Guirguis v Girgis

Introduction

1. In proceedings commenced by summons, and continued on pleadings, the plaintiff claims relief designed to establish that the home units purchased by him as attorney for the defendant, and in her name, were at all times beneficially owned by him alone. His statement of claim was met by a statement of cross claim filed by the defendant, and subsequently amended, which named him and his wife as cross defendants.
2. The plaintiff and the defendant were both born in Egypt. The plaintiff was born in 1933; he is currently aged 87 years. The defendant was born in1930; she is currently aged 90 years. The plaintiff migrated to Australia in about 1970. The defendant has lived all her life in Egypt but, she says, she long harboured a desire to move to Australia with her family.

The Plaintiff and his Family

1. The plaintiff has been twice married.
2. He was first married in about 1969. His then wife followed him to Australia in about 1971. Their marriage ended in divorce. Their acrimonious property disputation occupied the attention of Australian courts (the Local Court of NSW exercising federal jurisdiction and the Family Court of Australia) between 1988-1996 or thereabouts. The plaintiff contends that this litigation, literally, bankrupted him (between 1996 and 1999) - leaving him with little but undeclared, unquantified cash reserves which, he contends, he used in 1995 to purchase (in the name of the defendant) two home units in Cronulla.
3. The plaintiff met his second, and current, wife (the second cross defendant), a Syrian by birth, in Egypt. They were married in October 1997. They have resided as a couple in Australia since about March 1998.
4. The plaintiff's evidence is that he suffered a stroke "in or about 2000" as a result of which he retired from his job as a service station manager. Subpoenaed records disclose that he received the aged pension between 13 July 1998 and 21 March 2019. The defendant relies upon his receipt of the pension, together with declarations of impecuniosity made by the plaintiff in his family law litigation and in a statement of affairs filed in his bankruptcy, to contend that the plaintiff was unable to fund the purchase of property without the financial assistance she says (and he denies) she provided to him in the form of cash.
5. It is undisputed that, in his purchase and management of property in the name of the defendant pursuant to her power of attorney, the plaintiff from time to time borrowed money from financial institutions, in her name, secured by mortgages registered on the title to one or more of the properties held in her name, which mortgages were serviced by rents received from tenants of the properties. After payment of expenses, the plaintiff says, he and the second cross defendant "lived off" the income earned from the properties.
6. The plaintiff has three children by his first marriage, none by his second. He is estranged from his children.
7. No member of his first family plays a role in the present proceedings beyond his explanation that, having (as he sees it) lost all his property to his first wife upon dissolution of their marriage, he was anxious thereafter to structure his financial affairs in a way that would protect his assets from any future wife or creditors.

The Defendant and her Family

1. The defendant was married in 1953 and widowed in September 2003. She and her husband had four children, respectively born in 1958, 1959, 1960 and 1962.
2. Those children play an incidental part in the proceedings. In one case (that of the eldest child, Violett), that is principally because of interaction between her and her uncle, the plaintiff, when she met him on a trip to Australia in December-January 1998/1999. For the most part, the significance of the defendant's children is that, on the defendant's evidence, she contemplated that any property acquired on her behalf in Australia would pass on her death to her children.

THE POWER OF ATTORNEY

1. The power of attorney executed by the defendant in favour of the plaintiff, and registered in the Land Titles Office as Book 4064 No. 443, was in the following terms (omitting the execution clause and the attached certificate under section 163F(2) of the Conveyancing Act 1919 NSW, and redacting the parties' addresses): "General Power of Attorney Part 1 THIS POWER OF ATTORNEY is made on the MONDAY day of 28 Feb. 1994. by OLIGA AZIZ GIRGIS [the defendant] of … EGYPT, …. 1. I appoint MICHEL FAHMY AZIZ GUIRGUIS [the plaintiff] of P.O. Box … Miranda, New South Wales, 2228 to be my attorney (where more than one jointly and/or severally) to exercise, subject to any conditions and limitations specified in Part 2 of this Instrument, the authority conferred on him by Section 163B of the Conveyancing Act, 1919, to do on my behalf anything I may lawfully authorise an attorney to do. 2. In the exercise of the authority conferred on him by Section 163B of the Conveyancing Act, 1919, my attorney is authorised to execute an assurance or other document, or do any other act, whereby a benefit is conferred on him. 3. This general power of attorney is given with the intention that it will continue to be effective notwithstanding that after its execution I suffer loss of capacity through unsoundness of mind. Part 2 CONDITIONS AND LIMITATIONS NIL"
2. The fact that the power of attorney included, as clause 2, a "benefits clause" would have protected third parties dealing with the plaintiff from a need to inquire whether he was acting for the benefit of the defendant (Taheri v Vitek (2014) 87 NSWLR 403 at [34]-[36], [115]-[116] and [130]), but such a clause does not, of itself, absolve an attorney from a need to comply with fiduciary obligations owed to the principal: Ward v Ward (No. 2) [2011] NSWSC 1292 at [3]; Estate Tornya, Deceased [2020] NSWSC 1230.
3. The power of attorney was revoked by the defendant no later than 24 July 2017, upon which date her solicitors unequivocally communicated to the plaintiff's solicitors the fact of revocation. An earlier letter (dated 17 July 2017) to the same effect erroneously referred to a power of attorney thought by the defendant's solicitors to have been granted by her to the second cross defendant.

THE PARTIES' COMPETING VERSIONS OF THE CONVERSATION WHICH GENERATED THE POWER OF ATTORNEY

1. The parties agree that the power of attorney granted by the defendant to the plaintiff had its origins in a conversation that occurred shortly before the date of its execution.
2. Paragraphs 29-30 of the plaintiff's affidavit (sworn on 8 October 2017) are in the following terms, with emphasis added: "29. In or about 1993 I contacted my sister who resides in Egypt. My sister and I, after conversing generally about her and the extended family overseas as well as how I was here, we had the following conversation: I said: Sister I need to ask a favour of you, I know I can ask you because I trust you. She said: Yes brother ask. I said: I want to remarry in the future and am also looking at purchasing some property soon. She said: Yes. I said: I do not want the same thing to happen to me again like what happened with my last wife, I don't want to work hard and lose everything. She said: Ok but how can I help you in this situation. I said: Everything that I buy in future I will put in your name, that way if anything was to happen to me, I do not own anything and nobody can take anything from me because I will have nothing in my name it will all be in yours and they can't take anything from you. She said: Ok you can do this. I said: Yes, I will have my lawyers in Australia draft a Power of Attorney that allows me to buy, sell and rent property in Australia under your name, I will send this to you and all you need to do is sign it before a Solicitor in Egypt and send it back. I will then register it in the Australian Government. She said: OK brother of course I will help you but will this affect me, can it harm me in anyway. I said: No sister, all I am doing is using your name I will be responsible for everything all the money and everything will come from me you don't have to do anything, it will not affect you in anyway. She said: Ok brother I will do this for you, what can happen to me, I am never coming to Australia anyway, they can't get me from here. I said: Exactly but you know I would never do anything to harm you in anyway. She said: I know brother I know. 30. After the above conversation, in 1993/1994 I went to the Solicitors Willis & Bowring located in Miranda and instructed them to draft a general power of attorney, with Oliga Aziz Girgis as the Principal nominating me as the attorney…."
3. Paragraphs 11-13 of the defendant's affidavit (sworn on 26 September 2018) are in the following terms, with emphasis added: "11. We [the defendant and her late husband, Mina] then sold real estate, namely a farm 4000sqm and a house we owned in Egypt so we can use those funds to invest in realty in Australia, in anticipation of us travelling there. 12. In or about December 1993, I entered into an agreement with my brother, Michel Fahmy Aziz Guirguis, the Plaintiff during a telephone discussion. 13. In or about late 1993, I recall I had a telephone discussion with Michel with words to the following effect: Michel said: "Hello Oliga, how are you? How is the family…" I said: "Michel, I need to discuss something important with you. You know Mina and I have wish to migrate to Australia and I need your help by purchasing some properties for me in my name. That will help with my application with immigration department to move to Australia. They will be the place where my children and I will live. Michel said: "no problem, send me the money, and I will make the arrangements for you". I said: I really appreciate it, please buy the properties nearby each other, so my children can live near each other and close to me."
4. The defendant and (in an affidavit sworn on 15 October 2018) her daughter have deposed to subsequent conversations with the plaintiff about financial matters. This particular conversation (as recounted by the defendant) is her explanation of the origins of the power of attorney she granted to the plaintiff, but it is not the fully story of her agreement with the plaintiff. On her evidence, she was from time to time involved with the plaintiff in the making of property management decisions.

IDENTIFICATION OF PROPERTIES PURCHASED, AND PROPERTY DEALINGS, WITH THE POWER OF ATTORNEY, BASED ON PUBLIC RECORDS

Introduction

1. Between December 1995 and November 2004 or thereabouts, using the power of attorney granted to him by the defendant, the plaintiff purchased in the name of the defendant, six strata title home units: two at Cronulla in 1995; two at Sylvania in 1997; and two at Hurstville in 2003/2004. Upon registration of memoranda of transfer in her favour, the defendant acquired legal title to the property transferred.
2. All the units, bar one at Cronulla, were purchased as investment properties and, following their purchase, they were rented out by the plaintiff, generally in the name of the defendant but always on his authority as her attorney.
3. As a general proposition, the plaintiff managed the home units on a day-to-day basis without reference to the defendant. He received rental payments, borrowed money on the security of home units purchased in the defendant's name, and applied rental receipts in the payment of outgoings, and in repayment of loans borrowed from financial institutions to fund purchases. All this appears to have been done, generally, in the name of the defendant, relying upon the power of attorney held by the plaintiff. As the defendant's attorney, the plaintiff also lodged income tax returns with the Australian Taxation Office in her name and paid assessments issued consequentially upon those returns.
4. The plaintiff has not provided a full accounting of his dealings as the defendant's attorney. Nor has he disclosed how much of the property and income attributed to the defendant was applied by him (as, on his case, he was entitled to do) in payment of his living expenses.
5. The one home unit, at Cronulla, not dedicated as an investment property became (following the second cross defendant's arrival in Australia in March 1998) the matrimonial home of the plaintiff and the second cross defendant. In her statement of cross claim, the defendant acknowledges this with an allegation that, as consideration for the plaintiff's time and trouble in managing the properties purchased in her name, she agreed that he would have "the right to reside in one of the properties purchased provided he met the cost of maintenance and outgoings on the property he resided in".
6. On the defendant's case, the plaintiff stepped outside this concession when, in or about August 2016, he (without the knowledge or approval of the defendant) transferred the matrimonial home to the second cross defendant for no consideration.
7. Of the other five home units, three have been sold. One of the Sylvania units was sold in or about 2012 to fund the annulment of a bankruptcy of the defendant to which the plaintiff, by a failure to pay strata fees in a timely manner, exposed her in 2010. The other Sylvania unit was sold in or about 2014. One of the Hurstville units was sold in mid-2017.
8. Leaving aside the Cronulla unit occupied by the plaintiff and the second cross defendant as their matrimonial home, only two of the six home units purchased in the name of the defendant remain registered in her name. One of those is at Cronulla. The other is at Hurstville.
9. When, in mid-2017, the defendant called upon the plaintiff for an accounting of his dealings as her attorney, he, in August of that year, wrote her a personal letter of protest (consistent with the case he makes in these proceedings) and lodged a caveat against each of those properties. The caveats bear the dealing numbers AM670605 and AM670606. They are not reproduced in the evidence. The defendant denies receiving the plaintiff's "personal letter" otherwise than through her solicitor.
10. The defendant responded to the caveats by serving lapsing notices on 21 September 2017 which, in turn, led to the plaintiff's commencement of these proceedings by a summons filed on 9 October 2017. On 11 October 2017 the Court, upon the plaintiff giving the usual undertaking as to damages, extended the operation of the caveats until further order, and ordered that the proceedings proceed by way of pleadings.
11. The terms upon which the six properties were purchased by the plaintiff in the name of the defendant are, in some respects, not consistently disclosed by the evidence. In part, that may be because the plaintiff purchased the Cronulla units (from a developer, Mr Barton, called by the plaintiff to give evidence in these proceedings) in cash and, in part, because contemporaneous conveyancing records have not made their way into evidence.
12. In what follows, the purchase of the six properties and subsequent dealings with them are summarised by reference to public records adduced in evidence.
13. The properties are identified in the chronological order of their purchase.

The Cronulla Properties

1. The property known as 3/25-35 Kingsway, Cronulla (being the land contained in Folio identifier 3/SP50782) was purchased from Citisun Pty Ltd (a company of which Mr Barton was a director) for a consideration of $200,000. The plaintiff's evidence (corroborated by a vague memory on the part of Mr Barton) is that the purchase price was paid in cash.
2. The memorandum of transfer in favour of the defendant (dealing number 763517) was dated 5 December 1995 and registered on the title of the property on 13 December 1995. The date upon which the plaintiff contracted to purchase the property is not the subject of precise evidence, but it may have been early in 1994. Mr Barton's evidence is that an exchange of contracts was delayed for about two weeks by the plaintiff's need to arrange for the defendant's power of attorney to be signed.
3. An historical search of the title records registration of more than one mortgage after registration of the memorandum of transfer in favour of the defendant. The mortgages are not in evidence. The first of them (dealing number 0903784) was registered on 9 February 1996, nearly two months after completion of the purchase, perhaps providing (as the plaintiff contends) corroboration of his evidence that the purchase price was paid in cash.
4. The property known as 9/25-35 Kingsway, Cronulla (being the land contained in Folio identifier 9/SP50782) was simultaneously purchased from Citisun Pty Ltd, also for a consideration of $200,000, said by the plaintiff (with the corroborative evidence of Mr Barton's vague memory) to have been paid in cash.
5. The memorandum of transfer in favour of the defendant (dealing number 763515) was also dated 5 December 1995 and registered on the title on 13 December 1995. The date upon which the plaintiff contracted to purchase the property is not the subject of precise evidence; but, as recorded above, it may have been early in 1994, given Mr Barton's recollection of proximity between an exchange of contracts and the plaintiff's need to get the defendant's power of attorney.
6. An historical search of the title records several mortgages (not in evidence), the first of which (dealing number 0903784) was, as earlier recorded, registered on 9 February 1996.
7. By memorandum of transfer AK690858 (registered on 22 August 2016), title to the property was transferred by the plaintiff (acting as attorney for the defendant) to the second cross defendant without consideration.

The Sylvania Properties

1. The property known as 10/120-122 Port Hacking Road, Sylvania (being the land contained in Folio identifier 10/SP53988) was purchased from Silverdale Units Pty Ltd for a consideration of $215,000. The 2013/2014 income tax return of the defendant, lodged by the plaintiff, recorded that the purchase price of the unit was $283,000, the figure taken into account in calculation of the defendant's liability for capital gains tax upon sale of the unit.
2. The memorandum of transfer in favour of the defendant (dealing number 3425712) was dated 12 September 1997 and registered on 19 September 1997. An incomplete copy of the contract of purchase in evidence is undated.
3. An historical search of the title records the registration of mortgage number 3425713 on the same date, 19 September 1997.
4. A sequestration order having been made against the defendant on 6 October 2010, this property was sold by the defendant's trustee in bankruptcy as the means by which on 24 September 2012 the defendant's bankruptcy was annulled. The plaintiff's evidence is that the sale price was about $500,000, providing a surplus of $125,000 which, he says, he applied to reduce the mortgage debt on the Hurstville properties. The defendant's 2013/2014 tax return, prepared on the plaintiff's instructions, recorded a sale price of $595,000.
5. An historical search of the title records registration of memorandum of transfer AI183843 on 12 November 2013, which I infer is the transfer giving effect to the trustee's sale.
6. The property known as 10/112-118 Port Hacking Road, Sylvania (being the land contained in Folio identifier 10/SP55898) was purchased from Silverdale Units Pty Ltd for a consideration of $220,000. In some documentation the property is described as Unit 20 rather than No. 10.
7. The memorandum of transfer in favour of the defendant (dealing number 3677332) was dated 5 December 1997 and registered on 18 December 1997. An incomplete copy of the contract of purchase in evidence is undated.
8. An historical search of the title records the registration of a mortgage (dealing number 3677333) on 18 December 1997.
9. An historical search of the title records registration of memorandum of transfer dealing number AI183843 on 22 November 2013, which accords with the plaintiff's evidence that the property was sold in or about 2014.

The Hurstville Properties

1. The property known as 8/53-57 West Street, Hurstville (being the land contained in Folio identifier 8/SP73590) was purchased from Loview Pty Ltd (a company of which Mr Barton was a director) for a consideration of $535,000.
2. The memorandum of transfer in favour of the defendant (dealing number AB88810) bears no date but it was registered on 11 November 2004.
3. It and the other Hurstville property purchased by the plaintiff appear to have been the subject of contracts for purchase exchanged in August 2003. There is a passing reference to such a possibility in the evidence, but no contract.
4. For completeness, I record that, in assorted papers produced to the Court by the second cross defendant, there is a single, unexplained page (entitled "Price List") which records an entry to the effect that each of the properties was "sold" for $625,000. Neither the second cross defendant nor Mr Barton having been cross examined on that document, I disregard it. I proceed instead on the basis that the price of each property was $535,000 as recorded in the memoranda of transfer registered by the Registrar General.
5. An historical search of the title records registration of mortgage AB88812 on 11 November 2004, next in sequence after registration of the memorandum of transfer in favour of the defendant upon purchase of the other Hurstville unit.
6. The property known as 9/53-57 West Street, Hurstville (being the land contained in Folio identifier 9/SP73590) was also, simultaneously, purchased from Loview Pty Ltd for $535,000.
7. The memorandum of transfer in favour of the defendant (dealing number AB88811) bears no date, but was registered on 11 November 2004, immediately before registration of registered mortgage AB88812.
8. The property was sold at auction on 3 June 2017 for $1,000,040. The sale was completed on 19 July 2017, followed by registration of memorandum of transfer AM603137 on 31 July 2017.

ANCILLARY MATTERS, INCLUDING CONVERSATIONS WITHIN THE FAMILY

1. Although the chronology of her affidavit confuses the times at which the Cronulla and Sylvania properties were purchased, at some point the defendant says she had a telephone conversation with the plaintiff in which she said to him words to the effect (with emphasis added): "And as we agreed, you can live in 9/25-35 Kingsway, Cronulla [rather than renting it out]". She does not say when that agreement was made or its terms. She does, however, concede that in 2011 she made a will leaving the plaintiff and his wife a right of residence in the Unit. The nature and duration of any continuing right of residence they may have had (but for transfer of the Unit to the plaintiff's wife) remains to be clarified.
2. At least once, and possibly twice, in 2010 the defendant (on her own evidence) told the plaintiff to sell property to pay down debt. That evidence does not necessarily corroborate the plaintiff's version of the disputed 1993 conversation, but it is consistent with that version and it finds no reflection in the defendant's version. 10/120-122 Port Hacking Road, Sylvania was sold by the defendant's trustee in bankruptcy in 2011, leaving a surplus which (on the plaintiff's evidence) was used to pay down debt on the Hurstville properties. Not until 2013 or thereabouts did the plaintiff sell 10/112-118 Port Hacking Road, Sylvania, and it was not until 2017 that he sold 9/53-57 West Street, Hurstville. What happened to the proceeds of the first of his two sales is unexplained by the plaintiff's affidavit, but he deposes that the proceeds of the second sale were "used to pay down the home loans and to pay other outstanding taxes that were overdue". For present purposes, the point to be made is that the defendant appears to have agreed, or at least acquiesced in the proposition, that it was open to the plaintiff to sell property acquired in her name if and as necessary to discharge debt incurred in the acquisition of property in her name.
3. Various conversations between the plaintiff and the defendant, as recorded in the defendant's affidavit, relate, inter alia, to: (a) the plaintiff's application of rent receipts in payment of loans borrowed on the security of properties purchased; (b) the fact that the plaintiff had allowed the defendant to become bankrupt, the defendant's inability to send him money at that time, her direction to him instead to sell one of the properties (10/120-122 Port Hacking Road, Sylvania) to pay outstanding debts and his advice to her that her bankruptcy would preclude her from migrating to Australia; (c) the prospect that the properties would, in due course, pass to the defendant's children; and (d) the plaintiff's request that the defendant execute a power of attorney in favour of the second cross defendant and a will recognising an on-going right of residence in his favour in respect of 9/25-35 Kingsway, Cronulla.
4. The defendant's affidavit also records a telephone conversation with the second cross defendant (disputed by the second cross defendant) in which, the defendant says, she was told that the plaintiff was suffering from dementia and that, accordingly, the second cross defendant proposed to send to her (as occurred) a draft power of attorney in favour of the second cross defendant and a will for the defendant to sign, which she did not.
5. I note, in passing, that the defendant's affidavit reverses the order in which the Cronulla and the Sylvania properties were purchased. She erroneously attributes purchase of the Sylvania units to December 1995 and purchase of the Cronulla units to September 1997. In fact, the Cronulla units were purchased in about December 1995 and the Sylvania units were purchased in about September 1997. The affidavit correctly attributes purchase of the Hurstville units to November 2004 or thereabouts.
6. The affidavit of the defendant's daughter, Violett, corroborates the evidence of the defendant insofar as she gives evidence of: (a) the defendant's delivery of a package (implicitly containing approximately $100,000) to her uncle Gergis for delivery to the plaintiff; (b) her delivery on behalf of the defendant, to the plaintiff, of an envelope (containing $50,000 and $US10,000) in December 1998; and (c) the plaintiff, at her request, at that time showing her properties owned by the defendant in or about Cronulla.
7. Having sworn his own affidavit on 8 October 2017, the plaintiff swore no affidavit in reply to those of the defendant (sworn 26 September 2018) and her daughter (sworn 15 October 2018). He did not swear an affidavit specifically denying the defendant's version of their initial, 1993 telephone conversation, evidence of subsequent conversations between himself and one or another of the defendant and his niece, or evidence of particular payments of cash to him.
8. The absence of any affidavit in reply from the plaintiff cannot readily be explained on the basis that he had become incapable of managing his affairs. His lawyers did not disclose his incapacity until, at the commencement of the final hearing, an application was made by the second cross defendant to be appointed as his tutor. She, for her part, denied ever telling the defendant (as the defendant said occurred in 2016) that the plaintiff was "sick and suffering from dementia". The plaintiff's affidavit sworn 8 October 2017 gives no hint of incapacity, although it refers to his ill health and retirement "in or about 2000", and his "worsening health" in August 2016 at the time he transferred the matrimonial home unit at Cronulla to his wife. Nor is there any hint of incapacity in his statement of claim, verified by his affidavit of 31 October 2017, or in the Defence to Cross Claim verified by him and his wife on 23 May 2019. He appears to have had ample opportunity to swear an affidavit in reply to the affidavits of his sister and niece.

THE DEFENDANT'S DISPUTED EVIDENCE OF PAYMENTS TO THE PLAINTIFF

1. The defendant contends, and the plaintiff denies, that, consequentially upon her execution of the power of attorney, she delivered, or caused to be delivered, to the plaintiff, cash instalments (totalling $350,000 in Australian dollars together with $US10,000) as follows: 1. approximately $100,000 in or about early 1994, said to have been delivered to the plaintiff by a now-deceased brother of the plaintiff and the defendant, Guirguis Fahmy Aziz. 2. $100,000 in or about July 1997, said to have been delivered by the defendant to the plaintiff personally when the plaintiff visited Egypt (which the plaintiff says he did in or about October 1997). 3. $50,000 and $US10,000 in or about December 1998, said to have been delivered to the plaintiff by the defendant's daughter Violett when she visited Sydney. 4. approximately $100,000 in or about 2002, said to have been delivered by the defendant to the plaintiff personally when he visited Egypt (which he says he did, with his wife, shortly after his retirement and which she says they did for several months in or about mid-2001).
2. It is common ground that, when the plaintiff met the defendant in Egypt in or about 2002, he showed her papers (he says, "all the papers") relating to the properties he had purchased in Australia in her name. In his affidavit, he says he did this to be transparent and to give her peace as to what he had done in her name. In her affidavit, she recalls him having given her copies of the certificates of title for four properties. Nevertheless, on her evidence, she had sufficient peace of mind to give him approximately $100,000.
3. The defendant's evidence is that "in or about 2010" the plaintiff called her by telephone with a request for "another $100,000 to pay the tax debt". She records in her affidavit that she responded to the effect that she would not send any more money and that he could sell one of the properties to pay the debt.
4. I infer, from the sequence of events related in the defendant's affidavit, that that conversation occurred before another conversation (separately related), "in or about October 2010", during which, she says, the plaintiff advised her that she had been made bankrupt "for unpaid debts on the Sylvania property". Her evidence is that, in that conversation: (a) the plaintiff told her that her bankruptcy would prevent her from obtaining permission of the Australian Government to migrate to Australia; and (b) in response to his request for "more money" from her to pay outstanding debts, she said: "I cannot send any more money, sell one of the properties and pay the debts from that… If I now cannot migrate to Australia, then I will arrange for my children to migrate."
5. The defendant's affidavit also records, in passing, that the plaintiff never informed her that her bankruptcy had been annulled.
6. The evidence is silent about whether either party was required to make (or did make) a disclosure to the Australian Government about, or to obtain (or did obtain) specific approval from the Australian Government for, money transfers of the order the defendant says she effected in favour of the plaintiff (apparently informally) to fund his purchases of property in Australia. The evidence touches on this topic of engagement with Australian regulatory authority no closer than a letter dated 20 October 1995 addressed by the Australian Treasury to the plaintiff's then solicitor, referred to below. An assumption might be made that the moneys the defendant says she caused to be paid to the plaintiff (if in fact they were paid) were brought into Australia without compliance with Australian exchange control regulations or other laws; but, if such an assumption is to be made, it remains unproven on the evidence.
7. Whatever the merits of their competing contentions about the payment and receipt of money, a common feature of each party's evidence appears to be a preparedness to hold and pay substantial sums of money in the form of cash without corroborative, contemporaneous documentation.
8. An exception to any cash dealings appears to be a transfer of $14,564 effected by the defendant in favour of the plaintiff on or about 27 May 2008 via Citibank. The evidence does not disclose the purpose of the transfer (at a time after the purchase of the last of the six home units bought in the defendant's name) but the fact of the transfer is relied upon by the defendant as objective evidence contradicting a statement in the plaintiff's affidavit that "[the defendant] has never transferred me any money nor has she given me any money by way of other means." She contends that the Citibank transfer undermines the credibility of the plaintiff's denial of receipt of money from her.

The Cronulla Properties

1. The plaintiff's affidavit records that he purchased the Cronulla units in cash. Mr Barton (the developer whose company sold the units to the plaintiff) deposed in his affidavit that he had no recollection of how the units were purchased beyond the fact that the plaintiff purchased them in the defendant's name using a power of attorney. In cross examination he deposed to "a vague, a very vague memory" that the plaintiff paid cash for one of the units and then borrowed for the other one.
2. The plaintiff's affidavit records that he bought the two Cronulla units "for a total value of $400,000". This is consistent with the memoranda of transfer of the units which record, for each of the two units, a consideration of $200,000.
3. In his affidavit the plaintiff deposes that: he purchased the Cronulla units "for $400,000 in cash without borrowing any money from the bank"; he paid the builder (Mr Barton) $300,000 in cash in one lump sum payment and the remaining $100,000 in cash instalments of $25,000 until the $100,000 was paid off in under a year".
4. The evidence does not include any contract(s) for the purchase of the Cronulla units, jointly or severally. It is silent as to whether, when and in what amount(s) a deposit may have been paid on entry into a contract, or contracts, of purchase or accounted for upon completion of either purchase.
5. In his cross examination, Mr Barton denied that it was "fairly unusual" for somebody to pay cash for the entirety of the purchase price of a property. He said that he has had several buyers (like owner/occupiers) who have paid cash for a home unit.
6. Alone of all the property purchases effected by the plaintiff with the defendant's power of attorney, registration of memoranda of transfer upon purchase of the Cronulla units was not accompanied by registration of a mortgage. There was a delay of about six weeks after transfer of the Cronulla units into the name of the defendant before, on the title to each Cronulla unit, was registered a mortgage.
7. An affidavit of the second cross defendant records that when she and the plaintiff came to Australia as a married couple (in March 1998) he told her that he had purchased the Cronulla unit which became their matrimonial home, in the defendant's name, "from the cash I had hidden from Marie [his first wife]".

The Hurstville Properties

1. The plaintiff deposes to having paid Mr Barton a $10,000 deposit upon purchase of the Hurstville properties. He does not, in terms, describe this as a payment of cash or explain the source of the payment.
2. Mr Barton's evidence on the topic adds nothing of consequence. His recollection is simply that the plaintiff borrowed (from the Commonwealth Bank) 80% of the funds necessary to purchase the Hurstville properties.

PUBLIC RECORD EVIDENCE OTHER THAN LAND TITLE RECORDS

Income Tax Returns

1. Evidence before the Court includes income tax returns for the defendant, prepared and lodged with the Australian Taxation Office on the plaintiff's instructions as attorney for the defendant, for each of the years ended 30 June in 2013, 2014, 2015 and 2016.
2. Each return refers to the properties respectively known as 3/25-35 Kingsway, Cronulla; 8/53-57 West Street, Hurstville; and 9/53-57 West Street, Hurstville.
3. The tax returns for 2012/2013 and 2013/2014 also refer to the property known as 20/112-118 Port Hacking Road, Sylvania (Lot 10 in Strata Plan 55898), which was in the year ended 30 June 2014 sold.
4. The tax returns consistently disclose that: (a) each of the properties the subject of a return was 100% owned by the defendant; (b) each property had been first productive of rental income from a date shortly after its acquisition in the name of the defendant; and (c) each property was rented out throughout the period the subject of a return. In short, the properties were investment properties wholly owned by the defendant.
5. Nothing in any of the returns qualifies the attribution of "100% ownership" to the defendant. They record no claim by the plaintiff of an ownership interest in any of the properties or in any income derived from the properties.

The Treasury's Letter

1. The evidence includes a letter dated 20 October 1995 addressed by the First Assistant Secretary of the Investment and Debt Division of the Australian Treasury to the solicitor retained by the plaintiff to act upon his purchase of the Cronulla properties.
2. The text of that letter is, in substance, as follows: "I refer to your letter of 7 October 1995 [not reproduced in the evidence] on behalf of Ms Olga Aziz Girgis concerning the proposed purchase of residential real estate known as 3 & 9/25 Kingsway, Cronulla, for a total consideration of $420,000 [sic]. I am able to inform you that there are no objections to this proposal in terms of the Government's foreign investment policy. I also advise that should Ms Girgis wish to sell these dwellings to another foreign person separate approval would be required for that transaction, which would be treated as the acquisition of developed residential real estate and subject to the restrictions applicable to such properties."
3. The last sentence of the letter I take to be an allusion to the fact that the plaintiff (as the defendant's attorney) proposed to purchase the Cronulla properties as newly developed home units, not as pre-existing structures.

The Plaintiff's Family Law Disclosures

1. Two Statements of Financial Circumstances verified by affidavits respectively sworn by the plaintiff in or about November 1992 and on 29 October 1993 (before the defendant's power of attorney was executed) cut both ways. They are relied upon by the plaintiff to corroborate his evidence that (subject to a mortgage liability of $350,000) he once owned land at Sylvania Waters (valued at about $450,000 - $600,000), land at Gymea ($500,000 - $600,000) and Hurstville ($150,000 - $180,000), all of which was lost to him in a property settlement with his first wife or in his bankruptcy. They are relied upon by the defendant to note the absence of a disclosure of any substantial assets other than the identified parcels of land.
2. An affidavit sworn by the plaintiff in the family law proceedings on 13 December 1994 deposed to his experience of "considerable financial difficulties, both personally and in relation to [the plaintiff's] business". He stated that he was then unable to afford to pay any moneys by way of child support or to pay for private health insurance cover on a family basis. He asserted a need to borrow money to keep his business operating.
3. The defendant relies upon this affidavit (sworn before the Cronulla units were transferred into the name of the defendant, but possibly after contracts for the purchase of those units were exchanged) to support her contention that the plaintiff lacked funds to purchase the Cronulla units without her assistance.
4. An affidavit sworn by the plaintiff in the family law proceedings on 6 March 1996 (after the purchase of the Cronulla units and before the purchase of the Sylvania units) recorded that the plaintiff had debts in excess of $1 million, including: 1. a sum of $824,845.90 owed to the Australian Tax Office (on multiple notices of assessment issued on 12 July 1995) for unpaid income tax dating back to 1980. 2. a sum of $277,550.90 owed to Westpac Bank. 3. a sum of $93,264.97 claimed by his (former) solicitors for costs.
5. The affidavit also disclosed that Westpac had served upon the plaintiff a creditors petition in bankruptcy, and two other creditors (respectively claiming $12,475.88 and $10,359.66) had served bankruptcy notices upon him.
6. The defendant relies upon the affidavit as further demonstration of impecuniosity on the part of the plaintiff and an absence of any disclosure by him to the Family Court of an interest in the Cronulla units.

The Plaintiff's Bankruptcy Statement of Affairs

1. In a Statement of Affairs dated 3 September 1996 filed in his bankruptcy the plaintiff set out in considerable detail his assets and liabilities, with cross references to documentation filed in his family law proceedings. He dated the commencement of his difficulties in meeting his debts as February 1992, the date of his separation from his first wife.
2. His unsecured creditors included the Australian Tax Office, several solicitors, his former wife and, semble, two family members, one of whom (Girgis F.A. Girgis) may have been the brother who is said by the defendant to have delivered approximately $100,000 to the plaintiff on her behalf in or about early 1994.
3. The total attributed to the two family members (as I speculate they were) was $93,026.02. I mention this for completeness; but, in the absence of cross examination, or other evidence on the topic, I draw no inferences from the identity of the two identified members of the "Girgis" family or the plaintiff's description of debts owed to them.
4. The defendant relies upon the plaintiff's Statement of Affairs for the absence of any disclosure by the plaintiff of: (a) any units (in particular, the Cronulla units) purchased in the defendant's name; or (b) any funds equivalent to the $400,000 cash he contends he had available to him to purchase the Cronulla units.

THE TIMING OF THE DEFENDANT'S ALLEGED PAYMENTS TO THE PLAINTIFF

1. Care needs to be taken upon an inquiry whether (and, if so, to what extent) a correlation can be found between the timing of the payments the defendant says she made to the plaintiff and the plaintiff's purchase of property in the name of the defendant.
2. There are at least three reasons for this.
3. First, the defendant's evidence is that she paid the plaintiff in cash, a commodity with which he was evidently comfortable and which he was inclined covertly to hoard. The possibility cannot be excluded that any money paid by the defendant to the plaintiff was held by the plaintiff in cash for a substantial period.
4. Secondly, the evidence as to when the plaintiff bought particular properties lacks precision. It is generally confined to inferences to be drawn from the dates of registration of memoranda of transfer (without reference to the dates upon which any underlying contract may have been exchanged) and, given that at least four of the units (those at Cronulla and Hurstville) were purchased from a developer (a company of which Mr Barton was a director), it is possible that there was more than a customary six weeks between any exchange of contracts and settlement.
5. Thirdly, the plaintiff appears nevertheless to have been chronically short of money. If he did not use money of the defendant to pay a purchase price he may have used it to fund a repayment of debts.
6. With these precautionary observations, I record the following: 1. The $100,000 the defendant says she paid the plaintiff in or about 1994 was paid (if it was paid) before the plaintiff purchased any of the six home units purchased in the name of the defendant. If paid, it was paid at a time when the plaintiff was engaged in family law (property) litigation with his first wife and, on his own admission, withholding from her, and the Family Court, disclosure of $300,000 held by him in cash. How he came to have $300,000 in cash, and where precisely he retained it, remains unexplained in the evidence. If the defendant's evidence is accepted, the $100,000 could be part of any hoard of cash kept by him. 2. The $100,000 the defendant says she paid to the plaintiff personally in or about July 1997 was paid (if it was paid) after the plaintiff had purchased the Cronulla units and about three months before, or just after, he purchased the Sylvania units. If paid, it was paid at a time when the plaintiff an undischarged bankrupt. 3. The $50,000 and $US10,000 the defendant says she paid to the plaintiff (via her daughter) in or about December 1998 was paid (if it was paid) a year or so after the plaintiff had purchased the Sylvania units and about four and a half years before the plaintiff contracted to purchase the Hurstville units. If paid, it was paid at a time when the plaintiff was an undischarged bankrupt, and a recipient of the aged pension. 4. The approximately $100,000 the defendant says she paid to the plaintiff personally in or about 2002 was paid (if it was paid) about a year or so before the plaintiff contracted to purchase the Hurstville units. If paid, it was paid after the plaintiff's discharge from bankruptcy but at a time when he was a recipient of the aged pension.

ABSENT EVIDENCE

1. In the course of this judgment reference has been made to a number of absent documents which, in the ordinary course, one might have expected to see tendered as evidence, but which were not: in particular, a contract for each and every property transaction; documents evidencing the payment and receipt of cash in the purchase or management of properties; documents relating to the payment of any deposit paid on the Cronulla units; documents relating to the transfer of large amounts of cash into Australia; documents evidencing rent receipts and payment of outgoings on properties under the plaintiff's management; and the caveats lodged by the plaintiff.
2. To that list may be added the absence of: 1. any formal accounting by the plaintiff for: (i) his dealings with the defendant's power of attorney; (ii) his cash dealings with respect to the purchase or management of properties; or (iii) the source of funds used to pay off mortgages secured against the properties. 2. mortgages and other security documents, evidencing the terms of borrowings and any collateral securities (including but not limited to guarantees) in respect of particular borrowings. 3. any cash flow statement showing the source and destination of funds for the purchase of properties in the name of the defendant. 4. any evidence going specifically to whether there was any (and, if so, what) tax advantage to the plaintiff in his conducting business, and enjoying the benefit of income earned, in the defendant's name. 5. the Statement of Affairs shown on a bankruptcy search as having been filed on 11 March 2011 in the defendant's bankruptcy. 6. any evidence about the source of the $300,000 in cash the plaintiff claims to have concealed from his first wife and creditors and about the means of his concealment. 7. any evidence about how the defendant (having sold property in Egypt) came to acquire large sums of foreign (Australian and US) currency for payment to the plaintiff. 8. any evidence about whether (and, if so, in what terms) the defendant thought about where the money was coming from for the purchase and management of properties purchased in her name if (as appears objectively to be the case) the moneys she says she gave to the plaintiff were insufficient to fund those activities. 9. any evidence establishing that the defendant knew, or ought to have known, that money provided by her was not sufficient to fund the purchase of the properties purchased in her name.
3. The "accounting evidence" is limited to statements of broad generality, together with a "sample" selection of largely unexplained bank statements and correspondence with financial institutions.
4. Even if it be accepted that the plaintiff paid cash for the whole of the purchase price of the Cronulla units without borrowing any funds, within six weeks or so of the purchase the property was the subject of a mortgage (registered on 9 February 1996) and it was later the subject of another mortgage, registered on 9 December 1998. The plaintiff has not disclosed how much was borrowed on these mortgages and what was done with the moneys borrowed.
5. The plaintiff says that he borrowed $260,000 from "Aussie Home Loans" for the purchase of the Sylvania properties, $130,000 on each property. He says that he made repayments from an ANZ Bank account and a St George Bank account, funded by himself. He does not explain the source of this funding beyond saying that he paid off the Sylvania property from his earnings as a service station manager. At the time of purchase of the Sylvania properties he was an undischarged bankrupt. Within a year of purchase of the Sylvania properties he was in receipt of an aged pension and, within a short time thereafter, he had retired as a service station manager.
6. The plaintiff gives an inaccurate account of the sale of 10/120-122 Port Hacking Road, Sylvania as a consequence of the defendant's bankruptcy. He records the sale price as "about $500,000" whereas the 2013/2014 income tax return he prepared for the defendant records the sale price as $595,000. He says that he received a surplus on sale of $125,000 (which he applied in reduction of the mortgage debt on the Hurstville properties); but nothing is said about the debts presumably paid out of the sale proceeds, presumably totalling about $470,000 ($595,000 minus $125,000).
7. The plaintiff implies that he borrowed $1,060,000 from the Commonwealth Bank upon purchase of the Hurstville properties (a total purchase price of $1,070,000 less a $10,000 deposit), which debt was reduced by $125,000 paid from the sale of 10/120-122 Port Hacking Road, Sylvania. He says, without descending to particulars, that "the rent" was paid into a Commonwealth Bank "Complete Access Account", from which were paid: (i) loan repayments; (ii) "some day-to-day living expenses"; and (iii) moneys used by the plaintiff for his "own purposes".
8. The plaintiff provides no explanation, or accounting, for sale in or about 2013 of 10/112-118 Port Hacking Road, Sylvania.
9. He says that he used the proceeds of sale of 9/53-57 West Street, Hurstville in 2017 "to pay down the home loans and to pay other outstanding taxes that were overdue", without any particularisation at all.

For the Plaintiff

1. The plaintiff's affidavit is supported, to a degree, by each of three witnesses, two of whom (the second cross defendant and Mr Barton) were cross examined and the third of whom (Mr Madrajat, the plaintiff's accountant, post-2017) was not required for cross examination.
2. In her cross examination, the second cross defendant presented as a loyal wife who generally left business decisions to the plaintiff. In her affidavit, her principal support for the plaintiff was her evidence of statements made by the plaintiff to her (shortly after their marriage) to the effect that, from his own resources, he had bought properties (including their matrimonial home) in the name of the defendant which he regarded himself as owning, and that he had bought their matrimonial home in the defendant's name from cash he had hidden from his first wife. I infer from her evidence that she had a genuine, if mistaken, belief that the plaintiff was the sole beneficial owner of their matrimonial home and entitled to transfer it to her. The contrary was not squarely put to her in cross examination. In circumstances in which the defendant had armed the plaintiff with a power of attorney (with a benefits clause), had communicated about her Australian affairs exclusively with the plaintiff (that is, not with his wife) and had allowed him both to live in the matrimonial home indefinitely and to manage her Australian property generally, there is no occasion to brand the second cross defendant with notice of any breach of fiduciary obligations on the part of the defendant. Without any grounds for doubting what the plaintiff told her about his ownership of the property, and without notice of any falling out between the siblings, she took title to her matrimonial home as a volunteer without notice of any breach on the plaintiff's part.
3. Her evidence, generally, is directed mainly to questions of chronology. She says no family member of the plaintiff ever visited Australia, other than Violett (whom she calls "Fefe"); but, true as that may be for the period of her marriage to the plaintiff, any visit to Australia by the plaintiff's brother, Guirguis Fahmy Aziz, in 1994 predated her association with the plaintiff and, I infer, her personal knowledge.
4. Her affidavit annexes photographs of Violette's Australian visit, with handwritten notes of the plaintiff describing each photograph as a depiction of Violette "at my home". The plaintiff contends that those notes constitute an assertion by him of beneficial ownership of the property. In my opinion, they cannot reasonably be so read. They are no more than labels descriptive of a scene. The property was the plaintiff's "home" if only because he and his wife lived there with the consent of the defendant.
5. Contrary to her denial, the second cross defendant may well have told the defendant in mid-2016 or thereabouts (via a telephone call) that the plaintiff was sick and suffering from dementia, as a consequence of which she (the second cross defendant) wanted the defendant to sign a power of attorney in her favour and a will to safeguard the interests of herself and the plaintiff in their Cronulla unit. Title to the unit was transferred by the plaintiff to the second cross defendant in August 2016. The plaintiff himself deposes that he transferred the property to his wife because he was "getting on in age" and his "health was worsening".
6. Mr Barton's evidence provides corroboration for the plaintiff principally in three respects. First, it confirms that the plaintiff may well have paid cash for the Cronulla properties. Secondly, it relates a conversation with the plaintiff when he purchased the Cronulla properties in which the plaintiff told Mr Barton that he was going to buy the properties in the defendant's name because he was "going through a nasty divorce with [his] wife" who was "taking [him] for everything" and he was "not going to lose everything [he had] worked hard for." Thirdly, it confirms (for what this is worth) that the plaintiff at no time informed Mr Barton that the money used to purchase properties from Mr Barton's companies were obtained from the defendant.
7. The evidence of Mr Madrajat corroborates the evidence of the plaintiff to the extent that it records that, in or about 2017, the plaintiff instructed him to deal with his "complicated" tax business. The plaintiff told Mr Madrajat that he had not completed tax returns for about four years and that, a long time ago, he bought two units in cash and, then, other property, all in the name of the defendant for "asset protection purposes", motivated by experience of his first marriage.
8. Objection was taken to the admissibility of a paragraph of Mr Madrajat's affidavit in which he set out verbatim what he says the plaintiff told him about this. I received that evidence in rebuttal of any suggestion of recent invention on the part of the plaintiff; but it is not persuasive of a contention on the part of the plaintiff that he should be held to be the true owner of property purchased in the defendant's name. His arrangement with the defendant involved an express disclaimer of any ownership interest in property acquired in her name. The fact that he may have told third parties, or hinted to them, that he was the true owner does not make it so. The tax returns he caused to be prepared for the defendant attributed 100% ownership to her.
9. Mr Madrajat says he took the plaintiff's complicated business in hand, eventually completing tax returns "signed" by the plaintiff on behalf of the defendant. In accepting the plaintiff's instructions he told the plaintiff that "there are different rules that apply for overseas tax payers" and that "different tax is paid for people who are not Australian citizens".
10. No evidence adduced in the proceedings quantifies the difference in tax payable on the subject properties according to the identity of their owner.

For the Defendant

1. The defendant's evidence is corroborated by that of her daughter, but as the final hearing of these proceedings unfolded, neither of them was available to give supplementary oral evidence or to be cross examined.

ANALYSIS

1. The starting point for analysis of the parties' competing contentions is the state of the title to the properties purchased by the plaintiff in the name of the defendant, recognising that of the six home units purchased: 1. only two remain registered in the name of the defendant; namely, 3/25-35 Kingsway, Cronulla and 8/53-57 West Street, Hurstville. 2. one is registered in the name of the second cross defendant, having been transferred to her by the plaintiff in a deployment of the defendant's power of attorney: 9/25-35 Kingsway, Cronulla. 3. one was sold by the defendant's trustee in bankruptcy: 10/120-122 Port Hacking Road, Sylvania. 4. two were sold by the plaintiff, relying on the defendant's power of attorney: 9/53-57 West Street, Hurstville and 10/112-118 Port Hacking Road, Sylvania.
2. In the absence of any allegation of fraud or other exceptional circumstance, the second cross defendant's registration as proprietor of the property transferred to her (as a volunteer) cannot be disturbed. If the plaintiff acted in breach of fiduciary obligations owed to the defendant as her attorney, he may have a liability to account to the defendant, but the second cross defendant's title cannot be disturbed. The defendant makes no claim for compensation against her.
3. As between themselves, the rights and obligations of the plaintiff and the defendant depend upon the nature and extent of the plaintiff's authority as the defendant's attorney.
4. A determination of that question is informed, if not governed, by their agreement as to the purpose of the power of attorney granted by the defendant to the plaintiff and the course of their subsequent dealings.
5. It is common ground that some agreement was made between the plaintiff and the defendant in 1993 about the defendant's provision of a power of attorney to the plaintiff, but the nature and terms of any such agreement are contested. Whether an agreement was made as alleged by the plaintiff, as alleged by the defendant or possibly in some varied form of the parties' different versions, may be informed by a consideration of whether the defendant's evidence of payments to the plaintiff is accepted.
6. In my opinion, the defendant's evidence of payments should be accepted. Although the plaintiff's affidavit contains a general denial of receipt of any money from the defendant, he adduced no evidence specifically denying her evidence, and that of her daughter, about particular payments of cash said to have been made to him. The fact that she and her daughter say that a large amount of cash was paid to him is consistent with his own evidence of a preparedness to engage in property transactions involving large transfers of cash. The October 1995 correspondence of his solicitors with the Australian Treasury is consistent with recognition of an investment by the defendant in the Cronulla home units. On his own evidence, when he met with the defendant in Egypt in or about 2002 he showed her "all the papers" relating to the properties he had purchased in Australia in her name, recognising that this would be a matter of concern her. He did this at a time when, on her evidence, she gave him approximately $100,000. The absence of a full accounting by the plaintiff of moneys used in the purchase and management of the properties purchased in the defendant's name is also consistent with her having provided him with funds.
7. The parties' competing versions of the 1993 conversation are diametrically opposed insofar as they concern statements about any intention the defendant may have had to migrate to Australia, but they are not so far apart in other respects. In my opinion, it is more probable than not that their 1993 conversation incorporated elements of each party's version. Neither has a contemporaneous file note of what was said. Each has related the conversation, years after the event, through a prism of self-interest. The plaintiff has sought to rationalise an arrangement which, he contends, permitted him to buy, manage and sell property for personal advantage without personal responsibility. The defendant has sought to rationalise an arrangement which, she contends, allowed her to acquire property under her brother's management. Each probably thought of their relationship as familial rather than legal, depending upon a mutual exercise of goodwill (grace and favour) on an ongoing basis.
8. The plaintiff says that he told the defendant that his idea was that: (a) any property he purchased in the future (which, I infer, is a reference to a purchase of real estate) would be in her name; (b) he would not "own anything"; (c) any property he purchased would all be in her name; (d) it could not be taken from her; and (e) the proposed power of attorney would allow him "to buy, sell and rent property" in her name.
9. Her evidence is that: (a) she told him that she needed his help by purchasing some properties in her name; and (b) he invited her to send him moneys, on a statement of intention to make arrangements for her. Her cross claim, significantly, alleges that the agreement included terms that would permit the plaintiff to have a right of residence in one of the properties purchased and that he would "manage" properties the subject of a purchase, receive rent and pay mortgages and outgoings. In substance, her case is consistent with him having her authority (acting reasonably) to incur, manage and repay debt in her name for the purpose of enabling her to acquire property in Australia.
10. The point at which the parties' different versions of their arrangement differ is when the plaintiff claims an entitlement to have: 1. applied rent receipts from properties registered in the name of the defendant, and proceeds of sale of such properties otherwise than in the acquisition of property, and the reduction of debt incurred, in the name of the defendant; and 2. transferred his matrimonial home (9/25-35 Kingsway, Cronulla) to the second cross defendant for no consideration.
11. I do not accept that the parties ever agreed that the defendant would (via the plaintiff acting as her attorney) buy and hold property "on trust" for the plaintiff. That is not the type of language either party used. The fact that the plaintiff may have told the defendant that he trusted her does not, of itself, justify a finding that she agreed to act as a trustee. It is consistent with an informal family arrangement in which neither party expected to be governed by legal formality.
12. The plaintiff, for his part, expressly disclaimed any intention to acquire an ownership interest in property purchased in the name of the defendant. His early declaration to that effect, in 1993, is consistent with his preparation of tax returns for the defendant (in or about 2017) predicated upon her sole ownership of properties registered in her name. It is consistent also with his non-disclosure of an interest in such properties during his family law and bankruptcy proceedings. The whole purpose of his scheme was to have no property himself, but to trade through the defendant's persona and, through her goodwill alone, to enjoy some of the fruit of investments made in her name.
13. On the other hand, having been appraised of the plaintiff's purpose, the defendant appears to have been content for the plaintiff, by deployment of her power of attorney, to enjoy some benefit from the property purchased in her name - limited (in the absence of agreement to the contrary) to a right of residence in the Cronulla Unit occupied by him and the second cross defendant as their matrimonial home.
14. The plaintiff contends that the defendant ought to have known that any money she paid to him was insufficient to purchase the properties acquired in her name, supporting an inference that she must have known that he was investing his own money in properties purchased in her name. However, the evidence does not bear this out. There is no evidence that she had knowledge of the value of property in Australia or the prices at which property was bought and sold. There is, on the other hand, evidence that she knew that loans were taken out on the security of properties purchased in her name and that rents were used to discharge mortgage debt.
15. When each of the six home units purchased in her name was registered in her name, the defendant acquired an indefeasible title to it. She did not hold it on trust for the plaintiff. To the extent that he may have contributed to a purchase from his own resources (which is suggested, particularly, in the case of the Cronulla units), his contribution was, in legal terms, in the nature of a gift. He intended his sister to hold legal title without reserving to himself any beneficial entitlement.
16. The defendant remains registered proprietor of 3/25-35 Kingsway, Cronulla and 8/53-57 West Street, Hurstville. There is no unconscionability in her insisting upon enforcement of her rights as registered proprietor. The plaintiff has no right, title or interest in either of those properties. His caveats should be withdrawn.
17. In transferring 9/25-35 Kingsway, Cronulla to his wife for no consideration, the plaintiff acted in breach of the fiduciary obligation he owed to the defendant, as her attorney, to act in her interests.
18. As observed in Taheri v Vitek (2014) 87 NSWLR 403 at [29]: "The primary object of a power of attorney is to enable the attorney to act in the management of his principal's affairs. An attorney cannot, in the absence of a clear power so to do, make presents to himself or others of his principal's property: Tobin v Broadbent (1947) 75 CLR 378 at 401."
19. Although the power of attorney under which the plaintiff transacted business in the name of the defendant was expressed to authorise him "to execute an assurance or other document, or do any other act, whereby a benefit is conferred on him", that is a matter of power or authority; it does not exonerate him from the fiduciary obligations by which an attorney under power is bound: Ward v Ward (No. 2) [2011] NSWSC 1292 at [3]. He remains accountable to the defendant for the value of the property he transferred to his wife for no consideration, subject, prima facie, to an allowance being made in his favour for the agreement on the part of the defendant that he and his wife could reside in the property indefinitely as their matrimonial home. The precise terms of that agreement, and its implications for any accounting exercise on the part of the plaintiff, remain to be clarified.
20. Insofar as the plaintiff sold 10/112-118 Port Hacking Road, Sylvania and 9/53-57 West Street, Hurstville to discharge debts reasonably incurred in the acquisition and management of home units in the name of the defendant he did not act in breach of his fiduciary obligations (because he was authorised by the defendant to do so) but, in the absence of an accounting by him, there is no firm basis upon which to conclude that that is what he did.
21. The plaintiff's evidence includes admissions that at least some of the rents received by him from the properties purchased in the defendant's name, and at least some of the proceeds of sale of such properties, were applied by him for purposes personal to himself.
22. In these circumstances, and in the absence of any coherent explanation for the plaintiff's dealings with property in the name of the defendant pursuant to the power of attorney she granted to him, orders should, prima facie, be made for him to account for his dealings, at least so far as concerns the Cronulla Unit transferred by him to the second cross defendant.
23. Whether, having regard to the present circumstances of the plaintiff, there is any utility in the making of an order for the taking of accounts is a question which might require reflection.
24. The precise nature of any accounting process to be undertaken, and any associated inquiry, requires further consideration. In a practical sense, the focus for attention is on: (a) a valuation of the Cronulla Unit qualified by any allowance to be made for the right of residence of the plaintiff and his wife; and (b) identification of payments made to or at the direction of the plaintiff (from rent receipts or the proceeds of sale of property held in the name of the defendant) for a personal use of the plaintiff. It may not be necessary to identify every item of receipt and expenditure.
25. I reserve for consideration the question whether, upon a taking of accounts, an allowance should be made in favour of the plaintiff for his skill, expertise and expenses in management of the defendant's affairs: Warman International Ltd v Dwyer (1995) 182 CLR 544 at 560-562.
26. During the course of argument reference was made to the possibility that any entitlement the plaintiff might otherwise have had to a grant of relief should be withheld because of misleading or deceptive conduct on his part (in the context of family law or bankruptcy proceedings, if not in taxation returns) in concealment of property interests claimed by him in these proceedings. On the other side of the record, a passing reference was made to the possibility that the defendant might be denied a grant of relief upon a supposition that she failed to comply with Australian exchange control regulations in transferring money to Australia. Reference, generally, was made to Nelson v Nelson (1995) 184 CLR 538.
27. In the absence of further submissions on this topic, there appears to me, as presently advised, to be no occasion for exploration of the topic.
28. Whatever (if any) sins the plaintiff may have committed in concealment of assets or income in a family law, bankruptcy or taxation context, on the evidence adduced in these proceedings he is to be held to his disclaimer of any ownership interest in property acquired in the name of the defendant.
29. Whatever suspicions may be harboured, there is no evidentiary foundation for a conclusion that the defendant contravened any law in transferring money to Australia from Egypt. In any event, her core entitlements in these proceedings flow from her registration as the proprietor of property purchased in her name and a failure on the part of the plaintiff, as her attorney, to account for that property.

CONCLUSION

1. Subject to allowing the parties an opportunity to be heard as to the form of orders to be made, and costs, I am presently inclined to make orders to the following effect: 1. DECLARE that the plaintiff has no right, title or interest in: 1. the land contained in folio identifier 3/SP 50782 and known as 3/25-35 Kingsway, Cronulla; or 2. the land contained in folio identifier 8/SP 73590 and known as 8/53-57 West Street, Hurstville. 1. ORDER that the caveats respectively numbered AM670605 and AM670606 be withdrawn forthwith. 2. DECLARE that the defendant has no right, title or interest in the land contained in folio identifier 9/SP 50782 and known as 9/25-35 Kingsway, Cronulla. 3. DECLARE that the plaintiff acted in breach of fiduciary obligations owed by him to the defendant, as her attorney, when (on or about 22 August 2016) he transferred the property known as 9/25-35 Kingsway, Cronulla to the second cross defendant for no consideration. 4. RESERVE for further consideration: 1. the question whether any (and, if so, what) orders should be made for the plaintiff to account for his dealings with property as attorney of the defendant; and 2. the claims for relief made in prayers 1 - 4 (inclusive) and 8 of the Amended Statement of Cross Claim filed on 14 May 2019. 1. ORDER that the Statement of Claim filed on 16 November 2017 and the Amended Statement of Cross Claim filed on 14 May 2019 otherwise be dismissed. 2. ORDER that the plaintiff pay the defendant's costs of proceedings on the Statement of Claim and her costs to date on the Statement of Cross Claim so far as concern her claims for relief against him. 3. ORDER that the defendant pay the second cross defendant's costs of proceedings on the second cross claim so far as concern claims for relief made by the defendant against the second cross defendant.
2. If made, orders of this nature will not fully dispose of the proceedings, but leave for further consideration questions about the utility, and scope, of any order for the taking of accounts against the plaintiff.
3. Before proceeding to a determination of those questions, I am inclined to allow the parties an opportunity to explore whether (in the light of these reasons for judgment) they can resolve their differences.
4. I propose to assume, unless advised otherwise, that no application for compensation is made by the defendant vis a vis the plaintiff's caveats.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2020