GM - [2019] QCAT 292 | CaseChat AU

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

GM [2019] QCAT 292

PARTIES:

In an application about a matter concerning GM

APPLICATION NO/S: GAA5125-18

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

2 October 2019

HEARING DATE:

20 November 2018

HEARD AT:

Brisbane and Townsville

DECISION OF:

Member Allen

ORDERS:
IT IS THE DECISION OF THE TRIBUNAL THAT:

CONFLICT TRANSACTION

1. The Tribunal authorises GMM as the duly appointed attorney for GM to enter the following transactions which he is not otherwise authorised to enter on her behalf in accordance with s118 of the Powers of Attorney Act 1998 (Qld):

(a)    The transfer of all of GM interest in the land described as Lot X on Registered Plan Y Reference XXXX and all improvements thereon to GMM by way of gift;

(b)    The transfer of all GM’s interest in Water Allocation – Resource Operations Licence Title Reference XXXX to GMM by way of gift;

(c)     The transfer of GM’s shares in X Pty Ltd A.C.N. XXX XXX XXX to GMM by way of gift;

(d)    The transfer of GM’s shares in X Limited to GMM by way of gift;

(e)    Entering into all transactions for and on behalf of GM in respect of the dissolution of the partnership of “GM and GMM subject to ensuring that GM is not liable to any income tax or capital gains tax (taxation liability) in respect of the transactions and that if she does have any taxation liability in respect of the dissolution of the partnership of “GM and GMM” he will reimburse her for any such liability;

DIRECTIONS

1.   The Tribunal directs GMM as the duly appointed attorney for GM to do all things necessary to ensure that X Pty Ltd or the then current trustee for the GB Family Trust enters the following transaction with GM and exercises its powers in accordance with the following directions:

(a)    The trustee for the GB Family Trust enters a deed of forgiveness in respect of the balance of any amount owed by GM to the trustee as at the date of execution of the deed of forgiveness such deed to be entered at or about the time of entry into the above conflict transactions;

(b)    That in each income year the trustee of the GB Family Trust exercises its discretion to distribute an amount of at least $15,000 to GM by way of income distribution such amount to be paid by way of monthly payments to the bank account of GM and not to be credited to any loan account in her name.

2.   The Tribunal directs GMM as the duly appointed attorney for GM to file in the Tribunal and to give a copy to JMM and GM of full accounts of all financial transactions entered by him on her behalf with a balance sheet of her assets and liabilities for each income year beginning 1 July and ending 30 June with the first accounts due on 30 August 2019

CATCHWORDS:
HEALTH LAW –…

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.

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Details

Case: [2019] QCAT 292
Decision Date: 2 October 2019

CaseChat Overview and Summary

The case involved an application by an attorney for authorisation of conflict transactions on behalf of an adult who had impaired capacity. The adult owned a cane farm with her son and operated it through a trustee of a family trust. The adult wished to transfer her interest in the farm, shares, and certain transactions involving the trust and a partnership to her son. The legal issues before the court were whether the attorney was entitled to authorise the proposed conflict transactions and whether the directions sought by the attorney were appropriate. The court held that the attorney was entitled to authorise the conflict transactions and that the directions were appropriate. The court found that the transactions were in the best interests of the adult and that the directions would ensure that the adult was not left without adequate financial support.

The court noted that the adult had a close relationship with her son and that the transactions were intended to ensure that the family farm remained within the family. The court also found that the directions were necessary to ensure that the adult would not be left without adequate financial support after the transactions were completed. The court emphasised the importance of ensuring that the adult's best interests were protected in all decisions made on her behalf. The court concluded that the attorney was acting in good faith and in the best interests of the adult and authorised the conflict transactions and directions sought by the attorney.

The orders made by the court authorised the attorney to enter into the conflict transactions on behalf of the adult, subject to certain conditions designed to protect the adult's interests. The court also directed the attorney to take certain steps to ensure that the adult's financial needs were met after the transactions were completed. These directions included requiring the trustee of the family trust to forgive any outstanding debt owed by the adult and to make regular income distributions to the adult. The court also required the attorney to provide regular financial reports to the court and to the adult and her family. The orders made by the court were designed to balance the need to protect the adult's interests with the need to allow the attorney to act in her best interests.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

CONFLICT TRANSACTION

1. The Tribunal authorises GMM as the duly appointed attorney for GM to enter the following transactions which he is not otherwise authorised to enter on her behalf in accordance with s118 of the Powers of Attorney Act 1998 (Qld):

(a) The transfer of all of GM interest in the land described as Lot X on Registered Plan Y Reference XXXX and all improvements thereon to GMM by way of gift;

(b) The transfer of all GM’s interest in Water Allocation – Resource Operations Licence Title Reference XXXX to GMM by way of gift;

(d) The transfer of GM’s shares in X Limited to GMM by way of gift;

(e) Entering into all transactions for and on behalf of GM in respect of the dissolution of the partnership of “GM and GMM subject to ensuring that GM is not liable to any income tax or capital gains tax (taxation liability) in respect of the transactions and that if she does have any taxation liability in respect of the dissolution of the partnership of “GM and GMM” he will reimburse her for any such liability;

DIRECTIONS

1. The Tribunal directs GMM as the duly appointed attorney for GM to do all things necessary to ensure that X Pty Ltd or the then current trustee for the GB Family Trust enters the following transaction with GM and exercises its powers in accordance with the following directions:

(a) The trustee for the GB Family Trust enters a deed of forgiveness in respect of the balance of any amount owed by GM to the trustee as at the date of execution of the deed of forgiveness such deed to be entered at or about the time of entry into the above conflict transactions;

(b) That in each income year the trustee of the GB Family Trust exercises its discretion to distribute an amount of at least $15,000 to GM by way of income distribution such amount to be paid by way of monthly payments to the bank account of GM and not to be credited to any loan account in her name.

2. The Tribunal directs GMM as the duly appointed attorney for GM to file in the Tribunal and to give a copy to JMM and GM of full accounts of all financial transactions entered by him on her behalf with a balance sheet of her assets and liabilities for each income year beginning 1 July and ending 30 June with the first accounts due on 30 August 2019

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	GM [2019] QCAT 292
PARTIES:	In an application about a matter concerning GM
APPLICATION NO/S:	GAA5125-18
MATTER TYPE:	Guardianship and administration matters for adults
DELIVERED ON:	2 October 2019
HEARING DATE:	20 November 2018
HEARD AT:	Brisbane and Townsville
DECISION OF:	Member Allen
ORDERS:	IT IS THE DECISION OF THE TRIBUNAL THAT: CONFLICT TRANSACTION 1. The Tribunal authorises GMM as the duly appointed attorney for GM to enter the following transactions which he is not otherwise authorised to enter on her behalf in accordance with s118 of the *Powers of Attorney Act* 1998 (Qld): (a) The transfer of all of GM interest in the land described as Lot X on Registered Plan Y Reference XXXX and all improvements thereon to GMM by way of gift; (b) The transfer of all GM’s interest in Water Allocation – Resource Operations Licence Title Reference XXXX to GMM by way of gift; (c) The transfer of GM’s shares in X Pty Ltd A.C.N. XXX XXX XXX to GMM by way of gift; (d) The transfer of GM’s shares in X Limited to GMM by way of gift; (e) Entering into all transactions for and on behalf of GM in respect of the dissolution of the partnership of “GM and GMM subject to ensuring that GM is not liable to any income tax or capital gains tax (taxation liability) in respect of the transactions and that if she does have any taxation liability in respect of the dissolution of the partnership of “GM and GMM” he will reimburse her for any such liability; DIRECTIONS 1. The Tribunal directs GMM as the duly appointed attorney for GM to do all things necessary to ensure that X Pty Ltd or the then current trustee for the GB Family Trust enters the following transaction with GM and exercises its powers in accordance with the following directions: (a) The trustee for the GB Family Trust enters a deed of forgiveness in respect of the balance of any amount owed by GM to the trustee as at the date of execution of the deed of forgiveness such deed to be entered at or about the time of entry into the above conflict transactions; (b) That in each income year the trustee of the GB Family Trust exercises its discretion to distribute an amount of at least $15,000 to GM by way of income distribution such amount to be paid by way of monthly payments to the bank account of GM and not to be credited to any loan account in her name. 2. The Tribunal directs GMM as the duly appointed attorney for GM to file in the Tribunal and to give a copy to JMM and GM of full accounts of all financial transactions entered by him on her behalf with a balance sheet of her assets and liabilities for each income year beginning 1 July and ending 30 June with the first accounts due on 30 August 2019
CATCHWORDS:	HEALTH LAW –…