Stevens v Alcazar-Stevens
[2016] ACTSC 170
•11 July 2016
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) 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
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).
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.
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.
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 of time should be dismissed. If, on the other hand, the question is determined adversely to the defendant then the defendant does not oppose the granting of an extension of time so as to permit the application to be brought. Therefore, the determinative question is whether or not the plaintiff has standing to bring an application under s 50.
Section 50 of the POA Act
Section 50 provides:
50 Compensation for failure to comply with Act
(1) An attorney under a power of attorney may be ordered by the Supreme Court to compensate the principal (or, if the principle has died, the principal’s estate) for a loss caused by the attorney’s failure to comply with this Act in the exercise of a power.
Note Under s 52, the attorney may be relieved from liability.
(2) Subsection (1) applies whether or not the attorney is convicted of an offence in relation to the attorney’s failure.
(3) If the principal or attorney has died, the application for compensation must be made to a court within 6 months after the day of the death.
(4) If the principal and the attorney have died, the application for compensation must be made to a court within 6 months after the day of the first death.
(5) The Supreme Court may extend the application time under subsection (3) or (4).
Note An application for an extension may be made before or after the end of the period to be extended (see Legislation Act, s 151C).
Submissions
The plaintiff submitted that s 50 does not, on its face, limit who may make an application for compensation. He submitted that it would be contrary to the purpose of the Act and contrary to public policy if an unscrupulous attorney could avoid personal liability because the executor (who in many situations may even be the same person as the attorney) decided not to pursue wrongful conduct by the attorney. He pointed to other provisions of the POA Act which give recognition to the role of relatives of the principal, in particular ss 27, 74 and 84 and also to the provisions of Pt 3 of the Guardianship and Management of Property Act 1991 (ACT). The plaintiff submits that he has a real interest in the outcome because he is an eligible person under the Family Provision Act 1969 (ACT) and hence the size of the estate is a significant issue for him. He also submitted that he is a person who may challenge the purported will or make his own application to administer the estate of his late mother. He is also a person who would be entitled to a portion of her estate upon intestacy if the will was invalidated.
The plaintiff pointed to the decision in Moylan v Rickard [2010] QSC 327 as providing an illustration of a case where relief was granted upon the application of a relative who was not a representative of the estate. However, the plaintiff accepted that although s 106 of the Powers of Attorney Act 1998 (Qld) had considerable similarity to s 50, the statutory regime was significantly different because there were express provisions under the Queensland Act identifying the persons who were entitled to make such an application.
The defendant submitted that only the executor appointed under the mother’s will or some other person formally appointed to represent the estate has standing to bring such an application. She submitted that having regard to the fact that the payment under s 50 must be made to the estate, only a person who represents the estate was entitled to make the application. That, she submitted, is consistent with the regime provided under the Administration and Probate Act 1929 (ACT) for the making of grants of representation of the estate and the removal of executors. She submitted that the present position was consistent with the executor having discharged her responsibilities by being satisfied with the accounting provided to her by the defendant and that if the plaintiff was to make any application it should be an application for a grant of representation to him or the Public Trustee and Guardian and, upon such an application, different issues would arise to those which arise on the present application.
She submitted that the appropriate person to bring the application was, if the principal was alive, the principal (or some statutory representative of the principal) and if the principal was dead, the executor or other representative of the estate. She submitted that the existence of other provisions within the POA Act which identify the persons who may make applications under the Act is a factor which tells against the plaintiff’s submissions, because had the legislature intended the class of persons to extend beyond those who formally represent the estate then it would have said so in the same manner that it has done so elsewhere in the Act.
Consideration
The Administration and Probate Act 1929 provides for the administration of estates where there is a will or where a person dies intestate. It provides for the appointment of a representative of the estate. The representative may be the executor of a will, an administrator of the estate appointed under the Act or by the Act itself.
Other provisions of the POA Act do identify the persons who are entitled to make various applications. Section 74 of the Act defines the concept of an “interested person” to include an attorney, the principal, a relative of the principal, the public advocate, the Public Trustee and Guardian, a guardian of the principal or a manager of the principal. That definition is then picked up by various other provisions in the Act.
Under s 27 of the POA Act an “interested person” may apply to the ACT Administrative Appeals Tribunal (ACAT) for directions or an order in circumstances where two or more attorneys are authorised under an enduring power of attorney and it is impractical or impossible for the attorneys to exercise the power unanimously.
Section 84 of the POA Act permits an “interested person” to apply to the ACAT for an order that the interested person be given access to the principal. For the purposes of that section the scope of an “interested person” is extended so that it includes carers as well as a lawyer or doctor acting on behalf of a member of the principal’s family or on behalf of a relative of the principal.
Sections 80 and 81 of the POA Act permit the making of orders by the Supreme Court in relation to acts done or purportedly done under a power of attorney. Those sections expressly identify who may make such an application, and in each case identify it as “the principal”.
Pt 3 of the Guardianship and Management of Property Act permits applications by an “interested person” as defined in the POA Act, or with leave of the ACAT other persons, for directions, declarations relating to an enduring power of attorney or its revocation. The existence of these provisions suggests a general legislative policy permitting a range of persons to take proceedings in relation to the operation of powers of attorney but, on the other hand, highlights the lack of any specification in s 50 of who may make such an application. Section 50 is silent as to who may make an application. Had the intention of the legislature been to confine the persons at whose instigation an order under the section could be made then no doubt it would have been easy to do so in the same way that was done in relation to other statutory provisions. The alternative approach, consistent with the defendant’s submission, is to say that because the legislature chose not to specify an expanded group of persons who may apply, as it did elsewhere, the intention was to confine the section to being invoked by the person who at law represents the person or the estate of the person who gave the power of attorney.
In my view, the starting point must be that a statutory power has given jurisdiction to the Court in terms which do not confine the class of persons who may invoke it. In those circumstances the contentions of the defendant will be made out if an implication arises from the nature of the power granted, the terms of the POA Act or from the statutory or common law context in which it exists, that the power may only be invoked by those who in law are or represent the person who gave the power of attorney or the person’s estate.
The terms of the POA Act do not themselves seek to qualify the entitlement to invoke the jurisdiction of the court.
The result of any order made under s 50 must involve payment to the principal or the principal’s estate and nobody else (“compensate the principal... or ... the principal’s estate”). While this means that it will usually be the principal or the representative of the principal’s estate, it does not mean that it can only be the principal or the estate that invokes the jurisdiction.
The existence of other sections in the POA Act which do attempt to identify the persons who may make applications to the Court or ACAT are not sufficient to give rise to an implication that only representatives of the estate may bring such an application. Because of the difference in the drafting styles of the provisions, the specification of permitted applicants can be seen as either leaving it to the common law to work out who has a sufficient interest or being consistent with limiting the permitted applicants to those entities that may benefit from an order, namely the person or the person’s estate.
The existence of provisions under the Administration and ProbateAct for the representation of the estate provides a statutory backdrop against which s 50 has been enacted. An executor or a person granted representation of the estate under s 9 of the Administration and Probate Act, or a person appointed under or empowered by the Act to administer an estate, would clearly be entitled to make an application under s 50. However, the existence of a statutory process to empower representation of an estate does not necessarily imply a limit upon s 50. Similarly the availability of statutory powers which would allow the present plaintiff to become formally appointed as the representative of the estate, such as those in ss 25 or 32 of the Administration and ProbateAct, do not necessarily imply that they are the exclusive means of becoming entitled to make applications under s 50.
The predecessor to the POA Act, the Powers of Attorney Act 1956 (ACT), did contain a provision (s 15) permitting applications to the Court to remedy breaches of duty by the donee of powers under an enduring power of attorney. The section identified that the application could be made by the public trustee, a trustee company or, with the leave of the Court, some other person. The existence of this pre-existing law does suggest that if the legislature had intended to confine the persons who were entitled to make applications for relief in relation to a breach of duty then it would have specified the limited class of persons who were entitled to make an application under s 50. There is nothing in the POA Act or any relevant extrinsic material that indicates an intention to reduce the scope of persons able to remedy breaches of duty by a donee of powers under a power of attorney.
In my view, given the protective purposes behind the POA Act generally and s 50 in particular, it should not be interpreted as being confined to applications made by the person, a representative of the person or the person’s estate. While it will be unusual for persons outside those categories to bring proceedings which must benefit only the person or the person’s estate, it is, in my view, consistent with the terms of s 50 that a person other than persons in those categories be entitled to make an application. In the case of a person who has died, a person who is a son of the deceased and has an interest in the size and distribution of the estate such as the plaintiff in this case has, in my view, sufficient interest to entitle him to invoke the Court’s jurisdiction. That is so even though he has not commenced proceedings either to challenge the validity of the will or for family provision. While it is possible to imagine situations where an applicant might be identified as clearly inappropriate, that can be dealt with by the common law of standing, the powers of the Court to prevent abuse of its process and the discretion to refuse relief. It does not warrant a restrictive reading of the terms of s 50.
Because the terms of s 50 do not preclude the making of an application by the plaintiff and an extension of time is otherwise appropriate I will grant the plaintiff an extension of time in which to commence proceedings.
Orders
The orders of the Court are:
1. The time for applying for compensation under s 50 of the Power of Attorney Act 2006 (ACT) is extended until 15 July 2016; and
2. The costs of the application are reserved.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 14 July 2016 |