Ede v Ede

[2006] QSC 378

SUPREME COURT OF QUEENSLAND

CITATION:

Ede v Ede [2006] QSC 378

PARTIES:

FRANCIS ROBERT LEWIS EDE by his litigation guardian, THE PUBLIC TRUSTEE OF QUEENSLAND
(plaintiff)
v
RAYMOND ROBERT EDE
(defendant)

FILE NO/S:

BS10330 of 2005

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

13 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2006

JUDGE:

Muir J

ORDER:

The defendant is to pay the plaintiff the sum of $36,800

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – LIABILITY FOR BREACH OF TRUST – RELIEF FROM LIABILITY – IN GENERAL – where respondent was the applicant’s attorney – where respondent transferred property belonging to the applicant to the respondent’s daughter –where respondent admits transfer in contravention of s 73(1) of the Powers of Attorney Act 1998 (Qld) – whether respondent acted honestly and reasonably and ought fairly to be excused for the breach

Companies Act 1961 (Vic)
Powers of Attorney Act 1998, s 73, s 105(1), 106(1)

Consul Development Pty Limited v DPC Estates Pty Limited (1975) 132 CLR 373, applied
Craven-Sands v Koch (2000) 34 ACSR 341, applied
Marchesi v Barnes [1970] VR 434, applied
National Trustees Executors & Agency Co of Australasia Ltd v General Finance Co of Australasia Ltd [1905] AC 373, applied
Re De Clifford [1900] 2 Ch 707, applied
Re Second East Dulwich 145^th Starr-Bowkett Building Society, (1899) 68 LJ Ch 196, applied
Re Turner (1897) 1 Ch 356, distinguished

COUNSEL:

M Bland for the plaintiff
J M Horton for the defendant

SOLICITORS:

Official Solicitor to The Public Trustee for the plaintiff
Hemming & Hart for the defendant

Introduction

1. The plaintiff, Francis Ede by his litigation guardian The Public Trustee of Queensland, claims against the defendant Robert Ede, the plaintiff’s son, compensation pursuant to s 106(1) of the Powers of Attorney Act 1998 (“the Act”). The defendant denies liability and counterclaims for an order that he be relieved from personal responsibility pursuant to s 105(1) of the Act. The defendant initially denied breaching his obligations as attorney for the plaintiff under an Enduring Power of Attorney by selling a parcel of real estate owned by the plaintiff to his daughter. But on the hearing, the defendant’s counsel admitted that the defendant was in breach of his obligations under s 73 of the Act not to “enter into a conflict transaction” unless authorised by the plaintiff. The issues for determination then became:

(a) Whether the plaintiff had incurred loss as a result of the defendant’s breach and should be ordered to pay compensation under s 106 of the Act and, if so, in what amount; and

(b) Whether the defendant should be relieved from all or part of his personal liability for the breach under s 105 of the Act.

Matters antecedent to the impugned transaction

1. Under an Enduring Power of Attorney dated 3 August 2001, the defendant was appointed by his father as his attorney. In early 2002 the plaintiff…