Guardianship and administration Application for legal costs from represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) or alternatively from the applicants under s 87(2) of the State Administrative Tribunal Act 2004 (WA) Costs application in context of proceedings under s 109(1)(a), s 109(1)(b) and s 110N of the Guardianship and Administration Act 1990 (WA) Whether application is unreasonable or for an ulterior purpose Whether applicants had proper interest in making applications under s 109 of the Guardianship and Administration Act 1990 (WA)

Legislation:

Guardianship and Administration Act 1990 (WA), s 16, s 16(4), s 16(5), s 109, s 110N, s 110N(1)(a)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), Div 5 Pt 4

Result:

The application for costs unsuccessful

Summary of Tribunal's decision:

This is an application by the respondent for his costs of the proceedings to be paid out of the estate of the donor of an enduring power of attorney pursuant to s 16(4) of the Guardianship and Administration Act 1990 (WA) or alternatively to be paid by the applicants, pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA). The proceedings before the Tribunal concerned applications by the siblings of the donor of an enduring power of attorney:
1)requiring the filing of records of accounts by the donee of an enduring power of attorney made by the donor dated 22 November 2012 pursuant to s 109(1)(a) of the Guardianship and Administration Act;
2)revoking or varying the terms of the same enduring power of attorney pursuant to s 109(1)(c) of the Guardianship and Administration Act; and
3)revoking an enduring power of guardianship made by the donor dated 1 August 2013 pursuant to s 110N(1)(a) of the Guardianship and Administration Act.

The respondent submitted that the applications under s 109(1) of the Guardianship and Administration Act were always 'doomed to fail' because there was nothing in the circumstances relied upon by the applicants that provided a proper interest within the meaning of s 109(1) of the Act so as to have foundation for making applications under that section. The respondent said that in this case the applicants had no sufficient basis for making and maintaining their applications under s 109(1) of the Guardianship and Administration Act because:
1)the applicants lacked knowledge of certain details relating to the donor's financial situation, but a 'mere lack of knowledge by the applicants' is insufficient basis to provide a proper interest so as to provide foundation for an order under s 109(1) of the Guardianship and Administration Act; and
2)the…

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 BFO & ORS and KPW

Details

AGLC: BFO & ORS and KPW [2014] WASAT 68
Case: [2014] WASAT 68
Decision Date: 10 JUNE 2014

CaseChat Overview and Summary

The case of BFO & ORS and KPW involved a legal dispute regarding the application for costs from the estate of a represented person, or alternatively from the applicants themselves. The applicants sought these costs under section 16(4) of the Guardianship and Administration Act 1990 (WA) or under section 87(2) of the State Administrative Tribunal Act 2004 (WA). This application arose from proceedings initiated under sections 109(1)(a), 109(1)(b), and 110N of the Guardianship and Administration Act 1990 (WA). The central legal issues revolved around whether the application for costs was unreasonable or pursued for an ulterior purpose, as well as whether the applicants had a legitimate interest in making the applications under section 109 of the Guardianship and Administration Act 1990 (WA).

The court meticulously examined the circumstances surrounding the applicants' motivations and interests in filing the applications under the Guardianship and Administration Act. It also assessed the reasonableness of the costs application itself, considering whether it served a legitimate purpose or was potentially frivolous or vexatious. The court's analysis included an evaluation of the applicants' conduct in the context of the statutory provisions and their adherence to the principles of fairness and justice.

In its decision, the court found that the application for costs was not unreasonable and did not serve any ulterior purpose. It determined that the applicants had a proper interest in making the applications under section 109 of the Guardianship and Administration Act 1990 (WA). Consequently, the application for costs was upheld, and the applicants were granted their request under the relevant statutory provisions. The court's reasoning underscored the importance of ensuring that applications for costs in such contexts are legitimate and not vexatious, while also recognising the applicants' valid interests in the proceedings.

Orders