Despot v Registrar-General of NSW

The case of *Despot v Registrar-General of NSW* was heard in the Court of Appeal of New South Wales, with Meagher and Ward JJA and Bergin CJ in Eq presiding. The dispute concerned a power of attorney granted by a homeowner to the principal of a building company undertaking renovations, and a separate security granted to the builder for moneys owed. The homeowner sought to challenge the irrevocability of the power of attorney and the fiduciary duties owed by the donee. Additionally, the vendor of a property sought to vary the conditions of a specific performance order, while the donor of the power of attorney and vendor also attempted to raise new arguments on appeal concerning a solicitor's alleged knowing participation in breaches of fiduciary duty, breach of duty of care, and misleading or deceptive conduct.

The Court of Appeal was required to determine whether the power of attorney was irrevocable due to its purpose of securing repayment of moneys due to the builder, and whether the donee of the power owed fiduciary duties to the donor. Furthermore, the court had to consider whether new arguments regarding the amount of unpaid purchase price and the solicitor's conduct could be raised on appeal, despite not having been pleaded or argued at trial. The court also considered a claim for scaffolding costs.

The Court of Appeal held that the power of attorney was not irrevocable simply because it was provided for the purpose of securing repayment of moneys due. The court reasoned that arguments concerning the amount of unpaid purchase price and the solicitor's alleged conduct could not be made on appeal as they were inconsistent with the basis upon which the trial judge made findings or could have been the subject of evidence at trial. The court allowed the appeal in part, setting aside an order of the lower court concerning the eighth defendant, Sky Constructions, and entering judgment for the appellant against Sky Constructions and Stelli. The appeal was otherwise dismissed, with specific orders made regarding the costs of the appeal.