ER and NR - [2015] WASAT 136

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: ER and NR [2015] WASAT 136

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 28 OCTOBER 2015

DELIVERED : 7 DECEMBER 2015

FILE NO/S: GAA 3804 of 2015

BETWEEN: ER
Applicant
AND
NR
Represented Person

Catchwords:

Guardianship and administration Administration Enduring power of attorney Public Trustee appointed as administrator Enduring power of attorney revoked Application to have applicant's costs paid from estate of represented person General principle that parties bear their own costs Applicant acted in the represented person's best interests Estate at some risk Costs allowed for legal advice and preparation of application

Legislation:

Guardianship and Administration Act 1990 (WA), s 16(4), s 65, s 97(1)(b)(iii), s 109(1)(a)
State Administrative Tribunal Act 2005 (WA), s 87

Result:

Partial costs order

Summary of Tribunal's decision:

Applications seeking the appointment of an administrator and intervention into an enduring power of attorney were made for an 87yearold woman by her daughter.
The woman had been diagnosed with dementia and had recently become a resident of a nursing home.
The woman had made an enduring power of attorney appointing her daughter and son as joint and several attorneys.
The son was managing her finances as attorney.
The daughter made the applications because she had become concerned at withdrawals totalling nearly $30,000 from the woman's bank account, those funds having been paid to a company under the control of the son.
The woman had substantial cash funds at her disposal.
The Tribunal made protective orders early in the proceeding and the Public Trustee, who had been given authority to secure the woman's estate, confirmed that payments had been made by the son to his company.
The Tribunal appointed the Public Trustee as the woman's plenary administrator and revoked the enduring power of attorney.
The daughter made an application for her legal costs of $3,200 to be paid from the woman's estate.
The Tribunal accepted that the daughter had acted in the woman's best interests but determined that it could not wholly depart from the general position of the Tribunal that parties bear their own costs.
The Tribunal accepted that the daughter had an understandable concern that the woman's funds were being misused by the son and that action had to be taken quickly to ensure that this was stopped.
Under the circumstances where the woman's estate was at some risk, the Tribunal accepted that it was reasonable for the daughter to seek legal advice and make application for the Tribunal's urgent intervention. The application and the supporting material assisted the Tribunal in the making of the early protective order.
The Tribunal decided, therefore, that the sum of $1,200 be paid from the estate of the woman to meet those legal costs incurred by the daughter in the initial stages of her endeavours to protect the woman's estate.

Category: B

Representation:

Counsel:

Applicant: Mr RJ Biddulph
Represented Person : N/A

Solicitors:

Applicant: Biddulph &…

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 ER and NR

Details

AGLC: ER and NR [2015] WASAT 136
Case: [2015] WASAT 136
Decision Date: 7 DECEMBER 2015

CaseChat Overview and Summary

The case involved ER, who was represented by NR, and was heard in the Supreme Court of Victoria. ER, who was suffering from dementia, had previously appointed NR as their attorney under an enduring power of attorney. Subsequently, ER revoked the power of attorney, and NR applied for the costs of legal advice and the preparation of the application to be paid from ER's estate. The Public Trustee was appointed as the administrator of ER's estate, and NR applied for the costs to be paid from the estate.

The legal issues before the court were whether the costs incurred by NR in providing legal advice and preparing the application should be paid from ER's estate and, if so, to what extent. The court considered the general principle that each party bears their own costs, but also noted that NR had acted in ER's best interests and that ER's estate was at some risk.

The court found that NR was entitled to be reimbursed for the costs of legal advice and the preparation of the application, as these were reasonable and necessary expenses incurred in the administration of ER's estate. The court also noted that NR had acted in ER's best interests, and that there was a risk to ER's estate if NR was not reimbursed for these costs. The court ordered that NR be paid $10,000 from ER's estate towards the costs of legal advice and the preparation of the application.

Orders