BMD and KWD [2008] WASAT 127

Link to Appeal :

[2008] WASC 196

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 127
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1377/2007	Heard:	13 & 14 DECEMBER 2007
Coram:	MR M ALLEN (SENIOR MEMBER) MR J MANSVELD (MEMBER) DR E LEIPOLDT (SENIOR SESSIONAL MEMBER)	Delivered:	4/06/08
No of pages:	30	Judgment Part:	1 of 1
Result:	Administration order varied
Category:	B
PDF Version

Parties:	BMD KWD PUBLIC TRUSTEE JID
Catchwords:	Guardianship and administration Review of administration requiring administrator of elderly man to investigate circumstances of a transaction entered into by him and to decide whether an application should be made to have the transaction set aside Decision by administrator not to make such an application Family members of represented person seeking to have administrator removed so that an application to set aside the transaction could be made Consideration of Tribunal's jurisdiction on such a review Finding that represented person remained a person for whom an administration order could be made Review of factors relevant to issue of whether application to set aside transaction should be made Finding that administrator's decision was reasonable and that it would not be in the best interests of the represented person for an application to be made Administration order varied to take account of represented person's current needs
Legislation:	Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 13(b), s 13(d), s 64, s 64(1), s 68, s70(1), s 70(2), s 82, Pt 7, s 84, s 86, s 87, s 90, s 90(1) Family Law Act 1975 (WA)
Case References:	Jacques v Public Trustee of Qld [2008] QSC 108 Re Whitehouse [1982] Qd R 196 Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : BMD and KWD [2008] WASAT 127 MEMBER : MR M ALLEN (SENIOR MEMBER)

MR J MANSVELD (MEMBER)

DR E LEIPOLDT (SENIOR SESSIONAL MEMBER)

HEARD : 13 & 14 DECEMBER 2007 DELIVERED : 4 JUNE 2008 FILE NO/S : GAA 1377 of 2007

GAA 2105 of 2007

BETWEEN : BMD

Applicant

AND

KWD

Represented Person

PUBLIC TRUSTEE

Administrator

JID

Interested Party

Catchwords:

Guardianship and administration - Review of administration requiring administrator of elderly man to investigate circumstances of a transaction

(Page 2)

entered into by him and to decide whether an application should be made to have the transaction set aside - Decision by administrator not to make such an application - Family members of represented person seeking to have administrator removed so that an application to set aside the transaction could be made - Consideration of Tribunal's jurisdiction on such a review - Finding that represented person remained a person for whom an administration order could be made - Review of factors relevant to issue of whether application to set aside transaction should be made - Finding that administrator's decision was…

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 KWD

Details

AGLC: BMD and KWD [2008] WASAT 127
Case: [2008] WASAT 127
Decision Date: 4 JUNE 2008

CaseChat Overview and Summary

BMD and KWD were the parties involved in this case, which was heard by the Federal Circuit and Family Court of Australia. The dispute centred on the administration of an elderly man's affairs, where the administrator was required to investigate a transaction and decide whether to apply to have it set aside. Family members of the represented person sought the removal of the administrator to allow an application to be made to set aside the transaction. The legal issues before the court involved the scope of the Tribunal's jurisdiction in reviewing the administration and the factors relevant to determining whether an application to set aside the transaction should proceed.

The court considered the jurisdiction of the Tribunal to review the decision of the administrator and found that the represented person remained someone for whom an administration order could be made. The court then examined the factors relevant to the decision on whether to apply to set aside the transaction. These factors included the represented person's current needs, the potential impact of such an application on his well-being, and the administrator's assessment of the situation. After reviewing these factors, the court determined that the administrator's decision was reasonable and that it would not be in the best interests of the represented person for an application to be made. The court varied the administration order to take account of the represented person's current needs.

The final orders of the court involved varying the administration order to reflect the represented person's current needs and circumstances. This decision ensured that the administration of his affairs continued to be managed in a manner that was in his best interests, while also addressing the concerns raised by the family members regarding the transaction in question.

Orders

Orders of the court

Administration order varied

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

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