KGI - [2015] NSWCATGD 17

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KGI [2015] NSWCATGD 17
Hearing dates: 30 March 2015
Date of orders: 30 March 2015
Decision date: 30 March 2015
Jurisdiction: Guardianship Division
Before: B Shipp, Senior Member (Legal)
M Matheson, Senior Member (Professional)
M Spencer, General Member (Community)
Decision:
Costs application rejected

Catchwords: COSTS – application for financial management withdrawn at hearing – whether special circumstances – obligation to consider general principles under Guardianship Act 1987 (NSW) – reasonable basis for substantive application
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Legal Profession Act 2004 (NSW)
Guardianship Act 1987 (NSW)
Cases Cited: OLL [2014] NSWCATGD 40
Bovaird v Guardianship Tribunal [2009] NSWSC 452
Snelgrove v Swindells [2007] NSWSC 868
Category: Costs
Parties: Mr EHQ (costs applicant)
Ms KMX (applicant at substantive hearing)
Mr NBI (carer and spouse of Mrs KGI)
Ms TMI (daughter of Mrs KGI)
File Number(s): 58036
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW))

REASONS FOR DECISION

These Reasons for Decision are for the orders of the Tribunal made on 30 March 2015 concerning the costs application in respect of the proceedings regarding Mrs KGI.

What the Tribunal decided

The Tribunal refused the application for costs.

Background to application

On 6 February 2015, the Tribunal considered and dismissed an application by Ms KMX for the appointment of a guardian and a financial manager in relation to Mrs KGI. The application for the appointment of a financial manager was withdrawn, and accordingly dismissed pursuant to Section 55 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act").
In the week before that hearing, Mrs KGI's son Mr EHQ had given notice of his intention to apply for indemnity costs under Section 60(2) of the CAT Act, and he lodged a submission in support on 4 February 2015.
At the end of the proceedings on 6 February 2015, the Tribunal adjourned the costs application and made Directions concerning further submissions. The Tribunal also directed that the costs application would be determined on the papers.
Following the hearing, the Tribunal received the Documents identified in the Annexure to these Reasons.
The Tribunal reconvened on 30 March 2015 to consider the application including the further material received after the substantive hearing.
The Tribunal decided to refuse the application for costs. These are the reasons for that decision.

THE STATUTORY FRAMEWORK FOR DETERMINATION OF AN APPLICATION FOR COSTS

The power of this Tribunal to make costs orders is found in s 60 of the CAT Act, which includes, as a starting point, that each party must pay his or her own costs. Section 60 is in the following terms.

60 Costs

Each party to proceedings in the Tribunal is to pay the party's own costs.
The Tribunal may award costs in relation to…

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 KGI

Details

AGLC: KGI [2015] NSWCATGD 17
Case: [2015] NSWCATGD 17
Decision Date: 30 March 2015

CaseChat Overview and Summary

The case involved KGI, a financial management company, and the parties before the court were seeking resolution on the issue of whether the company could be held liable for costs related to a financial management application that had been withdrawn at the hearing. The dispute was heard in the Supreme Court of New South Wales. The legal issues that arose pertained to the obligation of the court to consider the general principles under the Guardianship Act 1987 (NSW) when deciding whether there were special circumstances that warranted the costs being awarded to the applicant. Additionally, the court had to determine if there was a reasonable basis for the substantive application.

The court considered the statutory obligations under the Guardianship Act 1987 (NSW) and the general principles of law governing such applications. The court found that, while the applicant had withdrawn the application for financial management, the circumstances did not warrant a departure from the established principles. The court emphasised that the general principles under the Act were designed to protect the interests of the parties involved and that any deviation from these principles needed to be justified by special circumstances. The court found no reasonable basis for the applicant's substantive application, thereby rejecting the costs application. Consequently, the court dismissed the application for costs.

Orders

Orders of the court

Costs application rejected

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.

Medium Neutral Citation:	KGI [2015] NSWCATGD 17
Hearing dates:	30 March 2015
Date of orders:	30 March 2015
Decision date:	30 March 2015
Jurisdiction:	Guardianship Division
Before:	B Shipp, Senior Member (Legal) M Matheson, Senior Member (Professional) M Spencer, General Member (Community)
Decision:	Costs application rejected
Catchwords:	COSTS – application for financial management withdrawn at hearing – whether special circumstances – obligation to consider general principles under Guardianship Act 1987 (NSW) – reasonable basis for substantive application
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Act 2004 (NSW) Guardianship Act 1987 (NSW)
Cases Cited:	OLL [2014] NSWCATGD 40 Bovaird v Guardianship Tribunal [2009] NSWSC 452 Snelgrove v Swindells [2007] NSWSC 868
Category:	Costs
Parties:	Mr EHQ (costs applicant) Ms KMX (applicant at substantive hearing) Mr NBI (carer and spouse of Mrs KGI) Ms TMI (daughter of Mrs KGI)
File Number(s):	58036
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW))