MS - [2025] WASAT 49 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   MS [2025] WASAT 49
MEMBER:   JUDGE F VERNON, DEPUTY PRESIDENT
MR T CAREY, MEMBER
MS N EAGLING, MEMBER

HEARD:   29 APRIL AND 27 MAY 2025
DELIVERED          :   4 JUNE 2025
FILE NO/S:   GAA 702 of 2025

MS
Represented Person
PA
Applicant

Catchwords:

Enduring power of attorney - Application under s 104A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) for recognition of NSW power of attorney - Review under s 17A of the GA Act - Whether the NSW power of attorney is validly created under the laws of NSW - Whether NSW power of attorney corresponds sufficiently, in form and effect, to an enduring power of attorney created under s 104 of the GA Act - Whether it is appropriate to recognise the NSW power of attorney - Intention of attorney to open a deposit account for the donor at the Perth Mint - No estate in WA - Application for recognition of power of attorney allowed

Legislation:

Conveyancers Licensing Act 2003 (NSW)
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(7), s 17A, s 41(1), s 41(3), s 67(1), s 102, s 104, s 104(1a), s 104(1)(a), s 104(1)(b), s 104(1)(b)(ii), s 104(2)(a), s 104(2)(a)(ii), s 104(2)(b), s 104(3), s 104A, s 104A(2), s 104A(2)(a), s 104A(2)(b), s 104A(3), s 104A(4), s 104B, s 106, s 106(4), s 106(5), s 113(1), Pt 9, Pt 9A, Sch 3
Oaths, Affirmations and Statutory Declarations Act 2008 (WA), Sch 2
Powers of Attorney Act 2003 (NSW), s 2, s 6(1), s 19, s 19(1), s 19(1)(a), s 19(1)(b), s 19(1)(c)(i), s 19(1)(c)(ii), s 19(1)(c)(iii), s 19(1)(c)(iv), s 19(1)(c)(v), s 19(2), s 19(2)(b), s 20(1), Pt 2, Sch 2
Powers of Attorney Regulation 2024 (NSW), Sch 2
State Administrative Tribunal Act 2004 (WA), s 17(1), s 27(1), s 27(2), s 27(3)
Trustee Companies Act 1964 (NSW)

Result:

Power of attorney recognised

Category: B

Representation:

Counsel:

Represented Person	:	No appearance
Applicant	:	Mr R Graham

Solicitors:

Represented Person	:	N/A
Applicant	:	Graham & Associates Lawyers

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

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
MS [2025] WASAT 13
Ricetti v Registrar of Titles [2000] WASC 98
ZPP v ZPO [2020] NSWCATAP 288

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

MS appointed his son, PA, to be his attorney under a power of attorney made in New South Wales on 22 December 2008 (Power of Attorney).[1]
[1] The parties' names have been anonymised to ensure the confidentiality of the represented person's personal information as required by s 113(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), using the same identifying initials as were used in the original decision, MS [2025] WASAT 13.
PA applied to the Tribunal for an order under s 104A of the Guardianship and Administration Act 1990 (WA) (GA

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

Case: [2025] WASAT 49
Decision Date: 4 JUNE 2025

CaseChat Overview and Summary

The application for recognition of an enduring power of attorney (EPA) was brought by MS under section 104A(1) of the Guardianship and Administration Act 1990 (WA). The application was heard by the Supreme Court of Western Australia, which was tasked with determining whether a power of attorney created in New South Wales could be recognised under the laws of Western Australia. The dispute centred on whether the NSW EPA met the necessary legal criteria for recognition under the WA Guardianship and Administration Act 1990 and whether the power of attorney's intentions could be sufficiently executed within the framework of the WA legislation.

The court had to decide several legal issues, primarily whether the NSW EPA was validly created under the laws of New South Wales. Additionally, the court needed to determine whether the NSW EPA corresponded sufficiently in form and effect to an EPA created under section 104 of the WA Guardianship and Administration Act 1990. Another critical issue was whether it was appropriate to recognise the NSW EPA. Furthermore, the court examined the specific intention of the attorney to open a deposit account for the donor at the Perth Mint, considering there was no estate in Western Australia.

The Supreme Court concluded that the NSW EPA was validly created and corresponded sufficiently in form and effect to an EPA under the WA legislation. The court recognised that the attorney's intention to open a deposit account for the donor at the Perth Mint, while not involving an estate in Western Australia, was nonetheless a valid exercise of the power granted by the NSW EPA. The court allowed the application for recognition of the NSW EPA, finding it appropriate to recognise the power of attorney as it aligned with the legal requirements and intentions stipulated in the WA Guardianship and Administration Act 1990. The court's decision ensured that the attorney could proceed with the intended financial transaction on behalf of the donor.

Orders