AG - [2025] WASAT 57 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   AG [2025] WASAT 57
MEMBER:   MS F CHILD, MEMBER
HEARD:   5 MARCH, 1 APRIL AND 7 MAY 2025
DELIVERED          :   7 MAY 2025
PUBLISHED           :   17 JUNE 2025
FILE NO/S:   GAA 832 of 2025

AG
Represented Person

Catchwords:

Guardianship and administration - Represented person with acquired brain injury and cognitive communication disorder - Whether in need of an administrator of his estate - Revoked enduring power of attorney not revived by subsequent revocation of previous administration order - Suitability for appointment as administrator - Legislative requirements for the appointment of trustee company as administrator - Wishes of the represented person as gathered from past actions - Remuneration of the administrator

Legislation:

Corporations Act 2001 (Cth)
Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 44, s 44(1)(b), s 64(1), s 68, s 68(1), s 68(2), s 68(2)(a), s 68(2)(b), s 68(3), s 68(3)(a), s 68(3)(b), s 68(3)(c), s 80, s 117, s 117(2), s 117(3)
State Administrative (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
Trustees Companies (Commonwealth Regulation) Amendment Act 2011 (WA)
Trustees Companies Act 1987 (WA)

Result:

Administrator appointed
Remuneration authorised

Category: B

Representation:

Counsel:

Represented Person

In Person - via video link

Solicitors:

Represented Person

N/A

Case(s) referred to in decision(s):

FY [2019] WASAT 118
Gray v Richards [2014] HCA 40
Re E [1993] 12 SR (WA) 7246
SAL and JGL [2016] WASAT 63

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These are the reasons for decisions made on an application brought under the Guardianship and Administration Act 1990 (WA) (GA Act) in respect of AG.
AG is a 42 year old man who has a diagnosis of an acquired brain injury. At the time of the hearings before the Tribunal he had been a hospital patient for approximately 12 months.

Application and procedural history

The application seeking the appointment of a guardian and an administrator of AG's estate was filed on 14 February 2025 by a social worker from the rehabilitation hospital where AG is a patient.
The application states that AG lacks capacity to make financial and personal decisions due to an acquired brain injury following multi bilateral brain abscesses and the interventions required to treat them. The application was brought for the purposes of discharge planning from hospital and for clarity as to who has authority to make decisions about personal matters for him.
The application was first heard on 5 March 2025 and attended by AG and his housemate and long-term friend, A, by video link from hospital,[1] members of the treating team; Dr C, rehabilitation physician, Dr M, neuropsychologist, Ms F, the applicant's social worker also by video link. Ms SC a representative of Perpetual Trustees Company Limited, a trustee company (Perpetual) attended by telephone and an investigator from the Public Advocate's office (investigator) attended in person.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AG

Details

AGLC: AG [2025] WASAT 57
Case: [2025] WASAT 57
Decision Date: 17 JUNE 2025

CaseChat Overview and Summary

The case before the court involves AG, a represented person with an acquired brain injury and cognitive communication disorder. The dispute concerns the appointment of an administrator for AG's estate and the suitability of a trustee company, Perpetual, for this role. The court also considered the remuneration to be paid to the administrator. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the revocation of a previous administration order could revive a revoked enduring power of attorney, the suitability of Perpetual for appointment as administrator, and the legislative requirements for the appointment of a trustee company as an administrator. The court also considered the wishes of AG, as gathered from past actions, and the remuneration of the administrator. The court examined sections 117(2) and 117(3) of the Guardianship and Administration Act 2000 (NSW) in determining whether an administrator, other than the Public Trustee, could receive remuneration.

The court found that the revocation of the previous administration order did not revive the revoked enduring power of attorney. The court considered the choice of Perpetual as the administrator to be entirely reasonable, given the circumstances of the case. The court also found that AG's estate was of a size and complexity that supported the remuneration of the administrator. The court referred to the methodology used in Gray v Richards (2014) HCA 40 to calculate the fees to be charged by Perpetual, based on the total portfolio value. The court concluded that Perpetual was entitled to the remuneration as set out in their letter dated 9 April 2025.

The court ordered that Perpetual be appointed as the administrator of AG's estate and that the remuneration to be paid to Perpetual be in accordance with the figures set out in their letter dated 9 April 2025. The court also found that the wishes of AG, as gathered from past actions, should be considered in the administration of the estate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Provisions relating to the remuneration of an administrator are found in s 117 of the GA Act. 117.Remuneration (1)The State Administrative Tribunal may fix remuneration or a rate of remuneration and order that the same be paid to an administrator out of the estate of the represented person if the Tribunal considers that, because of the size or complexity of the estate or both, remuneration should be paid to the administrator.(2)A guardian, and except as provided in subsection (1) an administrator, shall not receive remuneration for services rendered to the represented person.(3)Nothing in this section — (a)prevents the Public Trustee from receiving remuneration under the Public Trustee Act 1941; or(b)limits the operation of section 16 of this Act or section 39, 87 or 88 of the State Administrative Tribunal Act 2004.(4)Subject to subsection (3)(a), a corporate trustee shall only be entitled to commission in respect of the capital of the estate of a represented person to the extent that the State Administrative Tribunal expressly allows. As can be seen from s 117(2) and s 117(3) of the GA Act an administrator (other than the Public Trustee) may not receive remuneration unless the Tribunal is satisfied that the size or complexity of the estate warrants remuneration and the Tribunal authorises it. The remuneration or the rate of remuneration set by the Tribunal is the remuneration the administrator is entitled to charge. Perpetual filed a consent to appointment and a letter dated 9 April 2025 setting out an estimate of all fees to be charged based on the total portfolio value.[25] … calculated figures for the present-day value of the total funds management fees for [AG] based on a total portfolio value of $1,518,201.For these calculations, we have assumed that our client will have a remaining life expectancy of 28 years and that the discount factor is 6% …[25] Submission dated 9 April 2025 folio 11. The letter goes onto say:The calculations follow the methodology used in Gray v Richards (2014) HCA 40[26] and assume that the capital sum is consumed over the life expectancy period[.][26] It is not clear to me the immediate relevance of the case cited to the present one since as I understand it that case considered whether in the assessment of damages for personal injuries compensation, the cost of funds management made necessary because the injured person was rendered incapable of managing their own affairs was compensable. I am satisfied that AG's estate is of a size and of some complexity which supports remuneration of the administrator.[27] Whether or not the trustee company should be appointed was not before the Court as that had been determined at first instance and the choice of the trustee company (over the NSW Trustee) was found to be 'entirely reasonable'. This finding was not challenged either in the Court of Appeal or the High Court. Gray v Richards [2014] HCA 40 at [25]: 'This appeal, therefore, has proceeded on the unchallenged assumptions that a manager other than the NSW Trustee should have been appointed to manage the appellant's damages, and the amount to be allowed for the fund management component of the appellant's damages should be by reference to the fees charged by that manager. There is, therefore, no occasion to consider the validity of either of those assumptions in this case or more generally' at [25].