QFC (No 3) - [2020] NSWCATGD 24

NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: QFC (No 3) [2020] NSWCATGD 24
Hearing dates: 20 March 2020
Date of orders: 20 March 2020
Decision date: 20 March 2020
Jurisdiction: Guardianship Division
Before: A D Suthers, Principal Member
Dr B Chenoweth, Senior Member (Professional)
R Royer, General Member (Community)
Decision:
In relation to the enduring power of attorney made by QFC on 19 February 2010 which appointed RBC and EZC as attorney(s) the Tribunal determines, orders or declares:
not to carry out a review of the operation and effect of the enduring power of attorney.
QFC is to lodge in the Tribunal and give to TAC any further submissions on her application for costs, within 14 days.
TAC is to lodge in the Tribunal and give to QFC her submissions opposing the costs application, within 14 days of the Tribunal publishing its reason for decision in the substantive application.
A hearing of the costs application is dispensed with.

Catchwords:
GUARDIANSHIP – application to review operation and effect of power of attorney – similar application previously dealt with by the Tribunal – allegations of inappropriate influence by attorney – proper considerations in exercising the discretion as to whether to conduct review - whether gift made indicated undue influence – no nexus between transactions and operation and effect of power of attorney – no indication that attorneys played any part in undertaking transactions – decision not to review power of attorney.
INTERLOCUTORY – application for an adjournment – procedural fairness – COVID-19 pandemic – hearing to be conducted by telephone only – concern of inappropriate influence on subject person - whether hearing should be adjourned to a time at which it could be held in person – subject person in separate location to attorneys – no material risk of subject person being inappropriately influenced during hearing - telephone hearings usual course for Guardianship Division during pandemic – no procedural unfairness.

Legislation Cited:
Civil and Administrative Tribunal Act 2014 (NSW), ss 36, 36(1), 64(1)(d)
Guardianship Act 1987 (NSW), ss 4, 4(b), 4(d)-(e), 4(g), Pt 3A
Powers of Attorney Act 2003 (NSW), ss 36, 36(1), 36(4), 37(1), Div 4 of Pt 5

Cases Cited:
Bradshaw v McEwans Pty Ltd [1951] 217 ALR 1
Gibbons v Wright [1954] HCA 17
QFC [2018] NSWCATGD 3
QFC (No 2) [2018] NSWCATGD 49
Susan Elizabeth Parker v Margaret Catherine Higgins [2012] NSWSC 1516
ZBC v ZBD [2016] NSWCATAP 264

Category: Principal judgment
Parties:
003: Review of an Enduring Power of Attorney
QFC (the person)
TAC (applicant)
RBC (attorney)
EZC (attorney)
NSW Trustee and Guardian
Representation:
Counsel:

J O’Connor for TAC
M Pringle for QFC

Solicitors:
Walsh & Blair for TAC
McCullough Robertson for QFC

File Number(s): NCAT 2017/00330439
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

Background

QFC…

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 QFC (No 3)

Details

AGLC: QFC (No 3) [2020] NSWCATGD 24
Case: [2020] NSWCATGD 24
Decision Date: 20 March 2020

CaseChat Overview and Summary

QFC applied to the Tribunal to review the operation and effect of an enduring power of attorney made in 2010, appointing RBC and EZC as attorneys. The application arose from allegations that the attorneys had inappropriately influenced QFC. The Tribunal had previously dealt with a similar application, which was dismissed. The nature of the dispute involved the exercise of the Tribunal's discretion regarding whether to conduct a review and the potential undue influence exerted by the attorneys. The court had to determine whether the gifts made indicated undue influence and whether there was a nexus between the transactions and the operation and effect of the power of attorney. It also had to consider whether the attorneys played any part in undertaking the transactions.

The Tribunal found that there was no indication of undue influence in the gifts made by QFC to the attorneys. It also determined that there was no nexus between the transactions and the operation and effect of the power of attorney, and there was no evidence that the attorneys played any part in undertaking the transactions. The Tribunal concluded that the allegations of inappropriate influence did not provide a sufficient basis for a review of the power of attorney. Therefore, the Tribunal decided not to carry out a review of the operation and effect of the enduring power of attorney.

In addition, the Tribunal dealt with an interlocutory application for an adjournment, raised due to concerns about the procedural fairness of conducting a telephone hearing during the COVID-19 pandemic. The concern was that QFC, who was in a separate location to the attorneys, might be inappropriately influenced during the hearing. The Tribunal found that there was no material risk of such influence and that telephone hearings were the usual course during the pandemic. It concluded that there was no procedural unfairness in conducting the hearing by telephone.

The orders of the Tribunal were that it would not carry out a review of the operation and effect of the enduring power of attorney. QFC was required to lodge and serve further submissions on her application for costs within 14 days, and TAC was to lodge and serve her submissions opposing the costs application within 14 days of the Tribunal publishing its reasons for decision in the substantive application. A hearing of the costs application was dispensed with.

Orders

Orders of the court

In relation to the enduring power of attorney made by QFC on 19 February 2010 which appointed RBC and EZC as attorney(s) the Tribunal determines, orders or declares:

not to carry out a review of the operation and effect of the enduring power of attorney.

QFC is to lodge in the Tribunal and give to TAC any further submissions on her application for costs, within 14 days.

TAC is to lodge in the Tribunal and give to QFC her submissions opposing the costs application, within 14 days of the Tribunal publishing its reason for decision in the substantive application.

A hearing of the costs application is dispensed with.

Background

Background to the litigation

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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

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Medium Neutral Citation:	QFC (No 3) [2020] NSWCATGD 24
Hearing dates:	20 March 2020
Date of orders:	20 March 2020
Decision date:	20 March 2020
Jurisdiction:	Guardianship Division
Before:	A D Suthers, Principal Member Dr B Chenoweth, Senior Member (Professional) R Royer, General Member (Community)
Decision:	In relation to the enduring power of attorney made by QFC on 19 February 2010 which appointed RBC and EZC as attorney(s) the Tribunal determines, orders or declares: not to carry out a review of the operation and effect of the enduring power of attorney. QFC is to lodge in the Tribunal and give to TAC any further submissions on her application for costs, within 14 days. TAC is to lodge in the Tribunal and give to QFC her submissions opposing the costs application, within 14 days of the Tribunal publishing its reason for decision in the substantive application. A hearing of the costs application is dispensed with.
Catchwords:	GUARDIANSHIP – application to review operation and effect of power of attorney – similar application previously dealt with by the Tribunal – allegations of inappropriate influence by attorney – proper considerations in exercising the discretion as to whether to conduct review - whether gift made indicated undue influence – no nexus between transactions and operation and effect of power of attorney – no indication that attorneys played any part in undertaking transactions – decision not to review power of attorney. INTERLOCUTORY – application for an adjournment – procedural fairness – COVID-19 pandemic – hearing to be conducted by telephone only – concern of inappropriate influence on subject person - whether hearing should be adjourned to a time at which it could be held in person – subject person in separate location to attorneys – no material risk of subject person being inappropriately influenced during hearing - telephone hearings usual course for Guardianship Division during pandemic – no procedural unfairness.
Legislation Cited:	Civil and Administrative Tribunal Act 2014 (NSW), ss 36, 36(1), 64(1)(d) Guardianship Act 1987 (NSW), ss 4, 4(b), 4(d)-(e), 4(g), Pt 3A Powers of Attorney Act 2003 (NSW), ss 36, 36(1), 36(4), 37(1), Div 4 of Pt 5
Cases Cited:	Bradshaw v McEwans Pty Ltd [1951] 217 ALR 1 Gibbons v Wright [1954] HCA 17 QFC [2018] NSWCATGD 3 QFC (No 2) [2018] NSWCATGD 49 Susan Elizabeth Parker v Margaret Catherine Higgins [2012] NSWSC 1516 ZBC v ZBD [2016] NSWCATAP 264
Category:	Principal judgment
Parties:	003: Review of an Enduring Power of Attorney QFC (the person) TAC (applicant) RBC (attorney) EZC (attorney) NSW Trustee and Guardian
Representation:	Counsel: J O’Connor for TAC M Pringle for QFC Solicitors: Walsh & Blair for TAC McCullough Robertson for QFC
File Number(s):	NCAT 2017/00330439
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.