SUPREME COURT OF QUEENSLAND
CITATION:
Moylan v Rickard [2010] QSC 327
PARTIES:
LESLIE PATRICK MOYLAN
(applicant)
v
ROBYN SHIRLEY RICKARD AND CHRISTOPHER WILLIAM ALLEN (as executors and trustees of the will of SYBIL DOREEN MOYLAN, deceased)
(respondents)FILE NO:
SC No 1198 of 2010
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
6 September 2010
DELIVERED AT:
Brisbane
HEARING DATE:
11 March 2010; 7 May 2010
JUDGE:
Peter Lyons J
ORDER:
1. The time for making the applications pursuant to s 106 and s 107 of the Powers of Attorney Act 1998 (Qld) is extended to 8 February 2010.
2. Judgment is given for the applicant against the respondent for $195,369.65 inclusive of interest.
3. Respondent to pay the applicant’s costs on a standard basis until the date of the offer on 22 April 2010 and thereafter on an indemnity basis.
4. The further hearing of the applications in paragraphs 6 and 7 of the originating application filed 8 February 2010 is adjourned to a date to be fixed.
CATCHWORDS:
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - LEGACIES AND DEVISES - DIRECTIONS AS TO PAYMENT – where the respondents, acting under an Enduring Power of Attorney while the deceased was suffering from Alzheimer’s Disease, sold the deceased’s house – where the deceased died – where the deceased’s will appointed the respondents as her executors and trustees – where the will granted the applicant a legacy which was referrable to the value of the deceased’s house – whether the gift to the applicant in the deceased’s will was adeemed by the sale of the house
CONTRACTS - PARTICULAR PARTIES - PRINCIPAL AND AGENT - AUTHORITY OF AGENTS - CONSTRUCTION AND EXTENT OF AUTHORITY - POWERS OF ATTORNEY - IN GENERAL – where the respondents, acting under an Enduring Power of Attorney while the deceased was suffering from Alzheimer’s Disease, sold the deceased’s house – where a gift was given to each of the respondents out of the proceeds of the house sale – whether the respondents acted in breach of the Powers of Attorney Act 1998 (Qld) – whether relief for the respondents is available under s 105 of the Powers of Attorney Act 1998 (Qld) - whether the respondents should account for moneys received from the sale of the Wilston house under ss 106 and 107 of the Powers of Attorney Act 1998 (Qld)
CONTRACTS - PARTICULAR PARTIES - PRINCIPAL AND AGENT - AUTHORITY OF AGENTS - CONSTRUCTION AND EXTENT OF AUTHORITY - POWERS OF ATTORNEY - IN GENERAL - where an extension of time was sought for the making of an application for relief under ss 106 and 107 of the Powers of Attorney Act 1998 (Qld) – whether time should be extended under s106(5) of the Powers of Attorney Act 1998 (Qld)
Powers of Attorney Act 1998 (Qld), s 66, s 76, s 85, s 86, 88, s 89, s 105, s 106, s 107
Succession Act 1981 (Qld), s 32, s…
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- AGLC
- Moylan v Rickard [2010] QSC 327
- Case
- [2010] QSC 327
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the sale of the deceased's house by the respondents resulted in the adeeming of the legacy granted to the applicant in the deceased's will, and whether the respondents had breached the Powers of Attorney Act 1998 (Qld) by selling the house and gifting portions of the proceeds to themselves. Additionally, the court considered whether the respondents were entitled to relief under section 105 of the Powers of Attorney Act 1998 (Qld), and whether they were required to account for the moneys received from the sale of the house under sections 106 and 107 of the same Act.
The court determined that the sale of the house did not adeem the legacy granted to the applicant in the deceased's will. It held that the respondents had acted within the scope of their authority under the Enduring Power of Attorney, and that they had not breached the Powers of Attorney Act 1998 (Qld). However, the court found that the respondents were not entitled to relief under section 105 of the Powers of Attorney Act 1998 (Qld). They were, however, required to account for the moneys received from the sale of the house under sections 106 and 107 of the Powers of Attorney Act 1998 (Qld). The court also extended the time for making applications pursuant to sections 106 and 107 of the Powers of Attorney Act 1998 (Qld) to 8 February 2010.
In its orders, the court extended the time for making applications pursuant to sections 106 and 107 of the Powers of Attorney Act 1998 (Qld) to 8 February 2010. It gave judgment for the applicant against the respondent for $195,369.65 inclusive of interest. The court also ordered the respondent to pay the applicant’s costs on a standard basis until the date of the offer on 22 April 2010, and thereafter on an indemnity basis. Finally, the court adjourned the further hearing of the applications in paragraphs 6 and 7 of the originating application filed on 8 February 2010 to a date to be fixed.
Orders
Orders of the court
1. The time for making the applications pursuant to s 106 and s 107 of the Powers of Attorney Act 1998 (Qld) is extended to 8 February 2010.
2. Judgment is given for the applicant against the respondent for $195,369.65 inclusive of interest.
3. Respondent to pay the applicant’s costs on a standard basis until the date of the offer on 22 April 2010 and thereafter on an indemnity basis.
4. The further hearing of the applications in paragraphs 6 and 7 of the originating application filed 8 February 2010 is adjourned to a date to be fixed.
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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