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Vickery v JJP Custodians

Vickery v JJP Custodians

Case [2002] NSWSC 782 30 August 2002

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CITATION: Vickery v JJP Custodians [2002] NSWSC 782

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2966/99

HEARING DATE(S): 6 & 7 August 2002

JUDGMENT DATE: 30 August 2002

PARTIES :

Graham John Vickery (P)
JJP Custodians Pty Ltd (D1)
Done Nantsou (D2)
Christos Nantsou (D3)

JUDGMENT OF: Austin J

COUNSEL : Mr R D Marshall (P)
Mr A A Henskens (D3)

SOLICITORS: McDonald Johnson (P)
Berryman Partners (D3)

CATCHWORDS: CONVEYANCING - power of attorney - whether authority can be terminated orally - "notice" under s 162 of the Conveyancing Act AGENCY - ostensible authority - when person dealing with attorney under power is put on inquiry RESTITUTION - money had and received and money paid - whether cause of action in unjust enrichment - where A pays C who applies payment to repay supposed debt owed by B to C - whether A has restitutionary claim against B

LEGISLATION CITED: Conveyancing Act 1919 (NSW) ss 162, 163, 163A

CASES CITED: Alan Estates Ltd v WG Stores Ltd [1982] Ch 511
City Bank of Sydney v McLaughlin (1989) 9 CLR 615
Crantrave Ltd v Lloyds Bank plc [2000] 4 All ER 473
Detroit Finance Corporation Ltd V Camillo (1974) 4 ACLR 509
Exall v Partridge (1799) 8 TR 308
Frith v Frith [1906] AC 254
Graeme Webb Investments Pty Ltd v St George Partnership Banking Ltd [2001] NSWCA 93
Guardian Ocean Cargoes Ltd v Banco do Brazil [1991] 2 Lloyd's R 68
Hambro v Burnand [1904] 2 KB 10
Hirachand Punamchand v Temple [1911] 2 KB 330
Hooker Industrial Developments Pty Ltd v Trustees of the Christian Bros [1997] 2 NSWLR 109
Hutchinson v Sydney (1854) 10 Ex 438 [156 ER 508]
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
Lucas v Wilkinson (1856) 1 H & N 420 [156 ER 1265]
Mailman v Challenge Bank Ltd (1991) 5 BPR 97400
Majesty Restaurant Pty Ltd (in liq) v Commonwealth Bank of Australia (Supreme Court of New South Wales, Hunter J, 25 November 1998, BC9807765)
Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310
Moses v Macferlan (1760) 2 Burr 1005 [97 ER 676]
Mutual Provident Land Investing and Building Society Limited v Macmillan (1889) 14 App Cas 596
Myers v Hurley Motor Company 273 US 18 (1927)
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Perry v Holl (1860) 2 De GF & J 38 [45 ER 536]
Porter v Latec Finance (Qld) Pty Ltd (1964) 111 CLR 177
Portman Building Society v Hamlyn Taylor Neck [1998] 4 All ER 202
Pownal v Ferrand (1827) 6 B & C 439 [108 ER 513]
R D Mackinnon Holdings Pty Ltd v Hind [1984] 2 NSWLR 121
R v Julius Sefton Holt (1983) 12 A Crim R 1
R v Wait (1823) 11 Price 518
Re Cleadon Trust Ltd [1939] 1 Ch 287
Re Rowe [1984] 2 KB 483
Roxborough v Rothmans of…

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 Vickery v JJP Custodians

Details

AGLC: Vickery v JJP Custodians [2002] NSWSC 782
Case: [2002] NSWSC 782
Decision Date: 30 August 2002

CaseChat Overview and Summary

The matter before the court involved a dispute between Vickery and JJP Custodians. Vickery sought a declaration that an oral instruction to terminate a power of attorney was ineffective and sought an order for the return of funds that were transferred in reliance on the power of attorney. The case was heard in the Supreme Court of New South Wales. The central legal issues revolved around the validity of an oral instruction to terminate a power of attorney, the applicability of s 162 of the Conveyancing Act, and the possibility of a restitutionary claim in unjust enrichment. The court had to determine whether the authority could be terminated orally and whether the notice requirement under the statute applied to such terminations. Additionally, the court examined whether the doctrine of ostensible authority applied, specifically whether a third party dealing with the attorney was put on inquiry. Finally, the court considered whether Vickery had a cause of action in unjust enrichment against JJP Custodians.

The court found that the authority under the power of attorney could indeed be terminated orally. The notice requirement under s 162 of the Conveyancing Act was deemed not applicable to the oral termination of such a power. The court concluded that the doctrine of ostensible authority was not engaged because the third party was not put on inquiry when dealing with the attorney. Regarding the restitutionary claim, the court held that Vickery had no cause of action in unjust enrichment against JJP Custodians because the funds were applied to a supposed debt owed by Vickery to JJP Custodians. The court determined that the transfer of funds was made in reliance on the power of attorney, which was still in effect at the time of the transfer.

The final orders of the court were that Vickery's claim for a declaration that the oral termination of the power of attorney was ineffective was successful. The court ordered that the funds transferred be returned to Vickery. However, Vickery's claim for unjust enrichment against JJP Custodians was dismissed. The court's decision highlighted the importance of clear communication and written documentation in the context of powers of attorney and the potential consequences of oral instructions.

Orders