Adler v Singer [2009] NSWSC 500

New South Wales Supreme Court

CITATION : Adler v Singer [2009] NSWSC 500

HEARING DATE(S) : 15 May 2009 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 15 May 2009

DECISION : Orders made transferring control of plaintiff's moneys held by the defendant to her current solicitors.

CATCHWORDS : PROCEDURE - Application for interim regime to have plaintiff's moneys in control of defendants, her attorneys under power until recent revocation, transferred to plaintiff's solicitor - Whether arguable case of incompetence, incapacity or undue influence - Whether such a regime necessary and prudent - Where undertakings given by new solicitor to ensure moneys are adequately protected until proper determination of issues - Held: No triable case impugning the purported revocation on evidence currently available - Orders made for transfer of accounts moneys to control of plaintiff's solicitors.

LEGISLATION CITED : (NSW) Powers of Attorney Act 2003 s 38 (NSW) Protective Estates Act 1983

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 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 15 May 2009

1548/09 Ethel Adler v David Singer & anor JUDGMENT (ex tempore) 1 HIS HONOUR: By her Summons filed on 18 February 2009, the plaintiff Ethel Adler claims a declaration that the General Power of Attorney given by her on 20 May 2003 to the first defendant David Singer was revoked on 31 January 2008, or alternatively 6 February 2008, or alternatively 11 July 2008, or alternatively 6 February 2009. Mrs Adler also seeks a declaration that the General Power of Attorney or such other Power of Attorney which she may have given the second defendant Simon Singer on or about 28 January 2008 has similarly been revoked. She seeks orders that the defendants deliver up to her all the General Powers of Attorney in question, and all documents belonging to her that are held by them or either of them. By their Second Amended Cross-Summons, the defendants seek a determination pursuant to (NSW) Powers of Attorney Act 2003, s 38, as to whether the purported revocation of various powers of attorney are invalid by reason that Mrs Adler was not free or competent to execute and give the instruments of purported revocation and, if appropriate, orders appointing substitute attorneys. Alternatively, they propose orders for an inquiry by the Protective Commissioner, a declaration that Mrs Adler is not capable of managing her affairs, and an order that her estate be subject to management under the (NSW) Protective Estates Act 1983. They say that they propose these outcomes essentially in the role of amicus curiae and not to adopt an adversarial position.