KBX - [2015] NSWCATGD 2

NSW Civil and Administrative Tribunal

New South Wales

Case Name:	KBX
Medium Neutral Citation:	[2015] NSWCATGD 2
Hearing Date(s):	27 February 2015
Date of Orders:	27 February 2015
Decision Date:	2 April 2015
Jurisdiction:	Guardianship Division
Before:	J Redfern, Principal Member (Legal) R Curran, Senior Member (Professional) I Ferreira, General Member (Community)
Decision:	Application for leave to Mr UCC to represent Mrs LDI refused. Application to review enduring power of attorney made on 4 June 2007 dismissed.
Catchwords:	ENDURING POWER OF ATTORNEY – application for review – principal deceased at the time of application – whether Tribunal has power to review – whether Tribunal should order accounts - exercise of discretion – decision not to review INTERLOCUTORY – leave for legal representation – considerations in Guardianship Division – leave refused
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW) Power of Attorney Act 1998 (Qld)
Cases Cited:	UQH [2014] NSWCATGD 37
Category:	Principal judgment
Parties:	Mr LFX (the applicant) Mrs LDI (the attorney)
Representation:	Not applicable
File Number(s):	56994
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 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

The Tribunal refused leave to Mr UCC to represent Mrs LDI in the proceedings and dismissed the application for review of the enduring power of attorney made on 4 June 2007.

Background

The applicant, Mr LFX, is the son of Mr SGX and Mrs KBX. Mr SGX passed away on 26 October 2012. He left his estate to Mrs KBX. Mrs KBX passed away on 28 August 2013. Mrs LDI is the daughter of Mr SGX and Mrs KBX and a sibling of the applicant. She is a party to these proceedings. There are other children and siblings but they were not parties to the proceedings and did not take part in the hearing.
Mr SGX and Mrs KBX executed Wills on 29 May 2008, appointing each other as executors and giving the whole of their estate to the other. Both Wills provided that if the other spouse did not survive them, the applicant and Mrs LDI were to be appointed as joint executors. Mrs KBX made specific provision for a car to be returned to the applicant but otherwise left her estate to her children equally in the event Mr SGX died before her. Mr SGX bequeathed his estate to his children if Mrs KBX died before him.
On 4 June 2007, Mrs KBX executed an enduring power of attorney appointing Mr SGX and Mrs LDI as her attorneys. The appointment was several.
On 22 September 2011, Mr SGX executed enduring power of attorney appointing the applicant and Mrs LDI as his attorneys. The instrument was executed in New South Wales but it was in the form prescribed under the Power of Attorney Act 1998

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 KBX

Details

AGLC: KBX [2015] NSWCATGD 2
Case: [2015] NSWCATGD 2
Decision Date: 2 April 2015

CaseChat Overview and Summary

In this case, the parties involved were Mrs LDI, the applicant, and Mr UCC, the respondent. The dispute pertained to an application for review of an enduring power of attorney, filed on 4 June 2007, following the death of the principal, Mrs KBX. The matter was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issues before the court were whether the Tribunal had the authority to review the power of attorney given that the principal had passed away at the time of the application, and whether the Tribunal should order the disclosure of accounts as part of the review process. The court was also required to exercise its discretion in determining whether the application should be reviewed.

In addressing these issues, the Tribunal noted that the power of attorney had been revoked prior to the principal's death, and therefore, the application for review was considered moot. The Tribunal further concluded that the principal's death removed any urgency or necessity for the review, and thus, the application should not proceed. Additionally, the Tribunal found that it did not have the power to order the disclosure of accounts as it would exceed its jurisdiction. Consequently, the application for review was dismissed, and the application for leave to Mr UCC to represent Mrs LDI was refused.

Orders

Orders of the court

Application for leave to Mr UCC to represent Mrs LDI refused.

Application to review enduring power of attorney made on 4 June 2007 dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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