FV and Public Trustee

Case [2016] WASAT 86


FV and PUBLIC TRUSTEE [2016] WASAT 86



STATE ADMINISTRATIVE TRIBUNALCitation No:[2016] WASAT 86
GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:GAA:1972/2015DETERMINED ON THE DOCUMENTS
Coram:MR P McNAB (SENIOR MEMBER)15/07/16
32Judgment Part:1 of 1
Result: Administration orders confirmed for a further five years
A
PDF Version
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,…

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

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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