Despot v Registrar-General of NSW [2013] NSWCA 313

Despot v Registrar-General of NSW [2013] NSWCA 313

The power of attorney was not irrevocable under its terms and context; Mr Maalouf owed fiduciary duties to Mr Despot and breached them by preferring interests of Sky Constructions, resulting in judgment for excess payments to Sky Constructions. Arguments and claims not pleaded or made at trial regarding Stelli, Mrs Azzi or Mr Carbone could not be advanced for the first time on appeal. The amount owed by Stelli was $91,086, not the larger sum sought by Mr Despot, based on findings and conduct at trial.

Jurisdiction
Australia
Judgment Date
20 September 2013
Procedural Posture
Appeal / Court of Appeal, New South Wales, Post Trial
Outcome
Appeal allowed in part; cross-appeal dismissed; orders varied.
Legal Topics
['power of Attorney' 'fiduciary Duties' 'specific Performance' 'quantum Meruit' 'misleading or Deceptive Conduct' 'building Contract' 'vendor Finance' 'principal and Agent' 'apparent Authority']
['property Law' 'contract Law' 'equity' 'agency Law'] ['power of Attorney' 'fiduciary Duties' 'specific Performance' 'quantum Meruit' 'misleading or Deceptive Conduct' 'building Contract' 'vendor Finance' 'principal and Agent' 'apparent Authority']

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Procedural Posture

Appeal / Court of Appeal, New South Wales, Post Trial

Legal Issues

  1. 1 ['Whether the power of attorney granted to Mr Maalouf was irrevocable or conferred fiduciary duties' "Whether Mr Despot's arguments could be advanced for the first time on appeal" 'Whether Mr Maalouf breached fiduciary duties in dealing with proceeds of sale' 'Whether Stelli and Mrs Azzi knew or assisted breaches of fiduciary duty' 'Whether Mr Carbone breached duty of care or engaged in misleading or deceptive conduct' 'Quantum meruit claim of Sky Constructions' 'Appropriate conditions for specific performance of contract for sale']

Ratio Decidendi

The power of attorney was not irrevocable under its terms and context; Mr Maalouf owed fiduciary duties to Mr Despot and breached them by preferring interests of Sky Constructions, resulting in judgment for excess payments to Sky Constructions. Arguments and claims not pleaded or made at trial regarding Stelli, Mrs Azzi or Mr Carbone could not be advanced for the first time on appeal. The amount owed by Stelli was $91,086, not the larger sum sought by Mr Despot, based on findings and conduct at trial.

Court Disposition

Appeal allowed in part; cross-appeal dismissed; orders varied.

Orders

  • ['Application of first respondent (Mr Maalouf) for leave to file cross-appeal dismissed.' 'Appeal allowed in part.' 'Set aside order 2 of the Court below made on 15 April 2011, but only to the extent that it applies to the eighth defendant (Sky Constructions).' 'Judgment for the appellant against Sky Constructions...