McKay v McKay

The case of McKay v McKay involved the applicant, who sustained personal injuries from a motor vehicle accident and was a person under a legal disability due to severe brain damage. The applicant had not yet instituted proceedings against the person responsible and their insurer. The insurer had proposed to meet the reasonable and appropriate rehabilitation costs and admit full liability. The Court had previously declared that funding for the demolition of the applicant’s residence and construction of alternative premises up to $425,000 would be reasonable and appropriate. However, the cost of demolition and construction exceeded this sum by approximately $109,000, which the insurer proposed to fund through an advance on the damages or settlement moneys, rather than as a rehabilitation measure. The applicant’s litigation guardian was satisfied with this approach. The insurer sought the Court’s sanction for the proposed compromise under the Public Trustee Act 1978 (Qld), section 59(2).

The central legal issue was whether section 59(2) of the Public Trustee Act 1978 (Qld) applied to the proposed compromise, which involved funding a portion of the costs exceeding the previously approved rehabilitation limit. The Court needed to determine if the statutory provision was engaged and if the compromise was in the best interest of the applicant, considering the insurer’s willingness to fund the additional costs through an advance on the damages or settlement moneys.

The Court examined the relevant statutory provision and the circumstances of the case. It concluded that section 59(2) was not applicable to the proposed compromise as it did not involve the sale or disposition of property held by the Public Trustee on behalf of the applicant. The Court also noted the litigation guardian’s approval of the compromise and the insurer’s willingness to fund the additional costs in the specified manner. The Court found that the compromise was appropriate and in the best interests of the applicant. Therefore, the Court dismissed the application for sanction of the compromise under section 59(2) of the Public Trustee Act 1978 (Qld).