Australia, July 24 -- New South Wales Land and Environment Court issued text of the following judgement on June 24:

1. These proceedings concern the estate of the late Frank Aquilina, who died on 6 February 2022 at the age of 94. He was survived by his three adult children, John Aquilina, Rita Angus and Rosemarie Moore. I will use the same naming convention as used by the parties during the hearing. Without intending any disrespect to anyone, I will refer to the deceased and his three children by their given names.

2. The dispute concerns some dealings that were undertaken by the parties in 2019 and 2020 at a time when Frank was in declining health and in full-time residential care. In 2008 Frank had executed a power of attorney in favour of his wife Vicky and, in default of Vicky, his three children as joint and several attorneys. Vicky died in 2012, so at the time of the relevant transactions each of John, Rita and Rosemarie held a power of attorney to act on Frank's behalf.

3. Between 2017 and 2019 Rosemarie's marriage to her husband Malcolm, to whom she had been married for about 30 years, was ending in quite acrimonious circumstances. By early to mid-2018 it was becoming clear she needed funds to be able to purchase her husband's share of what had been their matrimonial home and, in the circumstances to which I will refer in more detail in due course, her financial needs came to be met in the following way.

Relevant transactions

4. In August 2019 Rosemarie used her access to Frank's CommSec trading account to sell shares in two listed companies, Argo and Origin Energy. She sold 100,902 Argo shares and 19,481 Origin Energy shares. The gross proceeds of the sale of the Argo shares were $834,464.06 and the gross proceeds of the sale of the Origin shares were $138,899.53. The total proceeds of sale, less commission, were deposited into a bank account where they were held on Frank's behalf for several months. In February 2020, after Rosemarie had reached a final settlement with her husband, she withdrew the sum of $813,836 which she used to fund the property settlement.

5. Rosemarie repaid that amount, plus interest calculated at 2.99% per annum for the whole of the period during which the principal sum was outstanding in two ways. So far as interest was concerned, she made weekly cash payments between about May 2020 and May 2022 when probate was granted. So far as the principal was concerned and also so far as concerned the balance of her obligation to pay interest, she repaid these amounts by set-off against what she was owed on the distribution of the estate.

6. It follows that the whole of the borrowed funds have been repaid with interest. I have described the sum of $813,836 as "borrowed funds" advisedly because that is how they were described by all of the parties in these proceedings. It was not in dispute that the advance that was made for Rosemarie's benefit in February 2020 was an advance of loan funds nor was it in dispute that she was under an obligation to pay interest in respect of that borrowing. It was also not in dispute that she was permitted to pay her outstanding obligations under the loan arrangement by set-off against what she was owed from the estate.

7. However, Rita and John say that the dealings that I have just described were undertaken by Rosemarie in breach of her fiduciary duty as an attorney and that the sale of the shares that occurred in August 2019 caused a loss to the estate that has not been adequately compensated by the repayment of the borrowed funds plus interest.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197e38b9cf3f322b477bed59)

Disclaimer: Curated by HT Syndication.