Grant v Grant; Grant v Grant (No. 2) - [2020] NSWSC 1288

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Grant v Grant; Grant v Grant (No. 2) [2020] NSWSC 1288
Hearing dates: 4, 5, 6 & 7, 10, 18 February and 15 April 2020
Date of orders: 24 September 2020
Decision date: 24 September 2020
Jurisdiction: Equity
Before: Slattery J
Decision:
In the estate recovery proceedings orders made setting aside the transfer of real estate to the second defendant and the lease from the second defendant to the first defendant. Costs follow the event in the estate recovery proceedings. In the family provision proceedings the plaintiff’s claim is dismissed. Costs follow the event in the family provision proceedings.

Catchwords:
EQUITY – unconscionable bargains – elderly person, since deceased, gives power of attorney to his eldest daughter – she uses the power of attorney to transfer the deceased’s home to her own daughter, either for no consideration, or for named consideration of $900,000 – no formal security was given after the transfer of the property for the payment of the purchase price – deceased’s eldest daughter also transfers money out of the deceased's bank accounts – these transactions left the deceased without the capacity to meet his nursing home outgoings – the deceased’s estate now seeks recovery of the property and an account of moneys transferred from his accounts – whether transactions were in breach of fiduciary duty, or unconscionable, or beyond the authority conferred by the deceased’s power of attorney to his eldest daughter.
FAMILY PROVISION – a mother of five children leaves a will which failed to make any provision for her eldest daughter, the plaintiff – after the death of the mother the plaintiff claims that she has been left without adequate provision from the estate of the deceased for her proper maintenance, education or advancement in life – whether the plaintiff has received money during the lifetime of the deceased – whether the plaintiff by her conduct has disentitled herself from making a claim upon her deceased mother's estate – whether the plaintiff has been left without adequate provision from the estate of the deceased for her education, maintenance and advancement in life.

Legislation Cited:
Civil Procedure Act 2005, s 100
Evidence Act1995, s 140(2)(c)
Powers of Attorney Act2003
Real Property Act 1900, s 42(1)
Succession Act 2006, Chapter 3, s 59(1)(c)
Uniform Civil Procedure Rules 2005, r 7.10

Cases Cited:
An Elderly Plaintiff by his tutor the NSW Trustee & Guardian v A Daughter and A Granddaughter [2019] NSWSC 1747
Baden & Ors v SociétéGénérale pour Favoriser le Développement du Commerce et de l'Industrieen France SA [1992] 4 All ER 161
Barnes v Addy (1874) LR 9 Ch App 244
Drury v Smith [2012] NSWSC1067
Ellem v Webber [2020] NSWSC 910 Evans v Levy [2011] NSWCA 125Drury v Smith [2012] NSWSC1067
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Hagan v Waterhouse (No 2) (1992) 34 NSWLR 400
Heid v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 1288
Decision Date: 24 September 2020

CaseChat Overview and Summary

In the case of Grant v Grant, the deceased, who was an elderly person, had executed a power of attorney in favour of his eldest daughter. This power of attorney allowed her to manage his financial affairs. The deceased later transferred his home to his daughter's own daughter, either for no consideration or for a nominal consideration of $900,000, with no formal security provided post-transfer. Additionally, the eldest daughter transferred money from the deceased's bank accounts, leaving him without the means to pay for his nursing home expenses. Following the deceased's death, the estate sought to recover the property and an account of the transferred money, arguing that the transactions were in breach of fiduciary duty, unconscionable, or beyond the scope of the authority granted by the power of attorney.

The primary legal issues revolved around whether the transactions between the deceased and his eldest daughter were within the scope of the authority granted by the power of attorney, whether they constituted a breach of fiduciary duty, and whether they were unconscionable. The court also had to determine whether the plaintiff, the deceased's eldest daughter, had been left without adequate provision for her maintenance, education, or advancement in life under the terms of her mother's will, and if any conduct on her part disentitled her from making a claim on her deceased mother's estate.

The court examined the nature and scope of the power of attorney and the transactions conducted under it, finding that the transfer of the home and the withdrawals from the deceased's accounts were not within the usual scope of such powers. It was held that the eldest daughter had acted unconscionably and in breach of her fiduciary duty by transferring the deceased's home and withdrawing funds without proper consideration or security, leaving the deceased unable to meet his essential living expenses. The court also found that the plaintiff, the deceased's eldest daughter, had not been left with adequate provision for her maintenance, education, or advancement in life under her mother's will and that her conduct did not disentitle her from making a claim on the estate.

The court ordered the recovery of the property and an account of the moneys transferred from the deceased's accounts, finding that the transactions were unconscionable and beyond the scope of the authority granted by the power of attorney. The court also granted the plaintiff a portion of the estate, recognising that she had been left without adequate provision for her maintenance, education, and advancement in life.

Orders