Alcazar-Stevens v Stevens - [2017] ACTCA 12

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Alcazar-Stevens v Stevens
Citation:	[2017] ACTCA 12
Hearing Date:	13 February 2017
DecisionDate:	7 April 2017
Before:	Murrell CJ, Elkaim and Rangiah JJ
Decision:	Leave to appeal granted. Appeal dismissed with costs.
Catchwords:	APPEAL – POWERS OF ATTORNEY – STATUTORY INTERPRETATION – Appeal against extension of time to make an application for compensation under s 50(1) – Whether extension should have been refused because respondent had no reasonable prospects of establishing standing – Whether primary judge erred by misconstruing s 50(1) – Whether primary judge erred by failing to find that the respondent lacked any reasonable prospects of establishing standing
Legislation Cited:	Administration and Probate Act 1929 (ACT) ss 32, 38A, 39, 88 Family Provision Act 1969 (ACT) s 8 Guardianship and Management of Property Act 1991 (ACT) s 8 Powers of Attorney Act 1956 (ACT) s 15 Powers of Attorney Act 2006 (ACT) ss 3, 8, 10, 13, 27, 34, 38, 40, 41, 42, 47, 48, 50, 60, 74, 80, 81, 84
Cases Cited:	Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; 216 CLR 109 Byers v Overton Investments Pty Ltd [2001] FCA 760; 109 FCR 554 Despot v Registrar General (NSW) [2013] NSWCA 313 Hunter Valley Developments v Cohen [1984] FCA 176; 3 FCR 344 Millington v Wilkie [2005] NSWCA 45; 62 NSWLR 322 Onus v Alcoa of Australia Ltd [1981] HCA 50; 149 CLR 27 Ramage v Waclaw (1988) 12 NSWLR 84 Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 12; 48 FCR 83
Parties:	Catherine Alcazar-Stevens (Appellant) Alexander Stevens (Respondent)
Representation:	Counsel Mr M Orlov (Appellant) Mr W Sharwood (Respondent)
Solicitors Elringtons Lawyers (Appellant) Snedden Hall & Gallop Lawyers (Respondent)
File Number(s):	ACTCA 26 of 2016
Decision under appeal:	Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Mossop AsJ Date of Decision: 11 July 2016 Case Title: Stevens v Alcazar-Stevens Citation: [2016] ACTSC 170

THE COURT:

On 11 July 2016, the primary judge granted the respondent an extension of time to make an application for an order under s 50(1) of the Powers of Attorney Act 2006 (ACT) (POA Act). This is an application for leave to appeal against that interlocutory judgment.

Section 50 of the POA Act provides, relevantly:
50 Compensation for failure to comply with Act
(1) An attorney under a power of attorney may be ordered by the Supreme Court to compensate the principal (or, if the principal has died, the principal’s estate) for a loss caused by the attorney’s failure to comply with this Act in the exercise of a power.
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(3) If the principal or attorney has died, the application for compensation must be made to a court within 6 months after the day of the death.
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(5)The Supreme Court may extend the application time under subsection (3)
...
The issue before this Court is whether the extension of time should have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alcazar-Stevens v Stevens

Details

AGLC: Alcazar-Stevens v Stevens [2017] ACTCA 12
Case: [2017] ACTCA 12
Decision Date: 7 April 2017

CaseChat Overview and Summary

The appeal concerned the interpretation of section 50(1) of the *Legal Profession Uniform Law Application Act 2014* (NSW) and the powers of an attorney. The primary dispute revolved around whether the respondent, as an attorney for a third party, had standing to apply for an extension of time to make a compensation claim under that section. The appeal was heard by Murrell CJ, Elkaim and Rangiah JJ.

The central legal issues before the appellate court were whether the primary judge had erred in granting an extension of time to the respondent, specifically by misconstruing section 50(1) of the *Legal Profession Uniform Law Application Act 2014* (NSW). This included determining whether the primary judge ought to have refused the extension on the basis that the respondent lacked reasonable prospects of establishing the necessary standing to make the application.

The Court of Appeal found that the primary judge had not erred in their interpretation of section 50(1). The reasoning focused on the scope of the attorney's authority and the conditions under which an extension of time could be granted. The Court concluded that the respondent did possess the requisite standing to bring the application.

Leave to appeal was granted, but the appeal itself was dismissed with costs.

Orders

Orders of the court

Leave to appeal granted. Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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