MPM - [2018] WASAT 59

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   MPM [2018] WASAT 59
MEMBER:   MS F CHILD (MEMBER)
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   21 MAY 2018
FILE NO/S:   GAA 326 of 2018
BETWEEN:   MPM
Represented Person

Catchwords:

Guardianship and administration - Application for legal costs from the represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) - Costs application by applicant brother - Allegation of financial abuse and misappropriation of assets by adult children of woman with diagnosis of depression and dementia - Interim emergency order made to protect the estate - Admissions by daughter acting under an enduring power of attorney of transfers of funds to herself - Appointment of Public Trustee as administrator - Appointment of guardians - Applicant for costs acting in the best interests - Application may not have been made but for the legal advice and assistance obtained by the applicant - Costs order made

Legislation:

Guardianship and Administration Act 1990 (WA), s 16(4), s 107, s 109(1)
State Administrative Tribunal Act 2004 (WA), s 87(1)

Result:

Costs allowed

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

LC and JS [2007] WASAT 127
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302

REASONS FOR THE DECISION OF THE TRIBUNAL:

These reasons relate to the determination of an application for the costs of the applicant to be paid from the estate of the represented person, MPM, pursuant to s 16(4) of the Guardianship and Administration Act (1990) (WA) (GA Act).

Background

The applicant for costs, is the brother of MPM, a woman with a diagnosis of dementia and depression. The applicant made applications in January and February 2018 for orders under the GA Act for intervention in an enduring power of attorney (EPA) executed by the represented person which appointed her daughter as attorney and for orders appointing the Public Advocate as guardian and the Public Trustee an administrator of the represented person's estate.
The applicant alleged that property of the represented person had been misappropriated by her daughter and her son with large transfers of funds to them and that her estate was at risk. The Tribunal was told that despite living with her daughter, receiving pension incomes and substantial funds from an inheritance that the represented person had needed financial assistance for food and other essentials.
The applicant, through his legal representative, sought an emergency order for the protection of the represented person's estate by an order which appointed the Public Trustee to secure the estate of the represented person prior to the applications being finally determined. The applicant advised that the house property of the represented person had been sold by the daughter and settlement was imminent.
The daughter who held the EPA opposed the orders being made.
The medical evidence before…

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: MPM [2018] WASAT 59
Case: [2018] WASAT 59
Decision Date: 21 MAY 2018

CaseChat Overview and Summary

In the case of MPM, the applicant, the brother of a woman diagnosed with depression and dementia, sought legal costs from the represented person's estate under section 16(4) of the Guardianship and Administration Act 1990 (WA). The woman's daughter, acting under an enduring power of attorney, allegedly misappropriated funds from the estate. The applicant sought the costs of an urgent application to protect the estate, which resulted in an interim emergency order and the appointment of the Public Trustee as administrator and guardians. The court had to decide whether the costs were necessary and if the applicant acted in the best interests of the represented person.

The legal issues before the court were whether the applicant was entitled to recover costs under section 16(4) of the Act and whether the applicant acted in the best interests of the represented person. The court found that the applicant had acted in the best interests of the represented person by seeking to protect the estate from alleged misappropriation. The applicant's legal advice and assistance played a crucial role in the proceedings, leading to the interim emergency order and the appointment of the Public Trustee as administrator and guardians. The court held that the costs were necessary and appropriate, and the applicant was entitled to recover them from the represented person's estate.

The court determined that the applicant was entitled to recover costs under section 16(4) of the Act, as the applicant acted in the best interests of the represented person by seeking to protect the estate from alleged misappropriation. The court noted that the applicant's legal advice and assistance were instrumental in obtaining the interim emergency order and appointing the Public Trustee as administrator and guardians. The court found that the costs were necessary and appropriate, and the applicant was entitled to recover them from the represented person's estate. The court made a costs order in favour of the applicant.

No further orders were made beyond the costs order in favour of the applicant. The court did not address any other issues or make any additional findings beyond the determination of the legal issues and the costs order.

Orders