Smith v Smith [2017] NSWSC 408

Supreme Court New South Wales

Medium Neutral Citation: Smith v Smith [2017] NSWSC 408 Hearing dates: 24, 25 and 26 November 2015; 2 and 3 February 2016; and written submissions culminating in written submissions dated 1 December 2016 Decision date: 13 April 2017 Jurisdiction: Equity Before: Lindsay J Decision: Subject to allowing the parties an opportunity to be heard as to orders to be made:

(1) The First Defendant (the holder of an enduring power of attorney on behalf of her husband, an incapable person, now deceased) held liable to account to the estate of the deceased for her mismanagement of his property in breach of fiduciary obligations.

(2) The second defendant (executor of the deceased's estate) held not liable, in devastavit, for wilful default in performance of his duties, for a failure or refusal to institute proceedings against the first, third and fourth defendants.

(3) Declaration to be made that the first, third and fourth defendants hold on trust for the estate of the deceased (prima facie, for the benefit of the plaintiffs as beneficiaries of the estate) property acquired by them in the names of the third and fourth defendants, using funds of the deceased applied by the first defendant in breach of fiduciary obligations she owed to the deceased as his attorney

(4) Further consideration to be given to questions of remedy, and consequential relief, to be granted. Catchwords: FIDUCIARY DUTIES — Scope of power of attorney – Absence of authority to give gifts or to confer benefits on others– Attorney bound to act in best interests of principal without unauthorised personal benefits – Attorney bound to act within limits of authority as defined by instrument of appointment.