Moser v Ky [2021] NSWSC 1634

Moser v Ky [2021] NSWSC 1634

The plaintiff had capacity on 8 March 2021 and executed clear written revocations of the enduring power of attorney and enduring guardianship, with no formal statutory requirement preventing their effectiveness. The 2020 payments were established as having been paid but were not shown to have resulted from undue influence or breach of fiduciary duty, and the presumption that they were gifts was not rebutted. The $48,510 payment was different because the first defendant, knowing the plaintiff was lonely and vulnerable, had used the power of attorney to obtain practical control over the plaintiff's funds through a joint ANZ account and then demanded payment as the price of giving the...

Jurisdiction
Australia
Judgment Date
15 December 2021
Procedural Posture
Equity Proceedings Concerning Revocation of Powers of Attorney and Enduring Guardianship, Undue Influence, Unconscionable Conduct, Breach of Fiduciary Duty and Restitution / Principal Judgment After Hearing in the Expedition List
Outcome
Declarations made that the powers of attorney and guardianship were validly revoked; the plaintiff recovered the $48,510 payment with interest; the claim for the 2020 payments was not awarded.
Legal Topics
['power of Attorney Revocation' 'enduring Guardianship Revocation' 'equitable Compensation' 'presumption of Gift' 'undue Influence' 'unconscionable Conduct' 'fiduciary Duty' 'self Represented Litigants']
['equity' 'agency'] ['power of Attorney Revocation' 'enduring Guardianship Revocation' 'equitable Compensation' 'presumption of Gift' 'undue Influence' 'unconscionable Conduct' 'fiduciary Duty' 'self Represented Litigants']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Revocation of Powers of Attorney and Enduring Guardianship, Undue Influence, Unconscionable Conduct, Breach of Fiduciary Duty and Restitution / Principal Judgment After Hearing in the Expedition List

Legal Issues

  1. 1 ['Whether the plaintiff validly revoked the enduring power of attorney and enduring guardianship on 8 March 2021.' 'Whether payments made by the plaintiff to the first defendant in 2020 were gifts or were procured by undue influence, unconscionable conduct, breach of fiduciary duty or otherwise recoverable.' 'Whether the $48,510 paid to the first defendant in 2021 was procured by undue influence and/or unconscionable conduct and should be repaid.']

Ratio Decidendi

The plaintiff had capacity on 8 March 2021 and executed clear written revocations of the enduring power of attorney and enduring guardianship, with no formal statutory requirement preventing their effectiveness. The 2020 payments were established as having been paid but were not shown to have resulted from undue influence or breach of fiduciary duty, and the presumption that they were gifts was not rebutted. The $48,510 payment was different because the first defendant, knowing the plaintiff was lonely and vulnerable, had used the power of attorney to obtain practical control over the plaintiff's funds through a joint ANZ account and then demanded payment as the price of giving the...

Court Disposition

Declarations made that the powers of attorney and guardianship were validly revoked; the plaintiff recovered the $48,510 payment with interest; the claim for the 2020 payments was not awarded.

Orders

  • ['Declare that the Powers of Attorney and Guardianship were validly revoked by the plaintiff on 8 March 2021.' 'The first defendant is to take all necessary steps to remove his name from, and renounce any authority to operate, any bank account in the name of the plaintiff, including any account held jointly with the...