KBB v NSB - [2019] QCATA 123

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

KBB v NSB and Ors [2019] QCATA 123

PARTIES:

KBB
(applicant/appellant)

v

NSB
KGT
SBB
QKB
HKB

(respondent)

APPLICATION NO/S:

APL080-18

ORIGINATING APPLICATION NO/S:

GAA3322-17; GAA1653-17

MATTER TYPE:

Appeals

DELIVERED ON:

18 July 2019

HEARING DATE:

26 October 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

Member Browne

ORDERS:

IT IS A DECISION OF THE APPEAL TRIBUNAL THAT:

1.   Grounds one and two of the appeal are allowed.

THE APPEAL TRIBUNAL DIRECTS THAT:

2.   The applicant must file in the Appeal Tribunal a written submission addressing the form of orders to be made under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in the disposition of the application for leave to appeal or appeal, by:

  4:00 pm on 25 July 2019.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where declaration of capacity about an enduring power of attorney sought – where adult made enduring power of attorney appointing attorneys to act for financial, personal and health matters – where adult gave instructions to solicitor to prepare a further enduring power of attorney appointing different attorneys for financial, personal and health matters - whether adult had capacity at time of signing the further enduring power of attorney – where evidence given about adult’s capacity at time of signing the further enduring power of attorney – where certain evidence not considered – where definition of capacity under the Guardianship and Administration Act 2000 (Qld) and the Powers of Attorney Act 1998 (Qld) applied – whether error in the application of s 41 of the Powers of Attorney Act 1998 (Qld) – whether natural justice observed

Acts Interpretation Act 1954 (Qld), s 14A
Guardianship and Administration Act 2000 (Qld), s 1, s 6, s 7, s 81 (1) (a), s 82 (2), s 115, s 146, Schedule 1, Schedule 2, Schedule 3, Schedule 4
Powers of Attorney Act 1998 (Qld), s 1, s 41, s 47, s 50, s 109A, s 113, s 114, Schedule 1, Schedule 2, Schedule 3
Queensland Civil and Administrative Tribunal Act 2019 (Qld), s 28, s 146(c)

Fox v Percy (2003) 214 CLR 118

Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2017] QCA 83

PL v PT & Ors [2018] QCATA 114

Re Caldwell [1999] QSC 182

Re Sal [2007] QGAAT 75

APPEARANCES & REPRESENTATION:

Applicant:

D Pendergast of counsel instructed by McCarthy Durie Lawyers

Respondent:

No appearance

REASONS FOR DECISION

This is an appeal from a decision made by a member of this Tribunal exercising powers under the Guardianship and Administration Act 2000 (Qld) (‘GAA’) about NSB’s capacity to make an enduring power of attorney (‘EPOA’).
By way of background, NSB signed two EPOAs appointing a number of her six children to be her attorneys, as follows:
(a)On 20 March 2013, NSB appointed KGT and KBB as her attorneys for financial and personal or health matters;…

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 KBB v NSB

Details

AGLC: KBB v NSB [2019] QCATA 123
Case: [2019] QCATA 123
Decision Date: 18 July 2019

CaseChat Overview and Summary

In the matter of KBB v NSB, the parties were engaged in a dispute over the capacity of an adult to sign a further enduring power of attorney. The case was heard in the Queensland Appeal Tribunal. The primary concern was whether the adult had the legal capacity to sign the document when it was executed. The Appeal Tribunal was tasked with determining whether the lower court had erred in its assessment of the adult's capacity at the time of signing and whether natural justice was observed in the process.

The legal issues before the Appeal Tribunal included whether there was an error in the application of section 41 of the Powers of Attorney Act 1998 (Qld) and whether the lower court had failed to consider certain evidence pertinent to the assessment of the adult's capacity. Additionally, the tribunal needed to determine if there was an error in law and whether the principles of natural justice were adhered to by the lower court in its decision-making process.

The Appeal Tribunal found that the lower court had indeed erred in its application of section 41 of the Powers of Attorney Act 1998 (Qld) and had failed to consider certain evidence that was relevant to the capacity assessment. The tribunal held that the lower court's decision was based on an incorrect application of the law and that it did not observe the principles of natural justice by not considering all relevant evidence. As a result, the tribunal allowed grounds one and two of the appeal, directing the applicant to file a written submission regarding the form of orders to be made in the disposition of the application for leave to appeal or appeal.

The tribunal's final orders included allowing grounds one and two of the appeal and directing the applicant to submit a written submission by 4:00 pm on 25 July 2019, outlining the form of orders to be made under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in the disposition of the application for leave to appeal or appeal. This decision indicates that the Appeal Tribunal found substantial legal errors in the lower court's handling of the case and will require further submissions to address the appropriate legal remedies.

Orders

Orders of the court

IT IS A DECISION OF THE APPEAL TRIBUNAL THAT:

1. Grounds one and two of the appeal are allowed.

THE APPEAL TRIBUNAL DIRECTS THAT:

2. The applicant must file in the Appeal Tribunal a written submission addressing the form of orders to be made under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in the disposition of the application for leave to appeal or appeal, by:

4:00 pm on 25 July 2019.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	KBB v NSB and Ors [2019] QCATA 123
PARTIES:	KBB (applicant/appellant)
v
NSB KGT SBB QKB HKB (respondent)
APPLICATION NO/S:	APL080-18
ORIGINATING APPLICATION NO/S:	GAA3322-17; GAA1653-17
MATTER TYPE:	Appeals
DELIVERED ON:	18 July 2019
HEARING DATE:	26 October 2018
HEARD AT:	Brisbane
DECISION OF:	Senior Member Guthrie Member Browne
ORDERS:	IT IS A DECISION OF THE APPEAL TRIBUNAL THAT: 1. Grounds one and two of the appeal are allowed. THE APPEAL TRIBUNAL DIRECTS THAT: 2. The applicant must file in the Appeal Tribunal a written submission addressing the form of orders to be made under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in the disposition of the application for leave to appeal or appeal, by: 4:00 pm on 25 July 2019.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where declaration of capacity about an enduring power of attorney sought – where adult made enduring power of attorney appointing attorneys to act for financial, personal and health matters – where adult gave instructions to solicitor to prepare a further enduring power of attorney appointing different attorneys for financial, personal and health matters - whether adult had capacity at time of signing the further enduring power of attorney – where evidence given about adult’s capacity at time of signing the further enduring power of attorney – where certain evidence not considered – where definition of capacity under the Guardianship and Administration Act 2000 (Qld) and the Powers of Attorney Act 1998 (Qld) applied – whether error in the application of s 41 of the Powers of Attorney Act 1998 (Qld) – whether natural justice observed Acts Interpretation Act 1954 (Qld), s 14A Guardianship and Administration Act 2000 (Qld), s 1, s 6, s 7, s 81 (1) (a), s 82 (2), s 115, s 146, Schedule 1, Schedule 2, Schedule 3, Schedule 4 Powers of Attorney Act 1998 (Qld), s 1, s 41, s 47, s 50, s 109A, s 113, s 114, Schedule 1, Schedule 2, Schedule 3 Queensland Civil and Administrative Tribunal Act 2019 (Qld), s 28, s 146(c) Fox v Percy (2003) 214 CLR 118 Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2017] QCA 83 PL v PT & Ors [2018] QCATA 114 Re Caldwell [1999] QSC 182 Re Sal [2007] QGAAT 75
APPEARANCES & REPRESENTATION:
Applicant:	D Pendergast of counsel instructed by McCarthy Durie Lawyers
Respondent:	No appearance