Despot v Registrar-General of NSW

[2013] NSWCA 313

NSW Court of Appeal

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Interrogate

Catchwords

1. Principal and Agent
2. › Power of attorney
3. › Irrevocability
4. › Power coupled with an interest
5. › Whether power granted as part of security
6. › Whether terms of power and security deed established purpose of securing repayment
7. › Powers of Attorney Act 2003 (NSW), ss 7, 8, 9, 11, 12, 13, 15, 16
1. Principal and Agent
2. › Power of attorney
3. › Fiduciary duties of donee
4. › Whether donee of revocable general power of attorney owed fiduciary duties to donor
5. › Conflict of interest
6. › Preferring interests of third party controlled by donee
1. Equity
2. › Breach of fiduciary duty
3. › Knowing receipt
4. › Liability of third party for knowing receipt of moneys paid in breach of fiduciary duty
5. › Whether building company liable to account for moneys received at direction of attorney in breach of duty
1. Appeal and New Trial
2. › Appeal
3. › New arguments on appeal
4. › Whether arguments not pleaded or made below may be raised on appeal
5. › Whether arguments could have been subject of evidence at trial
6. › Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
7. › Coulton v Holcombe (1986) 162 CLR 1

Quick Take

A general power of attorney will not be treated as irrevocable merely because it is executed contemporaneously with a security deed; the power must by its terms provide for its exercise to enforce rights under the security or to obtain repayment of secured moneys. The donee of a revocable general power of attorney owes full fiduciary duties to the donor, including the duty not to prefer the interests of a company controlled by the donee. Arguments based on knowing participation in breach of fiduciary duty must be pleaded and particularised and cannot be raised for the first time on appeal where they could have been the subject of evidence at trial.