HRV - [2021] QCAT 395

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

HRV [2021] QCAT 395

PARTIES:

In applications about matters concerning HRV

APPLICATION NO/S:

GAA10404-20

MATTER TYPE:

Guardianship and administration matters

DELIVERED ON:

18 November 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

1. PK must pay $31,192.00 to the Public Trustee of Queensland within 28 days of the date of this order.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – where applicant seeks her costs, compensation and legal fees – where adult has executed an Enduring Power of Attorney – where applicant suspended at as attorney– where applicant claims administrator acting inappropriately – where no evidence to indicate administrator acting inappropriately – whether exceptional circumstances exist to make a costs order

Guardianship and Administration Act 2000 (Qld), s 33, s 34, s 35, s 40, s 59, s 127, s 129, s 130, s 138.

Powers of Attorney Act 1998 (Qld), s 28, s 41, Schedule 3

Public Guardian Act 2014 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 107

Bennett v Bennett [2014] QCATA 312

BXE [2015] QCAT 253

CRG [2019] QCAT 168

LER [2017] QCAT 266

Re ERF [2005] QGAAT 62

THV [2017] QCAT 116

APPEARANCES & REPRESENTATION:

the mother:

No appearance

Applicant/s:

E Blay, solicitor of Barry Nilsson Solicitors for PK

PTQ:

S Taylor for The Public Trustee of Queensland

REASONS FOR DECISION

HRV (hereinafter called “the mother”) is 96 and now resides permanently in a care facility in another country. PK (hereinafter called “the daughter”) is her biological daughter and one member of her mother’s complicated family structure which includes many biological and non-biological children.
Up until April 2019, the mother lived in a Queensland property. The mother’s assets also included interests in two other countries. However, in this jurisdiction, her assets were limited to one house and contents and a small amount of savings.
The daughter was appointed attorney for her mother under a Queensland Enduring Power of Attorney dated 6 January 2018 for financial, personal and health matters.
The mother required hospitalization in March 2019 and left Australia permanently in early April 2019.
On 2 May 2019 the Public Guardian of Queensland (the “OPG”) suspended the daughter’s powers as attorney after an investigation undertaken by that office.
On 1 August 2019 this Tribunal appointed The Public Trustee of Queensland (the “PTQ”) as administrator for the mother for all financial matters. No guardian was appointed as, by that time, the mother no longer resided in the jurisdiction. Although the PTQ was then the administrator for the mother, that office did not attend that hearing.
The first hearing attended by the PTQ occurred on 23 September 2019 where the existing administration order was refined by this Tribunal to remove the responsibility for day-to-day finances and the overseas pension received by the mother from the PTQ’s appointment.
In 2020, protracted and highly conflictual legal proceedings were occurring in another jurisdiction between the mother’s family…

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.

Continue reading HRV

Details

AGLC: HRV [2021] QCAT 395
Case: [2021] QCAT 395
Decision Date

CaseChat Overview and Summary

PK, the daughter of HRV, applied to the Queensland Civil and Administrative Tribunal (QCAT) seeking reimbursement for expenses she claimed to have incurred while acting as her mother's financial attorney, as well as compensation for her mother and reimbursement of her legal fees. PK also sought an order for the Public Trustee of Queensland (PTQ) to provide certain information and documents. The PTQ opposed the application and sought its costs against PK.

The court considered whether the daughter was justified in incurring the claimed expenses and legal fees. The court also considered whether the PTQ had breached its obligations under the Guardianship and Administration Act 2000 (Qld) and whether the PTQ should be ordered to provide the requested information and documents.

The court found that PK's claims for reimbursement of expenses and legal fees were not justified for the proper care and protection of her mother. The court found that PK had engaged in litigation for her own purposes, including to obtain a financial benefit, and that the requested information and documents were sought for the daughter's own benefit and not for the mother's benefit. The court found that the PTQ had not breached its obligations under the Guardianship and Administration Act 2000 (Qld) and that there were no exceptional circumstances to warrant an order for the PTQ to provide the requested information and documents.

The court ordered that PK pay the PTQ $31,192.00 within 28 days of the date of the order. The court set off the amount of $3,728.38, which the court allowed as reimbursement of expenses incurred by PK while acting as her mother's financial attorney.

The final orders of the court were that PK must pay $31,192.00 to the PTQ within 28 days of the date of the order.

Orders