HM
[2012] QCAT 421
•5 September 2012
| CITATION: | HM [2012] QCAT 421 |
| PARTIES: | HM |
| APPLICATION NUMBER: | GAA415-12 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 20 April and 5 September 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Jim Allen, Member |
| DELIVERED ON: | 5 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The administrators are authorised to enter the following conflict transactions: (a) Payment of factory rent to HL in the amount of $16,600; and (b) Payment for labour to HL in the amount of $12,000. 2. The administrators are not authorised to enter any conflict transactions in regard to the building of the residence for HM. |
| CATCHWORDS: | Conflict transactions Guardianship and Administration Act 2000, s 37 |
APPEARANCES and REPRESENTATION (if any):
At the hearing on 20 April 2012 Mr Doug McClelland, Solicitor represented the parties.
REASONS FOR DECISION
HM was awarded a lump sum payment of approximately $1,800,000.00 as a result of a motor vehicle accident in 2001. His parents, HL and HB are his administrators having been appointed on 16 August 2010.
As a result of disclosures made in the accounts by the administrators lodged with the Tribunal’s approved examiner, Perpetual Trustees, the administrators were directed to make an application for approval of conflict transactions in respect of payments which were made to HL for factory rent in the amount of $16,600 and also for his labour in the amount of $12,000. The Tribunal confirms that these amounts have already been paid to HL.
The applications were made with a request that the administrators be authorised to pay themselves an amount of $6,000 per month to compensate for their inability to make a living or obtain employment due to their care for HM.
It was explained by HL that the rent related to a factory which HL had purchased, which was partially used by HM as a residence, and also for the construction of a kit car and fabrication of items, such as street lamps to be used at HM’s residence.
The amount for labour represents payment to HL for work he has done at HM’s property in respect of the preparation of the property for the building of a kit home.
It was proposed by HL that he be paid as an owner-builder to construct the home on the land for HM. It was said that this would result in cost savings to HM. As his father would be the builder, there would be an opportunity for HM to participate in the construction of the dwelling which would be therapeutic for him.
An administrator may only enter a conflict transaction if it is authorised by the Tribunal in accordance with section 37 of the Guardianship and Administration Act 2000. The Tribunal, in making its decision, does so in accordance with the General Principles under Schedule 1 of the Act in accordance with section 11 of the Act. In particular here is the encouragement of self reliance – general principle 6 and substituted judgment – general principle 7. There is a caveat to this though that a person or other entity performing a function must do so in a way consistent with HM’s proper care and protection and that includes protection of his financial interests.
The Tribunal accepts that HM used his father’s factory premises and as such HL is entitled to rent. Further, that HM has expressed a desire that his father assist him in the preparation for the building of his residence. This work is above and beyond work that is expected of an administrator and it is fair that HL be fairly remunerated for it. The Tribunal accepts that HL is a witness of honour and that he has spent the time necessary to justify the claim for labour of $12,000.00.
The Tribunal notes that there was a reimbursement of $18,606 for water tanks and although the invoices for these are incorrectly in HL’s name, the Tribunal accepts that they were for use on HM’S property and that HL is entitled to re-imbursement for the expenses under section 47 of the Act.
In regard to the proposal that HL be paid at an hourly rate as an owner-builder to complete the construction of the house, there is an issue in regard to the level of particularity which HL was able to provide in terms of the amount of work he was proposing be authorised.
The Tribunal made directions on 20 April 2012 requiring that a quote be obtained from a licensed builder for comparison purposes and that has not been received. This would mean that the Tribunal was effectively being asked to authorise an open cheque as there was no contract proposed.
This has raised an issue in that there could be no contract as HL is an owner-builder only and he is not authorised under the Queensland Building Services Authority Act 1991 to build a house on any land but his own, see section 43D of that Act. The Tribunal in protecting HM’s financial interests cannot authorise a transaction which is illegal and may put the value of any house built on his land at risk.
As a result of the fact that HL is not a licensed builder and as an owner-builder is not authorised to build a house on HM’s land, the Tribunal does not authorise the administrators to enter any conflict transactions in regard to the building of the residence for HM.