KFE

[2021] NSWCATGD 42

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KFE [2021] NSWCATGD 42

Hearing dates:

26 May 2021

Date of orders:

26 May 2021

Decision date:

26 May 2021

Jurisdiction:

Guardianship Division

Before:

J Moir, Senior Member (Legal)
Dr M Jarrett, Senior Member (Professional)
K J McIvor, General Member (Community)

Decision:

In relation to the enduring power of attorney made by KFE (deceased) on 15 October 2010 which appointed KAJ as attorney the Tribunal determines, orders or declares:

not to carry out a review of the operation and effect of the enduring power of attorney.

The request by KAJ for costs is dismissed.

Catchwords:

REVIEW OF AN ENDURING POWER OF ATTORNEY – application to review the operation and effect of an enduring power of attorney – principal deceased at the time of application – whether Tribunal has power to review – whether Tribunal should order accounts – Tribunal exercises discretion not to conduct a review of the enduring power of attorney – no order made – application dismissed

INTERLOCUTORY – standing – whether the applicant has standing to bring the application – applicant is an “interested person” – standing established

COSTS – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether there are “special circumstances” to warrant a costs order – proceedings reasonably commenced – standing to bring application – no special circumstances – application dismissed

Legislation Cited:

Civil Administrative Tribunal Act 2013 (NSW), ss 36, 55, 60, 60(1)-(4)

Court Security Act 2005 (NSW), s 9

Powers of Attorney Act 2003 (NSW), s 19, 35, 36, 36(1)-(2)

Cases Cited:

DPT [2015] NSWCATGD 3

KBX [2015] NSWCATGD 2

KTC [2011] NSWGT 23

MQN (No 2) [2018] NSWCATGD 47

Susan Elizabeth Parker v Margaret Catherine Higgins [2012] NSWSC 1516

UQH [2014] NSWCATGD 37

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

007: Review of an Enduring Power of Attorney

KFE (deceased) (the person)
SZM (applicant)
KAJ (attorney)
LYF (substitute attorney)
NSW Trustee and Guardian

Representation:

Solicitor: D Freeman for KAJ

File Number(s):

NCAT 2011/00419331

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

REVIEW OF ENDURING POWER OF ATTORNEY   

Background

1. KFE died on 22 January 2017 at the age of 98. On 15 October 2010, KFE appointed her daughter, KAJ, as her attorney and her son-in-law, LYF, as her substitute attorney under an enduring power of attorney. This instrument remained in place until KFE died.

2. KFE had previously made an enduring power of attorney on 15 October 2000 appointing her son, SZM, and KAJ as her attorneys. KFE revoked that instrument in 2010 and SZM was advised of this.

3. KFE was the subject of applications to the Tribunal by SZM for financial management orders in April 2011 and March 2013. These applications were dismissed, the first, after a hearing, and the second after SZM withdrew the application. SZM also initiated defamation proceedings against his mother and her attorneys in 2012, which was settled in mediation.

4. The administration of KFE’s estate has also been the subject of two proceedings in the Supreme Court, initiated by SZM. The most recent proceedings were dismissed by way of consent orders on 23 November 2020.

5. On 20 January 2021 the Tribunal received an application from SZM, asking the Tribunal to review the enduring power of attorney made on 15 October 2010. He raises concerns regarding the actions of the attorney which led to his mother making the instrument, as well as her actions as attorney. He seeks an order compelling KAJ to give him financial documentation relating to KFE’s affairs during the time that she was acting as attorney. SZM asserts that there is around $50,000 of transactions on KFE’s accounts that KAJ should account for.

6. The Tribunal held a directions hearing on 2 March 2021 and granted leave for KAJ to be legally represented by Mr Darryl Freeman, solicitor. The parties were directed to provide evidence and make submissions specifically in relation to the issues of whether SZM is an “interested person”, and able to validly make an application; and whether the Tribunal should exercise its discretion to conduct a review: Powers of Attorney Act 2003 (NSW), s 36. The Tribunal directed the parties’ attention to a number of cases which dealt with the Tribunal’s discretion when dealing with applications regarding enduring powers of attorney where the principal has since died.

7. These Reasons for Decision arise from the hearing of the application to review the enduring power of attorney.

Conduct of the hearing

8. The hearing was conducted by telephone and videoconference and the Tribunal spoke with SZM, KAJ, LYF and Mr Darryl Freeman, solicitor.

9. The Tribunal stood the matter down for two short periods at the start of the hearing to allow KAJ, LYF and Mr Freeman time to read a letter SZM had submitted on 7 May 2021, which they had not previously seen. They had no objection to proceeding with the hearing, having had that opportunity.

10. Early in the hearing Mr Freeman asked SZM to confirm that he was not recording the hearing, as this has apparently been an issue in the past. Mr Freeman stated for the record that he and his clients did not consent to being recorded by SZM. SZM responded that he “would neither confirm nor deny” whether he was recording the hearing. The Tribunal advised him that the Tribunal made an official recording as is the usual practice and that he was not permitted to make his own recording of the proceedings. [1] Having put SZM on notice of this, the hearing proceeded.

    1. Section 9, Court Security Act 2005 (NSW).

What did the Tribunal have to consider?

11. The Tribunal may, on the application of an interested person, decide whether or not to review the making of, or the operation and effect of a reviewable power of attorney: Powers of Attorney Act, s 36(1). It is important to note that the Tribunal is not compelled to conduct a review in every case.

12. It is well established that the death of a principal/donor of an enduring power of attorney terminates the power. However a number of cases in this Tribunal [2] have found that the Powers of Attorney Act does not prevent the Tribunal from reviewing an enduring power of attorney after the death of the principal. These cases provide guidance as to the circumstances under which the Tribunal might exercise its discretion to conduct a review.

    2. See, for example, UQH [2014] NSWCATGD 37; KBX [2015] NSWCATGD 2; DPT [2015] NSWCATGD 3.

13. In his application SZM asserts that his sister unduly influenced KFE to make the 2010 enduring power of attorney, and thereby questions its validity. He also raises questions about her conduct as attorney, referring to substantial sums of money which have not been accounted for to his satisfaction.

14. At the hearing SZM did not press his concerns regarding the making of the instrument, and confirmed that he wanted the Tribunal to order the attorney to produce financial records so he could satisfy himself about the management of his mother’s finances. On this basis, the Tribunal focussed its attention on the operation of the enduring power of attorney, rather than on the making of the enduring power of attorney. The Tribunal noted that the Tribunal’s Reasons for Decision from 25 August 2011 demonstrate that in deciding not to make a financial management order, detailed consideration was given to the evidence (including KFE’s own account) regarding KFE’s financial capability, the making the enduring power of attorney in 2010 as well as SZM’s allegations of undue influence.

15. If the Tribunal decides to review the operation and effect of a reviewable power of attorney, there is a further discretion whether or not to make an order under s 36 of the Powers of Attorney Act (s 36(2)). The Tribunal may make orders relating to the operation and effect of a power of attorney if it is satisfied:

• that it would be in the best interests of KFE to make the order

• that it would better reflect the wishes of KFE to make the order

16. In UQH the Tribunal was satisfied that the principal’s “best interests” could only be assessed as at the date of the hearing and into the future. That Tribunal was satisfied that once the principal had died, it was not possible to have regard to the principal’s “best interests” and it was therefore not possible to make orders on this basis. This Tribunal agrees with that reasoning and adopts the same conclusion. This limits the basis on which the Tribunal could make orders in this case to whether the orders would “better reflect” KFE’s wishes.

17. In the event that the Tribunal decided to make orders, the options are very broad, and include revoking the instrument, removing an attorney and changing the terms of the powers. However, most orders which could be made are irrelevant once the instrument is no longer in effect. Relevantly, the order which reflects what SZM is seeking is as follows:

• An order directing the attorney to:

1. Furnish accounts to the Tribunal or someone nominated by the Tribunal

2. Lodge a copy of all records and accounts of dealings and transactions made under the power

Summary of submissions and orders sought

18. As noted above, SZM asks the Tribunal to order his sister to provide full financial records for KFE for the whole period she was attorney. SZM asserts that as attorney, his sister has failed to account to him for some $50,000 of expenditure from KFE’s funds during this period. Whilst she had provided him with spreadsheets showing expenditure, he felt these were inadequate and wanted to see the “source” documents from which the information on the spreadsheets was derived including bank statements and invoices. SZM asserts that KAJ was under a legal obligation to provide him with records of her actions as attorney on request. He based this on a “Fact Sheet” produced in 2014 by Land and Property Information, a division of the NSW Department of Finance and Services. SZM provided a copy of this document. This document states, that an attorney must keep “proper accounts and records” of how they handle the principal’s money and assets, and then states “The NSW Trustee and Guardian, or anyone interested in your welfare, can require the attorney to produce these accounts and records.” This information is not a correct reflection of the provisions in the Powers of Attorney Act, but SZM has relied upon it, given it is a publication from a government source.

19. In addition to this, SZM also asserts that KAJ was obliged to provide him with this information on the basis of undertakings made to him during the previous Tribunal proceedings, noting that he withdrew his application on the basis of these undertakings.

20. Mr Freeman made detailed submissions and provided evidence in support. In summary he submits that the Tribunal should not be satisfied that SZM is an “interested person” and that on this basis, there is no valid application for review. In the event that the Tribunal considers there is a valid application, he submits that the Tribunal should not exercise its discretion to conduct a review. He also submits that the Tribunal should consider dismissing the application under s 55 of the Civil Administrative Tribunal Act 2013 (NSW) (CAT Act) on the basis that SZM is “barred” from bringing it because of the principle of res judicata (the matter has already been determined) and/ or, that the application is vexatious.

Overview of evidence

The instrument under review

21. The enduring power of attorney under review was executed by KFE on 15 October 2010, at a time when she was living at a nursing home in Northwest Sydney. KFE appointed KAJ as her attorney. In the event that she predeceases KFE or becomes incommunicate, KFE appointed LYF as attorney. The appointment was to take effect immediately and the attorney was not given any additional authority to confer benefits on anyone other than KFE. The s 19 (of the Powers of Attorney Act) certification was given by Mr Z, solicitor. KAJ accepted her appointment on the same day. On its face, this instrument appears to be in proper form and validly made.

Relevant background regarding previous proceedings

22. This history is distilled from the statements and evidence submitted by each of the parties, and is largely undisputed. Information that relates to the opinion of one party or another is specifically noted. The Tribunal considers that this provides important context to the current application.

23. Dr Y, KFE’s GP, prepared a letter dated 5 October 2010 in relation to the issue of KFE’s capacity to make the enduring power of attorney under review. Dr Y states that he discussed her intentions and tested her understanding, as well as exploring the consequences of her planned changes, which he states involved terminating SZM’s appointment as attorney and appointing KAJ and LYF as executors. He notes that he had explained that this would “very likely lead to [SZM] becoming very angry with her and maybe not talking to her ever again”. Dr Y concluded that KFE is “in her right mind and fully capable of making informed decisions.” He states that she was “very clear that understanding the full implications of her decisions she is still of the opinion that this is the course that she wishes to undertake”. He concludes “There is no medical reason whatever to doubt that she is capable and is making these decisions of her own free and unencumbered will with complete understanding of their meaning and implications.”

24. In a letter from Mr Z, solicitor to KFE and the attorneys dated 21 December 2010, he indicates that SZM “does not appear willing to accept that his own mother has changed her arrangements regarding the previous power of attorney… and is quite prepared to allege manipulation and misunderstanding on the part of [LYF] and [KAJ].” Mr Z suggests that the parties might consider some kind of reconciliation as litigation is expensive and emotionally draining.

25. SZM initiated two applications to this Tribunal (or its predecessor) for financial management orders brought by SZM, both of which related to KAJ’s appointment, and actions as attorney. He also brought defamation proceedings against his mother and her attorneys in 2012, apparently on the basis of assertions they had made regarding his financial relationship with his mother. Mr Freeman and KAJ state that that the proceedings in this Tribunal and the defamation proceedings further damaged the relationship between SZM and his mother. KAJ states that after the mediation of the defamation proceedings, her mother instructed her not to give SZM any information about her financial affairs.

26. In a document provided to the Tribunal entitled “Statement of reasons for making changes to my will in May 2012” signed by KFE and dated 11 May 2012, and witnessed by Mr Z, KFE provides some history of the conflict and estrangement from SZM. She also provides an explanation for her decision to change her enduring power of attorney in 2010 and her will in 2012. The change to her will involved subtracting legal costs caused by SZM’s legal challenges against her and her attorneys from the bequest to SZM.

27. KFE made a further will on 27 July 2013, again reducing her bequest to SZM to one quarter of her estate. This bequest is subject to the terms of Clause 7, which deduct the balance of a loan (and any interest payable) KFE made to him, as well as all legal and other costs incurred by her, her estate, KAJ and LYF since 15 October 2010 arising from legal actions brought by SZM. The aggregate of the amounts deducted from SZM’s share of her estate were to be paid to KAJ and LYF.

28. In March 2017 KAJ and LYF commenced the process of applying for a grant of probate and SZM placed a caveat on that application. They lodged a Statement of Claim by Executors for a Grant of Probate in August 2017 and SZM lodged a defence, challenging KFE’s testamentary capacity and other matters, including making allegations of duress. On 15 May 2019, the Supreme Court made consent orders including that probate of the will dated 27 July 2013 be granted to KAJ and LYF, and that SZM’s cross claim be dismissed.

29. The Supreme Court Judgement/Order dated 15 May 2019 includes an agreement between the parties that the executors determine that no money is due to the estate or to them personally in relation to the terms of Clause 7 of KFE’s will. The impact of this was that, by agreement, SZM was to receive the 25% allocation of KFE’s estate with no deductions.

30. In September 2020, SZM commenced new proceedings in the Supreme Court in relation to KAJ and LYF’s actions as executors of KFE’s estate. A copy of the Notice of Motion SZM lodged in these proceedings detailing the orders he sought, dated 18 September 2020, included a number of matters regarding disputed contents of KFE’s estate, but also included “an order that the plaintiffs fully respond to the defendant's satisfaction within 14 days to all the financial queries forwarded to the plaintiff’s solicitor on 7 May 2020 and the first plaintiff provide to the defendant within 14 days copies of all financial records with evidence of payments made while she was sold power of attorney for the deceased finances from 15 October 2010 to 22 January 2017”. The document dated 7 May 2020 sets out SZM’s financial queries, including very detailed questions about decisions he asserts were made by KAJ whilst she was appointed as attorney for her mother, as well as requests for invoices or other primary evidence to substantiate certain payments that were made.

31. The Tribunal considered case management orders and directions made on 23 November 2020 by Hallen J in relation to those proceedings, the primary order is that the “Defendants notice of motion filed on 21 September 2020 be dismissed generally, to the intent that he is prevented from claiming the same relief in these or any fresh proceedings.” It goes on to note certain agreements between the parties (on a without admission basis) in relation to the details of the administration of the estate (including ownership of a “box of gemstones”) and sets a timeframe for the conclusion of the administration of the estate. There is no reference to any orders or undertakings in relation to provision of financial records or answers to financial queries in response to the order sought above.

32. SZM made this application two months later, on 20 January 2021. The Tribunal was advised that the administration of KFE’s estate has been finalised and SZM has received his bequest.

Does SZM have standing to make the application?

33. The first question the Tribunal had to consider was whether there is a valid application. If an application is brought by a person who is not authorised to do so, there is no valid application and the Tribunal cannot proceed to consider it. This is referred to as a person having “standing” to make an application.

34. Section 36 of the Power of Attorney Act provides that an application to review an enduring power of attorney must be made by an “interested person”, which is defined in s 35 of the Power of Attorney Act as:

1. an attorney (including an attorney whose appointment has been purportedly revoked),

2. the principal,

3. any person who is:

1. a guardian of the principal (whether under the Guardianship Act 1987 (NSW) or any other Act or law), or

2. an enduring guardian of the principal under the Guardianship Act,

4. any other person who, in the opinion of the review tribunal, has a proper interest in the proceedings or a genuine concern for the welfare of the principal.

35. In UQH, the Tribunal observed that where the principal has died, the welfare of the principal is not a relevant consideration. This Tribunal accepts that reasoning and adopts the same approach.

35. As SZM does not meet the criteria at (a)-(c), the only basis on which he can be considered to be an “interested person” is if the Tribunal is satisfied that he has a “proper interest in the proceedings”.

36. The meaning of this expression was considered by the Tribunal at some length in the decision KTC [2011] NSWGT 23. In that case (in which the principal was still alive) the Tribunal “saw the word “proper” as meaning that the interest of the applicant must be appropriate to the powers of the Tribunal on a review, in other words there must be a nexus between the interest and the powers on the review”.

37. Mr Freeman submits that in KTC, the Tribunal concluded that a “proper interest” test goes beyond a genuine concern test; it should be interpreted cautiously, taking into account the intrusion on the affairs and privacy of the principal; and must be decided on a case by case basis. This approach was also adopted in UQH, where the Tribunal found that the applicant’s motives were to gather information for other proceedings, which was not a proper interest. Mr Freeman states that in this case, given the history of litigation, and the lack of a “logical argument or valid reason supporting the application”, SZM’s true motive and purpose is “yet another attempt” to bully and intimidate the attorney”.. and to “punish her” for KFE varying her will. He states that there is “no nexus between the interest of the applicant and the powers on the review”.

38. SZM states that he has made the application because of the “complete absence of any transparency and accountability by the defendant with [KFE]’s financial records to me (as an interested person)”. He relies on the information from the factsheet referred to above which suggested that he has a “right” as an “interested person” to be provided with accounts. He asserts that KAJ has a “well-documented history of dishonesty and deception” and that she has gained financially to his detriment. He acknowledges that KFE can no longer benefit from this but states that “its approval is necessary to ensure that [KFE]’s finances were correctly administered during the POA period” because this would “better reflect the wishes of the principal”.

39. SZM submits that he is an interested person and can legitimately bring this application because: he is a child of the deceased; he previously had an application accepted in the jurisdiction in March 2011; and he is a beneficiary to KFE’s estate, and as such “has an interest in ensuring that the correct funds were in [KFE]’s account at the time of her death”. In support of his submission, SZM refers to a decision in MQN (No 2) [2018] NSW CATGD 47 in which the Tribunal was satisfied that the applicant, as the daughter of the subject person “could reasonably be considered to have the necessary concern”.

40. The Tribunal notes that MQN deals with applications for a guardianship order, a financial management order and a review of an enduring power of attorney. Based on the published Reasons for Decision, the “standing” test which SZM refers to in his submission relates to the application for a financial management order and requires the person to have a “genuine concern for the welfare of the person”. This is not the same as the standing provision for a review of the enduring power of attorney. The difference is more significant in this matter because, for the reasons already explained, the “genuine concern” provisions in s 36 of the Power of Attorney Act aren’t relevant to this matter. The Reasons for Decision for MQN do not provide any analysis of why that Tribunal was satisfied that the applicant met the definition of an “interested person” to make the application to review the enduring power of attorney, but it is relevant that in that case the principal was alive. On this basis the Tribunal does not accept that MQN provides any authority in relation to SZM’s standing to bring this application.

41. Nonetheless, the Tribunal was satisfied in this case that SZM is an “interested person” and is able to bring the application. In coming to this decision, the Tribunal accepts that he is operating, at least in part, because of a genuine belief that he has a legitimate interest in ensuring that his late mother’s affairs were properly managed. The Tribunal was influenced by the fact that, in coming to this view SZM has relied on information in a government publication. Even though the information in this publication is not correct, SZM was entitled to rely on it in making this application. However, it should not be presumed that the Tribunal would take the same view should SZM make further applications relating to these issues.

Should the application be dismissed under s 55 of the CAT Act?

43. Section 55 of the CAT Act provides that the Tribunal may dismiss any proceedings in a range of circumstances, including if the Tribunal considers that the proceedings are “frivolous or vexatious or otherwise misconceived or lacking in substance”.

44. Mr Freeman submits that the issues in this application were also raised in his September 2020 application to the Supreme Court. As noted above, the consent orders from those proceedings provide that SZM is “prevented from claiming the same relief in these or any fresh proceedings”.

45. SZM disputes that the matters he has raised in this application were resolved in the Supreme Court proceedings and that thereby he is not prevented by the terms of those orders from bringing this application. The Tribunal accepts the consent orders hold some ambiguity about whether SZM is prevented from pursuing the matters raised in this application, because they are not matters for which any relief was given in the Supreme Court proceedings. On this basis the Tribunal was not persuaded that the application could be dismissed under s 55 of the CAT Act.

Should the Tribunal conduct the review?

46. As noted above, the Tribunal has a discretion whether or not to conduct a review. The Powers of Attorney Act does not provide any guidance about the criteria which should be considered when making this decision. In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated [at 80]:

“On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what... (a party)...has produced.”

47. SZM submits that the Tribunal should conduct a review as requested because at the Tribunal hearing in August 2011 his sister had committed to providing him with financial records if she remained the “sole POA”. However she had failed to do so, despite several requests, until she provided the spreadsheets in 2019. He does not consider that these are “reasonable records”. In his view the fact that she provided the spreadsheets is “defacto acknowledgement …of her obligation to provide such information to me despite ignoring my previous requests”. KAJ disputes that she ever made undertakings of this kind, and noted that her mother asked her not to share financial information with SZM. Even if KAJ did make this undertaking, the Tribunal cannot compel her to give effect to this.

48. SZM has made this application on the premise that the attorney had a responsibility to provide accounts to him, which meet his satisfaction. This is not an accurate understanding of the provisions of the Powers of Attorney Act, SZM’s “rights” or KAJ’s obligations as attorney. Despite the information in the factsheet, SZM’s only “right” (once it has been established that he is an “interested person”), is to make an application to the Tribunal, requesting a review of the instrument. The attorney owes no duty to him or his future or present interests, nor any obligation to account to him, to his satisfaction or not. The attorney’s obligations are to the principal, and to the Tribunal or Supreme Court in the event of proceedings such as this.

49. Mr Freeman submits that the Tribunal ought not conduct a review, for all of the reasons detailed earlier, and also because SZM was effectively estranged from his mother for the last four years of her life, and she had explicitly instructed KAJ not to give him information about her financial situation.

50. Bearing in mind the statement by Slattery J referred to earlier, the Tribunal conducted a “general survey” of the available material, in order to decide whether to conduct a review. Much of the information from this material, including SZM’s views, has been detailed already, but the Tribunal also had regard to KAJ’s relevant evidence, set out below.

51. In KAJ’s written statement she says that until the “final stages” of KFE’s life in 2016/2017, “no account was paid or decision made concerning her financial affairs without discussion with [her] and whenever I exercised my function as Mum’s attorney I did so on her instructions”. She denies ever taking any of KFE’s money except to reimburse herself or her husband for expenses they had covered for her. She kept detailed records of all expenditure and income, including payments directly made by KFE. KAJ states that in November 2019, she provided an 18-page spreadsheet to SZM, “setting out all the financial transactions in relation to Mum between 13 October 2010 and 20 January 2017”. A copy of this spreadsheet is attached to her statement. SZM prepared his “financial queries” document of May 2020 in response to this. KAJ says that she “refused to respond to these questions as I didn’t believe he was entitled to answers and also past experience had shown me that the Applicant [SZM] would not have been satisfied with whatever answer I gave.” However, for the purposes of this review, KAJ provides a response to SZM’s questions in her statement.

52. It is not necessary to detail KAJ’s responses here, nor the information in the spreadsheets. The records are detailed, and the expenses appear reasonable. KFE received a part age pension, as well as rent from her former home. Her regular expenses included accommodation, medical, pharmaceutical and other personal expenses, repairs, maintenance and ongoing bills for her house, Christmas and birthday gifts, and recurrent legal fees in relation to the proceedings brought by SZM.

53. In his May 2019 letter SZM asks for further documentary evidence and responses to questions. These relate in part to questions of KAJ’s judgement (why did she not increase the rent on KFE’s house over the six years KFE was living in in the nursing home); questions implying extravagance (why did KFE need a new television when she had a new one only five years earlier);and questions implying intransigence (why did KAJ choose a “divisive” path and turn down “many” mediation requests from him, resulting in high legal costs). He presumes that all decisions and actions were taken by KAJ as attorney although other evidence indicates that KFE was actively involved in making her own decisions about many matters.

54. The Tribunal considered that KAJ’s responses to these questions were reasonable and did not indicate any abuse of her authority as attorney, particularly given that her mother continued to play a significant part in her own financial decisions for much of the period. Although KAJ’s answers were not to SZM’s satisfaction, this is not the Tribunal’s criteria for deciding whether to conduct a review. Having considered this detailed material, the Tribunal saw no basis for concern that KFE’s attorney was not acting in her financial interests.

55. As indicated earlier, the only type of order which the Tribunal could reasonably make in circumstance where the principal has died, involves requiring the attorney to provide accounts, and possibly having these audited. Given that the consideration of the accounts KAJ has provided disclosed nothing of concern to the Tribunal, there would be no useful purpose in conducting a review.

56. In addition to this, the only basis on which the Tribunal could make orders, if it did conduct a review, would be if it were satisfied that these orders better reflected KFE’s wishes. In KBX, the Tribunal noted “A principal who granted a power of attorney to another would wish authority under that power to be exercised appropriately. If the attorney abused the power or improperly took benefits for themselves or others to the detriment of the principal or ultimately to the beneficiaries of the estate of the principal, it may be appropriate for the Tribunal to review a power of attorney and make orders….Arguably, it would better reflect the wishes if the principal for the assets, and ultimately their estate, not to be dissipated or transferred to the benefit of the attorney or another.”

57. As noted above, the Tribunal has not identified any reasonable basis for concern that the attorney abused her power. There is, however, considerable evidence about KFE’s wish to have her daughter as her attorney, and to not have SZM involved in any way. By way of example, the Tribunal noted KFE’s 2012 statement, the details of her 2012 and 2013 wills and the letters from Dr Y and Mr Z, all of which demonstrate that KFE was resolved in her position to exclude SZM, although she understood that her decision was likely to cause conflict.

58. This is compelling evidence that KFE did not want SZM to be involved in her financial affairs. In those circumstances, an order, such as the order he seeks, which would give him access to information about her financial affairs, would not “better reflect her wishes”.

59. On balance, and based on all of the available evidence, the Tribunal decided not to conduct a review of the enduring power of attorney. This approach is consistent with the guiding principle of the Tribunal, contained in s 36 of the CAT Act, to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

Costs application

60. The Tribunal’s powers in relation to applications for costs are set out in s 60 of the CAT Act. This provides at s 60(1) of the CAT Act that parties to the Tribunal generally pay their own costs. However, s 60(2) of the CAT Act provides that the Tribunal may award costs if satisfied there are special circumstances warranting this. Section 60(3) of the CAT Act details matters to which the Tribunal may have regard when determining if there are special circumstances to warrant an award of costs. These relevantly include whether a party has been responsible for unreasonably prolonging the time taken to complete the proceedings, the strength of the claims made by each of the parties including whether a party has made “a claim that has no tenable basis in fact or law”, whether the proceedings are frivolous, vexatious or otherwise misconceived or lacking in substance, or any other matter the Tribunal considers relevant.

61. Section 60(4) of the CAT Act provides that if costs are to be awarded the Tribunal may determine by who and to what extent they are to be paid, and order costs to be assessed on the basis set out in legal costs legislation or on any other basis. The Tribunal has issued a Practice Direction in relation to costs applications. [3]

    3.

62. Mr Freeman has asked the Tribunal to consider making an award of costs against SZM on the basis that there was no basis in law for the application and that SZM made “essentially the same” application in the Supreme Court and that orders were made by that Court that SZM was “prevented from claiming the same relief in these, or any fresh proceedings”. He said that KAJ had incurred costs in these proceedings of around $10,000. He submits that these matters are sufficient to amount to special circumstances warranting a costs order.

63. SZM rejects this, denying that the application is without merit, and that as it was KAJ’s choice to engage a lawyer she should bear that expense.

64. On balance, the Tribunal was not satisfied that there were sufficient grounds to find that there are special circumstances which warrant the award of costs against SZM. For reasons already explained above, on this occasion, the Tribunal was satisfied that SZM was an “interested person” and did not find that the application should be summarily dismissed. SZM did not unreasonably prolong the proceedings and although the Tribunal did not accept there was any reasonable basis for his concerns, the Tribunal did not find that his application “…had no tenable basis in fact or law”.

65. The application for a costs order is therefore dismissed.

66. It should be noted that the Tribunal may take a different view in relation to these matters, if SZM chooses to bring further applications in relation to the same issues.

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Endnotes

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 March 2023