JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2018 and 30 August 2018
DATE OF JUDGMENT:	10 September 2018
CASE MAY BE CITED AS:	Singer v Spiewak and anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 521

---

PRACTICE AND PROCEDURE – Application for summary judgment on basis that defences to breach of fiduciary duty by an attorney have no real prospect of success – Defences not fanciful – Summary judgment refused – In the alternative, in the exercise of discretion the case should go to trial – Civil Procedure Act 2010 (Vic) ss 63 and 64.

ENDURING POWER OF ATTORNEY – Attorney executed transfer of deceased’s home into the name of the deceased jointly with their son – Surplus proceeds of sale of deceased’s prior home largely distributed to attorney and their son – Attorney and son allege that the deceased gave oral instructions for these transactions – Not alleged by the plaintiff that the deceased lacked capacity to do so – Plaintiff claims that the attorney acted in breach of her fiduciary duty to the deceased – Various defences alleging that the transactions fell outside the scope of the duty or the deceased gave informed consent – Held that defences not fanciful – Powers of Attorney Act2014 (Vic) ss 1, 42, 63, 64, 65.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Newton	Maurice Blackburn Lawyers
For the First and Second Defendants	Mr J Rizzi	Savage & Co Pty Limited

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Outline of the facts............................................................................................................................. 1

Plaintiff’s claims............................................................................................................................... 10

Applicable law.................................................................................................................................. 11

Summary judgment.................................................................................................................... 11
Breach of fiduciary obligation................................................................................................... 13
Powers of Attorney Act 2014 (Vic)............................................................................................... 16

Issues and submissions................................................................................................................... 20

Plaintiff......................................................................................................................................... 20
Defendants................................................................................................................................... 22

Consideration.................................................................................................................................... 25

Orders................................................................................................................................................. 27

HER HONOUR:

Introduction

The plaintiff seeks summary judgment in her favour in respect of some of the aspects of her claim. The application was first argued before me on 22 February 2018 and was adjourned on that day, part way through the defendants’ submissions, after the parties reached an in principle agreement for the whole proceeding. The application came before me for further hearing on 30 August 2018 after the settlement agreement broke down. By agreement, the hearing resumed at the point at which it had concluded i.e. part way through the defendants’ submissions. The plaintiff did not rely on any substantive evidence - her submission is that the defendants’ have no real prospect of success even on their own evidence. The defendants rely on four affidavits - one sworn by each defendant, and two from the firm of solicitors who acted on the sale and purchase the subject of the application.

I have concluded that summary judgment should not be given, and so it is…

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 Singer v Spiewak

Details

AGLC: Singer v Spiewak [2018] VSC 521
Case: [2018] VSC 521
Decision Date: 10 September 2018

CaseChat Overview and Summary

Singer v Spiewak was a case heard in the Supreme Court of Victoria, which involved a dispute over alleged breaches of fiduciary duty by an attorney. The plaintiff, Singer, sought summary judgment against the defendant, Spiewak, who was the executor of the estate of the plaintiff’s father, alleging that Spiewak had acted in breach of her fiduciary duty by transferring the deceased’s home into the name of the deceased jointly with their son and distributing the surplus proceeds of the sale of the deceased’s prior home to herself and her son. The defendant, Spiewak, raised various defences, including that the transactions fell outside the scope of the duty or the deceased had given informed consent.

The court had to determine whether the defences raised by the defendant were fanciful or not and if the plaintiff had a real prospect of succeeding in their claim. The court found that the defences were not fanciful and there was a real prospect that the defendant would succeed in her defences. The court was also required to consider whether, in the exercise of its discretion, the case should proceed to trial.

The court held that the defendant’s defences were not fanciful and that the plaintiff did not have a real prospect of success in their claim. The court found that the defendant had raised a valid argument that the transactions fell outside the scope of the attorney’s fiduciary duty, and that the deceased had given informed consent to the transactions. The court also held that in the exercise of its discretion, the case should proceed to trial to allow the parties to present their evidence and arguments fully.

The court refused the plaintiff’s application for summary judgment and ordered that the case proceed to trial. The court found that the defendant’s defences were not fanciful and that the plaintiff did not have a real prospect of success in their claim. The court also held that in the exercise of its discretion, the case should proceed to trial to allow the parties to present their evidence and arguments fully. The case highlights the importance of attorneys acting within the scope of their fiduciary duty and the need for clear and informed consent from the principal.

Orders