died on 26 December 2012. The defendant, Mrs Thorn, was the daughter of Mr McAuley. Mr and Mrs McAuley married late in life. Mr McAuley predeceased Mrs McAuley and had died by the time of the events of 2009 which gave rise to these proceedings.

3. [26]

   Robb J described Mrs Thorn as being a stepdaughter, and executor of Mrs McAuley's Will. The description of her as Mrs McAuley's stepdaughter is the subject of allegations of fraud to which I will return in due course.

4. [27]

   Robb J recorded (judgment at [19]) that Mrs McAuley made her last will on 11 December 2006. Mrs Thorn was appointed as the executrix. She left her house in Camperdown to her four "stepdaughters" as tenants-in-common in equal shares. She bequeathed her residuary estate to such of four named persons who survived her and if more than one as tenants-in-common, those being Mr Boyd's mother and three children of Mrs McAuley’s stepdaughters.

5. [28]

   In the events which happened, Mr Boyd's mother predeceased Mrs McAuley. He is not entitled to any part of Mrs McAuley’s estate under her will.

6. [29]

   The challenge to the grant of probate is not based upon any challenge to the making of the Will on 11 December 2006. In any event, Mrs McAuley had made earlier wills under none of which would Mr Boyd have inherited.

7. [30]

   As of July 2009, Mrs McAuley's assets consisted principally of her house in Camperdown, $260,000 held on deposit with the AMP and $150,000 held in a Challenger Investment Account. She was in receipt of a war veteran's pension (judgment at [20]).

8. [31]

   On 11 December 2006, Mrs McAuley had executed a power of attorney to Mrs Thorn's husband, Mr Robert Thorn, but did not then give the power of attorney to him (at [23] and [26]). Robb J found that in April 2009 Mrs Thorn and Robert Thorn got Mrs McAuley to cancel her cheque book which she had lost (at [24]).

9. [32]

   On 23 July 2009, Mrs McAuley's solicitor, Ms Thorburn was instructed by Mrs McAuley to send the power of attorney she had executed in December 2006 to Mr Robert Thorn (at [26]).

10. [33]

    Also on 23 July 2009 an ACAT assessment was carried out in relation to Mrs McAuley at her home, with Mr and Mrs Thorn and a Dr Loh being present. The ACAT report concluded by saying that the:

11. [34]

    Robb J found that in late July 2009 Mr Thorn was advised by the AMP that Mrs McAuley's investment account with it had recently been closed. His Honour recounted evidence given by Mr Boyd that on about 13 July 2009 Mrs McAuley telephoned him and said, “I just signed and sent in documents to cash the AMP investment account”, and that on about 30 July 2009 Mrs McAuley again telephoned him and asked him to take her to “a bank to deposit a cheque from AMP". Mr Boyd took Mrs McAuley to a bank where he saw her deposit a cheque for $260,000. On the same day Mr Boyd saw Mrs McAuley make out a Commonwealth Bank cheque in his favour which he then deposited into a bank account that he held jointly with his wife (at [34]). That cheque was not cleared because Mrs McAuley's cheque book had been cancelled.

12. [35]

    A bank officer later advised that the cancellation had been effected by Mr Thorn under his power of attorney. Robb J found (at [43]) that on 3 August 2009 Mr Boyd must have learned that Mrs McAuley's cheque had been cancelled because he had a conversation with Ms Thorburn on that day which she recorded. Mr Boyd had complained to her that the Thorns were stepping in to manage his aunt's affairs.

13. [36]

    Robb J found (at [44] and [45]) that Mr Boyd knew that a gift to him of $260,000 was a fundamental departure from Mrs McAuley's wishes as reflected in her wills. Ms Thorburn gave evidence that Robb J accepted that on 3 August 2009 Ms Thorburn responded to a statement made by Mr Boyd that he wanted someone to have financial control of Mrs McAuley's affairs who was not a beneficiary under her will by saying:

14. [37]

    His Honour found that on 3 August 2009 Ms Thorburn had a conversation by telephone with Mrs McAuley which his Honour set out at length (at [54]), from which conversation Ms Thorburn was concerned about Mrs McAuley's mental capacity. It was her view that Betty did not have capacity to make a gift of large sums of money. She said that Mrs McAuley had told her that she had agreed to give Mr Boyd $260,000 because he was speaking about his business and he needed money.

15. [38]

    Robb J found that on the next day, 4 August, Mr Boyd had a telephone conversation with Ms Thorburn in which he told her that he was down at the Commonwealth Bank with Mrs McAuley and had discovered that she had lost control of her money and that her account had been closed and her money placed on term deposit. Ms Thorburn gave evidence that Mr Boyd said that he was relying on Betty's money and was in serious financial trouble.

16. [39]

    On the same day, Ms Thorburn wrote to Mr Boyd warning him not to proceed until Mrs McAuley's capacity to make a properly informed decision to give him $260,000 had been established by a consultation with a geriatric specialist.

17. [40]

    Robb J found (at [66]) that Mr Boyd agreed with this course. But on 4 August 2009 a fax was sent on the letterhead of Mr Boyd's business revoking Mr Thorn's power of attorney (at [67]). Mr Boyd asserted that Mrs McAuley was vehement about wanting to revoke that power (at [69]). Robb J also found that on 5 August 2009 Mr Boyd typed a letter that Mrs McAuley signed and that was faxed from his business address advising Ms Thorburn that Mrs McAuley had transferred her affairs to another solicitor.

18. [41]

    Also on 5 August 2009, Mrs McAuley executed an enduring power of attorney appointing Mr Boyd as her attorney. The clause in that power of attorney authorising the power to confer benefits on himself (clause 6) was crossed out. The document was witnessed by a solicitor, a Ms Anika Fleet (at [73]-[74]).

19. [42]

    Also on 5 August 2009, Mrs McAuley wrote out by hand and signed a letter stating that, being of sound mind, she wished to give Mr Boyd the sum of $260,000 and the Challenger Bank account of $150,000. The letter was witnessed by Ms Fleet, who wrote words in capitals under her signature, "NO ADVICE GIVEN".

20. [43]

    The transfer of $260,000 for Mr Boyd was effected on 6 August 2009.

21. [44]

    Robb J found that in agreeing to effect the transfer the bank relied upon the power of attorney that Mr Boyd admitted he had showed the bank (at [88]-[90]). His Honour recorded (at [92]) that later on 8 March 2010, Mr Boyd had written to a senior legal officer at the NSW Trustee and Guardian in which he had said that:

22. [45]

    His Honour found that Mr Boyd procured the power of attorney because his other attempts to have the $260,000 transferred to his account had failed, and he used it to persuade the bank to make the transfer (at [94]).

23. [46]

    He also found that Mr Boyd procured Mrs McAuley to sign the letter of 6 August setting out her wish to give him $260,000, and a further $150,000, and said that Mr Boyd needed the letter to bridge the gap in his authority. That arose because the exclusion in the power of attorney of his power to make a gift in his own favour (at [98]).

24. [47]

    Robb J found that Mr Boyd's steps in acting in the way in which he initiated Mrs McAuley's generosity and causing her to take steps to implement the transfer of $260,000 into his account, and then retaining the money, was unconscionable and it would be unconscionable for him to keep the money. His Honour applied principles summarised in Aboody v Ryan [2012] NSWCA 395, particularly at [65].

25. [48]

    His Honour found that Mrs McAuley suffered from a cognitive impairment of which Mr Boyd was aware, or at least of which he had notice (at [132], [133] and [139]), and he found that Mr Boyd's dire financial need caused him to ignore Ms Thorburn's advice and to procure the termination of Mr Thorn's power of attorney the termination of Ms Thorburn's retainer to act for Mrs McAuley, the granting of a power of attorney to himself and to having Mrs McAuley sign the 5 August 2009 letter.

26. [49]

    His Honour made the orders set out earlier in these reasons. In substance, he found that Mr Boyd took unconscientious advantage of Mrs McAuley's position of special disadvantage that was due to her advanced age and cognitive impairment, and that he breached his fiduciary duty by acting in his own interests in the way in which he deployed the power of attorney.

27. [50]

    There was no appeal from those orders.

28. [51]

    Nor was any timely application made to set aside the orders on the ground now alleged, namely, that the orders were procured by fraud.

Principles

1. [52]

   The principles upon which a judgment may be set aside on the ground that it has been procured by fraud are established in decisions of the High Court and the Court of Appeal (in particular Cabassi v Vila [1940] 64 CLR 130 at 147; McDonald v McDonald (1965) 113 CLR 529 at 533; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538; and Toubia v Schwenke (2002) 54 NSWLR 46, particularly at [41] and [42]).

2. [53]

   Importantly, for present purposes, it is essential for a party asserting that a judgment was procured by fraud to show that there has been a new discovery of something material in the sense that fresh facts have been found which "by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment" (Wentworth v Rogers (No 5) per Kirby P at 538).

3. [54]

   To like effect, in Toubia v Schwenke Handley JA said (at [41]) that:

4. [55]

   Another relevant principle is that, as in all cases based upon fraud, particulars of the fraud claimed must be exactly given, and the allegations must be established by a strict proof which such a charge requires (Wentworth v Rogers (No 5) at 538).

Amended Statement of Claim in these proceedings

1. [56]

   The amended statement of claim extends to some 272 paragraphs. Barely a paragraph is free of hyperbole. It does not plead material facts. The nature of the pleading can be judged from the first three paragraphs:

2. [57]

   The relief sought in the amended statement of claim is as follows:

Absence of Originating Process

1. [58]

   It is convenient first to deal with the claims in paras (4) and (5) set out above. These are elaborated upon at paras 201 to 267 of the pleading. In substance, Mr Boyd complains that no amended statement of claim was filed in proceedings 2011/91377. He says the Court was deceived into making orders for the substitution of Mrs Thorn as plaintiff after Mrs McAuley's death.

2. [59]

   The proceedings had been commenced by the NSW Trustee and Guardian as Mrs McAuley's tutor in the District Court. The NSW Trustee and Guardian had been appointed as financial manager of her estate by orders of the Guardianship Tribunal in 2009. That relationship came to an end on her death.

3. [60]

   Mr Boyd filed an amended defence to the amended statement of claim in the 2011 proceeding. He says that, nonetheless that his defence was "invalid" as there was no claim to defend. This contention is elaborated upon with numerous unparticularised allegations of fraud, coercion, breach of duty by solicitors and the like.

4. [61]

   The facts in relation to this contention are straightforward. Mr Paterson, who acts now for Mrs Thorn, had acted for the NSW Trustee and Guardian. On 21 September 2012, whilst Mrs McAuley was still alive, he filed a summons in this Court (proceeding 2012/294632) in which he sought an order that proceeding 2011/91377 in the District Court be transferred to this Court. On 10 October 2012, Sackar J ordered that the proceeding be transferred to this Court and "that the plaintiff has leave to file an amended statement of claim herein".

5. [62]

   On 11 October 2012, the amended statement of claim was filed in the registry of this Court in proceeding number 2012/00294632. That the amended statement of claim was filed in the Court is apparent both from the fact that it appears on the court file of that number and JusticeLink records the filing of what is called a "miscellaneous document", and when that link is clicked on, it records that the type of document that was filed so described was "Amednde [sic] Statement of Claim". That statement of claim was filed pursuant to the leave given by Sackar J the previous day. But the statement of claim should have been filed in the 2011 proceeding that had been ordered to be transferred to the Court, although it may be that the physical file had not actually been transferred by the time the pleading was filed. Be that as it may, the file number on the amended statement of claim was thereafter changed by hand to record the proceeding in which it was filed as 2011/91377.

6. [63]

   On 30 August 2013, Mr Boyd filed, in the 2011 proceeding, an amended defence to that amended statement of claim. The amended statement of claim, as filed on 11 October 2012 was included in the court book that was before Robb J at the hearing in 2014. It is clear that the parties litigated on the basis of that pleading.

7. [64]

   After Mrs McAuley's death, Mr Paterson filed a notice of motion on behalf of Mrs Thorn on which she sought to be substituted as the plaintiff in the action. The application was brought pursuant to UCPR r 6.30 that provides that proceedings do not abate as a result of a party's death if a cause of action in the proceeding survives, and that if a cause of action survives the Court may make such orders as it thinks fit for the joinder, removal or re-arrangement of parties. There is no question but that the cause of action that Mrs McAuley, through her tutor, had alleged was one that survived her death. Mrs Thorn, as executrix, was the appropriate person to be appointed as plaintiff in substitution.

8. [65]

   As I understand the allegations in the amended statement of claim filed in this proceeding, it is that because no amended statement of claim had been filed in proceeding 2011/91377 it was not competent for the Court to make an order for the appointment of Mrs Thorn as plaintiff and that Kunc J, who dealt with the application for substitution (Betty McAuley by her Tutor the NSW Trustee & Guardian v Ian Geoffrey Boyd (Kunc J, Supreme Court of NSW, 22 May 2013) was deceived by what I think is said to be a fraudulent alteration of court records by the change of the file number on the copy of the amended statement of claim.

9. [66]

   There is nothing in those allegations. It would have made no difference if the same pleading had been filed for a second time, this time given the number 2011/91377. Rather, the parties sensibly proceeded on the basis that the amended statement of claim had been properly filed, as I think it had been.

Mr Boyd’s affidavit of 21 May 2013 opposing application for substitution of plaintiff

1. [67]

   Mr Boyd was not present when the notice of motion for substitution of Mrs Thorn was listed for hearing, which was on 22 May 2012. As I have said, he is a commercial pilot by occupation. He was overseas. He sent an email to the Court attaching a 21 page affidavit in opposition to the application. That affidavit makes the same types of allegations, in the same way, as is now made in the amended statement of claim. Amongst other things, he alleged that Mrs Thorn had embarked on a campaign to prevent the gift from being transferred and having failed in this she recruited the Guardianship Tribunal by submitting offensive allegations to it in what was said to be "a provable false and misleading application".

2. [68]

   Mr Boyd said that he had submitted extensive correspondence to the Guardianship Tribunal, and later the NSW Trustee and Guardian, including details of Mrs Thorn's own acceptance of a gift from Mrs McAuley and her adoption of a false identity as Betty's "daughter" and "next of kin". He said that she had falsely so described herself to firms, and organisation officials and organisations, and listed various people or organisations before whom such statements of false identity had been made. He argued various matters about circumstances leading up to the gift of $260,000 which were later dealt with by Robb J.

3. [69]

   In his affidavit of 21 May 2012, Mr Boyd said that Mrs Thorn had lodged a false and misleading application with the Guardianship Tribunal and said that the application was supported by accompanying file notes which were false. He said that there was no medical evidence to support the alleged dementia, Mrs McAuley continued to live alone and independently without formal assistance, and accused Ms Thorburn of adopting a dual role of acting during Mrs McAuley's life as solicitor for both Mrs McAuley and Mrs Thorn.

4. [70]

   He complained of a lack of procedural fairness before the Guardianship Tribunal, and in relation to that matter he said:

5. [71]

   He also said:

6. [72]

   These same matters are raised in the 2016 proceedings commenced by Mr Boyd.

7. [73]

   In Mr Boyd's affidavit of 21 May 2012, he said that, days after becoming aware of Mrs McAuley's gift to him, Mrs Thorn immediately embarked on a campaign to prevent the gift and transfer, after failing in this recruitment in the Guardianship Tribunal, by submitting her “offensive allegations about me in a provable false and misleading application”.

Amended Statement of Claim: evidence allegedly suppressed

1. [74]

   In para 4 of the amended statement of claim, it is alleged that, at the trial, counsel for the plaintiff unjustly prevented Mr Boyd from presenting to the Court facts and evidence proving the claim and the proceedings having been brought by fraud. The basis for that allegation appears to be in the paragraphs which follow, in which he pleads that Mrs Thorn's own file notes, those of her husband and those of her solicitor Ms Thorburn that were created between July and October 2009 are evidence that such a fraud existed. He alleged that he advised the Court in April 2014 that a former solicitor of his was claiming a lien over his documents, but that Mr Paterson offered to provide him with copies of documents if he sent a list. He pleads that he sent a list; that he received a court book only shortly before the trial commenced. He pleads that:

2. [75]

   He pleads that Catherine Thorn fraudulently concealed the file notes from the Supreme Court by detaching them from the court book. And he pleads that, in a letter of 21 May 2014, Mr Paterson had admitted that not all file notes of the plaintiff and her family were included in the court book and this was an oversight, and alleges that "[t]o this day the concealed file notes are vital to prove the unconscionable conduct and/or fraudulent activities of the Defendant” et cetera.

3. [76]

   What are these concealed file notes?

4. [77]

   In paragraphs 52 and 53 of the pleading, Mr Thorburn refers to a file note of Robert Thorn dated 7 August 2009 stating "Marion advised us to bring Betty into see her today" and to Ms Thorburn's file note of the same day in which she is alleged to have falsely stated "Betty brought forward her 10 August appointment with the writer to Friday the 7 August 2009…….". Robert Thorn's file note is said to be an admission that Ms Thorburn advised him and Mrs Thorn to coerce Mrs McAuley back to her office after she had engaged new independent solicitors two days earlier. This was said to be evidence of serious financial abuse of an elderly client for the financial benefit of another client.

5. [78]

   There is, of course, no inconsistency between the two file notes. One would infer, simply from the file notes themselves, that Ms Thorburn advised Mr Thorn to bring Mrs McAuley into her office that day and that Mrs McAuley accepted that advice, conveyed to her by Mr Thorn, and brought forward her appointment.

6. [79]

   In any event, it is clear that all of the file notes which are the subject of the allegations of fraud and coercion were available to Mr Boyd before the conclusion of the hearing before Robb J. Mr Paterson has identified documents referred to in the amended statement of claim and has prepared a table in which he identifies whether the file note in question was either tendered into evidence, as many of them were, or, if not tendered into evidence, had been provided to Mr Boyd. That table is as follows:

7. [80]

   Mr Paterson was not cross-examined. Mr Boyd did not adduce any contrary evidence. (There is a query in relation to the reference concerning the medical report by Dr Shoba Iyer in that the page in the court book to which reference is made appears to me to be a report made to Dr Iyer and not a report by her. But Robb J has set out in his reasons for judgment (at [103]) the substance of Dr Iyer's report, including those parts upon which Mr Boyd relies in his amended statement of claim.)

8. [81]

   As noted previously, in his submissions that were considered by Kunc J contained in his affidavit of 21 May 2013, Mr Boyd had said that after the hearing before the Guardianship Tribunal in 2009 he was handed the package of documents which included Thorn's full application, her file notes and file notes from her sisters, amongst other documents.

9. [82]

   When Mr Boyd was asked to identify any fact upon which he relied to establish that the orders of 6 November 2014 had been procured by fraud, which was not a fact known to him prior to the conclusion of the submissions made to Robb J, he was not able to identify any such fact. His submission, rather, was that fraud there had been and he would go to whatever lengths were necessary in order to demonstrate that such fraud had occurred. But that is inconsistent with the applicable principles. As Kirby P explained in Wentworth v Rogers (No 5) at 539:

Mrs Thorn’s description of herself as stepdaughter, daughter or next of kin

1. [83]

   In paragraph 24 of the amended statement of claim Mr Boyd repeats the allegation made on numerous previous occasions that Mrs Thorn had represented herself as Mrs McAuley's stepdaughter; elsewhere Mr Boyd says Mrs Thorn represented herself as Mrs McAuley's next of kin or daughter. He submitted that she made a fraudulent statement of her position in the application made to the Guardianship Tribunal in 2009 when she described herself as Mrs McAuley's stepdaughter. He submits that upon Mr McAuley's death the relationship of affinity between Mrs McAuley and Mrs Thorn was terminated and she ceased to be Mrs McAuley's stepdaughter. He referred to there being Queensland authority on the question.

2. [84]

   As a matter of strict law, that contention may well be correct (see Re Burt [1988] 1 Qd R 23; but compare Re Cook; Ex Parte C (1985) 156 CLR 249 per Deane J at 262-263).

3. [85]

   It does not follow that there could be anything fraudulent in Mrs Thorn’s describing herself as Mrs McAuley's stepdaughter. Indeed, Robb J, who was clearly aware of the true relationships, also thought it appropriate so to describe her in paragraph [1] of his Honour's reasons for judgment. I also thought that that was a natural description until Mr Boyd drew my attention to possible contrary authority. I think there is simply nothing in this contention. But, in any event, this was a matter which he raised both in his affidavit of 21 May 2013 and in his submissions to Robb J.

Solicitor’s alleged conflict of duties

1. [86]

   The statement of claim pleads that Ms Thorburn had a conflict of interest in acting for Mrs McAuley and Mrs Thorn at the same time. Mr Boyd has not pleaded any particular fact by reason of which he contends that Ms Thorburn was Mrs Thorn's solicitor at the time she acted as Mrs McAuley's solicitor. It was not an allegation that was put to Ms Thorburn before Robb J. She was not required for cross-examination. The only evidence before me on the topic is a statement by Mr Paterson, which was read without objection, in which he deposed that Mrs Thorn first retained Ms Thorburn as her solicitor after Mrs McAuley died, and did so in her capacity as executrix of Mrs McAuley's estate.

2. [87]

   The fact that Ms Thorburn was discussing with Mrs Thorn Mrs McAuley's condition, and the transactions on which she was embarking with Mr Boyd, does not provide any justification for an inference that she was acting as Mrs Thorn's solicitor, or that there was a conflict of duties owed to them. Even if Ms Thorburn were acting as solicitor for Mrs Thorn, I find it hard to see where there could be a conflict.

Mrs McAuley’s capacity

1. [88]

   The amended statement of claim alleges that seven days before the disputed gift was transacted Mrs McAuley had been assessed by Dr Low, a specialist geriatrician, who confirmed that Mrs McAuley had normal capacity, and could continue living alone and independently without assistance (statement of claim para 23). The statement of claim goes on to plead that:

2. [89]

   No such allegation was put to Ms Thorburn at the hearing before Robb J. The medical evidence alleged in paragraph 29 quoted above was quoted in Robb J's reasons for judgment at [29]. His Honour observed that Dr Loh's attendance was as part of an ACAT assessment and the purpose of that assessment is more concerned to determine the subject's capacity to live independently than it is to assess the subject's capacity to manage her financial affairs. His Honour went on to find, on the basis of medical evidence that was before him, that Mrs McAuley did suffer a cognitive impairment that prevented her making sound independent judgments concerning the prudence of any major financial transaction, and in particular the making of a gift of substantially all of her cash investments (para [132]).

Power of attorney by Mr Thorn

1. [90]

   The amended statement of claim alleges that Mr Robert Thorn abused the power of attorney made in his favour by Mrs McAuley. In para 34 it is alleged that Mr Thorn immediately started using the power of attorney in various ways, including by interfering with Betty's bank accounts, and cancelling her cheque account and cheque book, and in other ways. Mr Boyd alleged that:

2. [91]

   The allegation of misuse of the power of attorney by Mr Thorn was a matter that Mr Boyd had raised in submissions before Robb J. Insofar as he asserts that Robert Thorn obtained any advantage for himself or for his wife from his use of Mrs McAuley's power of attorney, the short additional answer is that Mr Boyd has no standing to make that application. The proper person to have complained about that during her lifetime was Mrs McAuley. She did not. The only person who could properly complain about any such misuse of the power of attorney would be Mrs Thorn as executrix of Mrs McAuley's estate; or perhaps a beneficiary of that estate, of which Mr Boyd is not one.

Use of Mr Boyd’s power of attorney

1. [92]

   The statement of claim pleads that the gift of $260,000 was effected by the cheque drawn on 30 July 2009 and not by use of the power of attorney on 6 August 2009. Thus in paragraph 88 it is alleged:

2. [93]

   In support of that allegation Mr Boyd repeats the submissions which he made before Robb J that he did not use the power of attorney and that he could not have done so because the power of attorney did not include a term which would have authorised him to make a gift. Those matters were fully dealt with in his Honour's judgment. Nothing new is raised in the pleading.

3. [94]

   I should add that almost all of these allegations are couched in florid language accusing Mrs Thorn and her solicitor of fraud, coercion, elder abuse, exploitation and the like. The dressing up of pleadings with allegations of that kind does not give them any greater force. To the contrary, such allegations must be properly particularised and the material facts on which the allegations could properly be based must be pleaded. That has not been done.

Documents signed by Mrs McAuley on 7 August 2009

1. [95]

   The amended statement of claim alleges that despite Mrs Thorn and Ms Thorburn's allegations that Mrs McAuley lacked the capacity to make legal or financial decisions, or sign legal documents, they procured her to sign a letter reinstating Ms Thorburn as her solicitor, a revocation of the power of attorney to Mr Boyd and a document returning the power of attorney to Mr Thorn. In submissions Mr Boyd said that if, as it was found, Mrs McAuley lacked capacity to make a gift to him then she could not have had capacity to execute the documents that she did on 7 August 2009 when the meeting of Mrs McAuley with Ms Thorburn was "brought forward". This misstates the findings that Robb J made concerning Mrs McAuley's capacity. But, in any event, these are all matters that were the subject of evidence and submissions before his Honour. Again, nothing new has been alleged.

Application to Guardianship Tribunal

1. [96]

   The amended statement of claim alleges that Mrs Thorn filed a false and misleading application to the Guardianship Tribunal for a financial management order. It is not clear to me how any such allegation can have any consequence for the orders made on 6 November 2014. The financial management order made by the Guardianship Tribunal ceased to have effect on Mrs McAuley's death. At the most this could only be background to the matters sought to be agitated before Robb J.

2. [97]

   It appears that before his Honour counsel for Mrs Thorn had alleged that findings of the Guardianship Tribunal gave rise to issue estoppels that were binding on Mr Boyd. His Honour did not need to deal with that question and noted that no such matter had been pleaded either in Mrs Thorn's statement of claim or in her reply. Nor did Mr Boyd's cross-claim raise any question as to the validity of the Guardianship Tribunal's orders.

Non-completion of $150,000 gift

1. [98]

   The amended statement of claim (at paragraphs 90 to 99) makes allegations concerning Robert Thorn's conduct in preventing completion of Mrs McAuley's intention to transfer $150,000 invested with the Challenger Bank to Mr Boyd. Mr Boyd had filed a cross-claim in the 2011 proceedings on 30 August 2013. In that cross-claim he sought a declaration that Mrs McAuley prior to her death wished to give him an additional $150,000, and sought an order that he be able to prove in her estate for the sum of $150,000 upon its distribution. That cross-claim was not pressed at the hearing before Robb J. In other words, this was a claim that was raised in the 2011 proceedings but was abandoned.

Conclusion on claim to set aside judgment for fraud

1. [99]

   For these reasons, there is no arguable case that Mr Boyd might be entitled to have the orders of 6 November 2014 set aside. Those parts of the statement of claim that seek to re-litigate the matter that was heard and determined by Robb J are an abuse of process and should be dismissed.

Challenge to grant of probate

1. [100]

   The statement of claim also seeks a declaration that "the defendant defrauded the Probate Division of the Supreme Court case number 2013/00061668"; and a declaration that "the defendant misappropriated estate moneys"; and it seeks an order setting aside the grant of probate and “setting aside the role of the defendant as executor”. Apparently that is an application for an order for removal of Mrs Thorn as executor.

2. [101]

   Mr Boyd has no standing to make that application. He is not entitled to any part of the estate. He does not impugn the validity of the will. Even if he did, he would not be entitled to any part of Mrs McAuley's estate otherwise than on an intestacy and to establish an intestacy he would need to set aside her previous wills.

3. [102]

   The ground for setting aside the grant of probate is, apparently, matters alleged in paragraphs 134 to 142 under the heading "Probate Fraud". It is there alleged that in 2000 one of Mrs McAuley's investment properties was transferred after Mr McAuley's death to Catherine and Robert Thorn for a price well below market price and with a mortgage back to secure payment of the price. It is alleged that Mr and Mrs Thorn have not discharged that mortgage; and that on the application for probate Mrs Thorn:

4. [103]

   Mr Boyd had made complaints in relation to these matters in his affidavit of 21 May 2013. He there said that if Mrs Thorn did accept a gift of the Maroochydore apartment ahead of her three older sisters and had enjoyed lucrative rental income from the property thereafter that would demonstrate an irrational belief that she was entitled to receive a lucrative gift of property from her father whilst Mr Boyd, as Mrs McAuley's next of kin, was ineligible. He complained that "Thorn pushed the will through probate without my knowledge" (paragraph 71). He complained (at paragraphs 96-97) that:

5. [104]

   Apart from the non sequitur of the last proposition, it is noteworthy that these matters had been raised by Mr Boyd when Mrs Thorn's proceeding was still pending. Again, it does not relate to any new matter discovered since either the hearing before Robb J or, it would seem, the grant of probate.

6. [105]

   Be that as it may, for the reasons I have given, Mr Boyd does not have standing to challenge the grant of probate.

Conclusion and orders

1. [106]

   Summary dismissal is a drastic remedy and only to be used in clear cases. But where a case is clear, as this one is, it is the appropriate remedy. Were that not so, the amended statement of claim would still have to be struck out. It pleads multifarious matters without pleading primary facts. It is more in the nature of a rolled-up submission. It does not state with clarity the case the defendants would have to meet and it would be impossible for the defendant properly to plead to it. However, because I am of the view that it has been clearly shown that the claims made are doomed to fail, the appropriate order in proceeding number 2016/104251 is that the proceedings be dismissed. I so order.

2. [107]

   I will hear the parties on costs.

3. [108]

   Costs must follow the event. I order that the plaintiff pay the defendant's costs of the proceedings.