Angelina Spina v Permanent Custodians Limited

[2008] NSWSC 561

Supreme Court of NSW

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Interrogate

Catchwords

1. Contract
2. › Agency
3. › Power of attorney
4. › General power of attorney in prescribed statutory form
5. › Scope of authority conferred
6. › Whether authority limited to transactions for benefit of donor
7. › Whether authority excludes transactions solely or predominantly for benefit of donee
8. › Conveyancing Act 1919 (NSW), s 163B, Sch 7
1. Statutory Interpretation
2. › Construction of statutory provision defining scope of power
3. › Meaning of 'on behalf of' and 'attorney' in s 163B(1)
4. › Use of extrinsic materials including law reform reports and second reading speeches
5. › Whether fiduciary obligations can be used to construe scope of statutory authority
6. › Conveyancing Act 1919 (NSW), s 163B
7. › Interpretation Act 1987 (NSW), ss 33, 34
1. Equity
2. › Unconscionable conduct
3. › Loan and mortgage transactions
4. › Whether lender engaged in unconscionable conduct
5. › Requirements for relief
6. › Special disadvantage
7. › Knowledge of disadvantage
8. › Unconscientious taking of advantage
9. › Effect of interposition of independent legal advice
1. Consumer Law
2. › Contracts Review Act 1980 (NSW)
3. › Unjust contracts
4. › Loan and mortgage
5. › Whether contract unjust in circumstances at time it was made
6. › Matters to be considered under s 9
7. › Discretion under s 7(1)
8. › Public interest
9. › Contracts Review Act 1980 (NSW), ss 4(1), 7(1), 9

Quick Take

A general power of attorney in the form of Schedule 7 to the Conveyancing Act 1919 (NSW), where clause 2 is included and no conditions or limitations are specified, confers authority on the attorney to enter into transactions solely or predominantly for the attorney's benefit. The words 'on behalf of' and 'attorney' in s 163B(1) connote a representative relationship and do not limit the authority to transactions for the benefit of the donor. Third parties dealing with an attorney under such a power are not required to inquire whether the transaction benefits the donor. The contrary construction adopted by Austin J in Spina v Conran Associates [2008] NSWSC 326 was held to be wrong.