Moors v Mortenson [2009] WSSC 103 (30 October 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

NALEI LII MOORS of Fogagogo, Tafuna, American Samoa.
Plaintiff

AND:

ANDREW MORTENSON of Iliili, American Samoa.
Defendant

Counsel: R Drake for plaintiff
T R S Toailoa for defendant

Judgment: 30 October 2009

JUDGMENT OF SAPOLU CJ

Background

1. The plaintiff Mrs Nalei Moors (Mrs Moors) and her husband Mr Oliver Moors (Mr Moors) were respectively aged 86 years and 85 by December 2008. They reside at Fogagogo, Tafuna, in American Samoa.

2. Prior to Mr Moors residing in American Samoa, he was a businessman in Apia, Samoa, where he was also a member of his family’s company then called the Ululoloa Dairy Co Ltd. Mr Moors received some lands from his family’s company. The relevant portion of those lands is parcel 1037 which is the subject of these proceedings. It consists of an area of 4ac.3r.20.1p and is situated at Ululoloa near Apia.

3. Mr Moors had a previous marriage from which he has children. One of his children from his previous marriage is a son named Buddy. The defendant Mr Andrew Mortenson was a close friend of Buddy.

4. In 1989, Buddy introduced the defendant to his father Mr Moors at Mr Moors residence in Fogagogo, Tafuna, in American Samoa. Mr Moors was happy to know that the defendant is an ex-rugby player as he is fond of rugby. Mr Moors was also happy to learn that the defendant is from the Seumanutafa family in Apia and he told the defendant that one of his own father’s family in Apia is the Seumanutafa family.

5. Given that Mr Moors and Mrs Moors were respectively aged 85 years and 86 years by December 2008, they must have been respectively aged 66 years and 67 years in 1989 when the defendant was first introduced to Mr Moors. Mrs Moors testified that at that time her husband was using a walker.

6. After the introduction of the defendant to Mr Moors, the defendant and Mr Moors son Buddy would go together on Saturdays to mow Mr and Mrs Moors lawn. Apparently Mr and Mrs Moors have a big lawn as their residence is situated on three acres of land. Given that Mr Moors was 66 years of age in 1989, he probably needed help in mowing his lawn.

7. At times, the defendant and Buddy also helped Mr and Mrs Moors with other family chores. In 1990 when the roof of the house of Mr and Mrs Moors was damaged by cyclone Ofa, the defendant and Buddy fixed the roof.

8. In the same year 1990, the defendant’s daughter was born. In 1991, the defendant’s son was born. The defendant and his wife and their two children were living at Iliili in American Samoa.

9. A friendly relationship was developing between Mr and Mrs Moors and the defendant. Sometimes Mr and Mrs Moors would invite to their home the defendant, his wife and their two children for dinner or Sunday toonai. Mrs Moors would also provide birthday cakes and gifts for the birthdays of the defendant’s daughter and son. However, Mrs Moors denied that when her friends were around she would refer to the defendant’s children as her grandchildren. She also denied that the relationship between Mr Moors and the defendant became almost like one of father and son even though Mr Moors trusted the defendant.

10. In 1995, Buddy left American Samoa and came to Samoa to set up a business. However, the defendant continued to mow the lawn and perform other family chores for Mr and Mrs Moors who, at times, continued to invite the defendant for dinner or Sunday toonai. The developing friendly relationship between the Moors and the defendant became a close friendship.

11. It also appears from the evidence that with the growing age of Mr and Mrs Moors who must have been 72 years and 73 years respectively by 1995, there was growing dependence by them on the defendant for mowing their lawn and doing other family chores for them, particularly as Mr Moors had been using a walker since about 1989. With their close friendship with the defendant and their continuing dependence on him, the Moors also came to trust the defendant.

12. The defendant also testified that when it became difficult for Mr Moors to go to the shop (faatutugata) to buy bread, Mr Moors would call him to go and buy the bread. Sometimes Mr Moors would sign a blank cheque and give it to the defendant to go and do the shopping for the Moors. The defendant said that when he returned with the shopping he would just give the dockets for the purchased goods to Mr Moors.

13. The defendant also testified that at some stage of his relationship with the Moors he, his wife and their two children came to refer at times to Mr and Mrs Moors as "papa" and "nana", or "dad" and "mum", and sometimes the Moors would refer to the defendant as "son". It seems to me that the use of these terms "papa" and "nana", "mum" and "dad", and "son" was indicative of the close and friendly relationship that had developed between the Moors and the defendant and his family as well as the continuing dependence of the Moors upon the defendant and the trust they came to have in him.

14. In the same year 1995, Mr Moors and the defendant came to Apia to see Mr Moors land at Ululoloa. It appears from the defendant’s evidence that it was on that occasion that Mr Moors gifted one acre of his land to him. When they returned to American Samoa, Mr Moors started to send the defendant to Samoa to clear the land at Ululoloa. Mr Moors paid for the defendant’s expenses on those trips. It appears that the defendant would clear not only Mr Moors land but also his land which had been gifted to him by Mr Moors.

15. Mr Moors health continued to deteriorate. By 2003, Mr Moors was using a wheelchair. On 27 February 2003 Mr Moors, who was then about 81 years, executed a power of attorney in favour of the defendant. This power of attorney gave wide powers to the defendant over the affairs of Mr Moors including his lands. However, there is one express limitation in that power of attorney. It is that the defendant "shall not have the power to lease, sell, improve, erect structures or build on the real property".

16. In mid 2003, Mr Moors was diagnosed with dementia which is a mental illness. On 5 December 2003, Mrs Moors was appointed by order of the High Court of American Samoa as guardian of the person and the estate of her husband.

17. Subsequently on 23 February 2004, Mrs Moors executed a power of attorney as guardian of the person and estate of her husband in favour of the defendant. Mrs Moors was then about 83 years.

18. The relevant powers in the power of attorney executed by Mrs Moors in favour of the defendant seems to be the powers contained in clauses B and D. Clauses B and D empower the defendant:

"B. To exercise my legal rights and powers including those rights and powers that I may acquire in the future with the real property. To engage in any administrative or legal proceedings or lawsuits in connection with the real property".

"D. To lease, sell, improve, erect structures or build on the real property".

19. It is the power of attorney executed by Mrs Moors in favour of the defendant that we are concerned with in these proceedings. Mrs Drake for the plaintiff placed some emphasis upon the difference between clause D of the power of attorney executed by Mrs Moors which empowers the defendant to "lease, sell, improve, erect structures or build on the real property" and the clause in the power of attorney executed by Mr Moors in favour of the defendant which expressly prohibited the defendant from doing any of those things. However, what we are concerned with in those proceedings is the power of attorney executed by Mrs Moors and not the one executed by Mr Moors.

20. After Mrs Moors executed the power of attorney of 23 February 2004 in favour of the defendant, the defendant purported to sell to his two children parcel 1037 which is the land at Ululoloa that belongs to Mr Moors and is the subject of these proceedings. At that time, the defendant’s daughter and son were about 14 years and 13 years respectively and were therefore minors.

21. Because the defendant and his children are non-resident citizens, the provisions of the Alienation of Freehold Land Act 1972 applied to the purported sale by the defendant to his children. Under ss. 4 and 6 of the Act, the sale or transfer of any freehold land to a purchaser who is not a resident citizen requires the written consent of the Head of State which is to be sought by way of an application. The written consent of the Head of State is, dated 14 September 2004. This suggests that the application for the Head of State’s consent must have been made prior to 14 September 2004. But this is not apparent from the evidence. What appears from the consent of the Head of State is that the defendant was acting as lawful attorney for Mr Moors in transferring parcel 1037 to his children. But this is not correct because the power of attorney from Mr Moors to the defendant prohibits the defendant from selling any real property of Mr Moors. It is the power of attorney from Mrs Moors to the defendant which empowers the defendant to sell real property belonging to Mr Moors.

22. Then by deed of conveyance dated 8 October 2004 but signed by the defendant on 28 September 2004, the defendant purported to sell to his two children parcel 1037 which belonged to Mr Moors at the price of US$30,000. This was a very cheap price considering that parcel 1037 has an area of 4ac.3r.20.1p, and is situated at Ululoloa near Apia.

23. The conveyance from the defendant to his children was not known to Mrs Moors as the defendant did not inform her about it. Mrs Moors only learnt about the conveyance inJune 2005 when one of her relatives in Apia informed her that the defendant had somehow acquired parcel 1037. Mrs Moors immediately lodged a caveat and revoked both powers of attorney which had been given to the defendant. Up to now, Mrs Moors has not received any money from the defendant or his children for the price of the land.

24. According to the defendant in his evidence, on 11 September 2004 he had just arrived back in American Samoa from Samoa and he went with his wife to the residence of the Moors where they met with Mr and Mrs Moors. Mrs Moors then cried and instructed him in the presence of his wife and Mr Moors to transfer the land in question to the names of the defendant’s children as they are her grandchildren. The defendant’s evidence in this regard was supported by that of his wife. Mrs Moors strongly denied that she instructed the defendant to transfer the land in question to his children. She also denied that when her friends are around she would refer to the defendant’s children as her grandchildren. She also testified that she did not know about the transfer of the land by the defendant to his children.

25. I have given careful consideration to this part of the evidence and have decided to believe Mrs Moors and disbelieve the defendant. In the first place, if Mrs Moors had wanted the defendant to transfer the land to his children, then she, herself, could have gifted the land directly to the defendant’s children. There was no need for the defendant to do that. In fact the power of attorney given by Mrs Moors in favour of the defendant does not give any power to the defendant to gift any of Mr Moors lands. Likewise the power of attorney which had been given by Mr Moors to the defendant also contains no power enabling the defendant to gift any of Mr Moors lands and it expressly prohibits the defendant from selling any of Mr Moors lands.

26. Secondly, if it is true, as the defendant said, that Mrs Moors instructed him to transfer the land in question to his children, then why does the deed of conveyance show a sale of parcel 1037 from Mr Moors to the defendant’s children at the price of US$30,000. The deed should simply have shown a gift from Mr Moors to the defendant’s children. It was not necessary to show a sale in the deed when there was no sale.

27. Thirdly, if it is true that Mrs Moors wanted to gift the land to the defendant’s children as claimed by the defendant, then the defendant did not have to convey the land by way of sale to his children and go through the trouble of applying for the consent of the Head of State. He could have simply gifted the land to his children which would not have required any such consent. This is because in terms of s5 (1) (b) of the Alienation of Freehold Land Act 1972 any bona fide alienation of freehold land without any valuable consideration in money or money’s worth is exempted from the application of the Act.

28. Fourthly, the reaction of Mrs Moors when she first learnt that the defendant had somehow acquired the said land by immediately lodging a caveat and revoking the two powers of attorney which had been executed in favour of the defendant is totally inconsistent with what the defendant said that Mrs Moors instructed him to transfer the land to his children. Mrs Moors reaction was not the reaction of someone who had wanted the defendant to transfer the land to his children as a gift.

29. Fifthly, given that parcel 1037 consists of almost 5 acres of land, it is difficult to believe that someone would just give away such a large area of land for nothing to someone who is only a friend. After all, Mr Moors had already gifted one acre of his lands at Ululoloa to the defendant.

30. For those reasons, I accept what Mrs Moors said and reject what was said by the defendant that Mrs Moors instructed him to transfer the land to his children.

Applicable law

(a) What is an attorney in this context?

31. As this is the first Samoan case where a power of attorney is a central issue it is important to be clear from the outset about the meaning of the terms "attorney" and "power of attorney". Not to be clear in mind about the meaning of those terms may affect clarity in the understanding of a case where a power of attorney is a central issue.

32. In Mozley and Whiteley’s Law Dictionary (1993) 11th ed by E.R. Hardy Ivamy, the term "Attorn" is defined as follows:

"Attorn. To turn over or entrust business to another. Hence the word attorney is used to signify a person entrusted with the transaction of another’s business".

33. Mozley and Whiteley’s Law Dictionary then defines the term "Attorney" as follows:

"Attorney. One appointed by another man to do something in his stead".

34. In respect of a power of attorney given or executed by one person in favour of another, the giver of the power is often referred to as the donor or principal and the recipient of the power is often referred to as the donee. The donee is the attorney.

35. The above definitions of the terms "attorn" and "attorney" suggest that the relationship between the donor and donee of a power is one of agency. The donor of the power is the principal and the donee or recipient of the power if the agent. Such an agent is also called the attorney of the donor of the power.

36. In Brooke’s Notary (1998) 10th ed by N.P. Ready, which was cited by counsel for the plaintiff, the learned author states at p.121:

"The person who gives the power is known as the principal or donor, and the person to whom it is given, the attorney or donee of the power. The relation thus created is one of agency and the law applicable to powers of attorney is to a large extent the law of principal and agent".

(b) What is a power of attorney?

37. In Mozley and Whiteley’s Law Dictionary (1993) 11th ed E.R. Hardy Ivamy, the term "power of attorney" Is defined, insofar as relevant for present purposes, as follows:

"Power of attorney. An authority given by one person to another to act for him in his absence, eg, to convey land, receive debts, sue, etc. The party so authorised to act is called the attorney of the party giving the authority"

38. In Brooke’s Notary (1998) 10th ed N.P. Ready, the learned author states at p.121:

"Although there is no statutory or judicial definition of a power of attorney, we may describe it as an instrument under seal by which one person authorises another to act on his behalf and in his name, as his attorney, i.e. agent, either generally or in some particular business. A power of attorney may be given by a separate instrument or be contained in a deed relating to other matters, for example a mortgage or debenture. Sealing is in all cases essential for the creation of a power of attorney in England"

39. In Law of Agency (1996) 7th ed by Professor GHL Fridman, the learned author states at p.57:

"The traditional name for a document containing the agent’s authority, when the principal is giving the agent wide general powers to act on his behalf, is ‘power of attorney’"

Construction of the power of attorney

40. The often cited authority in Australia on how to construe the words of a power of attorney is the decision of the High Court of Australia in Tobin v Broadbent (1947) 75 CLR 378. At p.390, Latham CJ, after referring to the general words of the power of attorney in that case, said:

"It is a long established rule that the general words in a power of attorney are to be strictly construed: Attwood v Mannings [1827] EngR 8; (1827) 7 B & C 278 [108 E.R. 727]; Bryant v La Banque du Peuple [1893] UKLawRpAC 5; [1893] AC 170".

41. Likewise, Starke J, after discussing the wide, general terms of the power of attorney in that case, said at p.398:

"Comprehensive as are these terms the only actual authority given to Hodgetts is to act for and on behalf of his principals; nowhere is any authority given to him to use the appellants’ shares and investments for his own private purposes...

"In my opinion the powers of attorney are so comprehensive in their terms that they authorize a pledge of the appellants shares and securities by the attorney in the conduct and management of their affairs for and on their behalf. But they do not authorize the attorney to pledge their shares and securities for the purpose of his own business affairs".

42. Dixon J, the other member of the Court, said to the same effect at p.401:

"Prima facie, a power, however widely its general words may be expressed, should not be construed as authorizing the attorney to deal with the property of his principal for the attorney’s own benefit. Something more specific and quite unambiguous is needed to justify such an interpretation. ‘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 to others of his principal’s property’: per Russell J, Reckitt v Barnett Pembroke and Slater Ltd [1928] 2 KB 244, at p.268 approved in the House of Lords [1929] AC 176, at p.183 and p.195."

43. In Sweeney v Howard [2007] NSWSC 852, Windeyer J, after referring to the 17th and 18th editions of Bowstead on Agency, said at para 55:

"And in these editions of Bowstead a new Article 23 has been included as follows:

" ‘Unless otherwise agreed, authority to act as agent includes only authority to act for the benefit of the principal’

"This statement in Article 23 is supported in Halsbury’s Laws of Australia in Title 15 on Agency, Chapter 2 ‘Authority of the Agent’ at paragraph 15.75 where it is said:

" ‘The language of a power of attorney however widely expressed will not prima facie be construed as authorising the agent to deal with the principal’s property for his or her own purposes or otherwise act in his or her own interests to the exclusion of those of the donor’

"The authority given for this statement is Tobin v Broadbent".

44. An attorney in whose favour a power of attorney is given is an agent of the donor of the power. An agency relationship arises between the attorney as agent and the donor of the power as principal. This agency relationship gives rise not only to contractual but also to fiduciary duties on the part of the agent and is a fiduciary relationship. We are not concerned with the contractual duties of an agent in this case. We are only concerned with its fiduciary duties.

45. The nature of a fiduciary relationship was explained in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 where Mason J stated at pp 96-97:

"The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations...viz., trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person n the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position"

46. At p. 142 of Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, Dawson J noted that the notion which underlies all fiduciary obligations in a fiduciary relationship is disadvantage, vulnerability and reliance. His Honour said:

"[The] notion underlying all the cases of fiduciary obligation is that inherent in the nature of the relationship itself is a position of disadvantage or vulnerability on the part of one of the parties which causes him to place reliance upon the other and requires the protection of equity acting upon the conscience of that other".

47. However, in Hospital Products Ltd, Gibbs CJ identified inequality of bargaining power as an indicia of a fiduciary relationship in some cases.

48. Regarding the nature of a fiduciary obligation, counsel for the plaintiff referred to the decision of the English Court of Appeal in Bristol and West Building Society v Mothew [1998] Ch 1 at p.8 where Millet LJ stated:

"A fiduciary is someone who has undertaken to act on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the duty of loyalty. The principal is entitled to the single minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith, he must not make a profit out of his trust, he must not place himself in a position where his duty and his interest may conflict, he may not act for his own benefit or the benefit of a third person without the informed consent of his principals. This is not intended as an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. As Dr Finn pointed out in his classic work, Fiduciary Obligations (1977) page 2, he is not subject to fiduciary obligations because he is a fiduciary, it is because he is subject to them that he is a fiduciary".

49. Counsel for the plaintiff also referred to Essays on Torts (1989) ed by PD Finn where the learned author stated at pp. 165-166:

"A quite different appreciation of the fiduciary principle – and the one consonant with our law – gives it a more particular, less embracing, focus. It sees its object as being no more than to secure a loyal service of the beneficiary’s interest and this is done by proscribing disloyalty in that service. The fiduciary is not to use his position or the power or opportunity it gives him to serve an interest other than his beneficiary’s – be this his own or a third party’s. Translated into legal doctrine this produces two overlapping proscriptions. A fiduciary –

"(a) cannot use his position to his own or a third party’s advantage; or

"(b) cannot, in any matter within the scope of his service, have a personal interest or an inconsistent engagement with a third party –unless this is freely and informedly consented to by his beneficiary or is authorised by law"

Discussion

(a) Was the defendant authorised to transfer or gift the land to his children

50. To the question of whether the defendant was authorised to transfer or gift to his children the land, namely, parcel 1037 which belongs to Mr Moors, the short answer is no. I have already concluded on the evidence that Mrs Moors who had been appointed guardian of the person and estate of Mr Moors did not instruct the defendant to transfer or gift the land to his children who were minors. Mrs Moors was not even informed by the defendant about such a transfer. So she did not know about it. The first time Mrs Moors learnt of the transfer was when one of her relatives in Apia informed her that the defendant had somehow acquired the land. In these circumstances it cannot be said that Mrs Moors orally authorised the defendant to transfer the land to his children. The next question is whether under the power of attorney granted in favour of the defendant by Mrs Moors the defendant was authorised to transfer the land to his children.

51. There are two clauses in the power of attorney granted by Mrs Moors in favour of the defendant to be considered. These are clauses B and D. Clause D which is expressed in specific terms expressly empowers the defendant "to lease, sell, improve, erect structures or build on the real property". This specific power does not authorise the defendant to gift or transfer the land to his children or any other third party for no valuable consideration.

52. The power given under clause B is expressed in general terms and includes the power and it includes the power for the defendant to exercise Mrs Moors legal rights and powers including those rights and powers that Mrs Moors may acquire in the future with the real property. As pointed out by Latham CJ in Tobin v Broadbent (1947) 75 CLR 378 at p. 390, it is a long established rule that the general words in a power of attorney are to be strictly construed. At p. 398, Starke J stated to the effect that the comprehensive terms of the power of attorney in that case did not authorise the attorney to use for his own business or private affairs the shares and investments of the donor of the power. Then at p. 401, Dixon J in a passage worth quoting again stated:

"Prima facie, a power, however widely its general words may be expressed, should not be construed as authorizing the attorney to deal with the property of his principal for the attorney’s own benefit. Something more specific and quite unambiguous is needed to justify such an interpretation. ‘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 to others of his principal’s property: per Russell J, Reckitt v Barnett Pembroke and Slater Ltd [1928] 2KB 244, at p.268 approved in the House of Lords [1929] AC 176, at p.183 and p.195."

53. In Sweeney v Howard [2007] NSW SC 852 at para 55, Windeyer J cited a passage from the 17th and 18 editions of Bowstead on Agency which is also worth quoting again:

"Unless otherwise agreed, authority to act as agent includes only authority to act for the benefit of the principal."

54. Still in para 55 of his judgment, Windeyer J also cited from Halsbury’s Laws of Australia in Title 15 on Agency, Chapter 2, para 15.75 the following passage which is also worth quoting again:

"The language of a power of attorney, however widely expressed, will not prima facie be construed as authorising the agent to deal with the principal’s property for his or her own purposes or otherwise act in his or her own interests to the exclusion of those of the donor."

55. Applying these principles of construction to the widely expressed general words of clause B of the power of attorney from Mrs Moors to the defendant, I conclude that they do not authorise the defendant to gift or transfer to his children Mr Moors land for no valuable consideration.

56. Thus the defendant had no authority whether by oral instruction from Mrs Moors or under the power of attorney from her to transfer the land to his children as he did. The deed of conveyance by way of a purported sale from the defendant to his children should therefore be declared null and void.

(b) Was the defendant in breach of his fiduciary obligations as attorney and agent of Mrs Moors

57. The relationship between Mrs Moors as donor of the power of attorney and the defendant as donee of that power was one of principal and agent. An agency relationship is one of the well recognised fiduciary relationships. Such relationships are sometimes referred to as relationships of trust and confidence: see, for example, Hospital Products Ltd v United Sates Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, per Mason J at p 96-97; Bristol and West Building Society v Mathew [1998] Ch 1 per Millet LJ at p.8. As pointed out by Mason J in Hospital Products Ltd v Unite States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at pp 96-97:

"The critical feature of these relationships is that the fiduciary undertakes or agrees to act for on behalf or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position."

58. The distinguishing obligation of a fiduciary is the duty of loyalty. The principal is entitled to the single minded loyalty of his fiduciary: Bristol and West Building Society v Mothew [1998] Ch 1, per Millet LJ at p.8. In the same case, Millet LJ, in a passage already quoted, referred at p. 8 to certain fiduciary obligations:

"A fiduciary must act in good faith, he must not make a profit out of his trust, he must not place himself in a position where his duty and his interest may conflict, he may not act for his own benefit or the benefit of a third person without the informed consent of his principals. This is not intended as an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary."

59. The fiduciary relationship between Mrs Moors as principal and the defendant as agent involved a high degree of trust and confidence placed by Mrs Moors in the defendant. This high degree of trust and confidence started in 1989 and developed over the years between the Moors and the defendant. This was largely due to the dependence of the Moors on the defendant to do physical and other work for them because of their advanced ages. This relationship became one of a close friendship between the Moors and the defendant.

60. On 27 February 2003 Mr Moors who was then 81 years executed a power of attorney in favour of the defendant which gave the defendant wide powers over his affairs including his lands. In mid 2003 Mr Moors was diagnosed with dementia and on 5 December 2003 Mrs Moors was appointed guardian of the person and estate of Mr Moors. On 23 February 2004, Mrs Moors who was then 83 years executed a power of attorney in favour of the defendant.

61. The defendant then purported to transfer the land which belonged to Mr Moors to his children, who were minors, pursuant to the power of attorney given to him by Mrs Moors. The purported transfer was done by deed of conveyance dated 8 October 2004 but signed by the defendant on 28 September 2004. Even though the deed of conveyance shows a sale, what actually happened was a gift or a transfer of the land to the defendant’s children for no valuable consideration.

62. Mrs Moors was not informed of the transfer of the land to the defendant’s children and therefore did not know anything about it until later when she was informed by a relative that the defendant had somehow acquired the land. So Mrs Moors did not orally authorise the defendant to transfer the land to his children. There is also nothing in the power of attorney, properly construed, which authorised the defendant to transfer the land to his children.

63. In these circumstances, the defendant as fiduciary of Mrs Moors was clearly in breach of the relationship of trust and confidence that existed between him and Mrs Moors. This was due to the breach by the defendant of the fiduciary obligations which required him as a fiduciary to act in good faith and not to act for his own benefit or the benefit of a third person without the informed consent of his principal.

64. Accordingly, the deed of conveyance from the defendant to his children is declared null and void and should be set aside.

Damages

65. The plaintiff has claimed, inter alia, for general damages for stress and anxiety. The submissions in support of the claim for general damages are very brief. I do not propose to further delay the delivery of this judgment while I continue my research into the area of damages in this type of case.

66. If the plaintiff wants to continue with her claim for general damages for stress and anxiety, then further submissions supported by relevant authorities need to be filed.

Other issues raised on behalf of the plaintiff

67. In view of the findings I have already made, it is not necessary to deal with the other issues such as fraud, unjust enrichment, lack of capacity and illegality raised on behalf of the plaintiff.

Conclusions

68. From the foregoing discussion, I have arrived at these conclusions:

(a) The deed of conveyance between Mr Moors, signed by the defendant as his attorney, and the children of the defendant and which is registered under No. 13609c is declared null and void.

(b) The said deed of conveyance is also ordered to be cancelled.

(c) If the plaintiff wants to pursue her claim for general damages for stress and anxiety, then further submissions together with relevant authorities are ordered to be filed and served in 7 days. The defendant will then have 7 days to file and serve submissions in reply.

(d) Costs should follow the event. The successful plaintiff is therefore to file memorandum as to costs in 10 days if agreement cannot be reached between the parties.

CHIEF JUSTICE

Solicitors
Drake & Co for plaintiff
Toa Law for defendant