Gmal v The Public Guardian - [2018] QCATA 107

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

GMAL & Anor v The Public Guardian & Ors [2018] QCATA 107

PARTIES:

GMAL
MHH
(appellants)

v

THE PUBLIC GUARDIAN
HDL
TEG
TCAR
(respondents)

APPLICATION NO:

APL198-17

ORIGINATING APPLICATION NO/S:

GAA9677-16; GAA9678-16; GAA12348-16

MATTER TYPE:

Appeals

DELIVERED ON:

3 August 2018

HEARING DATE:

12 February 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

Member Clarkson

ORDERS:

1.   The appeal is allowed.

2.   The decision of the Tribunal made 23 March 2017 is set aside and the applications are returned to the Tribunal below constituted by the same member for reconsideration with the following directions:

(a)   The original proceedings be listed for a directions hearing before the Tribunal below on a date and time to be fixed.

(b)   The Tribunal below consider whether it requires further evidence to properly determine the applications according to law and, if so the evidence the Tribunal requires or otherwise determine any applications made by the parties to adduce new evidence.

CATCHWORDS:

GUARDIANS, COMMITTEE, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – where the Tribunal declared that adult did not have capacity to make complex financial decisions – where the adult had testamentary capacity – where the adult executed a registered transfer of her real property to herself and to the applicants as joint tenants – where the transaction was undertaken on the basis of legal advice the adult received when providing instructions for her will – where the Public Guardian brought an application for a declaration about capacity regarding the transaction – where one of the adult’s daughters brought an application for the appointment of an administrator – where the application for the appointment of an administrator was dismissed –where the attorney was directed to reverse the transaction

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES— whether the member correctly applied the presumption of capacity to the transaction – whether sufficient weight was given to the testamentary capacity of the adult – where the Tribunal erred in classifying the transaction as a gift – where the Tribunal erred in applying the presumption of undue influence to the transaction – where the appeal was allowed – where the decision was remitted back to the Tribunal originally constituted – where no order was made about the hearing of additional evidence

Guardianship and Administration Act 2000 (Qld) s 5
Powers of Attorney Act 1998 (Qld) s 73, 87, 88

Cachia v Grech [2009] NSWCA 232
Gibbons v Wright (1954) 91 CLR 423
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
MP v Public Trustee of Queensland [2014] QCATA 162
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondents:

Public Guardian, HDL, TEG: self-represented
TCAR: represented by J Eylander, instructed by Gaylor Cleland Solicitors

REASONS FOR DECISION

The applicants in this matter are GMAL and MHH. They are the daughter and son-in-law of TCAR (the adult). The latter is an 89 year old widow…

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 Gmal v The Public Guardian

Details

AGLC: Gmal v The Public Guardian [2018] QCATA 107
Case: [2018] QCATA 107
Decision Date: 3 August 2018

CaseChat Overview and Summary

In the case of Gmal v The Public Guardian, the court dealt with a complex dispute concerning the capacity of an adult to make financial decisions. The adult had executed a transfer of real property to herself and the applicants as joint tenants. The Public Guardian sought a declaration regarding the adult's capacity to execute the transaction, while one of the adult's daughters applied for the appointment of an administrator. The Tribunal found that the adult lacked capacity to make the financial decision but possessed testamentary capacity. The daughter's application for the appointment of an administrator was dismissed, and the adult's attorney was directed to reverse the transaction.

The central legal issues revolved around whether the Tribunal correctly applied the presumption of capacity and the testamentary capacity of the adult. The appeal questioned whether the Tribunal gave sufficient weight to the adult's testamentary capacity and whether it erred in classifying the transaction as a gift and applying the presumption of undue influence. The appeal also examined whether the Tribunal appropriately considered the legal advice the adult received when making the transaction.

In addressing these issues, the court found that the Tribunal did not correctly apply the presumption of capacity and did not sufficiently weigh the adult's testamentary capacity. The court also determined that the Tribunal erred in classifying the transaction as a gift and in applying the presumption of undue influence. Consequently, the appeal was allowed, and the decision of the Tribunal was set aside. The applications were returned to the Tribunal for reconsideration, with specific directions to list the original proceedings for a directions hearing and to determine if further evidence was needed.

The court's final orders included allowing the appeal, setting aside the Tribunal's decision, and returning the applications to the Tribunal for reconsideration. The court provided directions for a directions hearing and consideration of additional evidence if necessary.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Tribunal made 23 March 2017 is set aside and the applications are returned to the Tribunal below constituted by the same member for reconsideration with the following directions:

(a) The original proceedings be listed for a directions hearing before the Tribunal below on a date and time to be fixed.

(b) The Tribunal below consider whether it requires further evidence to properly determine the applications according to law and, if so the evidence the Tribunal requires or otherwise determine any applications made by the parties to adduce new evidence.

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:	GMAL & Anor v The Public Guardian & Ors [2018] QCATA 107
PARTIES:	GMAL MHH (appellants)
v
THE PUBLIC GUARDIAN HDL TEG TCAR (respondents)
APPLICATION NO:	APL198-17
ORIGINATING APPLICATION NO/S:	GAA9677-16; GAA9678-16; GAA12348-16
MATTER TYPE:	Appeals
DELIVERED ON:	3 August 2018
HEARING DATE:	12 February 2018
HEARD AT:	Brisbane
DECISION OF:	Senior Member Guthrie Member Clarkson
ORDERS:	1. The appeal is allowed. 2. The decision of the Tribunal made 23 March 2017 is set aside and the applications are returned to the Tribunal below constituted by the same member for reconsideration with the following directions: (a) The original proceedings be listed for a directions hearing before the Tribunal below on a date and time to be fixed. (b) The Tribunal below consider whether it requires further evidence to properly determine the applications according to law and, if so the evidence the Tribunal requires or otherwise determine any applications made by the parties to adduce new evidence.
CATCHWORDS:	GUARDIANS, COMMITTEE, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – where the Tribunal declared that adult did not have capacity to make complex financial decisions – where the adult had testamentary capacity – where the adult executed a registered transfer of her real property to herself and to the applicants as joint tenants – where the transaction was undertaken on the basis of legal advice the adult received when providing instructions for her will – where the Public Guardian brought an application for a declaration about capacity regarding the transaction – where one of the adult’s daughters brought an application for the appointment of an administrator – where the application for the appointment of an administrator was dismissed –where the attorney was directed to reverse the transaction APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES— whether the member correctly applied the presumption of capacity to the transaction – whether sufficient weight was given to the testamentary capacity of the adult – where the Tribunal erred in classifying the transaction as a gift – where the Tribunal erred in applying the presumption of undue influence to the transaction – where the appeal was allowed – where the decision was remitted back to the Tribunal originally constituted – where no order was made about the hearing of additional evidence Guardianship and Administration Act 2000 (Qld) s 5 Powers of Attorney Act 1998 (Qld) s 73, 87, 88 Cachia v Grech [2009] NSWCA 232 Gibbons v Wright (1954) 91 CLR 423 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 MP v Public Trustee of Queensland [2014] QCATA 162 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
APPEARANCES & REPRESENTATION:
Applicants:	Self-represented
Respondents:	Public Guardian, HDL, TEG: self-represented TCAR: represented by J Eylander, instructed by Gaylor Cleland Solicitors