Misek v McBride [2017] NSWSC 406

Supreme Court New South Wales

Medium Neutral Citation: Misek v McBride [2017] NSWSC 406 Hearing dates: 22, 23, 24 & 25 August 2016 Date of orders: 18 April 2017 Decision date: 18 April 2017 Jurisdiction: Equity Before: Slattery J Decision: Secret trust claim fails. Defendant's use of the power of attorney to make a loan to herself is authorised by the power of attorney. Order for family provision made. Catchwords: SUCCESSION – family provision – Succession Act 2006 s 59 - deceased gives the whole of her estate to her daughter – the deceased's other child, a son, pre-deceased her, leaving four children - the plaintiff is one of these grandchildren of the deceased – the plaintiff lived with the deceased, for a lengthy period – the deceased's will leaves all her estate to her daughter and executor, the defendant – whether the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life - if so, what provision should be made for the plaintiff out of the deceased's estate.

EQUITY – secret trusts – the plaintiff alleges the defendant promised to hold property received by her under the will of the deceased on secret trust as to 20 per cent for the plaintiff – whether the deceased intended her daughter, the named sole beneficiary of her will, to hold her estate on trust as to 20 per cent for the plaintiff – whether the deceased communicated such an intention to the defendant – whether the defendant accepted or acquiesced in an obligation to hold the benefits she received from the deceased's estate on the trust alleged.

POWERS OF ATTORNEY – deceased grants an enduring power of attorney under Conveyancing Act, s 163B to her daughter, the defendant – during the deceased's lifetime the daughter uses the power of attorney to loan money to herself from the deceased – daughter uses the loan monies to contribute to the acquisition of property – whether the daughter's conduct in effecting the loan was in circumstances that (i) are authorized under the power of attorney, or (ii) are otherwise in breach of her fiduciary duty to her mother, the deceased – whether the estate has an interest in the property purchased with the assistance of the loan - what is the value of the estate for the purposes of both the plaintiff's family provision claim and her secret trust claim. Legislation Cited: Power of Attorney Act 2003 Succession Act 2006, ss 57, 59 Cases Cited: Evans v Levy [2011] NSWCA 125 Drury v Smith [2012] NSWSC 1067 Mary Alice Hughes by her Tutor NSW Trustee & Guardian v Hughes [2011] NSWSC 729 In re Snowden [1979] Ch 528 McCormick v Grogan (1869) LR 4 HL 82 Ottaway v Norman [1972] Ch 698 Perochinsky v Kirschner [2013] NSWSC 400 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Spina v Conran Associates Pty Ltd; Spina v M & V Endurance Pty Ltd [2008] NSWSC 326 Taheri v Vitek (2014) 87 NSWLR 403 Voges v Monaghan & Anor (1954) 94 CLR 231 Category: Principal judgment Parties: Plaintiff: Kylie Anne Misek Defendant: Cheryl Patricia McBride Representation: Counsel: Plaintiff: L. Ellison SC Defendant: K. Burke