BSJ

Case [2022] QCAT 51

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

BSJ [2022] QCAT 51

PARTIES:

In an application about matters concerning BSJ

APPLICATION NO/S:

GAA6102-20

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

6 January 2022

HEARING DATE:

9 September 2021

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick

ORDERS:

THE ORDERS OF THE TRIBUNAL ARE:

1.     Declare that the transfer made by BSJ to ML of Lot 4 and Lot 5 on Registered Plan 19623 on 20 September 2018 was induced by the undue influence of ML.

2.     Declare that BSJ lacked capacity to make the decision to transfer to ML Lot 4 and Lot 5 on Registered Plan 19623 on 20 September 2018.

THE TRIBUNAL DIRECTS THAT:

1.     The applicant BM file in the Tribunal two (2) copies and give to ML, BSJ and HM one (1) copy of submissions in relation to this Tribunal’s jurisdiction to make a Declaration as to a constructive trust and to order the transfer of Lot 4 and Lot 5 on Registered Plan 19623 to BSJ, the form of any such order, or any alternative order, by: 4:00pm on 20 January 2022.

2.     ML, BSJ and HM file in the Tribunal two (2) copies and give to the applicant BM one (1) copy of any submissions in reply, including any alternative form of order, by: 4:00pm on 3 February 2022.

3.     The parties must advise the Tribunal in writing if they require an oral hearing in relation to the question of jurisdiction and the form of any order by 4:00pm on 3 February 2022, otherwise the issues will be determined on the papers not before 3 February 2022.

CATCHWORDS:

EQUITY – UNDUE INFLUENCE AND DURESS – PRESUMPTION FROM RELATIONSHIP OF PARTIES – IN GENERAL – where elderly adult transferred his most substantial asset to his daughter – where daughter appointed attorney – whether presumption of undue influence rebutted – whether sufficient independent legal advice – status of granny flat agreement – declaration transfer as a result of undue influence

GUARDIANS, COMMITTEE, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – where presumption of capacity rebutted – where lack of appreciation of effect of decision to gift property – where decision to gift property affected by undue influence – declaration lack of capacity to make gift

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – interpretation of Powers of Attorney Act 1998 (Qld) – declaration property transferred by undue influence – interpretation of Guardianship and Administration Act 2000 (Qld) – declaration about capacity – whether Tribunal exercising judicial power or administrative power – whether declarations compatible with the adult’s human rights – right to recognition as a person before the law – property right – privacy right – right to fair hearing

Guardianship and Administration Act 2000 (Qld), s 5, s 87, s 109A, s 110, s 118(1)(b), s 130, s 146, s 147, Schedule 4

Human Rights Act 2019 (Qld), s 4(b), s 4(f), s 5(2), s 8, s 10, s 13, s 15(1), s 24(1), s…

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AGLC
BSJ [2022] QCAT 51
Case
[2022] QCAT 51
Decision Date

CaseChat Overview and Summary

In the case between BSJ and ML, the primary dispute revolves around whether the transfer of property by BSJ to ML was induced by undue influence. The matter was heard in a relevant Australian court, where the court had to determine whether the presumption of undue influence was rebutted and whether BSJ had the capacity to make the decision to gift the property. The court was also required to consider the implications of the Human Rights Act 2004 (HRA) and the Guardianship and Administration Act 2000 (GAA) on the decision-making process.

The legal issues before the court included determining whether the transfer of property was influenced by undue influence and if BSJ had the capacity to make the decision. The court had to consider the factors that could have influenced BSJ's decision, including the lack of independent legal advice, the improvidence of the gift, and the relationship between BSJ and ML. The court also needed to assess whether the statutory obligations under the POA and HRA impacted the Tribunal's decision-making process.

The court concluded that the transfer of property was indeed induced by undue influence by ML, as BSJ did not rebut the presumption of undue influence. The court found that the independent advice BSJ received did not adequately protect his interests, and the transfer was improvident. Additionally, the court held that BSJ's age, infirmity, and dependence on ML, along with the secrecy surrounding the transaction, supported the finding of undue influence. The court also found that BSJ did not have the capacity to understand the effect of the transaction due to the lack of independent legal advice and the lack of any enforceable rights to accommodation and long-term care.

In summary, the court declared that the transfer of the property was induced by undue influence by ML. The court further found that BSJ did not have the capacity to understand the effect of the transaction, and the Tribunal could not reasonably have made a different decision due to statutory provisions. The court's decision was based on the evidence presented and the applicable legal frameworks.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is also the case that because of the statutory imperative in section 87 of the POA, 58(2) of the HRA is engaged with the result that the obligations on a public entity such as the Tribunal, set out in s 58(1) do not apply if the Tribunal could not reasonably have acted differently or made a different decision because of a statutory provision.Conclusion For all these reasons, I conclude that a Declaration that the transfer of the Property was induced by ML’s undue influence, based on a finding ML has not rebutted the presumption of undue influence in the circumstances, is compatible with BSJ’s human rights. I also conclude that by virtue of s 58(2) of the HRA the Tribunal could not reasonably have made a different decision because of the terms of s 87 of the POA. Also for these reasons, I consider that within the terms of the GAA, the Tribunal could not make a less restrictive order. I am not satisfied[75]that ML has rebutted the presumption of undue influence, because in summary:(a)the independent advice received by BSJ did not protect his interests;(b)the transfer of the Property was improvident, yet ML being an attorney for BSJ did not put his interests first, including by ensuring a legally enforceable agreement was reached which protected his need for accommodation and long term care;(c)the granny flat agreement offers BSJ no enforceable rights to accommodation and long term care;(d)BSJ’s age, infirmity and dependence on ML for care and support, along with the relationship of trust between attorney and principal, means that the gift of his Property to ML was not the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee; and(e)the gift was attended by secrecy and attempted cover up by ML consistent with undue influence.[75]Briginshaw v Briginshaw (1938) 60 CLR 336, 362. I declare that transfer of the Property by BSJ to ML was induced by undue influence by ML. BM bears the onus of establishing that BSJ lacked capacity to transfer the Property on September 2018. Many of the findings I have made in relation to the question of whether the presumption of undue influence has been rebutted are also relevant to the question of capacity to make the decision to gift the Property to ML. By reference to the first limb of the definition of capacity in the GAA – understanding the nature and effect of decisions about the matter – I find that BSJ may have understood the nature of the transaction he entered into, however, because of the improvidence of the gift made; the lack of sufficient independent legal advice and the lack of any certain right to live in the Property, I am not satisfied that he understood the effect of the transaction. Also relevant to an understanding of the effect of the decision was BSJ’s apparent misunderstanding of the claims each of his children might have on his estate. Ms Severin’s evidence is that BSJ told her that in effect, he wished to prefer ML because he had given financial assistance to both HM and BM during his lifetime.

Ratio Decidendi

Legal Principle Established

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