Urquhart v Lanham [2002] NSWSC 119

Urquhart v Lanham [2002] NSWSC 119

The plaintiffs could not maintain claims, as purported attorneys of the third defendant, to avoid instruments or sue the donor in their own names; such claims had to be brought in the donor's name or by an appropriate challenge to retainer. However, declarations concerning whether their authority remained valid had utility and could stand, and the protected estate application could proceed because s 13 of the Protected Estates Act 1983 did not restrict who might apply and the Queensland residence and asserted location of most assets did not defeat jurisdiction on the material before the Court. The remaining proceedings were not shown to be oppressive.

Jurisdiction
Australia
Judgment Date
05 March 2002
Procedural Posture
Equity Division Proceedings Concerning Enduring Power of Attorney, Trust Property and Protected Estate Relief / Interlocutory Motions by the First and Third Defendants to Strike Out the Amended Statement of Claim
Outcome
Motions allowed in part; portions of the amended statement of claim were struck out, leave to amend was granted, and costs were reserved.
Legal Topics
['power of Attorney' 'locus Standi of Attorney' 'declaration' 'appointment of Manager' 'protected Estates' 'strike Out Application' 'oppression and Abuse of Process' 'jurisdiction Where Alleged Incapable Person Is Outside New South Wales']
['contract' 'agency' 'mental Health' 'civil Procedure' 'equity'] ['power of Attorney' 'locus Standi of Attorney' 'declaration' 'appointment of Manager' 'protected Estates' 'strike Out Application' 'oppression and Abuse of Process' 'jurisdiction Where Alleged Incapable Person Is Outside New South Wales']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Enduring Power of Attorney, Trust Property and Protected Estate Relief / Interlocutory Motions by the First and Third Defendants to Strike Out the Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the plaintiffs, insofar as they sued as attorneys for the third defendant, had locus standi to do so.' 'Whether the declaratory proceedings had sufficient utility.' "Whether the third defendant's residence in Queensland and the location of most of his property there affected the Court's jurisdiction or discretion." 'Whether continuation of the proceedings was oppressive.' "Whether the plaintiffs could proceed in the absence of the third executor of their mother's estate." 'Whether the application to declare the third defendant incapable under s 13 of the Protected Estates Act 1983 should proceed.' 'Whether particular prayers for transfer of the Tugun property and accounts should remain.']

Ratio Decidendi

The plaintiffs could not maintain claims, as purported attorneys of the third defendant, to avoid instruments or sue the donor in their own names; such claims had to be brought in the donor's name or by an appropriate challenge to retainer. However, declarations concerning whether their authority remained valid had utility and could stand, and the protected estate application could proceed because s 13 of the Protected Estates Act 1983 did not restrict who might apply and the Queensland residence and asserted location of most assets did not defeat jurisdiction on the material before the Court. The remaining proceedings were not shown to be oppressive.

Court Disposition

Motions allowed in part; portions of the amended statement of claim were struck out, leave to amend was granted, and costs were reserved.

Orders

  • ['Portions of the statement of claim are to be struck out in accordance with the reasons.' 'The plaintiffs have leave to amend generally within 21 days.' 'The defendants have 21 days thereafter to file their defence.' 'The proceedings remain listed before Bryson J on 8 March in his expedition list for review.'...