MQN (No 4) - [2020] NSWCATGD 55

NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: MQN (No 4) [2020] NSWCATGD 55
Hearing dates: 5 March 2020
Date of orders: 17 March 2020
Decision date: 17 March 2020
Jurisdiction: Guardianship Division
Before: L Organ, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
F E Hilson, General Member (Community)
Decision:
In relation to the enduring power of attorney made by MQN on 15 July 2011 which appointed DVN as attorney the Tribunal determines, orders or declares:
to carry out a review of the operation and effect of the enduring power of attorney.
Having conducted the review has determined to make no orders and dismiss the application.

Catchwords:
REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – whether attorney in breach of their fiduciary duty as attorney – eviction of principal’s children from investment property belonging to the principal - allowing rent-free occupation of the principal’s property amounting to a gift – not in principal’s best interests that an order be made – review of enduring power of attorney conducted – no order made – application dismissed.

Legislation Cited:
Div 4, Pt 3 of the Powers of Attorney Act 2003 (NSW)
the POA Act, s 36 (1)
ss 36(3)-(9) of the POA Act
Pt 3A of the Guardianship Act 1987 (NSW)
s 37(1) of the POA Act
the POA Act: s 36(1)-(2)
s 35 of the POA Act
s 4 of the Guardianship Act
s 36(4) of the POA Act
s 37(1) of that Act
s 36(4) of the POA Act
s 11(2) of the POA Act

Cases Cited:
ZBC v ZBD [2016] NSWCATAP 264
C v W [2015] NSWSC 1774

Texts Cited:
GD Dal Pont, Powers of Attorney (2015, LexisNexis, Butterworths Australia) at [8.32]

Category: Principal judgment
Parties: 015: Review of an Enduring Power of Attorney
MQN (the person)
NZG (applicant)
DVN (attorney)
MBL (joined party)
NSW Trustee and Guardian
Representation:
Counsel:
T Alexis SC, Counsel for DVN
Solicitors:
G Coyne, Solicitor for NZG and MBN

File Number(s): NCAT 2017/00198140
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

APPLICATION FOR REVIEW OF AN ENDURING POWER OF ATTORNEY

Background

MQN is 90 years old and of Italian background. MQN is a permanent resident at an aged care facility in Sydney’s Northern Beaches region. Prior to this MQN lived in another aged care facility after re-locating in 2015 from the unit in which she lived for many years in another suburb in the Northern Beaches. MQN’s husband died in 1998. MQN has three children: Mr DVN, Ms NZG and Mrs MBL. For ease of reference MQN’s children are referred to as…

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 MQN (No 4)

Details

AGLC: MQN (No 4) [2020] NSWCATGD 55
Case: [2020] NSWCATGD 55
Decision Date: 17 March 2020

CaseChat Overview and Summary

The case of MQN (No 4) involves a review of an enduring power of attorney, specifically focusing on whether an order should be made under Section 36 of the Powers of Attorney Act. The dispute arises from actions taken by the appointed attorney, DVN, who has been accused of breaching their fiduciary duty. The principal, MQN, had appointed DVN as attorney on 15 July 2011. The issues at hand include whether DVN evicted MQN’s children from an investment property, allowed MQN to occupy the property rent-free, and made gifts that were not in MQN’s best interests. The court was required to determine if the actions of the attorney warranted an order under Section 36 of the Powers of Attorney Act and if the eviction and rent-free occupation amounted to a breach of fiduciary duty.

The court meticulously reviewed the operation and effect of the enduring power of attorney, assessing whether DVN's actions were in the best interests of MQN. In conducting this review, the court examined the fiduciary responsibilities of the attorney and the specific allegations regarding the eviction and rent-free occupation. The court found that the actions taken by DVN did not amount to a breach of their fiduciary duty and that there was no evidence to suggest that these actions were not in MQN’s best interests. The decision to dismiss the application was based on the finding that the review did not reveal any grounds warranting an order under Section 36 of the Powers of Attorney Act.

Following the comprehensive review, the Tribunal determined that no orders should be made. The application was dismissed, and the Tribunal concluded that the actions of the attorney did not warrant any intervention. The decision underscores the importance of assessing the best interests of the principal in the context of an enduring power of attorney, and the court’s reluctance to interfere unless clear grounds exist. The final orders reflect the Tribunal’s determination to make no changes to the existing enduring power of attorney, thereby upholding the authority of the attorney as appointed by the principal.

Orders

Orders of the court

In relation to the enduring power of attorney made by MQN on 15 July 2011 which appointed DVN as attorney the Tribunal determines, orders or declares:

to carry out a review of the operation and effect of the enduring power of attorney.

Having conducted the review has determined to make no orders and dismiss the application.

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:	MQN (No 4) [2020] NSWCATGD 55
Hearing dates:	5 March 2020
Date of orders:	17 March 2020
Decision date:	17 March 2020
Jurisdiction:	Guardianship Division
Before:	L Organ, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) F E Hilson, General Member (Community)
Decision:	In relation to the enduring power of attorney made by MQN on 15 July 2011 which appointed DVN as attorney the Tribunal determines, orders or declares: to carry out a review of the operation and effect of the enduring power of attorney. Having conducted the review has determined to make no orders and dismiss the application.
Catchwords:	REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – whether attorney in breach of their fiduciary duty as attorney – eviction of principal’s children from investment property belonging to the principal - allowing rent-free occupation of the principal’s property amounting to a gift – not in principal’s best interests that an order be made – review of enduring power of attorney conducted – no order made – application dismissed.
Legislation Cited:	Div 4, Pt 3 of the Powers of Attorney Act 2003 (NSW) the POA Act, s 36 (1) ss 36(3)-(9) of the POA Act Pt 3A of the Guardianship Act 1987 (NSW) s 37(1) of the POA Act the POA Act: s 36(1)-(2) s 35 of the POA Act s 4 of the Guardianship Act s 36(4) of the POA Act s 37(1) of that Act s 36(4) of the POA Act s 11(2) of the POA Act
Cases Cited:	ZBC v ZBD [2016] NSWCATAP 264 C v W [2015] NSWSC 1774
Texts Cited:	GD Dal Pont, Powers of Attorney (2015, LexisNexis, Butterworths Australia) at [8.32]
Category:	Principal judgment
Parties:	015: Review of an Enduring Power of Attorney MQN (the person) NZG (applicant) DVN (attorney) MBL (joined party) NSW Trustee and Guardian
Representation:	Counsel: T Alexis SC, Counsel for DVN Solicitors: G Coyne, Solicitor for NZG and MBN
File Number(s):	NCAT 2017/00198140
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.