L and v

[2017] WASAT 39

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
PDF Version

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 provision of the State Administrative Tribunal Act 2004 (WA) was therefore refused.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : L and V [2017] WASAT 39 MEMBER : MR J MANSVELD (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 2 MARCH 2017 FILE NO/S : GAA 2216 of 2016 BETWEEN : L

J
Applicants

AND

V
Respondent

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

Result:

Costs applications refused

Summary of Tribunal's decision:

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 provision of the State Administrative Tribunal Act 2004 (WA) was therefore refused.

Category: B

Representation:

Counsel:

Applicants : Mr S Hemachandra
Respondent : Mr C Grasso

Solicitors:

Applicants : FourLion Legal
Respondent : Millsteed Grasso

Case(s) referred to in decision(s):

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

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 M is deceased.

2 M had seven children.

3 One of M's children, V, a daughter, was appointed her attorney under an enduring power of attorney made on 6 October 2000 (EPA). M declared on the EPA that it could begin to operate immediately upon execution by her and acceptance by V.

4 In May 2016, two of M's children, L and J (applicants) made an application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act) (s 109 application).

5 The applicants sought to have the Tribunal order that V file with the Tribunal and serve on the applicants a copy of all records and accounts kept by her of the dealings and transactions made by her in connection with the EPA.

6 In KS [2008] WASAT 29 (KS), Barker J, the then President of the Tribunal, determined that the Tribunal has been given a general supervisory jurisdiction in respect of enduring powers of attorney and that an application under s 109(1)(a) of the GA Act can be considered notwithstanding that at the time of the application the donor is deceased (KS at [26] and [37]).

7 The s 109 application proceeded on that basis.

8 Affidavits were filed by the applicants.

9 V filed a letter dated 20 April 2016 addressed to the applicants' legal representative (April 2016 letter).

10 The s 109 application was heard on 20 July 2016. Both V and the applicants were legally represented. The parties were invited to mediate the s 109 application and the hearing was stood down to allow that to occur.

11 No oral evidence concerning the substantive s 109 application was taken at the hearing.

12 The parties came to an agreement which was reduced to an order of the Tribunal requested by the applicant and agreed to by V.

13 The order required that V, by no later than 20 October 2016, file with the Tribunal and serve on the applicants a copy of all records and accounts, kept by her as attorney, of dealings and transactions made by her in connection with the EPA in the period from 6 October 2000 to 27 February 2015, the date of M's death.

14 V, through her legal representative, cautioned as to the availability of records from 2000 and to what extent there were transactions that took place under the EPA from as early as that period because a major part of the transactions occurred in the last six months of M's life.

15 The applicants foreshadowed an application to seek costs (costs application).

16 The parties were ordered to file written submissions.

17 The decision on costs was reserved.

Decision

18 I have decided to refuse the applications for costs. My reasons follow.

Facts not in dispute

19 Sometime after the death of her spouse, M moved into the home of her sister, A, where they both lived (property).

20 A died on 27 October 1999.

21 V was appointed the executor and trustee of the will of A made on 10 October 1994. Probate was granted to V on 17 January 2001.

22 The essence of the will of A was that M was given a life interest in the property and upon her death the balance of the estate of A was to be given to the surviving children of M. There was also provision for the trustee to pay from the estate, at the trustee's discretion, monies to M for her personal use.

23 In October 2000, V was appointed the attorney of M under the EPA.

24 M moved out of the property sometime before it was sold in May 2004.

25 M died on 27 February 2015.

26 V and another person (who renounced probate) were appointed executors and trustees of the will of M made on 6 October 2000. In that will M's estate is divided equally between her surviving children. Probate was granted to V on 4 September 2015.

The s 109 application

27 In their written application, the applicants state that they are two of the beneficiaries of the estates of A and M.

28 The applicants contend that a significant amount of interest accrued in the estate of A and was transferred from that estate to the bank account of M from 2006.

29 The applicants assert that although M was capable of dealing with her pension income she was not sufficiently sophisticated to deal with the money transferred to her bank account from the estate of A, to consider investment options and to manage several bank accounts. They said that:

… our mother deferred her financial decisions and sought [V's] position since 2004. (Application page 5)

30 The applicants allege that:

[W]e are concerned that money from our aunty's [sic] estate and or our mother's money has been misappropriated by the Attorney. (Application page 4)

31 The allegation of possible misappropriation is said by the applicants to apply to monies transferred to M from A's estate when M was still alive.

32 The applicants sought by way of the s 109 application:

… an accounting from the Attorney as to how monies were spent and urgent access to documents relevant to how our mothers' money was spent[.] (Application page 10)

33 In the April 2016 letter, V said that, in her view, that at all times M retained mental capacity and controlled all of her financial affairs. The use of the EPA was extremely limited. It was only during the six months prior to death that according to V the EPA was used on a limited basis and at all times the EPA was used to pay accounts on behalf of M and for her living expenses.

34 V submits that she was prepared to provide the records and accounts of the transactions taken under the EPA in the six months before the death of M.

The costs application

35 The applicants seek costs either by way of the application of s 16(4) of the GA Act against V as the executor of the estate of M, or by way of s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) against V in her capacity as attorney under the EPA.

Section 16(4) of the GA Act

36 Section 16 of the GA Act states as follows:

[(1) deleted]

(2) Where a person gives evidence or information ­


(a) at the instigation of the State Administrative Tribunal; or

(b) at the instigation of a party and the State Administrative Tribunal considers that the circumstances are exceptional,

the Tribunal may approve payment to him of such amount as it thinks fit in or towards defraying any costs and expenses incurred by him in doing so, and an amount so approved shall be paid from moneys appropriated by Parliament for that purpose.


[(3) deleted]

(4) 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 the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.

(5) Nothing in this section limits any other power of the State Administrative Tribunal under the State Administrative Tribunal Act 2004.

37 The discretion to order costs under s 16(4) of the GA Act has been considered by the Tribunal (see for example LC and JS [2007] WASAT 127 (LC) and Re; Ex Parte MM [2011] WASAT 47 (MM).

38 Relevantly, s 16(4) of the GA Act should not be read independently of the cost regime provided for in s 87 of the SAT Act (s 16(5) of the GA Act; LC at [35] and MM at [14]).

39 The starting point therefore is that the parties bear their own costs in proceedings of the Tribunal (s 87(1) of the SAT Act).

40 In the matter before me, however, there arises the preliminary issue of the reach of s 16(4) of the GA Act.

41 The applicants' response to this issue is contained in paragraph 8 of their submission where they state:

The represented person in this case is [M] and upon her death, the Estate. There is nothing in section 16(4) which precludes the making of a costs order from the represented person's estate as the represented person's estate consists of their assets.

42 V in her submission states at paragraphs 3 and 4:

The Respondent [V] submits costs are not appropriate against the estate in this matter.

The matters in issue do not concern the estate and more particularly the estate is not even a party to the proceedings. The application is against the Respondent in her capacity as the attorney.

43 I accept the submission of V that s 16(4) does not apply in this case for the following reasons.

44 Prior to the introduction of the SAT Act, the GA Act was stand­alone legislation and s 16 of the GA Act provided for the question of costs in its entirety. Section 16(1) and s 16(3) were repealed and subsumed by s 87 of the SAT Act and s 16(5) was replaced by the current provision.

45 When still in operation, s 16(1) and s 16(3) of the GA Act read as follows:

(1) Each party to any proceeding before the Board [the former Guardianship and Administration Board] shall bear his own costs of the proceedings except to the extent that provision is otherwise made under subsection (2), (3) or (4).

(2) …

(3) Where in the opinion of the Board a party to proceedings has behaved unreasonably, vexatiously or frivolously in relation to the proceedings, the Board may order that that party pay such costs as the Board thinks fit to any other party who has not so behaved.

(4) …

(5) [How to recover costs].

46 But for the limits placed by the former s 16(3) of the GA Act, the discretion to award the costs of a proceeding in the GA Act prior to the SAT Act is substantially the same as the current system using both the GA Act and SAT Act.

47 Section 16(4) should therefore be read in that context.

48 Section 16(4) of the GA Act refers to the 'represented person or a person in respect of whom an application is made' as the nominated person out of whose assets costs may be paid.

49 The applicants are incorrect to assert that M was a represented person and upon her death the executors of her estate assumed that identity.

50 Section 3 of the GA Act defines represented person as meaning any person in respect of whom a guardianship and/or administration order is in force.

51 In her lifetime M was not subject to a guardianship or administration order made under the GA Act and even if she had been, her status as a represented person would have ceased upon her death.

52 If 'represented person' does not apply then who for the purposes of this proceeding is the 'person in respect of whom an application is made'.

53 An application made under s 109(1)(a) is primarily directed at the attorney. The discretion to be exercised by the Tribunal is whether, in the circumstances of the particular case, there is sufficient reason to justify some scrutiny of the attorney by requiring the filing of records and accounts.

54 However, s 16(4) of the GA Act requires the Tribunal to form a judgment as to whether the party seeking the costs has acted in the best interests of the 'person in respect of whom an application is made'.

55 That person cannot be the attorney. It is not for the Tribunal to decide what is in the best interests of an attorney.

56 In any case, when read together, the words 'represented person or a person in respect of whom an application is made' refer to a person who is already the subject of protective guardianship or administration orders (represented person) or a person who might be in need of the protection afforded by the GA Act ('person in respect of whom an application is made').

57 The obvious response is that the 'person in respect of whom an application is made' in an application under s 109(1)(a) of the GA Act is the donor of the enduring power of attorney (see for example, BFO & Ors and KPW[2014] WASAT 68) (BFO).

58 In BFOthe donor was alive when the application under s 109(1)(a) of the GA Act was determined.

59 In my view it cannot be the case that once a person is deceased as with M, that for the purposes of s 16(4) of the GA Act they can still be 'a person in respect of whom an application is made'.

60 Under the common law, there is no notional continuation of a person's existence after their death (The Laws of Australia (Thomson Reuters) at 36.3.150)) (Laws).

61 Therefore, in order for there to be a continuing ownership of a deceased person's estate, the assets (real and personal estate) of a deceased person vest upon death in the Public Trustee: s 9 of the Public Trustee Act 1941 (WA). Under s 8 of the Administration Act 1903 (WA), by way of relation back, the assets pass to and become vested in the executor to whom probate has been granted or to the administrator as from the date of death.

62 Executors (and administrators) can incur liabilities in the administration of a deceased estate and be personally liable for them with a right to be indemnified from the assets of the estate (Laws at 36.3.1220).

63 The executor (or administrator) can only otherwise bring in the estate, pay out any existing lawful liabilities and distribute the estate in accordance with the directions of the will or under intestacy law. An order made under s 16(4) of the GA Act is not in the nature of a lawful debt incurred by the donor in circumstances where it is contemplated that such an order be made after the donor's death. For the executor (or administrator) to be authorised to make a payment out of the estate there would need to be statutory power that is able to be exercised to authorise it. I am not satisfied that s 16(4) of the GA Act, having regard to the terms used as well as the context and purpose of the provision, can be properly constructed to authorise such a payment out of a deceased estate.

64 V is a party in the current proceeding by virtue of her position as the former attorney of M under the EPA and the jurisdiction of the Tribunal under s 109(1)(a) of the GA Act as expressed in KS.

65 There has been no application for the executor of the estate of M to be joined as a party to the proceeding: s 38 of the SAT Act.

66 For all these reasons I find that s 16(4) of the GA Act does not apply in the matter before me and refuse the application for costs.

Section 87(2) of the SAT Act

67 Section 87 of the SAT Act relevantly states:

(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.

(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.

68 The applicants state that V has held three fiduciary positions that are interrelated, as attorney under the EPA when M was alive and as the executor of her estate upon her death and as executor of the estate of A.

69 The applicants contend that V has not provided them, as beneficiaries of the estates of A and M, with a proper and complete accounting of those estates.

70 In their costs submission the applicants allege:

• that there may have been some inappropriate dealings by V (paragraph 28);

• V had provided false information on various occasions to the applicants (paragraph 30);

• there is a serious suspicion or concern that V has financially abused M because of an intermingling of funds from the estate of A with the funds of M, the opening and closing of bank accounts in the name of M and the evasive nature of V and her failure to account for the estate of A (paragraphs 35 and 37); and

• V failed to make full and proper disclosure to the applicants with respect to their entitlements in A's estate (paragraph 37).

71 In their costs submission the applicants say that on 6 April 2016, their solicitor wrote to V's solicitor who was said to act:

… for the Attorney in her capacity of the Estate's executor [M's estate] requesting the Attorney produce the relevant documents for the Relevant Period [the date of the execution of the EPA until the death of M]. (Paragraph 45)

72 The letter of the solicitor (solicitor's letter) which is before the Tribunal demanded that V, as M's attorney under the EPA, provide by 20 April 2016, all relevant documents relating to the management of M's estate up to the date of her death or steps would be taken to compel V to do so and a claim for costs might be made.

73 V responded with the April 2016 letter stating amongst other things she was prepared to disclose financial records for the last six months of M's life.

74 The applicants say they waited a month for the financial records to be provided by V before making the s 109 application.

75 The applicants submit that costs should be awarded against V because whilst she had the opportunity, she made no attempt to confer with the applicants prior to the Tribunal hearing and without notice attended the hearing with a legal representative (cost submission at paragraphs 53 and 55).

76 The applicants submit that V has at all times been obstructive and that her conduct has contributed to unnecessary legal fees being incurred by the applicants (cost submission at paragraphs 57 and 61). They say that by her conduct, V necessitated the s 109 application being made.

77 In her cost submission, V states that her offer to provide records in the April 2016 letter was not responded to by the applicants. She submits that the costs incurred by the applicants:

… include much documentation and matters extraneous to the [s 109] application and irrelevant to the exercise of the power of attorney.

78 V submits that the application for costs should be dismissed because ultimately:

… the documents were offered and no 'fault' or dispirited attitude or demeanor has been demonstrated.

79 The general position of the Tribunal regarding s 87 of the SAT Act is summarised in Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50 at [15]:

… the discretion conferred by s 87(2) of the SAT Act is informed by the overarching obligation to exercise the discretion judicially and where it is fair and reasonable in all of the circumstances including a consideration of the nature of the jurisdiction exercised by the Tribunal 'but starting from the position that no order for costs will be made'[.] (Citing Western Australian Planning Commission v Questdale Holdings Pty Ltd[2016] WASCA 32 at [9])

80 The GA Act is a jurisdiction largely concerned with vulnerable living persons whose faculties may be impaired and who need protection in respect to their personal and financial affairs (see Heenan J in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43] and [44].

81 The decision in KS with reference to enduring powers of attorney, expresses the protective jurisdiction as a general supervisory role in respect to attorneys irrespective of whether the donor is alive or deceased but limited in remedy to a revocation of the enduring power of attorney when the donor is still alive and an accounting and audit under s 109(1)(a) and s 109(1)(b) of the GA Act (KSat [26] and [34] ­ [35]).

82 The application and the submissions of the parties reveal matters that refer to the deceased estates of A and M and the conduct of the attorney under the EPA in respect to M when she was alive. It is not easy to separate the concerns the applicants have that relate to the deceased estates alone and should therefore fall within the authority of the executor of those estates (and therefore not within the jurisdiction of the Tribunal) and the concerns that are associated with the attorney under the EPA.

83 The fact that V is the executor of the estates of A and M and attorney for M when she was alive further complicates the situation and it may be understandable for V to have been, at times, unclear in what capacity she was being asked to respond by the applicants and perhaps the other beneficiaries of the estates of A and M.

84 On the evidence before the Tribunal, the first clear statement made by the applicants seeking records from V in her role as attorney under the EPA is the solicitor's letter dated 6 April 2016.

85 V responded to the demand set out in the solicitor's letter in a timely manner after which communication between the applicants and V fell away leading to the s 109 application being made in May 2016.

86 The s 109 application then proceeded in the usual way in the Tribunal. The fact that V sought legal representation late in the proceeding and, upon legal advice, agreed to provide records in respect of her role as attorney for M was not atypical and might well have been a response to a clarification of her roles.

87 Whatever the case, I am not convinced that the s 109 application on its own, free from the deceased estate matters, was conducted in the Tribunal in such a manner as to warrant a departure from the ordinary position that the parties bear their own costs.

88 The application made under s 87(2) of the SAT Act is therefore dismissed.

Orders

The Tribunal makes the following order:

1. The applications for costs made under s 16(4) of the Guardianship and Administration Act 1990 (WA)and s 87(2) of the State Administrative Tribunal Act 2004 (WA), are refused.

I certify that this and the preceding [88] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J MANSVELD, SENIOR MEMBER