BXE - [2015] QCAT 253

CITATION:

BXE [2015] QCAT 253

PARTIES:

BXE

APPLICATION NUMBER:

GAA10302-14

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

HEARD AT:

DECISION OF:

On the papers

Brisbane

Member Joachim

DELIVERED ON:

25 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That BJO pay BD costs of $6,061.49 within 90 days of the date of this order.

CATCHWORDS:

GUARDIANSHIP AND ADMINISTRATION – ENDURING POWERS OF ATTORNEY – COSTS – where applicant seeks detailed information from attorneys about adult’s financial dealings – where attorneys provided some information about financial dealings – where applicant son of adult seeks removal of attorneys because they refuse to supply detailed records – where application is dismissed as attorneys acting appropriately – where one attorney seeks costs – whether case is exceptional

Guardianship and Administration Act 2000 (Qld), s 127
Powers of Attorney Act 1998 (Qld), s 66, s 67, s 73, s 76, s 79, s 85, s 86, s 88, Schedule 1
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

BXE is now 90 years old and lives in a nursing home on the Gold Coast. On 17 May 2006 she appointed her daughters BD and BJA attorneys for financial and personal health matters under an enduring power of attorney.
BXE’s son, BJO lives in the Northern Territory and applied to the Tribunal on 10 November 2014 seeking the appointment of the Public Trustee as an administrator and seeking the revocation of the enduring power of attorney for financial matters.
The basis for the application was that he was concerned the attorneys were not acting in the best interests of his mother.
He had been seeking information from the attorneys through his lawyer regarding his mother’s financial affairs and was dissatisfied with their responses.
The history is briefly set out as follows.
On 9 May 2014 lawyers for BJO, Crilly Lawyers advised the attorneys they were engaged to act for BJO with respect to the enduring power of attorney. Crilly Lawyers advised them that:
Pursuant to their obligations under the enduring powers of attorney they were to keep detailed records of financial dealings undertaken on behalf of their mother and provide evidence of such action should they be requested to do so.
Despite our client’s previous request for such information particularly concerning your mothers finances there has been no response from either of you. Our client is concerned as to the reason why this information is not forthcoming. Accordingly we now request on our client’s behalf records of all financial dealings undertaken pursuant to your mother’s enduring power of attorney to be provided to us.
The attorneys were further advised that QCAT proceedings would commence within 14 days if the documents are not received.
Lawyers for the attorneys Short Punch & Greatorix replied on 28 May 2014 enclosing a range of documents including:

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 BXE

Details

AGLC: BXE [2015] QCAT 253
Case: [2015] QCAT 253
Decision Date: 25 June 2015

CaseChat Overview and Summary

The case of BXE involved an application to the Family Court of Australia seeking detailed information from the attorneys of an adult under an enduring power of attorney. The applicant, the adult's son, aimed to obtain comprehensive records of his mother's financial dealings. The attorneys, however, had provided limited information, leading to the son's application for their removal due to their refusal to supply detailed records. The Family Court was tasked with determining whether the attorneys were acting appropriately and if the application for their removal was justified.

The court examined the nature and scope of the information provided by the attorneys and assessed whether they had acted within their legal obligations. It was crucial to determine whether the attorneys' actions were reasonable and justified under the circumstances. The court also considered the necessity and proportionality of the information requested by the applicant. Ultimately, the court had to decide if the case warranted the removal of the attorneys and whether the applicant's request for costs was appropriate.

The Family Court found that the attorneys had acted appropriately in the limited disclosure of information. The court concluded that the attorneys' actions were reasonable and within their legal rights, and that the applicant's request for detailed financial records was not justified. Consequently, the application for the removal of the attorneys was dismissed. The court also determined that the case did not meet the criteria for being exceptional, and thus denied the request for costs by one of the attorneys. The court ordered that the applicant pay the costs of the proceedings to the attorneys, amounting to $6,061.49, to be paid within 90 days of the date of the order.

Orders

Orders of the court

1. That BJO pay BD costs of $6,061.49 within 90 days of the date of this order.

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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