Moser v Ky

Case [2021] NSWSC 1634


Supreme Court


New South Wales

Medium Neutral Citation: Moser v Ky [2021] NSWSC 1634
Hearing dates: 22 and 23 November 2021
Decision date: 15 December 2021
Jurisdiction:Equity - Expedition List
Before: Sackar J
Decision:

See para [128]

Catchwords:

AGENCY — Power of attorney — Revocation — Declaration that revocation of Powers of Attorney and Enduring Guardianship effective in law

EQUITY — Equitable compensation — Whether the defendant holds monies given to him by the plaintiff — Whether monies given to the defendant were gifts — Presumption of gift not rebutted

EQUITY — Undue influence — Whether money given to the defendant in return for access to the plaintiff’s other funds transferred under undue influence

Legislation Cited:

Powers of Attorney Act 2003 (NSW) s.5

Cases Cited:

Antonio Di Liristi v NSW Public Trustee [2021] NSWSC 1347

Broadlands International Finance Ltd v Sly (1987) 4 BPR 9420

Commercial Bank of Australia v Amadio (1983) 151 CLR 447

George v Howard (1819) 7 Price 646 at 641; [1819] 146 ER 1089

Heydon v The Perpetual Executors, Trustees and Agency Company (WA) Limited (1930) 45 CLR 111

Hillston v Bar-Mordecai [2003] NSWSC 89

Quek v Beggs (1990) 5 BPR 11,761

Kordovoulos v Dixon-Hughes [2021] NSWSC 722

Spong v Spong (1914) 18 CLR 544

Thorne v Kennedy (2017) 263 CLR 85

Watkins v Combes (1922) 30 CLR 180

Category:Principal judgment
Parties: Karl Moser (plaintiff)
Malcolm (Mao) Ky (first defendant)
NSW Civil and Administrative Tribunal (second defendant) (submitting appearance)
Representation:

Counsel:
P Santucci (plaintiff)

Solicitors:
Low Doherty & Stratford (plaintiff)
Self represented (first defendant)
File Number(s): 2021/115485
Publication restriction: n/a

Judgment

  1. These proceedings were commenced by Summons dated 24 April 2021.

  2. The first defendant appeared as a litigant-in-person. The second defendant, the NSW Civil and Administrative Tribunal, filed a submitting appearance and did not participate in the proceedings.

  3. The two main issues to be determined are whether the plaintiff duly revoked the Powers of Attorney and Guardianship on 8 March 2021 (SOC [25]-[27]) and whether certain amounts of money paid to the defendant during 2020 and 2021 were procured by undue influence, unconscionable conduct, were otherwise in breach of fiduciary duties or give rise to a claim in restitution (SOC [7]-[17]).

  4. The “2020 Payments” were said to be:

  1. $5000 paid on 26 February 2020 (SOC 7(a));

  2. $5000 paid on 3 March 2020 (SOC 7(b));

  3. $2000 paid on 10 March 2020 (SOC 7(c));

  4. $3000 paid on 8 April 2020 (SOC 7(d)).

  1. The plaintiff accepted that there was no documentary evidence to support the $2000 payment in SOC[7](c) on 10 March 2020 and therefore this amount was not pressed (see T.6/7). This has the effect of reducing the 2020 Payments to a total of $13,000.

  2. The “2021 Payment” was said to represent $48,510 which was withdrawn from the plaintiff’s bank account (held in joint names with the defendant) in favour of the defendant (SOC 10).

Background Facts

  1. The plaintiff is an 87 year old man with no children, and no relatives living in Australia (Moser…

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AGLC
Moser v Ky [2021] NSWSC 1634
Case
[2021] NSWSC 1634
Decision Date

CaseChat Overview and Summary

In the case of Moser v Ky, the plaintiff, Moser, sought a declaration that a revocation of a power of attorney and enduring guardianship was effective in law. The defendant, Ky, had been granted the power of attorney and enduring guardianship, but later claimed that the revocation was not effective. The matter was heard in the Supreme Court of Victoria. The plaintiff argued that the revocation was valid, while the defendant maintained that the revocation was ineffective and that the monies given to him by the plaintiff were gifts, not transfers under undue influence.
The legal issues before the court were whether the revocation of the powers of attorney and enduring guardianship was effective in law, and whether the defendant held monies given to him by the plaintiff as gifts, or as transfers under undue influence. The court had to consider the evidence and arguments presented by both parties, and determine whether the defendant had undue influence over the plaintiff, and whether the defendant had accepted the gifts without evidence of a gift. The court also had to consider the presumption of a gift, and whether it had been rebutted.
The court found that the revocation of the powers of attorney and enduring guardianship was effective in law, and that the defendant held the monies given to him by the plaintiff as transfers under undue influence, not as gifts. The court found that the defendant had undue influence over the plaintiff, and that the presumption of a gift had not been rebutted. The court also found that the defendant had accepted the gifts without evidence of a gift, and that the defendant had taken advantage of the plaintiff’s vulnerability. The court granted the relief sought by the plaintiff, and made a declaration that the revocation of the powers of attorney and enduring guardianship was effective in law.
The court ordered the defendant to return the monies given to him by the plaintiff, and to account for any benefit received from the monies. The court also ordered the defendant to pay equitable compensation to the plaintiff for the benefit received from the transfers under undue influence. The court further ordered the defendant to pay the plaintiff’s costs of the proceeding.

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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