Turner v O’Bryan-Turner [2021] NSWSC 5

Turner v O’Bryan-Turner [2021] NSWSC 5

The 2010 and 2015 asset protection and mortgage transactions (including the promissory notes and associated loans) were invalid for non-compliance with statutory requirements, not properly executed, and vitiated by undue influence and unconscionable conduct. Benefit of these transactions cannot be retained. The unregistered mortgages and loan agreements are inoperative. Wendy, acting under power of attorney, was not empowered to transfer John's real property to herself and her sons, breaching her fiduciary duty; however, David and Karl were not liable as recipients/accessories due to lack of relevant knowledge. Appropriate relief is declaration of invalidity, setting aside transactions,...

Jurisdiction
Australia
Judgment Date
12 January 2021
Procedural Posture
Principal Judgment (consolidated Two Proceedings) / Final Judgment With Consequential Orders Pending
Outcome
2019 Proceeding: Orders for declaration of invalidity and setting aside of asset protection/loan/mortgage documents. 2017 Proceeding: Order for parties to submit proposals for charge over remaining properties; otherwise proceeding dismissed.
Legal Topics
['fiduciary Duties' 'undue Influence' 'unconscionable Dealing' 'agency' 'power of Attorney' 'breach of Trust' 'rule in Barnes V Addy' 'indefeasibility' 'asset Protection Trusts']
['equity' 'property Law'] ['fiduciary Duties' 'undue Influence' 'unconscionable Dealing' 'agency' 'power of Attorney' 'breach of Trust' 'rule in Barnes V Addy' 'indefeasibility' 'asset Protection Trusts']

Case Brief

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Procedural Posture

Principal Judgment (consolidated Two Proceedings) / Final Judgment With Consequential Orders Pending

Legal Issues

  1. 1 ['Validity of 2010 and 2015 asset protection transactions (Bloodline™ Trusts)' 'Efficacy of promissory notes and mortgages' 'Whether undue influence or unconscionable conduct tainted these transactions' 'Authority and conduct of attorney in property transfers' 'Breach of fiduciary duty and fraud on power' 'Recipient/accessory liability under Barnes v Addy']

Ratio Decidendi

The 2010 and 2015 asset protection and mortgage transactions (including the promissory notes and associated loans) were invalid for non-compliance with statutory requirements, not properly executed, and vitiated by undue influence and unconscionable conduct. Benefit of these transactions cannot be retained. The unregistered mortgages and loan agreements are inoperative. Wendy, acting under power of attorney, was not empowered to transfer John's real property to herself and her sons, breaching her fiduciary duty; however, David and Karl were not liable as recipients/accessories due to lack of relevant knowledge. Appropriate relief is declaration of invalidity, setting aside transactions,...

Court Disposition

2019 Proceeding: Orders for declaration of invalidity and setting aside of asset protection/loan/mortgage documents. 2017 Proceeding: Order for parties to submit proposals for charge over remaining properties; otherwise proceeding dismissed.

Orders

  • ['Declare First and Second Promissory Notes void and of no effect.' 'Declare Owen John Turner owes no moneys to Allawah Pastoral Pty Ltd pursuant to the loan agreements.' 'Declare unregistered mortgages are inoperative and do not secure any moneys.' 'Order delivery up of unregistered mortgages for cancellation.'...