Hrycenko (by his litigation guardian Michael Kornitschuk) v Hrycenko

The case of Hrycenko (by his litigation guardian Michael Kornitschuk) v Hrycenko involved the dispute between a father, Mr Hrycenko, and his son, the defendant. The father had appointed his son as his attorney under the Powers of Attorney Act 2014 (Vic), granting him authority over his financial affairs. The primary issues at hand were whether the son had breached his fiduciary duties by not adequately accounting for the payments he made on behalf of his father and whether he had acted improperly in procuring significant gifts from his father. The case was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the son had fulfilled his duty to account for the payments made on his father's behalf and whether the son had obtained fully informed consent from his father for the substantial gifts. Furthermore, the court examined whether the son had exerted undue influence over his father and if he had engaged in unconscionable conduct by taking advantage of his father's special disability. The court also considered whether the son's actions could be justified by any defences such as election, waiver, or estoppel, particularly if the father had received independent legal advice.

The court found that the son had not met his onus of proving that the payments he made were for the benefit of his father, and thus, the duty to account was not satisfied. Regarding the gifts, the court determined that the son had not established that his father had provided fully informed consent for the transfers. The court accepted the presumption of undue influence due to the significant emotional and financial reliance the father had on his son and the lack of independent legal advice. The son's alleged plan to distribute assets during his father's lifetime was not substantiated, and the consequences of the gifts on the father's asset position were not appreciated by either the father or his solicitor. Consequently, the presumption of undue influence was not rebutted. Additionally, the court concluded that the son had unconscientiously taken advantage of his father's special disability, leading to the finding of unconscionable conduct.

The court ultimately ruled in favour of the father, finding that the son had breached his fiduciary duties and acted unconscionably. The court did not establish the defences of election, waiver, or estoppel as the father had not received independent legal advice on the transactions in question. The court ordered the son to account for the payments and the substantial gifts made to him, and further proceedings were directed to determine the appropriate remedies.