Mielczarek by his tutor New South Wales Trustee and Guardian v Prendergast [2023] NSWSC 144

Supreme Court New South Wales

Medium Neutral Citation: Mielczarek by his tutor New South Wales Trustee and Guardian v Prendergast [2023] NSWSC 144 Hearing dates: 12 December 2022 Decision date: 27 February 2023 Jurisdiction: Equity Before: Robb J Decision: The first defendant acted beyond the power conferred on her as the plaintiffs' power of attorney by misappropriating funds in breach of her fiduciary duty. The first and second defendants held their interests in the real property purchased with misappropriated funds on trust for the plaintiffs. The available evidence does not establish the quantum of misappropriated funds received by the second defendant. Making of orders deferred to allow plaintiffs to make further submissions and propose orders. Catchwords: EQUITY — fiduciary duties — power of attorney — absence of authority to give gifts or to confer benefits on others — where evidence prima facie establishes that defaulting fiduciary misappropriated funds — where second defendant received misappropriated funds, but quantum not definitively established by evidence — where defendants used misappropriated funds to purchase real property — where making of orders deferred to allow plaintiffs to make further submissions Cases Cited: Smith v Smith [2017] NSWSC 408 Category: Principal judgment Parties: Josef Mielczarek by his tutor New South Wales Trustee and Guardian (First Plaintiff) Julie Mielczarek by her tutor New South Wales Trustee and Guardian (Second Plaintiff) Renee Louise Prendergast (First Defendant) Richard Christopher Smith (Second Defendant) Representation: Counsel: M Bennett (Plaintiffs)