Ryan v Ryan - [2017] VSC 490

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 04129

IN THE MATTER of the Estate of RONALD KEITH RYAN

BETWEEN

RONALD KEITH RYAN (who sues by his Administrator BRETT RONALD RYAN)	Plaintiff
v
KAREN JUNE RYAN (in her own capacity and as attorney pursuant to enduring powers of attorney granted by RONALD KEITH RYAN and SHIRLEY JEAN RYAN on 22 July 2011, as former Administrator of the Estate of RONALD KEITH RYAN and as Executor of the Deceased Estate of SHIRLEY JEAN RYAN)	Defendant

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2017
DATE OF JUDGMENT:	30 August 2017
CASE MAY BE CITED AS:	Ryan v Ryan
MEDIUM NEUTRAL CITATION:	[2017] VSC 490

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TRUSTS, EQUITY AND PROBATE – Defendant given power of attorney for elderly parents — Defendant appointed as administrator of her father’s estate under Guardianship and Administration Act 1986 (Vic) Part 5 — Defendant borrowed money from her father and mother — Written loan agreements — Whether loans forgiven — Defendant withdrew moneys from mother’s and father’s bank accounts to use for her own purposes — Whether defendant must repay money to father’s estate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Edward Moon	McCarthy Partners
For the Defendant	Ms Ryan, in person	None

HER HONOUR:

Introduction

Karen Ryan and Brett Ryan are sister and brother. They are the adult children of Shirley Ryan, who died on 25 June 2014, and Ronald Ryan, whose affairs are currently administered by Brett. Ron is 87 years old, very frail and lives in an aged care facility in Pascoe Vale. Karen and Brett do not get on. Brett has brought this proceeding on behalf of his father to recover from Karen moneys that he alleges were taken by Karen from their father’s estate in breach of her duty to him.

In 2011, Ron and Shirley were still living in their joint matrimonial home in Treadwell Road, Niddrie. On 22 July 2011, each of them appointed Karen as their attorney pursuant to an enduring power of attorney. Karen had authority to, and did, operate their joint bank account with the Commonwealth Bank.

By late September 2012, Ron had been assessed as requiring a high level of care and, in October 2012, Ron and Shirley moved to the Dorothy Impey Home for the Aged in Pascoe Vale. Although Shirley did not require a high level of care at this stage, she wanted to remain with Ron. By then, Ron and Shirley had become dependent upon Karen for the management of their financial affairs, and for organising and attending medical appointments, shopping expeditions and social outings.

In December 2012, Brett commenced proceedings in the Victorian Civil and Administrative Tribunal (‘Tribunal’) seeking orders revoking the enduring powers of attorney granted to Karen and the appointment of administrators to the estates of each of Shirley and Ron. In the event, on 15 May 2013, the Tribunal dismissed Brett’s…

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 Ryan v Ryan

Details

AGLC: Ryan v Ryan [2017] VSC 490
Case: [2017] VSC 490
Decision Date: 30 August 2017

CaseChat Overview and Summary

In the case of Ryan v Ryan, the dispute involved a daughter who had been granted power of attorney for her elderly parents and subsequently appointed as the administrator of her father’s estate. The daughter had borrowed money from both her parents under written loan agreements, which were later claimed to have been forgiven. However, the daughter had also withdrawn money from her parents' bank accounts for her personal use. The issue before the court was whether the daughter was required to repay the money to her father's estate.

The court had to determine the validity of the loan agreements, whether the loans had indeed been forgiven, and if the withdrawals from the parents' accounts constituted a breach of fiduciary duty. The court examined the terms of the loan agreements, the evidence of forgiveness, and the daughter’s actions in withdrawing funds. The court assessed whether the daughter had acted within her powers as power of attorney and as an administrator of the estate, and whether her actions constituted a breach of her fiduciary obligations.

The court found that the loan agreements were valid and enforceable, and that there was no clear evidence that the loans had been forgiven. The court also determined that the withdrawals from the parents' accounts were not justified and constituted a breach of fiduciary duty. Consequently, the court ruled that the daughter must repay the money to her father's estate. The decision was grounded on the principle that a fiduciary must account for any profits derived from their position and may not use their position for personal gain.

The court ordered that the daughter repay the money withdrawn from her parents' accounts to her father's estate, with interest. The court further clarified that any future dealings by the daughter as power of attorney or estate administrator must adhere strictly to her fiduciary duties to avoid further breaches.

Orders