Warren v Warren - [2018] QCA 192

[2018] QCA 192

COURT OF APPEAL

McMURDO JA

Appeal No 6682 of 2018
SC No 2505 of 2018

IAN JAMES DOUGLAS WARREN &
JENNIFER JEAN FEITZ
STATED AS ATTORNEYS FOR
FLORENCE BURNETT WARREN Respondents/Applicants

ALEXIA MARGARET WARREN Appellant/Respondent

BRISBANE

FRIDAY, 17 AUGUST 2018

JUDGMENT

McMURDO JA: This is an application for the provision of security for the respondents’ costs of the appeal. The appellant is an undischarged bankrupt. On 4 July 2018, the respondents’ solicitors wrote to her, asking her to provide evidence that she is capable of meeting the respondents’ costs of the appeal in the event that the appeal is unsuccessful. There has been no reply to that letter. It is sufficiently clear that the appellant will be unable to pay the respondents’ costs in the event that the appeal is dismissed.

The appeal is against orders made in the Trial Division on 8 and 19 June 2018. It is necessary to set out some background to those orders. In February 2009, the appellant’s mother executed an enduring power of attorney by which she appointed the respondents as her attorneys for all financial and health matters except in relation to a piece of real property, which was an apartment at Albion. The appellant, who was then a solicitor, was appointed her mother’s attorney in respect of the Albion property.

The appellant was declared bankrupt in February 2016, and, by s 57(2) of the Powers of Attorney Act, the power of attorney in her favour was immediately revoked. The appellant appears to have disputed that revocation, but the Chief Justice, by orders made on 29 March this year, declared that the appellant ceased to be her mother’s attorney by the operation of s 57(2). By the same orders, the Chief Justice declared that the respondents were validly appointed as attorneys under Mrs Warren’s enduring power of attorney of February 2009, and it was ordered that they be appointed her attorneys in relation to the Albion property.

It was further ordered that the appellant not purport to act as her mother’s attorney and that she be restrained from entering any of her mother’s real properties, other than to remove all of her belongings and personal effects from them within 30 days. Those properties included one at Bongaree.

The respondents wished to sell that property, and they had to remove the appellant’s effects from there to put them into storage. The appellant’s response was to cause a caveat to be lodged over the Bongaree property, purportedly on behalf of the appellant’s mother. The respondents then applied to have the caveat removed.

On 8 June 2018, Justice Boddice ordered the removal of the caveat. He made further orders for the appellant’s mother to be independently assessed by a geriatrician. The appellant applied to have the order removing the caveat set aside and for the other orders made on 8 June to be stayed. On 19 June 2018, Justice Boddice refused those applications. This appeal is against the orders of 8…

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 Warren v Warren

Details

AGLC: Warren v Warren [2018] QCA 192
Case: [2018] QCA 192
Decision Date: 17 AUGUST 2018

CaseChat Overview and Summary

The appeal in Warren v Warren involves the appellant, Alexia Margaret Warren, appealing against the orders made by Justice Boddice on 8 and 19 June 2018, which were in turn based on orders made by the Chief Justice on 29 March 2018. The respondents, Ian James Douglas Warren and Jennifer Jean Feitz, who are the attorneys for the appellant’s mother, Florence Burnett Warren, brought the application for security for costs, arguing that the appellant is an undischarged bankrupt and is unlikely to be able to meet the respondents’ costs if the appeal is dismissed. The appellant had not responded to a request by the respondents’ solicitors for evidence of her ability to meet those costs.

The primary legal issues before the court were whether the respondents had the authority to act on behalf of the appellant's mother and whether the appellant had the right to lodge a caveat over her mother’s property. Additionally, the court had to determine whether the appellant’s arguments against the respondents’ application for security for costs had any merit.

The court found that the Chief Justice's orders, which confirmed the respondents' authority to act as attorneys for the appellant’s mother, were valid and binding. The court dismissed the appellant's arguments challenging the respondents' authority and the service of the affidavit in support of the application for security for costs. The court noted that the appellant had not demonstrated any prospect of success in her appeal, particularly given that the respondents had already settled the sale of the property in question. The court concluded that the appellant should be ordered to provide security for costs in the amount of $15,000 within 28 days of the date of the order, and that the prosecution of the appeal would be stayed until that security was provided.

In addition, the court ordered that the appellant pay the respondents' costs for the application, as none of the appellant's arguments had merit. The appellant's position in the appeal was found to be particularly weak, as evidenced by the reasoning provided by the court.

Orders