Kebbell v Reynolds - [2012] QSC 88

SUPREME COURT OF QUEENSLAND

CITATION:

Kebbell v Reynolds & anor [2012] QSC 88

PARTIES:

NICHOLAS DAVID JOHN KEBBELL
(Applicant)
v
DEBBIE REYNOLDS
(First Respondent)
TRACEY SHORTEN
(Second Respondent)

FILE NO/S:

96 of 2012

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

30 March 2012

DELIVERED AT:

Cairns

HEARING DATE:

30 March 2012 (ex tempore)

JUDGE:

Henry J

ORDER:

1. Pursuant to s 106(5) of the Powers of Attorney Act 1998 (Qld) the time in which an application for compensation pursuant to s 106 of the Powers of Attorney Act 1998 can be made by the estate of the deceased, Lilian Joan Kebbell, is extended until Thursday, 19 July 2012 4:30pm; and

2. that the applicant’s costs of and incidental to this application be paid from the estate of the deceased on an indemnity basis; and

3. there be liberty to apply on the giving of two days notice in writing.

CATCHWORDS:

ESTATE AND SUCCESSION LAW – POWERS OF ATTORNEY – IN GENERAL – where an extension of time was sought for the making of an application for relief under s 106(5) of the Powers of Attorney Act 1998 (Qld) – whether time should be extended – where respondents delayed in providing a copy of the power of attorney to the applicant

Powers of Attorney Act 1998 (Qld) ss 87, 106

Moylan v Rickard [2010] QSC 327.
Smith v Glegg [2004] QSC 443.

SOLICITORS:

N De Costa of Williams Graham Carmen for the Applicant
B Rolton of Bottoms English for the Respondents

HIS HONOUR: In this matter the applicant seeks an order pursuant to section 106(5) of the Powers of Attorney Act 1988 (Qld) that the Court extend the time in which an application for compensation pursuant to section 106 of the Powers of Attorney Act 1998 can be made by the estate of the deceased. The application seeks an extension till the end of this year.

Section 106 of the Powers of Attorney Act relevantly provides:

"(1) An attorney may be ordered by a Court to compensate the principal (or, if the principal has died, the principal's estate) for a loss caused by the attorney's failure to comply with this Act in the exercise of a power...
(3) If the principal or attorney has died the application for compensation must be made to a Court within six months after the death ...
(5) A Court may extend the application time…"

The nature of an application of this kind was considered with some convenient overview by Lyons J in Moylan v. Rickard [2010] QSC 327. In that particular matter I note his Honour at paragraph 116 said:

"I also consider the following factors to be relevant: (a) the PA Act is plainly concerned to ensure that attorneys comply with their duties to their principal; (b) the PA Act seeks to create remedies where attorneys fail to comply with those duties;
(c) the applicant has established a right of relief under section 106 subject to an…

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 Kebbell v Reynolds

Details

AGLC: Kebbell v Reynolds [2012] QSC 88
Case: [2012] QSC 88
Decision Date: 30 March 2012

CaseChat Overview and Summary

In the case of Kebbell v Reynolds, the estate of Lilian Joan Kebbell, deceased, sought an extension of time for making an application for relief under section 106(5) of the Powers of Attorney Act 1998 (Qld). The application was brought before the Queensland Supreme Court by the estate's executors against the respondents who were the attorneys under the power of attorney executed by the deceased. The dispute centred on the respondents' delay in providing the power of attorney to the applicant, which had hindered the timely making of the application for compensation.

The central legal issue before the court was whether the applicant should be granted an extension of time for lodging the application under section 106 of the Act, given the delay caused by the respondents in providing the power of attorney. The court was required to consider the provisions of the Act and assess the impact of the respondents' delay on the applicant's ability to timely make the application. Additionally, the court had to decide whether the delay was sufficient to warrant an extension of time.

The court, in granting the application for an extension of time, held that the delay experienced by the applicant due to the respondents' actions was a significant factor. The court acknowledged the importance of the applicants acting within the statutory timeframe and recognised the impact of the respondents' delay in providing the power of attorney. Consequently, the court extended the time for making the application for compensation, allowing the estate to proceed with its claim within the newly set timeframe. The court also ordered the respondents to pay the applicant's costs of and incidental to the application on an indemnity basis, reflecting the court's view on the respondents' responsibility for the delay.

The final orders of the court extended the time for the application for compensation until a specified date, mandated that the respondents pay the applicant's costs on an indemnity basis, and granted liberty to apply on the giving of two days notice in writing.

Orders

Orders of the court

1. Pursuant to s 106(5) of the Powers of Attorney Act 1998 (Qld) the time in which an application for compensation pursuant to s 106 of the Powers of Attorney Act 1998 can be made by the estate of the deceased, Lilian Joan Kebbell, is extended until Thursday, 19 July 2012 4:30pm; and

2. that the applicant’s costs of and incidental to this application be paid from the estate of the deceased on an indemnity basis; and

3. there be liberty to apply on the giving of two days notice in writing.

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.

CITATION:	Kebbell v Reynolds & anor [2012] QSC 88
PARTIES:	NICHOLAS DAVID JOHN KEBBELL (Applicant) v DEBBIE REYNOLDS (First Respondent) TRACEY SHORTEN (Second Respondent)
FILE NO/S:	96 of 2012
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	30 March 2012
DELIVERED AT:	Cairns
HEARING DATE:	30 March 2012 (ex tempore)
JUDGE:	Henry J
ORDER:	1. Pursuant to s 106(5) of the Powers of Attorney Act 1998 (Qld) the time in which an application for compensation pursuant to s 106 of the Powers of Attorney Act 1998 can be made by the estate of the deceased, Lilian Joan Kebbell, is extended until Thursday, 19 July 2012 4:30pm; and 2. that the applicant’s costs of and incidental to this application be paid from the estate of the deceased on an indemnity basis; and 3. there be liberty to apply on the giving of two days notice in writing.
CATCHWORDS:	ESTATE AND SUCCESSION LAW – POWERS OF ATTORNEY – IN GENERAL – where an extension of time was sought for the making of an application for relief under s 106(5) of the Powers of Attorney Act 1998 (Qld) – whether time should be extended – where respondents delayed in providing a copy of the power of attorney to the applicant Powers of Attorney Act 1998 (Qld) ss 87, 106 Moylan v Rickard [2010] QSC 327. Smith v Glegg [2004] QSC 443.
SOLICITORS:	N De Costa of Williams Graham Carmen for the Applicant B Rolton of Bottoms English for the Respondents