Angliss v. Urquhart & Anor. [2002] NSWCA 256

New South Wales Court of Appeal

CITATION : Angliss v. Urquhart & Anor. [2002] NSWCA 256 FILE NUMBER(S) : CA 40207/02 HEARING DATE(S) : 24 July 2002 JUDGMENT DATE : 9 August 2002

William Arthur Angliss - claimant PARTIES : Alison Mary Urquhart - 1st opponent Andrew Roderick Urquhart - 2nd opponent JUDGMENT OF : Mason P at 1; Hodgson JA at 4; Davies AJA at 46

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT SC2648/01 FILE NUMBER(S) : LOWER COURT Young CJ in Eq. JUDICIAL OFFICER :

COUNSEL : Mr. S. Rares SC with Mrs. M. Gilmour for claimant Mr. P. Hallen SC with Mr. R.S. Angyal for opponents SOLICITORS : Deacons, Sydney for claimant Hunt Partners, Sydney for opponents CATCHWORDS : CONTRACT - Agency - Power of attorney - Purported revocation - Alleged lack of capacity to revoke - Whether revocation void or merely voidable - MENTAL HEALTH - Appointment of guardian and/or manager - Defendant and most of his estate outside NSW - Jurisdiction - Utility - Appropriateness of forum - PROCEDURE - Declaration - Utility - Agents seeking declaration that purported revocations of their appointments void, and also orders providing for the future care of the defendant and management of his estate - Whether NSW proceedings should be stayed. LEGISLATION CITED : Protected Estates Act 1983 (NSW) Guardianship and Administration Act 2000 (Q) Gibbons v. Wright (1954) 91 CLR 423 Henry v. Henry (1996) 185 CLR 571 James Hardie & Co. Pty. Ltd. v. Barry (2000) 50 NSWLR 357 CASES CITED: MS v. ES [1983] 3 NSWLR 119 Regie National Renault v. Ahang (2002) 76 ALJR 551 Tringali v. Stewartson Stubbs & Collett Ltd. (1966) 66 SR(NSW) 335 Walton v. Gardiner (1993) 177 CLR 378 DECISION : 1. Leave to appeal granted, conditional upon a Notice of Appeal joining the first defendant as an additional respondent being filed within 14 days. 2. Appeal upheld, and the following orders made in addition to the orders made below. 3. Direct hearing of a separate issue, namely the issue of whether the plaintiffs establish that the purported revocations by the third defendant of the plaintiffs' various appointments are void, to be decided in advance of all other issues, including the challenge to the retainer of the third defendant's solicitors. 4. If that issue or any part of it is decided in favour of the plaintiffs, then the further progress of the matter is to be subject to the directions of the Supreme Court. 5. If that issue is wholly decided against the plaintiffs, then the proceedings are permanently stayed. 6. Plaintiffs to pay third defendant's costs of the application for leave and the appeal, and to have a suitors' fund certificate if otherwise entitled.