2486/03 JUDITH ANNE DULHUNTY v PATRICIA MARY DEWHIRST
JUDGMENT
1 HIS HONOUR: These proceedings concern the removal from an aged father's bank account of considerable sums of money. The allegation that those moneys were taken by a daughter without authority and in circumstances where they ought to be restored by that daughter to the estate of the father, now deceased ("the deceased"). Essentially the daughter alleges that the moneys were taken and, in so far as they were used by her for her own purposes, were so used with his authority and consent. That daughter is the defendant in these proceedings. The plaintiff is her sister, who was the deceased's only other child. There were heard, concurrently with these proceedings, proceedings brought by the plaintiff against the defendant as executor of the deceased's estate for provision under the Family Provision Act 1982 ("the FPA"). Although the evidence has been taken in both sets of proceedings, the parties have invited me to deliver judgment first in these proceedings, so that the extent of the estate is finally determined before I deal with the FPA proceedings.
2 The following facts are not disputed or are not substantially disputed and are easily found.
3 The deceased, Robert George Dulhunty, was born on 16 October 1917 and died on 8 August 2000 at the age of 82. He had two children, the defendant, who was born on 24 April 1947, and the plaintiff, who was born on 24 January 1949. It is clear from the evidence of both parties that the defendant had during their joint lives a much closer relationship with the deceased than with the plaintiff. It appears that in their youth the defendant was more accepting of her parents' wishes and the plaintiff more rebellious. The defendant lived with her parents until she married in 1968. She lived with her husband and had four children. In 1978, the deceased's wife and parties' mother committed suicide. The defendant's marriage broke up in 1979 and she returned with her children to live with her father in the family home at Ryde. She continued to live there until 1981, rendering the deceased domestic services and herself being afforded accommodation. In 1981, she moved back into her own home at Dudley, a suburb of Newcastle. In about 1987 or 1988, the defendant sold her home in Dudley, but at about that time started living with Vince Della-Bianca in premises of his, also in Dudley, which then became her home. She says that, between 1981 and 1998, she and her father lived between his home at Ryde and her home at Dudley spending considerable periods in each residence. She still performed domestic tasks for him and looked after him when he was ill. In about 1995, the deceased lost his driver's licence and the defendant did all the driving between Newcastle and Sydney, which had previously been shared between them. This did not change the pattern of alternation between Ryde and the defendant's home in Dudley.
4 During the 1990s, the defendant's health deteriorated. In 1997 and 1998, he was suffering from some dementia. However, no suggestion is made that his mental condition was such as to invalidate a power of attorney granted by him to a solicitor on 20 April 1998, his will made on the same day, or a power of attorney granted by him to the defendant on 23 September 1998. By his will, the deceased appointed the defendant his executor, gave the major benefit in the form of real estate to the defendant and the residue to his two children equally.
5 In 1998, the deceased also engaged in major real estate transactions. On 28 February he contracted to sell the Ryde property for some $750,000. On 18 March he bought 16 Goulburn Street, Dudley, ("Goulburn Street") for $447,000. It seems clear that the intent was for him to live closer to the defendant. On 20 May he completed the purchase of Goulburn Street and moved to live there full time. The defendant lived there with him part time, the other part of her time being spent with Mr Della-Bianca.
6 On settlement of the sale of the Ryde property, the surplus of the proceeds over what was necessary for the purchase of Goulburn Street was deposited into an account in the deceased's name with the Newcastle Permanent Building Society ("the account"). In August 1998, the deceased sold a property in Port Macquarie for $68,000 and the proceeds were also paid into the account, which then contained more than $300,000. At about the time that the surplus of the proceeds of the Ryde property was put into the account, the deceased made the defendant a signatory on the account with power to effect transactions by her sole signature. As I have said, on 23 September 1998 he granted a power of attorney to the defendant ("the power of attorney"). The power of attorney contained a clause 2 in the following terms:
"In the exercise of the authority conferred on him/her/them by Section 163B of the Conveyancing Act 1919, my attorney(s) is/are authorised to execute an assurance or other document or do any other act, whereby a benefit is conferred on him/her/them."