EZG - [2021] NSWCATGD 6

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EZG [2021] NSWCATGD 6
Hearing dates: 6 May 2021
Date of orders: 20 May 2021
Decision date: 20 May 2021
Jurisdiction: Guardianship Division
Before: A D Suthers, Principal Member
Associate Professor C Willcox, Senior Member (Professional)
A D Wannan, General Member (Community)
Decision:
(1) The Tribunal approves the attorney of EZG, namely QBF, conferring a benefit on SYD, in the form of a loan of up to $1m, on terms as outlined in the affidavit of QBF of 12 April 2021.
(2) Grant liberty to the parties to apply, for clarification of Order 1, as required.

Catchwords:
POWER OF ATTORNEY – advice or directions to attorney – s 38 Powers of Attorney Act – appropriate considerations

Legislation Cited:
Conveyancing Act 1919 (NSW)
Guardianship Act 1987 (NSW), s 4
Powers of Attorney Act 2003 (NSW), ss 7-13 19, 20, 26, 27(1), 33(1)-(2), 33(4), 35(1)(a), 36(4), 36(4)(a), 38, 38(2), 38(2)(a), 38(2)(c), Sch 3 cls 1-3, Pt 5
Powers of Attorney Regulation 2016 (NSW), Sch 2

Cases Cited:
Application of Forwood [2020] NSWSC 1413
P v NSW Trustee and Guardian [2015] NSWSC 579
QFC (No 3) [2020] NSWCATGD 24

Texts Cited:
Nil

Category: Principal judgment
Parties: EZG, Principal
QBF, Attorney
SYD, joined as a party
The NSW Trustee and Guardian
Representation:
Solicitors:
Makison d’Apice lawyers, for QBF

File Number(s): 2020/00229447
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

Summary

An attorney, particularly when acting for a principal who has lost the ability to oversee financial decisions made on their behalf, owes a strict fiduciary obligation to their principal, to make decisions in the way contemplated by the principal when they gave the power, and otherwise in the principal’s interests.
Where a principal allows an attorney to provide for the maintenance or advancement of others, a tension may arise in the mind of the attorney, as to how best to strike a balance between the competing considerations relevant to decisions they may need to make in the exercise of their authority.
Section 38 of the Powers of Attorney Act 2003 (NSW) (“the Act”) provides for an attorney to seek the advice or direction of the Tribunal (through its Guardianship Division), or the Supreme Court, in respect of those decisions. An attorney who acts within the bounds of the decision of that review body is immune from suit in acting or omitting to act, in good faith, in compliance with the decision.
Commonly, applications of that nature have been made to the Supreme Court. This application concerns the first such formal application that has come to the Tribunal which we are aware of.

Background and summary of evidence

The facts of the matter, which are undisputed, are outlined in the affidavit of the applicant, dated 13 October 2020, and filed…

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 EZG

Details

AGLC: EZG [2021] NSWCATGD 6
Case: [2021] NSWCATGD 6
Decision Date: 20 May 2021

CaseChat Overview and Summary

The case involved EZG, whose attorney was QBF, who sought to confer a benefit on SYD through a loan. The Tribunal was called upon to decide whether the proposed transaction was within the appropriate considerations outlined in section 38 of the Powers of Attorney Act. The central issue was whether the proposed loan from EZG to SYD was an appropriate consideration for QBF to act on, considering the authority granted in the power of attorney.

The Tribunal examined the nature and extent of the power granted in the power of attorney document. It considered whether the proposed loan was within the scope of the power, and if the attorney had acted in accordance with the terms of the power. The Tribunal also evaluated the appropriateness of the consideration in light of the statutory provisions and the relationship between the parties. The key question was whether the transaction was consistent with the purpose for which the power of attorney was created.

The Tribunal found that the power of attorney did confer the authority for QBF to act in a way that would confer a benefit on SYD. The terms of the power of attorney were broad enough to encompass the proposed loan, and the Tribunal concluded that the proposed terms were reasonable and appropriate. The Tribunal also found that the transaction was consistent with the purpose for which the power of attorney was created, and that there was no evidence of impropriety or conflict of interest.

The Tribunal approved the attorney's decision to confer the benefit on SYD, in the form of a loan of up to $1m, on terms as outlined in the affidavit of QBF of 12 April 2021. The Tribunal also granted liberty to the parties to apply for clarification of Order 1, as required.

Orders

Orders of the court

(1) The Tribunal approves the attorney of EZG, namely QBF, conferring a benefit on SYD, in the form of a loan of up to $1m, on terms as outlined in the affidavit of QBF of 12 April 2021.

(2) Grant liberty to the parties to apply, for clarification of Order 1, as required.

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:	EZG [2021] NSWCATGD 6
Hearing dates:	6 May 2021
Date of orders:	20 May 2021
Decision date:	20 May 2021
Jurisdiction:	Guardianship Division
Before:	A D Suthers, Principal Member Associate Professor C Willcox, Senior Member (Professional) A D Wannan, General Member (Community)
Decision:	(1) The Tribunal approves the attorney of EZG, namely QBF, conferring a benefit on SYD, in the form of a loan of up to $1m, on terms as outlined in the affidavit of QBF of 12 April 2021. (2) Grant liberty to the parties to apply, for clarification of Order 1, as required.
Catchwords:	POWER OF ATTORNEY – advice or directions to attorney – s 38 Powers of Attorney Act – appropriate considerations
Legislation Cited:	Conveyancing Act 1919 (NSW) Guardianship Act 1987 (NSW), s 4 Powers of Attorney Act 2003 (NSW), ss 7-13 19, 20, 26, 27(1), 33(1)-(2), 33(4), 35(1)(a), 36(4), 36(4)(a), 38, 38(2), 38(2)(a), 38(2)(c), Sch 3 cls 1-3, Pt 5 Powers of Attorney Regulation 2016 (NSW), Sch 2
Cases Cited:	Application of Forwood [2020] NSWSC 1413 P v NSW Trustee and Guardian [2015] NSWSC 579 QFC (No 3) [2020] NSWCATGD 24
Texts Cited:	Nil
Category:	Principal judgment
Parties:	EZG, Principal QBF, Attorney SYD, joined as a party The NSW Trustee and Guardian
Representation:	Solicitors: Makison d’Apice lawyers, for QBF
File Number(s):	2020/00229447
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.