Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516

Supreme Court New South Wales

Medium Neutral Citation: Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 Hearing dates: 27 September 2012, 5, 12 & 19 October 2012 Decision date: 30 October 2012 Jurisdiction: Equity Division - Duty List Before: Slattery J Decision: Summons dismissed. Directions made for the filing of written submissions on the issue of costs. Catchwords: AGENCY - powers of attorney - Powers of Attorney Act 2003, s 36(4) - the plaintiff and first defendant, two sisters, are appointed co-attorneys by their parents, the second and third defendants under two enduring powers of attorney - plaintiff resides in the United Kingdom - first defendant involved in Australia in the day-to-day exercise of the powers conferred under the powers of attorney - the plaintiff seeks relief that the first defendant provide accounts and information to the plaintiff in relation to her administration of the two powers of attorney - the first, second and third defendants oppose the relief sought - to what standard are co-attorneys obliged to keep accounts of their administration under the power of attorney - whether the powers of attorney should be reviewed under Powers of Attorney Act, s 36(4). HELD: - attorney not required to keep accounts to the trustee standard - powers of attorney not reviewed under Powers of Attorney Act, s 36(4). Legislation Cited: Powers of Attorney Act 2003 (NSW) Trustee Act 1925 (NSW), s 51 Uniform Civil Procedure Rules 2005, r 7.18 Cases Cited: Cave v McKenzie (1877) 46 LJ Ch 564 In the Estate of William Just (deceased) (No. 1) (1973) 7 SASR 508 Kendle & Anor v Melsom & Anor (1998) 193 CLR 46 Luke v South Kensington Hotel Company (1879) 11 Ch D 121 Walker v Corboy (1990) 19 NSWLR 382 Yasuda Fire and Marine Insurance Co of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] QB 174 Texts Cited: Bowstead and Reynolds on Agency, Thomson Sweet and Maxwell, 18th Edition, London, [6-090] Ford on Trusts, Law Book Company, 2nd Edition, 1990 G D Dal Pont, Powers of Attorney, LexisNexis Butterworths Australia, 2010 J.D. Heydon and M.J. Leeming, Jacobs Law of Trusts in Australia, 7th Edition, 2005, Category: Principal judgment Parties: Plaintiff:- Susan Elizabeth Parker First Defendant:- Margaret Catherine Higgins Second Defendant:- Gwenda Higgins by her tutor George Higgins Third Defendant:- George Joseph Higgins Representation: Counsel: Plaintiff:- T. J. Hancock First Defendant:- W. G. Muddle SC Second & Third Defendants:- B. J. Skinner Solicitors: Plaintiff:- Richard Farago, McGlynn & Partners First Defendant:- Hamish Cockburn, McLachlan Thorpe Partners Second & Third Defendants:- Karen McLean, McLean & Associates File Number(s): 2012/301536 Publication restriction: No