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Hughes v Hughes

Hughes v Hughes

Case [2011] NSWSC 729 1 July 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Mary Alice Hughes by her Tutor NSW Trustee & Guardian v Hughes [2011] NSWSC 729
Hearing dates: 1 July 2011
Decision date: 01 July 2011
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Declaration that defendant holds $293,510.14 on trust for plaintiff. Order that defendant pay plaintiff $293,510.14. Order that defendant pay plaintiff's costs.

Catchwords: CONTRACTS - Particular Parties - Principal and Agent - power of attorney - attorney sells mother's house and fails to account to her for proceeds of sale - power in form of Sch 7 to Conveyancing Act 1919 - unnecessary to decide whether s 163B authorised benefit to attorney - attorney in breach of fiduciary duty under the power
PROCEDURE - Failure to appear - Uniform Civil Procedure Rules 2005, Pt 29 r 29.7 - when trial called defendant absent - history of non-action when contacted by solicitors and process servers - informed of hearing - exercise of discretion to proceed with trial
Legislation Cited: Uniform Civil Procedure Rules 2005
Conveyancing Act 1919
Powers of Attorney Act 2003
Cases Cited: Re R [2000] NSWSC 886
In re W (Enduring Power of Attorney) [2000] Ch 343
Sweeney v Howard [2007] NSWSC 852
Spina v Conran Associates Pty Ltd; Spina v M & V Endurance Pty Ltd [2008] NSWSC 326
Tobin v Broadbent [1947] HCA 46; (1947) 75 CLR 378
Angelina Spina v Permanent Custodians Limited [2008] NSWSC 561
Rayner & Ors v N J Sheaffe Pty Limited & Ors [2010] NSWSC 810
Category: Principal judgment
Parties: Mary Alice Hughes (Plaintiff)
Anthony Thomas Hughes (Defendant)
Representation: Solicitor
Zucker Legal (Plaintiff)

File Number(s): 2010/364594

EX TEMPORE Judgment

When this matter was called, there was no appearance of the defendant, Dr Hughes.

I indicated that I proposed to act under the Uniform Civil Procedure Rules 2005, Pt 29 r 29.7 and I received evidence on behalf of the plaintiff, Mary Hughes by her tutor NSW Trustee & Guardian.

Part 29 r 29.7 in part provides as follows:

"(1) This rule applies when a trial is called on.

(2) If any party is absent, the Court:

(a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or

(b) may adjourn the trial."

There is a long history of Dr Hughes ignoring contact made with him by the solicitors for Mrs Hughes and process servers.

When this matter was called on 24 June 2011, Dr Hughes appeared in person. That was the first response he made to any material served upon him. He was ordered to enter an appearance by 29 June 2011 and the matter was stood over to today.

Dr Hughes telephoned my Associate on Monday and said he was in a clinic and would not be attending today. He has not filed a Notice of Appearance.

In light of the non-response by Dr Hughes, a lecturer in law at the University of New South Wales, and his knowledge that the matter…

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 Hughes v Hughes

Details

AGLC: Hughes v Hughes [2011] NSWSC 729
Case: [2011] NSWSC 729
Decision Date: 01 July 2011

CaseChat Overview and Summary

In the case of Hughes v Hughes, the dispute arose when the defendant, who was appointed as an attorney under a power of attorney, sold the plaintiff's mother's house and failed to account for the proceeds to her. The plaintiff, the daughter of the mother, sought to determine whether the attorney's actions constituted a breach of fiduciary duty and whether the statutory power in the form of Schedule 7 to the Conveyancing Act 1919 authorised any benefit to the attorney. The case was heard in the Supreme Court of New South Wales. The defendant was absent when the trial was called, having a history of non-cooperation with the court process, including failing to respond to contact from solicitors and process servers.

The primary legal issues the court needed to decide were whether the attorney had breached their fiduciary duty by selling the property without proper accounting to the principal, and whether the statutory power under Schedule 7 to the Conveyancing Act 1919 authorised any benefit to the attorney. Additionally, the court had to consider whether the absence of the defendant justified proceeding with the trial in their absence. The court was required to determine if the statutory authority provided any justification for the attorney's actions or if it merely defined the scope of their authority.

The court found that the attorney had indeed breached their fiduciary duty by failing to account for the proceeds of the sale of the property. The court noted that it was unnecessary to decide whether section 163B of the Conveyancing Act authorised any benefit to the attorney because the attorney's actions clearly constituted a breach of their fiduciary duty. The court exercised its discretion under rule 29.7 of the Uniform Civil Procedure Rules 2005 to proceed with the trial in the absence of the defendant, given the defendant's history of non-cooperation and failure to respond to the court process. The court concluded that the attorney's actions were in breach of their fiduciary duty and ordered them to account for the proceeds of the sale of the property to the plaintiff.

Orders