Adler v Singer [2009] NSWSC 312

New South Wales Supreme Court

CITATION : Adler v Singer [2009] NSWSC 312

HEARING DATE(S) : 27 March 2009 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 27 March 2009

DECISION : Defendants to transfer amount standing to credit of bank account held as plaintiff's attorney to her new solicitor.

CATCHWORDS : POWERS OF ATTORNEY - Where declaration sought that plaintiff has validly revoked power of attorney - where defendant attorney doubts plaintiff's competence and whether subject to undue influence - where plaintiff's assets still held by defendant - application to have some assets transferred to control of plaintiff's current solicitor as an interim measure to fund expenditure - Held: application for interim relief granted

CATEGORY : Procedural and other rulings

Ethel Adler (plaintiff) PARTIES : David Singer (first defendant) Simon Singer (second defendant)

FILE NUMBER(S) : SC 1548/09

COUNSEL : Mr D Davies SC w Mr D Cook Mr M Wilmott SC

SOLICITORS : Makinson & D'Apice (plaintiff) Bamford Associates (defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

BRERETON J

Friday 27 March 2009

1548/09 Ethel Adler v David Singer & anor JUDGMENT (ex tempore) 1 HIS HONOUR: Virtually all of Mrs Adler's assets are under the control of the defendants, whom she had previously appointed to be her attorneys under power; only a few hundred dollars remain in accounts which she can operate herself without their co-operation. It is plain that she needs money with which to live, and to pay her accounts and liabilities, and it is plain that there are ample assets, presently under the control of the defendants, which could be applied for that purpose. At least at face value, Mrs Adler no longer wishes the defendants to be her attorneys under power, and in these proceedings she seeks a declaration that she has validly and effectively revoked the relevant powers of attorney. The defendants question (1) whether she is competent to do so, and (2) if so, whether she has done so under undue influence of others. 2 As I indicated on the last occasion when the matter was before the court, the material before the Court to date – and I hasten to add I have not at this stage read the recent affidavit of Mr Singer – establishes a firmly arguable case that Mrs Adler has, prima facie, revoked the powers of attorney. It is too early to evaluate the case as to her competence and any question of undue influence, but it is clear enough, at least on what is presented by experienced Senior Counsel on her behalf, that she wishes to have some of her assets, if not in her own hands, at least in the hands of her solicitors so that provision can be made for her maintenance and upkeep and liabilities pending the determination of those proceedings. For that purpose, she seeks an order that the defendants transfer, to the trust account of her solicitors, funds amounting to some $178,000 standing to the credit of one of the several bank accounts under their control. That will still leave a very substantial sum under the control of the defendants – but subject to the injunction granted on the last occasion and a further order, which I am asked to make on this occasion, to substantially similar but slightly wider effect. 3 Mr Willmott of Senior Counsel, for the defendants, has reasonably enough raised complaint at the late notice of this application, and pointed to the circumstance that, until the plaintiff obtained from me an injunction a few weeks ago, there was in place a consensual regime that enabled her expenses to be paid. However, so far as the lateness of the application is concerned, he does not seek an adjournment to meet it. So far as the regime formerly in place is concerned, on the evidence currently before me, I have to give considerable weight to the circumstance that Mrs Adler is beneficially entitled to the funds in question, she has not been shown to be under legal disability, and on her behalf a strong desire is being expressed that persons other than the defendants – and in particular her present solicitors – have control of sufficient of them to provide for her immediate future. 4 Particular reference was made to a proposal that the funds be used, in part, to pay legal costs of Messrs Swaab Attorneys, who acted for Mrs Adler in earlier proceedings concerning the powers of attorney some time in 2008. The defendants have, as Mrs Adler's attorneys, objected to those costs and required them to be assessed; that dispute remains on foot. Mrs Adler wishes the Swaabs account to be paid, and has given instructions to that effect, it seems on more than one occasion. Ultimately, the beneficial interest in jeopardy is Mrs Adler's. Her present solicitors will still have to make a judgment – if they are given custody of the funds – as to the appropriateness of making the payment in question, so it is not as if the the funds would be entirely at Mrs Adler's disposition, regardless of any question of competence or influence. 5 It is fair to say – as Mr Davies SC has pointed out – that subject to the reservation about the Swaabs' costs, and to a much lesser extent one other item of legal costs, the defendants did not expressly oppose the relief sought. The circumstance that her current solicitors would retain custody of the funds in their trust account would leave in place a protective mechanism so far as any risks in respect of competence and undue influence are concerned. 6 So far as the additional injunction, contained in paragraph 2 of the interim relief sought in the motion, is concerned, it transpires that some of Mrs Adler's assets under the control of the defendants are held in their own names (presumably as trustees), rather than in Mrs Adler's name, and it is arguable that the injunction previously granted by me on 6 March, which restrains the defendants only from exercising any power under the powers of attorney that they hold, might not extend to prevent dealing with such assets as trustees. I acknowledge that there is no suggestion that the defendants would deal with those assets, particularly in light of the injunction granted on the last occasion, but given my conclusion as to the prima facie case that the powers of attorney have been revoked, it is, I think, appropriate that the reach of the injunctive relief be extended to cover all assets in the hands of the defendants to which Mrs Adler has a prima facie claim. 7 Accordingly, upon the plaintiff by her counsel giving to the court the usual undertaking as to damages, I make order 1 of the interim relief contained in Notice of Motion dated 27 March 2009. Subject to the amendment, in paragraph 2, of the reference to "paragraph 4" to "paragraph 2", I make an order in terms of paragraph 2 of the interim relief sought in that motion.