HD - [2016] WASAT 37 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: HD [2016] WASAT 37

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 23 NOVEMBER 2015

DELIVERED : 12 APRIL 2016

FILE NO/S: GAA 4244 of 2015

BETWEEN: HD
Applicant

Catchwords:

Enduring power of attorney Jurisdiction of Tribunal does not stop on death of donor Applicant a person with proper interest in matter Applications not vexatious or frivolous Attorney transferred funds from donor to herself purportedly as partial reimbursement of monies expended Attorney required to produce records of transactions Records limited to those currently retained by attorney Considered too onerous to require attorney to seek further records because of transactions occurring from five to 13 years ago Audit of records kept by attorney would not materially add to information available on donor's estate

Legislation:

Guardianship and Administration Act 1990 (WA), s 107(1)(a), s 107(1)(b), s 109(1)(a), s 109(1)(b), s 109(1)(c)

Result:

Order made

Summary of Tribunal's decision:

HD made an enduring power of attorney in November 2002 appointing her daughter, BP as her sole attorney.
HD died in November 2010.
In September 2015, WS, a son of HD, made applications concerning the operation of the enduring power of attorney. WS applied for orders to have BP produce the records and accounts of transactions and dealings she undertook as attorney and to have those records audited.
The reason WS had applied for these orders was because he had only recently become aware of transactions occurring on the bank account of HD many years after her death.
BP said that she had subsidised the expenditure of HD over many years and just prior to HD's death had transferred a term deposit held in HD's name to a term deposit in the name of her and HD jointly.
BP was aware this meant that upon the death of HD, the term deposit would be owned by her. The amount in the term deposit was nearly $27,000.
After HD's death, BP admitted that she transferred a further $5,000 approximately to her account from the bank account of HD.
BP provided a financial statement that purportedly showed that she had subsidised HD's expenditure over the years in the amount of about $66,000. She maintained that the transfers to her bank account were only in partial repayment of her own funds she had expended on behalf of HD.
The way in which BP accounted for expenditure well after the event had invariably led to speculation of mismanagement that the applications before the Tribunal alleged.
Because of the uncertainty in the accounting of BP, the Tribunal decided on balance that she should be required to file with the Tribunal and give to the applicant a copy of the bank and other records she currently held in respect to the transactions she undertook as attorney of HD. She was not required to seek further records.
The Tribunal considered it onerous to require BP to seek records directly from the…

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

AGLC: HD [2016] WASAT 37
Case: [2016] WASAT 37
Decision Date: 12 APRIL 2016

CaseChat Overview and Summary

The matter involved an application by HD, the daughter of a deceased donor, who sought to challenge the actions of the donor's attorney, who had transferred funds from the donor to herself. The dispute was heard by the Federal Circuit Court, with the focus on the jurisdiction of the Tribunal and the authority of the attorney under an enduring power of attorney. The court was required to determine whether the Tribunal retained jurisdiction to hear the application despite the donor's death, and whether the applicant had a proper interest in the matter. Additionally, the court had to assess whether the application was vexatious or frivolous, and whether the attorney was required to produce records of the transactions in question.

The court found that the Tribunal's jurisdiction was not halted by the death of the donor, and the applicant did indeed have a proper interest in the matter, being the donor's daughter. The court also held that the application was neither vexatious nor frivolous, as the applicant had a legitimate concern regarding the attorney's actions. As for the requirement to produce records, the court determined that the attorney was only obligated to provide records that were currently in her possession, and that it was not overly burdensome to require her to seek further records for transactions that had occurred between five and 13 years ago. The court concluded that an audit of the attorney's records would not significantly enhance the information available about the donor's estate.

The court ordered the attorney to produce the records of the transactions in question, limited to those currently in her possession. The court found that the records were sufficient to address the concerns raised by the applicant, and that requiring the attorney to seek further records would be unduly burdensome. The court further found that the application was not vexatious or frivolous, and that the Tribunal retained jurisdiction to hear the matter despite the donor's death. The court's decision provided clarity on the scope of the Tribunal's jurisdiction and the obligations of attorneys under enduring powers of attorney, as well as the standard for determining whether an application is vexatious or frivolous.

Orders