Alcazar-Stevens v Stevens
[2017] ACTCA 12
•7 April 2017
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 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 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.
…
(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.
…
(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 been refused on the basis that the respondent has no reasonable prospects of proving that he has standing to bring an application for compensation under s 50(1) of the POA Act.
Given that the Court concludes that the application for leave to appeal should be allowed but the appeal should be dismissed, it is convenient to refer to the matter as an appeal.
Background
Luisa Aida Maldonado (the deceased) died on 25 November 2015, leaving two daughters and three sons. Under the deceased’s will, her daughters are the beneficiaries of her estate. Her sons are not beneficiaries.
One of the deceased’s daughters, Constance Stevens, was named as executor under the will, but she has not applied for probate. The appellant is the deceased’s other daughter. The appellant was the deceased’s attorney under an enduring power of attorney dated 3 March 2011. The enduring power of attorney was revoked upon the deceased’s death by the operation of s 60 of the POA Act.
The respondent is one of the deceased’s sons. He alleges that while the deceased was still alive, the appellant used her power of attorney to sell land owned by the deceased for the sum of $497,000. The respondent alleges that the appellant then paid $150,010 of the proceeds to herself and used another $90,000 to retire a loan she and her husband had taken out. The appellant also paid $150,010 to her sister, the executor. The appellant admits the transactions, but says that they were carried out in accordance with her mother’s wishes.
The respondent claims that the appellant’s conduct involved “conflict transactions” which were made in contravention of s 42(3) of the POA Act. He alleges that by reason of those transactions, the deceased’s estate has suffered a loss of $390,020. He wishes to seek an order under s 50(1) of the POA Act, that the appellant pay compensation to the estate of the deceased. As no such application had been made within the 6 month period prescribed under s 50(3), the respondent sought an extension of time pursuant to s 50(5) of the POA Act.
The proceeding before the primary judge
The only issue in dispute before the primary judge concerned the respondent’s standing to bring an application under s 50(1) of the POA Act. The respondent claimed to have a sufficient interest in the estate to apply, as he proposed to bring an application for a family provision order under the Family Provision Act 1969 (ACT), and a proceeding challenging the validity of the deceased’s will.
10. The appellant submitted that only the executor or administrator of a deceased estate, or the Public Trustee and Guardian, has standing to bring an application under s 50(1) of the POA Act and, accordingly, the respondent should be refused the extension of time.
11. The primary judge rejected the appellant’s argument. His Honour noted that s 50 of the POA Act is silent as to who may make an application. In contrast, ss 27, 80, 81 and 84 of the POA Act expressly identify who may make an application under those provisions. His Honour considered that if the intention of the legislature had been to confine the persons at whose instigation an application under s 50 could be made, it would have been similarly easy to do so. His Honour said that the starting point was that under s 50, a statutory power is given to the Court in terms which do not confine the class of persons who may invoke it.
12. The primary judge noted that any order made under s 50 of the POA Act must involve payment to the principal or the principal’s estate and nobody else. His Honour also noted that there is a statutory regime under the Administration and Probate Act 1929 (ACT) (Administration and Probate Act) for representation of the estate and for replacement of the representative. His Honour stated that while an application under s 50 of the POA Act would usually be made by either the principal or the representative of the estate, the regime under the Administration and Probate Act did not necessarily imply that those persons were exclusively entitled to make such an application.
13. The primary judge noted that the predecessor to the POA Act, the Powers of Attorney Act 1956 (ACT) (the 1956 Act) contained a provision (s 15) permitting applications to the Court to remedy a breach of duty by an attorney under an enduring power of attorney. That section specified that the application could be made by the public trustee, a trustee company or, with the leave of the court, “some other person”. His Honour said that there was nothing in the POA Act or any relevant extrinsic material to indicate an intention to reduce the range of persons able to seek a remedy for a breach of duty by an attorney.
14. His Honour concluded that given the protective purposes behind the POA Act generally, and s 50 in particular, the section should not be interpreted as being confined to applications made by the principal, a representative of the principal or the principal’s estate. His Honour decided that although the respondent had not commenced proceedings to challenge the validity of the will or for family provision, he had a sufficient interest to make an application under s 50(1) of the POA Act. His Honour granted the extension of time.
The parties’ submissions on appeal
15. The appellant’s written submissions summarise her argument as follows:
11. The only issue is whether the respondent has standing to bring an application for a compensation order in favour of the estate under s 50 of the POA Act.
12. The appellant submits that the respondent lacks standing because, on the proper construction of the POA Act, where the principal has died, only a person who is entitled at law to represent the estate may bring an application for a compensation order under s 50 of the Act, and the respondent is not such a person.
13. Alternatively, the appellant submits that neither the fact that the respondent is an “eligible person” for the purpose of seeking a family provision order under the Family Provision Act 1969 (ACT), nor that the respondent would be entitled to share in his mother’s estate upon intestacy if he succeeded in challenging the validity of the will, is a sufficient basis to give him standing to invoke the court’s jurisdiction in the absence of any evidence to show that he has a prima facie case for a family provision order to be made in his favour or that there is any real and substantial basis for any challenge to the validity of his mother’s will.
16. The appellant’s primary submission is that on the proper construction of the POA Act, only a person who is entitled to represent the estate may bring an application for compensation under s 50(1). The appellant submits that the statutory right of action created by s 50(1) is a chose in action belonging to the principal, which forms part of the principal’s estate when the principal dies. The appellant notes that under s 38A of the Administration and Probate Act, the real and personal property of a deceased person vests in the Public Trustee and Guardian until representation of the estate is granted to an executor or administrator, at which point the real and personal estate passes to and becomes vested in the executor or administrator pursuant to s 39. The appellant argues that the legislature enacted s 50 of the POA Act with the Administration and Probate Act in mind, and it was not the legislative intention to enlarge the class of persons entitled to act in a representative capacity on behalf of the principal’s estate. The appellant submits that only an executor or administrator, or, in the absence of such a person, the Public Trustee and Guardian (pursuant to an order made under s 88 of the Administration andProbate Act), may bring an application for relief under s 50(1) of the POA Act.
17. The appellant submits that the primary judge erred in failing to rule that the respondent lacked standing to bring an application under s 50(1) of the POA Act.
18. The appellant’s alternative argument was not developed in her written submissions, nor was that argument mentioned in her oral submissions.
19. The respondent submits that the appeal should be dismissed, essentially for the reasons given by the primary judge.
The legislation
20. Section 13(1) of the POA Act provides that an adult (called the “principal”) may, by a power of attorney, appoint one or more people to do anything for the principal that the principal can lawfully do by an attorney. Section 3 defines “power of attorney” as a general power of attorney or an enduring power of attorney, but does not provide a substantive definition of the expression. In Despot v Registrar-General (NSW) [2013] NSWCA 313 at [48], a power of attorney was described as “a formal instrument by which authority or power to represent the donor is conferred on the donee.”
21. Section 8 of the POA Act states that an enduring power of attorney is a power of attorney that is not revoked by the principal becoming a person with impaired decision-making capacity. Section 13(2) provides that by an enduring power of attorney, an adult may appoint one or more people to do anything in relation to certain matters, including property matters. A “property matter” is defined broadly in s 10 to mean a matter relating to the principal’s property.
22. Part 4.3 of Ch 4 of the POA Act has the heading, “Things attorneys can and cannot do”. Section 34 provides that a power of attorney does not authorise the attorney to do anything that would result in a benefit being given to the attorney, unless that is expressly authorised under the power of attorney. Section 38 provides that an enduring power of attorney does not authorise an attorney to make a gift of all or any of the principal’s property to anyone else unless the power of attorney expressly authorises the making of the gift. Section 40 applies if an enduring power of attorney expressly authorises the payment of reasonable living expenses for a named person, and operates to limit the payments to reasonable costs of five categories of living expenses. Section 41 allows an attorney under an enduring power of attorney to provide from the principal's estate for the needs of a dependant of the principal, but, unless there is a contrary intention expressed, such provision is limited to what is reasonable.
23. Part 4.4 of Ch 4 has the heading “Obligations of attorneys and others”. Section 42(3) provides that an attorney may enter into a conflict transaction only if the principal authorises the transaction, conflict transactions of that kind, or conflict transactions generally, in a power of attorney. The expression “conflict transaction” is defined in s 42(1) as a transaction that results, or may result, in conflict between the duty of an attorney towards the principal and either the interests of the attorney (or a relative, business associate or close friend of the attorney) or another duty of the attorney.
24. Section 47 requires that an attorney for a property matter under an enduring power of attorney must, while the principal has impaired decision-making capacity, keep accurate records and accounts of all dealings and transactions made under the power. Section 48(1) provides that an attorney for a property matter under an enduring power of attorney must, while the principal has impaired decision-making capacity, keep the attorney’s property separate from the principal’s property.
25. Chapter 7 has the heading “Proceedings and rights”. Section 74 defines the expression “interested person” in relation to a power of attorney as an attorney, the principal, a relative of the principal, the public advocate, the Public Trustee and Guardian, a guardian of the principal, a manager of the principal, and a person prescribed by regulation.
26. Section 27 of the POA Act applies where two or more attorneys have been appointed and there is a deadlock in decision-making. Section 27(2) provides that one or more of the attorneys or another interested person, as defined in s 74, may apply to the ACAT for directions or an order.
27. Section 80(1) and 81(2) of the POA Act allow the principal to apply to the Supreme Court for particular orders.
28. Section 84(3) of the POA Act provides that an interested person may apply to the ACAT for access to the principal. For the purposes of that section, “interested person” is defined in s 85(5) as a relative of the principal, a person who is a carer of the principal or has been a carer of the principal in the last 12 months, and a lawyer or doctor acting on behalf a member of the principal’s family or a relative of the principal.
29. The POA Act replaced the 1956 Act. Section 15 of the 1956 Act provided:
15 Relief for breach of duty—enduring powers of attorney
(1) The public trustee, a trustee company or, with the leave of the court, some other person, may commence and maintain a proceeding in that court in the name and for the benefit of the donor of an enduring power of attorney for relief against the donee (including the payment of compensation) because of a breach of the donee’s duty as attorney occurring while the donor was incapacitated.
…
(3) If the court gives judgment for the donor, it shall make such order as is just with respect to the payment of any money ordered to be paid.
…
30. The following provisions of the Administration and Probate Act are relevant to this matter:
38AEstate to vest in public trustee and guardian until grant
On the death of a person, the real and personal property of the deceased person vests in the public trustee and guardian in the same way, and to the same extent, as the personal estate and effects of a deceased person formerly vested in the Ordinary in England.
39Real and personal estate to vest in executor or administrator
On the grant of representation of the estate of any deceased person, all real and personal estate of which the person dies seised or possessed of, or entitled to, in the ACT, and that is unadministered at the date of the grant, passes to and becomes vested in the executor to whom probate has been granted or the administrator for all his or her estate and interest therein in the following way:
(a)on testacy in the executor or administrator with the will annexed;
(b)on intestacy in the administrator;
(c)on partial intestacy in the executor or administrator with the will annexed.
Consideration
31. The appellant’s written submissions state that, “[t]he only issue is whether the respondent has standing to bring an application for a compensation order in favour of the estate under s 50 of the POA Act”. As will be demonstrated, that statement misconceives the issue.
32. It is important to bear in mind that the application at first instance was an interlocutory application for an extension of time under s 50(5) of the POA Act. An extension of time would allow the respondent to bring a substantive proceeding under s 50(1) for an order that the appellant pay compensation to the estate for loss caused by her alleged engagement in conflict transactions in breach of s 42(3) of the POA Act. The issue of the respondent’s standing arose in this limited context. However, the appellant approached the interlocutory application as if his Honour was required to determine that the respondent had standing to bring the substantive proceeding in order to grant an extension of time.
33. The ultimate question in the interlocutory application was whether the Court’s discretion should be exercised in favour of allowing an extension of time. It is well established that the factors influencing the exercise of such a discretion include the explanation for the delay, the length of the delay, any prejudice to the respondent and the merits of the substantive proceeding: see, for example, Hunter Valley Developments v Cohen [1984] FCA 176; 3 FCR 344, 348-349 per Wilcox J. At issue in the interlocutory application was whether the proposed proceeding under s 50(1) of the POA Act had sufficient merit to warrant an extension of time. In such a context, the merits of the proposed proceeding are not finally determined, subject to one exception. The exception is that a decision to refuse an extension of time on the basis that the proposed proceeding has no reasonable prospects of success is effectively a decision to strike out the proposed proceeding: see Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 12; 48 FCR 83, 98 per French J.
34. In order for an applicant to succeed in a proceeding under s 50(1) of the POA Act, the applicant must prove that he or she has standing. In considering the application for an extension of time, the issue for the primary judge was whether the respondent had no reasonable prospects of ultimately proving his standing.
35. However, the parties did not present the issue to the primary judge in a nuanced way. Thus, the appellant has described the “only issue” in the appeal currently before the Court as “whether the respondent had standing to bring an application under s 50 of the POA Act.” This approach was misconceived and misled the primary judge into making a finding that the respondent in fact has standing to make an application under s 50(1) of the POA Act. His Honour concluded at [22]:
In the case of a person who has died, a person who is a son of the deceased and has an interest in the size and distribution of the estate such as the plaintiff in this case has, in my view, sufficient interest to entitle him to invoke the Court’s jurisdiction. That is so even though he has not commenced proceedings either to challenge the validity of the will or for family provision.
36. The question that should have been framed for the primary judge was whether the respondent had no reasonable prospects of proving his standing in the proposed substantive proceeding under s 50(1) of the POA Act. Clearly, his Honour considered that the respondent had such reasonable prospects, but should not have gone on to express a view that the respondent in fact had standing. That was, and remains, a matter to be determined following a trial (or a hearing of the question as a preliminary issue): cf Onus v Alcoa of Australia Ltd [1981] HCA 50; 149 CLR 27, 38. It should be noted that the appellant has not submitted that the approach taken by the primary judge in this regard warrants setting aside the interlocutory judgment.
37. The question for this Court is whether the primary judge erred by misconstruing s 50(1) and thereby failing to find that the respondent lacked any reasonable prospects of establishing standing in the proposed proceeding. The appellant argues that, as a matter of statutory construction, only an executor or administrator and the Public Trustee and Guardian (under an order pursuant to s 88 of the Administration and Probate Act), have standing to represent the estate and bring such a proceeding. The appellant argues that as the respondent does not fall into any of these categories, he could not succeed in the proposed proceeding, and the application to extend time should have been dismissed.
38. Section 50(1) of the POA Act allows the Supreme Court to order that an attorney under a power of attorney compensate the principal, or a deceased principal’s estate, for loss caused by the attorney’s failure to comply with the POA Act in the exercise of a power. The drafting style for s 50(1) differs from the more orthodox and logical style of other provisions in the POA Act which provide for applications to be made to the Supreme Court or ACAT. Sections 27(2), 80(1), 81(2) and 84(3) specify who may apply, as well as what orders may be applied for. In contrast, s 50(1) implies that an application may be made for an order for compensation, but does not specify who may make such an application.
39. The question of who may bring a proceeding under s 50(1) of the POA Act depends on identification of the class of people for whose benefit the attorney’s statutory obligations are imposed: cf Millington v Wilkie [2005] NSWCA 45; 62 NSWLR 322 at [39], [56]. The terms of s 50(1) provide some assistance on this question. An order for payment of compensation may only be made to the principal, or to the principal’s estate for a loss caused to the estate. Accordingly, after the principal’s death, the applicant for an order under s 50(1) brings the proceeding in a representative capacity on behalf of the estate. That indicates that the applicant must have an interest in the estate. However, the terms of the provision provide no assistance as to what type of interest is sufficient. That issue must be considered by reference to the purpose of the provision and the statutory context.
40. Section 50(1) of the POA Act confers a right upon a principal to apply for compensation. If the principal lacks capacity, the application may be brought on behalf of the principal by a manager appointed under s 8(2) of the Guardianship and Management of Property Act 1991 (ACT). We readily accept the appellant’s submission that the statutory right of action created by s 50(1) is an intangible property right, or chose in action, belonging to the principal.
41. When the principal dies, the principal’s right of action under s 50(1) of the POA Act, together with the principal’s other property, vests in the Public Trustee and Guardian pursuant to s 38A of the Administration and Probate Act. Upon a grant of representation, such property passes to and vests in the executor or administrator pursuant to s 39 of the Administration and Probate Act.
42. The appellant relies on a passage from Byers v Overton Investments Pty Ltd [2001] FCA 760; 109 FCR 554, where the Full Court of the Federal Court said at [22]:
It is trite law that proceedings to vindicate a chose in action can be pursued only by the person who has title to that chose in action or who is entitled to sue in [the] name of that person (citations omitted).
43. The appellant submits that while s 50(1) of the POA Act allows an application for compensation to be made on behalf of the estate, under the succession law of the ACT only the executor, administrator or Public Trustee and Guardian has title to the chose in action and is entitled to represent a deceased estate in a proceeding. The appellant’s submission continues that the POA Act does not exhibit any legislative intention to enlarge the class of persons entitled to act in a representative capacity on behalf of the estate.
44. The fallacy of the appellant’s argument is its assumption that under the general law, the categories of persons entitled to represent a deceased estate in a proceeding are confined to executors, administrators and the Public Trustee and Guardian. It is well established that a beneficiary may commence proceedings on behalf of an estate in what are called “special circumstances”. In Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; 216 CLR 109, Gleeson CJ, Gummow and Hayne JJ explained:
[55] In Ramage v Waclaw, Powell J reviewed many of the authorities, including the judgment of James LJ in Sharpe v San Paulo Railway Co, which support the proposition that, where relief is sought in the equitable jurisdiction of the Supreme Court against a third party, a beneficiary may sue in his own name, joining as defendants the trustee and any other beneficiaries, but only where there are “special circumstances”. One reason for this restriction, given by James LJ in Sharpe, is the avoidance of the vexation of the third party by multiple suits. Powell J held that the “special circumstances” were not confined to collusion between the trustee and the third party, or the insolvency of the trustee. But the general principle is that stated by Scott:
The interests of the beneficiaries of a trust are protected against a third person acting adversely to the trustee through proceedings brought against him by the trustee and not by the beneficiaries. As long as the trustee is ready and willing to take the proper proceedings against the third person, the beneficiaries cannot maintain a suit against him.
[56] Minters referred to statements of principle by the Privy Council in Hayim v Citibank NA. Their Lordships referred to some of the authorities discussed by Powell J in Ramage, including Sharpe, and concluded that “special circumstances” included a failure by the trustees to perform their duty to the beneficiaries to protect the trust estate or the interests of the beneficiary therein.
(citations omitted)
45. Ramage v Waclaw (1988) 12 NSWLR 84 provides an apposite example of “special circumstances”. The deceased had transferred her interest in a property to her children at a time when she was 87 years old, in poor health and in a nursing home. The executor of the deceased’s estate, the Public Trustee, declined to commence proceedings for undue influence because of a lack of funds in the estate. The sole beneficiary of the deceased’s estate brought proceedings seeking declarations that the transfer was procured by undue influence and that the subject property was part of the deceased’s estate. Powell J held that, in circumstances where the executor was unwilling to commence proceedings and a substantial asset might otherwise be lost to the estate, the beneficiary had standing to bring the proceeding.
46. Therefore, even before the enactment of s 50(1) of the POA Act, a beneficiary was entitled under the general law to sue an attorney on behalf of the estate for breach of fiduciary duty in some circumstances where the executor refused or failed to sue. The duties of an attorney under provisions such as ss 34, 38, 42(3) and 48(1) of the POA Act largely replicate the duties owed under the general law. Section 50(1) was enacted to provide the principal and the principal’s estate with a statutory right of action for breach of statutory duty by an attorney. Given the protective purposes of the statutory duties and the statutory right of action, there is no reason to suppose that the legislature intended that the class of persons who may apply for the statutory remedy on behalf of the estate should be narrower than the class who may sue under the general law of the ACT. The appellant’s argument that an application under s 50(1) is only capable of being brought on behalf of the estate by the executor, administrator or Public Trustee and Guardian must be rejected.
47. There are other reasons for rejecting the appellant’s argument. As a matter of practical reality, abuse of an enduring power of attorney usually arises where the principal is elderly. Often, the person abusing the power of attorney will also be the executor under the principal’s will, or the executor will have benefitted from the abuse. Obviously, such an executor would have no incentive to bring a proceeding for payment of compensation to the estate. Yet if the appellant’s submission is accepted, only the executor could bring the proceeding. The appellant submits that the remedy available to a beneficiary in that situation would be to apply to the Supreme Court for removal and replacement of the recalcitrant executor under s 32 of the Administration and Probate Act. However, as s 50(1) of the POA Act was enacted for the protection of the estate, it is unlikely that the legislature intended that a beneficiary should face the additional obstacle of a burdensome and expensive application for replacement of the executor. A construction of the provision which could assist an attorney to avoid the consequences of his or her own misconduct should be avoided. Further, there may be many cases where an innocent executor is unwilling to apply (for example, where there are insufficient funds in the estate), but where a beneficiary has no desire to replace the executor. Section 50(1) should not be construed as necessarily excluding a beneficiary from applying directly for an order that an attorney pay compensation to the estate.
48. As the primary judge pointed out, another reason for rejecting the appellant’s argument that an application under s 50(1) of the POA Act can only be made by an executor, administrator, or the Public Trustee and Guardian, is the contrast between that provision and ss 27, 80(1), 81(2) and 84(3). The latter provisions expressly identify, and limit, who may make an application. If the legislature intended that an application under s 50(1) should be limited to an executor, administrator and the Public Trustee and Guardian, then that intention is also likely to have been made explicit.
49. The appellant submits that if s 50(1) of the POA Act is construed such that a beneficiary may apply, it could lead to a multiplicity of proceedings by the executor and the beneficiaries. However, a beneficiary who commences a proceeding will ordinarily be required to join the executor, administrator, or Public Trustee and Guardian as a party to the proceeding; and this is likely to avoid the suggested problem. In addition, if the executor or administration is willing to apply under s 50(1), it seems unlikely that a beneficiary would do so given the risk as to costs. The suggested problem seems more imaginary than real.
50. Finally, the primary judge reached his conclusion, in part, by relying on s 15 of the 1956 Act which permitted applications to the Court “in the name and for the benefit of the donor of an enduring power of attorney for relief against the donee (including the payment of compensation)”. That section specified that the application could be made by the Public Trustee, a trustee company, or, with the leave of the Court, “some other person”. His Honour said that there was nothing to indicate a legislative intention under s 50(1) of the POA Act to reduce the range of persons who were able to apply. The difficulty with that reasoning is that it is uncertain whether s 15 of the 1956 Act extended to allowing an application to be brought in the name of and for the benefit of a deceased donor’s estate. It is unnecessary to rely on this aspect of his Honour’s reasoning to reach our conclusion.
51. The appellant’s submission that, as a matter of statutory construction, only an executor, or administrator, or the Public Trustee and Guardian may bring an application for relief under s 50(1) of the POA Act must be rejected. A beneficiary under a will may have standing where the executor, administrator or the Public Trustee and Guardian declines or fails to commence proceedings under s 50(1) of the POA Act.
52. In this case, the respondent is not a beneficiary. He has a hope that upon determination of his foreshadowed proceedings to set aside the will and for provision under s 8(1) of the Family Provision Act 1969 (ACT), he may become a beneficiary upon intestacy, or that provision may be made for him. In that limited sense, he has an interest in the size of the estate. It will be a matter for the trial judge to decide whether that interest is sufficient, based on the evidence led at the trial. Of course, the evidence led may indicate whether the foreshadowed proceedings have been brought and their outcomes, and that will be a relevant factor. The sufficiency of the respondent’s interest is not an issue that arises in the appeal, just as it was not an issue that arose in the application before the primary judge. It is enough to conclude that the respondent has demonstrated a reasonably arguable case that he has standing.
53. As the appellant has failed to show that the respondent has no reasonable prospects of success in his proposed application under s 50(1) of the POA Act, she has not demonstrated any relevant error in the exercise of the discretion by the primary judge.
54. The application for leave to appeal should be allowed, since the appellant’s submissions were not without merit. However, for the reasons we have given, the appeal should be dismissed with costs.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 7 April 2017 |
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
-
Civil Procedure
Legal Concepts
-
Appeal
-
Standing
-
Statutory Construction
-
Jurisdiction
-
Costs
0
8
5