Watkins v Christian

[2009] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION:

Watkins v Christian [2009] QCA 101

PARTIES:

EVELYN MAUD WATKINS
(plaintiff/respondent)
v
DEBORAH JOY CHRISTIAN
(defendant/appellant)

FILE NO/S:

Appeal No 593 of 2009
SC No 7821 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2009

JUDGES:

Muir and Fraser JJA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

MENTAL HEALTH – GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – where respondent commenced proceedings in the Supreme Court claiming relief, including equitable compensation, restitution or, alternatively, damages in the sum of $314,960 and an account of all dealings by the appellant with the respondent's monies – where the respondent was given leave to amend her claim to name a litigation guardian – where the appellant applied for an order to remove the respondent’s litigation guardian and to restrain the respondent's solicitors from acting – where the application was dismissed – where it was alleged the litigation guardian’s interests were adverse to those of the respondent – whether the primary judge erred in not making findings as to whether a new Power of Attorney or Will existed, in failing to hold that the litigation guardian’s interests were adverse to those of the respondent and in failing to hold that the proper administration of justice required the respondent’s solicitors to be restrained from continuing to act

Legal Profession (Solicitors) Rule 2007 (Qld), r 13.4
Powers of Attorney Act 1998 (Qld), s 41
Uniform Civil Procedure Rules 1999 (Qld), r 94(1), r 95(2)

Breen v Williams (1996) 186 CLR 71; [1996] HCA 57, cited
Chapman v Rogers; ex parte Chapman [1984] 1 Qd R 542, considered
Holborow & Ors v Macdonald Rudder [2002] WASC 265, cited
In Re the Will of FB Gilbert (decd) (1946) 46 SR (NSW) 318, cited
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61, cited
Mitchell v Burrell [2008] NSWSC 772, cited
Scallan v Scallan [2001] NSWSC 1078, cited
Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22, cited

COUNSEL:

J D Johnson (sol) for the appellant
F G Forde for the respondent

SOLICITORS:

Johnsons Solicitors for the appellant
Quinn & Scattini for the respondent

1. MUIR JA:  The respondent commenced proceedings in the Supreme Court claiming relief, including equitable compensation, restitution or, alternatively, damages in the sum of $314,960 and an account of all dealings by the appellant with the respondent's monies.  It is alleged in an amended statement of claim that:

(a)         The respondent is 92 years of age and is the neighbour of the appellant;

(b)         The respondent, to the knowledge of the appellant, was of weakened mental capacity due to old age, reliant on the appellant and susceptible to suggestion and persuasion;

(c)         The appellant was under a…