AI and GR
[2014] WASAT 150
•5 NOVEMBER 2014
AI and GR [2014] WASAT 150
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 150 | |
| STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) | |||
| Case No: | GAA:302/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J MANSVELD (SENIOR MEMBER) | 5/11/14 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Costs application refused | ||
| B | |||
| PDF Version |
| Parties: | AI GR |
Catchwords: | Enduring power of attorney Application requiring attorneys to produce records of all transactions made under the enduring power of attorney Application dismissed Costs application Starting position is that parties bear their own costs Costs application refused |
Legislation: | Guardianship and Administration Act 1990 (WA), s 107(1)(a), s 107(1)(b), s 109(1)(a), s 109(1)(b) State Administrative Tribunal Act 2004 (WA), s 15, s 87 |
Case References: | EW [2010] WASAT 91 KS [2008] WASAT 29 |
Summary | An elderly man had made an enduring power of attorney in December 2011 appointing two of his children as his attorneys. The man died in August 2012.,The man's children were in dispute about the nature and extent of his estate. One of the children alleged misappropriation of funds from the man's estate by one of the attorneys. She lodged an application with the Tribunal under the Guardianship and Administration Act 1990 (WA) seeking an order requiring the attorneys to produce records of all the transactions that occurred during the term of the enduring power of attorney.,The Tribunal dismissed the application because one of the attorneys had filed records with the Tribunal that satisfactorily explained the transactions. ,Subsequent to the determination of the application in respect to the enduring power of attorney, the attorney sought an order from the Tribunal that the applicant pay her legal fees.,The application in respect to the enduring power of attorney was not one in the view of the Tribunal made outside of those typically made under the Guardianship and Administration Act 1990. That the children of the man were already in dispute about the nature and extent of his estate covering a period outside of the period of operation of the enduring power of attorney, was no barrier to the making of the application with the Tribunal. The Tribunal had been given a general supervisory role in respect to enduring powers of attorney under the Guardianship and Administration Act 1990.,The Tribunal was not satisfied that the application made in respect to the enduring power of attorney was clearly untenable or that the applicant acted so unreasonably that the Tribunal should depart from the ordinary position that parties should bear their own costs. Accordingly, the Tribunal declined to exercise the discretion to award costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) CITATION : AI and GR [2014] WASAT 150 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 5 NOVEMBER 2014 FILE NO/S : GAA 302 of 2014 BETWEEN : AI
- Applicant
AND
GR
Respondent
Catchwords:
Enduring power of attorney Application requiring attorneys to produce records of all transactions made under the enduring power of attorney Application dismissed Costs application Starting position is that parties bear their own costs Costs application refused
Legislation:
Guardianship and Administration Act 1990 (WA), s 107(1)(a), s 107(1)(b), s 109(1)(a), s 109(1)(b)
State Administrative Tribunal Act 2004 (WA), s 15, s 87
Result:
Costs application refused
Summary of Tribunal's decision:
An elderly man had made an enduring power of attorney in December 2011 appointing two of his children as his attorneys. The man died in August 2012.
The man's children were in dispute about the nature and extent of his estate. One of the children alleged misappropriation of funds from the man's estate by one of the attorneys. She lodged an application with the Tribunal under the Guardianship and Administration Act 1990 (WA) seeking an order requiring the attorneys to produce records of all the transactions that occurred during the term of the enduring power of attorney.
The Tribunal dismissed the application because one of the attorneys had filed records with the Tribunal that satisfactorily explained the transactions.
Subsequent to the determination of the application in respect to the enduring power of attorney, the attorney sought an order from the Tribunal that the applicant pay her legal fees.
The application in respect to the enduring power of attorney was not one in the view of the Tribunal made outside of those typically made under the Guardianship and Administration Act 1990. That the children of the man were already in dispute about the nature and extent of his estate covering a period outside of the period of operation of the enduring power of attorney, was no barrier to the making of the application with the Tribunal. The Tribunal had been given a general supervisory role in respect to enduring powers of attorney under the Guardianship and Administration Act 1990.
The Tribunal was not satisfied that the application made in respect to the enduring power of attorney was clearly untenable or that the applicant acted so unreasonably that the Tribunal should depart from the ordinary position that parties should bear their own costs. Accordingly, the Tribunal declined to exercise the discretion to award costs.
Category: B
Representation:
Counsel:
Applicant : Mr N Draper
Respondent : Mr P Marsh
Solicitors:
Applicant : Granich Partners
Respondent : Waterside Legal
Case(s) referred to in decision(s):
EW [2010] WASAT 91
KS [2008] WASAT 29
The application
1 This is an application for costs made under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Background
2 An application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act) had been made by GR. In that application GR sought an order of the Tribunal requiring the joint and several attorneys of an enduring power of attorney executed by the late CI (the deceased) on 21 December 2011, to file with the Tribunal and serve on GR a copy of all the records and accounts kept by the attorneys of dealings and transactions made by them in connection with the power.
3 The appointed attorneys were AI and CD. GR, AI and CD are children of the deceased. The deceased died on 10 August 2012.
4 The period for which the records were sought was therefore 21 December 2011 to 10 August 2012 despite GR seeking an order requiring the attorneys to file records for a two or three year period prior to the death of the deceased.
5 In the application under s 109(1)(a) of the GA Act, GR alleged improper dealings by CD on the estate of the deceased, the outcome of which she contended had significantly reduced her (and other beneficiaries) share of the deceased's estate.
6 AI was the appointed executor of the will of the deceased. Probate was granted on 15 November 2013.
7 The Tribunal, through direction orders and a directions hearing including requiring the parties to file a Statement of Issues, Facts and Contentions (SIFC), programmed the application to a final hearing on 7 May 2014.
8 Both GR and AI were legally represented at the hearing.
9 The application under s 109(1)(a) of the GA Act was dismissed and brief oral reasons were given at the hearing.
10 A costs application was foreshadowed by AI and subsequently made. GR made a submission in response.
11 The costs application by AI states that she had incurred $9,240.00 in legal fees although it appears that some of the fees relate to a period prior to the making of the application under s 109(1)(a) of the GA Act.
12 As I have decided to dismiss the application for costs, the quantum of costs incurred by AI is not relevant and does not need to be further considered.
Introduction
13 The Tribunal has been given a general supervisory jurisdiction in respect of enduring powers of attorney (KS [2008] WASAT 29 (KS) at [26]). This is the case in respect of applications made under s 109(1)(a) and s 109(1)(b) of the GA Act even if the donor of the enduring power of attorney has died (KS at [34 37] or whether the donor retained legal capacity at relevant times prior to his death (KS at [46 49].
14 Any order made under s 109(1)(a) of the GA Act can only require the relevant accounting and does not have any other remedial effect (KS at [35]).
15 An attorney must exercise his powers with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure (s 107(1)(a) of the GA Act).
16 An attorney is required to keep and preserve accurate records and accounts of all dealings and transactions made under the power of an enduring power of attorney (s 107(1)(b) of the GA Act).
17 It is clear from the material before the Tribunal that the application under s 109(1)(a) of the GA Act was part of an ongoing dispute between the children of the deceased in respect to the ultimate distribution of his estate.
18 Around the time of making the application under s 109(1)(a) of the GA Act on 23 January 2014, a number of communications occurred which are relevant to this costs decision. They were:
• On 17 September 2013, AI sent GR copies of the deceased's bank statements for the period 2 August 2012 to 26 August 2013 (GR: SIFC:18).
• On 1 November 2013, AI sent GR a copy of the Probate Application (AI: SIFC: Attachment A1 4).
• On 23 January 2014 in a letter to GR, AI disclosed the existence of the enduring power of attorney and stated that the deceased's bank accounts had been conducted only under his instructions during the period of the enduring power of attorney. AI stated she was prepared to forward to GR the deceased's bank statements from the date of the execution of the enduring power of attorney and that she would make available for inspection 'all of the bank and financial information she has of the deceased'. AI enclosed a copy the deceased's Assets and Liabilities Statement filed with the Supreme Court of Western Australia (AI: SIFC: Attachment AI 5).
• On 28 January 2014 in a letter to AI, GR, in addition to seeking information on what the executor was then doing in respect of the deceased's estate, requested a copy of the enduring power of attorney and stated that as she would require time to consider the contents of any financial information and seek advice, that the inspection offered by AI was not appropriate. GR also stated that she had evidence that CD was 'taking money from the deceased's account before December 2011'. GR proposed that if AI forwarded to the office of her legal representative all bank and financial information for the period of two years prior to the deceased's date of death, then the application before the Tribunal would be deferred (GR:SIFC: Attachment GR9).
19 On 11 April 2014, AI filed with the Tribunal what she described in her SIFC as 'Attached marked "AI 6" is a copy of the records of accounts in relation to the Power of Attorney' (the records)
20 The records comprised for the period 21 December 2011 to 10 August 2012, a 'Trial Balance (Cash)'; a 'Transaction Listing' setting out the income received by the deceased and the dates of receipt and a 'Transaction Listing' setting out the individual payments; and cash withdrawals from the deceased's bank account. The supporting documents included the bank statements for the period and copies of various accounts.
Costs under s 87 of the SAT Act
21 Section 87(1) of the SAT Act makes clear that the starting position in the Tribunal is that parties bear their own costs in proceedings. However, s 87(2) of the SAT Act gives the Tribunal discretion to award costs against a party.
22 The relevant principles on how this discretion might be exercised are set out in the Guide to Proceedings in the Western Australian State Administrative Tribunal (Lawbook Co Thomson Reuters, 2012) by DR Parry and B De Villiers at pages 190 193. The indication is that costs will only be awarded in 'special circumstances' (page 190) although s 87 does not identify the factors to be taken into account in the exercise of the Tribunal's discretion under s 87(2).
23 The applicable general principles in relation to costs can be summarised as follows:
If a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful …
Thus the Tribunal's discretion to award costs extends to ordering the payment of costs incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings. Considering the primary position of the Tribunal as a no costs jurisdiction, it is not sufficient merely to identify that a party may have conducted itself in a different manner and thereby reduced costs incurred; it will usually be necessary to show that the conduct of the party was unreasonable and unfairly caused the increased costs (Medical Board of Western Australia and Aung Tin Kyi [2009] WASAT 22 at [73-74] (Kyi)).
Decision
24 It was determined in the context of the decision that the application under s 109(1)(a) of the GA Act be dismissed, that GR had a proper interest in making the application. She was a daughter of the deceased and a beneficiary of his estate. I was satisfied that her interest was not frivolous, vexatious or prurient: EW [2010] WASAT 91 at [28].
25 The communication between GR and AI as detailed above demonstrates that at the time the application under s 109(1)(a) of the GA Act was initially before the Tribunal, GR had little or no information about the transactions that occurred in the period of the enduring power of attorney, that being from 21 December 2011, the date of execution of the instrument, to 10 August 2012, the date of the deceased's death.
26 GR had made an allegation of misappropriation of funds from the deceased's estate, and given the Tribunal's general supervisory role in respect to enduring powers of attorney, it was not unreasonable in the first instance to make an application for records to be produced.
27 The filing of the records by AI largely but not fully pre-empted an order under s 109(1)(a) of the GA Act. There remained a contested matter at the hearing on 7 May 2014 which was the destination of the cash withdrawals for the period of the enduring power of attorney totalling $15,000.
28 I dismissed the application under s 109(1)(a) of the GA Act because I was satisfied the records provided a sufficient explanation of the transactions undertaken in the period of the enduring power of attorney. It was unlikely that any other records, if available, would shed any additional light on the matter.
29 The application by GR under s 109(1)(a) of the GA Act was not one in my view made outside of those typically made under that provision. That the children of the deceased were already in general dispute about the nature and extent of his estate covering a period outside of the period of operation of the enduring power of attorney, was no barrier to the making of the s 109(1)(a) application. As already stated the Tribunal has been given a general supervisory role in respect to enduring powers of attorney.
30 I am not satisfied that the application made by GR was clearly untenable or that she acted so unreasonably that I should depart from the ordinary position that parties should bear their own costs. Accordingly, I decline to exercise the discretion to award costs.
31 In doing so I should also say for completeness that AI's reference in her submission to s 87(4) of the SAT Act is not relevant in this case as the matters raised in that section apply only in the Tribunal's review jurisdiction. The application for an order under s 109(1)(a) of the GA Act comes within the Tribunal's original jurisdiction (s 15 of the SAT Act).
Orders
The Tribunal therefore orders:
1. The application made by AI that the costs incurred in the Guardianship and Administration Act 1990 (WA) proceedings be paid by GR is refused.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER
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