Hallani v Hallani

Judgment - EX TEMPORE (revised) 1These proceedings concern the due administration of the intestate estate of the late Fawzi Al-Hallani ("Fawzi"). The plaintiff sues in her personal capacity as his widow, and as the current administrator of the estate. She sues the defendant (a brother of the deceased) as a former administrator of the estate. She seeks, in essence, orders holding him personally liable to account for estate property (namely, the sum of $127,834.92) that he, she says without authority, transmitted to Lebanon between 12-14 July 2010 or thereabouts. 2These reasons for judgment address the question whether (but for the potential operation of s 85 of the Trustee Act 1925 NSW) the defendant would be held personally liable for a breach of trust by reason of his transmission of those funds to Lebanon. 3So far as is material, s 85 is in the following terms: "85 Excusable breaches of trust (1) Where a trustee is or may be personally liable for any breach of trust, the Court may relieve the trustee either wholly or partly from personal liability for the breach. (2) The relief may not be given unless it appears to the Court that the trustee has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the direction of the Court in the matter in which the trustee committed the breach." 4That this provision has scope for operation in connection with the administration of a deceased estate, and the conduct of an administrator of such an estate, can be confirmed by reference to the definitions of "trustee", "trust", "legal representative" and "administrator" in s 5 of the Trustee Act. The last of these definitions, in its turn, invites reference to the definitions of "administrator" and "administration" in s 3 of the Probate and Administration Act 1898 NSW. 5The question whether the defendant should be granted relief under s 85 from any such liability he might have for a breach of trust has been reserved (pursuant to an order made under rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW)) for further consideration as a separate question should the need arise. 6Fawzi, a Lebanese born resident of Australia, died at his Penrith home (on the outskirts of Sydney), by suicide, on 26 July 2009, aged 41 years. 7He left a widow (the plaintiff) and two children of their marriage: Max Aamer Hallani, born in Penrith on 7 December 2002; and Hasan Hallani, born on 1 June 2005, also in Penrith. On or about 23 January 2009 Hasan was diagnosed as having a chronic illness, which would necessitate special medical care on an indefinite, ongoing basis. 8Fawzi was born on 7 February 1968. The plaintiff was born, in Lebanon, on 31 August 1978. The couple were married, in Lebanon, on 4 March 2000. Fawzi was, as the plaintiff was and apparently remains, of the Muslim (Shia) faith. 9Fawzi migrated to Australia in or about 1995. The plaintiff migrated to Australia in or about August 2000, following upon her marriage to Fawzi. 10Section 61B(3) of the Probate and Administration Act 1898 NSW governs Fawzi's deceased estate. It provides: "61B (3) If the intestate leaves a spouse and also leaves issue, then if the value of the estate (excluding any household chattels) does not exceed the prescribed amount, the whole estate shall be held in trust for the spouse, but if the value of the estate (excluding any household chattels) exceeds the prescribed amount, then: (a) the household chattels (if any), (b) the prescribed amount, and (c) one-half of the estate (excluding any household chattels and the prescribed amount), shall be held in trust for the spouse and the residue of the estate shall be held in statutory trust for the issue of the intestate." 11By virtue of s 61A of the Probate and Administration Act, the "prescribed amount" at the time of Fawzi's death was $200,000. 12Events subsequent to Fawzi's death have crystallised the value of his estate (excluding household chattels) at the time of his death as no more than $288,680 or thereabouts. 13That estimate is based upon an assumption that both parties have made in applications for administration of Fawzi's estate respectively made by them: that the proceeds of superannuation benefits to which Fawzi or his nominees were entitled constituted part of his estate. 14On the basis of that assumption, the principal assets of the estate at the time of Fawzi's death comprised: (a) an estate in fee simple in the family home at Penrith, subject to a mortgage; and (b) an entitlement to superannuation under the Australia Post Superannuation Scheme. 15Fawzi worked as a postman in Australia. 16After Fawzi's death the defendant, purporting to act as attorney (i.e. agent) for the plaintiff and pursuant to letters of administration granted to him by this Court on 10 December 2009, sold the Penrith property at auction and, after payment out of the mortgage and selling expenses, realised a net sum of $124,834.92. 17According to evidence give by the plaintiff, at a subsequent time and pursuant to letters of administration granted to her by this Court on 21 December 2010, she realised approximately $162,000 as a superannuation death benefit payable by the Australia Post Superannuation Scheme. 18The precise figure is said by counsel for the plaintiff, with the benefit of access to records produced by the APSS, to have been $163,846.47. Nothing turns on the difference. For convenience, I adopt the latter sum. 19From that sum the plaintiff established a term deposit account with the Westpac Bank (in her name as a trustee for her two sons) in which she has maintained a principal sum of $150,000 as an investment. The evidence does not establish what has happened to interest from time to time accrued on that investment. For present purposes, nothing turns on any discrepancy between the superannuation moneys received by the plaintiff and the sum invested on behalf of the boys, with or without interest. The amount of $150,000 comfortably exceeds the amount of the boys' entitlements to a share in Fawzi's estate. 20By operation of s 61B of the Probate and Administration Act, the plaintiff's beneficial entitlement in Fawzi's estate may be valued at approximately $244,340 (comprising the prescribed amount of $200,000 and half the balance of the estate) and each of Fawzi's sons may be said to be beneficially entitled to about $22,170 (one quarter of the balance of the estate after deduction of the prescribed amount). 21The grant of administration made to the defendant records, on its face, the following endorsement: "Basis of grant: Administration. Attorney of [the plaintiff] the widow of the deceased [Fawzi] for her use and benefit limited until she shall apply for and obtain a grant." 22This endorsement explains the lapse of the grant of administration made to the defendant upon grant of administration of the estate to the plaintiff. It also points the way to deep, social problems underlying these proceedings. 23In formal terms, the proceedings focus on the question whether the defendant has duly accounted for the net proceeds of sale of the Penrith property, and whether (by transmitting those proceeds to a bank in Lebanon in July 2010) he acted in breach of trust. 24On 12 July 2010 the defendant, via the Commonwealth Bank of Australia, transmitted $127,834.92 (the net proceeds of sale with accrued interest) to the BLOM Bank in Lebanon, with an instruction to the transferee bank to open an account or accounts in the names of Fawzi's two sons. On 14 July 2010 the transferee bank evidently issued two receipts, acknowledging that $63,911 had been deposited into an account in the name of "Max Aamer Fawzi Al-Hallani" and a similar amount had been deposited in an account in the name of "Hasan Fawzi Al-Hallani". The minor difference between the amount transmitted and the total amount acknowledged as received is, I assume, to be attributed to bank fees or the like. 25The defendant denies that he has (or has had since July 2010) any control over these funds. Until the last day or so of the hearing of these proceedings he had done nothing of substance to assist the plaintiff to obtain control of, or information about, what happened to the funds after their transmission to Lebanon. 26Between the close of the evidence on the second day of the hearing and the time of commencement of final submissions on the third day, the defendant took some action of sorts. He took, or at least appears to have taken, four identifiable steps. 27First, he says that, overnight, he attempted, without success, to ring his father (Hag Ali Masaoued Hallani), the person in whose custody the plaintiff's sons are currently presumed to be (in Lebanon) and a person under whose practical control the funds transmitted to the BLOM Bank may also be. 28Secondly, he says that he spoke to his father's lawyer (a Mr Ali Jaber), who declined his request for assistance in obtaining the permission of Mr Hallani senior for disclosure of information about the children's bank account(s). 29Thirdly, he says that he emailed the Chiyah branch of the BLOM Bank in Lebanon and thereafter spoke to the manager of that branch (a Mr Abbas Tlais), about obtaining information about the children's account(s). He says that the manager told him that he (the manager) had obtained legal advice and, having obtained legal advice, his position was that the bank is not legally permitted to disclose information regarding the children's account(s) without permission to do so given by their "custodian". 30Fourthly, in the course of reporting to the Court on these communications, he (the defendant) provided contact details for his father, his father's lawyer and the bank manager. 31That the defendant has taken these steps at all evidences a new appreciation (heightened by the risk of personal liability for funds gone astray) that he cannot simply stand by doing nothing to assist the plaintiff, leaving her to run the gauntlet of dealing with his father in Lebanon. In his final submissions he concluded his address to the Court with a clear affirmation of his current belief that the plaintiff's sons should be returned to Australia (the land of their birth) to live with the plaintiff. 32This sentiment may be of comfort to the plaintiff but she might, not unreasonably, treat it with reserve unless and until it is acted upon in a more concrete way than it has been to date. 33An available inference, which I draw, is that the defendant transmitted the disputed funds to Lebanon in July 2010 so that they might, to the exclusion of the plaintiff, come within the practical control of Mr Hallani senior (the father of Fawzi and the defendant, the father-in-law of the plaintiff and the paternal grandfather of Max and Hasan). 34The defendant transmitted the funds to Lebanon without notice to the plaintiff, relying on an assumption that the boys were, as a matter of fact, in the day to day care and control of their grandfather. 35He invites this Court to notice, and he himself relies upon, an order apparently made by the Sharii Jaafari Court of Beirut, in Lebanon, on 22 March 2010 granting custody of the two boys to their grandfather on and from 23 March 2010. 36That order appears to "restrain" the boys "from travel, only with his consent [that is, with the consent of the grandfather]". 37The evidence does not establish that the defendant had notice of this order until after he had transmitted the disputed funds to Lebanon in July 2010; but, even without notice of the order, it can be inferred that he was aware that Lebanese law, as practised, placed his father in a favourable position to assert rights of custody over Fawzi's sons. The evidence before the Court, from both sides of the record, suggests that the community in which the Hallani family lives in Lebanon is a profoundly patriarchal society. 38There is no suggestion on the face of the Lebanese Court order that it was made on notice to, or with any participation on the part of, the plaintiff in the present proceedings. The defendant accepts that the order was made without notice to her. She disputes its validity. 39The plaintiff contends that, if and to the extent that the Lebanese Court order may have conferred custody rights on her father-in-law, it was superseded by a subsequent order of the Family Court of Australia made in contested proceedings between her father-in-law and herself. 40On 13 May 2011 the Family Court (in proceedings numbered PAC5295 of 2010 between the present plaintiff as applicant, the paternal grandfather as the first respondent and the present defendant as the second respondent) made orders that included the following: "1. Order that any prior parenting orders in relation to the children Max Amir Hallani born 7 December 2002 and Hasan Hallani born 1 June 2005 be and are hereby discharged. 2. Order that, pending further order, the said children live with the mother. 3. Order that, pending further order, the mother is to have sole parental responsibility for the children. 4. Order that a copy of these orders be served upon the first respondent as soon as that can be achieved.... 8. Order that liberty be granted to any party to restore the matter to the list upon giving 72 hours notice." 41The paternal grandfather evidently appeared in the Family Court by a solicitor (Mr Ali Hallani) instructed by the present defendant. The defendant informs the Court that that solicitor is his cousin. 42Whether the present defendant was a proper party to the Family Court proceedings is at least doubtful. Claims for relief made against him personally were dismissed. As has been noted, he now says that he does not oppose repatriation of the children to Australia or restoration of them to the plaintiff's care. 43There is no evidence before me as to when the Family Court's orders were served on the paternal grandfather; but it is common ground between the parties presently before the Court that the orders were in fact personally served on him. Counsel for the present plaintiff (not counsel appearing in this Court) certainly informed the Family Court that that was so. 44The plaintiff appears to have been met by a stone wall in her attempts to secure the return of her children or any accounting for the funds sent to Lebanon in July 2010. 45Notwithstanding his belated endeavours to assist the plaintiff to contact people in Lebanon, the defendant disclaims any knowledge of, or responsibility for, the whereabouts of the children or the funds. He claims to have been estranged from his father for a period commencing no later than about 2008. 46He says that it remains the plaintiff's responsibility, alone, to locate the children and to deal with the grandfather and the BLOM Bank. He maintains a contention that the plaintiff should travel to Lebanon and to make an application to the Court there for permission to resume custody of the children. 47Therein lies a problem. The plaintiff contends that, as a matter of fact, she lost custody of the children to the paternal grandfather when, in July 2009, she, the defendant and the children travelled to Lebanon for the funeral and burial of her late husband. 48She contends that the grandfather and the defendant coerced her into signing, in favour of the defendant, two documents (one dated 5 August 2009, the other dated 9 November 2009) entitled, in English translation, "Power of attorney valid at Australia only". 49It was on the basis of the first of those documents that the defendant persuaded this Court that he should, in the plaintiff's absence in Lebanon, be granted letters of administration, on her behalf, pending her return to Australia. 50It is on the basis of the second of the two documents that he claims to have been justified in his decision (without notice to the plaintiff) to transfer the net proceeds of sale of the Penrith property to Lebanon. 51It is by reference, inter alia, to these two documents that the defendant has in the past suggested, and continues to assert, that (notwithstanding the Family Court proceedings and her ongoing protests to the contrary) the plaintiff abandoned her sons to the care of the paternal grandfather. 52Although he disclaims any personal interest in keeping the boys from their mother, he is prone to lapse into allegations that she abandoned the boys and that her only concern is to obtain money. The latter limb of those allegations may reflect his concern about exposure to personal liability to account for money rather than a considered criticism of the plaintiff personally. His allegations, to some extent, exhibit the pain of his own grief and allowance should be made for that possibility. 53There is no basis upon which this Court could responsibly make findings vindicating allegations of irresponsibility made against the plaintiff. Even if (as I find) some of her evidence is not to be accepted as accurate, her evidence establishes beyond reasonable doubt her deep and abiding love for her children and her anxiety to resume her day to day maternal care for them. I am not prepared to find that she has at any time abandoned her sons. I find, on the contrary, that she has endeavoured to maintain her relationship with the boys in an atmosphere weighted against her being able to do so on a regular basis. 54The fact that the plaintiff has set aside a trust fund of $150,000 for the boys in a Westpac term deposit cuts across any suggestion that she has engaged in a cynical exercise of gold digging at the expense of her sons. 55In support of her application for letters of administration she proferred an undertaking to the Court in the following terms: "I hereby undertake that the interest [sic] of Max and Hasan ("the children") will be protected as follows: ...I undertake that the entitlements of Max and Hasan in respect of my late husband's estate will be deposited, paid and transferred to the New South Wales Trustee and Guardian for their administration." 56No trust account has yet been established for the boys with the "Public Trustee". However, the plaintiff has not yet got in, or accounted for, all the moneys referable to Fawzi's estate. I take her establishment of a Westpac trust account for the benefit of the boys, and her pursuit of these proceedings in her capacity as administrator of Fawzi's estate as well as in her personal capacity, as an indication that she is mindful of her obligation to protect the financial interests of the boys as well as their interests generally. 57Unless he can establish that he was duly authorised by the plaintiff, and (by a duly authorised representative on their behalf) the boys, to part with the $127,834.92 he transferred to Lebanon in July 2010, the defendant must be held personally liable to account for that sum (with an allowance for interest) to the plaintiff as the current administrator of Fawzi's estate: Re Dawson (deceased) [1966] 2 NSWR 211; 84 WN (Pt 1) (NSW) 399; Maguire v Makaronis (1997) 188 CLR 449 at 469; Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484. 58Whether any allowance for interest should, in equity, be calculated at a simple or compound rate (according to principles discussed in Hungerfords v Walker (1989) 171 CLR 125 at 148 and Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at 316-317 [74]-[75] and noticed in Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484 at 498 [31]) is a question to be considered in conjunction with consideration of the Trustee Act 1925 NSW s 85. 59As administrator of the estate in July 2010 the defendant was obliged to preserve it for the benefit of the people (the plaintiff and her sons) beneficially entitled to the estate and a due administration of it. As persons beneficially entitled to the estate each of them possessed, at least, a right to have the estate duly administered: Livingstone v Commissioner of Stamp Duties (1960) 107 CLR 411. Purporting to act as the plaintiff's attorney, the defendant owed her another layer of fiduciary obligations: Angelina Spina v Permanent Custodians Ltd [2008] NSWSC 561; 13 BPR [98316] at [113]-[120]. The letters of administration granted to him, on their face, recognised that he owed special obligations to the plaintiff. He could not easily have been incognisant of such obligations. 60The defendant relies upon the terms of the second power of attorney, and conversations he had with the plaintiff in Lebanon at about the time of execution of the powers of attorney in 2009, as the foundation of his primary defence to the plaintiff's claim to relief. He says that he only ever acted on the plaintiff's instructions in the administration of Fawzi's estate and that she must be taken, by her execution of the second power of attorney, to have consented to his transmission of funds to Lebanon in July 2010. He adds that his conduct was entirely altruistic and that, for her part, the plaintiff demonstrated a lack of regard for the Penrith property. 61He maintains that, unable to contact the plaintiff (via his parents) in or about July 2010, it was imperative that he transmit funds to Lebanon to assist in the provision of medical care to the plaintiff's younger son, who was in need of care. He maintains, further, that he was fearful that, if he did not transmit the funds, he might have been sued by the plaintiff for failure to carry out her instructions. 62He says that he was advised by his then solicitor (his cousin, Mr Ali Hallani) that it was incumbent upon him to transmit the funds; but he has adduced no evidence from the solicitor corroborative of that assertion. I do not pause to consider whether the defendant has any (and, if so, what) entitlement to redress against his solicitor as events have turned out. 63Whether the plaintiff did indeed not only "authorise", but also "instruct" the defendant to transmit the disputed funds to Lebanon, or otherwise consented to his doing so, is a key factual contest in the proceedings. 64As for the defendant's claim of "altruism", it should be recorded in his favour that there is no suggestion that he personally has ever obtained any financial benefit from his administration of Fawzi's estate or his deployment of the disputed powers of attorney. Any entitlement to claim altruism is, however, qualified by the possibility that his conduct could be described, at least in part, as officious and insufficiently empathetic to the plaintiff and her sons. 65That qualification is, in its turn, to be qualified by recognition that the fact of Fawzi's suicide, and the circumstances in which it occurred, introduced into the lives of all members of his family (including the plaintiff and the defendant) an element of emotional turmoil that has yet to dissipate. 66That ongoing emotional turmoil counsels caution against my acceptance of the evidence of either the plaintiff or the defendant in its entirety. 67I am prepared to accept that each of the parties, according to their lights, has endeavoured to give evidence in an honest, candid manner. I am not prepared, however, to accept that their evidence can be accepted as reliable without corroboration or, at least, critical review. The issues affecting the Hallani family have been too deep, and they have become too entrenched, for the evidence of the parties to be accepted uncritically. The grief that they share, one suspects often in private, has unfortunately acted as a wedge holding them apart. 68The defendant's contention that the plaintiff demonstrated a lack of regard for the Penrith property may have a ring of truth at a superficial level, unless and until one remembers that it was at that property, in the secure environs of the family home, that Fawzi took his own life. 69Fawzi's death remains a profound mystery to everybody. In their search for truth - that most elusive of humanity's yearnings - family members have not been able, consistently, to resist recriminations. That is understandable, but unfortunate and, ultimately, unhelpful to everybody. Nevertheless, in this sad environment it is well within reasonable contemplation that all members of the Hallani family (including the plaintiff and the defendant) felt the need to distance themselves from the Penrith property. Its sale was an imperative for everybody. 70That does not mean, however, that the plaintiff was, or could be, indifferent to financial ramifications of a sale. She was a widow, not comfortably at home in any company as she tried to make sense of what had happened and not unconstrained by social conventions of Lebanon different from those of her adopted home, Australia. A period of disorientation in her life was entirely normal. She could not remain indifferent to distribution of the proceeds of sale of the Penrith property. 71That she did not in fact remain indifferent to distribution of the sale proceeds is clearly established by the evidence. 72In or about early June 2010 she instructed her solicitors (JN Legal of Bankstown, in Sydney) to write to the defendant, calling to his attention that she had, on 25 November 2009, signed a formal "power of attorney revocation letter" in Lebanon revoking the two powers of attorney (respectively dated 5 August 2009 and 9 November 2009) upon which the defendant relies, and calling upon the defendant to account to her for the proceeds of sale. 73Unfortunately, the letter (dated 4 June 2010) that the solicitors wrote was addressed to the wrong address. It was addressed, not to the defendant's address, but to the address of a brother, from whom the defendant says he had long been estranged. 74The letter was returned to the plaintiff's solicitors, apparently opened, but clearly unclaimed. 75The defendant denies that it ever in fact came to his attention. The evidence adduced by the plaintiff falls short of proving otherwise. I must proceed on the basis that the letter did not in fact come to the defendant's attention before his transmission of funds to Lebanon in July 2010. 76The fact that the plaintiff did take the deliberate step of executing a formal instrument of revocation of the powers of attorney on 25 November 2009 lends support to her claim not to have executed the defendant's purported powers of attorney voluntarily. 77Equally, however, the revocation letter might be construed as confirmation that the plaintiff had, in fact, duly granted the powers of attorney to the defendant. 78The terms in which the revocation letter is expressed are open to contrary constructions. The primary, operative statement in the letter (in English translation) reads: "I hereby revoke you [sic] from the two powers of attorney I had given you." On the other hand the letter goes on to record: "I consider the two powers of attorney as annulled in final annulment and as if they never existed." It continues with emphatic warnings to the defendant not to act on the powers of attorney, and equally emphatic declarations to the effect that neither the defendant nor his father had authority to transact business affecting the plaintiff or her children. 79The evidence does not permit me to infer from the respective dates of the revocation letter (25 November 2009) and the Lebanese Court order (22 March 2010) that the order was sought by the defendant's father in response to an awareness on his part of the revocation letter. That possibility cannot be entirely excluded, however. 80I must return to the question of whether the two powers of attorney purportedly granted to the defendant in 2009 were valid. 81The plaintiff says she signed both instruments under coercion amounting to "duress", under "undue influence" and under protest, at a time when she was emotionally fragile and fearful of losing her children to the dominant personality of her father-in-law. 82I am not prepared to go so far as to make a finding that the powers of attorney were, in fact, the product of coercion. The defendant denies it. Both instruments were executed by the plaintiff in the presence of a notary public (Mahmoud El Khatib). Each instrument bears a certification by him to the effect that the plaintiff had, in his presence, "agreed" to execute the instrument. The certification in the second of the two instruments is to the effect that the plaintiff "had agreed with her full willingness and civil capacity for the mentioned content" of the power of attorney. 83The plaintiff invites me to discount these certifications because, she says, the notary public was from the same village as the Hallani family. 84Without further corroboration of the plaintiff's evidence, beyond that supplied by the fact and timing of her revocation letter in particular, I cannot, in the teeth of the defendant's denials, find that the powers of attorney were vitiated by any element of coercion. 85Subject to one qualification, the suggestion that the defendant should be granted powers of attorney to assist the plaintiff to sell the Penrith property, to realise the Australia Post superannuation entitlements, and to administer Fawzi's estate in Australia pending the plaintiff's return (if she should ever return) to Australia was both rational and reasonable in the context of a cohesive extended family network. 86The qualification (which is of substantial importance) is that, in and throughout the second half of 2009, all members of that extended family network - including the plaintiff and the defendant - were in an emotionally fragile state and (as both the plaintiff and the defendant must have well understood) the plans they made for administration of Fawzi's estate could only make sense on the basis that the power(s) of attorney would, and could, only be used to realise estate assets in an orderly way, and that no estate assets would, or could, be distributed without further reference to the plaintiff and the provision of her specific, express, informed consent. 87That is, in my assessment, the effect of evidence given about the circumstances in which the two disputed powers of attorney were executed. 88I accept, in particular, that when the defendant returned to Lebanon in or about November 2009 (having stayed in Lebanon for no more than about one week for Fawzi's funeral earlier in the year) he induced the plaintiff to sign the second power of attorney, inter alia, by a statement he made to her (an assurance he gave to her) to the following effect: "Listen to me. You need to sign a second power of attorney so that I can open a bank account for [you] in Australia and so I can put the [estate] money in a bank account for you and the children." 89That assurance was given to the plaintiff with knowledge, on the part of both the plaintiff and the defendant, that the plaintiff was the guardian of her sons and that the three of them, alone, were the parties entitled to the benefit of Fawzi's estate. 90In the context in which it was given, the defendant's assurance to the plaintiff included a representation by him to the effect, in substance, that he would not deal with estate property (and, in particular, he would not dispose of it) without her informed consent. 91I am comfortably satisfied that, but for that inducement (an assurance that the purpose of the power of attorney was to enable estate money to be realised for her and the children, including a representation that it would not be used to dispose of estate property without her consent), the plaintiff would not have signed the second power of attorney. 92Having induced the plaintiff to execute the power of attorney by representations as to the intended purpose, and limited operational ambit, of the instrument, it is not open to the defendant, now, to the detriment of both the plaintiff and Fawzi's estate, to contend that, as between the plaintiff (representing herself and Fawzi's estate) and himself, it was open him to transmit the sale proceeds of the Penrith property to Lebanon, and to exclusion of the plaintiff, without obtaining her specific, express, informed consent to that particular transaction. It would be both unfair and unconscionable to permit him to do so. He must be held estopped from doing so: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 at 472 as modified by Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 604 and 610-612; Delaforce v Simpson-Cook (2010) 78 NSWLR 483; Saleh v Romanous (2010) 79 NSWLR 453. 93Independently of this finding, I am not satisfied, as the defendant would have me find, that the terms of the second power of attorney possessed the clarity required to authorise him to transmit the Penrith sale proceeds to Lebanon and beyond the practical reach of the plaintiff and any representative of Fawzi's estate. 94The terms of the power of attorney, in English translation, contain contrary indications as to whether it was open to the defendant to transfer the proceeds to a destination beyond the plaintiff's control without her express knowledge or consent. There is sufficient ambiguity in the terms of the instrument to have imposed on the defendant an obligation to clarify his instructions with the plaintiff, personally, before transferring estate property otherwise than to the plaintiff herself: Geoffrey W Hill & Associates (Insurance Brokers) Pty Ltd v Squash Centre (Allawah North) Pty Ltd (1990) 6 ANZ Insurance Cases 61-012. 95Accordingly, I find that neither the terms of the second power of attorney, nor the circumstances in which the plaintiff executed the two powers of attorney, provide any justification for the transaction that the defendant effected (disposal of estate property without the knowledge or consent of the plaintiff) in July 2010. 96Moreover, I find that, when the defendant effected that transaction he was on notice that the plaintiff may not in fact consent to any such transaction. The defendant was not entitled simply to rely upon the currency of his powers of attorney unless and until served with a formal notice of their revocation. A power of attorney can be revoked or modified by informal means: Vickery v JJP Custodians Pty Ltd [2002] NSWSC 782; 11 BPR [97976] at [15]-[19], applying R v Holt (1983) 12 A Crim R 1 at 14. 97On each of 22 April 2010 and 7 May 2010 the defendant's wife (Mona), with his contemporaneous knowledge, contacted the administrators of the Australia Post Superannuation Scheme. She was not called to give evidence. The absence of evidence from her renders more readily available an inference (which I draw) that her purpose was to persuade the APSS to pay Fawzi's superannuation entitlements to the defendant: Jones v Dunkel (1959) 101 CLR 298 at 320-322. In his oral evidence, and final submissions, the defendant accepted as much, noting that the APSS would not pay out the superannuation moneys as sought. 98At the same time as the defendant, via his wife, was attempting to persuade the APSS to pay out the super, the plaintiff's solicitors (JN Legal) were also doing so, but in the plaintiff's interests. 99There is, in my assessment, sufficient evidence, in the context of the evidence generally, to infer that in early July 2010 the defendant was on notice that the plaintiff did not (as he contends) unreservedly accept that he was authorised to transact business as her attorney without notice to her. 100Perhaps it was, in fact, his realisation of this reality that led him to fear the prospect of litigation at the suit of the plaintiff. He rushed to send estate money to Lebanon, beyond the reach of the plaintiff and within the reach of his father, when prudence and fiduciary obligations that constrained his conduct both required him to do no such thing without first consulting the plaintiff afresh. 101Neither s 47 nor s 49 of the Powers of Attorney Act 2003 NSW has any material operation for the purpose of this judgment assuming, as I do, that the Act applies to the powers of attorney the subject of these proceedings. 102Those sections deal with situations in which a power of attorney is "terminated or suspended". There is no statutory definition of the expression "terminated or suspended" or variations thereof. 103Section 7(1) of the Act provides that the Act does not affect the operation of any principle or rule of the common law or equity in relation to powers of attorney except to the extent that the Act provides otherwise, whether expressly or by necessary intention. 104Under the general law, the effectiveness of a principal's termination of an agent's authority may, generally, require that notice of an intention to terminate be communicated, directly or indirectly, to the agent: GE Dal Pont, Law of Agency (Lexis Nexis, Australia, 2nd ed, 2008), para [25.38]; Majik Markets Pty Ltd v S & M Motor Repairs Pty Ltd (No 1) (1987) 10 NSWLR 49 at 54 D-E. 105However, that general rule must yield to the terms (be they contractual or otherwise) governing the relationship between principal and agent and, in this case, the terms of particular legislation governing the entitlements and obligations of an attorney. 106Section 47 protects "an attorney who does an act that would have been within the scope of the power without knowing of the termination or suspension" of the power. Section 49 provides that an attorney who does "an act or thing under" a power of attorney with knowledge of termination or suspension of the power is guilty of a criminal offence. 107The powers of attorney granted by the plaintiff to the defendant can be assumed to have been "terminated" within the meaning of these sections on 25 November 2009, when she signed her formal "revocation letter". Section 47 is predicated on an assumption that a power of attorney can be "terminated" prior to communication to the attorney of any intention on the part of the principal to terminate it. Cf, Dal Pont, Law of Agency (2nd ed, 2008), paras [26.9]-[26.10]. 108I proceed, in this judgment, on the basis that the defendant did not know of the termination of his powers (in November 2009) when he transmitted estate funds to Lebanon in July 2010. On that basis, s 49 has no application to the facts of this case. 109I also proceed on the basis that s 47 has no application to the facts because the defendant's transmission of estate funds to Lebanon in July 2010 was not "within the scope" of the power(s) of attorney granted to him. On their face, the defendant's powers were, at best, equivocal; he was not entitled to do what he did without first clarifying his authority, and his instructions, with the plaintiff personally. Section 47 is directed towards protection of an attorney who is entitled to assume that a sufficient power has continuity as well as sufficiency. The powers granted to the defendant, in the circumstances in which they were granted, were never sufficient for him to act against the plaintiff's interests by the transmission of estate funds, without her knowledge or consent, to a destination beyond her control. In the broader factual context in which powers of attorney were granted to him, the defendant is also estopped from asserting that what he did was within the scope of any power conferred upon him. 110It is sufficient, in this judgment, to decide that nothing in either of the two powers of attorney granted to the defendant can be relied upon by him as authorising conduct on his part that constituted a breach of trust. On my findings of fact, he could not be said in July 2010 to have known that his powers had been "terminated". He was, however, on notice that the plaintiff did not unreservedly accept that he was authorised to transact business as her attorney without notice to her. This enhanced his fiduciary obligations not to transfer estate funds to Lebanon, as he did, without her fully informed consent. His failure to obtain her fully informed consent lies at the heart of his breach of trust. 111In the ultimate analysis, I find that, when the defendant transmitted the net proceeds of sale of the Penrith property to Lebanon between 12-14 July 2010 or thereabouts, he did so in breach of obligations of trust owed by him to the estate of Fawzi (and, through the estate, the plaintiff and her sons) and that, accordingly, subject to further consideration of the operation of s 85 of the Trustee Act, he is personally liable to restore that money (with interest) to the estate, now represented by the plaintiff. 112Having made these findings, and thus determined the questions currently before the Court for determination, I propose to adjourn the proceedings to a future date for consideration of what (if any) directions need to be given to permit a hearing of the question whether the defendant is entitled to, and ought to be granted, relief under s 85. 113That question cannot be pre-judged. It remains an open one. It will need to be determined on its merits when listed for hearing. 114Adjournment of consideration of the s 85 question to a future date offers to both sides of the record an opportunity to work together to achieve an outcome with which all parties can comfortably live. 115I notice, without further comment, the possibility that, if the defendant is ultimately ordered to pay money to Fawzi's estate, and if his father has in fact appropriated the moneys transmitted to Lebanon by the defendant in breach of trust, the defendant may have an entitlement to recover that money from his father. I do no more than notice that as a possibility. I invite the defendant to take his own advice about that possibility. 116The possibility is worthy of notice in these proceedings if only to raise for consideration the possibility that the defendant's father may need to take into account his own exposure to liability should he take the position that these proceedings offer no personal risk to him. 117I direct that the proceedings be listed before me for directions at 9.30 am on a date [14 March 2013] that I will shortly appoint after consultation with the parties. 118I direct that the parties are at liberty to issue subpoenas for the production of documents returnable before me on that occasion. 119I reserve all questions of costs. 120I reserve liberty to apply on two days' notice.