BMD -v- KWD [2008] WASC 196

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 196
Case No:	GDA:6/2008	Heard:	20 AUGUST 2008
Coram:	McKECHNIE J	Delivered:	12/09/08
No of pages:	14	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
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Parties:	BMD KWD PUBLIC TRUSTEE JID
Catchwords:	Guardianship and administration Appointment of trustee Review of trustee's decision Whether failed to take into account relevant considerations Courts and judge Leave to appeal Prima facie case
Legislation:	Nil
Case References:	BMD and KWD [2008] WASAT 127 In re Hastings-Bass (dec) [1974] 2 All ER 193 Jaques v Public Trustee of Queensland [2008] QSC 108 Karger v Paul [1984] VR 161 Martin v Office of the Public Advocate (Unreported, WASC, Library No 990150, 26 March 1999) Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513 Re Whitehouse [1982] Qd R 196 Sinclair v Moss [2006] VSC 130

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BMD -v- KWD [2008] WASC 196 CORAM : McKECHNIE J HEARD : 20 AUGUST 2008 DELIVERED : 12 SEPTEMBER 2008 FILE NO/S : GDA 6 of 2008 BETWEEN : BMD

Appellant

AND

KWD

First Respondent

PUBLIC TRUSTEE

Second Respondent

JID

Third Respondent

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : MR M ALLEN (SENIOR MEMBER)

MR J MANSVELD (MEMBER)

DR E LEIPOLDT (SENIOR SESSIONAL MEMBER)

Citation : BMD and KWD [2008] WASAT 127

File No : GAA 1377 of 2007, GAA 2105 of 2007

(Page 2)

Catchwords:

Guardianship and administration - Appointment of trustee - Review of trustee's decision - Whether failed to take into account relevant considerations - Courts and judge - Leave to appeal - Prima facie case

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant : Mr M E Herron

First Respondent : No appearance

Second Respondent : No appearance

Third Respondent : No appearance

Solicitors:

Appellant : Gibson & Gibson

First Respondent : No appearance

Second Respondent : No appearance

Third Respondent : No appearance

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

BMD and KWD [2008] WASAT 127
In re Hastings-Bass (dec) [1974] 2 All ER 193
Jaques v Public Trustee of Queensland [2008] QSC 108
Karger v Paul [1984] VR 161
Martin v Office of the Public Advocate (Unreported, WASC, Library No 990150, 26 March 1999)
Mettoy Pension Trustees Ltd v Evans [1991] 2 All ER 513
Re Whitehouse [1982] Qd R 196
Sinclair v Moss [2006] VSC 130

(Page 3)

McKECHNIE J

Background to the application

1 This is an application for leave to appeal. KWD is an elderly man, now 84. For 20 years, he lived on a de facto basis with JID. In November 2006, the relationship was experiencing difficulties and the parties separated. However, they reconciled and in January 2007 they married. Each of them had adult children from previous relationships.

2 In 1995, KWD bought land known as the Peel Manor House in Karnup. The buildings were for…

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 v KWD

Details

AGLC: BMD v KWD [2008] WASC 196
Case: [2008] WASC 196
Decision Date: 12 SEPTEMBER 2008

CaseChat Overview and Summary

In the case of BMD v KWD, the dispute involved the appointment and actions of a trustee in relation to a guardianship and administration matter. The case was heard by the Supreme Court of Victoria, which was called upon to review the decisions made by the trustee, KWD. The primary concern was whether the trustee had failed to consider relevant factors in their decision-making process, impacting the interests of the ward, BMD. The court was tasked with determining whether the trustee's actions warranted a review and whether there was a prima facie case for the appointment of a new trustee.

The legal issues before the court centred on the duty and responsibility of the trustee in a guardianship and administration context. Specifically, the court had to assess whether the trustee had adequately fulfilled their obligations by considering all relevant factors when making decisions on behalf of the ward. The case also involved the interpretation of the relevant statutory provisions and case law that govern the duties of trustees in such matters. Additionally, the court considered whether the applicant had established a prima facie case for the appointment of a new trustee, which would entitle them to leave to appeal.

The court found that the trustee had not failed to take into account relevant considerations in making decisions on behalf of the ward. The evidence presented did not support the contention that the trustee had acted improperly or failed to adhere to their statutory obligations. The court determined that the trustee had acted within their authority and had considered the relevant factors in the best interests of the ward. Consequently, the court refused the application for leave to appeal, finding that the applicant had not established a prima facie case for the appointment of a new trustee. The decision underscored the importance of trustees adhering to their duties and the high threshold required for judicial intervention in such matters.

Orders

Orders of the court

Leave to appeal refused

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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