Overstepping the fiduciary mark

The decision of Justice Boddice in The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban & Anor is the latest in a series of Supreme Court actions arising out of Ms Ban’s management of the affairs of her long-time elderly friend, ADF. Following on from an earlier decision in which it was determined that Ms Ban held her share of funds in a joint bank account with ADF on trust for him, this most recent case concerned a claim for an account of funds withdrawn from that account on the basis that as trustee Ms Ban owed fiduciary duties to ADF. The purpose of the accounting was to determine whether any withdrawals had been made in breach of trust, which would give rise to equitable remedies. The primary question for determination was therefore whether the withdrawals were applied for the benefit of ADF. Having regard to all the circumstances of the case, his Honour found that although some transactions were for ADF’s benefit, substantial withdrawals, (including a significant portion of a $700,000 transfer), were not applied for his benefit, and were therefore made in breach of fiduciary obligation, giving rise to equitable rights and remedies.