Susan Elizabeth Parker v Margaret Catherine Higgins & Ors
[2012] NSWSC 1516
•30 October 2012
Supreme Court
New South Wales
Medium Neutral Citation: Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 Hearing dates: 27 September 2012, 5, 12 & 19 October 2012 Decision date: 30 October 2012 Jurisdiction: Equity Division - Duty List Before: Slattery J Decision: Summons dismissed. Directions made for the filing of written submissions on the issue of costs.
Catchwords: AGENCY - powers of attorney - Powers of Attorney Act 2003, s 36(4) - the plaintiff and first defendant, two sisters, are appointed co-attorneys by their parents, the second and third defendants under two enduring powers of attorney - plaintiff resides in the United Kingdom - first defendant involved in Australia in the day-to-day exercise of the powers conferred under the powers of attorney - the plaintiff seeks relief that the first defendant provide accounts and information to the plaintiff in relation to her administration of the two powers of attorney - the first, second and third defendants oppose the relief sought - to what standard are co-attorneys obliged to keep accounts of their administration under the power of attorney - whether the powers of attorney should be reviewed under Powers of Attorney Act, s 36(4). HELD: - attorney not required to keep accounts to the trustee standard - powers of attorney not reviewed under Powers of Attorney Act, s 36(4). Legislation Cited: Powers of Attorney Act 2003 (NSW)
Trustee Act 1925 (NSW), s 51
Uniform Civil Procedure Rules 2005, r 7.18Cases Cited: Cave v McKenzie (1877) 46 LJ Ch 564
In the Estate of William Just (deceased) (No. 1) (1973) 7 SASR 508
Kendle & Anor v Melsom & Anor (1998) 193 CLR 46
Luke v South Kensington Hotel Company (1879) 11 Ch D 121
Walker v Corboy (1990) 19 NSWLR 382
Yasuda Fire and Marine Insurance Co of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] QB 174Texts Cited: Bowstead and Reynolds on Agency, Thomson Sweet and Maxwell, 18th Edition, London, [6-090]
Ford on Trusts, Law Book Company, 2nd Edition, 1990
G D Dal Pont, Powers of Attorney, LexisNexis Butterworths Australia, 2010
J.D. Heydon and M.J. Leeming, Jacobs Law of Trusts in Australia, 7th Edition, 2005,Category: Principal judgment Parties: Plaintiff:- Susan Elizabeth Parker
First Defendant:- Margaret Catherine Higgins
Second Defendant:- Gwenda Higgins by her tutor George Higgins
Third Defendant:- George Joseph HigginsRepresentation: Counsel:
Plaintiff:- T. J. Hancock
First Defendant:- W. G. Muddle SC
Second & Third Defendants:- B. J. Skinner
Solicitors:
Plaintiff:- Richard Farago, McGlynn & Partners
First Defendant:- Hamish Cockburn, McLachlan Thorpe Partners
Second & Third Defendants:- Karen McLean, McLean & Associates
File Number(s): 2012/301536 Publication restriction: No
EX TEMPORE Judgment
George and Gwenda Higgins have three children, Susan Parker, Margaret Vaughan and Peter Higgins. Mr and Mrs Higgins reside in a residential aged care facility on Sydney's Northern Beaches. Mrs Higgins granted an enduring power of attorney to the couple's three children in November 2009, although Peter Higgins has since renounced that role. In May 2011 Mr Higgins granted an enduring power of attorney to Susan Parker and Margaret Vaughan.
These proceedings concern members of the one family. I will henceforth, and without intending any disrespect to any family member, refer to each of them by his or her first name.
The proceedings commenced as a contest between Susan and Margaret, the two remaining joint and several attorneys of George and Gwenda. Susan lives in the United Kingdom. Margaret has exercised day-to-day management in Australia under the two powers of attorney. Susan seeks orders under the Powers of Attorney Act 2003, s 36(4) that: (1) the operation of these two powers of attorney be reviewed; and (2) that her co-attorney, Margaret, provide to her documents and accounting information about her exercise of powers under the two powers of attorney. Margaret resists the grant of any such relief.
The origins of the proceedings lie in correspondence Susan and her lawyers have sent to Margaret and her lawyers since about October 2011. The correspondence sought access to documents and accounting information that Margaret held from the exercise of her functions as an attorney. Margaret has offered access to some of this material on terms before proceedings commenced. But she was not satisfied with what Margaret had provided and discussions broke down.
George and Gwenda were not initially joined as defendants when the Summons was filed in the Duty List on 27 September 2012. But as their interests were affected by the relief sought they were joined as the second and third defendants. In any event Powers of Attorney Act, s 35(2) specifies that principals in conformity with powers of attorney granted under the Powers of Attorney Act are parties to such applications for review. As principals under the two powers of attorney, George and Gwenda were necessary parties to Susan's application.
It was agreed on all sides that Gwenda required a tutor in the proceedings. George was appointed as her tutor. The appointment under the UCPR was warranted on the evidence before the Court. On the issues in these proceedings there was no conflict of interest between George and Gwenda, such as would prevent his appointment as her tutor.
The proceedings came on quickly in the Duty List, when Susan was visiting Australia for a short period of time from the United Kingdom. The proceedings were determined within approximately a month. After their commencement on 27 September 2012, the Summons was first returnable in the Duty List on 3 October 2012, then again on 5 October and 12 October 2012. The matter was being heard in the Duty List on an interlocutory basis. But the Court afforded the parties the option of a quick final hearing. The parties adopted this option. The final hearing took place on 19 October 2012.
An urgent final hearing was offered to the parties for several reasons. First, Margaret had produced documents after the proceedings commenced. She said that she had no more documents of relevance to Susan's requests. It appeared, therefore, that the issues for final hearing would be no wider than those already debated on an interlocutory basis in the Duty List.
Secondly, the estimated duration of the final hearing was said to be no more than two hours. It was especially desirable in these circumstances that the proceedings be argued at one hearing rather than two, whilst Susan was in Australia.
Thirdly, and most importantly, the proceedings were potentially stressful for George and Gwenda, who are both in their 80's. It was desirable, in their interests, for the case to be concluded as soon as possible.
At the final hearing on 19 October 2012 affidavit evidence was read on all sides. The legal representatives co-operated in reading that material without cross-examination and without objections. Although the material was extensive, submissions were made on the basis of what was alleged in the affidavits, even though it was understand that many of the allegations made were contested.
Mr T. Hancock appeared for Susan. Mr W. Muddle SC appeared for Margaret at the final hearing on 19 October but before that Mr M. Gorrick appeared for her. Mr B. Skinner appeared for George and Gwenda at the final hearing.
Although Susan and Margaret have been corresponding between themselves and through lawyers from about October 2011 about issues related to these proceedings, shortly after the proceedings commenced by motion dated 3 October 2012 Susan defined with greater precision exactly what of George and Gwenda's financial documents she wanted produced. The motion sought, from 1 July 2007, eight categories of George and Gwenda's documents. Those categories were the following: (1) books of account and management accounts relating to George and Gwenda's day-to-day affairs; (2) their electronic data files, ledgers, cash books and banking records; (3) their tax returns; (4) their financial correspondence; (5) Margaret's correspondence for them with government departments and aged care facilities; (6) their bank statements cheque-books share certificates and share transfers;(7) their records relating to any loan to Margaret; and, (8) their documents relating to the purchase by Margaret or her husband of George and Gwenda's property in Clareville. By the time of the hearing Margaret had either produced or given an account of what she knew about each of these eight categories. Her explanations and the Court's assessment of these eight categories are discussed below in these reasons under the heading "What Margaret has produced".
Susan had the benefit of expert evidence to assist her case. Once proceedings had been commenced Margaret produced material on 5 October 2012. On 9 October 2012 Susan's solicitors McGlynn & Partners retained Mr Michael Lee, a consultant accountant, to analyse the material that Margaret had produced. Mr Lee in turn prepared a report of 16 October 2012, which Susan relied upon at the hearing on 19 October.
Summary of Conclusions
I have reached the view the Court should: (1) decline to review George and Gwenda's powers of attorney under Powers of Attorney Act, s 36(4); (2) not grant the other relief sought; and (3) dismiss these proceedings with respect to both George and Gwenda's powers of attorney. The Court's more detailed reasons for taking that course follow. But a short summary of those reasons appears in this section.
First, neither George nor Gwenda support the relief sought. It is quite clear from the submissions put on their behalf by experienced counsel that neither George nor Gwenda wishes Margaret to give an account of her dealings as their attorney, as Susan now requests. Nor do George or Gwenda suggest that either Margaret or Susan have engaged in any maladministration under either power of attorney, such as would warrant either attorney being required to give an account of her dealings. On their own, these are good reasons why the Court should not now interfere under Powers of Attorney Act, s 36(4).
Secondly, there is an issue in relation to who will pay for the relief which Susan seeks. George and Gwenda, have indicated through their counsel that they do not wish to bear the costs of any accounting which might be ordered as a result of Susan's claims for relief. Margaret has a similar view.
The only person presently seeking such an accounting is Susan. She is only prepared to bear a share of the costs of the accounting in the short term, pending the Court ordering that such costs be borne by another party on a final basis. If the Court granted relief in the form sought, it may therefore require George and Gwenda, or possibly Margaret, against their express wishes, to bear the costs of an accounting. This is another good reason why the Court should not grant the relief sought.
Thirdly, neither the Powers of Attorney Act nor the general law applicable to powers of attorney ordinarily requires one of two attorneys to produce journals, ledgers, bank reconciliations and the other main elements of trustees' accounts, of the type that Susan requests here.
Fourthly, Margaret has now produced documents for Susan's examination. Susan has had an opportunity to examine the documents so produced and to do so with the assistance of an accountant. Two things are clear from this examination. First, the accountant who has examined the material on Susan's behalf has not identified any irregularity in the accounts which would be a signpost of obvious wrongdoing or poor administration, so as to enliven the Court's jurisdiction to order a review under Powers of Attorney Act, s 36(4).
Moreover, the Court's own examination of the materials Margaret has produced does not suggest any basis for ordering a review. The material produced shows the account keeping that she has done so far is not untypical of that to be expected from reasonably careful individuals, in the position of George and Gwenda ordering their own personal financial affairs, with the competent assistance of another family member. This application must be looked at in a realistic framework in the real world of what people do within families with respect to their own affairs, and not with overly legalistic eyes.
I will now briefly summarise the relevant facts, before elaborating upon this summary of my reasons for decision.
George and Gwenda Higgins and their Powers of Attorney
George is 87 and Gwenda is 86. They both reside in an aged care facility. Susan resides in York, England and visits Australia three or four times a year. She also owns property in New South Wales. Margaret lives on Sydney's Northern Beaches, as does Peter.
Gwenda granted a power of attorney to Susan, Margaret and Peter jointly on 19 November 2009. Signed by Gwenda it relevantly provides as follows:-
"This power of attorney is made on the 19th day of November 2009
by GWENDA LAURIE HIGGINS ('the principal') of [address not published] NSW.
1. I appoint SUSAN ELIZABETH PARKER of [address not published], England and MARGARET CATHERINE VAUGHAN of [address not published] NSW and PETER GEORGE WILLIAM HIGGINS of [address not published] NSW to be my attorneys. My attorneys may exercise the authority conferred on my attorneys by Part 2 of the Powers of Attorney Act 2003 to do on my behalf anything I may lawfully authorise an attorney to do. My attorney's authority is subject to any additional details specified in Part 2 of this document.
2. I give this power of attorney with the intention that it will continue to be effective if I lack capacity through loss of mental capacity after its execution.
3. This power of attorney operates:
* immediately
4. If I appoint more than one attorney, then I appoint them jointly and severally.
PART 2 - ADDITIONAL POWERS AND RESTRICTIONS
Nil."
Peter renounced Gwenda's November 2009 power of attorney on 7 July 2011 but thereafter Susan and Margaret continued as her attorneys under this power.
George granted a power of attorney to Susan and Margaret on 31 May 2011. Peter was not made George's attorney under this instrument, which conferred powers jointly and severally on Susan and Margaret in the following terms:-
"This power of of attorney is made on 31st day of May 2011 by GEORGE JOSEPH HIGGINS ('the principal') of [address not published], New South Wales.
1. I appoint SUSAN ELIZABETH PARKER of [address not published], England and MARGARET CATHERINE VAUGHAN of [address not published] NSW, to be my attorneys. My attorneys may exercise the authority conferred on my attorneys by Part 2 of the Powers of Attorney Act 2003 to do on my behalf anything I may lawfully authorise an attorney to do. My attorneys' authority is subject to any additional details specified in Part 2 of this document.
2. I give this power of attorney with the intention that it will continue to be effective if I lack capacity through loss of mental capacity after its execution.
3. This power of attorney operates immediately.
4. If I appoint more than one attorney, then I appoint them jointly and severally.
PART 2 - ADDITIONAL POWERS AND RESTRICTIONS
Nil."
George had executed an earlier power of attorney on 19 November 2009 appointing Susan, Margaret and Peter. But he revoked it on 1 June 2011, the day after giving his May 2011 power of attorney to Susan and Margaret. On 1 June 2011, George also appointed Susan and Margaret to be his enduring guardians.
Execution of these two powers of attorney was witnessed by a lawyer practising on the Northern Beaches and acting for George and Gwenda, Mr Matthew Jones, in conformity with the requirements of Powers of Attorney Act, s 19. Neither Gwenda's November 2009 power of attorney nor George's May 2011 power of attorney has been revoked. They are both enduring powers of attorney within Powers of Attorney Act, Part 4.
Susan visited Sydney in September 2011. She then signed George's power of attorney, and his appointment of her as a joint guardian, accepting thereby the powers so granted.
Thus, by the time these proceedings commenced the position was in summary: Gwenda's November 2009 unrevoked power of attorney and George's May 2011 unrevoked power of attorney respectively appointed Susan and Margaret as joint and several attorneys in conformity with Powers of Attorney Act, Part 4.
The correspondence that led to these proceedings is summarised later in these reasons under the heading "What Margaret Produced".
Application of the Powers of Attorney Act 2003
The parties all accepted that each of George and Gwenda's Powers of Attorney is a "reviewable power of attorney" under the Powers of Attorney Act 2003, Part 5, Division 4. Thus, there was no issue about the Court's jurisdiction to conduct a Powers of Attorney Act, Part 5 review.
The Powers of Attorney Act 2003 consolidated and revised existing provisions of the Conveyancing Act 1919 relating to powers of attorney. The Powers of Attorney Act 2003 does not affect the operation of any principle or rule of the common law or equity in relation to powers of attorney, except to the extent that the Act otherwise provides, whether expressly or by necessary intention: Powers of Attorney Act, s 7. Three main types of powers of attorney are provided for in the Powers of Attorney Act: prescribed powers of attorney (Part 2), irrevocable powers of attorney (Part 3) and enduring powers of attorney, surviving the incapacity of the principal (Part 4).
There is no issue in the proceedings that George and Gwenda's powers of attorney were validly executed in accordance with the requirements of Powers of Attorney Act, Part 4 and were valid enduring powers of attorney. The issues in the proceedings only concern the operation of these powers of attorney.
Powers of attorney executed under the authority of the Powers of Attorney Act are reviewable under Part 5. Specific powers of review are set out in Powers of Attorney Act, Pt 5, Division 4. Both the Supreme Court of New South Wales and the Guardianship Tribunal have jurisdiction and are a "review tribunal" to conduct Powers of Attorney Act, Part 5 reviews.
Powers of Attorney Act, s 27(1) confers concurrent jurisdiction on the two review tribunals, the Guardianship Tribunal and the Supreme Court, to perform their review functions. An applicant cannot apply to one of the two review tribunals for an exercise of a review function under Part 5, if an application has already been made to the other tribunal: Powers of Attorney Act, s 27(2). In this case no party commenced proceedings in the Guardianship Tribunal.
What constitutes a "reviewable power of attorney" seems to understood by Powers of Attorney Act, s 33(2) to include enduring Powers of Attorney of the kind George and Gwenda executed under Part 4. Powers of Attorney Act, s 33 provides as follows:-
"33 Reviewable powers of attorney
(1) A power of attorney is a reviewable power of attorney for the purposes of an application under this Division if the review tribunal to which the application is to be made has jurisdiction to deal with the application as provided by this section.
(2) Both the Guardianship Tribunal and the Supreme Court have jurisdiction to deal with an application under this Division in respect of an enduring power of attorney.
(3) The Supreme Court (but not the Guardianship Tribunal) also has jurisdiction to deal with an application under this Division in respect of any other power of attorney given by a principal who is incommunicate for the time being.
(4) To remove any doubt, references in this Division to a reviewable power of attorney extend to a document purporting to be a reviewable power of attorney and to the making of a power of attorney extend to the purported making of a power of attorney."
The Supreme Court and the Guardianship Tribunal may refer an application to review a power of attorney to the other, depending upon the circumstances. In this case the proceedings were first commenced in the Supreme Court. All parties accepted that the applications should be conveniently determined by this Court. But it was suggested in the course of submissions, not without justification, that the proceedings could have been commenced in the Guardianship Tribunal, thereby possibly generating a less expense for the parties. The mechanism for transfer between the two review tribunals is provided for in Powers of Attorney Act, s 34 as follows:-
"34 Referral of application to different review tribunal
(1) Whether or not on its own initiative, the Supreme Court may refer an application made to it under this Division in respect of an enduring power of attorney to the Guardianship Tribunal and the Guardianship Tribunal may refer such an application made to it to the Supreme Court.
(2) Without limiting the matters that a review tribunal may take into account in deciding whether or not to refer such an application, the review tribunal may take into account any one or more of the following matters:
(a) whether the application relates to the effect of the enduring power of attorney on third parties,
(b) whether the application is likely to raise for consideration complex or novel legal issues that the Supreme Court is better suited to determine,
(c) any other matter it considers relevant."
The Powers of Attorney Act specifies the persons who are necessary parties to applications in respect of a reviewable Power of Attorney: s 33(2). These persons include each principal under the Power of Attorney if the principal is not the applicant for review: s 33(2)(c). These provisions were ultimately not matters of controversy, as the principals George and Gwenda and the two co-attorneys Susan and Margaret, were ultimately all parties to the proceedings.
Attorneys and principals under Powers of Attorney Act, Part 4 enduring Powers of Attorney are each "interested persons" who may make applications under Powers of Attorney Act, s 36: s 35(1)(a) and (b). Here Susan is such an "interested person" who may apply for s 36 review.
Two parts of Powers of Attorney Act, s 36 are of central relevance to these proceedings: the conferral of the discretion to review (ss 36(1) and 36(2)); and, conferral of the power to make orders relating to the operation or effect of the Power of Attorney (s 36(4)).
The Court as a "review tribunal" has a two-step discretion under Powers of Attorney Act, s 36(1) and (2). The Court may first exercise a discretion under Powers of Attorney Act, s 36 to "decide to review" the making, operation or effect of a reviewable power of attorney or "not to carry out such review": s 36(1). After deciding in the affirmative to review the making or operation and effect of a reviewable power of attorney, the review tribunal may further exercise its discretion, "whether or not to make an order under" s 36. Powers of Attorney Act, s 36(1) and (2) provided for as follows:-
"36 Interested persons may apply for review
(1)Tribunal may review making or operation and effect of power
A review tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney or not to carry out such a review.
(2) As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section."
So in its discretion the Court first decides whether to review a power of attorney. Then it further decides in its discretion whether as a consequence of the review to make a s 36 order.
The scope of Court powers on review may embrace the making of declarations as to the mental capacity of the principal to make a valid Power of Attorney or otherwise declaring the Power of Attorney invalid due to the principal's lack of capacity to make it: Powers of Attorney Act, s 36(3) and (5). The detail of the Court's s 36 powers relating to the capacity of the principal is not relevant to the current proceedings, as the parties did not seek to invoke such a power. More relevant for present purposes is the scope of the Court's powers review and make orders in relation to the "operation and effect" of a reviewable Power of Attorney.
These powers are provided for in Powers of Attorney Act, s 36(4) as follows:-
"(4) Orders relating to operation and effect of power
A review tribunal may, if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal, make any one or more of the following orders relating to the operation and effect of a power of attorney:
(a) an order varying a term of, or a power conferred by, the power of attorney,
(b) an order removing a person from office as an attorney,
(c) an order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal or who otherwise vacates the office,
(d) an order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of an attorney and appointing a substitute attorney to replace the attorney who vacated office,
(e) an order directing or requiring any one or more of the following:
(i) that an attorney furnish accounts and other information to the tribunal or to a person nominated by the tribunal,
(ii) that an attorney lodge with the tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney under the power,
(iii) that those records and accounts be audited by an auditor appointed by the tribunal and that a copy of the report of the auditor be furnished to the tribunal,
(iv) that the attorney submit a plan of financial management to the tribunal for approval,
(f) an order revoking all or part of the power of attorney,
(g)such other orders as the review tribunal thinks fit."
In this case Susan's application was for the furnishing of accounts and information under s 36(4)(e). The detail of what accounts and information she sought in her application is set out later in these reasons.
This legislation also gives the Supreme Court broad power to mould orders to suit the circumstances of a review and to make consequential orders following upon orders for the furnishing of accounts or other information: Powers of Attorney Act, ss 36(7) and 36(8). The s 36(7) and (8) powers are as follows:-
"(7) Orders may be subject to terms and conditions
An order made under this section may be made subject to such terms and conditions as the review tribunal thinks fit.
(8) Further orders relating to accounts and information
If a review tribunal makes an order under this section directing an attorney to furnish accounts or other information, the tribunal may decide to make further orders for:
(a) limiting the disclosure of accounts or other information by the attorney, and
(b) inquiry and report on the conduct of the attorney.
The legislature foresaw that applications for Powers of Attorney Act, s 36 review may in certain circumstances indicate that a financial management order in respect of the affairs of a principal may be required under Guardianship Act 1987, Part 3A: see Powers of Attorney Act, s 37. Susan submitted the Court could treat her application for review of George and Gwenda's powers of attorney as one for a financial management order. For the reasons explained below, the Court declined to take this course. The Court's powers in this respect are provided by s 37(3):-
"37 Review tribunal may treat certain applications for review of power of attorney as application for management order
(3) If, on a review of the making or operation and effect of a reviewable power of attorney under section 36, the Supreme Court decides not to make an order under that section in respect of the power of attorney, it may (if it considers it appropriate in all the circumstances to do so) proceed instead as if an application for a declaration and order under section 41 of the NSW Trustee and Guardian Act 2009 had been duly made in respect of the principal under that power."
Finally, Powers of Attorney Act, Part 5, Division 4 provides a mechanism for an attorney who anticipates the need for judicial advice about the scope of the attorney's appointment or the exercise of any function under the power of attorney: Powers of Attorney Act, s 38. The section provides as follows:-
"38 Advice or directions concerning reviewable powers of attorney
(1) An attorney under a reviewable power of attorney may apply for advice or direction by a review tribunal on any matter relating to the scope of the attorney's appointment or the exercise of any function by the attorney under a reviewable power of attorney.
(2) In determining any such application, a review tribunal may decide to:
(a) approve or disapprove of any act proposed to be done by the attorney, or
(b) give such advice or direction as it considers appropriate, or
(c) vary the effect of the enduring power of attorney or make any other order it could make in an application under section 36.
(3) No proceedings lie against an attorney under a reviewable power of attorney for or on account of any act, matter or thing done or omitted to be done by the attorney in good faith and in accordance with any approval, advice or direction given under this section."
Attorneys may invoke this provision analogously with trustees seeking advice under Trustee Act, s 63, when they need clear and risk free guidance about the future discharge of their functions. Neither Susan nor Margaret availed herself of this provision in these proceedings, which were brought on rapidly.
Summary of the Issues
The parties' arguments may be organised under four main headings, which provide the structure for the balance of these reasons.
(a) Whether trustee standard accounts are required?
(b) Who will pay for preparation of the requested accounts?
(c) What Margaret has produced.
(d) George and Gwenda's opposition and the problem of co-attorneys.
Before going to these I should make one observation. One point Margaret makes in answer to Susan's claim is to contend that Susan may have a collateral purpose in pursuing these proceedings in relation to finding out more about her parent's latest wills. Susan disputes this. But the correspondence between Margaret and Susan late last year shows Susan asking Margaret for information as to the whereabouts of George and Gwenda's Wills. And some copy 1986 Wills were supplied in April 2010 to Susan's solicitor. This issue is not something about which the Court has to make findings. The proceedings can be decided by the Court simply by embarking on what Powers of Attorney Act, s 36 requires and looking at what the applicable standard of account keeping is for an attorney and assessing what the evidence shows about the level of accounts that have been kept. I do not have to make findings about wider matters in relation to Susan's motives.
(a) Whether trustee standard accounts are required?
Susan has in substance requested that Margaret provide accounts and keep records in conformity with accounting standards that would be acceptable for a trustee's set of accounts. Margaret opposes this on the basis that the trustee standard of account keeping does not apply here.
This is a decisive question. There is little doubt that the documents that have been produced do not meet the trustee standard for accounts. But, in my view, they do meet the lesser standard, which the law provides for attorneys. I conclude in this section that: (1) the powers that Susan and Margaret are exercising are not those of trustees; and (2) the law in this jurisdiction does not require attorneys such as Susan and Margaret to produce accounts to the standard that would apply to trustees.
I accept Margaret's argument that these two attorneys are not trustees. The position of an attorney is one that carries with it fiduciary duties. But not every fiduciary is a trustee. I therefore disagree with the submission put on behalf of Susan that "an attorney is effectively a trustee of the power of attorney give that the duties of an attorney are fiduciary, not simply contractual". One of the factors distinguishing trusteeship from agency is that trustees hold legal title to trust property. But an agent does not ordinarily hold the principal's property in the agent's name. Agents only have possession of property on behalf of the principal, not title to that property: Cave v McKenzie (1877) 46 LJ Ch 564, at 567 and Jacobs Law of Trusts in Australia, Seventh Edition, 2005, J.D. Heydon and M.J. Leeming, [210]. It is clear from the material Margaret produced in these proceedings about George and Gwenda's financial affairs that all share certificates, holder identification numbers in respect of listed securities, bank accounts and other documents of title in respect of financial assets are held in the name of George and Gwenda, not in the name of the attorneys.
An agent can take on a role as a trustee, especially where money is entrusted to the agent and the intentions of the parties are not clearly expressed: J.D. Heydon and M.J. Leeming, Jacobs Law of Trusts in Australia, 7th Edition, 2005, at [211] and Walker v Corboy (1990) 19 NSWLR 382 at 386, 389 & 397. But there is no evidence before the Court here that Susan and Margaret have by words or conduct taken upon themselves a role as trustees of George and Gwenda's property. Rather, the evidence is more consistent with the two powers of attorney fully defining the relevant legal relationship between Susan and Margaret and George and Gwenda. Both Susan and Margaret have joint and several powers as attorneys to act in relation to the property of George and Gwenda. They do not act as trustees. It follows, in my view, that they do not have the account keeping obligations of trustees.
Susan's submission about the quality of accounts that she claims Margaret should keep and provide here are therefore based upon a mis-statement of the applicable account keeping standard. It is true, as Susan submits, that the keeping of proper accounts is an integral part of a trustee's duties. As Susan points out, Ford on Trusts, Law Book Company, 2nd edition, 1990 [940] to [950] describes the standard of accounts to be kept by trustees. Such accounts, Ford says, should normally include an information file, a schedule of trust property, capital and income accounts, a cash account, vouchers and receipts for transactions and the maintenance of a separate bank account for trust payments and receipts. This standard of account keeping that the law requires of trustees is justified by a trustee's wider rights and obligations and is referred to in these reasons as "trustee standard accounts". A trustee has a right of indemnity out of trust property by virtue of the trust relationship. The trustee has an obligation to keep the trust property separate from the trustee's own property and is required to make only authorised investments with trust property. Maintaining accounts to the requisite standard assists the exercise of these rights and the performance of these obligations.
The trustee's duty is to keep 'proper' accounts: J.D. Heydon and M.J. Leeming, Jacobs Law of Trusts in Australia, 7th Edition, 2005, [1713]. The trustee's obligation to keep proper accounts is matched by the trustee's right of indemnity out of trust property. To ensure that the trustee's account keeping to the necessary standard is adequately funded, the trustee may have recourse to the trustee's right of indemnity out of trust funds, for example, to engage professional accounting services: see Trustee Act 1925, s 51.
Importantly, from the materials produced to Court it can be seen that neither Margaret nor Susan has maintained schedules of property, kept capital and income accounts, or a complete cash account separate from bank statements. They have not maintained trustee standard accounts.
But the standard of account keeping under a power of attorney for attorneys appointed in New South Wales is not the trustee standard. It is less demanding. The relevant law in this State is summarised in G D Dal Pont's, Powers of Attorney, LexisNexis Butterworths, Australia, 2010:-
"[8.55] Although courts speak of agents, and attorneys, being obliged to account to their principals, the general law remains relatively vague on detail. At a basic level accountability presupposes the maintenance of records of transactions, with sufficient particulars in readily accessible form, that afford the principal, or a third party in the principal's stead, the ability to ascertain with clarity the dealings in which the attorney has engaged. General law obligations are reflected by statute in most jurisdictions, which speaks in terms of an obligation to keep accurate records and accounts of all dealings and transactions made under the power.
[8.56] Excepting the Northern Territory legislation, which requires the accounts be furnished 'to the donor at the donor's request and expense', the statutes are silent as to when and to whom the records and accounts are to be supplied. It stands to reason, though, that these must be directed to the principal or, in the event of the principal's incapacity, to person(s) prescribed by law, pursuant to a request by the principal or those persons. It also stands to reason that, in the usual case, the cost of providing and maintaining the records should be recoverable, whether directly or by way of indemnity, from the principal."
In New South Wales there is no statutory obligation upon an attorney under a power of attorney to keep trustee standard accounts. In other jurisdictions the attorney's account keeping obligations have been formalised by statute: see for example Powers of Attorney Act 2005 (ACT), s 47. The Powers of Attorney Act does not set any account keeping standards.
But an attorney in this jurisdiction has a general law obligation, as Dal Pont says, to keep records of transactions in which the attorney is involved on behalf of the principal and to maintain those particulars in a readily accessible form, so that when the attorney is called upon, the principal can ascertain with clarity, in what transactions the attorney has been engaged. This obligation necessarily follows from the attorney's obligation of accountability to the principal in relation to transactions entered on behalf of the principal.
Other text writers express the obligation in similar terms: an agent is under an obligation to keep an accurate account of all transactions entered into on his principal's behalf: Yasuda Fire and Marine Insurance Co of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] QB 174 and Bowstead and Reynolds on Agency, Thomson Sweet and Maxwell, 18th Edition, London, [6-090].
The attorney's obligation is really one to keep accurate primary accounting records, for which the principal can call, if necessary, for the principal's examination. If the principal then wishes to produce secondary accounts, or full financial accounts, that is a matter for the principal.
In my view this is the applicable standard by which Susan and Margaret's account and record keeping as attorneys must be judged. As will be seen below the material Margaret has produced, analysed by sample, generally meets this standard.
Allied to this issue there is the important related question of who would pay for the kind of accounts that Susan submits should now be prepared. As indicated, there would be an automatic indemnity for trustees out of the trust property. But in relation to attorneys under these powers of attorney the question of payment is more complex.
(b) Who will pay for preparation of the requested accounts?
The parties are in contest about who would pay for production of the requested trustee standard accounts. Mr Hancock says that in the first instance Susan would be prepared to share the burden of the costs of producing these accounts. He may later submit that some party other than Susan should pay for producing these accounts. In answer, Mr Muddle SC for Margaret says: (1) that the accounts are now being properly kept; (2) that no further accounting is necessary; and, (3) that in these circumstances, Margaret should not have to bear the expense of their production.
When the proceedings were first brought George said that provided he did not have to pay for preparing accounts, then he did not care whether or not there was an audit of his and Gwenda's affairs. But at the final hearing, through Mr Skinner, George submitted for himself and Gwenda, that his position had hardened. He asked for Susan's application to be dismissed with costs. He and Gwenda were by then opposed to the idea that any trustee standard accounts should be prepared, and particularly at their expense. It is reasonably clear in my view that George and Gwenda had never turned their mind to the question of funding the preparation of trustee standard accounts because they did not contemplate a need for them.
In my view, the Court should not force upon these two unwilling principals of these powers of attorney the expense of the preparation of trustee standard accounts on an application for review under Powers of Attorney Act, Part 5. This is especially so when, as the balance of these reasons show, there is a reasonable standard of account keeping now being undertaken commensurate with the nature of actual transactions since the powers of attorney have been operative.
(c) What Margaret has produced
The proceedings have progressed since they first came into the Duty List. Margaret has now produced many documents in her possession. It is not necessary in these reasons to make findings about the respective responsibility of the parties for non-production of material requested before the proceedings commenced. Such findings may perhaps be relevant to questions of costs. All that should perhaps be observed now is that before hearing both parties engaged directly and through lawyers in at times terse correspondence on the question of production.
Margaret's evidence is, and I accept, that she did not commence to exercise functions under the powers of attorney until about December 2010, even though they were first given in November 2009. Her administration of the powers of attorney as her parents' attorney and her later production of documents have resulted in her advancing a number of different general explanations in answer to Susan's claim. These general explanations appear in the following paragraphs. Then more detail is provided in relation to individual documents.
General Explanations. Many of the documents Margaret produced give wholly satisfactory evidence of her transactions on behalf of her principals. The documents produced include bank statements that show Margaret has undertaken some electronic banking for George and Gwenda after the powers of attorney commenced. These bank statements are a record of the transactions on George and Gwenda's bank accounts, showing where the funds have gone and the amount of each transaction. But some bank statements are missing, a matter addressed thoroughly in Margaret's evidence and made the subject of findings below. With Margaret's explanations the bank statements produced are an adequate record of Margaret's banking transactions for George and Gwenda during the operation of the powers of attorney.
Nor has Margaret denied Susan access to George and Gwenda's bank accounts. I accept Margaret's evidence that once she had her own electronic access to their bank accounts that she offered parallel electronic access to these accounts to Susan. I accept that Margaret had a conversation with Susan in which she explained to Susan that she had electronic banking access to George and Gwenda's accounts; and suggested to Susan that Susan set up her own similar electronic access to these accounts. I do not accept that Susan has encountered any obstacle to obtaining the electronic access to George and Gwenda's bank accounts.
Given the several nature of the power conferred by George and Gwenda's powers of attorney on their two attorneys such independent bank account access for Susan was legally permissible and appropriate. From the United Kingdom Susan could access the accounts over the internet, using the relevant banking access codes. I accept Margaret's evidence that she informed Susan of her right to have this form of banking access. But Susan has not taken up all the powers available to her to obtain her own independent access to the bank material that has been offered to her.
Susan can fill much of the accounting gap that she complains of, herself. As is explained later in these reasons, these powers of attorney confer both joint and several powers to act on Susan and Margaret. If Susan wishes to have trustee standard financial accounts prepared she could do so using the banking information to which she already has access, using her electronic access codes and using information from George and Gwenda. Leaving aside the question of funding the preparation of those accounts, it would be possible for her under her several powers conferred under the powers of attorney to engage an accountant for that purpose.
Some of the material that Margaret has produced relates to George and Gwenda's personal financial transactions at times before Susan and Margaret were appointed as attorneys. Some of the material Susan has asked for relates to this early period. For example the correspondence shows that Susan has sought information about the repayment of a loan of $300,000 said to have been made by George and Gwenda to Margaret in 1998: letter from McGlynn and partners to E & A Lawyers 2 May 2012 (Category 7). Neither Margaret nor Susan has to account either to George or Gwenda in respect of transactions before the powers of attorney were created. These are not transactions entered into by the attorney on the principal's behalf: Bowstead and Reynolds on Agency, Thomson Sweet and Maxwell, 18th Edition, London, [6-090]
In similar vein Susan has sought information about Margaret and her husband's purchase of George and Gwenda's home in Clareville (Category 8). Margaret has explained in her evidence, and I accept, that in discussions with her parents she and her husband purchased her parents' Clareville property in 2007. Margaret and her husband sold another property of their own the same year to fund this purchase and about the same time assisted George and Gwenda to purchase the unit in the same suburb. These transactions all took place well before the subject powers of attorney were created. Margaret has no obligation to account under the powers of attorney to Susan in respect of these transactions.
Some of the information and documents that Susan has requested have not been produced. This is often because transactions Susan suspects to have taken place have not occurred. For example, I accept Margaret's evidence that there has been no transaction involving shares in George and Gwenda's share portfolio since the powers of attorney were executed (category 6). Margaret says that no such transaction has taken place. Mr Lee does not suggest in his report of 16 October 2012 that any share transactions have been undertaken between 2008 and 2012. Another explanation for non-production is that some of the material requested is in fact Susan's own. This is the case with one of the bank accounts.
After considering Margaret's general explanations of response, it is now necessary to examine in a little more detail Susan's particular requests for information and Margaret's responses. In doing so the Court does not identify particular bank accounts, share or property in information using bank account numbers, holder identification numbers, or certificate of title numbers. This is to reduce the risk of identity theft from the publication of this judgment on the internet. Some of the eight categories of documents Susan requested in her motion of 3 October 2012 have been discussed and do not need further explanation.
Moreover the Court does not have to now consider the detail of every request that Susan has made. This is for two reasons. First, as is explained below under the heading "Exercise of the Discretions - Powers of Attorney Act, s 36", on an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what Margaret has produced.
Secondly, such an approach is especially justifiable where the principals George and Gwenda have instructed counsel to oppose the application for review and nothing has emerged from the general survey which indicates any maladministration on Susan's part as her parents' attorney.
Particular requests and responses. On 5 October 2012 Margaret replied to Susan's 3 October 2012 requests for information by affidavit and by production of documents. Margaret has made clear in her evidence, which I accept, that there are no books of account and management accounts concerning George and Gwenda's day-to-day affairs (category 1). I also accept that there are no electronic data files, such as for example Excel spreadsheets, containing George and Gwenda's ledgers and cashbooks (Category 2). Neither George nor Gwenda have maintained such records. But this has not prevented George and Gwenda from instructing an accountant, with Margaret's assistance, to prepare their tax returns for the last few years. The documents Margaret produced included George and Gwenda's tax returns for several years,(Category 3) with the exception of the most recent 2012 tax return, which at the time of production of documents had not yet been completed. Although Mr Lee commented that there appeared to be incomplete and insufficient information to support some of the tax returns his report confirms that the recent tax returns were done. He could only detect one error in Gwenda's 2009 tax return.
Susan also sought correspondence between Margaret and George and Gwenda relating to the conduct of their financial affairs (Category 4). Although there would undoubtedly have been some correspondence, if only between lawyers, in relation to the 2007 conveyancing transactions between George and Gwenda on the one part and Margaret and her husband on the other about the Clareville properties, this material preceded the powers of attorney and does not have to be produced in these proceedings. In relation to documents created after the powers of attorney were executed in 2009, Margaret says there is nothing to produce in this category, which I also accept.
To the extent that Susan sought Margaret's correspondence on behalf of George and Gwenda with government departments and aged care facilities after execution of the powers of attorney (Category 5) I accept that this material has now been made available for inspection.
Thus the remaining area of contest between the parties was about the adequacy of banking records kept in relation to George and Gwenda's affairs (Category 6). Susan's solicitors supplied all the materials that Margaret produced to Mr Michael Lee, the accounting expert, for his analysis. On 9 October 2012 Susan's solicitors, McGlynn & Partners (Mr Farago) sent a letter to Mr Lee asking the following questions:-
"1. What are/were the assets of Mr and Mrs Higgins and the value of those assets?"
2. What are/were the liabilities of Mr and Mrs Higgins:
(a) in each of the financial years 2008-2011?
(b) at 30 June 2012?
(c) At the date of your report.
3. What were the annual expenses (by category) of Mr and Mrs Higgins:
(a) in each of the financial years 2008-2011?
(b) at 30 June 2012?
(c) at the date of your report.
4. With respect to the tax returns of Mr and Mrs Higgins for each of the financial years 2008- 2011:
(a) What are the sources of income of Mr and Mrs Higgins disclosed in those tax returns?
(b) With respect to interest received from on cash on deposit:
(i) what are the accounts from which Mr and Mrs Higgins earned interest in each of those years?
(ii) Are the bank statements banking records for each of those accounts to be found in 'Exhibit MH2'? If not, what documents are missing?
(c) With respect to interest received from dividends invested in shares in public or private companies:
(i) what companies paid dividends to Mr and Mrs Higgins in each of those years?
(ii) Does 'Exhibit MH2' contain share scrip, holding statements, dividend statements for each of these companies and the dividends paid by them? If not, what documents are missing?
(d) What primary documents and information would the tax agent have required to prepare those tax returns?
(e) Are there any documents, or categories of documents, which were necessary for the preparation of the 2008-2011 tax returns, and which are not present amongst the documents in the defendant solicitors office ('Exhibit MH2').
5. Do any of the documents in Exhibit 'MH2' disclose the existence of other documents which have not been produced by the defendant? If so, what documents or categories of documents are missing? (We have enclosed some of the documents in MH2 but only a small part of them)."
"As a general observation with all my bank accounts I elect not to receive paper."
It can be seen from this request that much of what Mr Lee was asked to do was preliminary to attempting to reconstruct the whole of George and Gwenda's financial affairs with a view to preparing trustee standard accounts. As indicated that is not obligation that Margaret bears. Mr Lee efficiently examined the materials produced and reported his findings in a report dated 16 October 2012, which was annexed to his affidavit in the proceedings. Mr Lee's report recorded his findings with respect to banking information and non-banking information. He identified some deficiencies in the documents produced. Margaret then attempted to deal with those claimed deficiencies in her affidavit of 18 October 2012.
With respect to Mr Lee's findings about non-banking information, he did not suggest any information available to him indicated that Susan had been engaged in unauthorised transactions or transactions contrary to her parents' best interests. He was able to make findings about the Clareville conveyancing transactions and the current arrangements for George and Gwenda's accommodation in the aged care facility. But many of his findings relate to the period before execution of the powers of attorney. He observed that George and Gwenda's unit at Avalon appeared to be untenanted. But Margaret has explained in evidence that this unit was left this way after George and Gwenda entered the aged care facility, in order to keep open for them the possibility, and indeed the hope, that they may perhaps one day return to live in this unit. Mr Lee's most negative findings about non-banking information related to missing or incomplete records, especially with respect to George and Gwenda's day to day recurrent living expenses, such as medical expenses, home unit levies, insurance, maintenance, rates, car registration and the like. But Margaret has supplied more information about many of these matters in her final affidavit evidence. And it difficult to be overly critical of her account when she replied on 18 October to Mr Lee's report of 16 October for a hearing on 19 October. Whilst this material does not immediately satisfy the Court that Margaret would be in a position to account to her principals about all her expenditure in these categories, she has shown herself astute in following up discrepancies in transactions on her parents accounts. I am satisfied that under less time pressure she is likely to be able to give a proper account of the remaining deficiencies in this area.
Among the issues Mr Lee raised were questions about the extent of Margaret's production of banking information. It is possible to make findings about the major issues relating to these bank accounts. This is done in the following paragraphs. Only the last three digits of the respective bank account numbers are used to identify and separate the accounts.
NAB Account 026. Mr Lee says that account materials for this account are missing, although interest for it has been disclosed in tax returns over several years. Margaret's answer is that she has no knowledge of this account, and that as at 18 October 2012 her searches had not located any bank statements for the account. Mr Hancock points to the tax returns that show transactions may have during Margaret's operation of these powers of attorney. But as Mr Muddle SC has explained in submissions, the fact that money appears in George and Gwenda's tax returns in respect of that account, does not necessarily mean that Margaret has herself been undertaking transactions on the account. It is probable that some interest earned on this account may have been automatically credited to the account and included, through George and Gwenda's accountants, in the tax returns. I accept Margaret's evidence she does not know anything about this account. The material does not contradict her evidence in this respect. She has given an account of her knowledge of this account that in my view the Court need not examine any further.
Account 223. This account has a recent gap in its available bank statements. I accept Margaret's evidence that she has provided all paper bank statements for this account in her possession up to 11 August 2011. This account in Gwenda's name has been inactive since 11 August 2011. Margaret rendered this account inactive due to some unauthorised transactions by a non-party to these proceedings. The last bank statement in Exhibit MH2 shows a balance of $0.00 as at August 2011. This account is now closed.
Account 613. The next account in issue was 613. This account records transactions prior to the appointment of Margaret and Susan as attorneys. Margaret says that she has provided all paper bank statements in her possession dating back to 27 April 2009. I accept that all account statements in respect of this account have been produced. But this account held in Gwenda's name has been non-active since 26 May 2011. Margaret says, and I accept, that she also had to render this account inactive due to certain unauthorised transactions by a non-party to these proceedings. The last bank statement in Exhibit MH2 shows a balance of $0.22 as at January 2012 and the account is now closed. It does not require further examination.
Account 798. This account 798 is a term deposit. Susan does not clearly assert that statements for this account are missing. According to Margaret's evidence, which I accept, there are no bank statements for this account. In any event Mr Lee seems to accept that Margaret's explanation about account 798 may be correct.
Account 748. The next bank account the subject of Susan's enquiry is account 748. Susan claims that the bank statements for this account from 2 June 2011 to 30 July 2011 and then from 3 September 2011 to date are missing. I accept Margaret's evidence that this account has been closed for some time, again due to unauthorised transactions by a person not a party to these proceedings. I also accept Margaret's evidence that this account can no longer be accessed online, because it is closed.
Other accounts, 488, 722, 689 and 989. Susan enquires about a series of other bank accounts - 488, 722, 689, 989. These accounts were also the subject of Mr Lee's evidence. But the gaps in bank statements for these accounts are explained the same way as for the other earlier accounts, those already discussed in that: (1) they either record transactions that precede execution of the powers of attorney; (2) enquiries about them have been resolved to Mr Lee's satisfaction; (3) they are not accounts on which Margaret has undertaken any transactions; or, (4) they do not indicate any accounting deficiency.
Exhibit MH 2A. Margaret produced several boxes of records in response to Susan's requests. Samples of this produced material were marked as Exhibit MH 2A. Margaret's counsel invited the Court to examine Exhibit MH 2A to form a view about the quality of the record keeping it demonstrated. The Court did that.
The material in Exhibit MH 2A was certainly not a self-contained set of trustee standard financial accounts. It did not purport to be that. But it was a fairly well ordered set of records of banking and other financial transactions. It comprised a filed, indexed and organised collection of financial material that a financially competent person would be expected to gather in the conduct of his or her own affairs. It is rationally put together, so that one can find bank statements, records of expenditure, asset valuations and title documents. Financial transactions are classified in a logical way by subject and then within each subject by the chronological order of the transactions. Taken as a whole exhibit MH 2A allows George and Gwenda's financial affairs for the period in question to be fairly readily understood.
(d) George and Gwenda's opposition and the problem of co-attorneys
Susan argued that a Powers of Attorney Act, s 36 review was necessary because she and Margaret had a joint obligation to co-operate in making decisions under the two powers of attorney. She claimed that Margaret was refusing to co-operate with her in such joint decision-making. Susan submitted that a requirement for joint decision-making by multiple attorneys on matters of substance followed from the High Court's statements of legal principle about the decision making of jointly appointed receivers in Kendle & Anor v Melsom & Anor [1998] HCA 13 (Kendle); (1998) 193 CLR 46.
But Kendle does not assist Susan's case. The majority in Kendle, Gummow, Kirby and Hayne JJ found on the construction of the deed of appointment of the receivers in that case that they were empowered to act jointly or severally, which the majority in Kendle said meant that the powers, authorities of discretions conferred under the charge and the deed of appointment were "susceptible of exercise by either or both of the receivers": Kendle at [41]. The decision of the majority in Kendle does not stand in the way of Margaret's contention that one of a number of attorneys appointed "jointly and severally" under a power of attorney may individually exercise his or her powers as an attorney.
The decision of the minority, Brennan CJ and McHugh J makes clear that the first source of any inference about whether multiple agents can discharge their agency duties severally, is the instrument of their appointment: Kendle at [5]. Here the terms of both George and Gwenda's powers of attorney make clear that Susan and Margaret can act "severally". It is not to be implied from the nature of their task that they should act jointly, especially where they live in different countries.
In the alternative Susan argued that Susan and Margaret's position was analogous to that of joint trustees, who must act unanimously in the decisions that they take: Luke v South Kensington Hotel Company (1879) 11 Ch D 121 per Jessel MR at [25] and In the Estate of William Just (deceased) (No. 1) (1973) 7 SASR 508. But the Court has already found that Susan and Margaret are not trustees. These principles are not applicable.
These conclusions make much of Susan's evidence about her failed attempts to gain co-operation with Margaret of diminished relevance. Even if Margaret has been unco-operative with Susan, Margaret is still entitled to act individually.
Evidence of lack of co-operation between attorneys may yet be relevant to an application for Powers of Attorney Act, s 36(4) relief, for removal of one of the attorneys. But the mere fact that Margaret may not have agreed with Susan about all aspects of the administration of these powers of attorney does not mean that Margaret is automatically in breach of her duties as an attorney.
Moreover the level of disagreement demonstrated in the course of correspondence prior to the hearing does not warrant the Court undertaking a Powers of Attorney Act, s 36(1) review, when George and Gwenda do not wish to act on that disagreement. The history is clear, although the detail of the correspondence need not be recounted. Margaret began to operate her parents' bank accounts from December 2010, when they moved into the aged care facility. Susan did not operate the bank accounts. Margaret also took control of George and Gwenda's personal files about the same time. From about October 2011 Susan began to ask Margaret for information and documents relating to her parent's affairs. Lengthy and at times acrimonious correspondence followed between them. Many of Susan's requests seem not unreasonable. But Margaret took the view in this correspondence that she only had obligations to her parents and not to her co-attorney. In this correspondence Susan was referred to Margaret's solicitor Mr Jones. Margaret also declined to permit Susan to inspect documents unless Susan took a more active role in the day-to-day affairs of George and Gwenda. She imposed other conditions upon access to documents. Arrangements were made for the inspection of documents between Susan's and Margaret's solicitors in early September 2012. But these arrangements broke down. These proceedings were commenced shortly afterwards.
This short history of lengthy correspondence shows a suboptimal level of co-operation between these two sisters. Each sister contributed to the lack of cohesion in her own way. Their mutual antagonism has led to the costs of engaging lawyers and accountants. But to a large extent the air has now been cleared by the Court's compulsory processes being used to provide documents for inspection that had previously been withheld.
To the extent a conflict arises between the two attorneys about the discharge of their function under the George and Gwenda's powers of attorney that is a matter that the principals can resolve, if they wish, despite their age and infirmity. If the attorneys cannot agree upon how they will exercise their powers jointly, and they act severally leading to chaos, then George has the power to resolve that situation by changing his attorneys. Gwenda requires a tutor, so her position is more complex. If she wished to change attorneys, or if it were thought to be in her best interests to do so, an application might eventually need to be brought in her interests for orders under Powers of Attorney Act, s 36(4)(b). George would probably do this, if it were necessary, at the same time as making his own decision about changing attorneys. There is a substantial overlap between George's and Gwenda's financial affairs and interests. It is difficult to see what is in George's interest not also being in Gwenda's interests and vice versa. But George speaks for them both in these proceedings.
George has made clear in final submissions on behalf of himself, and as tutor for his wife, that both principals wish to take their own course about managing the problem of potential disagreement between their co-attorneys Susan and Margaret. This expression of view deserves very considerable weight in the exercise of discretion the Court is being invited to undertake here.
To answer George's firmly expressed wishes Mr Hancock embarked on a slightly oblique argument. He suggested that there was evidence to support a conclusion that George lacked overall capacity to manage his own financial affairs. Mr Hancock's argument pointed to the ready availability of financial management orders under Guardianship Act 1987, Part 3A. But his submission fell short of applying for such an order. He was really emphasising the existence of the Court's power under Powers of Attorney Act, s 37(1) to treat Susan's current application as an application for a financial management order.
But that kind of solution was not advanced in Susan's Summons. And in any event it is not the kind of order that the Court would ordinarily make in the absence of an appropriate objective medical examination of George and Gwenda. No such examination was attempted in this case. Instead Mr Hancock relied upon untested statements of family members about George's present capacity. The material advanced fell well short of the quality which the Court would ordinarily consider in making financial management orders under Guardianship Act 1987, Part 3A. The Court declined to take up Mr Hancock's invitation.
Exercise of the discretions - Powers of Attorney Act, s 36
The first discretionary question for the Court is whether it should review the operation and effect of these two powers of attorney under Powers of Attorney Act, s 36(1). Then, if the Court embarks on a s 36(1) review the Court must then decide in the further exercise of its Powers of Attorney Act, s 36(2) discretion, whether as a consequence to make any form of s 36 order.
The Court has some guidance from Powers of Attorney Act, s 36(4) about the considerations relevant to the exercise of these two successive discretions. The preamble to that subsection indicates that any one or more of the orders provided for may be made if the review tribunal is satisfied that "it would be in the best interests of the principal to do so" or that "it would better reflect the wishes of the principal". Not surprisingly, these types of consideration are particularly apposite to a situation where the principal has lost capacity and cannot assist the Court with information about the principal's own interests or wishes, a situation which Courts will often face in the exercise of s 36 powers.
But that is not this case. Here the Court has direct input through counsel for George and Gwenda about their wishes and interests. That input is quite clear. George and Gwenda do not want the court to intervene to conduct a Powers of Attorney Act, s 36 review or to make orders under the section. The Court in my view should be very cautious about taking any step to intervene in George and Gwenda's financial affairs over their opposition by initiating a Powers of Attorney Act, s 36 review of their powers of attorney.
Primarily because of this powerful consideration, in my view the Court should neither in its discretion conduct a review of these two powers of attorney under Powers of Attorney Act, s 36(1), nor in its discretion make any orders under Powers of Attorney Act, s 36(2). The supplementary factors already considered in these reasons, and identified here seriatim, support the same conclusion that neither the s 36(1) nor s 36(2) discretion should be exercised as Susan requests: (1) brief perusal of the documents Margaret has produced does not point to any maladministration under the powers of attorney on her part; (2) George and Gwenda are not incapable of sorting out these delicate family matters themselves and wish to have the opportunity to do so; (3) there is much Susan can yet do without Court intervention to gain direct access to banking and similar information about George and Gwenda's affairs; and, (4) no party wishes to pay for an accounting investigation of George and Gwenda's financial affairs, or the preparation of trustee standard accounts.
The Higgins Family - Disputes and Solutions
Leaving aside their other personal differences, the argument in these proceedings reveals what is perhaps in part the origin of the present disagreements between Susan and Margaret. The lack of definition in what was to be given to and what was expected from the attorneys is certainly part of the problem. I conclude here from the evidence adduced that: (1) there are deficiencies, as there often are in domestic financial transactions, about exactly what materials George and Gwenda handed over to Susan and Margaret upon creation of the two powers of attorney; (2) there has been a lack of definition about what material and information was going to be exchanged between each principal and the attorneys from time to time; (3) there was a lack of agreed definition about what material and information was going to be exchanged from time to time between the attorneys; and, (4) there was a lack of definition about how, when one attorney was in the UK and the other in Australia, practical day to day management of their roles would be managed. It was raised in argument that the Court could cure such deficiencies by ordering under Powers of Attorney Act, s 36(4)(e)(iv) that the attorneys submit a plan of financial management to the Court for approval.
But on reflection this seems to be too great an intervention in the Higgins family's affairs. George has solutions available to him without the Court intervening. As his counsel made clear, George can revoke his power of attorney altogether or appoint other attorneys if he wishes.
George can discuss with the two attorneys their differences, perhaps by informally addressing some of these deficiencies. I infer from the way George's case is presented that as a parent for now he does not wish to take a position decisively against one or other of his two daughters, his two appointed attorneys, and that he wishes as much as possible to have them continue to act jointly in their parents' interests.
Ordering a plan of financial management in these circumstances is not warranted. It is sufficient for the Court to state, as it has, some of the areas of apparent planning deficiency in the operation of these powers of attorney. This family is comprised of intelligent professionals of considerable skill and creativity. They will no doubt absorb these reasons, which may assist them to resolve their wider differences by further discussion, and perhaps even by formal mediation.
Conclusions and Order
All the relief claimed in the Summons is predicated on the Court conducting a review under Powers of Attorney Act, s 36(1). But the Court has declined to do that. The Summons therefore will be dismissed. Accordingly, the Court will make the following orders and directions:-
1. The Summons is dismissed.
2. Direct the plaintiff to file and serve any written submissions on costs of no more than 4 pages by 5pm on Tuesday 13 November 2012.
3. Direct the defendant to file and serve any written submissions on costs of no more than 4 pages by 5pm on Tuesday 20 November 2012.
4. Direct the plaintiff to file and serve any written submissions in reply on costs of no more than 4 pages by 5pm on Tuesday 27 November 2012.
5. List the matter for Costs at 9.30am on Tuesday, 4 December 2012.
6. Exhibits MH2 and MH2A can be returned to the parties.
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Decision last updated: 07 December 2012
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