BS (No 3)
[2011] QCAT 734
•14 September 2011
| CITATION: | BS (No 3) [2011] QCAT 734 |
| PARTIES: | BS |
| APPLICATION NUMBER: | GAA7264-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ron Joachim, Member Graham Quinlivan, Member |
| DELIVERED ON: | 14 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | That the Public Trustee of Queensland pay BS $3,248.00 compensation pursuant to section 59 of the Guardianship and Administration Act 2000. |
CATCHWORDS: | Administration – compensation against The Public Trustee of Queensland as administrator Guardianship and Administration Act 2000, s 59 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
On 6 July 2011, the Tribunal made an order that the Public Trustee of Queensland pay compensation to BS. This order was made because the Tribunal found that the Public Trustee as BS’s administrator had not acted with reasonable diligence.
The Tribunal in its order of 6 July 2011 asked the Public Trustee and the applicant for the compensation order, BL, BS’s brother, to provide written submissions by 5 August 2011 regarding the amount of compensation. In its order, the Tribunal listed the various items about which the submissions were to be made. Both parties provided submissions.
These reasons should be read in conjunction with the reasons for decision made on 6 July 2011.
What did BL say?
BL provided documents to display the true replacement value of items to establish BS’s home, apart from 40 CDs and DVDs which he estimated to be between $8 and $15 per title.
BL’s approach was to go online to Super A-mart, the Good Guys, Hardware Delivered, and Kmart and search for items in “shopping cart” modality for most items. In respect of the mulcher he went online to ebay to find a price and to bikesales.com.au for a price on the 1997 Honda XR250R.
Apart from the CDs and DVDs, bike and the mulcher, BL’s prices are all for brand new items. Unfortunately BL has not provided an all up amount and has left it to the Tribunal to calculate.
The various items listed in the Tribunal order are shown below along with the value proposed by BL.
Lounge suite $ 799.00
Washing machine $ 774.00
XR250 motorbike $2,500.00
Chainsaw $ 279.00
Evaporative air cool $ 42.50
Grinders $ 131.75
Drills $ 106.92
Mulcher $ 145.00
CDs and DVDs $ 320.00[1]
Crockery and cutlery $ 98.00
Kitchen tables and chairs $ 499.95
Microwave $ 207.00
CD stacker No price given
3 wardrobes $ 809.85
Dressing table $ 699.95
Exercise bike $ 190.00
Treadmill $ 699.00
Sound system $ 470.00
Coffee table $ 399.95
Lamps $ 89.85
TOTAL $9,261.72[1] Based on 40 @ $8 each.
The Tribunal has calculated BL’s claim to be for $9,261.72.
What did the Public Trustee say?
The Public Trustee used his in-house property department to arrive at the compensation amount for the various items on the basis of its expertise in property disposal.
The Public Trustee’s auctioneer was asked to determine a value using available photographs as an aid.
The Public Trustee’s submission sets out 3 prices for each item, low, median and high. The median price was selected and a total of $898.00 was arrived at. The table in the Public Trustee’s submission is reproduced below.
Low Median High
Lounge suite $ 50.00 $ 75.00 $ 100.00
Washing machine $ 5.00 $102.50 $ 200.00
XR250 motorbike $ 50.00 $275.00 $ 500.00
Chainsaw $ 5.00 $ 52.50 $ 100.00
Evaporative air cooler $ 0.00 $ 10.00 $ 20.00
Tool box $ 0.00 $ 10.00 $ 20.00
Grinders $ 0.00 $ 10.00 $ 20.00
Drills $ 0.00 $ 10.00 $ 20.00
Mulcher $ 0.00 $ 10.00 $ 20.00
CDs and DVDs $ 1.00 $ 15.50 $ 30.00
Crockery and cutlery $ 0.00 $ 10.00 $ 20.00
Kitchen tables and chairs $ 0.00 $100.00 $ 200.00
Microwave $ 0.00 $ 10.00 $ 20.00
CD stacker $ 10.00 $ 30.00 $ 50.00
3 wardrobes $ 0.00 $ 7.50 $ 15.00
Dressing table $ 0.00 $ 5.00 $ 10.00
Exercise bike $ 30.00 $ 40.00 $ 50.00
Treadmill $ 5.00 $102.50 $ 200.00
Sound system $ 10.00 $ 10.00 $ 10.00
Coffee table $ 0.00 $ 7.50 $ 15.00
Lamps $ 0.00 $ 5.00 $ 10.00
TOTAL $166.00 $898.00 $1,630.00
The Public Trustee concedes that the method of calculation of value cannot be precise and some subjectivity was necessary.
The Public Trustee further submitted that the following items would have been disposed of because they failed to attract a bid and should not have been included in the Tribunal’s list of missing items:
i.Evaporative air cooler;
ii.Tool box;
iii.Grinders;
iv.Drills;
v.Mulcher;
vi.Lamps;
vii.Dressing table;
viii.Cutlery and crockery.
The Public Trustee argued that 3 items in the list are not missing as they are visible in photographs before the Tribunal. These are a dressing table, sound system and lamps. The Public Trustee says the sound system was sold at auction for $10.00 in July 2010.
The Public Trustee advised that the XR250 motor cycle was never included as part of the adult’s assets, legal ownership is unknown and submit it should not be included in the order.
As a result of these exclusions the Public Trustee has concluded that the total amount of compensation should be $535.50.
The Tribunal’s view
In its reasons for the 6 July 2011 decision about compensation, the Tribunal stated at paragraph 143 as follows:
“The Tribunal has no information before it as to the age, brand and condition of the property. The amount of the compensation should reflect the value of the items at December 2009.”
In relation to the requested submissions as to quantum the Tribunal at paragraph 144 stated, that “the submissions should articulate the basis on which the estimate is arrived at and any assumptions made.”
Whilst BL submitted he wanted compensation for “as new” items, this was clearly not in the Tribunal’s contemplation. If BL read paragraph 143, he has chosen to ignore it or forgotten it. In any case the Tribunal does not accept any of his pricing in respect of those items which are for new products.
In these circumstances the Tribunal must accept the Public Trustee’s submissions about median prices, apart from where there is some objective evidence such as about the bike and the mulcher.
The Public Trustee has argued that because the motor cycle never appeared on the adult’s assets register with the Public Trustee, its ownership is unknown.
There were many items that the Public Trustee has acknowledged BS owned that did not appear on his assets list. They appear in submissions from the Public Trustee, tendered photographs and the list of auctioned items.
In December 2009 Ms Ghannoum was emailed a list of missing items which included the XR250 motorbike. None of these items found their way on to BS’s statement of assets and liabilities dated 10/03/10.
The Tribunal also notes that the Public Trustee’s property inspector has sworn he was unable to complete his inventory in July 2009.
Mr Turner, the original applicant in this matter advised the Tribunal that BS’s former defacto had denied access to one of the double garages at the property on the day the inventory was to be completed.
At the hearing on 28 March 2011, BL told the Tribunal of the missing bike.
In all of these circumstances the Tribunal accepts that BS owned the XR250 bike and it went missing.
As far as the bike is concerned, the Tribunal is inclined to accept the value placed on it by BL as evidenced by the various listings on bikesales.com.au. The Tribunal accepts that the price on the web is a more objective reflection of price than the Public Trustee’s estimate. The consistent value of $2,500 proposed by BL is accepted.
With respect to the mulcher the Tribunal notes that a used one was advertised on ebay for $145.00. Again the Tribunal will accept this on the basis of greater objectivity. Whilst these items, especially the bike, may have been worth more in 2009, the Tribunal will accept the current value.
The Tribunal now turns to the Public Trustee's submissions as to why various items should not be included in the compensable items. These items are an evaporative air cooler, tool box, grinders, drills, mulcher, lamps, dressing table, cutlery and crockery.
The Public Trustee argues, on the advice of the auctioneer, that “whilst they do not appear on the list of items sold at auction, they would have subsequently been disposed of, having failed to attract a bid”.
These items appear on an incomplete inventory taken on 2/7/09. This is titled “Inventories collections of items for auction, disposal, delivery, or storage”. This was analysed at the hearing on 28 March 2011 by the Official Solicitor and these items were marked by her by an x whilst a number of others were marked as being sold, disposed of or having gone to family members or BB, the former de facto.
The Public Trustee has not provided documentary evidence from the auctioneer about this disposal. Consequently the Tribunal will count these items as compensable items. It will take the Public Trustee’s median price for each item. The sum for these items is $70.
The Tribunal now turns to the 3 items the Public Trustee says are not missing ie dressing table, sound system and lamps.
The Tribunal accepts the sound system was sold at auction. A review of the photos of items remaining at the property reveals 1 lamp and no dressing table. The Tribunal does not accept the Public Trustee's submissions regarding the lamp and the dressing table and will award BS $10 for these items as per the Public Trustee's median amount.
The Tribunal’s determination as to compensation for each of the missing items is as follows:
Lounge suite $ 75.00
Washing machine $ 102.50
XR250 motorbike $2,500.00
Chainsaw $ 52.50
Evaporative air cooler $ 10.00
Tool box $ 10.00
Grinders $ 10.00
Drills $ 10.00
Mulcher $ 145.00
CDs and DVDs $ 15.50
Crockery and cutlery $ 10.00
Kitchen tables and chairs $ 100.00
Microwave $ 10.00
CD stacker $ 30.00
3 wardrobes $ 7.50
Dressing table $ 5.00
Exercise bike $ 40.00
Treadmill $ 102.50
Sound system $ 0.00
Coffee table $ 7.50
Lamps $ 5.00
TOTAL $3,248.00
The Tribunal orders the Public Trustee of Queensland to pay BS $3,248.00 as compensation pursuant to section 59 of the Guardianship and Administration Act 2000.
0
0
1