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 trialLegislation Cited: Uniform Civil Procedure Rules 2005
Conveyancing Act 1919
Powers of Attorney Act 2003Cases 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 810Category: 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…
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- AGLC
- Hughes v Hughes [2011] NSWSC 729
- Case
- [2011] NSWSC 729
- Decision Date
CaseChat Overview and Summary
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
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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