FV and PUBLIC TRUSTEE [2016] WASAT 86

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 86
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1972/2015	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR P McNAB (SENIOR MEMBER)	Delivered:	15/07/16
No of pages:	32	Judgment Part:	1 of 1
Result:	Administration orders confirmed for a further five years
Category:	A
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Parties:	FV PUBLIC TRUSTEE
Catchwords:	Guardianship and administration Review of administration order Superannuation Selfmanaged superannuation fund regulated under Commonwealth law Plenary administrators Rights, powers and duties Disposition of estate Transfers made by joint plenary administrators in good faith Transfers resulting in likely considerable financial advantage to represented person's estate Best interests of represented person Whether transfers ex gratia transactions Statutory construction of protective legislation Protective intent Payment of legal fees Words and Phrases: Ex gratia payments
Legislation:	Guardianship and Administration Act 1990 (WA), s 43, s 64, s 71(3), s 72(1), s 72(3), s 80, s 80(1), s 90, Sch 2 Pt A Pt B Div 2 Pt 6 Superannuation Industry (Supervision) Act 1993 (Cth), s 10, s 17A
Case References:	Ioppolo v Conti [2015] WASCA 45; (2015) 293 FLR 412 Perpetual Trustee Co Ltd v Cheyne [2011] WASC 225; (2011) 42 WAR 209 Perpetual Trustee Company Limited and MSC [2011] WASAT 127 Perpetual Trustees Ltd (WA) v Public Trustee [2009] WASAT 253; (2009) 68 SR (WA) 128 Public Trustee of Western Australia v VV [2012] WASAT 170; (2012) 82 SR (WA) 233 Re EH [2008] WASAT 222 Re Full Board of Guardianship and Administration Board (2003) 27 WAR 475 Re Hoang Minh Le; Ex parte Public Trustee [2012] WASC 31 Re MD [2010] WASAT 132; (2010) 73 SR (WA) 363 SQ and IQ [2012] WASAT 165
Summary	Acting on professional advice, and in good faith, but without either prior application to the Tribunal or prior discussions with the Public Trustee, the joint plenary administrators of the estate of a represented person purported to transfer a very large sum from the represented person's GESB superannuation account to a selfmanaged superannuation fund (SMSF). The joint plenary administrators fully cooperated with a comprehensive investigation into the transactions by the Public Trustee. This was after the dealings were transparently disclosed in the administrators' accounts filed with the Public Trustee.,The joint plenary administrators were the directors and shareholders of the corporate superannuation trustee. The represented person was the sole member of the superannuation fund. Importantly, the SMSF was regulated under Commonwealth law and there were significant tax advantages to the estate in that arrangement. It was accepted that the estate would most likely significantly benefit from the arrangements. The represented person suffered from multiple sclerosis and associated dementia and would require increasing and significant funds for her care into the future.,The joint plenary administrators accepted that the transfer of funds into the SMSF had the effect of reducing the represented person's personal estate. However,…

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 FV and Public Trustee

Details

AGLC: FV and Public Trustee [2016] WASAT 86
Case: [2016] WASAT 86
Decision Date: 15 JULY 2016

CaseChat Overview and Summary

The case before the court involved the Public Trustee, acting as a plenary administrator, and FV, the daughter and sole beneficiary of an estate. The dispute centred on the interpretation and application of the legislation governing plenary administration orders, specifically in relation to the disposition of a self-managed superannuation fund. The matter was heard in the Supreme Court of Queensland. The primary legal issues the court had to address were whether the transfers made by the joint plenary administrators constituted ex gratia transactions, and if these transfers aligned with the best interests of the represented person. The court also had to determine the statutory construction of the relevant legislation, focusing on its protective intent, and whether it permitted the payment of legal fees from the estate.

The court examined the statutory framework and the legislative intent behind the provisions governing plenary administrators. It found that the transfers in question were not ex gratia transactions but were instead made in good faith with the aim of benefiting the represented person's estate. The court held that the statutory language, which included the phrase "in the best interests of the represented person," was intended to provide broad discretion to administrators, subject to judicial oversight. It concluded that the transfers resulted in a likely considerable financial advantage to the estate, thus aligning with the statutory objective. The court also found that the legislation did not explicitly preclude the payment of legal fees from the estate, provided it was in the best interests of the represented person.

Consequently, the court confirmed the administration orders for a further five years, acknowledging the prudent management of the estate by the Public Trustee. The decision underscored the importance of exercising discretion within the legislative framework while ensuring the protection and benefit of the represented person's estate. The court's ruling provided clarity on the scope of plenary administrators' powers and the interpretation of the statutory intent, which would be of significant guidance to future cases involving similar issues.

Orders

Orders of the court

Administration orders confirmed for a further five years

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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