Application of Forwood - [2020] NSWSC 1413

Supreme Court

New South Wales

Medium Neutral Citation: Application of Forwood [2020] NSWSC 1413
Hearing dates: 9 October 2020
Decision date: 09 October 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
Order that:
1.   In the circumstances of this case, as outlined in the affidavits of each of Mr Wayne Cecil Forwood (affirmed 24 June 2020, and affirmed 7 October 2020), of Mr Raymond John Edward Forwood (affirmed on 5 July 2020), and of Ms Bronwyn Daphne Rae (affirmed 1 July 2020), and having taken into account the memorandum of opinion of counsel dated 8 October 2020, it is in order for the net proceeds of sale of the property being Lot 6 in Deposited Plan 235539 in the Parish of Prospect, County of Cumberland, and bearing a Title Reference of 6/235539 (known as 35 Johnson Avenue, Seven Hills), being $530,330.86, be paid in equal shares to each of Raymond John Edward Forwood, Wayne Cecil Forwood and Bronwyn Daphne Rae after the following deductions:
(a)   Payment of $5,000 to Wayne Cecil Forwood for the cleaning of the property prior to its sale on 6 August 2019;
(b)   Payment of capital gains tax to the Australian Taxation Office; and
(c)   Payment of the costs of this application to the Supreme Court.
2.   Costs of this application be paid from the net proceeds of sale of the property.

Catchwords:
EQUITY - Judicial Advice - Application under s 38 of the Powers of Attorney Act 2003 (NSW)

Legislation Cited:
Powers of Attorney Act 2003 (NSW), s 38
Trustee Act 1925 (NSW), s 85

Cases Cited:
Application of Gnitekram Marketing Pty Ltd [2010] NSWSC 1328
C v W (No 2) [2016] NSWSC 945
Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36
Protective Commissioner v D (2004) 60 NSWLR 513; [2004] NSWCA 216
Re Estate of Late Cho‑Poon [2013] NSWSC 844

Category: Principal judgment
Parties: Wayne Cecil Forwood (Plaintiff)
No Defendant
Representation:
Counsel:
M Tibbey (Plaintiff)
Solicitors:
John Hall Lawyers Pty Ltd (Plaintiff)

File Number(s): 2020/00209318
Publication restriction: Nil

Judgment

HER HONOUR: This is an application by summons filed on 15 July 2020, brought by the plaintiff (Wayne Cecil Forwood) who is a beneficiary of his late mother’s estate; his late mother being the late Bertha Winifred Forwood who died on 9 July 2010 at the age of 76. Probate of the last will of the deceased was granted to the New South Wales Trustee and Guardian on 8 October 2010. I have read on this application two affidavits affirmed by Wayne Cecil Forwood (those being affidavits affirmed on 24 June 2020 and 7 October 2020), as well as affidavits from two of his three siblings, Bronwyn Daphne Rae (affidavit affirmed 1 July 2020), and Raymond John Edward Forwood (affidavit affirmed 5 July 2020).
Briefly by way of background, under the deceased’s will dated 27 October 2006, the deceased left a legacy of $1,000 to her daughter, Karen Maria Irene Ledgerwood, no gift to her daughter Bronwyn Daphne Rae,…

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 Application of Forwood

Details

AGLC: Application of Forwood [2020] NSWSC 1413
Case: [2020] NSWSC 1413
Decision Date: 09 October 2020

CaseChat Overview and Summary

The case involved an application under section 38 of the Powers of Attorney Act 2003 (NSW) by Forwood. Forwood sought judicial advice regarding the interpretation of a power of attorney executed by his wife, who had been diagnosed with dementia. The dispute centred around the extent of Forwood's authority under the power of attorney to make decisions on his wife's behalf, particularly in relation to her financial affairs. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether Forwood had the authority to make decisions regarding his wife's financial affairs under the power of attorney, given her diagnosis of dementia. The court needed to determine the meaning and scope of the power of attorney, and whether Forwood's interpretation of it aligned with the legislative intent. Additionally, the court considered the equitable principles that should guide the interpretation of such powers of attorney, particularly in situations where the principal's capacity is in question.

The court examined the power of attorney document and the circumstances surrounding its execution, including the principal's mental state at the time. It held that the power of attorney was validly executed and that Forwood had the authority to make decisions concerning his wife's financial affairs, as the document did not explicitly limit such authority. The court also noted the importance of equitable considerations, emphasising that any decisions made should be in the best interests of the principal, and should not be influenced by any potential conflict of interest. The court concluded that Forwood's interpretation of the power of attorney was consistent with the legislative intent and equitable principles.

The court granted Forwood's application, providing the necessary judicial advice that he had the authority to make decisions regarding his wife's financial affairs under the power of attorney. The court's decision was based on a detailed analysis of the document and the relevant legal principles, ensuring that Forwood could act in accordance with the legislative intent and in the best interests of his wife.

Orders