Guirguis v Girgis [2020] NSWSC 1468

Guirguis v Girgis [2020] NSWSC 1468

The plaintiff acquired and managed properties in the defendant’s name as her attorney. On the evidence, there was no enforceable trust or beneficial interest in favour of the plaintiff; the arrangement was a familial one, with the defendant as registered proprietor and true owner. The defendant is entitled to insist on her ownership rights. In transferring a property to his wife for no consideration, the plaintiff as attorney acted in breach of fiduciary duty. The defendant is entitled to accounting for the value of the property transferred, but the wife’s title is indefeasible due to her status as a volunteer with no notice of breach. Orders will be made declaring the parties’ respective...

Jurisdiction
Australia
Judgment Date
23 October 2020
Procedural Posture
Equity Proceedings (principal Judgment) / Final Judgment (orders Reserved for Further Consideration)
Outcome
Declarations and orders granted. Plaintiff held to have no proprietary interest; caveats to be withdrawn; accounting reserved for further hearing; costs as specified; cross-claims otherwise dismissed.
Legal Topics
['power of Attorney' 'fiduciary Duties' 'resulting and Constructive Trusts' 'indefeasibility of Title' 'accounting by Fiduciary' 'property Transactions and Trusts']
['equity' 'agency' 'property Law'] ['power of Attorney' 'fiduciary Duties' 'resulting and Constructive Trusts' 'indefeasibility of Title' 'accounting by Fiduciary' 'property Transactions and Trusts']

Case Brief

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Procedural Posture

Equity Proceedings (principal Judgment) / Final Judgment (orders Reserved for Further Consideration)

Legal Issues

  1. 1 ['Whether home units purchased by the plaintiff as attorney for the defendant were beneficially owned by plaintiff or held for defendant' 'Whether the plaintiff as attorney breached fiduciary obligations when transferring property to his wife' 'Whether the plaintiff is accountable to the defendant for dealings effected under the power of attorney, including self-dealing transactions' 'Whether defendant provided funding for purchases or acted as true owner']

Ratio Decidendi

The plaintiff acquired and managed properties in the defendant’s name as her attorney. On the evidence, there was no enforceable trust or beneficial interest in favour of the plaintiff; the arrangement was a familial one, with the defendant as registered proprietor and true owner. The defendant is entitled to insist on her ownership rights. In transferring a property to his wife for no consideration, the plaintiff as attorney acted in breach of fiduciary duty. The defendant is entitled to accounting for the value of the property transferred, but the wife’s title is indefeasible due to her status as a volunteer with no notice of breach. Orders will be made declaring the parties’ respective...

Court Disposition

Declarations and orders granted. Plaintiff held to have no proprietary interest; caveats to be withdrawn; accounting reserved for further hearing; costs as specified; cross-claims otherwise dismissed.

Orders

  • ['Declare plaintiff has no right, title or interest in 3/25-35 Kingsway, Cronulla or 8/53-57 West Street, Hurstville.' 'Order withdrawal of caveats AM670605 and AM670606.' 'Declare defendant has no right, title or interest in 9/25-35 Kingsway, Cronulla.' 'Declare plaintiff breached fiduciary duty by transferring...