Gladys Carol Jones v Traci Haelli Jones

This hearing is the rump of proceedings which have already been before the Court. On 30 May 2024, Kunc J declared the plaintiff to be a person under a legal incapacity for the purposes of carrying on these proceedings and appointed a tutor to carry them on.

The plaintiff is 101 years old and is represented by the tutor. The defendant is her granddaughter. The plaintiff sold her house, which yielded net proceeds of $588,969.33. This money was paid into the defendant’s bank account.

The defendant spent a lot of the money. The plaintiff sought an order for an account which ultimately was not opposed. Because of the plaintiff’s very advanced age and what, in absolute terms might be regarded as not a particularly large sum of money in dispute (in the context of the jurisdiction of this Court), I brought the proceedings on for hearing quickly and conducted the accounting myself, with the cooperation of Counsel on both sides who agreed to a summary procedure which I implemented to get the hearing done expeditiously.

It is a settled principle that evidence is weighed according to the power of a party to produce it: Hampton Court Ltd v Crooks (1957) 97 CLR 367, 371-372; Cessnock City Council v 123 259 932 Pty Ltd (2024) 98 ALJR 719 at [129]. Here, the defendant, who spent the money, has all of the knowledge of the circumstances in which and for what she used it (and therefore all the power to produce evidence in that regard), whereas the plaintiff is at the disadvantage of having little or no knowledge of what the defendant did (and therefore with little or no power to produce such evidence), and in any case is under a disability.

Generally speaking, the defendant, notwithstanding all her knowledge, was in a hopelessly inadequate position to persuade the Court as to what the money was spent for, why it was spent and that the expenditure was for the benefit of the plaintiff or lawfully with her authority.

It is worthy of observation that it is not disputed that the money was beneficially owned by the plaintiff. The onus (or at least an evidentiary burden) rests on the defendant to establish that she spent the money lawfully, within authority or for the benefit of the plaintiff.

In the end result, even the amount in dispute was itself in dispute. This is not surprising given the inadequacy of the records maintained by the defendant of what she did with her grandmother’s money.

Taking a rough and ready approach, I adopted as a starting point a schedule (the Schedule) created by the defendant which set out a raft of items in full or partial dispute totalling $224,345.64.

On behalf of the plaintiff, it was said that the amount in dispute is about $22,000 higher. The material before the Court does not enable me with any confidence to resolve the true difference in dispute. The solution I proposed and to which neither side demurred, was to assume that the plaintiff should have half of the difference ($11,000) added to the starting figure representing the difference in opinion of the amount in dispute. In other words, a figure of $11,000 is taken to not be in dispute. Having regard to the material I have seen in relation to what the defendant spent and for what she spent it, I think this approach, if anything, benefited the defendant.

Another aspect of my approach was not to entertain objections to evidence. This perhaps also benefited the defendant, because there was some, albeit, flimsy support brought by her for a few items of expenditure which might otherwise have been legitimately objected to and disallowed. For her part, the plaintiff conceded that some expenditure was legitimate, such as fees paid to the plaintiff’s solicitor.

A disturbing feature of this case is that significant portion of what was spent could not conceivably have been for the benefit of the plaintiff, such as the defendant’s overseas travel expenses, the purchase of an electricity generator which went to the defendant’s house not the plaintiff’s house, a highspeed printer for which the plaintiff could have made no legitimate use, numerous ink cartridges for a printer and expenses in relation to refurbishment of an “ensuite bathroom” (the description in the invoice) when the plaintiff did not have an ensuite bathroom. As to the generator, the invoice shows the purchase of two generators and even had the defendant established that one of them went to the plaintiff’s house, she nevertheless claimed for two generators. This claim should not even have been made.

Finally, a difficulty was caused by the different ways the parties sought to isolate the items in dispute. The plaintiff also prepared a schedule, but on a different basis to the defendant’s. It was put on behalf of the plaintiff in addition to the amounts in the defendant’s schedule, the defendant had made concessions of other moneys due.

In the end, and no doubt because of the manner in which the case was prepared and conducted, perhaps because of the amount involved and the difficulty in assembling the material, the plaintiff was not in a position to persuade me that there is any amount to which she is entitled over and above the amount for which judgment will be given.

I traversed the Schedule item by item (determining whether the defendant had any lawful justification for the item expenditure). The result can be seen in the Annexure to this judgment. The plaintiff is entitled to judgment for $223,178.24.

On 9 December 2022, in related proceedings, arising out of the lodgement of a caveat on the plaintiff’s property by the defendant, by consent Kunc J ordered the defendant commence to pay, by instalments, of at least $10,000 per day to the trust account of the plaintiff’s lawyers, any funds in her possession or control held on behalf of the plaintiff, until the full amount thereof is paid. She was also ordered to provide explanations and supporting documents (such as tax invoices) for each transaction made from all accounts into which the net proceeds of sale of the property were deposited.

In my opinion, interest should be calculated from the date of those orders (which is somewhat later than the date of the last item of expenditure in respect of which the plaintiff has now obtained judgment). The plaintiff embraced this approach.

The defendant submits that the Court should order that each party bear their own costs. I see no reason why the Court should depart from r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) which provides:

The plaintiff moved for an order for indemnity costs. I have come to the conclusion that the defendant should pay the plaintiff’s costs on the ordinary basis until 19 December 2023 and thereafter on the indemnity basis because:

I observe, that on 11 February 2025, the defendant made a paltry settlement offer of $3,035.97 followed by an offer to pay $145,035.97 on the same day and a further offer, on 8 April 2025, offered $100,000 to be paid as part payment of a Refundable Accommodation Deposit for the plaintiff, under cover of a letter in which the defendant said she considered that she owed the plaintiff only $22,162.04.

I do not take into a Calderbank offer made by the plaintiff on 30 April 2025 offering to take less than the judgment she obtained, because the offer came too late.

I record that the parties were agreed that certain orders that instruments signed by the parties should be set aside should be made, as set out immediately below.

I make the following orders: