Stevens v Alcazar-Stevens

[2016] ACTSC 170

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Stevens v Alcazar-Stevens

Citation:

[2016] ACTSC 170

Hearing Date:

8 July 2016

DecisionDate:

11 July 2016

Before:

Mossop AsJ

Decision:

See [24]

Catchwords:

POWERS OF ATTORNEY – STATUTORY INTERPRETATION – Powers of Attorney Act 2006 (ACT), s 50 – Where an extension of time was sought for making an application for compensation under s 50(1) – Whether plaintiff has standing – Whether only a person who represents the estate has standing – Failure of provision to identify those persons who may make an application not to be interpreted as limiting that category of person – Extension granted

Legislation Cited:

Administration and Probate Act 1929 (ACT), ss 9, 25, 32

Family Provision Act 1969 (ACT)
Guardianship and Management of Property Act 1991 (ACT)
Powers of Attorney Act 1956 (ACT), s 15
Powers of Attorney Act 1998 (Qld), s 106

Powers of Attorney Act 2006 (ACT), ss 27, 50, 74, 80, 81, 84

Cases Cited:

Moylan v Rickard [2010] QSC 327

Parties:

Alexander Stevens (Plaintiff)

Catherine Alcazar-Stevens (Defendant)

Representation:

Counsel

W Sharwood (Plaintiff)

M Orlov (Defendant)

Solicitors

Snedden, Hall & Gallop (Plaintiff)

Elringtons (Defendant)

File Number(s):

SC 227 of 2016

MOSSOP AsJ:

Introduction

1. This is an application for an extension of time pursuant to s 50(5) of the Powers of Attorney Act 2006 (ACT) (the POA Act).

1. The plaintiff is a son of the late Luisa Aida Maldonado (the deceased) who died on 25 November 2015.  The defendant is a daughter of the deceased who at all relevant times was the attorney of the deceased under an enduring power of attorney dated 3 March 2011.  Another daughter, Constance Stevens, is named as an executor under a will dated 18 December 2014.  There are two other sons of the deceased, Paul Stevens and John Stevens.

1. The plaintiff wishes to make an application under s 50(1) for an order that the defendant pay compensation to the estate of the deceased. Under s 50(3) that application must be made to a court within six months after the date of death. That meant that the application needed to be made prior to 25 May 2016. The application was only made on 30 May 2016, some five days late. The Supreme Court has, pursuant to s 50(5), power to extend the time for the making of an application.

1. The defendant opposes the granting of an extension of time. The basis for that opposition is that the plaintiff lacks standing to bring such an application because the plaintiff is not the executor and does not otherwise represent the estate. The defendant contends that upon the proper interpretation of s 50 of the POA Act, where the person giving the power of attorney has died, it is only open to the executor or a person who has been granted representation of the estate to seek an order for compensation of the estate. If that question is determined in favour of the defendant, then clearly the application for an extension…