ZUZ v ZVA [2022] NSWCATAP 79

ZUZ v ZVA [2022] NSWCATAP 79

The Appeal Panel held that any incorrect assumption about s 66G of the Conveyancing Act 1919 (NSW) was not material because the Tribunal's primary reason for declining to leave the Attorney in control was her continued legal ownership of an asset rightly forming part of ZVA's estate and the resulting conflict. The allegations of actual and apprehended bias were not supported by the transcript or reasons. The challenged factual findings were open on the evidence: the Attorney deliberately placed funds beyond creditors, acquired legal ownership of the movable dwelling using ZVA and his wife's money, thereby obtaining a benefit and creating a conflict, and refused to contemplate transfer of...

Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Internal Appeal From Guardianship Division Decision Reviewing the Operation and Effect of an Enduring Power of Attorney and Making a Financial Management Order / Appeal Panel; Leave to Appeal Sought on Non Law Grounds and Appeal on Questions of Law
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['review of Enduring Power of Attorney' 'financial Management Order' "attorney's Fiduciary Duties" 'conflict of Interest' 'benefit Conferred on Attorney' 'procedural Fairness and Bias' 'leave to Appeal' 'section 66 G Conveyancing Act 1919 (nsw)' 'fresh Evidence on Appeal']
['guardianship and Administration' 'powers of Attorney' 'administrative Law' 'equity and Fiduciary Duties' 'property Law'] ['review of Enduring Power of Attorney' 'financial Management Order' "attorney's Fiduciary Duties" 'conflict of Interest' 'benefit Conferred on Attorney' 'procedural Fairness and Bias' 'leave to Appeal' 'section 66 G Conveyancing Act 1919 (nsw)' 'fresh Evidence on Appeal']

Case Brief

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Procedural Posture

Internal Appeal From Guardianship Division Decision Reviewing the Operation and Effect of an Enduring Power of Attorney and Making a Financial Management Order / Appeal Panel; Leave to Appeal Sought on Non Law Grounds and Appeal on Questions of Law

Legal Issues

  1. 1 ["Whether the Tribunal misapplied s 66G of the Conveyancing Act 1919 (NSW) by stating that whoever represented ZVA's interests would need to agree to sale of the movable dwelling." "Whether the Attorney was denied procedural fairness because the Tribunal members were actually or apprehendedly biased in favour of ZVA's wife." 'Whether leave to appeal should be granted on factual grounds concerning findings that the Attorney hid assets from creditors, acquired a benefit and created a conflict of interest, and unreasonably refused to transfer the movable dwelling.' "Whether the Tribunal's finding that the Attorney breached fiduciary duties should be allowed to stand."]

Ratio Decidendi

The Appeal Panel held that any incorrect assumption about s 66G of the Conveyancing Act 1919 (NSW) was not material because the Tribunal's primary reason for declining to leave the Attorney in control was her continued legal ownership of an asset rightly forming part of ZVA's estate and the resulting conflict. The allegations of actual and apprehended bias were not supported by the transcript or reasons. The challenged factual findings were open on the evidence: the Attorney deliberately placed funds beyond creditors, acquired legal ownership of the movable dwelling using ZVA and his wife's money, thereby obtaining a benefit and creating a conflict, and refused to contemplate transfer of...

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.']