Sutton v Sutton - [2012] SASC 186

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SUTTON v SUTTON
[2012] SASC 186
Reasons of Judge Burley a Master of the Supreme Court
16 October 2012
PROCEDURE
AGENCY - Enduring Power of Attorney - whether donor has legal capacity to direct donee as to the exercise of powers under the grant - standing of daughter of grantor to bring application to vary terms of power of attorney or to make a declaration as to the exercise of powers - uncertainty whether donor has legal capacity to give a valid direction to the donee - whether the plaintiff could pursue an interlocutory application for injunctive relief.
Powers of Attorney and Agency Act 1984 (SA) s 11(1)(c) and s 11(3), referred to.
Dynayski v Grant [2004] NSWSC 1187 at [19]; Re Evans [2010] SASC 193; ABC v O'Neill (2006) 227 CLR 57, considered.

SUTTON v SUTTON
[2012] SASC 186

JUDGE BURLEY. By interlocutory application dated 17 September 2012 the plaintiff (wrongly referred to in the proceedings as the applicant) applied for the following orders:
1. …
2.That the Respondent [defendant] be restrained from acting under the Power of Attorney of Dawn Sutton appointing him Donee until such time as the mental capacity of the Donor of the Power of Attorney is established.
3.That the Respondent [defendant] be further restrained from dealing with the estate of Dawn Sutton, including the sale of real estate and business assets until such time as the extent of Dawn Sutton’s recovery from her current illness is established and her ongoing personal and medical needs are determined.
4.…
The application was listed before the Court on 20 September 2012 when a Master heard the application on an ex parte basis. The Master made a number of orders, including the following:
1.That until 5pm on 3 october [sic] 2012 the defendant, whether by himself or his agents or employees, be restrained from acting under the power of attorney of Dawn Sutton appointing him donee in any manner, save that the defendant shall be permitted to receive the income from and pay the reasonable expenses of the business (Palm Manor Incorporated) of Dawn Sutton during the period of the interim interlocutory injunction.
2.That the defendant is further restrained from dealing with charging or in any manner affecting the estate of Dawn Sutton, including the sale of the real estate and business assets for the duration of this interlocutory injunction.
Although the respective orders are referred to as “the interim interlocutory injunction” and “this interlocutory injunction”, I take the orders to be interim in nature because of the limited period of the injunction and the fact that it was granted on an ex parte basis.
The application was adjourned to 2 October 2012 and was listed before me for further hearing. By that time the defendant was represented by a solicitor and counsel.
On 2 October 2012, the plaintiff sought to continue the injunctions granted on 20 September 2012 “until such time as the mental capacity of the Donor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sutton v Sutton

Details

AGLC: Sutton v Sutton [2012] SASC 186
Case: [2012] SASC 186
Decision Date: 16 October 2012

CaseChat Overview and Summary

The plaintiff in Sutton v Sutton sought interlocutory injunctive relief restraining the defendant, her brother, from selling the family business, Palm Manor, and from acting under the power of attorney of their mother, Mrs Sutton, until such time as her mental capacity was established. The plaintiff was concerned that the defendant was planning to sell the business against Mrs Sutton's wishes. The defendant opposed the application, arguing that the plaintiff had no standing to bring the application and that the plaintiff had not established an arguable cause of action. The court found that the plaintiff did have standing to bring the application under s 11(1)(c) of the Powers of Attorney and Agency Act 1984 (SA). However, the court also found that the application was not interlocutory in nature, as the relief sought was the same as the final relief. The court did not reach a final decision on the application, as it was argued as an interlocutory application. Instead, the defendant gave an undertaking not to proceed to a sale of the business without giving 14 day's written notice to the plaintiff's solicitors.

The court considered the legal issues of whether the plaintiff had standing to bring the application and whether the application was interlocutory in nature. The court found that the plaintiff did have standing to bring the application under s 11(1)(c) of the Act. The court also found that the application was not interlocutory in nature, as the relief sought was the same as the final relief. The court did not reach a final decision on the application, as it was argued as an interlocutory application. Instead, the defendant gave an undertaking not to proceed to a sale of the business without giving 14 day's written notice to the plaintiff's solicitors. The court found that the plaintiff's concern that the business might be sold contrary to what she understood to be Mrs Sutton's wishes, was a sufficient circumstance to support the argument that the plaintiff had a proper interest in the matter.

Orders