Passey and Passey & Anor

In the matter of *Passey and Passey & Anor*, Justice Ryan of the Family Court of Australia reviewed a decision of a Judicial Registrar concerning a property dispute. The applicant, Mr Fyve, sought to challenge the Judicial Registrar's order that he pay equitable compensation for a breach of trustee obligations. Mr Fyve had not participated in the hearing before the Judicial Registrar and, at the review hearing, sought to rely on defences of equitable estoppel, waiver and election, or unconscionability, without disputing the breach of trust itself.

The primary legal issue before Justice Ryan was whether Mr Fyve had established any entitlement to relief based on the equitable defences he raised. The court was required to determine if these defences could negate or mitigate the equitable compensation ordered for his admitted breach of trust.

Justice Ryan found that Mr Fyve failed to establish his entitlement to relief under any of the equitable defences he relied upon. The court applied established principles of equitable estoppel, waiver, election, and unconscionability, concluding that the facts presented did not support their application in this instance. Consequently, the court upheld the finding of a breach of trust and the consequent obligation to pay equitable compensation.

The court set aside the order of the Judicial Registrar dated 6 May 2008 and entered judgment in favour of Ms Passey against Mr Fyve for the sum of $133,257.00, with judgment interest payable. All other outstanding applications were dismissed, subject to any application for costs, with directions given for the filing and service of submissions regarding costs. The court also noted that the parties invited the Court to determine any costs application without further hearing and directed the Principal Registrar to provide a copy of the reasons, noting a request for the Legal Services Commission of New South Wales and the President of the Law Society of New South Wales to investigate the conduct of Mr G.