At the time of the court proceedings in January 2024 between Barry McGregor and his son Whatarangi Rogers, Barry was 82 and Whatarangi was in his 40s. McGregor v Rogers [2024] NSWSC 121.

In 2001, Barry purchased a block of flats in Guyra, NSW, for $18,000. It was agreed that Whatarangi contributed $15,000 towards the purchase price. Whatarangi claimed that he contributed more. He understood that the property was being purchased for him as his first investment property and believed it was registered in his name. Barry claimed that the property was his investment and that the $15,000 was a loan.

In 2004, Barry was sentenced to 20 years’ imprisonment for murder. Before being sentenced, he executed a power of attorney appointing Whatarangi as his attorney.

In 2003, Whatarangi discovered that the property was not in his name. He confronted his father and accused him of lying about the arrangement. In 2011, Whatarangi used the power of attorney to transfer the property into his own name. When asked about this during the hearing, he stated that it was the right thing to do.

Barry lodged a caveat to protect his interest.

In the judgment, the court found that either the entire purchase price had been provided by Whatarangi, or at least $15,000. His Honour did not accept that the $15,000 was a loan.

There is no doubt that Whatarangi acted in breach of his fiduciary duty by transferring the property to himself using the power of attorney. However, because he was the beneficial owner, the judge found there was no utility in making a formal finding on this point.

Barry was ordered to remove the caveat immediately and to pay Whatarangi’s costs.

This case is another example of the problems that can arise in families due to a lack of clarity in arrangements entered into.