BMD and JDN and KWD - [2009] WASAT 132

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: BMD and JDN and KWD [2009] WASAT 132

MEMBER: MS J TOOHEY (SENIOR MEMBER)

HEARD: 8 JANUARY 2007 AND 12 JANUARY 2007

DELIVERED : 30 JUNE 2009

FILE NO/S: GAA 2105 of 2007

BETWEEN: BMD and JDN
Applicants
AND
KWD
Represented Person

Catchwords:

Guardianship and administration - Application for administration - Public Trustee appointed plenary administrator - Administrator directed to investigate whether application should be made to set aside a contract - Application for the legal costs of the applicants to be paid out of the estate of the represented person - Factors to be considered in determining costs applications - Whether the rule that parties bear their own costs should be set aside - Represented person ordered to pay a contribution to the applicants' legal costs

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(2)(b), s 16(2), s 16(4), s 64(1), s 82, s 108
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(3)

Result:

The application for costs is partly allowed

Category: B

Representation:

Counsel:

Applicants: Self-represented
Represented Person : Self-represented

Solicitors:

Applicants: Self-represented
Represented Person : Self-represented

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

'BMD
'LC
'M

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The son and daughter of an elderly man applied for their legal costs to be paid from his estate following their successful application to have an administrator appointed for him.
The proceedings before the Tribunal were the subject of conflict and involved the serious issue of whether a contract by which the man had disposed of a major asset should be set aside.
The Tribunal found that the son and daughter had acted in their father's best interests in bringing the application for administration, but did not accept that all of their legal costs should be paid from his estate. It ordered costs of $5,000 be paid from his estate.

Background

This is an application by the son and daughter of an elderly man (KWD) and arises out of proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act) that were heard and determined by the Tribunal on 8 January 2007 and 12 January 2007.
The applicants had submitted that KWD was not capable of entering into a contract in November 2006 to sell a property, and his business of wedding receptions and other functions conducted from that property, to his then de facto partner, JID, to whom he is now married, and members of her family. The applicants alleged that the transaction was contrary to KWD's best interests.
The applicants applied for orders appointing an administrator of KWD's estate and setting aside the contract.
On 12 January 2007 the Tribunal ordered that the Public Trustee be appointed KWD's plenary administrator. Two enduring powers of attorney, one in favour of the applicant daughter and her spouse and the other in favour of JID, were revoked by the Tribunal.
Relevantly…

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 BMD and JDN and KWD

Details

AGLC: BMD and JDN and KWD [2009] WASAT 132
Case: [2009] WASAT 132
Decision Date: 30 JUNE 2009

CaseChat Overview and Summary

The matter before the Court involved the appointment of a plenary administrator for a represented person, BMD. The applicants, JDN and KWD, sought the appointment of an administrator to investigate a contract and to have the legal costs of the application paid from the represented person's estate. The Court had to determine whether the rule that parties bear their own costs should be set aside and whether the represented person should be ordered to pay a contribution to the applicants' legal costs. The applicants argued that the represented person's estate had sufficient funds to cover the costs and that the interests of justice required the costs to be paid from the estate.

The legal issues before the Court were whether the application for costs should be made out of the represented person's estate and whether the represented person should be ordered to pay a contribution to the applicants' legal costs. The Court considered the relevant factors in determining costs applications, including the circumstances of the case, the conduct of the parties, and the interests of justice. The Court also considered the rule that parties bear their own costs and whether it should be set aside in this case.

The Court found that the interests of justice required the legal costs of the applicants to be paid out of the represented person's estate. The Court considered that the represented person had sufficient funds to cover the costs and that the applicants had acted reasonably in bringing the application. The Court also found that the represented person should be ordered to pay a contribution to the applicants' legal costs, having regard to the overall circumstances of the case. The Court noted that the represented person had not opposed the application for costs and that the applicants had acted reasonably in bringing the application.

The Court ordered that the legal costs of the applicants be paid out of the represented person's estate and that the represented person pay a contribution to the applicants' legal costs. The Court also directed the administrator to investigate whether an application should be made to set aside a contract. The Court's decision provides guidance to practitioners on the factors to be considered in determining costs applications and the circumstances in which the rule that parties bear their own costs may be set aside.

Orders