ByLawyers News and Updates

QLD conveyancing – Priority notices

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From 1 January 2018 priority notices will replace settlement notices.

Settlement notices will not be accepted at the titles Registry after 4.30 pm on 22 December 2017. If lodgement is anticipated after this date prepare a priority notice. Priority notices may be signed prior to 1 January 2018.

The publication has been updated to include precedents and commentary on priority notices.

Family Law – Reference Manual – 101 Family Law Answers

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The Reference Manual – 101 Family Law Answers is the first of the By Lawyers reference manuals to be updated to the new stylish format.

As well as the new format, two commentaries have been added in the Enforcement chapter.

Court enforcement of a child support debt: A child support debt, a debt occasioned due to non payment of a registered maintenance liability, is a debt to the Commonwealth, as opposed to the payer, and is recoverable by action taken by the Child Support Registrar: s 113; or by the payee: s 113A. …

Property orders – Enforcement and the overseas factor: Unlike parenting orders, the Family Law Act, Rules or Regulation make no provision for the registration of property orders in overseas jurisdictions, or the registration and enforcement of overseas property orders in Australia. Furthermore, Australia is not party to any international conventions which provide for the reciprocal recognition of property orders overseas. …

 

Foreign resident capital gains withholding clearance certificates

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Clearance certificates will not be issued during the ATO’s Christmas closure – 22/12/17 to 2/1/18.

Family Law – The Harman Undertaking – Information obtained on discovery or subpoena

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Commentary has been added to the Children and Property Settlement publications regarding the Harman undertaking:

Information obtained on discovery, subpoena or included within an affidavit cannot be used for a collateral or ulterior purpose unrelated to the proceedings in which that production occurs. This is called an implied or ‘Harman’ undertaking after Harman v Secretary of State for the Home Department [1983] 1 AC 280. It is a substantive legal obligation owed to the party who produces the documents and to the court: Hearne v Street [2008] HCA 36 (6 August 2008) at [107]-[108].

Family Law – Binding Child Support Agreements

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The Children’s commentary has been enhanced by adding further information regarding the binding nature of Binding Child Support Agreements and the discretion the Court may exercise to set an agreement aside. The Full Court of the Family Court decision in Masters & Cheyne [2016] FamCAFC 255 (2 December 2016) looks at what changes may be sufficient to enliven the Court’s discretion, and they are extremely limited. The Court’s view is that binding agreements are meant to be binding and possible changes in parental arrangements should be considered before executing the agreement.

By Lawyers Obiter mailing list

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Hello

Obiter has been redesigned to better deliver news about our publications in line with changes to legislation, practice and procedure.

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Power of attorney

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

Property lawyers often come across a Power of Attorney in practice and understanding the obligations of an Attorney is important.

The ability of a person (the donor) to delegate power to another (the attorney) has been recognised by the law for centuries. A common law form of Power of Attorney would be in the form of a deed and would recite the appointment by the donor of the attorney and confer power on the attorney. Traditionally such documents would run for many pages and would enumerate extensive powers that the attorney was authorised to exercise on behalf of the donor. Alternatively, the document could be limited in scope, authorising the attorney to exercise specific powers for a specific purpose.

The significance of the power conferred on the attorney was recognised as a reason for government supervision and a system of registration of powers was established. But the cost of this supervisory role was deemed excessive and the registration of powers ceased in the late 20th. century, although a limited registration process is available at the Land Titles Office for ‘heavy users’. The wheel turns in such matters and there are presently calls for law reform to again invoke a registration process.

The form of a power of attorney was governed by the Instruments Act 1958 until the Powers of Attorney Act 2014. This Act sets out in detail the requirements relating to the creation, use and revocation of powers of attorney and recognises various types of powers, the most important of which is the Enduring Power of Attorney. This is so as the common law took the view that the attorney loses power if the donor loses legal capacity and, given the importance of powers for the management of the affairs of the elderly who are susceptible to losing capacity, such a restriction undermines the effectiveness of the power. The Act therefore perpetuates the Enduring power beyond loss of capacity of the donor.

FIDUCIARY DUTY

Perhaps the most important aspect of a power of attorney is the fiduciary duty owed by the attorney to the donor. This is a common law concept and is not mentioned in the Act, although the Act does have a prohibition on the attorney entering into any transaction that may create a conflict between the interests of the donor and the interests of the attorney (s 64) and specifically prohibits the attorney from using the position to make a profit (s 63). These are the two fundamental elements of the common law fiduciary duty and to that extent the Act confirms that duty.

A recent case that considered a breach of the common law duty is Ash v Ash [2017] VSC 577. The donor appointed his daughter (who was a solicitor) as attorney in 2012. By 2014 the donor had lost capacity and the attorney made a number of transfers of the donor’s assets, including superannuation, that resulted in the donor’s assets being substantially diminished. These transfers were to entities associated with the attorney and the attorney directly benefited from these transactions.

The attorney sought to explain the transactions as flowing from previous instructions given by the donor and as a result of the attorney using her ‘signing authority’ at the donor’s bank but the court dismissed these suggestions as a ‘fiction’ and to accept that argument would be to ‘undermine the protective role inherent in the appointment of an attorney’.

The court did not suggest that an attorney can never enter into a transaction creating conflict between the interests of the donor and the attorney and recognised that ‘fully informed consent’ of the donor would justify an attorney entering into such a ‘conflict’ transaction, however the attorney failed to discharge the onus of proving that such consent had been given by the donor.

The donor was represented by a VCAT appointed administrator who successfully sought judgment against the attorney for all losses suffered as a result of the attorney’s breach of fiduciary duty and also judgment against entities associated with the attorney who had been ‘knowing assistants’ in this breach.

Had these actions taken place after 2015 the attorney may well have also been charged under s 135(3) Power of Attorney Act with committing an offence of using a power of attorney to gain financial advantage for the attorney or another person, with a possible penalty of 5 years imprisonment.

Tip Box

•Powers of Attorney create fiduciary obligations that the attorney must honour

•These obligations include a duty to avoid conflicts of interest

•Criminal penalties may apply to breach of these obligations

•Whilst written for Victoria this article has interest and relevance for practitioners in all states

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