HFO (No2)(Administration) - [2009] TASGAB 15

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

HFO review of administration order of the Board’s Own Motion

Neutral Citation: HFO (No2)(Administration) [2009] TASGAB 15

REASONS FOR DECISION

Anita Smith (President)

Date of hearing: 31 July 2009

Administration – review of conditional administration order – suitability for appointment as administrator – significant conflict between proposed administrator and represented person’s adult children – proposed administrator’s lack of concern for compliance with the law
Guardianship and Administration Act 1995 s. 54, 67

Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227

Singh v Calvary Hospital Act Incorporated (No2) (2009) 166 ACTR 78

HFO is a 76 year old man who was the subject of an earlier order by the Board appointing the Public Trustee as administrator pursuant to Part 7 of the Guardianship and Administration Act 1995 (the Act) subject to some conditions. If those conditions had been satisfied, the order allowed for the appointment to transfer to the original applicant, KKO. The purpose of this review was to determine whether those conditions had been satisfied and whether a change of administrator was appropriate.
Following the last hearing, the Board was satisfied that HFO is a person with a disability, that he is incapable by reason of that disability of making reasonable decisions and that he is in need of an administrator. The Board appointed the Public Trustee on the following conditions:
“3 .That the applicant is directed to submit to The Public Trustee all financial records that they may require to determine whether the represented person’s share of the proceeds of the sale from registered properties folio numbers. XXXX/1 and XXXX/2 (the proceeds of sale) have been equitably invested or expended on his behalf and in his best interests.
4. Upon receipt of the financial records The Public Trustee shall audit those accounts and report to the Board. If the Public Trustee reports that it is satisfied that the proceeds of sale have been equitably invested or expended on the represented person’s behalf and in his best interests, the appointment of The Public Trustee shall cease to be the administrator and the applicant shall be appointed in their stead.”
The Board’s decision included the following paragraphs:
“The audit related to the following transactions: HFO and KKO were the proprietors of 2 blocks of land (Vol XXXXX folios 1 and 2) until they were sold in April 2008 for $[removed] and $[removed] respectively. The sale caused the Board concern on a number of fronts.
Firstly, KKO was unable to account for the proceeds of sale in an accurate or concise manner at the hearing. KKO did not answer a question, asked of her at the hearing, whether any of the sale proceeds had been applied to the purchase of a business she runs. The Board’s concern was that, having been joint property, the proceeds of sale need to be distributed equitably between HFO and KKO’s interests. In other words, KKO has had a fiduciary responsibility to HFO with regard to their joint assets, by…

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: [2009] TASGAB 15
Decision Date: 31 July 2009

CaseChat Overview and Summary

The Guardianship and Administration Board of Tasmania was tasked with reviewing the administration order for HFO, a 76-year-old man who requires an administrator due to his disability and inability to make reasonable decisions. The Board was required to decide whether the conditions set for the appointment of an administrator had been satisfied and whether a change of administrator was appropriate. The initial appointment of the Public Trustee as administrator was conditional upon KKO, the original applicant, providing financial records for audit and demonstrating that the proceeds of the sale of two properties had been equitably invested or expended on HFO's behalf and in his best interests. The Board's concerns included the lack of a clear account of the sale proceeds, the significant conflict between KKO and HFO's adult children, and KKO's lack of concern for compliance with the law.

The Board found inconsistencies in KKO's character and management of finances, despite her former employers' attestations to her skills and professionalism. The Board was also concerned about the significant conflict between KKO and HFO's two eldest children, which had deteriorated to open hostility. While KKO's appointment could provide familiarity with the estate and offer love and affection, the Board was not satisfied that she met the statutory tests for appointment due to the conflict within the family and her inconsistent performance during the proceedings. The Board determined that the Public Trustee's dispassionate and neutral approach would be more suitable for managing the estate, particularly in light of the entwined nature of the personal and business assets for HFO and KKO.

The Board amended the original order to appoint the Public Trustee as the administrator of HFO's estate, with powers and duties conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995. The order remains in effect until 29 March 2012. The President of the Board, Anita Smith, delivered the statement of reasons on 4 August 2009.

Orders