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Spina v Permanent Custodians Ltd

Spina v Permanent Custodians Ltd

Case [2008] NSWSC 561 30 June 2008

Contract Formation

Unconscionable Conduct

Breach of Contract

Unjust Enrichment

Contract Law

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CITATION: Angelina Spina v Permanent Custodians Limited [2008] NSWSC 561
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26,27,28 & 29 May 2008

JUDGMENT DATE :
30 June 2008

JUDGMENT OF: Hammerschlag J

DECISION: Plaintiff's claim dismissed. Judgment for defendant in money sum and order for possession

CATCHWORDS: CONTRACT – AGENCY – Power of Attorney in form of Schedule 7 to Conveyancing Act 1919 (NSW) – s 163B – ambit of authority such a power of attorney confers – meaning of “on behalf of” and “attorney” in s 163B(1) – authority where no limitation in s 163B(2) specified not limited to transactions for the benefit of donor and does not exclude transactions for the sole benefit or partial benefit of donee – UNCONSCIONABILITY – Allegation that loan agreement and mortgage executed under power of attorney procured by unconscionable conduct of defendant – requirements for exercise of jurisdiction to set aside transactions – CONTRACTS REVIEW ACT1980 (NSW) – Allegation that transactions unjust when entered into – whether allegation made out – discretion under s 7(1) to make orders

LEGISLATION CITED: Contracts Review Act 1980 (NSW)
Real Property Act 1900 (NSW)
Interpretation Act 1987 (NSW)
Conveyancing Act 1919 (NSW)
Powers of Attorney Act 2003 (NSW)
Conveyancing (Powers of Attorney) Amendment Act (NSW) 1983
Powers of Attorney Act 1971 (UK)

CATEGORY: Principal judgment

CASES CITED: Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679
Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in liq) (2003) 214 CLR 514
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Tobin v Broadbent (1947) 75 CLR 378
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134
Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41
Kelly v CA & L Bell Commodities Corporation Pty Limited (1989) 18 NSWLR 248
Barlow Clowes International Ltd (In liq) v Eurotrust International Ltd [2006] 1 WLR 1476
Spina v Conran Associates Pty Limited; Spina v M & V Endurance Pty Limited [2008] NSWSC 326
R v Toohey; Ex parte A-G for Northern Territory (1979) 145 CLR 374
Blomley v Ryan (1956) 99 CLR 362
Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447
Louth v Diprose (1992) 175 CLR 621
Bridgewater v Leahy (1998) 194 CLR 457
Morrison v Coast Finance Limited (1965) 55 DLR (2d) 710
Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447
Ribchenkov v Suncorp-Metway Ltd [2000] FCA 0835
Wilkinson v ASB Bank Ltd [1998] 1 NZLR 674
Kleinwort Benson Australia Ltd v Armitage & Ors (unreported, NSWSC, 26 April 1989)
Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256
Pasternacki and Solka-Pasternacki (as Executors of the Estate of the Late Mary Nagy) v Correy [2000]…

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 Spina v Permanent Custodians Ltd

Details

AGLC: Spina v Permanent Custodians Ltd [2008] NSWSC 561
Case: [2008] NSWSC 561
Decision Date: 30 June 2008

CaseChat Overview and Summary

The case involved a dispute between Spina and Permanent Custodians Ltd, centering on the interpretation and application of a power of attorney under the Conveyancing Act 1919 (NSW). The power of attorney, in the form of Schedule 7 to the Act, allowed the donee to act on behalf of the donor. The dispute arose from transactions that the donee executed under this power of attorney, with Spina alleging that these transactions were procured by unconscionable conduct and were unjust when entered into.

The primary legal issues before the court were the interpretation of the terms "on behalf of" and "attorney" in section 163B(1) of the Act and the extent of authority conferred by a power of attorney without specified limitations in section 163B(2). Specifically, the court had to determine whether the donee's authority under the power of attorney was limited to transactions for the benefit of the donor or if it included transactions for the sole or partial benefit of the donee. Additionally, the court considered whether the transactions were procured by unconscionable conduct and whether they were unjust when entered into, under the Contracts Review Act 1980 (NSW).

The court held that the term "on behalf of" in section 163B(1) does not restrict the donee's authority to transactions solely for the benefit of the donor. Instead, it allows the donee to act in transactions that are for the sole or partial benefit of the donee, provided no limitations are specified in section 163B(2). The court found that the power of attorney conferred broad authority to the donee. Regarding the allegation of unconscionable conduct, the court found that Spina failed to meet the requirements for setting aside the transactions under the Contracts Review Act 1980 (NSW). The transactions were not considered unjust when entered into, and the court exercised its discretion not to make orders under section 7(1) of the Act.

Orders