Urquhart v Lanham

What orders should be made on the motions? 14 Question 1. There is surprising little authority on this point. Thus it must be approached from first principles. 15 As counsel for the defendants have submitted, a power of attorney confers no interest in property, it merely confers authority, Gibbons v Wright (1954) 91 CLR 423, 444; Farwell on Powers (Stevens & Sons, London, 1874) at p 1. 16 There is clear authority for the proposition that where an attorney has decided to bring action under the authority given to him or her by a power of attorney, the action must be brought in the principal's name, Campbell v Pye (1954) 54 SR (NSW) 308 and see Jones v Gurney [1913] WN (Eng) 72 and see Gray v Pearson (1870) LR 5 CP 568 and Spellson v George (1987) 11 NSWLR 300, 313. 17 There are some older authorities which seem to permit action in the agent's name. Many of these can be distinguished on their facts. However, insofar as they suggest that an attorney can sue in his or her own name, they are no longer good law, see Bowstead & Reynolds on Agency 16th ed (Sweet & Maxwell, London 1996) at p 555. 18 It was submitted that the position has changed because of the enactment of s 159 of the Conveyancing Act 1919, added by amendment by Act 147 of 1997. However, a similar provision appeared in the Conveyancing Act from 1920. It has never been suggested that the section applies to actions in court by an attorney, nor, apparently, was that argument even raised in Campbell v Pye. There is no validity in the submission. 19 Even if I had not reached the view that Campbell v Pye still states the law, it is clear that a donee as purported agent for the donor cannot sue the donor. Otherwise we would have the same person on both sides of the record which is impermissible: Perpetual Trustee Co Ltd v Attorney-General (1937) 54 WN (NSW) 95, 96. 20 Paragraphs 22A, 29A and 35A of the amended statement of claim plead "The plaintiffs, as the validly appointed attorneys of the third defendant, seek to avoid the instrument pleaded in paragraph …". 21 This cannot stand. The only procedural way that such an allegation may be made is to sue in the name of the donor and then withstand a challenge to the retainer by the defendants. 22 Likewise allegations that the subsequent alleged powers of attorney etc are void can only be tried in an action in which a party to the deed is the plaintiff. 23 An alternative way of trying the issue may be for the plaintiff to seek a declaration as against the third defendant that their power of attorney remains valid. This is claimed in prayer 39 and should stand, as should the corresponding prayer 17. 24 Mr Blackburn-Hart cited my decision in Ranclaud v Cabban (1988) NSW Conv R 55-385. That was a case which raised similar issues to those currently before the court. However, the plaintiff was the alleged incapable person who was seeking to restrain the donee of a power of attorney from functioning under that power and the issue was tried on a challenge to retainer. I found that the plaintiff lacked capacity and so the challenge to the retainer was made out. That case shows the approved way of trying this type of issue. 25 Rosenthal v The Sir Moses Montefiore Jewish Home (Young J, 26 May 1995) is a similar case. Again the plaintiffs were the alleged incapable person and her most recently chosen attorney and the defendants were representing a previous attorney who claimed his power to act continued. 26 It follows that prayers 3-14, 18-36, 40-47 and the corresponding allegations of fact should be struck out. This leaves prayers 1 and 2A, which will be considered under Question 7, prayers 17 and 39 and their associated facts and prayers 47A-47D which will be considered in Question 6. 27 Question 2. In view of my answer to Question 1, I can be relatively brief in my treatment of this question. It is axiomatic that a court will not, in its discretion, make a declaration where there is no utility in so doing; see eg Mikaelian v CSIRO (1999) 163 ALR 172, 191. However, utility in this context means that the declaration is of some value to the plaintiffs, not necessarily pecuniary value; see Young on Declarations, 2nd ed (Butterworths, Sydney, 1984) at para [704]. It is of utility for an agent or attorney to know whether his or her authority is still in place or has been revoked. This is merely a subset of the cases where a declaration is made as to whether a contract is or is not in existence; see eg Hargreaves v Dukes [1931] NZLR 1143. 28 I examined the cases in this area in Rosenthal's case. There is no need to repeat them here. 29 It is more difficult to see the utility of a declaration that a contract between a third party and a fourth party is valid including the question whether the fourth party is authorised to act for the third party. I can see some circumstances where such a declaration would be of utility, such as the case where a multi million dollar deal was being signed off by a purported agent for the other contracting party and there were reasonable grounds to suspect the validity of the purported agent's authority. I believe that this sort of question should usually go to trial. I would not be prepared to strike out any part of the amended statement of claim under this head. 30 Question 3. Apart from the question of a convenient venue, I cannot see any relevance in this fact. On the plaintiffs' case, an unauthorised person removed the third defendant from this State, caused his property to be sold and then invested the proceeds in real property in Queensland. I cannot see any jurisdictional factor which would affect this court's power to hear and determine the proceedings. Appearances have been filed for the defendants. 31 I will deal with the effect of the Queensland factor on the application under s 13 of the Protected Estates Act 1983 under my answer to Question 6. 32 Question 4. Normally, if proceedings are competently commenced in a court, the plaintiffs are entitled to have them determined. This may be worrying for defendants who may hope that the proceedings will just go away, but that feeling has no relevance. 33 However, Mr Rares SC says that the present proceedings are in a special position because of the age of his client and the inutility of gaining orders which will really only have effect after his death. 34 A court will not allow itself to be the vehicle for oppression: Hunter v Chief Constable of West Midlands Police [1982] AC 529, 536. As Lord Diplock there said, the circumstances in which abuse of process or oppression may arise will be varied. 35 In Walton v Gardiner (1993) 177 CLR 378, 393, three justices of the High Court gave a series of examples of oppression viz: (1) where proceedings are foredoomed to fail; 2) were the court is clearly an inappropriate forum to hear them; (3) where a party is seeking to relitigate a matter that has already been decided; (4) where to allow the proceedings to continue would be so unfair to a party that it would bring the administration of justice into disrepute 36 However, in assessing oppression for this purpose, a court does not conduct a mini trial into the merits of the case: if a case is said to be one which is "foredoomed to fail", the court will hear argument as to why this is so, but it does not evaluate factual evidence, cf Jackamarra v Krakouer (1998) 195 CLR 516. 37 I do not see any factors in the part of the case which remains as would make it oppressive so that the case should be stayed or even stayed as against the third defendant. I would consider that the third defendant is a proper and interested party in the whole proceedings. 38 Question 5. It was submitted that where executors are suing, all must join as plaintiffs (or at least they must all be parties to the suit). In the present case, the plaintiffs claim that they are two of the three executors of the late Beverley Ann Angliss and plead that the third executor has consented to them bringing the action and consents to certain orders. 39 The objection is well founded. Under the Supreme Court Rules, all persons entitled to a joint right must be parties to the suit. However, what remains of the suit affects only the plaintiffs' personal interest as duly appointed agents (as they claim) of the third defendant and not their rights as executors. It is thus otiose to pursue the point. 40 Question 6 There is no restriction on who may promote an application to the Court to declare a person incapable under s 13 of the Protected Estates Act 1983. The plaintiffs have as much right to do this as anyone else. 41 Nor is it an objection to such an application that the alleged incapable person is outside New South Wales provided he has property in New South Wales: MS v ES [1983] 3 NSWLR 199. One presumes that a person has property in the State unless the contrary is demonstrated. There is no material to suggest that the third defendant does not have some property in this State. The furthest that Mr Rares SC's submissions go is that "almost all (the third defendant's) assets are outside New South Wales." 42 Even if the third defendant had no current property in the State, his alleged abduction from the State and the sale of his property in this State without proper authority (as alleged by the plaintiffs) would support the jurisdiction. If this were not so, the first defendant would be able (if the facts were established at trial) to effectuate what up to last century would be the unpardonable crime of Praemunire. 43 Mr Rares SC cites cases like MS v ES at p 203 and my decision in Re R [2000] NSWSC 886 [37] that the court only exercises its jurisdiction under the section for the benefit of the alleged incapable person. This cannot be gainsaid. 44 However, at present, the court has serious allegations against the first defendant. She has not deigned to give evidence. The defendants' camp has been so full of technical objections to the suit that suspicion is engendered, and that all the court really has is senior counsel's continued assertions that the third defendant is happy. 45 If there were in fact proceedings before an appropriate Queensland court or tribunal, it may be that this court would not exercise its jurisdiction. However, it will not stay its hand merely because the first defendant says that there are Queensland tribunals and courts to decide the question in issue, if she does not approach those bodies. 46 Likewise, if there was some appropriate evidence to back up Mr Rares SC's continued assertion, the court might take a different view. 47 However, in the present state of the proceedings, they should continue. 48 Question 7. Prayer 1 seeks an order that the first defendant transfer the Tugun property to the third defendant. The trust is now admitted, the third defendant appears to say that he does not want the transfer. It seems to me that the issue should only be permitted after the question of incapacity is decided. It should be struck out as a separate prayer. 49 Prayer 2A seeks accounts. Again this may be premature until it is established, if it ever is, that the third defendant is incapable. Even then, because of the principle in Bective (Countess) v Commissioner of Taxation (1932) 47 CLR 417, the carers for the third defendant may not be fully accountable in the ordinary sense. 50 Question 8. The portions of the statement of claim should be struck out in accordance with these reasons. The plaintiffs should have leave to amend generally within 21 days. The defendants will then have 21 days to file their defence. The proceedings are already listed before Bryson J on 8 March in his expedition list for review. That appointment should remain as it may well be that his Honour will consider that the proposed hearing on 8 April might not be able to proceed. 51 I will reserve costs of the motions.

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Judgment (13 paragraphs)

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Cases Cited (8)

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