HL
[2012] QCAT 637
| CITATION: | HL [2012] QCAT 637 |
| PARTIES: | HL |
| APPLICATION NUMBER: | GAA6814-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 10 October 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 12 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | ADMININISTRATION – application for directions to former Administrator – new Administrator claims lack of communication and unnecessary legal process Guardianship and Administration Act 2000 BH [2012] QCAT 179 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self-represented |
REASONS FOR DECISION
HL is a 62 year-old woman with a serious mental health illness who, since 23 August 2006, has been found by the former Guardianship and Administration Tribunal of Queensland and this Tribunal as lacking capacity to manage her financial affairs.
In 2006 the Public Trustee of Queensland (PTQ) was appointed as Administrator for HL for all financial matters. That appointment continued until 29 March 2012 when, following an application for review of the appointment of an Administrator by her son HG, the Tribunal changed the Administrator by removing the PTQ as Administrator and appointing HL’s sons, HG and HM, jointly and severally as Administrators for HL for all financial matters until further order.
Shortly after their appointment the new Administrators contacted the Tribunal Registry raising concerns about the former Administrator, the PTQ, in that it did not act honestly and in a timely manner and did not consult with others and keep them informed about their actions and decisions.
Of particular concern to the Administrators was the receipt, in early April 2012, of a Notice of Intention to Commence Proceedings by a collection agency in relation to a debt for unpaid solicitors fees for the sum of $1,122.00. It was not clear what the Administrators were seeking from the Tribunal at that time. However, in July 2012 the Administrators lodged an application for directions as they were unable to complete a financial management plan as ordered by the Tribunal on their appointment.
In that application the Administrators advised that the former Administrator, the PTQ, continued to hold $20,000.00 of HL’s funds and had not disclosed the legal fees relating to a protracted and unnecessary legal process in which HL was not engaged.
On 17 August 2012 the Administrators advised the Tribunal that the directions they sought were:
i) PTQ transfer all funds to HL to enable the financial plan to be finalised;
ii) that the legal fees not be taken as HL did not consent nor was engaged in the legal process;
iii) legal costs incurred by their father HG senior be reimbursed by the PTQ;
iv) that QCAT review the process engaged by PTQ on behalf of their mother without consultation with her and her family during and after the legal process;
v) PTQ respond by end September 2012.
Section 32B of the Guardianship and Administration Act 2000 provides the Tribunal may give directions to a former Administrator that it considers necessary because of the ending of an appointment.
At hearing on 10 October 2012 the PTQ was represented by Shaune McPherson and Ian Campbell represented the Official Solicitor Office. Both attended by telephone.
HG represented the Administrators and also attended by telephone.
HG confirmed he was seeking the outstanding money from the property settlement between HL and her former husband HG senior of around $20,000, and that the legal expenses incurred through that legal process be paid by PTQ as the PTQ had engaged in the legal process without sufficient consultation, transparency and documentation.
HG thought the legal process unnecessary as he was of the view his father, HG senior, was always going to hand over money to his ex-wife HL.
The PTQ and Official Solicitor advised the Tribunal that following the finalisation of legal costs relating to the property settlement, through property arbitration, $15,854.00 was paid into HL’s account yesterday.
The PTQ outlined to the Tribunal the legal process undertaken on behalf of HL. This included referral of the property settlement to the Official Solicitor, contact and application to Legal Aid and engagement with a private solicitor to represent HL.
Furthermore the PTQ advised of the engagement with HG senior, and his subsequent withdrawal of consent in the arbitration process that resulted in the original solicitor withdrawing from the process, as consent was required to obtain legal aid.
PTQ advised when it was later contacted by HG senior’s solicitor advising all the family were in agreement the PTQ then engaged another solicitor to represent HL.
The property matter consequently settled with consent orders in early January 2012 for a sum of $84,363.00.
PTQ advise the Official Solicitor’s costs were $7,424.00 and the second solicitor’s costs $2,300.00.
PTQ advise it received no invoice from the first solicitor it engaged.
It is clear that the Notice of Intention to Commence Proceedings received by HL shortly after her sons had been appointed Administrators relates to the unpaid fees of the first solicitor engaged by the PTQ. A sum of $1,122.00 remained outstanding at the time of hearing.
Notwithstanding the PTQ’s outline of the legal process undertaken and the remainder of the settlement money being paid into HL’s account, along with Mr Campbell’s offer to peruse the account issued by the first solicitor for the work undertaken on HL’s behalf, HG was not satisfied with the PTQ’s explanation and remained aggrieved by alleged lack of consultation around the legal process.
Although the Tribunal indicated to HG that the legal process as explained appeared a reasonable process to secure HL’s assets it appeared to the Tribunal HG was seeking compensation for what he claimed were unnecessary legal costs and lack of consultation.
The Tribunal adjourned the hearing and issued directions so that the Administrators were given an opportunity to make written submissions in relation to any compensation for alleged breaches of the Guardianship and Administration Act 2000, and an opportunity for the PTQ to respond.
On 1 November 2012 the Tribunal received submissions from HG in essence submitting to the decision of the Tribunal as to whether the total legal costs as outlined by the PTQ and Official Solicitor were reasonable in the context of their vulnerable mother not being informed of the process despite family concerns.
The PTQ, through the Official Solicitor’s representative Mr Campbell, advised the Tribunal that they were not intending to provide any submissions in response. However, Mr Campbell noted that since the hearing date he had perused the first solicitor’s account as he had offered and communicated his view to HG that the six items in the account were valid in so far as the work came as a result of correspondence to or from the PTQ.
Mr Campbell also indicated that had the account been presented to the Official Solicitor whilst the PTQ was Administrator he would have recommended it be paid. Mr Campbell provided the Tribunal a copy of the account and his memorandum of 18 October 2012 to HG outlining his observations. Mr Campbell states HG has accepted the legal fees were fair and reasonable.
It is apparent that when HG and his brother were appointed Administrators in March 2012 the legal costs associated with HL’s property settlement had not been finalised. It appears that whilst most of the settlement funds were paid to HL’s account a significant sum was withheld subject to finalisation of the costs.
It remains unclear to the Tribunal why it took the PTQ until the day before the hearing of this application to ‘finalise’ the costs and transfer the remaining funds to HL’s account, some 9 months after settlement by consent orders.
It is also unclear to the Tribunal why the PTQ in ‘finalising the legal costs’ did not consider the initial work undertaken by the first solicitor acting on behalf of HL.
Whilst the Tribunal accepts the PTQ’s claim that it did not receive the first solicitor’s account the Tribunal notes the account, dated 14 June 2011, was addressed to the PTQ/Official Solicitor. Furthermore HG sent a copy of the Notice of the Intention to Commence Proceedings to the PTQ on 9 April 2012 at the same time as he contacted the Tribunal with his initial concerns about the Notice. Notwithstanding HG and HM were then the Administrators the Tribunal is of the view it would have been appropriate for the PTQ to sort out the outstanding bill and the Notice associated with it given the solicitor had been engaged by the PTQ and the PTQ had not at that time finalised the legal costs.
Until his recent correspondence, stating we accept the Tribunal’s judgement as to whether the total legal costs as outlined by the PTQ are fair and reasonable, HG’s main grievance relates to lack of communication and the unnecessary engagement in the legal process by the former Administrator.
The PTQ as Administrator is required to secure HL’s assets and protect her rights. Upon discovering property settlement had not been finalised following her divorce from HG senior the Tribunal is satisfied that it was not unreasonable for the PTQ to engage in a legal process to bring about property settlement with a level of certainty rather than rely on some informal undertaking by HG senior.
It is usual that once engaged in a legal process the solicitor’s representing the parties would communicate with each other and their respective client.
Although the communication may not have been to the extent the family and current Administrators expected the Tribunal is not persuaded, nor does it have any evidence to this effect, that the level of communication during the legal process caused detriment to HL or diminished the ultimate settlement sum.
In relation to the total level of legal costs the Tribunal makes no finding. The Tribunal does not provide the services of a specialised cost assessor. Furthermore the Tribunal does not have itemised accounts of the legal costs except for the first solicitor’s account. If the Administrators have genuine concerns about the level of legal costs it is up to them to decide whether to get the accounts assessed. However that assessment itself would incur a cost that may not ultimately result in a financial beneficial to HL. The Tribunal notes the costs as stated are not at the high end of legal costs.
This matter was brought through an application for directions. Given the remainder of the settlement funds have been paid into HL’s account and the Tribunal is satisfied that the legal process to bring about property settlement was not unreasonable, notwithstanding any gaps in communication with either HL or her family, the directions as requested are not necessary. The Tribunal accordingly orders that the application is dismissed.
Although this matter was initiated through an application for directions the Tribunal considered it may relate to an issue of compensation and so gave the Administrators the opportunity to make written submissions. The Administrators as noted above advised that they would submit to the Tribunal’s decision. As a matter of note and interest the Tribunal refers the Administrators to a decision of this Tribunal in the case of BH [2012] QCAT 179. In that case the Tribunal decided based on statutory interpretation that it did not have the authority under the Guardianship and Administration Act 2000 to award compensation against a former Administrator. The QCAT Appeal Tribunal recently confirmed that decision.
Finally, the Tribunal notes that the Administrators were appointed on 29 March 2012 and in accordance with that order are required to provide accounts to the Tribunal 2 months prior to the anniversary of the appointment. That is 29 January 2013. Given that time is almost upon the Administrators the Tribunal recommends that the Administrators provide the Financial Management Plan, that was ordered for mid-2012, be provided at the same time those accounts are due.
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