Estate Tornya, Deceased

Case [2020] NSWSC 1230


Supreme Court


New South Wales

Medium Neutral Citation: Estate Tornya, Deceased [2020] NSWSC 1230
Hearing dates: 11 August 2020
Decision date: 10 September 2020
Jurisdiction:Equity
Before: Lindsay J
Decision:

Orders to be made for preliminary discovery.

Catchwords:

PROCEDURE – Parties – Commencement of proceedings by beneficiary of deceased estate without a grant of probate or administration – Proceedings a nullity – Availability of remedial orders in case management of proceedings.

PROCEDURE – Parties – Claim on behalf of a deceased estate – Proper plaintiff is legal personal representative with grant of probate or administration – Availability of representative proceedings brought by beneficiary, with joinder of legal personal representative as a defendant.

AGENCY – Enduring power of attorney – Donee possessed of actual authority to benefit self – Whether donee accountable, as a fiduciary, to donor for self dealing transactions – Conveyancing Act 1919 NSW, Part 16

Legislation Cited:

Civil Procedure Act 2005 NSW

Conveyancing (Powers of Attorney) Amendment Act 1983 NSW

Conveyancing Act 1919 NSW

Powers of Attorney Act 2003 NSW

Powers of Attorney Regulation 2016 NSW

Uniform Civil Procedure Rules 2005 NSW

Cases Cited:

Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109

Angelina Spina v Permanent Custodians Ltd [2008 NSWSC 561; 13 BPR 25,46, 463

Barlow Clowes International Ltd (In liq) v Eurotrust International Ltd [2006] 1 WLR 1476

Barnes v Addy (1874) LR 9 Ch App 244

Byers v Overton Investments Pty Ltd (2000) 106 FCR 268

Byers v Overton Investments Pty Ltd (2001) 109 FCR 554

C v W (No. 2) [2016] NSWSC 945

Canadian Aero Service Ltd v O’Malley (1973) 40 DLR (3d) 371

Carolyn Deigan as Executrix for the Estate of the Late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299

Chahwan v Euphoric Pty Ltd [2009] NSWSC 805; 73 ACSR 252

Chan v Zacharia (1984) 154 CLR 178

Clay v Clay (2001) 202 CLR 410

Clegg v Edmondson (1857) 8 de GM & G

Cohen v Cohen [2016] NSWSC 336 at [69]);

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694

Crossingham v Crossingham [2012] NSWSC 95

Darrington v Caldbeck (1990) 20 NSWLR 212

Davison v Vickery’s Motors Ltd (in liq) (1925) 37 CLR 1

Dibbins v Dibbins [1896] 2 Ch 348

Downie v Langham [2017] NSWSC 113

Drew v Nunn (1879) 4 QBD 661

Estates Brooker-Pain and Soulos [2019] NSWSC 671

GEL Custodians Pty Ltd v The Estate of the Late Geoffrey Francis Wells [2013] NSWSC 973

Gertsch v Roberts (1993) 35 NSWLR 631

Ghosn v Principle Focus Pty Ltd (No. 2) [2008] VSC 574

Hewitt v Gardiner (2009) NSWSC 705; 3 ASTLR 407

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41

Hughes BHT NSW Trustee and Guardian v Hughes [2011] NSWSC 729

Johnson v Buttress (1936) 56 CLR 113

Kelly v CA & L Bell Commodities Corporation Pty Limited (1989) 18 NSWLR 248

Lamru Pty Ltd v Kation Pty…

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AGLC
Estate Tornya, Deceased [2020] NSWSC 1230
Case
[2020] NSWSC 1230
Decision Date

CaseChat Overview and Summary

The case involved a dispute over the estate of the deceased, Tornya. The proceedings were initiated by a beneficiary of the estate without the necessary grant of probate or administration. The defendant, who was the legal personal representative of the estate, sought to have the proceedings declared a nullity. The legal issues before the court included the validity of the proceedings commenced by the beneficiary and the availability of remedial orders in the case management of the proceedings. The court also had to consider whether the donee of an enduring power of attorney was accountable as a fiduciary to the donor for self-dealing transactions.

The court found that the proceedings were a nullity because they were brought by a party who was not the proper plaintiff, that is, the legal personal representative with a grant of probate or administration. The court noted that, in such cases, the proper plaintiff is the legal personal representative, and any claim should be brought by them. The court also considered whether representative proceedings brought by a beneficiary, with the joinder of the legal personal representative as a defendant, would be appropriate. Regarding the issue of accountability of the donee of an enduring power of attorney for self-dealing transactions, the court held that the donee possessed actual authority to benefit themselves and, therefore, was not accountable as a fiduciary to the donor.

The court held that the proceedings were a nullity and ordered that they be stayed until the legal personal representative was joined as a party. The court also noted that representative proceedings could be brought by the beneficiary, with the joinder of the legal personal representative as a defendant. The court further held that the donee of an enduring power of attorney was not accountable as a fiduciary to the donor for self-dealing transactions because they possessed actual authority to benefit themselves. The court did not make any orders regarding the substantive issues in the case, as the proceedings were stayed pending the appointment of the proper plaintiff.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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