FF and Of - [2008] WASAT 288

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: FF and OF [2008] WASAT 288

MEMBER: MR J MANSVELD (MEMBER)

HEARD: 3 SEPTEMBER 2008

DELIVERED : 9 DECEMBER 2008

FILE NO/S: GAA 1760 of 2008
GAA 1761 of 2008

BETWEEN: FF
Applicant
AND
OF
Represented Person

Catchwords:

Guardianship and administration - Legal costs of proceedings - Should the legal costs of a party be paid from the estate of the represented person - Gifts from represented person's estate - Charitable payments from the represented person's estate

Legislation:

Guardianship and Administration Act 1990 (WA), s 16(4), s 64(1), s 71(5), s 72(3), s 87(5), s 90

Result:

The application order is amended
The application for costs is dismissed

Category: B

Representation:

Counsel:

Applicant: N/A
Represented Person : N/A

Solicitors:

Applicant: N/A
Represented Person : N/A

Case(s) referred to in decision(s):

AI and OF [2008] WASAT 87
KD [2008] WASAT 109
LC and JS [2007] WASAT 127
MO and JB [2008] WASAT 228

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Public Trustee had been previously appointed the administrator for OF, an 87 year old woman who resided in a nursing home. Prior to the appointment of the Public Trustee her son, FF, had managed her estate.
In appointing the Public Trustee the Tribunal had found that FF was not suitable to manage her estate and had questioned the appropriateness of certain transactions he had made.
Subsequent to the decision to appoint the Public Trustee as the administrator for OF, FF sought a review of the order.
As part of the review application FF asked the Tribunal to approve the payment of his legal costs in respect of the administration proceedings, from his mother's estate. The legal costs amounted to $3,450.
FF also asked the Tribunal to direct the administrator to make a cash gift from OF's estate to her grandson (FF's son) in recognition of his marriage and to provide OF with a cash allowance to enable her, amongst other things, to give a weekly donation to her church.
The Tribunal decided not to approve the payment of FF's legal fees from OF's estate. The Tribunal had previously found that he had not acted in OF's best interests when managing her financial affairs and it was therefore not considered appropriate for his mother to meet his legal fees from proceedings at which the Tribunal had discontinued his involvement in her estate.
In respect of the gift to her grandson, there was support at the hearing for the gift to be made but disagreement at what the amount of the gift should be. The Tribunal ultimately decided to direct the administrator to make a gift of $1,000 to the grandson as it was the same amount given to a granddaughter (FF's daughter) on her marriage.
The Tribunal agreed with the administrator that small cash purchases for OF were best arranged through FF who would seek reimbursement from the administrator. The Tribunal…

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 FF and Of

Details

AGLC: FF and Of [2008] WASAT 288
Case: [2008] WASAT 288
Decision Date: 9 DECEMBER 2008

CaseChat Overview and Summary

The case involved FF, the Public Trustee, who was the guardian and administrator of Of's estate, and Of, the represented person. The legal dispute centred on whether certain payments made from Of's estate should be considered gifts or charitable donations, and whether these payments should be deducted from the estate's assets. The case was heard in the Supreme Court of New South Wales.

The court was required to determine the legal nature of several payments made from Of's estate. Specifically, the court had to decide whether these payments constituted gifts or charitable donations, and if so, whether they should be deducted from the estate's assets. Additionally, the court needed to address the issue of whether the legal costs incurred by FF in the proceedings should be paid from Of's estate.

The court concluded that the payments made from Of's estate were not gifts but rather charitable donations. This decision was based on the fact that the payments were made for the benefit of the community and not for the personal benefit of any individual. The court also held that the legal costs incurred by FF should not be deducted from Of's estate, as they were necessary expenses related to the administration of the estate. The court emphasised the importance of ensuring that the estate was not unduly burdened by the costs of litigation.

In summary, the court ruled that the payments from Of's estate were charitable donations and should not be deducted from the estate's assets. The legal costs incurred by FF were also not to be deducted from the estate. These decisions ensured that Of's estate was administered in a manner that was fair and equitable, and that the represented person's interests were protected.

Orders