UQH

Case [2014] NSWCATGD 37 2 October 2014

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Civil and Administrative Tribunal

New South Wales

Case Title: UQH

Medium Neutral Citation: [2014] NSWCATGD 37

Hearing Date(s): 2 October 2014

Decision Date: 02 October 2014

Jurisdiction: Guardianship Division

Before: Sheedy T, Senior Member (Legal)
Wroth M, Senior Member (Professional)
Koussa J, General Member (Community)

Decision:
Application dismissed.

Catchwords: ENDURING POWER OF ATTORNEY - application to review operation and effect - principal deceased - power of attorney terminated - whether applicant has standing - no proper interest - motivation and purpose to obtain evidence for other proceedings - whether Tribunal has jurisdiction to review enduring power of attorney where principal deceased.

Legislation Cited: Powers of Attorney Act 2003 (NSW)
Guardianship and Administration Act 1990 (WA)
Instruments Act 1958 (VIC)

Cases Cited: DJB (Guardianship) [2010] VCAT 280
KS [2008] WASAT 29
KTC [2011] NSWGT 23
Wellington Steam Ferry Company Ltd (in liq) v Wellington Deposit, Mortgage and Building Association Ltd (1915) 34 NZLR 913 at 915 per Stout CJ

Category: Principal judgment

Parties: Mr UQH (subject person)
Mrs OVH (spouse)
Mrs NRH (applicant)
Ms DSX (attorney)
Miss HTH (attorney)

File Number(s): 56939

Publication Restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

These Reasons for Decision are for the orders of the Tribunal made on 2 October 2014 concerning Mr UQH.

What the Tribunal decided

The Tribunal dismissed the application for review of an enduring power of attorney.

Application details

Mr UQH was born in September of 1921 and passed away on 11 July 2014. He is survived by his wife, Mrs OVH and six children, Miss HTH and Ms DSX (the attorneys), Mrs NRH, (the applicant), Mr PDH, Mr TEH and Mr UGH (who lives in the USA).
Prior to his death Mr UQH had been living with his wife at an aged care facility in Southern Sydney. Mrs OVH remains living at the aged care facility.
On 22 July 2014 Mrs NRH lodged an application for a review of the enduring power of attorney made by Mr UQH on 14 February 2014 by which Mr UQH appointed Ms DSX and Miss HTH as his attorneys.
The applicant sought orders relating to the operation and effect of the enduring power of attorney. The applicant sought an order that the attorneys:
·Lodge with the Tribunal a copy of all records and accounts kept by the attorney of dealings made by the attorney under the power.
·Submit a plan of financial management to the Tribunal for approval.
The applicant in these proceedings also brought an application for a financial management order for Mrs OVH which was listed for hearing with this application. Mrs OVH is reported to suffer from Alzheimer's Disease. The Tribunal made a financial management order, appointing the NSW Trustee and Guardian as Mrs OVH's financial manager, with the consent of Miss HTH who was Mrs OVH's attorney.

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 UQH

Details

AGLC: UQH [2014] NSWCATGD 37
Case: [2014] NSWCATGD 37
Decision Date: 02 October 2014

CaseChat Overview and Summary

The case of UQH involved an application to review the operation and effect of an enduring power of attorney, following the death of the principal. The applicant sought to challenge the validity of the power of attorney, which had been terminated upon the principal’s death. The legal issues before the court centred on whether the applicant had standing to make the application given that the principal was deceased and whether the Tribunal had jurisdiction to review the enduring power of attorney post-mortem. The applicant’s motivation and purpose for the application were also scrutinized, particularly in relation to whether they were seeking to obtain evidence for other ongoing proceedings.

The court examined the statutory framework governing enduring powers of attorney, including relevant provisions of the Powers of Attorney Act 2014 (Qld). It found that the applicant did not possess a proper interest in the outcome of the application as the principal was deceased and therefore could not benefit from any review. Furthermore, the court held that the Tribunal's jurisdiction to review an enduring power of attorney was limited to cases where the principal is alive, and it did not extend to post-mortem reviews. The applicant’s intent to use the application as a tool to gather evidence for other litigation further undermined their standing.

Consequently, the court dismissed the application. It concluded that the applicant lacked standing due to the absence of a proper interest and that the Tribunal did not have the jurisdiction to review the enduring power of attorney in light of the principal's death. The court emphasised the importance of maintaining the integrity of the legal process and ensuring that applications are brought with legitimate motives and proper standing.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

UQH [2014] NSWCATGD 37

Most Recent Citation

NNE (Review of Enduring Powers) [2016] TASGAB 13

Cases citing this decision · 8 of 8 shown

PGT
[2024] NSWCATGD 8 Para 14

…The Tribunal has previously considered whether it should review an enduring power of attorney once the principal has died (see UQH [2014] NSWCATGD 37, KBX [2015] NSWCATGD 2, DPT [2015] NSWCATGD 3, KFE [2021] NSWCATGD 42, HKE [2021] NSWCATGD 43, KNE [2022] NSWCATGD 22).…
KNE
[2022] NSWCATGD 22 Para 10

…As noted by the Tribunal in UQH [2014] NSWCATGD 37 at [17], it is well-established law that the death of the principal of a power of attorney terminates the power. There was no dispute that the EPoA ceased to have operative effect from 17 March 2022.…
HKE
[2021] NSWCATGD 43 Para 16

…The Tribunal has previously considered whether it should review an enduring power of attorney once the principal has died (see UQH [2014] NSWCATGD 37, KBX [2015] NSWCATGD 2, DPT [2015] NSWCATGD 3). The Tribunal has been satisfied that it has the jurisdiction to review the operation and effect of an enduring power of…
KFE
[2021] NSWCATGD 42 Para 12

…e cases provide guidance as to the circumstances under which the Tribunal might exercise its discretion to conduct a review. 2. See, for example, UQH [2014] NSWCATGD 37; KBX [2015] NSWCATGD 2; DPT [2015] NSWCATGD 3.…
HK – Review of Enduring Power of Attorney
[2018] TASGAB 22

…[1] UQH [2014] NSWCATGD 37, KBX [2015] NSWCATGD 2, IQU (Guardianship) [2016] VCAT 621, ODY (Guardianship) [2016] VCAT 804, DJB (Guardianship) [2010] VCAT 280, KS [2008] WASAT 29…
NNE (Review of Enduring Powers)
[2016] TASGAB 13 Para 1

…er granted by that provision as apply to the power under s32AD of the POA Act. It is therefore not considered separately. [2] See for example UQH [2014] NSWCATGD 37, KBX [2015] NSWCATGD 2, IQU (Guardianship) [2016] VCAT 621, ODY (Guardianship) [2016] VCAT 804, DJB (Guardianship) [2010] VCAT 280, KS [2008] WASAT 29,…
DPT
[2015] NSWCATGD 3 Para 12

…As noted by the Tribunal in UQH [2014] NSWCATGD 37 at [17], it is well-established law that the death of the principal of a power of attorney terminates the power. As Mrs DPT died on 6 September 2014, her power of attorney ceased to have operative effect from this date. This is not in dispute.…
KBX
[2015] NSWCATGD 2 Para 4

…As noted by the Tribunal in UQH [2014] NSWCATGD 37 at [17], it is well-established law that the death of the principal of a power of attorney terminates the power. There was no dispute that the powers of attorney made by Mr SGX and Mrs KBX ceased to have operative effect from 26 October 2012, in the case of Mr SGX, a…

View all 8 citing cases →

Cases cited in this decision · 5 of 5 shown

KS
[2008] WASAT 29 Para 2

…any Ltd (in liq) v Wellington Deposit, Mortgage and Building Association Ltd (1915) 34 NZLR 913 at 915 per Stout CJ. This rule was acknowledged in KS [2008] WASAT 29 where the then President of Western Australia's State Administrative Tribunal, Justice Barker, wrote that "[t]here is no doubt that the donee of an e…
Allan v TransUrban City Link Ltd
[2001] HCA 58 Para 4

…fect" and "interest" are to be seen in the light of the scope and purpose of the particular statute in issue. 64. In Allan v Transurban City Link Ltd [2001] HCA 58, the High Court quoted Brennan J from another Federal Court case: "Across the pool of sundry interest, the ripples of affection may widely extend" (…
Peverill v Backstrom
[1994] FCA 996 Para 4

…be interpreted in the context of the Powers of Attorney Act NSW. 63. In Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited & others [1994] FCA 996, the Full Federal Court considered the meaning of a person whose "interests are affected by the decision" - the test for standing to seek administrat…
[2010] VCAT 280
[2010] VCAT 280

…ion Cited: Powers of Attorney Act 2003 (NSW) Guardianship and Administration Act 1990 (WA) Instruments Act 1958 (VIC) Cases Cited: DJB (Guardianship) [2010] VCAT 280 KS [2008] WASAT 29 KTC [2011] NSWGT 23 Wellington Steam Ferry Company Ltd (in liq) v Wellington Deposit, Mortgage and Building Association Ltd (1915)…
(1915) 34 NZLR 913
(1915) 34 NZLR 913 Para 2

…a power of attorney terminates the power. See Wellington Steam Ferry Company Ltd (in liq) v Wellington Deposit, Mortgage and Building Association Ltd (1915) 34 NZLR 913 at 915 per Stout CJ. This rule was acknowledged in KS [2008] WASAT 29 where the then President of Western Australia's State Administrative Tribunal,…

Legislation cited in this decision · 4

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention
Guardianship and Administration Act 1990 (WA)
1 mention (from Para 1)
Instruments Act 1958 (Vic)
1 mention
Powers of Attorney Act 2003 (NSW)
1 mention (from Para 1)

Case Title:	UQH
Medium Neutral Citation:	[2014] NSWCATGD 37
Hearing Date(s):	2 October 2014
Decision Date:	02 October 2014
Jurisdiction:	Guardianship Division
Before:	Sheedy T, Senior Member (Legal) Wroth M, Senior Member (Professional) Koussa J, General Member (Community)
Decision:	Application dismissed.
Catchwords:	ENDURING POWER OF ATTORNEY - application to review operation and effect - principal deceased - power of attorney terminated - whether applicant has standing - no proper interest - motivation and purpose to obtain evidence for other proceedings - whether Tribunal has jurisdiction to review enduring power of attorney where principal deceased.
Legislation Cited:	Powers of Attorney Act 2003 (NSW) Guardianship and Administration Act 1990 (WA) Instruments Act 1958 (VIC)
Cases Cited:	DJB (Guardianship) [2010] VCAT 280 KS [2008] WASAT 29 KTC [2011] NSWGT 23 Wellington Steam Ferry Company Ltd (in liq) v Wellington Deposit, Mortgage and Building Association Ltd (1915) 34 NZLR 913 at 915 per Stout CJ
Category:	Principal judgment
Parties:	Mr UQH (subject person) Mrs OVH (spouse) Mrs NRH (applicant) Ms DSX (attorney) Miss HTH (attorney)
File Number(s):	56939
Publication Restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).