NKU [2022] NSWCATGD 1

NKU [2022] NSWCATGD 1

CJE had standing to seek advice or directions as attorney under the enduring power of attorney. The enduring power of attorney appeared valid, had not been revoked, was in operation, and conferred authority broad enough for CJE to enter the Agency Agreement and sale contract and deal with the proceeds. The evidence showed the Agent was centrally involved in the sale to Transport for NSW and that all relevant events occurred during the Exclusive Agency Period, so the Property was sold by the Agent for the purposes of clause 5(i)(a) of the Agency Agreement; alternatively, it was sold by the Principal for the purposes of clause 5(i)(c). The contention that the sale was a compulsory...

Jurisdiction
Australia
Judgment Date
17 May 2022
Procedural Posture
Review of an Enduring Power of Attorney / Hearing and Decision on Application for Advice or Directions Under S 38 of the Powers of Attorney Act 2003 (nsw)
Outcome
The Tribunal approved CJE's proposals to pay the Estate Agent's commission and marketing expenses, legal costs and disbursements for the application, and Dr Z's invoice from NKU's estate; CJE was allowed to be represented by Greg Dunstan, solicitor.
Legal Topics
['review of Enduring Power of Attorney' 'advice or Directions to Attorney' "sale of Principal's Property" 'estate Agent Commission' 'compulsory Acquisition' "payment of Legal Costs and Disbursements From Principal's Estate"]
['guardianship' 'powers of Attorney' 'property Law'] ['review of Enduring Power of Attorney' 'advice or Directions to Attorney' "sale of Principal's Property" 'estate Agent Commission' 'compulsory Acquisition' "payment of Legal Costs and Disbursements From Principal's Estate"]

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Procedural Posture

Review of an Enduring Power of Attorney / Hearing and Decision on Application for Advice or Directions Under S 38 of the Powers of Attorney Act 2003 (nsw)

Legal Issues

  1. 1 ['Whether CJE had standing as attorney to seek review of the enduring power of attorney and advice or directions from the Tribunal.' "Whether the Estate Agent was entitled to commission under the Agency Agreement for the sale of NKU's property to Transport for NSW." "Whether the sale to Transport for NSW was a compulsory acquisition which affected the Estate Agent's entitlement to commission." "Whether CJE should be approved to pay the agent's commission, marketing expenses, legal costs, disbursements, and Dr Z's invoice from NKU's estate."]

Ratio Decidendi

CJE had standing to seek advice or directions as attorney under the enduring power of attorney. The enduring power of attorney appeared valid, had not been revoked, was in operation, and conferred authority broad enough for CJE to enter the Agency Agreement and sale contract and deal with the proceeds. The evidence showed the Agent was centrally involved in the sale to Transport for NSW and that all relevant events occurred during the Exclusive Agency Period, so the Property was sold by the Agent for the purposes of clause 5(i)(a) of the Agency Agreement; alternatively, it was sold by the Principal for the purposes of clause 5(i)(c). The contention that the sale was a compulsory...

Court Disposition

The Tribunal approved CJE's proposals to pay the Estate Agent's commission and marketing expenses, legal costs and disbursements for the application, and Dr Z's invoice from NKU's estate; CJE was allowed to be represented by Greg Dunstan, solicitor.

Orders

  • ["The proposals of the attorney to pay agent's GST inclusive commission and marketing expenses totalling $129,624 to the Estate Agent, in accordance with that company's invoice dated 14 January 2022, concerning the sale of NKU's property, are approved." "The proposals of the attorney to pay out of NKU's estate legal...