Turner v O'Bryan-Turner

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.