Szozda v Szozda

Case [2010] NSWSC 804


NEW SOUTH WALES SUPREME COURT

CITATION:
Szozda v Szozda [2010] NSWSC 804

JURISDICTION:
Equity Division

FILE NUMBER(S):
2008/280064

HEARING DATE(S):
22/02/10, 23/02/10, 24/02/10, 25/02/10, 26/02/10, 01/03/10

JUDGMENT DATE:
23 July 2010

PARTIES:
Mark Thomas Andrew Szozda - First Plaintiff
Anna Kathrin Szozda - Second Plaintiff
Gregory Christopher  Szozda - Third Plaintiff
Barbara Zofja Szozda - First Defendant
Edward Codd - Second Defendant

JUDGMENT OF:
Barrett J      

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
Mr G O Blake SC/Mr E A J Hyde - Plaintiffs
Mr W G Muddle SC/Ms G F Mahony - Defendants

SOLICITORS:
J P Gould - Plaintiffs
O'Hara & Company - Defendants

CATCHWORDS:
AGENCY - powers of attorney - aged donor - whether power of attorney void for want of mental capacity of donor - general and enduring power of attorney - general law test of incapacity discussed - whether general law test affected by Powers of Attorney Act 2003 - survey of evidence of lay and medical witnesses - PROCEDURE - challenge to capacity of donor to grant power of attorney - whether review procedure under Powers of Attorney Act 2003 is only available avenue - held not - whether donor must be party to any proceedings - whether donee of challenged power of attorney has standing to maintain like challenge to other powers of attorney

LEGISLATION CITED:
Conveyancing (Powers of Attorney) Act 1983, s 17
Powers of Attorney Act 2003, Division 4 Part 3, ss 7(1), 36(1), 36(3)(a), 36(10)

CATEGORY:
Principal judgment

CASES CITED:
Angliss v Urquhart [2002] NSWCA 256; (2001) 11 BPR 20,765
Attorney General v Parnther (1792) 3 Bro CC 441; (1792) 29 ER 632
Crago v McIntyre [1976] 1 NSWLR 729
Ghosn v Principle Focus Pty Ltd (No 2) [2008] VSC 574
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
Guthrie v Spence [2009] NSWCA 369
Lake v Crawford [2010] NSWSC 232
McLaughlin v Daily Telegraph Newspaper Co Ltd (No 2) [1904] HCA 51; (1904) 1 CLR 243
Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51
Owners of Strata Plan No 23007 v Cross [2006] FCA 900; (2006) 153 FCR 398
Ranclaud v Cabban [1988] NSW Conv R 55-385
Re HAA [2007] QGAAT 6
Re K [1988] Ch 310
Re W [2001] Ch 609
Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505; (2008) 13 BPR 25,343

TEXTS CITED:
“A Practical Treatise of the Law Concerning Lunatics, Idiots, and Persons of Unsound Mind”, second edition (1847) by Leonard Shelford
New South Wales Law Reform Commission, Report No 20 (1975) – Powers of Attorney and Unsoundness of Body or Mind

DECISION:
1.  Declare that the power of attorney purportedly made by Aniela Szozda on 28 September 2006 is invalid.
2.  Declare that the instrument of proxy purportedly given to Paul Christopher Marsh by Barbara Szozda as attorney for Aniela Szozda on 30 July 2008 and used by him at 4.18pm…

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AGLC
Szozda v Szozda [2010] NSWSC 804
Case
[2010] NSWSC 804
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Szozda challenged the validity of two powers of attorney executed by his mother, Mrs Szozda, an elderly woman who had suffered a stroke. The primary dispute was whether Mrs Szozda, due to her diminished mental capacity, was unable to grant the powers of attorney. The court had to determine the legal framework applicable to assessing the mental capacity of a donor when executing a power of attorney. Specifically, the court examined whether the general law test of incapacity was superseded by statutory provisions under the Powers of Attorney Act 2003. Furthermore, the court considered procedural matters, such as whether the statutory review process under the Act was the exclusive means to challenge the capacity of the donor and whether the donee of the power of attorney could challenge the validity of other powers of attorney without the donor being a party to the proceedings.

The court found that the general law test of incapacity remained relevant in assessing the mental capacity of a donor, even within the statutory framework of the Powers of Attorney Act 2003. It held that the statutory review process was not the only means to challenge the capacity of the donor, as a common law action was also available. Additionally, the court ruled that the donee of the challenged power of attorney had standing to maintain a challenge to other powers of attorney without the donor being a party to the proceedings. The court conducted a comprehensive survey of evidence from both lay and medical witnesses to ascertain Mrs Szozda's mental state at the time of executing the powers of attorney.

Following its findings, the court invalidated the two powers of attorney executed by Mrs Szozda due to her lack of mental capacity at the time of their execution. The decision underscored the importance of a thorough assessment of a donor's mental capacity, taking into account both general law principles and statutory provisions. The court's ruling provided clarity on the procedural avenues available to challenge the capacity of a donor and the standing of the donee in such proceedings. The final orders included the invalidation of the powers of attorney and directions for further proceedings to manage Mrs Szozda's affairs in accordance with the court's determination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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