KD
[2008] WASAT 109
•16 MAY 2008
KD [2008] WASAT 109
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 109 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:2466/2007 | DETERMINED ON THE PAPERS | |
| Coram: | MS J TOOHEY (SENIOR MEMBER) | 16/05/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | The applicant's costs of $3462.73 are to be paid out of the estate of KD | ||
| B | |||
| PDF Version |
| Parties: | SD |
Catchwords: | Costs s 16(4) Guardianship and Administration Act 1990 (WA) Whether applicant's legal and related costs should be paid out of the estate of the represented person Principles to be applied |
Legislation: | Guardianship and Administration Act 1990 (WA), s 16(4), s 65 State Administrative Tribunal Act 2004 (WA), s 87 |
Case References: | EA and KD, TA, LA, BA & VT [2007] WASAT 175 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KD [2008] WASAT 109 MEMBER : MS J TOOHEY (SENIOR MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 16 MAY 2008 FILE NO/S : GAA 2466 of 2007 BETWEEN : SD
- Applicant
Catchwords:
Costs - s 16(4) Guardianship and Administration Act 1990 (WA) - Whether applicant's legal and related costs should be paid out of the estate of the represented person - Principles to be applied
Legislation:
Guardianship and Administration Act 1990 (WA), s 16(4), s 65
State Administrative Tribunal Act 2004 (WA), s 87
Result:
The applicant's costs of $3462.73 are to be paid out of the estate of KD
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Solicitors:
Applicant : Self-represented
Case(s) referred to in decision(s):
EA and KD, TA, LA, BA & VT [2007] WASAT 175
(Page 3)
Summary of Tribunal's decision
1 The applicant asked the Tribunal to appoint an administrator for his sister, KD, and to revoke an Enduring Power of Attorney by which she had appointed two attorneys to act on her behalf.
2 The applicant had become concerned that KD's attorneys were not acting in her best interests. In particular, he was concerned that she had sold her unit for an amount well below its value without fully understanding the transaction or knowing that her attorneys were the purchasers through a company of which they were sole directors.
3 The Tribunal made an emergency order pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) appointing the Public Trustee plenary administrator for KD. It subsequently confirmed the Public Trustee's appointment as her plenary administrator. In that capacity, the Public Trustee has investigated other matters relating to the sale of KD's unit and is considering what action against her attorneys is open to her.
4 Before making his application to the Tribunal, the applicant obtained a valuation of KD's unit and sought advice from solicitors to ascertain her legal position. He asked the Tribunal for an order under s 16(4) of the Guardianship and Administration Act 1990 (WA) for his costs to be paid out of KD's estate. The amount was $3,462.73.
5 The Tribunal was satisfied that the applicant had acted in KD's best interests and that it was appropriate that his costs be paid out of her assets.
Background
6 KD has a progressive cognitive impairment arising out of a childhood illness. Her family and doctors describe her as having a very obliging nature which makes her vulnerable.
7 In October 2000, KD executed an enduring power of attorney (EPA) which appointed two friends her joint and several attorneys with unlimited authority.
8 The applicant, KD's brother, asked the Tribunal to appoint an administrator for her after he became concerned that her attorneys were not acting in her best interests. He also asked the Tribunal to revoke the EPA.
(Page 4)
9 The applicant became concerned after he learned that KD had sold her unit for an amount he believed to be about $100,000 below its value to a company of which her attorneys were the sole directors. KD appeared not to know who had bought the unit from her or where the proceeds of the sale were. Approximately six months later, having made some improvements to the unit, the attorneys sold it for $165,000 more than they had paid KD for it.
10 The Tribunal convened a hearing at short notice to consider the applications.
11 It was evident at the hearing that KD was confused about the sale of her unit and she could not say who had purchased it. It came out during the hearing that the attorneys had placed the proceeds of the sale to them into two bank accounts which, although they purported to be in KD's name, were in fact the attorneys' accounts. Further, although KD had originally sold her unit so she could pay a bond for the nursing home where she was by then living, the bond had not been paid; interest on the bond was accruing at a rate of $168 per week and had reached approximately $6,600.
12 The attorneys maintained that they had acted in KD's best interests at all times. They claimed they had asked her several times if she wanted to know who had purchased her unit but she was not interested and so they did not disclose that they were the directors of the purchaser company. They maintained they had put the proceeds of the sale into their own accounts to minimise any effect on KD's pension; they had not paid the bond to the nursing home because they were waiting to see if KD settled down after her initial unhappiness there.
13 The Tribunal found the attorneys' evidence lacked credibility.
14 At the time of the hearing, the Tribunal had limited information before it about KD's capacity to act on her own behalf. Pending a determination as to whether she was a person for whom an order should be made under s 64(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), the Tribunal made an emergency order under s 65 and appointed the Public Trustee her plenary administrator. It also revoked the EPA.
15 At a subsequent hearing the Tribunal was satisfied, on the evidence it had been able to obtain from KD's doctors, that she was unable, by reason of mental disability, to make reasonable judgments about her estate and was in need of an administrator. The Public Trustee had by that time taken possession of the proceeds of the sale and had
(Page 5)
- undertaken various investigations into the sale of KD's unit. He submitted that a prudent administrator would continue those investigations to ascertain if any action should be taken on KD's behalf.
16 Although the applicant had proposed he be appointed KD's administrator, the Tribunal considered it in her best interests that the Public Trustee continue in the role of administrator in order to finalise his investigations into the sale of the unit and to continue his negotiations with the attorneys' solicitors about the proceeds of the sale. The Tribunal appointed the Public Trustee plenary administrator for KD for a further six months.
17 On a recent statutory review of the Public Trustee's appointment, the Tribunal confirmed the appointment for a further 12 months to enable the investigation and negotiations to continue.
The application for costs
18 When the applicant learned that KD's unit was on the market for $165,000 more than she had received from her sale some months earlier, he obtained a valuation and sought legal advice, first from the Law Society shop front lawyer and then from a firm of solicitors, to ascertain her legal position. He seeks an order under s 16(4) of the GA Act for his costs to be paid out of KD's estate.
19 The costs incurred by the applicant comprise:
| 550.00 |
| 25.00 |
| 2867.73 |
3462.73 |
20 The applicant says he has also incurred costs of approximately $100 for various searches including internet searches of recent sales in KD's area, a lands title search to identify the purchasers, and a company search through the Australian Securities and Investments Commission; he paid for these by credit card but does not have receipts.
(Page 6)
21 The applicant has provided a copy of the costs agreement with his solicitor for work undertaken in respect of matters concerning the sale of KD's estate.
22 The Tribunal has asked the Public Trustee, as plenary administrator for KD, what his views are of the application for costs. The Public Trustee has been given details of the application including the costs agreement. He comments that "the bill is in line with expectations of what a reasonable charge would be" and he has no objection to the valuation fee or to reimbursement of the cost of the shopfront lawyer.
Relevant legislation
23 Section 16(4) of the GA Act provides:
"The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as [it] thinks fit be paid to that party by, or out of the assets of, that person."
24 The test in s 16(4) is apparently very wide: a party need only satisfy the Tribunal that they have acted in the best interests of the person whom proceedings concern. It hardly need be said that the great majority of parties in these proceedings have only the best interests of their close family member, or whomever the proceedings concern, at heart.
25 Section 16(4) must be read in light of s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which provides the starting point that, in proceedings before the Tribunal, parties are to bear their own costs. It is relevant that s 16(1) of the GA Act, which was repealed on proclamation of the SAT Act, provided the same starting point in that parties to proceedings under the GA Act were to bear their own costs unless otherwise provided, including by s 16(4).
Reasons
26 Something more than merely acting in the best interests of the person concerned is required before the Tribunal will order a party's costs be paid by, or out of the estate of, the person whom the proceedings concern.
27 In EA and KD, TA, LA, BA & VT[2007] WASAT 175, the Tribunal considered (at [57]) the circumstances in which it might be appropriate to order costs under s 16(4). They include where:
(Page 7)
- • it is unlikely that an application would have been made to the Tribunal had the applicant not sought legal advice;
• there are serious allegations that the person whom the application concerns is suffering abuse, and legal advice and representation is required to present a reasoned case to the Tribunal in a timely manner;
• conflict between certain parties is of such magnitude that it is unlikely they could present a coherent case to the Tribunal in respect of the history and needs of the person whom the application concerns without legal assistance;
• the application is of such complexity that legal advice and representation is required to present a reasoned case to the Tribunal;
• the application is contentious and unique, concerning a matter such as sterilisation; and
• the application raises a special point of law.
28 These principles are not limited to legal costs and may be applied to other costs such as those claimed by the applicant in this case.
29 The Tribunal is satisfied that it is appropriate in this case to order the applicant's costs be paid out of KD's estate. The applicant was aware that his sister was vulnerable because of her disability. He had reason to be concerned about the sale of her unit when he learned how much she had sold it for and how much it was on the market for only a few months later, and when she was not able to explain the sale price to him or to whom she had sold the unit.
30 The inquiries which the applicant made by way of a valuation of KD's unit and the various searches he conducted gave him further reason for concern when he learned the identity of the purchasers. He acted promptly to obtain advice about KD's situation, first by seeking legal advice from the Law Society's shopfront lawyer and then by seeking more substantive advice from a firm of solicitors.
31 The applicant then lodged his applications with the Tribunal, leading directly to the revocation of the EPA and the intervention of the Public Trustee as KD's administrator. Since then, the Public Trustee has taken possession of the proceeds of the sale, and the bond on the nursing home has been paid and interest has stopped accruing. Without the
(Page 8)
- applicant's action on her behalf, it is possible that KD's financial situation would by now be grave.
32 The applicant incurred costs only as far as necessary to bring the applications before the Tribunal. He did not instruct solicitors for the purposes of the hearings before the Tribunal even though others might have done so.
33 It is relevant that the Public Trustee as KD's administrator considers the costs incurred to be reasonable.
34 KD's financial resources are limited but in the Tribunal's view sufficient to meet the relatively small cost incurred by the applicant. Because there are no receipts available for the various searches undertaken by the applicant, those costs will not be included in the order.
Order
1. The applicant's costs of $3,462.73 are to be paid out of the estate of KD pursuant to an order under s 16(4) of the Guardianship and Administration Act 1990 (WA).
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER