Chow v Cheung - [2008] NSWSC 843

CITATION: Chow v Cheung [2008] NSWSC 843

HEARING DATE(S): 20/05/08, 21/05/08

JUDGMENT DATE :
18 August 2008

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Verdict and judgment for the plaintiff for $250,000 plus interest from 30 January 2002 to the date of judgment

CATCHWORDS: PRINCIPAL AND AGENT - attorney under power - use of power of attorney otherwise than for benefit of principal - whether principal had consented to such use - turns on own facts - no question of principle

LEGISLATION CITED: Civil Procedure Act 2005, s 101

CATEGORY: Principal judgment

CASES CITED: Peninsular and Oriental Steam Navigation Co v Johnson [1938] HCA 16; (1938) 60 CLR 189

PARTIES: Man Chow - Plaintiff
Wendy Lin Ho Cheung (also known as Cheung Lin Ho Chow) - Defendant

FILE NUMBER(S): SC 4031/06

COUNSEL: Ms E A Cohen - Plaintiff
Mr J F Hassett, Solicitor - Defendant

SOLICITORS: K R Hewlett & Co - Plaintiff
Hassett Dixon - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY 18 AUGUST 2008

4031/06 MAN CHOW v WENDY LIN HO CHEUNG

JUDGMENT

1 The plaintiff and the defendant were formerly husband and wife. The plaintiff claims damages for breach of a contract of agency. The breach is said by the plaintiff to have been committed by the defendant when, in 2002, she used a power of attorney given to her by the plaintiff. In exercise of the authority conferred by the power of attorney, the defendant executed a transfer to the parties’ son Danny of the plaintiff’s interest in a residential property at Matraville of which the plaintiff and the defendant were the registered proprietors as joint tenants. The transfer was made for an expressed consideration of $1-00.

2 The defendant says that, by using the power of attorney in that way, she was giving effect to an agreement made between the parties; and that the plaintiff, by becoming a party to the agreement, consented to the transfer.

3 Both parties conducted their cases on the footing that the plaintiff should be found entitled to the relief claimed unless the court found that the agreement alleged by the defendant had in fact been made between them. It was accepted on both sides that the agreement would be a complete answer to the plaintiff’s claim.

4 The central issue is therefore whether the parties entered into the alleged agreement. The defendant bears the onus of proving that they did.

5 Before addressing that issue, I should refer to some matters of background.

6 The parties married in Hong Kong in 1977. They were Hong Kong residents. They together worked in and developed a business of printing faces for watches. In 1989, they moved to Australia with their two sons, Danny (born 1978) and David (born 1982). In accordance with conditions of immigration approval, they brought or remitted A$500,000 to Australia. The plaintiff remained in Australia for only a short time (perhaps a few days, perhaps somewhat longer) before returning…

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.

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Details

Case: [2008] NSWSC 843
Decision Date: 18 August 2008

CaseChat Overview and Summary

The case of Chow v Cheung involved a dispute between the plaintiff, Chow, and the defendant, Cheung. Chow sought to recover money from Cheung, who had acted as Chow's attorney under a power of attorney. The central issue was whether Cheung had used the power of attorney for the benefit of Chow, or whether he had acted otherwise, and if Chow had consented to such use. This case was heard in the Supreme Court of Victoria.

The legal issues before the court were whether Cheung had exceeded the scope of the power of attorney by using it for his own benefit, and if Chow had given his consent to such use. The court needed to determine if the principal, Chow, had expressly or impliedly consented to Cheung's use of the power of attorney for purposes other than those initially agreed upon. The resolution of these issues hinged on the specific facts of the case and required a detailed examination of the relationship between the parties and the terms of the power of attorney.

The court found that the use of the power of attorney by Cheung was not for the benefit of Chow, and that there was no evidence that Chow had consented to such use. The court held that the principal's consent to the agent's use of the power of attorney for purposes other than those initially agreed upon must be determined on a case-by-case basis, with no overarching principle governing such consent. The court ruled in favour of Chow, awarding him the sum of money he sought from Cheung.

The court ordered that Cheung pay Chow the sum of money claimed, along with interest and costs. The decision underscores the importance of clear communication and consent when granting a power of attorney, as well as the need for agents to act within the scope of their authority.

Orders