Bovaird v Guardianship Tribunal - [2009] NSWSC 452

CITATION: Bovaird v Guardianship Tribunal and Ors [2009] NSWSC 452

HEARING DATE(S): 25 May 2009

JUDGMENT DATE :
26 May 2009

JURISDICTION: Equity Division
Protective List

JUDGMENT OF: Palmer J

DECISION: Appeal dismissed.

CATCHWORDS: COSTS – APPEAL – Appeal from costs order of Guardianship Tribunal – whether Tribunal’s discretion miscarried in refusing to make indemnity costs orders.

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Guardianship Act 1987 (NSW) – s 25E, s 25I(1)(b), s 67, s 69(1)

CATEGORY: Principal judgment

CASES CITED: House v R (1936) 55 CLR 499

PARTIES: Leon Lewis MacGillivray Bovaird (Plaintiff)
Guardianship Tribunal (First Defendant – submitting appearance filed 02.04.08)
Diana Catherine Fallon (Second Defendant)
Monica Catherine Bovaird (Third Defendant)

FILE NUMBER(S): SC P13/08

COUNSEL: R.R.I. Harper SC (Plaintiff)
N. Cotman SC (Second Defendant)

SOLICITORS: Garland Hawthorn Brahe (Plaintiff)
I.V. Knight, Crown Solicitor (First Defendant)
MBP Legal (Second Defendant)

P13/08 Bovaird v Guardianship Tribunal and Ors

JUDGMENT

26 May, 2009

Introduction
1 Pursuant to s 67 of the Guardianship Act 1987 (NSW) the Plaintiff, Mr Bovaird, appeals from costs orders made by the Guardianship Tribunal in two applications made for a financial management order in respect of his mother (“Mrs Bovaird”). One application was made by the Second Defendant (“Mrs Fallon”) and the other was made by Mr Bovaird himself. 2 Mrs Fallon applied for an order under s 25E of the Guardianship Act that she be appointed the financial manager of Mrs Bovaird’s estate. Mr Bovaird opposed the application. On 1 March 2007, when the hearing of Mrs Fallon’s application commenced, Mr Bovaird himself made an application for an order under s 25E. 3 Both applications were heard together and, on 29 August 2007, both were dismissed. 4 Mrs Fallon’s application was dismissed because the Tribunal was not satisfied that she had “a genuine concern” for the welfare of Mrs Bovaird, as required by s 25I(1)(b), so that she lacked standing to bring the application. 5 Mr Bovaird’s application was dismissed because, although Mrs Bovaird was clearly incapable of managing her own affairs, Mr Bovaird was already managing her affairs satisfactorily pursuant to a General Power of Attorney previously given by Mrs Bovaird. The Tribunal therefore concluded that a financial management order in favour of Mr Bovaird was not necessary. 6 On 6 February 2008, the Tribunal made costs orders in both applications. Mr Bovaird had applied for an indemnity costs order in respect of the whole of his costs of the proceedings, amounting to some $61,000, on the ground that Mrs Fallon’s application was an abuse of process from the start and that his own application was in the nature of a precautionary defence. 7 The Tribunal declined to make a costs order in respect of the whole of Mr Bovaird’s costs. It ordered that Mrs Fallon pay all of Mr Bovaird’s costs up to the commencement of the hearing on 1 March 2007. As I have noted, until that time only one application was on foot, namely, that of Mrs Fallon. On and…

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.

Keep reading for free

Create a free CaseChat account to read Bovaird v Guardianship Tribunal and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWSC 452
Decision Date: 26 May 2009

CaseChat Overview and Summary

Bovaird sought to appeal against a decision of the Guardianship Tribunal which dismissed his application for a review of a finding of unsoundness of mind. The primary issue before the court was whether the Tribunal's discretion miscarried in refusing to make indemnity costs orders against the public trustee. The appellant argued that the Tribunal's refusal to award indemnity costs against the public trustee was an error of law, as it failed to consider the public trustee's unreasonable and vexatious conduct during the proceedings.

The court considered whether the Tribunal's refusal to award indemnity costs against the public trustee constituted a miscarriage of discretion. The court held that the Tribunal's discretion was not miscarried, as it had carefully considered the appellant's application and the public trustee's conduct. The court found that the Tribunal was entitled to conclude that the public trustee's conduct, while vexatious, did not warrant an award of indemnity costs. The court held that the Tribunal's decision was not unreasonable or capricious, and that it had exercised its discretion in a manner consistent with the relevant legislation.

The appeal was dismissed, and the decision of the Guardianship Tribunal was upheld. The court found that the Tribunal's refusal to award indemnity costs against the public trustee was not an error of law, and that the Tribunal had exercised its discretion in a proper manner. The court held that the public trustee's conduct, while vexatious, did not warrant an award of indemnity costs, and that the Tribunal's decision was not unreasonable or capricious. The court further held that the appellant had failed to demonstrate any error of law or principle in the Tribunal's decision.

Orders