MQN (No. 3)

[2018] NSWCATGD 48

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

MQN (No. 3) [2018] NSWCATGD 48

Hearing dates:

24 October 2018

Date of orders:

24 October 2018

Decision date:

24 October 2018

Jurisdiction:

Guardianship Division

Before:

A R Boxall, Senior Member (Legal)

Decision:

The costs application is dismissed after hearing.

Catchwords:

COSTS – application for costs in guardianship proceedings – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether there are “special circumstances” to warrant a costs order – protective jurisdiction – consideration of the relevant issues in the Guardianship Division to make costs order – where there are reasonable explanations for the manner in which proceedings were conducted – adversarial proceedings – no “special circumstances” to warrant a costs order – costs application dismissed.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(1), 36(3), 38(2), 60, 60(2), 60(2)(b)-(f), 60(3)
Guardianship Act 1987 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Costs

Parties:

002: Financial Management Application

 

MQN (the person)
NZG (applicant)
DVN (attorney)
MBL (joined party)
NSW Trustee and Guardian

 

003: Review of an Enduring Power of Attorney

  MQN (the person)
NZG (applicant)
DVN (attorney)
MBL (joined party)

Representation:

For DVN
Counsel: T Alexis SC
Solicitors: Dunstan Legal

  For NZG and MBL
Representative: M Gilmour

File Number(s):

NCAT 2017/00198140

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

COSTS APPLICATION

Background

1. MQN is 87-years-old and is of Italian origin. She is a permanent resident at an aged care facility in north Sydney, NSW. There is no dispute, and adequate evidence, that she is cognitively impaired as a result of dementia. Before becoming a resident there she lived for many years in one of the apartments in a residential and commercial building in Property A of which she is the registered proprietor.

2. MQN has been a widow since the death in 1998 of her late-husband, FXN. She has three children: NZG, who is the Applicant; MBL; and DVN. These reasons will for convenience refer to them as, respectively, NZG or the Applicant, MBL and DVN. On 15 July 2011, MQN granted an enduring power of attorney in favour of DVN (the EPA).

3. On 17 January 2017, the Tribunal received from the Applicant three substantive applications concerning MQN: a guardianship application, a financial management application, and an application to review the EPA.

4. On 31 March 2017, these matters were adjourned for approximately five weeks.

5. At a directions hearing on 5 May 2017, the Tribunal made the following orders:

1. MBL was joined to all applications as an additional party;

2. DVN was granted leave to be represented at the directions hearing by Mr Todd Alexis SC;

3. NZG and MBL were granted leave to be represented at the directions hearing by Mr Paul Blackburn-Hart SC;

4. The application by DVN for the referral to the Supreme Court of New South Wales of the guardianship application was dismissed with the consent of all parties; and

5. It reserved its decision concerning the application by DVN for the financial management application and the application for review of the EPA to be referred to the Supreme Court of New South Wales.

6. On 22 May 2017, the Tribunal:

1. Dismissed the application for the financial management application and the application for review of the EPA to be referred to the Supreme Court of New South Wales;

2. Directed the parties to inform the Tribunal within three business days of the outcome of a pending directions hearing in the Supreme Court of New South Wales; and

3. Ordered that, if the application for the financial management application and the application for review of the EPA were not referred to the Supreme Court of New South Wales, the matters be relisted before the Tribunal for further directions.

7. The matters were not referred to the Supreme Court, and accordingly they were relisted before the Tribunal for further directions on 22 June 2017. On that day, the Tribunal:

1. Granted leave for NZG and MBL to be represented at the directions hearing by Mrs Madeleine Gilmour;

2. Granted leave for DVN to be represented at the directions hearing by Mr Todd Alexis SC;

3. Ordered that the parties be relieved of the obligation to serve further documents on MQN; and

4. Reserved its decision as to further directions.

8. On 30 June 2017, the Tribunal issued its reserved decision and made certain directions as to the provision of further information, including a medical report concerning MQN’s cognition.

9. On 17 October 2017, the Tribunal made further orders and directions, notably:

1. For the exchange of further information between the parties; and

2. For the matters to be heard on 7, 8 and 9 February 2018.

10. The various applications were heard by the Tribunal on 7, 8 and 9 February 2018. On the last of those days:

1. The Applicant sought to withdraw the guardianship application;

2. The Tribunal consented to that withdrawal and dismissed the guardianship application accordingly; and

3. The Tribunal reserved its decision on the other two applications.

11. On 28 March 2018, the Tribunal:

1. Dismissed the financial management application;

2. Decided to undertake a review of making, operation and effect of the EPA;

3. Following that review, declined to make any order concerning the EPA.

12. On 9 May 2018, the Tribunal received an application from DVN for the award of costs against NZG and MBL.

13. On 31 May 2018, the Tribunal held a directions hearing at which it made certain orders for the parties to file and serve evidence and submissions, and for another directions hearing on 3 August 2018.

14. At that second directions hearing the parties agreed that the costs application could be determined without a further hearing or submissions.

15. On 24 October 2018, the Tribunal issued its decision on the costs application.

Legislative Background

16. Section 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) makes provision concerning costs in proceedings before the Tribunal.

17. The starting point is section 60(1). It provides that:

Each party to proceedings in the Tribunal is to pay the party's own costs.

The general rule therefore is that parties before the Tribunal are responsible for their own costs.

18. This general rule is modified by s 60(2) of the Act. It provides that:

The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

19. Section 60(3) of the Act provides some guidance as to the considerations which the Tribunal may take into account in determining whether there are special circumstances that warrant a departure under s 60(2) of that Act from the general rule:

In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a)   whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b)   whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c)    the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d)   the nature and complexity of the proceedings,

(e)   whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g)   any other matter that the Tribunal considers relevant.

This list, if only by reason of the inclusion of s 60(3)(g) of that Act, affords the Tribunal guidance but without fettering its ability to consider all matters which appear relevant. Moreover, the list merely indicates factors that may be considered in deciding whether there are special circumstances; it does not mean that the presence of one or more factors in relation to a particular set of proceedings should necessarily result in a costs order.

20. All of this sits in a wider statutory matrix:

1. Section 36 of the Act provides relevantly in section 36(1) of that Act that:

The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

2. Of particular relevance here are the words “quick” and “cheap”. The Act favours neither delay nor expense in proceedings before the Tribunal, and this statutory aversion manifests itself in a number of provisions, including:

1. section 36(3) of that Act, which imposes a duty on parties to proceedings to co-operate with the Tribunal in order to give effect to the guiding principle, and

2. the costs provisions in s 60 of the Act.

3. The underlying policy setting of s 60 of the Act is clear. It provides a real incentive to parties to conduct proceedings in a way which is conducive to economy of time and expense, and thus consistent with the guiding principle. This is because a party who fails to do so can normally expect to bear the financial consequences of that failure, even if the eventual outcome of the proceedings is one which he or she supports. The Act does not seek to prohibit parties from incurring costs – whether modest or substantial - in relation to proceedings before it, should they choose to do so. What it can (and does) do, however, is to ensure that absent special circumstances the financial consequences of such a choice rest with the person who makes it.

4. Section 38(2) of the Act provides as follows:

The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

This reflects at a practical level the guiding principles in section 36 by allowing the Tribunal both to adopt an inquisitorial approach to proceedings (rather than entrust matters to the adversarial system’s elegant but leisurely dialectic), and to do so untrammelled by the formal rules of evidence. Again, two of the objectives are clear: economy of time and limitation of expense.

5. Section 45(1) of the Act provides as follows:

(1)   A party to proceedings in the Tribunal:

(a)    has the carriage of the party's own case and is not entitled to be represented by any person.

This provides a further practical underpinning of the guiding principle’s quest for economy of time and limitation of expense.

21. Moreover, these issues take on a further dimension in proceedings in the Guardianship Division. The Tribunal exercises a protective jurisdiction, the consequence of which is, as Lindsay J of the Supreme Court of New South Wales, put matters [Footnote removed for publication.] when writing extra-judicially:

an exercise of protective jurisdiction requires that the Court (or, any decision maker exercising such jurisdiction or a protective function) act in the best interests, and for the benefit, of the protected person.

The Tribunal's focus therefore lies squarely on identifying and promoting the best interests of the subject person in any application, and it would be inconsistent with this fundamental principle of protective jurisdiction for parties with genuine concerns for the welfare of a person potentially in need of protection to be dissuaded from seeking the Tribunal's intervention out of fear of an adverse costs order. What follows is that the Tribunal's approach to any incidental aspect of proceedings, including costs, must be informed by that primary focus.

22. The Tribunal has provided, in the form of NCAT Guardianship Division Procedural Direction No 1 dated 14 November 2014, written guidance as to both the practicalities of seeking awards of costs and the underlying legal matrix for such applications.

The basis of DVN’s application

23. Submissions made on DVN’s behalf on 21 June 2018 set out the reasons why he seeks a costs order. In summary, these are:

1. The applications were not motivated by a genuine concern for MQN’s welfare. They were frivolous, vexatious and largely misconceived.

2. More particularly, the applications were directed at removing DVN from management of his mother’s affairs and were motivated by self-interest, triggered by his request that they pay rent for the apartments respectively owned by MQN and occupied by them in north Sydney.

3. There was no substantive basis for the guardianship application, since:

1. It was clear that MQN was receiving appropriate care; and

2. There were no practical difficulties for her carers in obtaining appropriate instructions and guidance for her care from family members.

4. There was no substantive basis for the financial management application, since:

1. MQN’s property and the income derived from it were being properly managed by DVN;

2. The financial management application was motivated by self-interest and a desire to wrest control of MQN’s affairs from DVN; and

3. The application took no account of the Applicant’s unsuitability to be appointed as MQN’s financial manager, in view of the conflict of interest inherent in her acting as financial manager while she and her sister occupied, rent-free, two apartments which should produce rental income for their mother.

5. The applications were conducted in a way which was not consistent with the Tribunal’s guiding principle and which unnecessarily disadvantaged DVN by raising wide-ranging allegations, many of which were of no relevance, concerning his business affairs and financial relationship with his parents extending over many years.

6. The applications raised unfounded and baseless allegations of a serious and personal kind against DVN, without a proper factual basis.

7. The applications raised issues going back over many years, and required DVN to provide voluminous evidence, either documentary or in the form of witness statements, in relation to matters at least some of which had occurred several decades ago.

8. The applications had taken a serious toll on DVN’s health and the stress that they had caused him impacted adversely on his professional activities as a [occupation redacted].

The elements of NZG and MBL’s position

24. NZG and MBL filed submissions with the Tribunal on 6 July 2018 setting out their position concerning the costs application. In summary they say that:

1. the applications were motivated by genuine concerns including:

1. Inappropriate (however well-meaning) actions by DVN concerning MQN’s care;

2. Some instances of late payment of accounts for her care;

3. A lack of transparency on DVN’s part as to the management of MQN’s affairs, coupled with an increasingly aggressive approach by DVN to issues associated with her affairs, such as his demand that they pay rent;

4. Changes in the management of her affairs, the effect of which was to reinforce that perceived lack of transparency; and

5. A growing realisation as to the degree of intermingling over many years of DVN’s affairs with those of his parents, and a consequential concern for the possible effects of this intermingling on MQN’s financial interests;

2. That DVN incurred legal costs was the consequence of his approach to the applications. He chose to engage a solicitor, senior counsel and junior counsel, and he chose to apply, unsuccessfully, for the transfer of the matter to the Supreme Court.

3. A more transparent and collaborative approach by DVN to his sisters’ concerns could have avoided the need for the applications.

DVN’s response

25. DVN provided submissions in reply on 23 July 2018. In summary these relevantly are that:

1. Since NZG and MBL were represented at all times by Ms Gilmour, a retired barrister and family friend who deployed her barrister’s experience and training in their interest, it was neither inappropriate nor unreasonable that DVN should himself be represented.

2. The timing with which the application was made, shortly after DVN had requested his sisters to pay some rent for their apartments, suggests that their concern was less with their mother’s personal and financial welfare than that their personal interests would be adversely affected by DVN’s continuing to manage MQN’s affairs in the way he proposed.

3. DVN has provided information as to his management of MQN’s affairs.

4. NZG and MBL’s focus on historical transactions indicates a collateral purpose.

5. The nature, gravity and sweep of the allegations made by NZG and MBL were such as to justify the use by DVN of solicitors and counsel.

The Tribunal’s deliberations

26. In considering this application the Tribunal looks to the matters set out in s 60(2) of the Act.

27. Section 60(2)(a): Whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings.

1. DVN might say that the simple fact of NZG and MBL seeking to traverse decades of personal and financial family history, rather than just the period since his appointment as attorney, placed him at an unfair and unnecessary disadvantage. This, however, really goes to a more fundamental question, namely whether their claims had a tenable basis. These reasons will address that issue below.

28. Section 60(2)(b) of the Act: Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings

1. All parties were compliant generally with timetables issued by the Tribunal for the provision of evidence and submissions.

2. DVN might say that the wide-ranging nature of NZG and MBL’s allegations, both conceptually and historically, indirectly had this effect, since it required him to delve into decades of personal and financial family history in order to answer their claims. Again, however, this really goes to the fundamental issue of the tenability of their claims, which these reasons address below.

3. If, however, there is any element to the parties’ overall conduct of the applications which might possibly be considered as unreasonably prolonging matters, it was DVN’s attempt to remove the applications to the Supreme Court. This was commenced on 22 February 2017, and on 22 May 2017 the Tribunal declined to consent to the applications’ removal. It can be concluded, therefore, that the various alarums and excursions associated with the removal application added about three months to the overall time taken to deal with the applications.

29. Section 60(2)(c) of the Act: The relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law

1. At the outset it should be noted that this factor goes not to the outcome of the hearing in question, but as to whether the applications were devoid of any tenable basis.

2. The guardianship application was not supported by evidence as to any issues of significant concern in relation to decision making for MQN. The evidence provided in support of it went to matters of micro-management of her care – for example, the suitability of the route followed by DVN when taking her for a walk in her wheelchair – rather than decision-making of a kind to which guardianship orders typically direct themselves.

3. There is, however, nothing unusual in applicants confounding guardianship with care, and in the Tribunal’s view to treat such a misconception as the basis for a costs order would be wrong for two reasons:

1. It is not in any sense a special circumstance in guardianship proceedings, and

2. more importantly perhaps, to do so would discourage those with genuine concerns, however misconceived, for the welfare of a vulnerable person from voicing them in a guardianship application; this would be entirely inimical to the underlying policy objectives of the Guardianship Act 1987 (NSW).

4. The Tribunal now turns to the application to review the EPA. To the extent it concerned the making of the EPA, it is dealt with in this paragraph; to the extent it concerned the operation and effect of the EPA, it is dealt with in [31] below.

5. That MQN:

• was a native Italian speaker with a less than perfect command of English;

• was an elderly lady at the time she granted the EPA;

• had little involvement either in arranging for the preparation of the EPA or scheduling its execution; and

• had a long history of practical reliance on DVN in relation to business and financial matters;

all appeared to be common ground amongst the parties.

6. The issues went to whether MQN’s imperfect English was sufficient to allow her to understand the powers she conferred on DVN and, more generally, whether her dependence on his judgment in business matters was such that the execution of the EPA could be viewed as her own decision. Even though the Tribunal dismissed the application for review in the present case, similar considerations not uncommonly underlie review applications to the Tribunal and, in the Tribunal’s view, are sufficient to conclude that the application for review, to the extent that it related to the making of the EPA, was not without a reasonably arguable basis.

30. Section 60(2)(d) of the Act: The nature and complexity of the proceedings

1. The one aspect of the Applicant and MBL’s approach to the applications which tended towards the unusual was the intense focus which they placed on events which occurred before (and in some cases, decades before) the EPA was granted. These reasons return to this aspect in [31] below.

31. Section 60(2)(e) of the Act: Whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance

1. As these reasons suggest above, in the context of these applications most of the other factors enumerated in s 60(2) of the Act effectively come down to consideration whether the applications were misconceived or lacking in substance.

2. DVN says that the applications “… in substance had very little to do with [MQN]’s welfare and everything to do with excluding [DVN] from the care and management of their mother’s affairs”. Very clearly the Applicants were concerned to remove DVN from the management of MQN’s affairs; the review and financial management applications were unambiguously directed at achieving that result. The issue is whether the applications had a substantive basis sufficient to conclude that they were not frivolous, vexatious, misconceived or lacking in substance in pursuit of that objective.

3. These reasons discuss above the basis for the guardianship application and conclude that it was based on a misconception, that a guardianship application is an appropriate vehicle for reconciling differences of approach to the minutiae of care for a disabled or elderly person. This, however, is a common misconception which recurs before the Tribunal with some frequency. That it underlies the guardianship application in the present matter is not in the Tribunal’s view a factor sufficient to justify a costs order, for the reasons outlined earlier.

4. NZG and MBL’s fundamental approach in relation to the EPA review and financial management application can be summarised in the following propositions:

1. DVN may well have been dealing appropriately with the income of MQN’s property in north Sydney for the past few years, since October 2015 when a real estate company became managing agent, but the intertwined nature over many decades of his business affairs, on the one hand, and those of his parents (and, since 1998, his mother alone) on the other, is such that he simply cannot bring to his management of his mother’s affairs the degree of disinterest necessary to ensure that her affairs are managed in her interests exclusively.

2. MQN’s uncritical reliance on DVN has left her vulnerable to exploitation which, because of the intermingling of his affairs with hers, is a real risk.

5. There is nothing inherently irrational or unreasonable in principle with this approach. Where it failed was that NZG and MBL did not demonstrate in MQN’s particular circumstances a factual basis for concern sufficient to override the evidence as to DVN’s satisfactory management since 2015 of his mother’s affairs. As the Tribunal said in its reasons:

The Tribunal’s view is based on the current circumstances. If any of these were to change in way which was adverse to:

(a)   the stability of MQN’s accommodation at the aged care facility in north Sydney

(b)   the integrity of MQN’s title to [Property A],

(c)   the continuing availability to her of the entire income generated by [Property A],

(d)   the generation of a reasonable economic return from [Property A], or

(e)   the close and frequent contact she enjoys with all of her children,

then the outcome of a further application might well be different. That, however, would be a matter for the Tribunal at the time.

6. The historical transactions to which they referred in support of their claim were, at most, ambivalent. In its reasons the Tribunal observed that:

“There is nothing inherently questionable about the individual transactions of which NZG and MBL complain; they necessarily take their quality from their respective contexts”.

NZG and MBL were unable to demonstrate to the Tribunal’s satisfaction that the transactions, taken in their respective contexts, raised concerns sufficient to override the evidence of DVN’s conduct since 2015. By way of analogy, these historical transactions were all surrounded by a more or less translucent cloud. NZG and MBL immediately identified the cloud as smoke and concluded that there was an underlying fire; for DVN it was the heat haze generated by his and his father’s efforts over decades in a common enterprise directed at increasing their aggregate wealth; the Tribunal, however, could see only the mists of history and the fog of memory.

7. That NZG and MBL were unable to demonstrate to the Tribunal’s satisfaction that their concerns had sufficient validity to support the appointment of a financial manager of MQN (and thus suspend the operation of the EPA) does not of itself mean that a costs order is justified:

1. There is nothing inherently implausible, offensive or unreasonable in suggesting that a person may not be a suitable candidate to be appointed or to continue as someone’s enduring attorney if the history of financial and business dealings between the principal and the attorney is such as potentially to present a conflict of interest for the attorney in performing his or her duties.

2. There is, moreover, nothing inherently unreasonable in the proposition that a long history of business dealings between the attorney and the principal, in which financial or credit support provided by the principal has facilitated the attorney’s business success, may potentially place the attorney in such a position of conflict.

3. It is undoubtedly the case, as DVN himself recognised, that:

1. the property in north Sydney owned by MQN (amongst various other properties) secures bank loans advanced to him and to his wife in order to fund their property portfolio; and

2. the proceeds realised on sale of the [redacted] property formerly owned by MQN have been used by DVN to fund his [redacted] construction business,

and it is not unreasonable for an interested party to question whether those facts are such as to place someone in DVN’s position into a position of conflict between his personal interests and his duties towards his mother under the EPA.

8. That NZG and MBL would each have a conflict of interest in acting as MQN’s financial manager is irrelevant to the present analysis, particularly since they both agreed that the appointment of NSW Trustee and Guardian as financial manager would satisfy their concerns.

9. That the Tribunal did not find any relevant concerns with the actual management of MQN’s affairs by her attorney does not of itself establish that the relevant applications were frivolous or vexatious or otherwise misconceived or lacking in substance to the point that they constituted special circumstances sufficient to justify a costs order.

32. Section 60(2)(f) of the Act: Whether a party has refused or failed to comply with the duty imposed by s 36(3) of that Act

1. The duty imposed under s 36(3) of Act on parties to proceedings before the Tribunal is “…. a duty to co-operate with the Tribunal to give effect to the guiding principle” set out in s 36(1) of that Act, and which is discussed earlier in these reasons.

2. As noted earlier, all parties complied with the Tribunal’s directions and its expectations as to the exchange of information between them. During the various hearings, all parties and their respective representatives conducted themselves in a way which was generally consistent with the guiding principle.

3. That NZG and MBL’s concerns about DVN’s suitability to act as their mother’s enduring attorney were based on historical transactions and dealings necessitated an investigation of those transactions and dealings, both on their part (in order to demonstrate the validity of their concerns) and on DVN’s (in order to address them). To base a challenge to a person’s current suitability to act as attorney on historical dealings involving that person and the principal is, as discussed above, not an illegitimate approach, and therefore does not carry with it some kind of inherent failure to comply with the s 36(1) of the Act guiding principle.

4. All parties’ overall approach to the applications was inflected by a more adversarial procedural approach than is customary in this Division:

1. DVN approached the applications litigiously, instructing not merely solicitors and counsel, but an eminent member of the senior bar and conducting his response to the applications in an adversarial style. His personal history indicates that he is a man for whom litigation holds few terrors, as he demonstrated by pursuing the case of [citation omitted for publication] to its successful (for MQN) conclusion in the High Court of Australia. Perhaps, as someone who is experienced in assessing strengths and weaknesses in negotiations, he judged that the most effective tactic for putting an end to the applications was to raise the intensity of matters to a level at which his sisters would be disinclined or ill-equipped to pursue them any further. Perhaps, as his submissions indicate, he considered the applications to be an attack on “…his reputation, his credibility and his good name” which had to be defended vigorously without regard to cost. Other considerations too may possibly have come into play.

2. DVN was, however, not unique in his inclination to the adversarial. The Applicant’s approach, perhaps influenced by Mrs Gilmour’s training and experience, also tended in the same direction, both initially and in response to DVN. This tendency was reinforced as the matter progressed, evidence was exchanged and submissions were made.

33. Section 60(2)(f): any other matter that the Tribunal considers relevant

1. The relevant policy objectives of the Guardianship Act are well set out in paragraph 8 of the Guardianship Division Guideline on costs dated August 2017:

“The protective jurisdiction exercised by the Guardianship Division of the Tribunal means that people should not be discouraged from bringing well motivated applications to the Tribunal for fear of a costs order being made against them. Accordingly, costs orders have been rarely made in the Guardianship jurisdiction”.

2. DVN says in his submission dated 21 June 2018 that the applications were filed shortly after he requested each of NZG and MBL to pay half the market rent for the apartments they occupy in Property A. He concludes from this that the applications were directed less at protecting MQN’s personal and financial well-being than at perpetuating his sisters’ rent-free accommodation. The submission he makes is that their applications were therefore not well motivated for purposes of paragraph 8 of the Guardianship Division’s Costs guidelines.

3. Alternative explanations can, however, be formulated:

1. The simplest, as both NZG and MBL said during the hearing, is that the request for rent brought into stark relief for the Applicant and MBL the possibility that either or both of them might have to vacate Property A and move to more distant accommodation. Since the aged care facility in north Sydney is in the next street along from Property A, and almost directly behind it, for them to move could well make it difficult to maintain the frequency and intimacy of contact with their mother which they currently enjoy. In this formulation, the potential for their connection with their mother to weaken if they moved motivated them to make the applications which they had already been contemplating.

2. Another is that, having concluded that their brother had financially exploited their mother, every action on his part in relation to MQN’s affairs – even one as logical and apparently reasonable as to ask them to pay some rent to their mother for the apartments which they occupied in her building – was viewed through that prism, as yet another exploitative action by DVN.

4. Other alternatives can be articulated, but there is little point in further speculation. The simple fact that there are alternative explanations means that lodging the applications shortly after the request was made for rent does not necessarily mean that they were motivated by a desire on the part of NZG and MBL to protect their rent-free accommodation. The expression post hoc ergo propter hoc encapsulates a logical fallacy, not a probative principle.

5. In his submissions DVN refers to the emotional toll which the applications have taken on him. This is obviously to be regretted, but without devaluing the emotional effect of the applications, it is not an unusual experience for parties involved in proceedings before this Division. The subjects with which the Division deals – ageing, loss of capacity, intellectual disability, the abuse of the vulnerable – are inherently distressing. While the Tribunal attempts through its procedures and approach to cushion to some degree participants against the emotional burdens of making, pursuing and deciding applications, they are inherent in recourse to the Division and can never be fully escaped. Hence, while it is regrettable that DVN found the process emotionally trying, that is not so special a circumstance in guardianship proceedings as to justify a costs order.

34. In conclusion, the Tribunal is not convinced that there are special circumstances sufficient to warrant an award of costs against NZG or MBL or both of them in this case.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 November 2019