EZG [2021] NSWCATGD 6

EZG [2021] NSWCATGD 6

The Tribunal is satisfied that the attorney, QBF, has the express authority under the enduring power of attorney to confer a benefit on SYD for his reasonable living expenses. The proposed loan of up to $1 million is reasonable in the circumstances, considering EZG’s financial situation, the long-standing relationship between EZG and SYD, and the security and terms of the loan. Any minor defect in the form of the power of attorney is not fatal given clear intention. The Tribunal approves the attorney extending the proposed loan to SYD as a reasonable and lawful exercise of power under the Act.

Jurisdiction
Australia
Judgment Date
20 May 2021
Procedural Posture
Advice/approval Under S 38 Powers of Attorney Act / Final Determination
Outcome
Application approved; benefit conferred under s 38 Powers of Attorney Act 2003 (NSW)
Legal Topics
['enduring Power of Attorney' 'conferral of Benefit' "attorney's Duties" 'section 38 Advice or Direction' 'reasonable Living Expenses']
['guardianship Law' 'powers of Attorney'] ['enduring Power of Attorney' 'conferral of Benefit' "attorney's Duties" 'section 38 Advice or Direction' 'reasonable Living Expenses']

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Procedural Posture

Advice/approval Under S 38 Powers of Attorney Act / Final Determination

Legal Issues

  1. 1 ['Whether attorney may confer benefit on third party under enduring power of attorney' 'Whether a loan to a former de facto partner for housing constitutes a reasonable benefit under the Act' 'Whether a loan of up to $1 million to SYD is appropriate under s 38 Powers of Attorney Act 2003 (NSW)']

Ratio Decidendi

The Tribunal is satisfied that the attorney, QBF, has the express authority under the enduring power of attorney to confer a benefit on SYD for his reasonable living expenses. The proposed loan of up to $1 million is reasonable in the circumstances, considering EZG’s financial situation, the long-standing relationship between EZG and SYD, and the security and terms of the loan. Any minor defect in the form of the power of attorney is not fatal given clear intention. The Tribunal approves the attorney extending the proposed loan to SYD as a reasonable and lawful exercise of power under the Act.

Court Disposition

Application approved; benefit conferred under s 38 Powers of Attorney Act 2003 (NSW)

Orders

  • ['The Tribunal approves the attorney of EZG, namely QBF, conferring a benefit on SYD, in the form of a loan of up to $1m, on terms as outlined in the affidavit of QBF of 12 April 2021.' 'Grant liberty to the parties to apply, for clarification of Order 1, as required.']