DPT - [2015] NSWCATGD 3

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DPT [2015] NSWCATGD 3
Hearing dates: 27 February 2015
Date of orders: 27 February 2015
Decision date: 30 April 2015
Jurisdiction: Guardianship Division
Before: J Redfern, Principal Member (Legal)
R Curran, Senior Member (Professional)
I Ferreira, General Member (Community)
Decision:
Application to review enduring power of attorney made on 7 July 2005 dismissed.

Catchwords: ENDURING POWER OF ATTORNEY – application for review – principal deceased at time of hearing– whether Tribunal has power to review – whether Tribunal should order accounts – exercise of discretion – decision not to make any orders
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Cases Cited: UQH [2014] NSWCATGD 37
KBX [2015] NSWCATGD 2
Category: Principal judgment
Parties: Mr QAT (the applicant)
Mr TXT, Mr NFT and Ms BDT (the attorneys)
Mr SEB (joined party)
File Number(s): 57029
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

reasons for decision

What the Tribunal decided

The Tribunal dismissed the application for review of the enduring power of attorney made on 7 July 2005.

Background

Mrs DPT executed an enduring power of attorney appointing three of her four children, namely Mr TXT, Mr NFT and Ms BDT, as her attorneys. They were appointed to act jointly and severally.
On 31 July the Tribunal received an application from Mr QAT, Mrs DPT's remaining son, to review the enduring power of attorney.
Mrs DPT passed away on 6 September 2014. The applicant decided to proceed with his application and made directions about the conduct of the proceedings in November and December 2014.
Mrs DPT executed her last will and testament on 12 December 2003. She appointed Mr SEB and Mr XFB as her executors and trustees. After making a number of modest monetary bequests, she left the balance of her estate to her four children. Mrs DPT made provision for Mr TXT to have an option to purchase from her executors a three-quarter share in her house in Regional NSW at three quarters of the fair market value. If Mr TXT chose to take this option, the remaining quarter share was to be transmitted to him with the proceeds of the sale to be distributed to her remaining children.
On 21 November 2014, the Tribunal joined Mr SEB to the proceedings at his request. The Tribunal also issue directions that the parties file and serve submissions and documents regarding various transactions between the children and Mrs DPT.
The Tribunal considered the application for review but declined to make any orders. Our reasons follow.
The parties and a list of the witnesses who participated in the hearing are listed in the Appendix [Removed for publication].

Statutory framework and issues for determination

Section 36(1) of the Powers of…

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 DPT

Details

AGLC: DPT [2015] NSWCATGD 3
Case: [2015] NSWCATGD 3
Decision Date: 30 April 2015

CaseChat Overview and Summary

The matter before the court involved an application for review of an enduring power of attorney. The principal, who had appointed the applicant as their attorney under the power of attorney, had passed away before the hearing of the application. The applicant sought a review of the validity and operation of the enduring power of attorney. The court was required to determine whether it had the authority to review the power of attorney given the principal's death and whether it should order the production of the principal's accounts as part of the review process. Additionally, the court had to exercise its discretion in deciding whether to make any orders in relation to the review.

In addressing the legal issues, the court first considered whether it retained the jurisdiction to review the enduring power of attorney after the principal's death. The court noted that, while the primary purpose of the review was to protect the interests of the principal, the application could still proceed as the matter involved the validity and operation of the power of attorney. The court then examined the issue of whether it should order the production of the principal's accounts. The court found that while the applicant had not demonstrated that the accounts would necessarily assist in resolving the issues, it was appropriate to order the production of certain accounts to facilitate the review. However, the court exercised its discretion not to make any orders regarding the accounts, considering the principal's death and the lack of urgency in the matter.

The court concluded that it had the power to review the enduring power of attorney even though the principal had died. However, the court decided not to make any orders in relation to the review, given the principal's death and the absence of a compelling need to proceed with the review at that time. The application for review was ultimately dismissed.

Orders

Orders of the court

Application to review enduring power of attorney made on 7 July 2005 dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	DPT [2015] NSWCATGD 3
Hearing dates:	27 February 2015
Date of orders:	27 February 2015
Decision date:	30 April 2015
Jurisdiction:	Guardianship Division
Before:	J Redfern, Principal Member (Legal) R Curran, Senior Member (Professional) I Ferreira, General Member (Community)
Decision:	Application to review enduring power of attorney made on 7 July 2005 dismissed.
Catchwords:	ENDURING POWER OF ATTORNEY – application for review – principal deceased at time of hearing– whether Tribunal has power to review – whether Tribunal should order accounts – exercise of discretion – decision not to make any orders
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	UQH [2014] NSWCATGD 37 KBX [2015] NSWCATGD 2
Category:	Principal judgment
Parties:	Mr QAT (the applicant) Mr TXT, Mr NFT and Ms BDT (the attorneys) Mr SEB (joined party)
File Number(s):	57029
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).