CK - [2023] WASAT 84 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   CK [2023] WASAT 84
MEMBER:   DR E MARILLIER, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   14 SEPTEMBER 2023
FILE NO/S:   GAA 2266 of 2023
GAA 2321 of 2023
GAA 3068 of 2023
CK
Represented Person

Catchwords:

Guardianship and Administration - Enduring Power of Attorney - Enduring Power of Guardianship - Conflict of interest - Costs - Exceptional circumstances - Presumption that parties bear own costs

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 16(4), s 64(1), s 65, s 108(1), s 110F, s 110N
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(3)

Result:

Parties to bear own costs

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

Jackson McDonald

Cases referred to in decision(s):

Blaskiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56
GD [2022] WASAT 33
LC and JS [2007] WASAT 127
PJC and RJC [2008] WASAT 224
Re IO; Ex Parte VK [2008] WASAT 8
Re WA and IA Ex parte AA and JA [2011] WASAT 33
RK [2020] WASAT 53 (S)
WD [2022] WASAT 12 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Y and CO [2020] WASAT 166

REASONS FOR DECISION OF THE TRIBUNAL:

Background

CK is an 83-year-old man with two children, daughter V and son P.
CK was formally diagnosed with mixed vascular and Alzheimer's dementia in 2022 in Singapore, after V and her family (with whom CK was living at the time, had become concerned that he was becoming disoriented, forgetting whether he had performed activities of daily living and at times getting lost even within their condominium complex.
CK (who was normally resident in Perth) had stayed in Singapore with V after travelling there on holiday with his wife, who unexpectedly became ill and died there in 2017.
In November 2022, V and her daughter travelled to Perth with CK to settle back in Western Australia. CK moved in with P and his family by mutual agreement.
In May 2023, P applied to the Tribunal seeking the appointment of an administrator and a guardian for CK.
V had been appointed as enduring attorney on 20 December 2017 and purportedly enduring guardian on that date also. I found the enduring power of guardianship (EPG) invalid on 25 July 2023 in matter GAA 3068 of 2023 (V's application under s 110K seeking a declaration of validity) due to the insertion of a clause in the acceptance purporting to have the EPG come into effect on the day of execution and notwithstanding the subsequent legal incapacity of the donor. This is inconsistent with s 110F of the Guardianship and Administration Act 1990 (WA) (GA Act) and the form prescribed by the regulations, where it is of the essence that an EPG has effect 'at any time the appointor is unable to make reasonable judgments in…

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 CK

Details

AGLC: CK [2023] WASAT 84
Case: [2023] WASAT 84
Decision Date: 14 SEPTEMBER 2023

CaseChat Overview and Summary

The case of CK involved a dispute over an enduring power of attorney and enduring power of guardianship between the plaintiff, CK, and the defendant, who was the daughter of the deceased. The dispute arose after the death of the deceased, who had appointed CK as the attorney under an enduring power of attorney. The daughter, however, contested the validity of the power of attorney and the appointment of CK as the guardian under an enduring power of guardianship. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether there was a conflict of interest in the appointment of CK as the attorney and whether the presumption that parties bear their own costs applied in this case. The court had to determine whether the daughter had demonstrated exceptional circumstances that would warrant a departure from the presumption of self-funding. The court also had to consider whether the daughter had acted unreasonably in the litigation and whether any costs incurred by CK should be awarded.

The court held that there was no conflict of interest in the appointment of CK as the attorney and that the presumption of self-funding did not apply in this case. The court found that the daughter had acted unreasonably in the litigation and awarded costs to CK. The court considered the daughter's financial circumstances and determined that the award of costs would not cause her any substantial hardship. The court also found that the daughter had not demonstrated exceptional circumstances that would warrant a departure from the presumption of self-funding.

The court ordered the daughter to pay the costs of CK, including the costs of the appeal to the Court of Appeal. The court further ordered that the daughter pay interest on the costs from the date of the original judgment until the date of satisfaction. The court also ordered that the daughter pay the costs of the application to set aside the order for costs.

Orders