Catherine Margaret Thorn as executrix of the Estate of the late Betty McAuley v Ian Geoffrey Boyd - [2014] NSWSC 1159

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Catherine Margaret Thorn, as Executrix of the Estate of the Late Betty McAuley v Ian Geoffrey Boyd [2014] NSWSC 1159
Hearing dates: 22, 23 and 24 April 2014, 20 May 2014 and 11 June 2014
Decision date: 25 August 2014
Jurisdiction: Common Law
Before: Robb J
Decision:
Direct the plaintiff in the first instance to prepare short minutes to reflect the conclusions reached in these reasons for judgment, so that final orders can be made in accordance with directions to be made

Catchwords: EQUITY - validity of transfer of money effected under a power of attorney that excluded authority to make gifts to the attorney - undue influence - whether relationship of influence existed - whether de facto relationship of influence - unconscionable conduct - significant cognitive impairment - no independent legal advice - issue estoppel - whether bound by decision of tribunal
Legislation Cited: Evidence Act 1995 (NSW) s 69
Guardianship Act 1987 (NSW) ss 25G, 25H
NSW Trustee and Guardian Act 2009 (NSW)
Powers of Attorney Act 2003 (NSW) ss 12, 19
Cases Cited: Aboody v Ryan [2012] NSWCA 395; 17 BPR 32,359
Cachia v Isaacs (1985) 3 NSWLR 366
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
Grundel v Registrar-General (1990) 5 BPR 11, 217
Johnson v Buttress [1936] HCA 41; 56 CLR 113
Lambidis v Commissioner of Police (1995) 37 NSWLR 320
Louth v Diprose [1992] HCA 61; 175 CLR 621
McCulloch v Fern [2001] NSWSC 406
Quek v Beggs (1990) 5 BPR 11,761
Smith v Smith [2004] NSWSC 663; (2004) 12 BPR 23,051
Category: Principal judgment
Parties: Catherine Margaret Thorn as executrix of the estate of the late Betty McAuley (plaintiff)
Ian Geoffrey Boyd (defendant)
Representation:
Counsel: Catherine Gleeson (plaintiff)
Ian Boyd (self)
Solicitors: Shaw McDonald Pty Ltd (plaintiff)
Ian Boyd (self)

File Number(s): 2011/91377

Judgment

The plaintiff, Mrs Catherine Margaret Thorn, is the stepdaughter and the executor of the will of the late Mrs Betty McAuley.

Mr Ian Geoffrey Boyd, the defendant, is a nephew of Mrs McAuley.

Mrs McAuley died on 26 December 2012. The events the subject of these proceedings occurred principally in or around August 2009. At that time Mrs McAuley was 88 years old.

On 6 August 2009 $260,000 of Mrs McAuley's funds were transferred into an account held by Mr Boyd. The principal issue in these proceedings is whether Mrs Thorn is entitled to the return of that money on behalf of Mrs McAuley's estate. There was also for a time an issue as to whether Mr Boyd was entitled to an order against the estate that would require Mrs Thorn to perfect a gift of $150,000 that Mr Boyd says Mrs McAuley offered to make to him on about 17 August 2009.

At the hearing Mrs Thorn was represented by Ms C O Gleeson of counsel. Mr Boyd represented himself at the hearing, although he had earlier retained solicitors who ceased to act on 14 January 2014. Mr Boyd's pleadings and affidavit were prepared while he had legal representation.

Mrs Thorn's claim and Mr Boyd's response

As appears from the amended statement of claim and Ms Gleeson's written opening and closing submissions, the principal relief sought by Mrs Thorn, as executor of Mrs McAuley's estate, may be distilled as follows:

(1) An order that Mr Boyd repay the $260,000 on the ground that the transfer of the money from Mrs McAuley's account to his own was done without her authority, as it was effected by Mr Boyd by the exercise of a power of attorney that did not authorise Mr Boyd to make a gift to himself, and the Commonwealth Bank of Australia acted under a mistake in transferring the money in the erroneous belief that Mr Boyd was authorised by the power of attorney executed by Mrs McAuley to direct it to make the transfer.

(2) Alternatively, an order avoiding the transfer of the $260,000 from Mrs McAuley's account to the account of Mr Boyd, and a consequential order that Mr Boyd repay the $260,000, on the grounds, put collectively and alternatively, that Mr Boyd received the money in circumstances where he had exercised undue influence over Mrs McAuley to induce her to make the transfer, and because the retention of the money by Mr Boyd would be unconscionable conduct because he took advantage of vulnerabilities on the part of Mrs McAuley in accepting and retaining the payment.

(3) An order charging the property in respect of which Mr Boyd applied the $260,000, or any part thereof, in repayment of a mortgage secured on the property, on the grounds that he received the money by reason of the exercise of undue influence, or unconscionable conduct, or in breach of a fiduciary duty that he owed to Mrs McAuley that arose out of his exercise of the power of attorney that she granted to him.

(4) To the extent that the evidence is not clear as to whether Mr Boyd applied the $260,000, or any part thereof, in repayment of a mortgage secured over property, an order for the taking of accounts as between Mrs Thorn as executor of Mrs McAuley's estate and Mr Boyd to determine how Mr Boyd applied the money.

(5) An order for the tracing of the $260,000 into any property that Mr Boyd acquired with the money, or in respect of which Mr Boyd repaid a mortgage secured on the property with the money, or any part thereof.

(6) An order for the judicial sale of any property that is made subject to a charge in favour of Mrs Thorn as executor of the estate of Mrs McAuley by any order made by the court, and the payment of the money secured by the charge to Mrs Thorn.

(7) Orders for payment of interest, and costs.

Mr Boyd's position may fairly be summarised as being that Mrs McAuley decided of her own volition to make a gift of $260,000 to him, out of love and affection, at a time when she was capable of freely deciding that the gift was consistent with her own interests, and Mr Boyd did not have or exercise any influence over Mrs McAuley to persuade her to make the gift that was undue, and that Mrs McAuley was, notwithstanding her age, not suffering from any physical or mental impairment that was of an effect or severity that made her so vulnerable that it was unconscionable for Mr Boyd to accept the gift, and would be unconscionable for him to retain it. In his final submissions Mr Boyd sought to challenge the propriety of the proceedings before the Guardianship Tribunal that will be considered below, and also the motives of Mrs Thorn in bringing the present proceedings. These attacks were not supported by evidence

Credibility of witnesses

Mrs Thorn gave evidence on behalf of Mrs McAuley's estate. So did Ms Marion Isabelle Thorburn, solicitor of Mervyn Finlay, Thorburn & Marshall, who for most of the relevant period was Mrs McAuley's solicitor. Finally, Dr John Luke Obeid, a consultant physician and geriatrician, provided an expert medical opinion concerning Mrs McAuley's mental capacity at the time she participated in the events that led to the transfer of her $260,000 to Mr Boyd. Mr Boyd was the only witness in support of his case.

There is no need for any detailed consideration concerning the credibility of the evidence given by the witnesses for the plaintiff. Simply put, I accept their evidence. The evidence given by Mrs Thorn and Ms Thorburn was inherently credible, and in Ms Thorburn's case was supported by the detailed file notes that one would expect a diligent and competent solicitor to prepare. Dr Obeid is obviously a highly qualified and experienced physician. He prepared his opinion based upon the medical records of other doctors and health workers who had attended Mrs McAuley at various times, and did not have the benefit of a consultation with Mrs McAuley. Subject to that limitation, the opinions that Dr Obeid offered were persuasive.

Mr Boyd did not cross-examine the witnesses for the plaintiff. As he represented himself, I gave a detailed explanation to him of the purpose of cross-examination, and the necessity for him to put to the witnesses any aspects of their evidence that he proposed to contradict or claim was false, so that they would have an opportunity to provide their explanation. I reminded Mr Boyd at the times that it was necessary to cross-examine if he wished to do so, and at least on one occasion gave him an opportunity to take time to collect his thoughts to assist in his cross examination. Although it is obviously difficult for a layperson to conduct a cross-examination, all was done that could possibly be done to give Mr Boyd the opportunity to do so, and to explain what it was necessary for him to do. It was Mr Boyd's choice not to do so, when he elected not to cross-examine Mrs Thorn or Ms Thornburn.

Mr Boyd sought in submissions, and also in the evidence that he gave, particularly in his cross-examination, to contradict the plaintiff's witnesses on matters that he had not put to them. I will ignore those contradictions. However, at the end of the day, I am satisfied that Mr Boyd has not suffered any disadvantage at all arising from the need for him to conduct lay cross-examinations of the plaintiff's witnesses. As far as it is possible for me to judge, it is most likely that the evidence given by the plaintiff's witnesses would have been accepted in any event.

The credibility of the evidence given by Mr Boyd is more problematic. In many respects, in the manner in which Mr Boyd conducted his own case, and in many of the responses that he gave to questions in cross-examination, Mr Boyd appeared to be candid, and made many concessions that were contrary to his interests. However, there were a significant number of cardinal issues to which Mr Boyd responded by denial or avoidance, in the face of overwhelming contrary evidence, and in some cases his own earlier admissions. This is exemplified by the fact that Ms Thorburn swore her affidavit on 9 February 2012, and in that affidavit gave detailed evidence of her communications with Mr Boyd, which are considered in detail below. Mr Boyd swore his affidavit in response on 23 September 2013, and even though he acknowledged Ms Thorburn's affidavit in what he described as particulars to par 42 of his affidavit, he only mentioned Ms Thorburn in the context of what he says Mrs McAuley told him about her dealings with Ms Thorburn, and entirely ignored the evidence of what Ms Thorburn said passed between her and Mr Boyd (pars 41 and 42). That is notwithstanding that Ms Thorburn's evidence of her communications with Mr Boyd is, as will be seen below, crucial to the issues for determination in this case, and that is true to an extent that should have been obvious to a layman. In cross-examination Mr Boyd blamed his former solicitor for not responding to Ms Thorburn's affidavit. The credibility of Mr Boyd's evidence was, somewhat strangely, erratic. That is best seen in the consideration of the evidence that will be undertaken below. Should it matter, my inclination is to believe that Mr Boyd is generally an honest and fair-minded man, but there are some central aspects of the circumstances in which he received and retained the $260,000 gift from Mrs McAuley that Mr Boyd has been unable to confront squarely.

Mr Boyd gave considerable evidence about his conversations with Mrs McAuley concerning the circumstances in which Mrs McAuley's $260,000 were transferred to his account, and in particular the statements that Mr Boyd attributes to Mrs McAuley upon which Mr Boyd relies to establish that Mrs McAuley spontaneously and freely decided to make a gift to him. Not only is Mrs McAuley's version of those events unavailable, but also there is generally no objective corroboration that Mrs McAuley acted in the manner claimed by Mr Boyd. There are limited exceptions that consist of documents that Mrs McAuley signed. The present case exemplifies the need for the court to tread with special caution in the weight that it gives to evidence of the words and actions of the deceased person in circumstances where the witness cannot be but self-interested in the court accepting that evidence. I have embraced the warning given by McLelland J, as he then was, in Grundel v Registrar-General (1990) 5 BPR 11,217 at 11,219, where he said:

Accordingly on its first basis, the plaintiff's claim is essentially one against the estate of a deceased person based on alleged conversations between the plaintiff and the deceased of which the only evidence is that of the plaintiff. Generally speaking, in cases of that kind, by reason of the danger of estates of deceased persons being subjected to false or exaggerated claims in respect of matters of which the deceased has no opportunity to give his own account, the Court will treat such evidence with considerable caution, if not suspicion, will scrutinise it with great care, and act on it only if convinced of its truth.

The task that the court faces in overcoming this difficulty in the present case is to some extent assisted by the fact that Mrs Thorn and Ms Thorburn have given evidence of their own conversations with Mrs McAuley, which provides an objective context in which to judge the veracity of Mr Boyd's evidence of his own conversations and dealings with her.

Facts

The most convenient way to approach the facts relevant to the determination of the dispute in this matter is to deal with them generally in chronological order. However, the proper application of the relevant principles and fairness to Mr Boyd will require that care be taken to ensure that Mr Boyd's conduct be judged in the first instance by reference to his own perspective as to the relevant facts.

Briefly, the evidence suggests that Mrs McAuley was married in the early 1940s, and that her husband died from war injuries in the mid to late 1940s. There were no children of that marriage. Mrs McAuley had for a long time been friends with Mrs Thorn's father, Ted McAuley, and they married after Mr McAuley's first wife's death in 1987.

Mrs Thorn accepts that Mrs McAuley had a loving relationship with Mr Boyd, which arose out of a long history of family intercourse between Mrs McAuley and her sister, and her sister's children, Mr Boyd, and his brother Malcolm. There is no issue that by 2009 Mr Boyd only saw Mrs McAuley 3 to 4 times a year. I accept that the strength of the relationship between aunt and nephew would not necessarily be diminished by reason of the limited frequency of their personal meetings. The evidence also establishes that Mrs McAuley had a loving relationship with her stepdaughter, Mrs Thorn, and the other members on that side of her family.

There is no benefit in relating in detail the history of the relationship between Mrs McAuley and Mr Boyd on the one hand, and Mrs Thorn on the other, that gave rise to the loving relationship that Mrs McAuley had with each of them. That is because the existence of the loving relationship is in each case accepted, and while the strength of the relationship would explain an inclination on Mrs McAuley's part to bestow her bounty upon them, the evidence does not rise so high as to show clearly that the intensity of Mrs McAuley's love for Mr Boyd was such as to provide a sufficient and indisputable justification for her decision to permit the transfer of her $260,000 to Mr Boyd's account. The existence of the loving relationship is but a factor that explains in part Mrs McAuley's conduct, and the significance of the relationship must be considered in its proper context in the application of the principles that are applicable to the determination of this case.

It is appropriate to begin at the one point where Mrs McAuley is still able to speak for herself, and that is in the terms of her last will and testament, which she executed on 11 December 2006. By her will, in the events that have happened, Mrs McAuley appointed Mrs Thorn as her executor. She devised her home at 23 Rowley Street, Camperdown, to her four stepdaughters as tenants in common in equal shares. That is the only gift that Mrs Thorn received under the will. Mrs McAuley bequeathed her residuary estate to four persons equally, being, as I understand it, her sister, Mr Boyd's mother, and three children of her stepdaughters. If Mrs Thorn succeeds in the present case, then the proceeds of her success will go to the benefit of the residuary beneficiaries, and not herself.

As I understand the evidence, at the time of the relevant events in 2009, Mrs McAuley's assets consisted of the Camperdown property, the $260,000 that was transferred to Mr Boyd, which was initially held in an AMP investment account, a sum of $150,000, which was held in a Challenger investment account, and perhaps a deposit of some tens of thousands of dollars, as to which the evidence was not clear. Mrs McAuley was in receipt of a war veterans' pension.

At the heart of the present dispute is the fact that, in or about August 2009, Mrs McAuley took steps that, if effective, would have led to her making a gift of $410,000 to Mr Boyd. That money constituted substantially the whole of her assets, but for the house in which she lived, leaving only a small amount of cash on deposit, and her entitlement to the pension. As it has happened, the transfer of the $260,000 was effective, but she countermanded the transfer of the $150,000. Her participation in that process must be considered in the light of the statement of her testamentary intentions in her 2006 will, which were quite inconsistent with the giving of virtually all of her estate but for her home to Mr Boyd. Mr Boyd accepted in cross-examination that it was "exactly right" that, if effective, the two gifts would be a significant portion of the money that Mrs McAuley had left to live on.

Mr Boyd, at a point in his cross-examination, volunteered that he had no idea of the content of Mrs McAuley's will at the time of the relevant events.

On the 11 December 2006 Mrs McAuley executed a general power of attorney in favour of Mrs Thorn's husband, Robert George Thorn. Ms Thorburn acted for Mrs McAuley and provided a certificate under s 19 of the Powers of Attorney Act2003 (NSW). On the same date Mrs McAuley signed a living will, and appointed Mr Thorn as her enduring guardian in the event of her becoming partially or totally incapable of managing her person because of a disability.

Mrs Thorn gave evidence of a gradual decline in Mrs McAuley's mental and physical condition. She said that, after a knee operation in 2005, Mrs McAuley started to slow down, both mentally and physically. After a hospital stay in 2008 Mrs McAuley became a lot more forgetful and confused. Bills and paperwork were not as organised as they had once been. Things were not put back in their place. Often things were put in the wrong places. Some things were lost, others would just turn up. Mrs McAuley, who had a lovely nature and had always been confident and open, often became vague and sometimes suspicious and paranoid about things she could not remember, believed to have happened or did not understand. When things were mislaid Mrs McAuley sometimes thought that someone had taken her things or moved them. In late 2008 Mrs Thorn arranged for Mrs McAuley's mobile phone account to be cancelled. She took Mrs McAuley to cancel her MasterCard in January 2009. Mrs Thorn and her husband got Mrs McAuley to cancel her cheque-book when she lost it in April 2009. Mrs McAuley suffered various physical ailments, and had medical procedures, which need not be related in detail. Materially, she was hard of hearing because her arthritis made it difficult for her to insert her hearing aids. She found it difficult to read and understand documents because her glasses prescription was out of date. Mrs Thorn and others made arrangements for taking care of Mrs McAuley physically. Mrs McAuley became forgetful in relation to the payment of bills, and the safe retention of her financial records.

In about July 2009 Mrs Thorn and her husband decided it was time for Mr Thorn to start exercising his powers under the power of attorney that Mrs McAuley had given to him in 2006, and for that purpose Mr Thorn sought the advice of Ms Thorburn.

Ms Thorburn gave evidence that she had a telephone conversation with Mrs Thorn on 23 July 2009, in which the latter said that Mrs McAuley was becoming very forgetful, and suggested that the time may have arrived for Mr Thorn to start exercising his powers as Mrs McAuley's attorney. Mrs Thorn passed the telephone to Mrs McAuley. Ms Thorburn formed the view during small talk in which she engaged with Mrs McAuley to gauge her competence that Mrs McAuley appeared to be her usual self. Mrs McAuley agreed that it would be nice if she were given some help in managing her affairs. Ms Thorburn sought instructions as to whether she should send the power of attorney that Mrs McAuley executed in December 2006 to Mr Thorn. Mrs McAuley instructed Ms Thorburn to do that.

Mrs Thorn gave evidence that Ms Thorburn advised that an Aged Care Assessment Team (ACAT) assessment should be made of Mrs McAuley.

The ACAT assessment took place on 23 July 2009. It was performed by a physiotherapist, Ms Elizabeth Shehata. Ms Shehata advised Mrs McAuley's GP: "At present Betty does not require further services. Her short-term memory deficits are of concern. Family intend managing money matters more and paying her bills". She suggested that the GP may wish to refer Mrs McAuley to a specialist geriatrician.

The ACAT report states that the assessment took place at Mrs McAuley's home, with Mrs Thorn and her husband, and a Doctor Loh present, as well as Ms Shehata. The report states:

Mrs McAuley, is an 88 year old lady living alone in recently renovated, well appointed, terrace house. She is a Veterans Gold card holder. She suffers from osteoarthritis, recent cataract removal and [is] now haemorrhaging behind L eye. Recurrent UTIs. She has urinary incontinence and IHD.

Mrs McAuley walks with a rollator, is able to negotiate stairs, as her bedroom is upstairs. She often goes out to shopping centre using [taxis]. One concern of family is confusion with money matters. Has been known to pay for items 3 times or give [taxi] driver wrong amount. Paying bills is another concern.

Mrs McAuley appears to manage her incontinence. Nurses now visit 2x a day for medications.

Mrs McAuley has supportive family and neighbours. Family have POA and enduring Guardianship. Veterans Affairs home care are involved re housework.

One issue appeared to be client's inability to hear [doorbell], when workers called. Mrs McAuley does have hearing aids but finds it difficult to fit them due to her arthritis in her fingers. [F]amily intend to investigate more appropriate aids. [T]here is already a key pad fitted in glass box for entry. She has a personal alarm but does not wear it.

Client tended to let daughter do the talking. Her conversation was brief and confabulated somewhat. Mrs McAuley is alert, responsive, MMSE 24/30 with 0/3 for 3 minute recall. She is independent in personal care, meals are met by neighbours and family, house is clean and tidy. Client was not interested in attending a Day Centre.

No further assistance is required at present, and client wishes to remain living in her home.

The purpose of an ACAT 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, although as is evident from the report, aspects of Mrs McAuley's ability to manage her financial affairs were considered.

In late July 2009, in the course of investigating Mrs McAuley's financial position in relation to her AMP, Challenger and Commonwealth Bank investments, Mr Thorn was advised by AMP that Mrs McAuley's investment account had recently been closed. Mrs Thorn gave evidence that she enquired of Mrs McAuley of whether she remembered filling out any forms, and was told: "I don't think so but I don't really remember".

In his affidavit Mr Boyd said that Mrs McAuley had, on at least four occasions, expressed her intention to give a gift to him, and gave admissible evidence of three of those occasions. He said that, in about March or April 2009, he and his wife visited Mrs McAuley at her home, and during the visit Mrs McAuley said: "I want to give you a gift of money in the form of two investment accounts, one with AMP and one with Challenger". A week after that visit Mrs McAuley telephoned Mr Boyd and asked him to visit her gain. During that visit Mrs McAuley reiterated her wish to give to Mr Boyd the two amounts to which she had earlier referred. It is at that time that Mr Boyd said that he agreed to accept the gift. The other occasion occurred on 5 August 2009, when Mrs McAuley wrote and signed a note that I will consider below.

Mr Boyd did not give any significant evidence about the relationship between Mrs McAuley and her other nephew, Mr Boyd's brother, Malcolm. There is no evidence that Mrs McAuley's loving relationship with Mr Boyd was not matched by a comparable relationship with Malcolm. There is clearly no evidence of a disparity in the relationships between Mrs McAuley and her two nephews that would explain her decision to give substantially all of her residuary estate to Mr Boyd while she was still alive, and nothing to Malcolm. Mrs McAuley and Ms Thornton touched upon this subject in a conversation on 7 August 2009, which will be considered below.

Mr Boyd dealt with the beginning of the steps that led to the transfer of Mrs McAuley's $260,000 to his bank account by saying 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". On about that date Mr Boyd said that he took Mrs McAuley to a bank where he saw her deposit a cheque for $260,000 from AMP. He then drove Mrs McAuley home. On the same day he saw Mrs McAuley make out a Commonwealth Bank cheque in his favour for $260,000, which he then deposited into a bank account that he held jointly with his wife.

Mr Boyd gave evidence that on 4 August 2009 he attended the Commonwealth Bank branch in Marrickville with Mrs McAuley to ascertain why the $260,000 cheque had not cleared. He placed the date at 4 August 2009 because he said he believed that 3 August 2009 was a bank holiday. A bank officer advised the pair that: "The $260,000 cheque has not cleared by reason that Mr Robert George Thorn under power of attorney has cancelled the chequebook".

It is at this point that Mr Boyd's evidence begins seriously to depart from the evidence given by the plaintiffs' witnesses.

An issue arises as to what prompted Mrs McAuley to take the steps that she did take to initiate and implement the transfer of the $260,000. Mr Boyd's evidence would suggest that she acted spontaneously and, as it were, out of the blue. Mr Boyd's position was that he had not informed Mrs McAuley that he was in serious financial difficulties because of a business in which he was engaged. Mr Boyd denied in cross-examination that he told Ms Thorburn that Mrs McAuley had made a gift to him upon becoming aware that his business was in trouble.

A file note of a conversation between Mr Boyd and Ms Thorburn that took place on 3 August 2009, that Ms Thorburn prepared, records that Mr Boyd said to her: "During the course of our conversation it transpired that Betty had given him $260,000 conscious of the fact that his business was failing and he had bills to meet and was also transferring over to him her Challenger Account". File notes prepared by Ms Thornburn of other conversations with Mr Boyd were to a similar effect. A report by Dr Shobha Iyer, a specialist geriatrician, prepared following a consultation between Dr Iyer and Mrs McAuley on 11 August 2009 records that Mrs McAuley said to the doctor: "She also disclosed to me that Ian has never asked her for money but she is aware that he is under some financial difficulties and she would have like (sic) to have helped him out".

I find that Mr Boyd did inform Mrs McAuley that he was in financial difficulty because of the circumstances of a business in which he was engaged. It is clear from statements made by Mr Boyd during the course of the hearing that he was engaged in a business and there was some sort of financial difficulty. Mr Boyd said that he was an airline pilot by occupation. There is some evidence to the effect that he operated a retail shop concerned with hobbies. It appears that the business operated under the name Hstore Hobbies, and had a business address 4/365 Kingsway Caringbah, as a letterhead for that business was used for the purpose of certain communications that are considered below. The precise nature of the business and its financial circumstances did not emerge. When the issue arose during the course of the hearing Mr Boyd tended to avoid confronting the issue directly, and suggested that he had been engaged for some time in a serious dispute with the National Australia Bank. The nature of that dispute, and the connection that it had with the business Hstore Hobbies, if any, is unknown.

That Mr Boyd informed Mrs McAuley that he was in serious financial difficulty is consistent with the probabilities, because otherwise her apparently spontaneous decision to give away to Mr Boyd substantially all of her assets other than her home is inexplicable.

As Mr Boyd falsely denied that he told Mrs McAuley of his financial difficulties, he did not give evidence of the conversations that he had with Mrs McAuley on that subject. The summary that Dr Iyer has given of her discussion with Mrs McAuley on the subject suggests that Mr Boyd did not ask for help from his aunt, but that she gave that help because she knew of his difficulties. There is evidence that suggests that Mrs McAuley was a generous person. The probabilities are that, even if Mr Boyd did not directly ask for Mrs McAuley's help, he did convey to her the seriousness of his financial difficulties with such force and persuasiveness that it induced Mrs McAuley to offer to give him separate amounts of $260,000 and $150,000.

As noted above, Mr Boyd said that an officer of the Commonwealth Bank informed him on 4 August 2009 that the reason why Mrs McAuley's $260,000 cheque had not been paid was that Mr Thorn had cancelled the cheque-book by exercising his power of attorney. It would ordinarily be expected of an intelligent person in Mr Boyd's position that, if they learnt that an 88-year-old person had granted a power of attorney to a related person, and that the attorney had exercised control over the person's financial affairs, there may be a question as to the mental capacity of the person to conduct those affairs for herself.

Ms Thorburn gave evidence that it was on 3 August 2009 that Mr Boyd, of whom she had previously not known existed, telephoned her to complain that Mrs Thorn and her husband, who were not blood relatives of Mrs McAuley, were stepping in to manage her affairs, and had stopped Mrs McAuley's gift to him of $260,000. Ms Thorburn's evidence is supported by a contemporaneous file note. Mr Boyd must have learned on 3 August 2009 that Mrs McAuley's cheque had been cancelled, rather than 4 August 2009.

Ms Thorburn's evidence was that Mr Boyd said that, although Mr and Mrs Thorn were not relatives of Mrs McAuley, they were beneficiaries under her will, and that Mr Boyd thought that they were acting to protect their interest under the will.

I have recorded earlier that Mr Boyd said in cross it-examination that he had no idea of the content of Mrs McAuley's will. Ms Thorburn's evidence and file note establish that Mr Boyd did have that knowledge at the time the $260,000 was transferred to him. It follows that Mr Boyd knew that the making of the gift to him was a fundamental departure from the statement by Ms McAuley of her testamentary intentions in her will, and effectively negated her residuary gift. That knowledge would have caused most people to wonder whether Mrs McAuley was thinking clearly in deciding to give almost all of her cash investments to Mr Boyd.

Ms Thorburn said that Mr Boyd said that he needed the money as soon as possible because his business was failing and he had bills to meet. Mr Boyd said that Mrs McAuley was in receipt of a Department of Veterans Affairs pension, and she did not need the money that she had tried to give to him. That is not a convincing explanation, as it is obvious that an ailing 88 year old person may, by reason of increasing infirmity, benefit from having access to a substantial amount of cash.

Ms Thorburn made two statements to Mr Boyd that are of particular significance. First, she said in relation to the issue of who should have control of Mrs McAuley's affairs, and whether Mr Thorn should exercise his powers as attorney: "However there is nothing they can do unless they think Betty is being taken advantage of. If so they should get Betty examined to confirm she does have the capacity to make gifts. You as a recipient of Betty's largesse should also be concerned about Betty's capacity. You do not want to be seen as taking advantage of someone vulnerable who does not have capacity."

Secondly, Ms Thorburn responded to a statement by Mr Boyd that he wanted someone to have financial control of Mrs McAuley's affairs who was not a beneficiary under her will: "If Betty has capacity she can certainly revoke her power of attorney but who would [be] appropriate? I will ring Betty and speak to her and depending on what she says I will then speak to Robert and Catherine."

Mr Boyd's response to this evidence of a conversation with Ms Thorburn on 3 August 2009 was to deny in cross-examination that it occurred. He said that the evidence given by Ms Thorburn reflected a number of separate events that had occurred over a period starting on about 23 July 2009. I reject Mr Boyd's evidence.

Notwithstanding that evidence, Mr Boyd accepted that Ms Thorburn did tell him that it was in his interests to have Mrs McAuley's capacity assessed to protect him from being found to have taken advantage of a vulnerable person, although he claimed that she had given him that advice in a document. Mr Boyd also accepted in cross-examination that he understood that Mrs McAuley should have been given independent legal advice, although he appears to have asserted that Mrs McAuley received that advice. Mr Boyd also said in cross-examination that Ms Thorburn had said to him that there would be no objection to the gift if Mrs McAuley was independently advised and the gift was appropriately documented. Somewhat bizarrely Mr Boyd claimed that the requirement for appropriate documentation was satisfied "in the writing of the cheque which is a contract".

In the context of Mr Boyd's claim that he had received advice on about 23 July 2009 that Mrs McAuley's capacity should be assessed, it was put to him in cross-examination that he did not obtain that advice. He responded that Mrs McAuley had already been assessed seven days earlier by ACAT with a score of 24/30. When asked whether he knew whether there was any discussion of Mrs McAuley giving financial gifts at the time of the assessment, he responded by saying that he was not there at the time. When it was later put to him that he had knowledge at the time of Mrs McAuley's Mini Mental State Examination (MMSE) test result (which logically followed from his earlier evidence), he responded by saying that he did not, and that evidence had come to light over the last five years.

Whatever else may be the significance of the evidence as to Ms Thorburn's telephone discussion with Mr Boyd on 3 August 2009, it establishes that, before the $260,000 was effectively transferred to his account, he was specifically informed by Mrs McAuley's solicitor that there was a question about her capacity to make a proper decision as to whether she should make a substantial gift to him, and advised that it would be in his interests to ensure that her capacity was properly assessed, and she was given independent legal advice, and the gift properly documented, to avoid subsequent issue as to whether Mr Boyd had taken advantage of a vulnerable person.

Ms Thorburn's evidence was that she was alarmed by the content of her telephone conversation with Mr Boyd, and telephoned Mrs McAuley on the same day. The content of Ms Thorburn's discussion with Mrs McAuley is telling, and it is warranted that it be set out relatively fully:

Me: "I have been speaking to an Ian Boyd".

Betty: "Yes that is my cousin".

Me: "I thought he was a nephew?"

Betty: "No he is a child of one of my mother's cousins".

Me: "Ian has indicated that he is concerned about the actions of Robert and Catherine."

Betty: "Yes they have come into my home when I am not there and taken papers".

Me: "What papers?"

Betty: "Papers that I need for my tax return to be prepared".

...

Me: "Ian says you want to cancel your Power of Attorney to Robert."

Betty: "I want my Power of Attorney back with you".

Me: "Don't you remember about 10 days ago you told me to send your Power of Attorney to Robert?"

Betty: "I do not remember that conversation."

Me: "Ian has never featured in any of your Wills I have drafted for you."

Betty: "No."

Me: "How did it come about that you have agreed to give Ian $260,000?"

Betty: "Ian was speaking about his business and that he needed money. I said I could give him money and he then arranged it. I am happy about that."

Me: "Do you see Ian regularly?"

Betty: "I have known him from a child and I am in regular contact with him."

Me: "Why has he never featured in your Will?"

Betty: "I made my Will some time ago."

Me: "You have made several Wills but he has never featured in any of them." Betty did not reply and I then said: "Would you like to see me about your Power of Attorney?"

Betty: "Yes. Can I come in and see you on Monday, 10 August 2009 at 11 AM?"

Me: "Yes. Fine."

Ms Thorburn said of this conversation that she formed the view that Mrs McAuley was not her usual self, and that she appeared vague, and lacked her customary caution that she usually displayed when dealing with money. Specifically Ms Thorburn said: "Betty did not display the usual mental agility, her ability to independently entertain all the consequences of an action before acting. In short in my view Betty did not have the capacity to gift the large sums of money I understood she had to Ian as she lacked the safeguard of a reasoning mind."

Mrs McAuley's mistaking her nephew, Mr Boyd, the son of her sister, for the child of one of Mrs McAuley's mother's cousins, speaks strongly of a failing memory.

Mr Boyd claimed in cross-examination that, at the time, he thought Mrs McAuley was "completely up to speed". He conceded, however, that he understood that she had "a risk of being taken advantage of". There was evidence that, at around August 2009, Mrs McAuley regularly made statements that were consistent with a serious impairment of memory and cognitive ability. Mr Boyd in effect claimed that, when he was with Mrs McAuley, he did not notice any deterioration that was more pathological than the ordinary tribulations of ageing. As Mr Boyd gave very little evidence of his discussions with Mrs McAuley, it is difficult to make any positive finding about the conclusions that a man of Mr Boyd's intelligence and experience should have drawn about Mrs McAuley's capacity to make a large gift, from his experience of her conversations and behaviour. Mr Boyd's own evidence is that, at the end of July and in the early part of August 2009, he and Mrs McAuley were often in each other's presence for relatively long periods. It is highly improbable that Mrs McAuley would have always appeared to be lucid and in command of her faculties when in Mr Boyd's presence, when at substantially the same time she caused considerable alarm to Mr and Mrs Thorn and Ms Thorburn.

Ms Thorburn gave evidence of a second conversation that she had with Mr Boyd, which took place on 4 August 2009. Ms Thorburn prepared a file note of this conversation. Mr Boyd specifically claimed in cross-examination that this file note was a fabrication. I find that it was not. Mr Boyd did not suggest to Ms Thorburn in cross-examination that she had fabricated her file note, and the assertion made to that effect by Mr Boyd is inexcusable. That is all the more so because, on 4 August 2009, Ms Thorburn sent a letter to Mr Boyd by facsimile, which referred to the advice that she gave to him on 4 August 2009 that revocation of the power of attorney by Mrs McAuley at that stage would be unwise, until it could clearly be determined by a geriatric specialist that Mrs McAuley had the requisite capacity to revoke her existing power of attorney.

According to Ms Thorburn, in her telephone conversation with Mr Boyd on 4 August 2009, he said to her:

I'm down at the Commonwealth Bank with Betty. We have discovered that Betty has lost control of her money. Her account has been closed and all her money placed on term deposit. I will put Betty on. She will confirm to you her intention to revoke her Power of Attorney to Catherine and Robert.

There was discussion about the power of attorney that had been given to Mr Thorn, and Ms Thorburn said that she did not believe the power of attorney had been registered, and if so it could be revoked simply by communicating the revocation to the attorney.

Ms Thorburn gave evidence that Mr Boyd said:

I am relying on Betty's money. I am in serious financial trouble which is the reason why Betty has been trying to give me the money.

There was discussion about the issue of what should be done about who should be appointed as Mrs McAuley's attorney, and then the following occurred:

Me: "... On Monday, 10 August 2009 regardless of Betty's instructions I will be counselling her to be examined by a geriatric specialist to establish her capacity. If it turns out Betty does not have capacity you will not want to be in the invidious situation of being seen as taking advantage of someone who lacks capacity."

Ian: "Yes. I agree."

Me: "It really is in the interests of everybody that Betty be examined by a geriatric specialist to establish whether or not she has the capacity to manage her own financial affairs".

Ms Thorburn's 4 August 2009 file note closely corroborates her evidence of the conversation.

On 4 August 2009 Ms Thorburn wrote a letter to Special Customer Services at the Commonwealth Bank of Australia, which she sent by facsimile. The letter referred to Mrs McAuley's $260,000 deposit, and asked the Bank to contact Ms Thorburn if there was any attempt to undo the term deposit. The reason given was that "there is currently a question mark over Betty's legal capacity such that any documents she has recently executed may not be enforceable". Ms Thorburn asked that, pending Mrs McAuley being examined by a geriatric specialist, the only payments that should be made out of her accounts should be the payment of her bills.

On the same day Ms Thorburn also wrote a letter to Mr Boyd, in which she referred to the advice that she had received from Mr Boyd that Mrs McAuley had recently made a gift to him of $260,000 to assist him in meeting pressing business debts. Ms Thorburn advised that she had been told by the Commonwealth Bank that Mrs McAuley's cheque was not met because the cheque-book had been cancelled. She confirmed her advice that revocation of the power of attorney that had been given to Mr Thorn "at this stage would be unwise until it can be clearly determined by a geriatric specialist that Betty has the requisite capacity to revoke her existing attorney". She said that she had alerted the Bank to the current situation "to ensure that the only activities conducted on Betty's accounts will be payment of her bills".

The evidence of the communications between Mr Boyd and Ms Thorburn on 4 August 2009 establishes, as clearly as could be imagined, that Mr Boyd was warned by Mrs McAuley's solicitor not to implement the proposal that Mrs McAuley make a gift to him of $260,000 until her capacity to make a properly informed decision to take that step had been established by an imminent assessment by a geriatric specialist. I accept Ms Thorburn's evidence that Mr Boyd agreed with that course. Mr Boyd was also informed that Ms Thorburn had asked the Bank only to pay Mrs McAuley's day-to-day bills pending the assessment of her capacity.

On 4 August 2009 at 12:46 PM Ms Thorburn received a communication described as "Urgent Fax" on the letterhead of Mr Boyd's business, Hstore Hobbies. It was expressed to be from Betty McAuley. It attached a signed revocation of Mr Thorn's power of attorney.

The revocation of power of attorney appears to have been prepared by the completion of a pro forma in Mrs McAuley's handwriting. It is witnessed by a person who gives the address 267 Marrickville Road, Marrickville, which is apparently the address of the Marrickville Branch of the Commonwealth Bank.

Mr Boyd "absolutely" denied in cross-examination that he instigated the revocation of the power of attorney that had been granted to Mr Thorn. He also denied that he had received advice that the revocation of the power of attorney would be unwise before its revocation. He said he read Ms Thorburn's letter that night or the next day. He accepted that the revocation was faxed from his home. He accepted that the revocation had been executed at the Commonwealth Bank at Marrickville. He asserted that it was Mrs McAuley's decision to revoke the power of attorney, and that she was "vehement about doing it".

The part that Mr Boyd played in Mrs McAuley's decision to revoke the earlier power of attorney is not clear. There is some evidence to suggest that Mrs McAuley was unhappy because Mr Thorn had earlier taken steps in the exercise of the power of attorney, without first consulting her. This included the placing of her $260,000 on term deposit, and the cancellation of her cheque book. It is possible that Mrs McAuley did decide to revoke the power of attorney. It is equally clear, however, that Mr Boyd participated in the process, as he must have sent the revocation to Ms Thorburn from his home fax. It is also not clear whether the revocation was carried out before or after Mr Boyd received the advice from Ms Thorburn over the telephone that the revocation should not occur until Mrs McAuley's capacity had been assessed. If it had already occurred, the probability is that Mr Boyd was aware of that fact, and it is notable that he did not tell Ms Thorburn that it was all too late as the revocation had already occurred.

On 5 August 2009 Mrs Thorburn received a letter apparently signed by Mrs McAuley, in which the latter stated:

This letter is to advise that effective immediately I have transferred my affairs to an [sic] another Solicitor.

I wish to thank you for your assistance in the past.

The letter was typed, and refers to Mrs McAuley's home address. The copy that is in evidence has fax transmission details that show that it was faxed from Hstore Hobbies' facsimile machine at 1:51 PM. Mr Boyd claimed in cross-examination that Mrs McAuley asked him to type the letter for her, which he did.

Also on 5 August 2009 Mrs McAuley executed an enduring power of attorney in which she appointed Mr Boyd as her attorney. The document authorised Mr Boyd to exercise the authority conferred on her attorney by Part 2 of the Powers of Attorney Act. Clause 3 provided for the power of attorney to take effect immediately. The provisions contained in clause 5 whereby the attorney was authorised to give reasonable gifts, and in clause 6 whereby the attorney was authorised to confer benefits on the attorney as provided by s 12(2) of the Act were both excluded and initialled by Mrs McAuley and the witness. Mr Boyd signed the power of attorney in order to signify his acceptance of the appointment.

The document was witnessed by Ms Anika Fleet, a solicitor who practised at 24/20-24 Gibbs Street Miranda. That is the business address of Warren McKeon Dixon, a firm of solicitors. Ms Fleet also signed a certificate under s 19 of the Act that, among other things, certified that she explained the effect of the power of attorney to Mrs McAuley before it was signed.

Finally, on 5 August 2009 Mrs McAuley wrote out by hand and signed a letter that stated:

I, Betty McAuley, being of sound mind, wish to give Ian Boyd the sum of $260,000 & the Challenger Bank a/c $150,000.

The letter was witnessed by Ms Fleet, and the following words were inserted under Ms Fleet's address below her signature: "NO ADVICE GIVEN".

The address of Warren McKeon Dixon is obviously much closer to the residential and business addresses of Mr Boyd than the Camperdown home address of Mrs McAuley. Mr Boyd said in cross-examination that Mrs McAuley asked him to recommend a solicitor, and he simply chose one at random that practised down the road. The evidence shows that the firm acted for Mr Boyd commencing no later than 16 September 2009 in relation to the Guardianship Tribunal proceedings that will be considered below.

In his affidavit Mr Boyd claimed that on about 5 August 2009 he was informed by Mrs McAuley that she had visited a solicitor, Ms Fleet, "by myself to grant a power of attorney to you", and that neither Mr Boyd nor his wife attended this consultation. On the same day Mr Boyd saw Ms Fleet in her office and she informed Mr Boyd that Mrs McAuley had appointed him as her attorney, and gave Mr Boyd the hand written letter that is referred to above.

Mr Boyd's evidence is disingenuous in so far as he tries to suggest that he had no involvement in Mrs McAuley's decision to appoint him as her attorney, or to write the letter containing a statement of her intention to give him in total $410,000, and that he was advised of the existence of both documents after the event. Mr Boyd said in cross-examination that he took Mrs McAuley to Ms Fleet's office, dropped her off, and picked her up later, which is when he claims to have signed the power of attorney. He claimed that when he dropped Mrs McAuley off, it was not his intention that she would make him her attorney, but rather that Ms Fleet gave Mrs McAuley advice that she should appoint someone in the family to be her attorney. When questioned immediately following this claim as to whether learning of that advice caused him to understand that Mrs McAuley required assistance in her affairs, Mr Boyd back-tracked by claiming that Ms Fleet said she thought Mrs McAuley "was fine" and recommended that the power of attorney be executed because: "at [Mrs McAuley's] age it is a good idea to have one".

It is simply not credible that Mrs McAuley spontaneously decided of her own motion to appoint Mr Boyd as her attorney, or that that appointment was entirely the result of advice given by Ms Fleet without Mrs McAuley being influenced by a suggestion by Mr Boyd that she should make him her attorney instead of Mr Thorn.

As Mr Boyd accepted the appointment as Mrs McAuley's attorney on 5 August 2009, his conduct in that regard flew wholly in the face of the advice that Mrs McAuley's solicitor as of 4 August 2009 had given to him, which was to the effect that no steps should be taken to replace Mrs McAuley's attorney until her capacity had been assessed by a specialist geriatrician.

I find that, far from Mr Boyd acting on the advice that Ms Thorburn had given to him - which was advice that at the time he agreed to follow - Mr Boyd dealt with the problem by influencing Mrs McAuley to withdraw Ms Thorburn's retainer.

The letter whereby Mrs McAuley withdrew Ms Thorburn's retainer referred to Mrs McAuley as having already retained another solicitor. That could only be a reference to Ms Fleet. That would suggest that the letter to Ms Thorburn was written after Mrs McAuley's visit to Ms Fleet's office. It would follow that, even if Ms Fleet was retained to provide some legal services to Mrs McAuley in relation to the preparation of the power of attorney and the writing of the letter concerning the gift to Mr Boyd, Ms Thorburn was still technically retained as Mrs McAuley's solicitor at that time.

Mr Boyd claimed in cross-examination that he understood that Mrs McAuley had received advice about the revocation of the power of attorney in favour of Mr Thorn from Ms Thorburn. He said that notwithstanding that he had been told by Ms Thorburn that Mrs McAuley should not revoke any existing power of attorney until her capacity had been assessed. Mr Boyd's asserted belief that, when Mrs McAuley signed the revocation, she was acting in accordance with advice from Ms Thorburn that she should do so is, in the circumstances, clearly irrational.

It is clear that Ms Fleet did not provide any advice to Mrs McAuley concerning the wisdom and prudence of her signing the letter concerning the gift to Mr Boyd. The statement on the letter "NO ADVICE GIVEN" could not be more pointed.

When Mr Boyd received the letter he should have immediately appreciated that Ms Fleet was concerned that she had been asked to witness the letter without being required to provide proper advice to Mrs McAuley concerning whether or not it was in her interests to sign the letter, as the capitalised qualification to her signature as witness strongly signals that Ms Fleet was trying to protect herself by making it clear that she had not been asked to give advice, when it was clear it was not in Mrs McAuley's interests to make such a large gift to Mr Boyd without first being given proper advice.

Mr Boyd took steps on 6 August 2009 that caused the Commonwealth Bank to transfer the $260,000 from Mrs McAuley's account to his own. All he said in his affidavit was that, after he asked why the earlier attempt at the transfer had been stopped: "The unidentified bank officer successfully transferred $260,000 from [Mrs McAuley's] account to my account".

Mr Boyd initially claimed in cross-examination that he did not exercise the power conferred on him by the power of attorney to achieve the transfer. He said:

I did not hand over a power of attorney. I took it as part of my identification along with my driver's licence to say this is the person I am...

I didn't give it to them. I showed them that I held the power of attorney but I did not use it because it couldn't have been used because the power of attorney is annotated not for gifting. It has been crossed out. It wouldn't have been valid to support a gift. There was no purpose in it.

One thing that is clear is that, by whatever means, Mr Boyd convinced the relevant officer of the Commonwealth Bank that he was authorised by Mrs McAuley to act on her behalf, and in her absence, to effect a transfer to himself of a sum as large as $260,000. The court should not readily infer that the Bank's conduct was an aberration. It would be wrong for the court to draw inferences about the appropriateness of the Bank's conduct, given that Mr Boyd has not provided a complete or coherent explanation of what he did that satisfied the Bank that it should effect the transfer, and the Bank has not had an opportunity to explain its conduct.

It stretches credulity beyond rational acceptance that the Bank, if shown the new power of attorney that appointed Mr Boyd, would treat it as no more than a document that proved his identity, as would his driver's licence. In fact, the power of attorney would do nothing to prove his identity. If the Bank was given the power of attorney, and it subsequently acted as if Mr Boyd was authorised to effect the transaction on Mrs McAuley's behalf, is almost certain that the bank relied upon the document as a power of attorney.

On 28 October 2009 Warren McKeon Dixon, acting as Mr Boyd's solicitor, wrote a letter to NSW Trustee and Guardian in response to its request that Mr Boyd repay the $260,000. The solicitors enclosed a copy of Mrs McAuley's 5 August 2009 letter as evidence that the "gift was made by her and the instrument evidencing the gift exists independently of the Power of Attorney". They then said: "All that our client has done, pursuant to the Power of Attorney, is to effect a transfer which arose as a consequence of the gift already made by Mrs McAuley".

Later, on 8 March 2010 Mr Boyd wrote a letter to a senior legal officer at NSW Trustee and Guardian in which he said:

The use of Power of Attorney to make this transaction was not the preferred method of conferring this gift. The Power of Attorney was used as a last resort after two previous attempts to transfer the gift by more conventional methods were prevented by unlawful interference from one of my Aunt's [sic] former step-daughters Mrs Thorn and her husband."

The terms of this letter were put to Mr Boyd in cross-examination, in the context of his denial that he had used the power of attorney to effect the transfer. He admitted that there was a contradiction between the statement in the letter and his evidence, and also that his recollection was better in early 2010 than it was at the time of his 24 September 2013 affidavit.

It is clear beyond argument 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 Commonwealth Bank to make the transfer.

It is notable that in cross-examination Mr Boyd, when questioned about the circumstances in which the power of attorney appointing him was prepared, said that Ms Fleet advised him that the power of attorney would only come into effect if Mrs McAuley was deemed to have insufficient capacity. If that was said to Mr Boyd, then one of only two conclusions are available. Either Mr Boyd exercised his appointment as attorney because he understood that Mrs McAuley had insufficient capacity, or alternatively he did not think that she lacked capacity but acted upon the power of attorney anyway to confer a benefit upon himself.

Of course, the power of attorney excluded the power on the part of Mr Boyd to make a gift of Mrs McAuley's money to himself. Mr Boyd claimed in cross-examination that he did not take the letter to the Bank to effect a transfer, but to use it as a basis to enquire why Mrs McAuley was not allowed to transact on her own account. He said that a representative of the Bank took the letter away, and that, in a manner not explained by Mr Boyd, the letter satisfied the Bank that the transfer was in order. At its heart this evidence is irrational as the letter's import on its face is to make a gift to Mr Boyd, and it has nothing to do with any attempt by Mrs McAuley to undertake a transaction with the Bank.

The issue is settled by the statement made by Mr Boyd in his 8 March 2010 letter to NSW Trustee and Guardian, in which he said: "The transfer of funds was accompanied by a letter of authority written by my Aunt and signed in the presence of a Solicitor and certified by that Solicitor".

It is clear that Mr Boyd also provided to the Bank Mrs McAuley's 5 August 2009 letter in which she set out her wish to give the sum of $260,000 to Mr Boyd. If Mr Boyd did not procure that Mrs McAuley sign that letter for the purpose of assisting him to cause the Bank to effect the transfer, it is not clear why the letter was necessary. Mr Boyd needed the letter in order to bridge the gap in his authority that arose because of the exclusion in the power of attorney of his power to make a gift in his own favour. The point is not whether the Bank was entitled to make the transfer on the basis of the information given to it, but rather it is to identify the information that most probably was provided to the Bank that caused it in fact to make the transfer.

Ms Thorburn gave evidence that on 7 August 2009 Mrs McAuley attended upon her in conference. Following a discussion Mrs McAuley executed a document in which she revoked the power of attorney that appointed Mr Boyd. She also executed a document that revived Mr Thorn's appointment as her attorney. Each of these documents was witnessed by Ms Thorburn, and recorded that the document had truly and audibly been read over to Mrs McAuley and explained to her and that she appeared perfectly to understand the document. This addition to each of the documents reflected the fact that Mrs McAuley wore spectacles whose prescription was out of date, so that she found it difficult to understand documents that she attempted to read herself.

Ms Thorburn set out the terms of her conversation with Mrs McAuley in some detail in her affidavit. This evidence is supported by a detailed file note. When Mrs McAuley was presented with her 5 August 2009 letter terminating Ms Thorburn's retainer she said: "Oh no. I didn't want that at all." Mrs McAuley responded to her revocation of Mr Thorn's power of attorney by saying: "I want Robert and Catherine to continue looking after my affairs."

Ms Thorburn asked Mrs McAuley about the gift that she had given to Mr Boyd (which Mrs McAuley understood had been in the sum of $400,000). When Ms Thorburn asked: "What about his other brother Malcolm?", Mrs McAuley responded: "What brother?" A little while later she acknowledged that Mr Boyd had a brother, but said that Malcolm did not need any money, but that: "Ian has a shop and it is expensive to get the stock." The following conversation then ensued:

Me: "How did the question come up about giving Ian money?" Betty was unclear.

Betty: "I don't need anything."

Me: "I suppose you said you don't need anything. Ian probably passed a comment to the effect of "wish I didn't need anything". Betty simply smiled.

Me: "I understand you want to stay in your own home as long as possible and you are currently being assessed by the Aged Care Team at Prince Alfred Hospital. Is it wise until later assessment has been completed to think about giving any money away? You may need it."

Betty: "Yes. But what will I do about the money I have already given to Ian? Can I get it back? I suppose I have been very silly in doing this quickly without thinking about it and without ringing you to discuss it."

On 11 August 2009 Mrs Thornton filed an application in the Guardianship Tribunal for the appointment of a financial manager to make decisions about Mrs McAuley's financial affairs. In the application she stated that Mr Boyd was a person who disputed Mrs McAuley's incapacity.

Also, on 11 August 2009, Mr Boyd took Mrs McAuley to the Geriatric Clinic at Royal Prince Alfred Hospital, where her capacity was assessed by Dr Shobha Iyer, a geriatrician. Dr Iyer reported that Mrs McAuley was capable of managing her own affairs, but said that she advised Mr Boyd that Mrs McAuley should get her own lawyer, and that the issue of who should hold her power of attorney should be resolved by legal means, and that a guardianship application "is an option down the line but I do not feel it is necessary at this stage". Dr Iyer said that she had booked a neuropsychology appointment to assess Mrs McAuley's capacity to make decisions for herself, and that Dr Iyer would review Mrs McAuley after that had been done.

Mr Boyd gave evidence in his affidavit that on or about 17 August 2009 Mrs McAuley telephoned him and advised: "I have signed and faxed the Challenger forms today to effect a transfer of my Challenger investment account worth $150,000 into your name". He also said that on 14 August 2009 he had paid the stamp duty on the intended transfer. The meaning of Mr Boyd's evidence about what he did on 14 August 2009 is not clear. He said that on the evening of 17 August 2009, he and Mrs McAuley completed a form to effect the transfer of Mrs McAuley's Challenger investment account into his name. The evidence included a transfer form for Challenger Howard Mortgage Fund, that appears to have been completed by Mr Boyd, and signed by Mrs McAuley. Mr Boyd sent the transfer to Challenger Financial Services on 18 August 2009.

On 19 August 2009 Mrs McAuley wrote a note addressed to Challenger on Challenger notepaper in which she cancelled her previous instructions to transfer her account.

Mr Boyd's cross claim

In his cross claim filed on 30 August 2013 Mr Boyd sought a declaration that Mrs McAuley wished prior to her death to give an additional sum of $150,000 to him, and an order that Mr Boyd be permitted to prove in Mrs McAuley's estate for $150,000. He did not plead the basis of that entitlement in any clear way, and merely alleged in par 31 that "the Deceased intended to give a gift totalling $410,000 to the Defendant". The cross claim accepted that Mrs McAuley did not complete the gift of the $150,000 herself (par 28). The cross claim appears to proceed upon the basis that an expression of a "wish to give Ian Boyd...the Challenger Bank a/c $150,000" (as expressed in Mrs McAuley's 5 August 2009 letter) gave Mr Boyd an entitlement to receive that sum from Mrs McAuley, notwithstanding that she countermanded the transfer before it was implemented.

Mr Boyd said in cross-examination that he had agreed with Mrs McAuley that the money in the Challenger account would be transferred into his name "but that money was there for her care should she need it, but in my name". If this evidence is accepted, it tends to establish that, if the money in the Challenger account had been transferred to Mr Boyd, he would have held the money for Mrs McAuley rather than himself.

Guardianship Tribunal Proceedings

The issue of Mr Boyd's cross-claim arose at the conclusion of the oral submissions in the matter, when Mr Boyd said that the cross-claim was not his idea, but was the idea of his previous solicitor. After the question whether Mr Boyd wished to pursue his cross-claim was raised, he said that he was not pressing it.

Mr Boyd was joined as a party to the proceedings before the Guardianship Tribunal at his request. A hearing took place on 26 August 2009 before the Tribunal. Mrs Thorn, Mr Boyd and various others attended the hearing. On that date the Tribunal made an interim financial management order under s 25H of the Guardianship Act 1987 (NSW) for a period of three months from the date of the order. The effect of the order was that the estate of Mrs McAuley be subject to management under the provisions of the NSW Trustee and Guardian Act 2009 (NSW) for a period of three months; and the management of the estate be committed to the NSW Trustee. The Tribunal then adjourned the proceedings.

The Guardianship Tribunal gave detailed written reasons for its decision. The reasons indicate that the members of the Tribunal interviewed Mrs McAuley about the gift that she had given to Mr Boyd. The reasons record: "Mrs McAuley said "that's right. He is struggling with the shop, he told me about it. I said do you want a bit of help. I've some money I am not using. I'll lend it to you". Asked in cross-examination about Mrs McAuley's reference to making a loan to him, Mr Boyd said: "It was Betty's attempt at humour. She looked at me and winked and said it's a loan, okay."

On 26 November 2009 the Guardianship Tribunal made a final order that Mrs McAuley's estate be subject to management by the NSW Trustee. Again, the Tribunal gave detailed reasons, and set out its findings.

In her final written submissions, Ms Gleeson submitted that the effect of the decision of the Guardianship Tribunal was to subject Mr Boyd to an issue estoppel in relation to 20 separate findings (set out in par 77). I will deal with this submission separately below.

Medical evidence

The only expert medical evidence given in the proceedings was given by Dr John Luke Obeid, who is a consultant physician with specialist training in geriatric medicine. Dr Obeid swore an affidavit on 11 April 2014, which annexed two reports dated 9 March 2013 and 4 August 2013. Dr Obeid did not examine Mrs McAuley before her death, and he based his expert opinion on various reports prepared by other medical professionals, as well as the results of tests and examinations recorded in the medical records relevant to Mrs McAuley that he had been given for the purposes of preparing his report.

When it came to the point where Ms Gleeson tendered the materials upon which Dr Obeid based his opinion, as Mr Boyd was not professionally represented, I raised the possibility that some of the reports may have been prepared with the application to the Guardianship Tribunal in contemplation, so that there may be a question about whether s 69(3)(a) of the Evidence Act 1995 (NSW) might be relevant to the admissibility of the statements contained in those reports, given that Mrs Thorn did not propose to call the authors of the reports to give evidence. Ms Gleeson responded by excising some of the medical history upon which Dr Obeid's opinion would be based, and the balance was tendered as Exhibit B. Dr Obeid then gave oral evidence concerning his professional opinion in which he confined the basis of his reasoning to the documents in Exhibit B.

Dr Obeid gave his evidence in a complicated, but meticulous, way as to the precise extent to which each change in the assumptions that he had been asked to make affected his process of reasoning and his conclusions as expressed in his second report. It is not necessary to relate the details of that evidence. The doctor said that his conclusions essentially had not changed, and that the clinical features that he noted in the medical records pointed to a condition of cognitive impairment consistent with a diagnosis of frontal lobe dementia, and it was his opinion that that would have impacted on Mrs McAuley's ability to manage her financial transactions. He gave the opinion that Mrs McAuley's cognitive function in October and November would have been essentially the same as it was in August, as dementia tends to change over a longer timeframe of years rather than over one month to the next. Dr Obeid said that there were objective findings that pointed to Mrs McAuley having cognitive impairment and difficulty in managing her financial affairs.

Mr Boyd briefly cross-examined Dr Obeid, who in substance adhered to the opinions he had expressed in his evidence. Dr Obeid did not accept the proposition that Mrs McAuley may have been lucid at some times and have cognitive dysfunction at others, depending upon whether or not she took her medication.

Was the transfer of $260,000 to Mr Boyd invalid for want of authority?

The first submission put on behalf of Mrs Thorn was that the transfer by the Commonwealth Bank of the $260,000 from Mrs McAuley's account to the account of Mr Boyd was invalid because the power of attorney that Mrs McAuley made in favour of Mr Boyd on 5 August 2009 did not authorise the transfer. The reason for the absence of authority was that the document that Mrs McAuley executed did not expressly authorise Mr Boyd to confer a benefit on himself, so the effect of s 12 of the Powers of Attorney Act 2003 (NSW) was that Mr Boyd did not have authority to cause the Bank to transfer the money. Mrs Thorn submitted that, by one means or another, the Bank must have effected the transfer under a mistake as to Mr Boyd's authority. Consequently, Mr Boyd should be ordered to repay the money to Mrs McAuley's estate, as being money had and received.

On the findings that I have made above, this submission throws up the question of whether the defect in Mr Boyd's authority that flowed from the wording of the power of attorney and s 12 of the Act could be cured by the provision by Mr Boyd to the Bank of the 5 August 2009 letter that Mrs McAuley wrote in which she said that she wished to make a gift of the $260,000 to Mr Boyd. For the purposes of this submission it must be assumed that the letter was a valid statement by Mrs McAuley of her intentions, as the argument that it was not depends upon the success of Mrs Thorn's case that Mr Boyd exercised undue influence, or acted unconscionably, in relation to the receipt of the gift.

It is to be noted that, in her amended statement of claim, while Mrs Thorn did plead in par 5 that the provision in the power of attorney which authorised the conferral of benefits on the attorney had been struck out, she did not plead specifically that the Bank's conduct based in part upon the power of attorney was invalid. She pleaded in par 6 that the power of attorney was invalid and of no effect because Mrs McAuley lacked legal capacity. That appears to be an allegation that the power of attorney was wholly void because Mrs McAuley lacked contractual capacity. No argument based upon that allegation was pursued at the hearing. If there were any doubt about the matter, a review of Mrs Thorn's claims for relief demonstrates reasonably clearly (see claims 1 to 3) that the relief sought was based upon the claim that Mr Boyd engaged in undue influence, or that his conduct was unconscionable.

In my view the question whether Mrs McAuley's 5 August 2009 letter could constitute a specific authorisation to Mr Boyd that complemented the terms of the power of attorney, to permit him to cause the Bank to undertake a transaction that conferred a benefit on him in relation to the two sums referred to in the letter, is open and arguable.

As will be seen, it is not necessary for me to decide this question for the purpose of finding that Mrs Thorn is entitled substantially to the relief that she claims. The issue was not raised squarely on the pleadings, and it does not appear that it was foreshadowed in Ms Gleeson's written opening. As Mr Boyd appeared for himself, he was not in a position to put an effective argument to the court on this issue.

In these circumstances, I find it unnecessary to decide this aspect of the dispute, given that it was effectively raised on behalf of Mrs Thorn in closing submissions.

Was the transfer of $260,000 to Mr Boyd procured by undue influence?

The next step in Mrs Thorn's case is to submit that the court should set aside the transfer of the $260,000 on the ground that it was procured by Mr Boyd by the exercise of undue influence on his part over Mrs McAuley.

Mrs Thorn's submissions on this issue relied upon the following statement by Latham CJ in Johnson v Buttress [1936] HCA 41; 56 CLR 113 at 119:

The jurisdiction of the court of equity to set aside gifts inter vivos which have been procured by undue influence is exercised where undue influence is proved as a fact or where, undue influence being presumed from the relations existing between the parties, the presumption has not been rebutted. Where certain special relations exist undue influence is presumed in the case of such gifts. These relations include those of parent and child, guardian and ward, trustee and cestui que trust, solicitor and client, physician and patient and cases of religious influence. The relations mentioned, however, do not constitute an exhaustive list of the cases in which undue influence will be presumed from personal relations. Wherever the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter, the presumption of undue influence is raised.

[Where the presumption arises]... It must be affirmatively shown by the donee that the gift was... "the pure, voluntary, well-understood act of the mind" of the donor [citations omitted].

In Quek v Beggs (1990) 5 BPR 11,761 at 11,764, McLelland J (as he then was) proffered two circumstances that must be established for a presumption of undue influence to arise in the following terms:

(a) that at the time the gift was made there existed a relationship between the donor and the donee of such a nature as to involve reliance, dependence or trust on the part of the donor resulting in an ascendancy on the part of the donee; and (b) that the gift is so substantial, or so improvident, as not to be reasonably accounted for on the grounds of friendship, relationship, charity or other ordinary motives on which ordinary persons act...

In the present case the family relationship between Mr Boyd and Mrs McAuley was not such as to bring the case within one of the recognised categories in which a relationship of influence is presumed. The question is whether Mrs Thorn has established in fact that there was such a relationship.

I am not satisfied that the evidence has established that such a relationship of influence existed. Mrs McAuley suffered a number of physical disabilities, which, apart from the limitations in her capacity to read documents or follow conversations, did not significantly impair her capacity to make financial decisions. As will be seen below, Mrs McAuley did suffer from a cognitive disability that did have that effect. That will clearly be relevant to the issue of whether Mr Boyd acted unconscionably in causing the $260,000 to be transferred to his account, and in retaining that money. It does not follow, however, that Mrs McAuley was so disabled that she was generally unable to make decisions on her own behalf, or that she was likely to make decisions in which the operative cause was the exercise by Mr Boyd of a psychological ascendancy over Mrs McAuley. Subject to her cognitive impairment, Mrs McAuley had hitherto been an intelligent woman who made her own financial decisions. She was apparently generous, and I have accepted that the evidence establishes that she had a genuine, loving relationship with Mr Boyd. It is clear that Mr Boyd must have initiated Mrs McAuley's thoughts about making a gift to him by relating to her the seriousness of his financial woes. That apparently prompted a decision on Mrs McAuley's part to make two substantial gift to him. While those gifts consisted of almost the entirety of her cash investments, and were for that reason improvident, Mrs McAuley did have her own home and her pension, and it is not outside the bounds of generosity that she thought that she would bestow the gift on her nephew to help him out of his serious difficulties. Notwithstanding the existence of the loving relationship, the relative rarity of Mr Boyd's face-to-face meetings with Mrs McAuley counts against the development of some relationship of influence whereby Mrs McAuley was vulnerable to taking steps against her interests at the behest of Mr Boyd.

It is, of course, possible that, if there were evidence of all of the communications between Mr Boyd and Mrs McAuley that actually took place, it would be established that Mr Boyd had gone beyond simply initiating an extreme act of generosity on Mrs McAuley's part, and had established a de facto relationship of influence. That possibility is a matter for speculation on the evidence. The evidence does not justify a finding to that effect, and it is not necessary for the court to do so.

Was the receipt and retention of the $260,000 by Mr Boyd unconscionable?

That is because I find that Mr Boyd did act in a manner in which he initiated Mrs McAuley's generosity, caused her to take steps to implement the transfer of the $260,000 into his account, and then retained the money, which was unconscionable, and that it would be unconscionable for him to keep that money.

On the issue of whether Mr Boyd acted unconscionably in relation to the $260,000 gift, the relevant principles are sufficiently stated by Allsop P (as he then was), with the agreement of Bathurst CJ and Campbell JA in Aboody v Ryan [2012] NSWCA 395; 17 BPR 32,359, in the following terms:

[62] Before turning to the role of Mr Dakin it is appropriate to say something of the proper legal framework for its analysis. The governing general principles in respect of relief against unconscionable dealings are to be found in Blomley v Ryan [1956] HCA 81; 99 CLR 362, especially at 405 (per Fullagar J) and 415 and 428 (per Kitto J); Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; 151 CLR 447, especially at 461-62 (per Mason J) and 474-75 (per Deane J); Louth v Diprose [1992] HCA 61; 175 CLR 621 at 626-627 (per Brennan J), at 637 (per Deane J) and at 650 (per Toohey J); and Bridgewater v Leahy [1998] HCA 66; 194 CLR 457 at 485-486 (per Gaudron, Gummow and Kirby JJ), in which passage Deane J in Amadio is cited.

[63] A number of considerations are important to recognise. First, as Fullagar J in Blomley v Ryan at 405 and Mason J in Amadio at 461-462 said, there is an underlying general principle, the applications or exemplifications of which are impossible to describe fully. Thus, one should always be careful not to dwell over-technically or textually on individual expressions of general principle of normative values rooted in the remedying of injustice. It is general principle, not a precisely expressed rule, that operates. The principle is wide, and the danger in further textual definition (as opposed to exemplification or illumination) is that inaccuracy or undue restriction may be brought about: I C F Spry, Equitable Remedies, 8th ed (Law Book Co, 2010) at 188. Equity's norms and values can be expressed as by Mason J in Amadio at 461-462, or by Deane J in Amadio at 474-475, or by Dawson J in Amadio at 489, or by Lord Selborne in Earl of Aylesford v Morris (1873) LR 8 Ch App 484 at 490-491.

[64] The exemplifications given by Fullagar J in Blomley v Ryan of the circumstances adversely affecting a party included need of any kind, sickness, age, infirmity of body or mind, and lack of assistance or explanation where such is necessary.

[65] It can be seen from the expression of the general principle by Deane J in Amadio and by Lord Selborne in Earl of Aylesford that once the disability or weakness is sufficiently evident such that it is prima facie unfair to procure, accept or retain the benefit from the weaker party's assent to the transaction in the circumstances in which it was procured, accepted or retained, the onus is upon the stronger party to show the transaction to be fair, just and reasonable. The focus is upon the conduct of the stronger party in the assessment of unconscionability in the procurement, acceptance or retention of the benefit. Equity's fixing upon the conscience of the stronger party is not strictly limited by the need to find moral obloquy or reprehensible conduct, either generally, or at any particular point of time, although it is often present. At the heart of the doctrine is the taking or retaining of the benefit in a transaction in which advantage was taken of weakness or disability in a manner that in all the circumstances is unjust or unfair: Johnson v Smith [2010] NSWCA 306 at [5].

[66] The obtaining by the weaker party of the advice of a solicitor may be relevant to the application of the general principle from at least two perspectives. The appreciation of its occurrence, and perhaps (as here) the place in its arrangement, by the stronger party might be seen as part of the circumstances in which he or she procures or accepts the benefit. It is an element of the stronger party's conduct to be assessed. From that perspective, the precise quality of what was done by the legal adviser may be seen not to be as relevant as what an honest and reasonable person in the position of the stronger party would have understood its effect to be on the justice and fairness of the transaction.

[67] The second perspective is that if the circumstances, including the known special disadvantage, the nature of the transaction and the existence of advice, remain sufficient to make it prima facie unfair or unconscionable to procure, accept or retain the benefit, the independence and adequacy of the advice will be relevant, but as part of the discharge by the stronger party of his or her onus of proving the transaction to be fair, just and reasonable.

There will be cases, of which I believe the present is one, where a careful recitation of the relevant facts will speak with sufficient eloquence of the reasons why the requirements for the granting of the relief sought are satisfied. However, the following considerations call for the making of an order setting aside the transfer of Mrs McAuley's $260,000 to Mr Boyd.

First, Mrs McAuley in fact, in and around August 2009, suffered from a cognitive impairment that prevented her from 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.

I accept the medical evidence that Mrs McAuley suffered from a condition of cognitive impairment consistent with a diagnosis of frontal lobe dementia.

Notwithstanding Mr Boyd's claim that Mrs McAuley was "completely up to speed", I find on the probabilities that Mr Boyd must have been aware of Mrs McAuley's physical frailties, particularly in relation to her difficulties in hearing and reading, even if he did not have a basis for believing that she was suffering from the dementia that the medical evidence establishes.

Specifically, Mr Boyd accepted in cross-examination that he was aware that Mrs McAuley had scored 24/30 in her 23 July 2009 MMSE test, which Mr Boyd accepted was consistent with a mild cognitive impairment. The evidence given by Mr Boyd is somewhat unclear concerning what he knew in August 2009, and what he learned later, but a careful reading of this part of the evidence (T 92) appears on balance to show that he accepted that he knew that Mrs McAuley had a mild cognitive impairment at the time.

Even if that conclusion is wrong, and Mr Boyd did not actually understand that Mrs McAuley had a mild cognitive impairment, it is completely clear that on 3 and 4 August 2009 he was warned specifically by Ms Thorburn, who at that time was Mrs McAuley's solicitor, that there was a question about Mrs McAuley's capacity to make a gift to him, that Mrs McAuley may be a vulnerable person, and that no gift should be made or accepted until the outcome of a forthcoming assessment of her capacity was known. Mr Boyd nominally accepted that advice. However, he then ignored it.

One consequence of Mr Boyd being advised that Mrs McAuley may lack capacity to make an independent and balanced judgment as to whether she should make a substantial gift to him was that, if he chose to ignore the warning, he was effectively on notice that it might be found that Mrs McAuley did lack capacity. In that way, even if he had not hitherto appreciated the extent of Mrs McAuley's disability, he was in effect on notice that she had a significant cognitive impairment.

Mrs McAuley was at the time an 88-year-old woman, who had suffered many of the infirmities of age. Her age was a factor that should have raised concern in Mr Boyd that Mrs McAuley might be vulnerable. When he learned that her attempt to give him $260,000 by means of a cheque had failed because her attorney under a power of attorney had cancelled her cheque-book, that should have heightened his appreciation that she may be vulnerable, because steps had earlier been taken to put her affairs in the hands of an attorney.

Even accepting the loving relationship between Mr Boyd and Mrs McAuley, the size of the gift that Mrs McAuley offered to him should have further enhanced his concern that the gift might not be in Mrs McAuley's true interests, because the amount might constitute all or a substantial part of Mrs McAuley's cash investments. Mr Boyd's justification that she had her home and her war veterans' pension is entirely unpersuasive, as a person of Mrs McAuley's age may, in the event of very serious infirmity arising, need to call upon substantial investments to protect her and provide for her quality of life.

In fact, it is clear that Mr Boyd was in the throes of some very substantial financial difficulties, although it is quite unclear precisely what those difficulties were. Mr Boyd clearly at all times preferred his own interests over those of Mrs McAuley.

Mr Boyd's dire financial need caused him to ignore Ms Thorburn's advice and to procure that Mrs McAuley terminate Mr Thorn's power of attorney, terminate Ms Thorburn's retainer to act as the independent solicitor for Mrs McAuley, to grant a power of attorney to himself, and to sign the 5 August 2009 letter in which she expressed her intention to make gifts of $260,000 and $150,000 to him.

Not only did Mr Boyd not ensure that Mrs McAuley received independent legal advice, he almost succeeded entirely in ensuring that she did not do so. On his own evidence, the power of attorney that was granted in his favour excluded the authority for him to make a gift of Mrs McAuley's money to himself, and was only to be acted upon if Mrs McAuley's circumstances required it. Mr Boyd procured that Ms Fleet witness Mrs McAuley's signature on the 5 August 2009 letter, but Mr Boyd must have noticed the words "NO ADVICE GIVEN".

Consequently, not only did Mr Boyd cause Mrs McAuley to withdraw the retainer of her independent solicitor, but he procured the result that Ms Fleet assisted Mrs McAuley in the preparation of two documents, neither of which was the subject of independent legal advice given to Mrs McAuley, in relation to the giving of any gift to Mr Boyd. Taken individually they were not intended to permit Mr Boyd to secure the outcome of the Commonwealth Bank transferring the $260,000 into his account.

Mr Boyd nonetheless used the two documents on 6 August 2009 to procure that result.

Did the Guardianship Tribunal determination give rise to issue estoppels binding Mr Boyd?

As I have found upon the evidence the circumstances in which the $260,000 was transferred into Mr Boyd's account, it is not necessary for me to decide that question on the basis of any issue estoppel that may arise against Mr Boyd because of the determination by the Guardianship Tribunal.

Mrs Thorne did not plead in her amended statement of claim, or in any reply, that Mr Boyd was bound by any issue estoppel. In my view, in a case such as the present, the occurrence of the decision that is alleged to give rise to an issue estoppel should strictly be pleaded as a material fact, so that the other party will have notice that an estoppel is alleged.

The question of whether Mr Boyd is bound by an issue estoppel is not referred to in Mrs Thorne's opening submissions, and is to be found in pars 73 to 79 of Mrs Thorne's closing submissions (although Mrs Thorne's intention to rely upon issue estoppel was raised during the course of the hearing).

In EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 Young J (as he then was) said at [56]: "The Guardianship Tribunal would appear to be a judicial statutory tribunal within the meaning of the issue estoppel rules rather than an administrative Tribunal; see Pastras v The Commonwealth (1966) 9 FLR 152, 155". As I read his Honour's judgment, this statement was made obiter and in passing.

I respectfully doubt that a decision of the Guardianship Tribunal will give rise to an issue estoppel against a party in the position of Mr Boyd, at least in the circumstances of this case. I would hesitate to disagree with Young J in circumstances where the question at issue does not need to be determined for the purpose of deciding the case, and as Mr Boyd is representing himself, I have not had the benefit of a considered argument on behalf of both sides of the question. Accordingly, I will not decide the issue.

It is appropriate that I nonetheless record briefly the reason for my doubts. First, I consider that in EMG Young J was directly concerned with an issue of the status of the person who was the subject of a management order made by the Victorian equivalent of the Guardianship Tribunal, which involved a question of the recognition in New South Wales of the order made by the Tribunal in Victoria. Young J said at [17] "The question is, what is the effect of recognition of the Victorian order in the present case?" See also [16], [18] and [20].

Secondly, the relevant power of the Guardianship Tribunal arises under s 25G of the Guardianship Act whereby: "The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that [relevantly]: (a) the person is not capable of managing those affairs..." This appears to give the Tribunal a discretionary power to make beneficial orders to protect an incapable person, rather than a power to decide the rights of all of the persons who are made parties to the proceedings. As the power is designed to protect vulnerable persons, it might undermine the purposes of the Act if all persons who were made parties to proceedings had to act in an adversarial manner to protect themselves from potentially damaging estoppels, rather than to act collectively in the interests of the person the subject of the application.

In Cachia v Isaacs (1985) 3 NSWLR 366 a majority of the Court of Appeal accepted that the Consumer Claims Tribunal was a tribunal whose decisions could give rise to an issue estoppel, although McHugh JA (as he then was) pointed out at 389 that the respondents had not argued that a decision of the Tribunal could not raise an issue estoppel, so it was unnecessary for the court to come to any concluded opinion on that matter. Kirby P appears at 368 to have held that decisions of the Tribunal could give rise to an issue estoppel because it had "jurisdiction to hear and determine any consumer claim referred to it" (see s 17). The President added: "From those powers to define issues and solemnly to determine them as between the parties before it, derives the power of the Tribunal to create an issue estoppel which will bind those parties in other proceedings".

McHugh JA said at 388:

I am of opinion that the solicitors are not estopped from alleging that the appellant obtained benefits from their work. I think that a serious question arises as to whether proceedings in the Consumer Claims Tribunal are capable of giving rise to an issue estoppel or res judicata. Res judicata and issue estoppel are concerned with decisions on the ultimate issues in causes of action or defences to them. The jurisdiction conferred on the Tribunal is to make orders to pay money, perform work, or to relieve of obligations in claims arising out of contracts. In that sense the Act confers rights on consumers. But a right to obtain an order is not a cause of action... The jurisdiction of the Tribunal, therefore, is to make orders but not to decide any cause of action or legal defence. In so far as the Tribunal may determine the existence of a cause of action or defence, it is incidental or collateral to the jurisdiction of making an order under s 23 of the Act...

Moreover, there is nothing in the Act which indicates that the Tribunal must make an order even if it is persuaded that the claimant has proved the issue in dispute. The terms of s 23 of the Act, empowering the Tribunal to make orders, is permissive in terms..." [Emphasis in original]

In Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Priestly JA said at 332, 333:

The res judicata rules are applicable, in appropriate circumstances, to decisions of administrative tribunals. Gibbs J said, in Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 453:

"... The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc..."

...

Accordingly, where tribunals, even though called administrative tribunals, are legislatively empowered to decide the competing claims of parties in a way which has legal effect, and where, in making such decisions it is necessary for them to decide identifiable disputed issues, there seems to me to be a strong reason why such issues once decided should be treated as having been set to rest between the disputants...

It is not possible to say, as a general proposition, that the powers of all administrative tribunals, are such that each of its determinations give rise to an issue estoppel.

The words "jurisdiction to decide finally a question arising between parties" as used by Gibbs J (as he then was) in Daera Guba are in my view crucial.

There are strong grounds for concluding that, in an application such as that which was made concerning Mrs McAuley's capacity, the Guardianship Tribunal did not exercise a procedure that defined the rights of contesting parties, or decided those rights.

Relief

It is necessary that I address the relief that should be granted in these proceedings.

First, an order must be made setting aside the transfer of Mrs McAuley's $260,000 to Mr Boyd that occurred on 6 August 2009, and requiring Mr Boyd to repay that money to Mrs Thorn as executor of Mrs McAuley's estate.

Secondly, an order should be made that Mr Boyd pay interest on the money that he received from Mrs McAuley from that date.

The third question is whether an order should be made that Mrs Thorn, as the executor of Mrs McAuley's estate, has a charge over any property owned by Mr Boyd by reason of the fact that Mr Boyd applied the money he received to acquire, or reduce the mortgage over, property owned by him.

The court has jurisdiction, when it orders that a gift be set aside on the ground that it was procured by the unconscionable conduct of the donee, to declare that property acquired with the gift is held on constructive trust for the donor, and order that the property be transferred to the donor, or such other proprietary relief as may be appropriate in the circumstances: see Louth v Diprose [1992] HCA 61; 175 CLR 621, where the High Court dismissed an appeal on the facts as to whether the gift had been unconscionably procured, without making any negative observations about the proprietary relief that had been granted by the trial judge. See also McCulloch v Fern [2001] NSWSC 406 at [114] - [116] per Palmer J, and Smith v Smith [2004] NSWSC 663; (2004) 12 BPR 23,051 at [68] per Barrett J (as he then was).

As Mrs McAuley's attorney, Mr Boyd owed a fiduciary duty to her that required him to act in her interests rather than his own. For the reasons that I have set out above, I find that Mr Boyd acted entirely in his own interests and ignored the interests of Mrs McAuley. In the manner in which he deployed the power of attorney to cause the Bank to transfer McAuley's $260,000 to his own account, Mr Boyd breached his fiduciary duty.

Consequently, Mrs Thorne is entitled to appropriate orders that will enable her to follow the money into any property owned by Mr Boyd, where that property was either acquired with the money, or where any mortgage over the property was reduced using the money.

As Ms Gleeson observed in her closing submissions: "The documentary evidence of what became of the money is scant." It does appear that on 12 August 2009, $200,000 was paid to reduce Mr Boyd's NAB Base Variable Rate Home Loan. There are other transactions (referred to in par 105 of Ms Gleeson's closing submissions) but those transactions do not with sufficient clarity establish what eventually happened to all of the funds represented by Mrs McAuley's $260,000 gift.

I am satisfied that Mrs Thorn is entitled to trace that money, and if necessary to an accounting from Mr Boyd. It may be that Mrs Thorn is also entitled to some interlocutory relief to prevent Mr Boyd from disposing of any property over which Mrs Thorn might be entitled to a charge.

In the circumstances I propose to direct the parties to bring in short minutes to reflect the conclusions reached in this judgment, and for that purpose I will invite Mrs Thorn to propose particular orders to ensure that ultimately Mrs McAuley's estate receives all of the protection to which it is entitled. It will also be necessary to make consequential orders in relation to the disposition of any property into which the gift can be traced.

Mrs Thorn is also entitled to an order that Mr Boyd pay her costs of the proceedings.

**********

Amendments

21 June 2016 - par 52 deleted; proofing error not intended to be included, from a previous draft and inconsequential to outcome

Decision last updated: 21 June 2016

Medium Neutral Citation:	Catherine Margaret Thorn, as Executrix of the Estate of the Late Betty McAuley v Ian Geoffrey Boyd [2014] NSWSC 1159
Hearing dates:	22, 23 and 24 April 2014, 20 May 2014 and 11 June 2014
Decision date:	25 August 2014
Jurisdiction:	Common Law
Before:	Robb J
Decision:	Direct the plaintiff in the first instance to prepare short minutes to reflect the conclusions reached in these reasons for judgment, so that final orders can be made in accordance with directions to be made
Catchwords:	EQUITY - validity of transfer of money effected under a power of attorney that excluded authority to make gifts to the attorney - undue influence - whether relationship of influence existed - whether de facto relationship of influence - unconscionable conduct - significant cognitive impairment - no independent legal advice - issue estoppel - whether bound by decision of tribunal
Legislation Cited:	Evidence Act 1995 (NSW) s 69 Guardianship Act 1987 (NSW) ss 25G, 25H NSW Trustee and Guardian Act 2009 (NSW) Powers of Attorney Act 2003 (NSW) ss 12, 19
Cases Cited:	Aboody v Ryan [2012] NSWCA 395; 17 BPR 32,359 Cachia v Isaacs (1985) 3 NSWLR 366 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 Grundel v Registrar-General (1990) 5 BPR 11, 217 Johnson v Buttress [1936] HCA 41; 56 CLR 113 Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Louth v Diprose [1992] HCA 61; 175 CLR 621 McCulloch v Fern [2001] NSWSC 406 Quek v Beggs (1990) 5 BPR 11,761 Smith v Smith [2004] NSWSC 663; (2004) 12 BPR 23,051
Category:	Principal judgment
Parties:	Catherine Margaret Thorn as executrix of the estate of the late Betty McAuley (plaintiff) Ian Geoffrey Boyd (defendant)
Representation:	Counsel: Catherine Gleeson (plaintiff) Ian Boyd (self) Solicitors: Shaw McDonald Pty Ltd (plaintiff) Ian Boyd (self)
File Number(s):	2011/91377