L and V [2017] WASAT 39

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 39
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:2216/2016	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR J MANSVELD (SENIOR MEMBER)	Delivered:	2/03/17
No of pages:	15	Judgment Part:	1 of 1
Result:	Costs applications refused
Category:	B
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Parties:	L J V
Catchwords:	Enduring power of attorney Donor deceased Costs application under s 16(4) of the Guardianship and Administration Act 1990 (WA) Costs application under s 87(2) of the State Administrative Tribunal Act 2004 (WA) Starting point is that parties bear their own costs in proceedings of the Tribunal Represented person Person in respect of whom an application is made Assets of that person Application of s 16(4) of the Guardianship and Administration Act 1990 (WA) to deceased estates
Legislation:	Administration Act 1903 (WA), s 8 Guardianship and Administration Act 1990 (WA), s 3, s 16, s 109, s 109(1)(a) Public Trustee Act 1941 (WA), s 9 State Administrative Tribunal Act 2004 (WA), s 38, s 87
Case References:	Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50 BFO & Ors and KPW [2014] WASAT 68 KS [2008] WASAT 29 LC and JS [2007] WASAT 127 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 Re; Ex Parte MM [2011] WASAT 47 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Summary	An application was made in respect to an enduring power of attorney made by M in 2000 appointing her daughter, V as her attorney.,M had died in 2015.,In addition to being M's attorney whilst she was alive, V had also been appointed as the executor of M's estate and the executor of the estate of M's sister in which M had an interest.,M's sister had died in 1999.,The application regarding the enduring power of attorney had been made by two of M's other children who were beneficiaries of M's deceased estate and the deceased estate of her sister.,At the hearing of the Tribunal both the applicants and V were legally represented.,The matter was stood down to allow the parties to confer which ultimately resulted in an agreement which was reduced to an order of the Tribunal requiring V to produce relevant records and documents from her role as attorney.,The applicants subsequently applied for their costs to be paid, either out of M's deceased estate or from V in her capacity as the former attorney of M.,The Tribunal decided that the relevant provision in the Guardianship and Administration Act 1990 (WA) did not apply and that costs could not be ordered from M's deceased estate.,The Tribunal further decided that the application concerning the enduring power of attorney on its own, free from the deceased estate matters, was not conducted in such a manner as to warrant a departure from the ordinary position that the parties bear their own costs.,The application for costs under the relevant…

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.

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Details

AGLC: L and v [2017] WASAT 39
Case: [2017] WASAT 39
Decision Date: 2 MARCH 2017

CaseChat Overview and Summary

In the case of L and v, the dispute arose from the death of a donor who had an enduring power of attorney in place. The issue before the court was whether the provisions of the Guardianship and Administration Act 1990 (WA) applied to the costs of the proceedings in relation to the deceased estate. Additionally, the court had to consider whether the State Administrative Tribunal Act 2004 (WA) applied to the costs of the proceedings, particularly under section 87(2) of that Act.

The court determined that the starting point in proceedings before the Tribunal is that each party bears their own costs. The court also noted that the represented person, the person in respect of whom an application is made, and the assets of that person are relevant to the application of section 16(4) of the Guardianship and Administration Act 1990 (WA). However, the court concluded that these provisions do not apply to the costs of proceedings in the context of a deceased estate. Therefore, the application for costs under both the Guardianship and Administration Act 1990 (WA) and the State Administrative Tribunal Act 2004 (WA) was refused.

The court's reasoning was based on the interpretation of the relevant statutes and the specific circumstances of the case. The court held that the provisions for the allocation of costs in the Guardianship and Administration Act 1990 (WA) do not extend to deceased estates, and similarly, the provisions of the State Administrative Tribunal Act 2004 (WA) do not apply to the costs of proceedings in this context. Consequently, the applications for costs were dismissed.

Orders

Orders of the court

Costs applications refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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