Bergmann v DAW

[2010] QCA 143

SUPREME COURT OF QUEENSLAND

CITATION:

Bergmann v DAW [2010] QCA 143

PARTIES:

REGINE BERGMANN
(plaintiff/appellant)
v
DAW
(defendant/respondent)

FILE NO/S:

Appeal No 1841 of 2010
DC No 196 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

11 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2010

JUDGES:

McMurdo P, Holmes and Muir JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed with costs

CATCHWORDS:

MENTAL HEALTH – GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – Guardian and Administration Tribunal made an interim order under s 12 Guardianship and Administration Act 2000 (Qld) appointing an administrator in respect of respondent’s financial matters – respondent entered contract for sale of land while interim order in place – whether appointment of administrator deprived respondent of power to do acts within the ambit of administrator’s power – whether contract void

Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 12, s 33, s 34, s 147, Sch 1

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15, cited
David by Her Tutor the Protective Commissioner v David (1993) 30 NSWLR 417, cited
Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32; [1991] HCA 7, cited
Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17, approved
R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12, cited
Re JNRD and the Protected Estates Act (1992) 28 NSWLR 728, cited
Re Marshall [1920] 1 Ch 284, approved
Re Walker [1905] 1 Ch 160, cited
Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177; [1969] HCA 28, cited

COUNSEL:

M A Jonsson for the appellant
A W Collins for the respondent

SOLICITORS:

Miller Harris Lawyers for the appellant
Mellick Smith & Associates for the respondent

1.   McMURDO P:This appeal concerns the construction of the Guardianship and Administration Act 2000 (Qld) (the Act). The question is whether the appointment of an administrator under s 12 of the Act for an adult who in fact retains capacity, deprives the adult of power to do acts within the administrator's power during the period of the appointment. The appellant contends it does not; the respondent contends it does. Muir JA has set out relevant facts, issues and legislation. I will not repeat or add to these unnecessarily. I agree with Muir JA's reasons for dismissing the appeal, but wish to add some further observations.

1. The facts of this case were unusual. It was conceded at first instance that, although subject to a s 12 order, the respondent in fact did have capacity to enter into the contract of sale of his property at Palm Cove, near Cairns, which is at the heart of this dispute. It was also conceded that, but for the s…