Campbell, Re [1997] QSC 35

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the pirector, State Reporting Bureau.) . SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 59 of 1996 IN THE MATTER OF THE PROPERTY LAW ACT 1974 and IN THE MATTER OF THE LAND TITLE ACT 1994 and IN THE MATTER OF THE ESTATE OF CHARLES GEORGE CAMPBELL and IN THE MATTER OF APPLICATIONS FOR ORDERS BY THE PUBLIC TRUSTEE OF QUEENSLAND ROCKHAMPTON .. DATE 07/02/97 JUDGMENT This judgment is to be copied fo'r the purpose of research and private SLJy I, only. It is not to be resold or USt;~d for republication in any other \ivay "fvithout t ! oonnission. j' r i L..-____________~-.- •. - ... -- 1 ra -- 1 of 6 -- 1070297 KHW (Demack J) HIS HONOUR: This is an application by the Public Trustee of Queensland for orders that: 1 . The Enduring Power of Attorney dated the 7th day of February 1996 whereby Charles George Campbell appointed his 0aughters Antoinette 2. Margaret Camilleri and Sharyn Anne Tolson jointly to be his attorneys, be revoked. The Registrar be directed to register a transfer of Certificate of Title 30430193 from the names of Antoinette Margaret Camilleri, Sharyn Anne Tolson and Gayle Rosemary Miller as tenants in common to the name of Charles George Campbell as registered owner. The material placed before me shows the following sequence of events: 7 February 1996, Mr Campbell executed a last will and testament in favour of his three daughters, Antoinette Margaret Camilleri, Sharyn Anne Tolson and Gayle Rosemarie Millillo. 7 February 1996, Mr Campbell executed an enduring power of attorney in accordance with form 16A under the Property Law Act 1974. He appointed his daughters, Antoinette Margaret Camilleri and Sharyn Anne Tolson as his attorneys. He authorised his attorneys to do any act on his behalf that he may lawfully authorise an attorney to do. JUDGMENT 2 10 20 30 50 60 -- 2 of 6 -- 1070297 KHW (Demack J) The form also contained a notice to the attorneys that: "2. You should not enter into transactions for the donor which may involve a conflict between your interests and those of the donor unless the transaction is explicitly authorised by the donor in this document. For example, if it is necessary to sell· some of the donor's property it may be a breach of the obligation to sell it to your own relative." 10 15 February 1996, Mr Campbell wrote a letter to Antoinette Margaret Camilleri which included, "When I am mentally incapable I want my three girls, Sharyn, Gayle, Antoinette, to have my house, 64 John street, Yeppoon." 16 February 1996, Mr Campbell wrote a letter to Gayle Rosemary Miller which contained the following: "P.S. I have given Gayle, Sharyn, Antoinette my house at 64 John street, Yeppoon as they are my loving daughters. Gayle, take this to a solicitor as I give you three girls my house. II 8 May 1996, a psychiatrist certified that Mr Campbell was mentally ill and incapable of managing his estate, pursuant to the provisions of section 55 of the Mental Health Services Act 1974. 13 May 1996, the Public Trustee received a copy of the notice about Mr Campbell's incapacity. 30 April 1996 and 3 May 1996, the two attorneys executed a transfer of the property at 64 John Street from Mr Campbell to his three daughters. 26 June 1996, the transfer was lodged and registered. JUDGMENT 3 20 30 40 50 60 -- 3 of 6 -- 1070297 KHW (Demack J) In this application, the Public Trustee submits that the attorneys were in breach of section 175E(1)(a) of the Property Law Act in transferring Mr Campbell's property to themselves. That section reads: "Without affecting any other obligation imposed by law in exercising powers under an enduring power of attorney the donee must not, unless the power of attorney expressly authorises it, enter into a transaction if the donee's interests and duty in relation to the transaction could conflict with the donor's interests and duty in relation to the transaction. II Section 175E(1) also requires the donee to keep the donee's property and money separate from the donor's. It was submitted on behalf of the attorneys that they were carrying out Mr Campbell's wishes as expressed in the letters of 15 and 16 February. It was accepted on behalf of the attorneys that those letters constituted an incomplete gift of Mr Campbell's property, so that equity would not assist to complete that gift. It is not necessary to refer to the authorities which are well established in this area except to note that the first of the High Court decisions is Anning v. Anning (1907) 4 C.L.R., 1,049. However, it was ~ubmitted on behalf of the attorneys that what Mr Campbell had not done they were able to.do under the enduring power of attorney. It seems to me that this is not so. The amendments to the JUDGMENT 4 10 20 30 50 60 -- 4 of 6 -- 1070297 KHW (Demack J) Property Law Act which introduced division 2 of Part 9 relating to enduring powers of attorney established the right in a person to give to another a power of attorney that was not revoked by the donor's subsequent legal incapacity. At common law, a power of attorney came to an end if the donor came to lack legal capacity. The provisions of division 2 of Part 9 follow the introduction of legislation in England which has been copied in one form or another in all Qf the states in Australia. This, then, is a power which is the creature of statute and consequently its exercise is determined by that statute. The words of section 175E(l )(a) are clear. What the attorneys have attempted to do here is to act in a way which is in conflict with the donor's interests because they have transferred his property out of his hands into their own. Such a transfer cannot be sustained because it is beyond the powers that the attorneys have. In the circumstances, it seems to me that the matter should pass fully into the control of the Public Trustee. The material placed before me shows that there is conflict within the family, and in those circumstances the power of attorney given to Antoinette Margaret Camilleri and Sharyn Anne Tolson should be revoked and the Registrar should be directed to transfer the property back to Mr Campbell. JUDGMENT 5 10 20 30 40 50 60 -- 5 of 6 -- 1070297 KHW (Demack J) Th~ Public Trustee also ~ought an order for costs and in the circumstances it seems to me that order should- be made. There will be in orders in terms of the summons. JUDGMENT 6 10 20 30 50 60 -- 6 of 6 --