David 2
29 Apr 1991
23 May 1996
03 Feb 2005
B.Com. (Hons), LLM.
Legalbrief sm
Name 1a

Subhead 1a

Action in “devastavit”.

Bird v Bird [2013] NSWCA 262 (16 August 2013)

The New South Wales Court of Appeal has upheld an appeal seeking damages for the tort of “devastavit” whilst dismissing the appellant’s appeal for a breach of fiduciary duty.

The appellant and her two brothers  were beneficiaries under their father’s will.  The brothers were also executors. Before their frail father died, their mother sold properties belonging to the father under a power of attorney but pocketed the proceeds without authority.  She then disbursed some of the proceeds to the two brothers. The mother subsequently died. The appellant brought an action against her brothers for knowing receipt of trust property and an action in “devastavit”. “Devastavit” is the tort committed by an executor who fails to call in and collect the assets of a an estate which results in loss to the estate.

The Court of Appeal dismissed the Barnes v Addy claim (knowing receipt of trust property) because (1) there was no evidence that the Bird brothers knew that their mother did not have authority to place the sale proceeds in her own account, and (2) there was no evidence that they knew the monies paid to them came from that source.

 However, the Court of Appeal upheld the claim in devastavit. The respondents accepted that they should have discovered that their mother had failed to properly account to their father for the proceeds of the properties which were sold. The devastavit claim failed below due in part to various set-offs which the mother would have been entitled to. There were partly disallowed on appeal, resulting in a verdict of $188,920.25 plus interest for the appellant.