Smith v Glegg

[2004] QSC 443

Supreme Court of Queensland

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Interrogate

Catchwords

1. Equity
2. › Undue Influence
3. › Presumption from relationship of parties
4. › Principal and attorney under enduring power of attorney
5. › Whether presumption arises where transaction not effected by exercise of attorney's powers
6. › Whether presumption rebutted
7. › Elderly plaintiff legally blind and wholly dependent on defendant
8. › Powers of Attorney Act 1998 (Qld), s 87
1. Equity
2. › Fiduciary Duty
3. › Attorney and principal
4. › Conflict of interest and duty
5. › Acceptance of gift of principal's only substantial asset
6. › Effect of conflict transaction clause in power of attorney
7. › Powers of Attorney Act 1998 (Qld), s 66, s 73
1. Equity
2. › Remedies
3. › Equitable compensation
4. › Availability for undue influence
5. › Whether equitable compensation available absent breach of fiduciary duty
1. Equity
2. › Remedies
3. › Equitable charge
4. › Tracing proceeds of breach of fiduciary duty
5. › Charge over property acquired with traceable proceeds

Quick Take

Section 87 of the Powers of Attorney Act 1998 (Qld) creates a presumption of undue influence in transactions between a principal and attorney (or the attorney's relations, business associates or close friends) regardless of whether the transaction was effected by the exercise of the attorney's powers under the power of attorney. A conflict transaction clause in a power of attorney authorising the attorney to enter into conflict transactions 'on behalf of' the principal does not affect the content of the fiduciary duty in transactions not involving the exercise of the attorney's powers. Equitable compensation is available as a remedy for undue influence even absent a breach of fiduciary duty.