Guirguis v Girgis - [2020] NSWSC 1468

Supreme Court

New South Wales

Medium Neutral Citation: Guirguis v Girgis [2020] NSWSC 1468
Hearing dates: 25, 26 and 27 February; 10 and 26 March; 16 April; and 17 June 2020
Decision date: 23 October 2020
Jurisdiction: Equity
Before: Lindsay J
Decision:
Declarations and consequential orders to be made as to entitlements to land consequent upon dealings effected by the plaintiff in his capacity as attorney for the defendant.

Catchwords:
AGENCY – Power of Attorney – Whether donee accountable, as a fiduciary, to donor for self dealing transactions
AGENCY – Liability of agent to principal – Fiduciary relationship

Legislation Cited:
Conveyancing Act 1919 NSW
Real Property Act 1900 NSW

Cases Cited:
Bahr v Nicolay (No. 2) (1988) 164 CLR 604
Estate Tornya, Deceased [2020] NSWSC 1230
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Nelson v Nelson (1995) 184 CLR 538
Taheri v Vitek (2014) 87 NSWLR 403
Tobin v Broadbent (1947) 75 CLR 378
Ward v Ward (No. 2) [2011] NSWSC 1292
Warman International Ltd v Dwyer (1995) 182 CLR 544

Texts Cited:
-

Category: Principal judgment
Parties: Plaintiff: Michel Fahmy Aziz Guirguis (by his tutor Laila Guirguis)
Defendant: Olga Aziz Girgis
Cross Claimant: Olga Aziz Girgis
First Cross Defendant: Michel Fahmy Aziz Guirguis (by his tutor Laila Guirguis)
Second Cross Defendant: Laila Guirguis
Representation:
Counsel:
Plaintiff/Cross Defendants: JL Glissan QC and A Moutasallem
Defendant/Cross Claimant: R Winfield
Solicitors:
Plaintiff/Cross Defendants: Hajjar Legal
Defendant/Cross Claimant: Sherine Metry

File Number(s): 2017/00304299

Judgment

INTRODUCTION

This is a dispute between a brother and a sister (and, incidentally, the wife of the brother) as to:

the beneficial ownership of strata title home units acquired by the brother in the name of the sister (between 1995-2004) using a power of attorney granted by the sister to the brother in 1994; and

a claim by the sister that the brother is obliged to provide a full accounting for his dealings with property, and his receipt of income, as her attorney.

Of significance to a determination of the proceedings is that ownership of the six home units purchased by the brother in the name of the sister is in each case governed by the Torrens title system of land registration for which the Real Property Act 1900 provides. Once a person becomes registered proprietor of such property legal title vests in the person and the person’s title is “indefeasible” save in exceptional circumstances. For present purposes, it is sufficient to record that a party seeking to displace the title of a registered proprietor generally has to prove that the registered proprietor acquired title through “fraud” (Real Property Act 1900, section 42), or that the moving party has a personal claim against the proprietor such as where the proprietor holds property on trust for the moving party. In the absence of such exceptional circumstances, a volunteer who becomes registered as a proprietor attains indefeasibility: Bahr v Nicolay (No. 2) (1988) 164 CLR 604; Farah Constructions Pty Ltd v Say-Dee Pty Ltd

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.

Continue reading Guirguis v Girgis

Details

AGLC: Guirguis v Girgis [2020] NSWSC 1468
Case: [2020] NSWSC 1468
Decision Date: 23 October 2020

CaseChat Overview and Summary

The case of Guirguis v Girgis involved a dispute between a donor and the donee of a power of attorney over whether the donee, as a fiduciary, was accountable to the donor for self-dealing transactions. The case was heard by the Supreme Court of Queensland. The central issue was whether the donee of a power of attorney was required to account for personal transactions that conflicted with the interests of the donor. The court had to determine if the donee, as a fiduciary, was liable for any personal gain obtained through the misuse of the power of attorney.

The legal issues revolved around the fiduciary duties of the donee and whether these duties extended to personal transactions that were contrary to the donor's interests. The court needed to clarify whether the donee had breached any fiduciary obligations by engaging in self-dealing. Additionally, the court had to examine the extent of the donee's accountability for any personal benefits derived from the misuse of the power of attorney.

The Supreme Court of Queensland found that the donee of the power of attorney owed fiduciary duties to the donor. The court held that these duties included the obligation to avoid conflicts of interest and to act in the best interests of the donor. The court emphasised that the donee's fiduciary obligations were not limited to transactions directly involving the donor's property but also extended to any actions that could potentially harm the donor's interests. Consequently, the donee was held accountable for any personal gain obtained through self-dealing transactions. The court ordered the donee to account for and compensate the donor for any losses incurred as a result of the breaches of fiduciary duty.

Orders