Good Samaritan Donkey Sanctuary Inc v Berry

CB produced a number of term deposit books evidencing the deposit of moneys and the crediting of interest. Three were with the Newcastle Permanent Building Society. (i) Term Deposit – A/C 838 970 406 – this has been previously mentioned (ii) Account 8388 19108 in the name of CB and known as Sunberry. There was a deposit of $45,000 on 23 April 1999. The greater part of that deposit probably came from account 04 0927 4/0 being in the name of CB t/as DBII; the withdrawal of $42,137.48 closed the account. It does not appear where the balance to make up $45,000 came from. Interest was credited to the term deposit. On 26 April 2000 the account was closed by the withdrawal of $47,334.09. That sum was deposited into account 838 934 106 in the name of GSD Sanctuary under the sole control of CB. (iii) Account 839 051 1006 in the name of CB and known as CB2. There was a deposit of $250,000 on 13 February 2001. That deposit came from an account 838 934 018 in the name of CB and known as $70,000. On 30 November 2001 the withdrawal of $253,843.15 closed that account, interest having been added. That sum was paid to the plaintiff (in its first incorporated name). There was a further investment account, being account 04 09274.0 opened in the name of CB with Greater Building Society Limited and known as CB1. That account records a number of deposits and ultimately the withdrawal of $42,137.38 which closed the account. See above. CB did transfer some money to investment accounts which earned interest. However, it is necessary to follow where the moneys ultimately went and to examine any explanation given. 217. By transfer bearing date 2 July 2001 SB and CB transferred their remaining block of land at Duns Creek on which their home was erected for $375,000. On 5 July 2001 the sum of $350,000 was by cheques deposited into account 04 10056/5 in the name of CB and known as 350,000 A/C. That sum was obviously the amount paid on settlement of the sale of the Duns Creek land and home. These transactions tend to show that appreciable sums became available to SB and CB in July 2001 in their own right. Prior to that they had received on about 17 January 2000 the proceeds of sale of their vacant land at Duns Creek of $130,135.90 (item 4340). Between 17 January 2000 and July 2001 the Falkingham legacy of $20,000 and the Ware legacy of $100,000 had been paid into an account entitled GSD Sanctuary under CB’s sole control. With the moneys received from the sale of the properties at Duns Creek SB and CB were in a position to purchase the Bishops Bridge land for $157,000. 218. As earlier mentioned, the evidence as to the incomes of SB and CB and their assets falls far short of satisfying the Court that they were able to provide substantial sums for the welfare of the donkeys. I do not doubt that CB laboured long and hard to advance the welfare of the donkeys and that her husband supported her in those labours. Second Amended Cross Claim 219. I have earlier set out the relief claimed. I recapitulate some of the facts. 220. On 27 March 2001 the Committee agreed to the Association’s incorporation and the plaintiff was incorporated on the following day. 221. On 6 October 2001 a Committee meeting of the plaintiff was held and CB was asked questions about the financial affairs of the plaintiff and its predecessors. After that meeting Leigh Everett, who was conducting a financial investigation into the affairs of the plaintiff and its predecessors had follow up meetings with CB and JK. 222. On Saturday, 3 November 2001 a Committee meeting of the plaintiff was held. It is recorded that a list of assets (presumably of the plaintiff) had been provided. The report of Leigh Everett covered a large number of matters. She reported that there was no evidence of cash and money orders deposited from 1995 onwards. The report dealt with the absence of amounts received from the sale of GSDS books, the dealings with the Clarence Town land, legacies, donations and the purchase of land, the land at Pine Brush and the amounts (with details) owed to the donkeys by CB as calculated by Leigh Everett, totalling $476,970.61. 223. The Minutes record: “CB said that she had always intended the land to be for the donkeys and would have no hesitation in handing back the land at Pine Brush and the land known as Largs land as well as a sum of cash. [JK] said that she owned a portion of Largs land as she had paid $3,000 and may not wish to hand her share over. It is recorded: “An agreement was made between the Committee and C Berry that she would see a solicitor within seven days to commence steps to hand over to the donkeys (GSDS Inc) the land known as Pine Brush and her share of the land known as Largs land. The transfer of land was to be completed within four weeks of the meeting date of 3 November.” CB said that at the meeting Ms Everett said, inter alia, words to the following effect: “I will involve the Department of Fair Trading, the Taxation Department and the police in the investigation of [CB]. You have 7 days to organise to have the land signed over and pay a large amount of money into the Association within 7 days or I will involve the Police, Tax Department and Department of Fair Trading and you [CB] will be in big trouble.” 224. CB said that present at the time were Elizabeth Harris, JK, Margaret Howard and Yvonne Cooper and that Ms Everett thumped the table and because of her mannerism CB felt intimidated. 225. JK is recorded in the Minutes as being present at the meeting of 3 November 2001. 226. JK said that Leigh Everett did not use words to the effect alleged by CB, but said “You’ve got to watch, dear, your tax implications and that Leigh Everett kept putting her arm around CB as CB was crying and shaking. JK said that Ms Everett said, ”Don’t worry, I’ll help you.,” JK said that she was unable to remember whether Ms Everett mentioned the police too. I did not think that JK was telling the truth when she gave the last mentioned answer JK denied that Ms Everett made any demands upon CB. JK denied that Ms Everett, at some stage, thumped the table. JK said Ms Everett was saying prayers for CB aloud and that they were holding hands. While all this was taking place CB was crying. 227. I formed the strong impression that JK was understating what happened at the meeting. The Minutes record that Ms Everett asked the Committee if they wished to place a vote of No Confidence in the Administrator. The Committee declined in view of the agreement which had been made. The Minutes record Ms Everett as referring to tax and other legal implications and to inappropriate conduct with bequests and public donations and that these may well have to be considered fraudulent if matters were not immediately rectified in accordance with Committee decisions. 228. On Monday 5 November 2001 CB telephoned Hills, Solicitors. As Mr Booker, the solicitor with whom she usually dealt was on holidays she was put on to a Mr Williams and she instructed him to draw up two transfers. These related to the Pine Brush land and the Largs land. 229. On Friday 9 November 2001 JK accompanied CB to see her doctor. The doctor wrote that on that day CB was distressed and appeared in a fearful state but was reluctant to explain why she felt like that, that JK explained that CB was upset about her husband’s illness and had had several months of depression and anxiety-type symptoms. The doctor suggested a trial of medication for depression and asked CB to make an appointment two weeks later. CB returned on 10 December 2001 unaccompanied. CB told the doctor that she (CB) was afraid to speak openly in front of JK and believed she could not trust her. CB said that she did not feel anxious or depressed and she did not appear so to the doctor. CB explained to the doctor that she had fallen into dispute over her life’s work (the donkey sanctuary). The doctor was unaware of JK’s involvement in that dispute and JK did not reveal that. The doctor wrote it was her belief and opinion that CB was fearful of JK and that CB had been pressured to attend to obtain a diagnosis of depression. I agree with the doctor’s opinion. In her oral evidence the doctor expanded on what had occurred at the consultation and what JK said and the doctor’s previous observations of CB. The doctor said that when she saw CB on 10 December 2001 CB was a different person. 230. On CB’s instructions her solicitors ordered valuations of the land to be transferred and such reports were received by the solicitors in mid-November 2001. 231. CB said that on the evening of 25 November 2001 Ms Everett telephoned her and said words to the effect, “Since you have not signed over the land I have instructed David Coyle Solicitor, of Richard Fry and Associates, to write to your solicitor”. A letter bearing date 23 November 2001 in strong terms was written by Mr Coyle to Hills, Solicitors. This letter was received by Hills about 26 November 2001. On Wednesday, 28 November 2001 CB attended an interview with Mr Booker. CB has stated: “Such was my state of distress I did not fully explain the details of my interaction with the other members of the Association. At that time Mr Booker did say that I was not obliged to sign the transfers however I did sign them, illogically (I see now) fearing the intimidation of Everett and the other Committee members could permanently damage my health” 232. In CB’s solicitor’s reply of 30 November 2001 to the letter of 23 November 2001, it was stated that CB strongly denied any allegation or intimation that she had in any way misapplied or misappropriated the funds of the Donkey Sanctuary/Corporation and that CB had previously indicated to the existing committee, Ms Everett and Ms Kokas that she will actively cooperate in bring the affairs of the Corporation into order. 233. CB said that on Thursday 29 November 2001 she telephoned Mr Booker and informed him that she had agreed to meet Ms Everett at her home next day at 8.30am and that he advised her not to sign anything more until everything had been worked out. 234. CB said that on Friday, 30 November 2001 she attended Ms Everett’s home. Ms J Frick was also present. CB said that at that meeting she was handed two letters. The first was a circular letter of 28 November 2001 addressed to “Dear Friends of Donkeys.” After setting out a little of the history of the Sanctuary, the letter advised that a major review of the plaintiff’s financial and management controls and procedures was being undertaken with the assistance of professional advisers and that a majority of Committee members had requested that the Administrator, CB, stand down pending the AGM to be held on 9 December 2001. The letter also stated that reports on these important investigations and actions would be provided by the solicitors as the matter developed. The letter also sought that all correspondence be sent to the plaintiff at its new postal address. That letter was signed by JK and four Committee members, one of whom was Miss Kokas. 235. CB said that having read this letter she burst into tears and she was unable to read the second letter, which Ms Everett then read to CB. The second letter advised CB not to remove any items, animals or equipment from Lot 3 and/or Lot 4 Pine Brush Road properties and that if she wished to collect any property owned by her to telephone Ms Everett to make the necessary arrangements. The second letter also advised that security guards had been engaged. 236. In cross-examination CB said that when she telephoned Mr Booker on 29 November 2001 she told him that she had agreed to meet Ms Everett at her house, with JK also being present so that they could “go through whatever they were claiming was behind the financial records and see if I could put some light on it.” CB said that she did not know at that time that she was going to be asked to pay more money over to the Association. 237. CB agreed that she signed the transfers in Mr Booker’s office and that she insisted that she would do it. CB said that she really did not confide in Mr Booker and she now realised she should have. 238. In Mr Booker’s letter of 30 November 2001 it is stated: “We are advised by our client that she also holds monies in accounts with the Newcastle Permanent Building Society on trust for the Sanctuary/Corporation. She is quite prepared to discuss the details of these accounts and make appropriate arrangements for the transfer of funds held on trust with Ms Everett or Ms Kokas direct.” 239. Those instructions were probably given to Mr Booker on Wednesday, 28 November 2001 or possibly on 29 November 2001. CB anticipated that further funds would have to be transferred ultimately. 240. CB said that she went to Ms Everett’s home at 8.30am on Friday, 30 November 2001, and that instead of JK being there Ms J Frick was there. CB said that Ms Frick pointed her finger at her (CB) and said, “ I know what you have done.” CB said she replied, “What have I done?” CB said that from then on she felt terribly intimidated and that it only got worse. CB said that Ms Frick was hostile to her and that was uncharacteristic of Ms Frick. 241. CB said that Ms Frick left at lunch time, that after Ms Frick had gone Ms Everett and she were alone, that Ms Everett demanded that CB go straight to the bank and that CB be back by 5pm otherwise she was calling the police. When asked did it occur to her to telephone Mr Booker, CB replied: “I was terrified. I had sobbed and sobbed that morning, I was an emotional total wreck. I sobbed at Mrs Leigh Everett’s table to the point where [Ms Frick] in all her kindness comforted me.” 242. CB agreed that it was on the previous day that she had spoken to Mr Booker about the intended meeting and her apprehensions. CB said that Ms Everett had told her that she (CB) was going to gaol and she did not want to go to gaol. CB denied that she was concerned that her conduct of the finances of the Sanctuary over the years was criminal. 243. Ms Frick gave a different account of the meeting on the morning of 30 November 2001. That is set out in detail in paragraphs 11, 12 and 13 of her affidavit of 7 June 2004. Ms Frick recounted discussions held on a number of specific topics and transactions. Ms Frick said that as the discussions continued the following occurred, amongst other things: (a) “[CB] and [Ms Everett] discussed the various bankbooks which [CB] produced. One particular term deposit record showed an investment amount of $250,000 and another record which showed an account which had been opened with $70,000 but it had a balance of $13,000.” (b) CB said words to the effect, “I just want to help, I don’t want to go to gaol. I have lost Jo’s friendship, Elizabeth is disgusted with me and my accountant is upset with me because he doesn’t know about all these accounts. I can sign this money over to the Sanctuary because it is all donkey money.” (c) Ms Everett said words to the effect, “That would be entirely up to you.” CB said, “Yes, I want to do it.” 244. In cross-examination Ms Frick said CB was only crying at the start of the meeting and saying that she did not want to go to gaol. Ms Frick said that Ms Everett did not speak about the consequences of CB’s actions. Ms Frick said that Ms Everett did not intimidate CB. 245. Ms Frick denied that CB was frightened and insisted that CB settled down after her initial period of crying and being upset. Ms Frick said that CB settled down on realising that Ms Everett was trying to help her (CB). 246. Ms Frick did not deal with what happened after lunch on 30 November 2001. She probably left Ms Everett’s house just after lunch. As Ms Everett is dead I only have CB’s account of what happened in the early part of Friday afternoon after Ms Frick left. The records of Newcastle Permanent Society Limited establish that $250,000 was withdrawn on 30 November 2001. The date of 29 November 2001 on the receipt issued by Ms Everett appears to be incorrect. 247. From 6 October 2001 CB realised that her handling of the financial affairs of GSDS was under challenge and that challenge intensified on 3 November 2001. CB made promises as to what she would do at that Meeting. CB realised that there could be serious consequences for her. Those consequences included that she would no longer be running the Sanctuary to which she was devoted. 248. It was Ms Everett’s responsibility to investigate thoroughly the financial affairs of GSDS and GSDSI. Ms Frick gave her some assistance. Both ladies would have been troubled by the way these affairs had been managed by CB. It was right for Ms Everett to raise the problems and irregular practices she found. It is probable that Ms Everett asked CB many probing questions and sought explanations and information from CB and that Ms Everett would not be satisfied with generalisations. CB found this process to be uncomfortable and distressing and realised that there could be serious consequences for her. It was this realisation that led CB to act. CB realised that the Pine Brush land and the Largs land should be transferred to the plaintiff and that there were other moneys in accounts controlled by her which were, at the very least, held in trust and should be transferred to the plaintiff. CB had ample opportunity to obtain professional advice. It was a pity that she was not prepared to be frank with her solicitor and tell him the full story. Ms Everett wanted restoration to occur promptly and CB to transfer lands and moneys with reasonable expedition to the plaintiff. Matters could not be allowed to drift. It appeared that the moneys were available. 249. Undue pressure was not placed on CB. I do not think that she was intimidated. She withdrew the sum of $264,388 and paid it to the plaintiff because she believed those moneys belonged to the plaintiff and to regularise, at least in part, the financial affairs of GSDS and GSDSI which she had been handling. CB’s claim that she executed the documents as to the payment of $264,388 to GSDSI and made that payment under duress/or mistake is rejected. 250. I decline to make the declaration sought in para 18 of the Second Amended Cross Claim as to the sum of $264,388. That money belongs to the plaintiff legally and beneficially. 251. The relief sought in para 19 of the Second Amended Cross Claim, namely an order that GSDSI pay CB $151,893.67 is based upon Mr Bell’s report of 20 February 2003. Mr Bell wrote: “Based on the information provided and the assumptions herein the amount Berry has contributed which is currently held in assets of the Association are as follows: Limeburners $52,334.67 Pinebrush 99,559.00 $151,893.67” 252. Mr Bell accepted CB’s assertion that $52,000 were her personal funds, verifying that that sum was withdrawn from an account in the name of CB trading as DBII on 20 June 1996. I have earlier set out why such a claim appears to be unsustainable and directed an enquiry 253. The claim for $99,559 was based on two withdrawals, one for $47,334.09 on 26 April 2000 from an account in the name of CB, known as Sunberry, which CB asserted went to the purchase of Pine Brush. Mr Bell assumed this to be correct. I would need to be satisfied on an analysis of the Sunberry account that the sum of $47,334.09 was in truth the property of CB. I would also need to be satisfied that that sum was used in the purchase of the Pine Brush property. The summary handed up by counsel for CB asserted that it was so used. That may be so. 254. The second withdrawal was one for $52,225 on 22 June 2000 from an account at Newcastle Permanent Building Society Ltd in the name of GDS Sanctuary under the sole control of CB (Item 4579). 255. I would need to be satisfied that this sum was in truth the property of CB. It was said that this sum originally came from the sale of the first Lot at Duns Creek . The summary handed up by counsel for CB asserted that this sum was used in the purchase of Lot 3, Pine Brush. 256. There is one further hurdle for CB to overcome. Both the amounts were claimed to be used in the purchase of the Pine Brush property. However, that property was transferred to the plaintiff about 30 November 2001 without any reservations. That concluded the matter. It is too late to now be making a claim for moneys alleged to have been advanced to assist with the purchase of the property. 257. The plaintiff submitted that in any event it was not enough for CB to demonstrate that she put money into the Sanctuary out of her own pocket either before or after the incorporation date. The plaintiff submitted that CB would have to go further and demonstrate that she had a contract with the Association at the relevant time that she would be reimbursed or recoup by her own efforts or “something of the sort” in each of these cases and it does not appear from the evidence. There does not seem to have been a loan, but I do not think that there was any intention to make a gift at the time moneys were advanced. As a matter of evidence JK, when the transfer of the Largs land was being canvassed remarked that she had contributed $3000 to the purchase of that land and she did not know whether she was prepared to forego her claim Subsequently she did when she signed the transfer. 258. Counsel for CB handed up a five page summary in which were listed a series of transactions and claimed on balance the sum of $173,836 was due from GSDS to CB. At T450 counsel stated that CB’s claim was for the amount specified on the final page of Mr Bell’s report namely $151,893. Counsel submitted that this figure was probably very conservative. 259. The five page summary did not purport to be a complete summary of all the dealings between CB and GSDS but it referred to certain real estate transactions, namely, Clarence Town Purchase, Lots 34 and 36 Duns Creek, Largs and included a section headed “Other Transactions of Significance Explained.” 260. CB’s counsel handed up a further two page summary headed “Summary of Transactions Involving Intermixing of Funds”. This showed the “net amount payable to the cross-claimant by the plaintiff” as $173,836. 261. The Largs property was transferred to the plaintiff on 30 November 2001 without reservation. The Clarence Town property was transferred about 2 February 2001 when settlement seems to have taken place. The plaintiff has an outstanding claim for the balance of the sale moneys. 262. I am not persuaded that the methodology employed in either summary is sound. 263. In my opinion the claim for $151,893 fails. 264. As earlier mentioned the last section of the cross-claim (para 23) seeks declaratory relief which is not entirely clear. CB cannot maintain proceedings against JK in respect of any moneys which she may owe to the plaintiff. It seems that CB is alleging that JK utilised CB’s moneys personally including payment for erecting buildings on JK’s own land without accounting to CB. 265. JK said that at CB’s demand she (JK) agreed to allow the Sanctuary to erect a tri-steel stable complex on her property at Glen William. The stable is used by the Sanctuary as the Donkey intensive care facility and hospital. JK said that asset belongs to the Sanctuary and that it is able to be readily dismantled and relocated. There is also a relocatable office building. There was a payment of $800 for labour for erecting a carport which was paid for by the Sanctuary. This was offset against the sum of over $2,000 for reimbursement of expenses incurred on behalf of the Sanctuary. The Committee was aware of and approved what was done. 266. JK said that she never managed the personal money of CB and SB. 267. CB said in para 20 of her affidavit of 27 June 2002 that by early 2001 she became concerned that JK “may have been appropriating funds of mine for property improvements on her own land.” No supporting details were given. 268. The evidence does not justify the making of the declaration requested in paragraph 23. 269. In my opinion the cross-claim should be dismissed. 270. Neither CB nor JK had the qualifications and experience or was otherwise equipped to handle the substantial sums of money received and expended and to keep adequate financial records of income and expenditure. The problems grew worse with the influx of funds after the 1996 fund raising drive. Both ladies were out of their depth. The large number of donkeys and the welfare of the donkeys added to CB’s burdens. Substantial expenditure was involved in accommodating, feeding and caring for the donkeys. CB’s prime focus and interest was on ensuring that the donkeys received adequate care and she did a lot of the physical work. CB was also fully aware of the need to raise funds. It is a great pity that CB did not keep her funds and those of the Sanctuary separate. 271. I propose to order some limited enquiries and accounting: (a) to determine the amount, if any, contributed by CB or CB and SB out of her or their property to the purchase of the property known as Limeburners Creek Road, Clarence Town about May-June 1996 (b) to require SB and CB to account for each of the deposits of $5000 or more listed under Transactions 3(a) of Schedule E to the report of Mr M F Rossetto of 6 November 2003, except the following: 5 May 1992 $ 25,526.00 24 February 1995 $ 10,000.00 19 September 1995 $ 10,000.00 17 January 2000 $130,135.90 23 March 2000 $ 20,000.00 6 November 2000 $ 5,359.50 In respect of each deposit for which an account is required SB and CB are directed to supply full particulars of the sources of those deposits which are claimed to be their or her property. That may involve going back through several accounts. Insofar as it is claimed that the whole or any part of the deposits the subject of the accounts were properly expended on behalf of the plaintiff or GSDS (the unincorporated Association) SB and CB are directed to advise the detailed basis for such claims with adequate particulars including adequate particulars of any authorisation of such expenditure (c) to require SB and CB, on the basis of my finding that $27,148.53 (or $27,100.53) was the property of GSDS (the unincorporated Association), insofar as it is claimed that the whole or any part of the sum was properly expended on behalf of the plaintiff or GSDS , to advise the detailed basis for such claim with adequate particulars of it including adequate particulars of any authorisation of such expenditure. Any overlapping with Transaction 1(a) will need to be taken into account (d) to require SB and CB to account for the deposit of $100,000 about 26 May 2000 being the legacy from the Estate of Rosemary Ware and placed into an account called GDS Sanctuary under the sole control of CB . Insofar as it is claimed that the whole or any part of this sum was properly expended on behalf of the plaintiff or GSDS (the unincorporated Association) SB and CB are required to advise the detailed basis of such claim with adequate particulars of it including adequate particulars of any authorisation of such expenditure (e) to require SB and CB, on the basis of my finding that $11,495 was the property of GSDS (the unincorporated Association), insofar as it is claimed that the whole or any part of this sum was properly expended on behalf of the plaintiff or GSDS to advise the detailed basis of such claim with adequate particulars of it including adequate particulars of any authorisation of such expenditure (f) to require CB to account for the withdrawal of $41,832.30 on 2 November 1993 and $8900 on 11 February 1993 from the account in the name of GSD Sanctuary known as CB & JK1. Insofar as it is claimed that the whole or any part of these sums was properly expended on behalf of GSDS the unincorporated Association) CB is required to advise the detailed basis of such claim with adequate particulars of it including adequate particulars of any authorisation of such expenditure. (g) to require CB to account for $8000 being the approximate proceeds of sale received by her from the sale of DBIII books. 272. Each of the claims of SB and CB will have to be proved by the appropriate evidence. I anticipate that CB will have to go back through the available documents and over the events which occurred, for example, land purchases, and endeavour to match the deposits and withdrawals with those events and that there will be a considerable amount of tracing and accounting. 273. A volume of copy bank statements was admitted in evidence and Ms Alexandra Kokas produced a plastic bag and box containing financial records. All this material should be made available to CB. 274. CB should appreciate that because she mixed her moneys with those of the unincorporated Association and put legacies and donations intended for the unincorporated Association into accounts controlled by her that she is required to account and that statements to the effect that all the moneys were applied for the benefit of the donkeys will not suffice, nor will statements that she contributed more money from her funds or those of herself and her husband than she received by way of donations, legacies and fund raising activities. The evidence points to CB and SB being in relatively modest financial circumstances and in later years being the beneficiaries of increasing land values. 275. I have not ordered a general account from January 1991. It would be impossible to conduct such an account with the limited records which are available, and oppressive. Many of the transactions occurred a long time ago. I am not unmindful that JK contributed, by poor book and record keeping, to the situation which exists. I have been guided in part by the matters to which Mr Rossetto drew attention and allowed for those instances where Mr Rossetto was either not told of relevant facts or was not supplied with relevant documentary material. 276. There are a number of ways to approach the accounting required. That is primarily a matter for the parties. 277. I direct the plaintiff within seven days to submit draft short minutes to give effect to this judgment to the solicitors for the defendant and my Associate. Within a further seven days the defendants are to notify the plaintiff’s solicitors and my Associate of any objections to the proposed short minutes or submit an amended draft. The short minutes should provide for the dismissal of the second amended cross-claim. This is not an opportunity to re-argue matters, 278. As the plaintiff has enjoyed substantial success in its action and succeeded on the cross-claim, my provisional view is that the defendants should pay the costs of the plaintiff to date of the proceedings. This would include the costs of JK of the cross-claim. I am prepared to hear argument as to costs. 279. I will re-list the matter on 14 November 2006 or on such other date as may be arranged by the parties with my Associate to settle the short minutes, deal with costs and attend to any outstanding matters. By this time I would hope that the dispute as to Transaction 2 ($78,476) or the method of dealing with it would have been resolved.

CB serve on the plaintiff on or before 31 January 2007 an affidavit or affidavits verifying, as to each of the items described under the heading “Transactions” below: (a) the source of the funds deposited or withdrawn; (b) the person or persons who are claimed to be beneficially entitled to the funds deposited or withdrawn; (c) the reasons for each such claim, including particulars of any documentary evidence for such claim, annexing copies of any such documents as are available; (d) whether it is claimed that CB or SB ore both expended the funds on behalf of GSDS, and if so the reasons for each such claim, including so far as possible name of payee, date of payment, purpose, and particulars of any claimed authorization by GSDS of the payment, annexing copies of any documentary evidence for such claims. [This includes affidavits justifying or explaining amounts spent on feeding, maintaining, housing and caring for donkeys] Transactions In the report by Mariano Rosetto dated 6 November 2003, being Exhibit ‘A’ in these proceedings: A. Each deposit into a financial institution account listed under the heading “Money banked into accounts controlled by CB” on pages 3 and 4 of schedule E, except any deposit of a sum less than $5,000.00, and except the following deposits: 5 May 1992 $25,526.00 24 Feb 1995 10,000.00 19 Sept 1995 10,000.00 17 Jan 2000 130,135.90 23 March 2000 20,000.00 6 Nov 2000 5,000.00 B. The deposit of $27.148.33 numbered ‘3b’ on page 4 of schedule E. C. The deposit on 26 May 2000 of a cheque for $100,000 drawn by Prpetual Trustee Company Limited on behalf of the Estate of the late Rosemary Lillian Wares, being item No. 4528 on p 71 of Schedule C. [The affidavit should show, if this be the fact, that this sum was used in the purchase of the Pine Brush land] D. The deposit on 23 Feb 2001 of cheque for $11,495.00 drawn by Patricia Hepworth, being item No 4905 on page 77 of Schedule C. E. The withdrawals from accounts of: (i) $41,832.30 on 2 Nov 1993, being item No 1097 on page 18 of Schedule C; and (ii) $8,000.00 on 11 Feb 1993, being item No 769 on page 12 of Schedule C. The affidavit should show that, if this be the fact, $41,832.30 was used in the purchase of the Largs land. [This direction applies to the extent that CB wishes to contend that such moneys were used for the benefit of the GSDS and the donkeys]. 3. CB serve on the plaintiff an affidavit verifying: (a) how the proceeds of sale of Donkey Business III of $8000 were disposed of by her, including the name of each person to, and title and number of each account into which such proceeds were paid, and the dates of payment; (b) whether it is claimed that any such proceeds were expended on behalf of GSDS, and the reasons for any such claim, including name of payee, date of payment and the purpose. 4. CB serve on the plaintiff on or before 21 December 2006 an affidavit verifying whether any documents and records of the affairs of GSDS or goods the property of GSDS are within the possession, custody or control of either or both CB and SB and providing a full description of each such item and its location. 5. In these Orders, “GSDS” means the plaintiff, formerly named “Good Samaritan Donkey Supporters Inc”, and includes the unincorporated association named “Good Samaritan Donkey Sanctuary” that existed from about 1990 until the incorporation of the plaintiff. 6. List the matter for further directions before me on 12 February 2007 at 9.30am. 7. The claims of the plaintiff in these proceedings are otherwise dismissed. 8. The second Amended Cross-Claim is dismissed. 9. The defendants are to pay the plaintiff’s costs of the proceedings relating to the claims against the defendants, to and including the date of these orders, including reserved costs. 10. The cross-claimant [CB] is to pay the costs of each of the cross-defendants relating to the cross-claims. 11. Direct that service of the orders upon the defendants may be effected by the plaintiff’s solicitors by prepaid post addressed to Mrs C E Berry, 600 Wollombi Road, Bishops Bridge, NSW 2326 and that the solicitors for the plaintiff advise Mrs C E Berry by letter by prepaid post that she should appear at this Court, Queen’s Square, Sydney on 12 February 2007 at 9.30am (See the notices in the Court foyer to ascertain the Court in which the matter is being heard). 12. Note that Mr R Makin, the solicitor on the record for Mrs C E Berry has advised that his instructions have been withdrawn and that he has ceased to act for her.