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Key decisions

  • Gill v Garrett [2020] NSWSC 795
  • Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85
  • Council of the Law Society of New South Wales v Zhukovska [2020] NSWCA 163
  • Re Hartley [2020] QSC 251
  • Dodd v Dodd [2020] NSWSC 1094
  • Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064
  • Muir v Angeles [2020] NSWSC 1056
  • Olsen v James [2020] NSWSC 1015

Carer liable for loss arising from breach of fiduciary duty and unconscientious dealing

Jason Gill lived in Dr Bill Garrett’s home for 12 years before Garrett’s death in 2015. Gill brought proceedings alleging that he was promised Garrett’s home after Garrett’s death provided he cared for Garrett until then. The claim was based in contract and equitable estoppel. Alternatively he sought restitution for the value of the care services. All these claims failed. Gill was left $200,000 in Garrett’s will. His claim for further family provision also failed.

Garrett’s executors sought a writ of possession, which was granted. They also sought equitable compensation by reason of loss suffered from Gill’s breach of fiduciary duty and unconscionable conduct. These claims mostly related to ATM and branch-assisted cash withdrawals totalling $299,216 made by Gill on Garrett’s bank accounts following Garrett suffering a stroke in 2008 until Garrett’s death. 

The executors claimed $142,100 of these funds, alleging that when Gill undertook these transactions he accepted office as a fiduciary to act for and on behalf and in the interests of Garrett. Alternatively, it was alleged that Garrett was to Gill’s knowledge in a position of special disadvantage by reason of diminished cognition, physical disabilities and Gill’s control over him, such that Gill actions amounted to unconscionable conduct. Gill justified his withdrawals as relating to their mutual living expenses and being authorised by Garrett.

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