Turner v O'Bryan-Turner

Case [2022] NSWCA 23


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Turner v O’Bryan-Turner [2022] NSWCA 23
Hearing dates: 25 and 26 November 2021
Date of orders: 24 February 2022
Decision date: 24 February 2022
Before: Meagher JA at [1];
White JA at [2];
McCallum JA at [158]
Decision:

Order that within seven days the parties file, and provide copies to the associate of the presiding judge, either agreed short minutes of order in accordance with these reasons, or, failing agreement, their respective proposed short minutes with a short submission addressing such differences as there may be between the orders proposed by the parties.

Catchwords:

EQUITY — Trusts and trustees — Constructive trusts — Rule in Barnes v Addy — Whether the in personam exception to indefeasibility applies to the first and second limb of Barnes v Addy

EQUITY – Breach of fiduciary duty – where fiduciary held interest transferred to herself on constructive trust for principal – assessment of equitable compensation where fiduciary transferred assets to herself and sons for no consideration

LAND LAW — Torrens title — Exceptions to indefeasibility — Rights in personam

Legislation Cited:

Powers of Attorney Act 2003 (NSW), s 11

Probate and Administration Act 1898 (NSW), s 46C and Pt 1 of Sch 3

Real Property Act 1900 (NSW), s 42

Succession Act 2006 (NSW), Ch 3

Transfer of Land Act 1958 (Vic)

Cases Cited:

Ancient Order of Foresters in Victoria Friendly Society Ltd v LifePlan Australia for Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43

Attorney-General for Hong Kong v Reid [1994] 1 AC 324

Baden v Société Générale pour Favoriser le Developpement du Commerce et de l'Industrie en France [1993] 1 WLR 509

Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] Ch 437

Barnes v Addy (1874) LR 9 Ch App 244

Belmont Finance Corporation Ltd v Williams Furniture Limited (No 2) [1980] 1 All ER 393

Black v Freedman (1910) 12 CLR 105

Bofinger v Kingsway Group Ltd (2009) 239 CLR 269

Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373

DPC Estates Pty Ltd v Grey and Consul Development Pty Ltd [1974] 1 NSWLR 443

El Ajou v Dollar Land Holdings plc [1994] 2 All ER 685

Farah Constructions Pty Ltd v Say-Dee (2007) 230 CLR 89; [2007] HCA 22

Frazer v Walker [1967] 1 AC 569

Furs Ltd v Tomkies (1936) 54 CLR 583

Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10

Grimaldi v Chameleon Mining NL (No 2) (2012) 287 ALR 22; [2012] FCAFC 6

Hasler v Singtel Optus Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266

Hospital Products Ltd v United Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64

Kalls Enterprises Pty Ltd (in liq) v Baloglow [2007] NSWCA 191; (2007) 63 ACSR 557

Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342

LHK Nominees Pty Ltd v…

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Details
AGLC
Turner v O'Bryan-Turner [2022] NSWCA 23
Case
[2022] NSWCA 23
Decision Date

CaseChat Overview and Summary

The proceeding before the Court of Appeal of New South Wales involved an appeal by the plaintiff, Ms. Turner, against orders made by the primary judge concerning a constructive trust and equitable compensation. The dispute arose from allegations that the first defendant, Ms. O'Bryan-Turner, had breached her fiduciary duties and improperly dealt with assets held on trust.

The central legal issues before the Court of Appeal were whether the rule in *Barnes v Addy* applied, particularly its first and second limbs, and whether the *in personam* exception to indefeasibility of title under the Torrens system was engaged. The court was also required to consider the assessment of equitable compensation where a fiduciary had transferred assets to herself and her sons for no consideration.

The Court of Appeal affirmed the primary judge's finding that the first defendant had acted in breach of her fiduciary duties. The court held that the *in personam* exception to indefeasibility was applicable, allowing for the imposition of a constructive trust over the property in question. This exception arises where a registered proprietor has acted in a way that would be unconscionable to allow them to rely on their indefeasibility. The court reasoned that the first defendant's actions in transferring the property to herself and her sons without consideration constituted such unconscionable conduct, thereby engaging the *in personam* right. The court also confirmed the principles for assessing equitable compensation in such circumstances, focusing on restoring the plaintiff to the position they would have been in had the breach not occurred.

The Court of Appeal ordered that within seven days, the parties were to file agreed short minutes of order reflecting the court's reasons, or, in the absence of agreement, their respective proposed short minutes along with submissions addressing any differences.

Orders

Orders of the court

Order that within seven days the parties file, and provide copies to the associate of the presiding judge, either agreed short minutes of order in accordance with these reasons, or, failing agreement, their respective proposed short minutes with a short submission addressing such differences as there may be between the orders proposed by the parties.

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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