MNU NO.2

[2024] QCAT 392

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MNU NO.2 [2024] QCAT 392

PARTIES:

In an application about matters concerning MNU

APPLICATION NO:

GAA5828-24

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

18 September 2024

HEARING DATE:

18 September 2024

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDER:

The application by [MNU’s daughter] for costs is refused.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where appointment of administrator was sought to overtake the powers of attorneys – where application was unsuccessful – where administrator seeks costs order against applicants – whether exceptional circumstances – whether application for the appointment of an administrator was vexatious

Guardianship and Administration Act 2000 (Qld), s 127

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld). Hawthorn Cuppaidge and Badgery Lawyers represented the applicant for costs.

REASONS FOR DECISION

Introduction

1. This is a costs application in proceedings relating to an elderly man referred to as ‘MNU’. The substantive proceedings are described in published reasons: MNU.[1] The applicant for costs is MNU’s daughter. She seeks an order that the applicants in the substantive proceedings, her brothers SNC and SNF, pay costs. The daughter says she has incurred legal costs in the region of $56,000. Her solicitor submits that the default position for the tribunal is to fix costs, and ‘should the Tribunal be minded to fix costs, an appropriate figure would be $35,000.00’.[2]

   [1][2024] QCAT 165.

   [2]Submissions by Hawthorn Cuppaidge and Badgery Lawyers filed 27 June 2024, [45].

2. The costs order is sought under section 127(2) of the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’). Section 127 provides:

   127   Costs

   (1)     Each party in a proceeding is to bear the party’s own costs of the proceeding.

   (2)     However, the tribunal may order an applicant to pay an active party’s costs and the costs of the tribunal in exceptional circumstances, including, for example, if the tribunal considers the application is frivolous or vexatious.

   …

3. On 29 May 2024 that tribunal made directions for the filing of evidence and submissions, and directed that unless an active party requested an oral hearing by 5 August 2024, the application for costs would be decided on the papers. No party has requested an oral hearing. The only material received in response to the directions was an affidavit by the daughter dated 26 June 2024 and submissions filed by Hawthorn Cuppaidge and Badgery Lawyers on behalf of the daughter on 27 June 2024.

Background

1. The substantive proceedings originally involved applications by SNC and SNF for the appointment of an administrator and the appointment of a guardian for MNU. If such appointments had been made, they would have overtaken the powers of MNU’s attorneys – the daughter and his other son, SNG – under an enduring power of attorney made by MNU on 29…