Greenland v Intellectually Disabled Citizens Council of Queensland

[2000] QSC 84

SUPREME COURT OF QUEENSLAND

CITATION:

Greenland & Anor v Intellectually Disabled Citizens Council of Queensland & Anor [2000] QSC 084

PARTIES:

BRUCE GREENLAND and JAMES BATSTONE
(Appellants/Plaintiffs)
v
INTELLECTUALLY DISABLED CITIZENS COUNCIL OF QUEENSLAND
(First Respondent/Defendant)
AND
THE PUBLIC TRUSTEE OF QUEENSLAND
(Second Respondent/Defendant)

FILE NO/S:

Appeal 3511 of 1999

DIVISION:

Trial Division

PROCEEDING:

Appeal against decision of First Respondent

DELIVERED ON:

18 April 2000

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7 March & 10 April 2000

JUDGE:

Chesterman J

ORDER:

That the appeal be dismissed.

That the appellants pay the first respondent’s costs of the appeal to be assessed on the standard basis

CATCHWORDS:

MENTAL HEALTH – GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – attorneys appointed to manage affairs of person with Alzheimer’s disease – whether management of affairs was imprudent and/or improvident – failure to keep adequate records – attorneys’ obtaining financial benefits – whether Public Trustee should be appointed to manage affairs

Intellectually Disabled Citizens Act 1985 ss 27, 31A, 32, 34, 43
Powers of Attorney Act 1998 ss 5, 66, 70, 73, 85
Property Law Act 1974 ss 175A, 175D, 175E, 175H
Public Trustee Act 1978

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Ex parte Australian Sporting Club Ltd re Dash (1947) 47 SR (NSW) 283

Powell v Thompson [1991] 1 NZLR 597

COUNSEL:

K Lynch for the appellant
C Wilson for the first respondent
G Dickson for the second respondent

SOLICITORS:

Winchester Young & Maddern for the appellant
Crown Law for the first respondent
Official Solicitor to the Public Trustee for the second respondent

1. CHESTERMAN J:  Christopher John Neale who is 86 years of age suffers from Alzheimer’s disease which has reached an advanced stage.  He resides in a nursing home at Ashmore where he depends upon staff members for all his activities, being disorientated in time and place. His powers of comprehension and communication are all but extinct.  He had been a successful investor and developer as a result of which he acquired a very considerable real property portfolio, worth several million dollars, in New South Wales and on the Gold Coast.

1. Mr Neale’s first wife died in 1985.  He remarried in 1987 to the annoyance of his daughter Ms Robin Verity. 

1. Mr Neale’s most recent will was made on 1 August 1994.  He now lacks the capacity to make any different testamentary dispositions.  The will directs the payment of  $350 per week to his widow during her life and a gift of  $150,000.00 each to his two children.  The income (after the payment to the widow) is to go to an evangelical charity for twenty years after which the estate is to be given to a similar charity selected by his executors. 

1. On 7 June 1991 Mr Neale appointed James Batstone, one of the appellants, his attorney “to do on his behalf anything that he might lawfully authorise an attorney to do,” and declared, pursuant to s 175A of the Property Law Act 1974, that the power of attorney should continue to operate and have full force and effect notwithstanding his subsequent incapacity. On 7 October 1994 Mr Neale executed another power of attorney in similar terms, this time authorising Mr Batstone and the other appellant, Bruce Greenland, to be his joint attorneys. On 20 August 1995 Mr Neale executed a third power of attorney appointing Mr. Greenland alone to be his enduring attorney.

1. Since Mr Neale became incapable of attending to his own business affairs at the end of 1995 the appellants, his attorneys, have conducted those affairs on Mr Neale’s behalf.  They have been assisted by Mr Baker a chartered accountant who for many years provided business and accounting advice to Mr Neale. 

1. Mr Neale is an “intellectually disabled citizen” for the purposes of the Intellectually Disabled CitizensAct 1985 (“the Act”). By s 27 of the Act an adult relative of an intellectually disabled citizen may apply to the IDCC “for the provision to the citizen of special assistance”. When considering an application under s 27 the IDCC must determine whether the citizen in respect of whom the application is made should have special assistance and, if so, the kind and extent of assistance that should be provided.

1. Mrs Neale and Mr Batstone and his family are on friendly terms. Ms Verity harbours suspicions that that friendship, and Mr Batstone’s position as her father’s attorney, have combined to work to the diminution of Mr Neale’s assets. On 23 April 1998 Ms Verity applied to the first respondent (“IDCC”) for an order that special assistance be provided to Mr Neale pursuant to the provisions of the Act. On 23 June 1998 the IDCC determined that Mr Neale be provided with special assistance and that the second respondent (“Public Trustee”) should manage his estate.

1. By s 32 of the Act where the IDCC forms the opinion that an assisted citizen is or may come under undue influence in respect of his estate or it is otherwise desirable in the interests of the disabled citizen or his dependents that his property be protected the council “must give written notice to the Public Trustee to that effect”. Upon receipt of the notice the Public Trustee “without further or other authority” becomes the manager of the estate and has the same powers and authorities with respect to it as he has under Part 6 of the Public Trustee Act 1978.

1. Section 32(1A) of the Act empowers the legal friend (appointed pursuant to the Public Service Act 1996), to notify the Public Trustee that the disabled citizen’s property should be protected if satisfied that any of the circumstances referred to in s 32 exist, and that unreasonable delay would be occasioned by awaiting the determination of the IDCC. The effect of such a notice from the legal friend is to make the Public Trustee manager of the estate.

1. Ms Verity’s application was referred by the IDCC to the legal friend.  The material contained in the application suggested that the appellants had misapplied substantial sums of money which had come to them as proceeds of the sale of some of Mr Neale’s property.  The situation appeared urgent and the legal friend gave notice to the Public Trustee on 21 May 1998.  The IDCC met, as I have mentioned, on 23 June 1998 and, in effect, determined that Mr Neale should be provided with the assistance of having his estate managed by the Public Trustee. 

1. By s 27(3) the IDCC may be asked to review “the kind and extent of special assistance being provided”. On 28 July 1998 the appellants requested the IDCC to review its decision of 23 June. The decision was reviewed on 15 December 1998 as a result of which the IDCC confirmed the decision of 23 June. The appellants have appealed against the outcome of the review.

1. Section 43 provides that a person aggrieved “by a decision under s 31A to provide … assistance … may appeal … to a judge of the Supreme Court …” The appeal is “by way of hearing de novo”. The IDCC points out that the appellants’ real complaint is that it acted pursuant to s 32(1) of the Act and that the provision for an appeal appears only in respect of the exercise of the power conferred by s 31A, not s 32. It is argued that no appeal lies from the decision which the appellants wish to impugn and that this proceeding is misconceived. However s 31A is the provision which requires the IDCC, when considering an application under s 27, to determine what level of assistance should be provided to a disabled citizen. Pursuant to this section the IDCC determined that Mr Neale needed the assistance of the Public Trustee to manage his estate. In the course of making that determination it came to hold one of the opinions described in s 32 whereupon it was obliged to give the Public Trustee notice of its opinion with the consequence provided for in the Act. Accordingly an appeal against the exercise of power as conferred by s 31A will include an appeal against a decision which results in action pursuant to s 32. This is a rather circuitous way of providing for such an appeal but the Act expressly contemplates that the Supreme Court may set aside the effect of a s 32 notice. Section 34 provides:

“Where pursuant to s 32, authority is conferred upon the public trustee to manage the estate of an assisted citizen that authority shall cease to have force or effect –

(a)upon the making of an order by the Supreme Court to that effect;  or    

(b)upon the making of an order by the Supreme Court that reverses the (IDCC’s) approval that the citizen be provided with the special assistance …

(c)        . . .”

I conclude that the Act should be construed so that the IDCC is required to consider whether it does hold any of the opinions referred to in s 32 when considering, as required by s 31A, an application made under s 27. A decision made by the IDCC that it does hold one of the requisite opinions will therefore be one “under s 31A” from which an appeal may be brought pursuant to s 43.

1. The appeal is from a non-legal administrative Tribunal to the court.  It is expressly declared to be a “hearing de novo”.  The jurisdiction so conferred is not appellate but original: ex parte Australian Sporting Club Ltd re Dash (1947) 47 SR (NSW) 283. “The informant or complainant starts again and has to make out his case …” Per Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620.

1. The applicant for the determination that Mr Neale was in need of special assistance was Ms Verity.  That determination is now to be made by the Supreme Court but Ms Verity has not been made a party to the appeal.  The Notice of Appeal of 12 April 1999 named only the IDCC as a respondent though it was addressed to both the IDCC and the Public Trustee.  By an order made on 5 May 1999 the Court ordered the appellants to join the Public Trustee as a respondent and directed the IDCC to deliver a statement of claim and the appellants to deliver a defence. The decision maker has been thrust into the unusual role of protagonist and was obliged to argue the correctness of its own decision.

No point was taken about this procedural quirk or about the absence of Ms Verity.  The IDCC’s interests and Ms Verity’s would appear to coincide by reason of the manner in which the appeal proceeded.  In the result I do not apprehend that Ms Verity’s interests have been prejudiced.

1. The application made by Ms Verity to the IDCC relied upon an allegation of undue influence exerted by the appellants over Mr. Neale and an allegation that Mr Neale’s estate was being dissipated.  The first allegation was not pursued on appeal.  The allegation of dissipation changed somewhat so that it became a charge that the appellants’ management of Mr Neale’s affairs was imprudent and/or improvident.  Four aspects were advanced:

(i)The payment of $150,000.00 to the Australian Tax Office on Mr Greenland’s behalf;

(ii)The transfer of a home unit owned by Mr. Neale to Mr Batstone and his wife;

(iii)      The development of real estate on the Gold Coast;

(iv)      The inadequacy of accounting records.

I will deal with each in turn but, before doing so, I will mention some background factors. 

1. In June 1995 Mr Neale was examined by a psychiatrist, Dr Ziukelis for the purpose of determining whether he had sufficient mental capacity to manage his affairs and to make a will.  The doctor reported that Mr Neale could “manage his affairs … with the assistance of those upon whom he has placed power of attorney.  He would not be capable of managing his affairs without assistance, the complexity being … beyond him.”  He had testamentary capacity. 

In November 1995 Mr Neale was examined by Dr Merson who thought that he did not then have the capacity to transact business. 

1. Mr Neale was for many years the majority shareholder of a number of companies, Neale Industries Pty Ltd (“Neale Industries”), Neale Holdings Pty Ltd (“Neale Holdings”) and Neale Properties Pty Ltd (“Neale Properties”).  On 24 August 1995 Mr Neale paid his son and daughter the aggregate sum of $800,000.00 to acquire their small shareholdings in the companies.  The price paid greatly exceeded the value of the shares.  After the purchase he was the sole shareholder in Neale Industries.  Apart from one share held by his wife in each of the other two companies he was the only shareholder in them.  Mr Neale and Mr Baker were the directors of Neale Holdings and Neale Properties between August 1995 and January 1997.   Mr Neale was the only director of Neal Industries until November 1996 when Mr Baker was appointed.  On 15 January 1997 Mr Baker appointed both appellants as additional directors of the three companies.

The Payment of Mr. Greenland’s Tax

1. Late in 1996 the Australian Tax Office (“ATO”) demanded $200,000.00 from Mr Greenland by way of unpaid income tax, penalties and interest.  He could not pay and judgment was entered against him in the Supreme Court.  His attempts to negotiate payment of a reduced sum or by instalments were fruitless.  His bankruptcy appeared inevitable.  He informed Mr Batstone and Mr Baker of his predicament.  “They suggested that the company would lend me sufficient funds … to discharge (his) liability”.  Mr Greenland pointed out that the Law Society disapproved of solicitors borrowing from clients.  “Shortly thereafter (Mr Baker and Mr Batstone) advised (Mr Greenland) that … they had decided to pay the Taxation Office the amount required by it from company funds and that the amount would be accounted for by outstanding fees due …, directors fees due up to that time and the balance by retainer in advance”.

In the meantime Mr Baker had managed to reach agreement with the ATO on Mr Greenland’s behalf to pay $150,000.00 in full and final satisfaction of the judgment. 

1. The company which made the payment was apparently Neale Industries. Mr Greenland prepared a memorandum of fees to reconcile the amount paid on his behalf, $150,000.00, with what he was “owed”.  The document shows that Mr Greenland had performed $74,008.00 worth of professional work for which he had been paid only $26,722.86.  The payment of $150,000.00 discharged the balance of that debt and a further debt of $56,000.00, said to be due in respect of directors fees earned by Mr Greenland between “1995-31.1.97”.  As well, the payment provided an advance of $46,714.86 against fees to be earned.  This last amount was to be discharged by the future performance of services on behalf of Mr Neale and his companies. 

1. Mr Batstone justified the payment on the basis that it was important to Mr Neale’s companies that Mr Greenland not become bankrupt.  Had he done so he could not have continued to serve as a director, nor could he practise as a solicitor.  As well he would be disqualified from remaining an attorney for Mr. Neale.  It was Mr Baker’s (and Mr Batstone’s) assessment that Mr Neale’s affairs could not afford such a loss and that the money was well spent in retaining Mr Greenland’s services. 

1. I do not find this explanation convincing.  It does not address some disturbing features of the transaction. The first is that Mr Greenland did not become a director of any of the companies until 15 January 1997.  He cannot have been ignorant of the fact when he compiled his reconciliation memorandum which contains at least an implicit misrepresentation that he had been a director since 1995.  Mr Baker tried to efface this embarrassment by saying that Mr Greenland had been a de facto director since 1995.  But this explanation, if true, is almost as disturbing as the prospect of misrepresentation.  It means that Mr Greenland was careless with respect to the formalities of appointment and of giving notice to the Australian Securities Commission of his directorships.  The obligation to disclose the identity of those who are responsible for corporate conduct is insisted on by the law for the protection of the public.

The second feature is that no record of the transaction has been shown to exist in any of the companies’ accounts.  Nor did the appellants produce a directors’ minute of the transaction from the company’s records. This matter was made a particular topic in the cross examination of Mr Baker who twice assured the court that the transaction was properly accounted for.  When, after some delay, the documents he described were produced they did not reveal any trace of the transaction which benefited Mr. Greenland so handsomely.  The appeal was re-listed at the appellants’ request to enable them to put in evidence additional accounting materials and records.  A great deal of meaningless detail in the form of extracts from ledgers and cashbooks was produced.  Included in the detail one can see, after it is pointed out, reference to the withdrawal of moneys from a bank account to make the payment to the ATO.  The reference is unintelligible without an explanation as to its context and the purpose of the payment.  No other record of it appears in any other accounting document:  balance sheets, profit and loss accounts, statements of loan account or notes to the accounts.  The transaction is effectively concealed. 

It is, to say the least, unusual to pay a director a year’s fees in advance. 

The fourth feature is that Mr Greenland’s explanation of the payment contained in his letter of 18 December 1998 to the IDCC omits all mention of his impending bankruptcy and his dire need for a financial rescue.  That letter describes the payment of $56,000.00 as being for “fees due on group matters from 1.9.95 – 31.1.97” which implies the money was due by way of legal fees, not directors’ fees. 

Transfer of the Unit to Mr and Mrs Batstone

1. Mr and Mrs Batstone lived in a unit which they rented from Mr Neale in a building known as the Golden Gate at Surfers’ Paradise.  His will contains a gift of the unit to them.  In August 1995 Mr and Mrs Neale and Mr and Mrs Batstone were to leave together on an extended trip overseas.  Shortly before they left Mr Greenland prepared a memorandum of transfer of the unit in favour of Mr and Mrs Batstone which Mr Neale signed. Nothing further was done to effect a conveyance of the property.  The transfer showed that it was for a consideration of $140,000.00 (which represented fair value) but the property was to be a gift.  Mr Greenland did not witness Mr Neale’s signature.  He did, apparently, obtain a real estate appraisal of the unit, whether for stamp duty purposes or whether to ascertain what consideration to insert on the transfer, I do not know.  Months later, on 20 December 1995, Mr Greenland signed the transfer as witness to Mr Neale’s signature.  Although hard to read it appears that Mr. Greenland inserted that date as the execution date.  The reality was, according to Mr Greenland, that Mr Neale had signed in August. 

Stamp duty was paid by Mr and Mrs Batstone who sold the unit in about May 1996 for $142,000.00.

It will be recalled that in December 1995 Mr Neale had lost all capacity for business.  In August of 1995 he could transact business only with assistance.  It must be doubted that he was capable of spontaneously deciding to make a gift of the unit. 

1. Mr Greenland’s first explanation for post dating the transfer was that he wished “to avoid any penalty which may have been imposed … for late stamping”.  In his affidavit Mr Greenland explained that pressure of business caused him to overlook the attestation and dating of the transfer when Mr. Neale executed it.  He discovered his omission after the Batstones had left for overseas.  He could not then complete the transfer until their return because he needed their signature on a stamp duty declaration and their funds to pay the duty.  He does not explain why he could not then have witnessed the document.  In evidence on the appeal Mr Greenland said that he had offered his first explanation as a joke.  He explained that when asked why the document was dated subsequent to its execution he had no answer and had tried to pass the matter off with jocularity.  He says he subsequently recalled that the transfer had not been registered because the Batstones had not signed the declaration or provided funds. 

It is to be noted that while Mr Greenland can now explain why he could not stamp or register the transfer earlier than he did, he does not offer any explanation for the post dating of the document, other than the one he now disavows as a joke. 

1. The transaction gives rise to concerns.  When the gift was perfected Mr Neale was unable to understand or control his business affairs.  When he signed the transfer (assuming he did so in August 1995) he would have needed the assistance of Mr. Greenland and/or Mr Batstone to know what he was doing and whether he should do it.  The transaction effected a substantial and immediate benefit upon Mr Batstone and his wife.  At the very least Mr Greenland’s discharge of his professional duties was lax.  It is hard to understand how he could have overlooked the need to date the transfer and witness the transferor’s signature at the time of execution.  It is just as hard to understand why the gift should be made as a matter of urgency shortly before the two couples left for overseas.  Their return would have been a more convenient time for the gift though, of course, Mr and Mrs Batstone would have had to pay rent in the interim. 

Development

1. In December 1994 Neale Industries bought two blocks of land each of which had  a frontage to the Coomera River.  The land is zoned “waterfront industries”.  It is separated by road from another two parcels of land owned by Mr Neale himself  which is similarly zoned.  All or part of the land may be suitable for development as a site for maritime industries.  Before his illness advanced Mr Neal had expressed interest in such a proposal.  Messrs Baker and Greenland say they intend to carry the proposal to fruition in deference to his wishes.

1. The proposed development was a vexed topic at the meetings of the IDCC which made the decisions appealed against.  The Public Trustee was concerned about  continuing the development on behalf of Mr Neale who cannot benefit from it and is no longer aware of it.  The development must be, to some extent, speculative.  Presumably large amounts will have to be expended to create the desired industrial precinct.  In the meantime substantial costs are incurred in holding the land.  The appellants insist that the development should proceed because Mr Neale had proposed it.  The development appears to be the only ongoing business transacted by the companies for which they incur Mr Baker’s and Mr Greenland’s not inconsiderable fees.  Whether it is in Mr Neale’s interest that the development proceed or whether his interests would be better served by selling the land with such approvals as exist can only be determined by an examination of the detail of the proposed development.  This should include budgets of anticipated expenditure and income and a depiction of what the development will include.

1. The appellants were unwilling or unable to describe what they intend with respect to the development.  The only detail to emerge is that a large shed has been bought, transported to the site and rented out.  Two of the blocks of land were bought for prices aggregating 1.7 million dollars.  The rental income appears small.  Mr Hayden Batstone, the son of one of the appellants, lives rent free in a modest cottage on one of the blocks.  He is paid over $30,000.00 a year for services he provides with respect to the proposed development.  What he does, how long it takes him, and what benefit is derived by Mr Neale or his companies from his services has not been disclosed. 

Inadequacy of accounts

1. I have already mentioned one aspect of this topic when discussing the payment of Mr Greenland’s income tax.  The other aspects can be recounted briefly.  A large number of properties owned by Mr Neale have been sold since December 1995.  The proceeds of sale have been banked to an account conducted by Neale Industries  with the National Australia Bank.  The moneys were, of course, Mr Neale’s own.  They were dealt with in this way because, according to Mr Baker, Mr Neale could never distinguish between his own affairs and those of his companies and used to intermingle their money and his.  As part of this confusion he only had the one bank account, that in the name of Neale Industries.  In this exigency the accounts of Neale Industries should record the fact that the moneys it received were held on account of, or as a loan from, Mr Neale.  They do not do so.  To the extent that records were put into evidence they show that Neale Industries owed money in respect of the sales of land to Neale Holdings.  This fiction is justified on the basis that Mr Neale is the sole shareholder of that company. 

There ought to be a set of accounts indicating clearly what moneys of Mr Neale’s have been paid to the companies.  No such document was produced.  Moreover it is not true that Mr Neale had only the one bank account and that in the name of Neale Industries.  At the end of December 1995 Mr Neale operated an account in his own name with the National Australia Bank which had funds in credit exceeding $100,000.00.  There was also an account operated by Neale Properties and one by Neale Industries.  It was the appellants who closed Mr Neale’s account and who, together with Mr Baker, chose to pay Mr Neale’s moneys into the Neale Industries’ account without keeping proper records.

1. Mr Baker testified that he had supplied the Public Trustee with computerised ledgers which contained a complete record of Mr Neale’s loan accounts with his companies.  It was these ledgers, he said, that would reveal the payment of $150,000.00 on behalf of Mr Greenland.  The documents provided to the Public Trustee were put into evidence.  The ledger was not among them.  Some of them were tendered, as I have mentioned, when the hearing of the appeal was reopened.  The records then tendered are a mixture of meaningless detail in ledgers and cashbook and uninformative statements of financial position in the balance sheets and profit and loss accounts.  If it is possible, it is not easy  to ascertain from these accounts an understanding of what has happened to Mr Neale’s estate under the appellants’ stewardship. 

Mr Baker’s evidence was unsatisfactory.  He gave conflicting explanations for a number of entries in the accounts and seemed either unfamiliar with the detail of Mr  Neale’s financial affairs or unwilling to be frank about them.  It may not be entirely fair to criticise Mr Baker who was left to carry this aspect of the appellants’ case. Mr Baker has probably kept the accounts in the same manner for years.  When Mr Neale was capable of remembering and understanding his affairs those accounts may have been satisfactory.  He was the judge of that.  However when the appellants, as attorneys, became responsible for the conduct of Mr Neale’s affairs a plainer form of accounting was required.  It is clear that neither Mr Greenland or Mr Batstone has given the slightest attention to what is or is not revealed in the accounts prepared by Mr Baker, or to what should be revealed by them, with respect to Mr Neale’s assets, liabilities, income and expenditure.

Mr Batstone’s daughter is employed by Neale Industries to keep the day to day accounts for the three companies.  She is answerable directly to Mr Baker.  The only substantial activity that needs accounting services is the development.

1. In Powell v Thompson [1991] 1 NZLR 597 at 605 Thomas J succinctly summarised the law in these terms:

“An attorney cannot utilise a power of attorney to pay his or her personal debts.  To do so contravenes the fundamental nature of an agency or fiduciary relationship.  Powers of attorney are specifically directed at the management of the principal’s affairs;  it is not open to attorneys to either obtain an advantage for themselves or act in a way which is contrary to the interests of their principals.  … if authority is needed it is to be found in Reckitt v Barnett Pembroke and Slater Ltd [1929] AC 176 and Midland Bank Ltd v Reckitt [1933] AC 1 …”

In order to ensure that an attorney does act in the principal’s interests it is necessary that there be scrupulous honesty and care in making and recording transactions. These principles found statutory expression first in Part 9 of the Property Law Act 1974 and then in the Powers of Attorney Act 1998. By s 175H of the former and s 66 of the latter enactment an attorney must exercise his powers honestly and with reasonable diligence to protect the principal’s interests. By s 174E and s 73 respectively an attorney, unless specifically authorised, may not enter into a transaction if the attorney’s interests and the principal’s might compete. By sections 175D and 85 respectively attorneys must keep and preserve accurate records and accounts of all dealings and transactions made under the power.

1. Counsel for the IDCC expressly disavows any submission that the appellants have acted dishonestly, or even improperly, and I make no such finding.

1. By s 70 of the Powers of Attorney Act the appointment of the Public Trustee to manage Mr Neale’s estate will effectively terminate the appellants’ powers to act on his behalf. Mr Lynch, counsel for the appellants, submits that s 5 of the Act expresses an intention that the affairs of an intellectually disabled person should be left in the hands of those chosen for that purpose by the person before the onset of incapacity. I agree with this submission. That is surely the whole point of an enduring power of attorney. Mr Neale’s choice of the appellants as his attorneys ought to be respected and neither the IDCC nor the court should interfere unless there is a sufficient reason for doing so. However, s 31A of the Act confers on the IDCC (and on appeal on the court) a wide discretion to determine whether a disabled citizen should be provided with special assistance. No particular criteria are set out in the Act for the regulation of the discretion which must therefore be exercised according to the particular circumstances of each application.

1. In my opinion a sufficient reason has been shown for making the appointment of the Public Trustee as manager.  The appellants have not protected Mr Neale’s interests or estate as jealously as they should, or with reasonable diligence.  The first two transactions discussed are in some respects questionable.  Even if the transactions themselves escape criticism the manner in which they were performed was questionable.  Both appellants have obtained substantial financial benefit from their principal’s property.  It may be right that Mr. Greenland was not personally involved in the decision to discharge his tax liability but his co-attorney was.  Similarly Mr Batstone may not have actively participated in making the gift of the unit but Mr. Greenland did.  He cannot escape criticism as attorney by saying he acted in his capacity as solicitor.  In both capacities he should have protected his principal’s interests.  If the appellants have not benefited themselves from Mr  Neale’s property each has conferred a benefit on the other.  Each accepted the benefit knowing the circumstances in which it was conferred.

1. It is of concern that the development meanders on without a budget and with no date contemplated for completion.  While it continues Mr. Greenland’s legal fees and Mr. Baker’s accountancy fees are incurred and employment is provided for Mr Batstone’s two children.  No one else appears to benefit. 

1. It is also of concern that the appellants have confused the receipt and application of Mr Neale’s moneys.  Separate bank accounts were available into which moneys could properly have been paid.

1. Equally disturbing is the lack of clear and comprehensible accounts.  As long ago as April 1998 Ms Verity asserted that her father’s assets were being spent.  Frequent requests for accounts have been made of the appellants and their accountant.  It should have been a matter of no difficulty to prepare balance sheets and profit and loss accounts for the three companies from December 1995 to the present and a similar set of accounts for Mr Neale.  They could have been consolidated because the reality is that Mr Neale is the sole shareholder of the companies.  It was not done.  Nor did the appellants ever produce an inventory of the sales of Mr Neale’s properties providing details of prices, purchasers and the application of the proceeds.  This reluctance to disclose what they had done as attorneys is not re-assuring.

1. In summary the appellants

(a)  have prospered too greatly from their propinquity to Mr Neale’s

property;  and                  

(b) have not attended with sufficient care to transacting or  recording business on Mr Neale’s behalf.

I concur with the decision made by the IDCC and dismiss the appeal.

I order the appellants to pay the first respondent’s costs of the appeal to be assessed on the standard basis.  I make no order as to the second respondent’s costs.  They can be recovered from the estate it manages.  It was not the appellants decision to join the Public Trustee as a party.