NG - [2025] WASAT 51 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   NG [2025] WASAT 51 (S)
MEMBER:   DR E MARILLIER, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   5 JUNE 2025
FILE NO/S:   GAA 5308 of 2024

NG
Represented Person
DG
Applicant

Catchwords:

Guardianship and administration - Whether conduct of party constitutes exceptional circumstances justifying departure from starting position that parties bear own costs

Legislation:

State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Result:

Costs awarded in part

Category: B

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	Mr J Steedman

Solicitors:

Represented Person	:	N/A
Applicant	:	Steedman Stagg Lawyers

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

Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125(S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302
PHQ and LPQ [2015] WASAT 5
PT [2020] WASAT 147 (S)
RK [2020] WASAT 53 (S)
WD [2022] WASAT 12 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

D applied on 13 February 2025 for an order pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that N2 should pay D's costs of the proceedings. D claims $27,500.00 in costs.

D's costs application

D argued that N2's conduct in:
(a)refusing to make the statutory declaration which would allow registration of the EPA at Landgate;
(b)asserting that NG did not lack capacity despite the report of Dr L with which he was provided prior to the initial Directions Hearing on 31 October 2024; and
(c)not signing the statutory declaration to enable registration of the EPA and sale of NG's property to fund the RAD despite saying he would do so at the Directions Hearing,
was 'motivated by his desire to obtain control of the voting of [company] shares, unnecessarily prolonged the hearing, was unreasonable and inappropriate, and was for an ulterior purpose - to obtain the control of the voting of the [company] shares'.[1]
[1] Costs application of applicant, 13 February 2025, para 18.
D recognises that he bears the onus of persuading the Tribunal to exercise its discretion to make a costs order.[2]
[2] Ibid, para 5 citing PT [2020] WASAT 147 (S) [22] citing RK [2020] WASAT 53 (S) (RK) [23] referring to Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) [9].
D submitted invoices totalling $39,437.75 representing 52.2 senior practitioner hours at $484 an hour and 25.1 junior practitioner hours. He accepted he should not be fully indemnified for his costs but seeks an order that N2 pay $27,500 of D's costs of the proceeding.

N2's response in opposition to the costs application

N2 argues that the Tribunal should not depart from the starting position that 'parties bear their own costs in a proceeding of the Tribunal'.[3]
[3] SAT Act s 87(1).
N2 argues:
(a)the guardianship jurisdiction is protective, and costs orders would discourage family participation to protect vulnerable individuals;
(b)N2 had genuine concerns about NG's financial interests, and says D has cancer and is undergoing treatment, which meant that D alone having control of critical information presented 'legitimate administrative continuity risks that justified consideration of alternative arrangements to the EPA';[4]
(c)that the appointment of the Public Trustee validates his concerns that additional protections were needed;
(d)that my decision to list the matter for final hearing eight weeks after Directions to 'see if the EPA could work' was an acknowledgement that the parties might reassess positions during this time;
(e)that N2 sought legal advice after the Directions Hearing which highlighted significant challenges if D and N2 sought to work as joint attorneys given their history of conflict;
(f)that N2 spoke further with NG after the hearing and says she was concerned about the EPA process and its impact on her sons;
(g)that the amount claimed by the applicant is manifestly excessive; and
(h)that awarding costs in a 'relatively run-of-the-mill' case would create a concerning precedent, running the risk of transforming an accessible jurisdiction into one where 'parties must balance protective concerns against financial risk'.[5]

Principles to be observed in determining costs applications under s 87(2) SAT Act

[4] Submissions of N2 filed 28 February 2025, para 4.

[5] N2 submissions filed 28 February 2025, para 5.

Senior Member Wallace (as she then was) stated in PHQ and LPQ:[6]
32… there is a need for applicants to proceed cautiously and to be seen to be making the application with a genuine concern held in good faith for the mental health [and] wellbeing of the proposed represented person ...
33The Tribunal is likely to consider awarding costs in guardianship and administration applications where it appears that costs were unnecessarily incurred due to the unreasonable actions of the applicant, whether those actions are in pursuing an untenable application, unnecessarily prolonging an application, initiating and pursuing an application for an improper purpose and/or generally acting in a way so as to disadvantage the proposed represented person such that they unnecessarily incur legal and other costs associated with the proceedings.
[6] PHQ and LPQ [2015] WASAT 5 (PHQ) at [32] - [33].
I adopt SM Wallace's approach and extend it to interested parties beyond the applicant.
Member McGivern summarised the relevant provisions and case law in WD [2022] WASAT 12 (S) [10] - [11] (citations omitted):
10As noted by Senior Member Aitken in PT [2020] WASAT 147 (S):
26One of the main objectives of the Tribunal in dealing with matters within its jurisdiction is to minimise the costs to the parties: s 9(b) of the SAT Act.
27When an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs awarded, to reflect an expectation that the legal representatives of the parties will approach proceedings in a way that minimises costs to their clients.
…
29The Tribunal is empowered to fix the amount of costs to be paid and if it does not fix the amount of costs then the amount is to be assessed; s 89 of the SAT Act. The usual approach of the Tribunal is to fix costs, rather than assess them.
11As noted in that case, the Tribunal's approach to fixing costs has been explained in the following way:
a)the Tribunal approaches the task of fixing costs to be awarded in a 'broad and relatively robust fashion';
b)the Tribunal must be satisfied that the claim is reasonable having regard to the matter before it; and
c)an award of costs is not intended to be a full indemnity for the actual expense incurred by a party to a proceeding, but rather:
… [T]he preferable approach is not to look at what has actually been charged to the client, but rather what reasonable allowance should be made, taking a robust and broad brush approach, for the work necessarily done to bring the proceedings to a conclusion[.]

Consideration

N2 argues that the Tribunal should not depart from the starting position that 'parties bear their own costs in a proceeding of the Tribunal'.[7] In part he says it will decrease family participation, as parties will have to weigh participation against financial risk. I note that the vast majority of parties in matters under the GA Act do not choose to have legal representation, and the question of costs does not arise. I also note that costs are only awarded in exceptional cases where the Tribunal finds that a party by their conduct has justified such an order. The question I have to determine is whether this is such an exceptional case.
[7] SAT Act s 87(1).
N2 states that his actions throughout were motivated by concern for his mother, and not by self-interest in relation to control of [company] shares.[8] Further, he argues that his withdrawal of his candidacy for appointment as administrator was evidence of his genuine concern. Given his legal qualification, his legal representation, and that it was not until I spelt out his insurmountable conflict of interest that he withdrew his candidacy, I do not accept that submission.[9]
[8] N2 submissions filed 28 February 2025, pages 8 - 9.
[9] ts 21 - 22, 14 January 2025.
N2 argues that the applicant has alleged that N2's purpose was to gain 'leverage' and that this mischaracterises his 'legitimate concern'.[10]
[10] N2 submissions filed 28 February 2025, page 9, para 3.10.
At the hearing on 14 January 2025, N2 gave the following evidence:[11]
[11] ts 21 - 22, 14 January 2025.
MARILLIER Dr: And so would you like to further explain to me why, after, I think, my fairly straightforward explanation at the directions about how this could be resolved quite simply using the instrument that existed, you chose not to do that?
N2, MR: Indeed, I agree, and, indeed, at the time I did agree to do so, and I did agree to follow your suggestions and hearing dates and so forth. I then said, "All right. I need an undertaking to protect my mother's interests so that she be allowed to vote as the will she has, and she does not want (Indistinct) to get control of [the company]. This is something she's - - -
MARILLIER Dr: So we're just talking about the sale of the house to pay the RAD. I'm really just very interested in why the very simple thing that could happen that you all three agreed about has been prevented, because lodging the EPA at Landgate would have facilitated the sale of the property and the resolution of the debt. It doesn't, as far as I can see, have an impact on what's going to happen about the shares, because that didn't require there to be any declaration regarding [N]'s capacity.
N2, MR: No, it did not. The position was that it was recommended that I do not proceed with the sale on the basis that that would provide leverage to ensure that we could then vote the shares and remove the guarantee.
MARILLIER Dr: Okay. So just bear with me here. To me, that sounds like your personal interest in the outcome of … - that company has interfered with you taking timely and appropriate action in your mum's best interests to facilitate the sale of her property.
N2, MR: That was not the way it was viewed by my other team.
MARILLIER Dr: So I'm looking at you as the decision-maker here, [N2]. You're the one who made the decision. That's the impact of the decision that you made.
N2, MR: I'm aware of that.
MARILLIER Dr: Okay. So I'm satisfied that that sequence of events demonstrates that your conflict of interest that arises from your own interest in the fate of that company has led you to make decisions that have directly compromised your mum's financial position, and that means I can't find you suitable to be her administrator.
N2, MR: I would actually agree with you.
Because of the evidence given by N2 himself, I do not accept that there is any mischaracterisation by the applicant and I am satisfied and I find that between the Directions Hearing on 31 October 2024 and the Final Hearing on 14 January 2025, N2 was acting on advice and in his own personal self-interest not to complete the statutory declaration which would have allowed the sale of N's property because he believed it would 'provide leverage to ensure we could then vote the shares and remove the guarantee.'
N2 says his maintenance of his position (against signing the statutory declaration, which on the evidence before the Tribunal at the Directions Hearing might have led to the matter being withdrawn) was justified, and in N's best interests because of 'the value of corporate assets involved, potential risks from Asset Management arrangements and the need to ensure proper protections were in place'.[12] I note that a candid admission that he had a conflict of interest which precluded his acting either as attorney or administrator could have been made at the Directions Hearing. This would have been in NG's best interests and would have allowed the Tribunal to make emergency administration orders pursuant to s 65 of the GA Act and to have listed the matter to final hearing swiftly, limiting the ongoing costs to NG of the delay. D's costs between the Directions Hearing and the final hearing would have been decreased as time and effort would not have been expended in pursuing N2 and his legal representatives seeking signature of the statutory declaration, and the potential withdrawal of the application under s 40.
[12] N2 submissions filed 28 February 2025, page 10 para 4.3.
On 30 October 2024 (the day before the Directions Hearing) N2 sent an email to D's legal representative saying '[t]his afternoon [NG] decided she wanted D to control all her assets and her life. That is her choice and I will abide by it'. At the Directions Hearing I explained that the EPA allowed decisions to be made by the attorneys without requiring any statement that NG lacked capacity, given that it was in force notwithstanding incapacity, and that NG, D and N2 all agreed that the apartment needed to be sold. N2 (who had been arguing that NG retained capacity for complex financial decisions despite having been provided with the report of Dr PKL) said:[13]
… I'm ready to sign that documentation to enable this to proceed, without the need for any decision or action by the appointment of any other party to protect my mother because that's not necessary, and it's additional cost. It's simply not necessary.
[13] ts 14, 31 October 2024.
I find that N2 acted capriciously in indicating in his email of 30 October 2024 that he would respect his mother's wishes to allow D to manage her affairs, then stating initially in the Directions Hearing that he would not because he believed she still had capacity, then telling me he was 'ready to sign that documentation' and then subsequent to the Directions Hearing changing his position again.
N2 submits that my decision to list the matter for final hearing eight weeks after Directions to 'see if the EPA could work' was an acknowledgement that the parties might reassess positions during this time. In fact, I listed the matter in eight weeks' time in part because of the unavailable dates of parties and the Tribunal, and partly because D was not willing to withdraw the application unless and until N2 had actually signed the statutory declaration. D's concern in this regard proved well-founded.
N2 states that D is highly educated and could have represented himself.[14] He also says that D's significant health condition for which D travels internationally on a regular basis to have treatment constituted a serious risk to N's interests.[15] I find that a serious health condition requiring international treatment is a valid reason why a party might need to have legal representation in relation to a matter which otherwise they may have been able to manage themselves.
[14] N2 submissions filed 28 February 2025, page 11, para 4.5.
[15] Ibid, page 11, paras 4.6 - 4.9.
N2 states that his position changed for two main reasons - his mother's wishes and the legal advice regarding his own position. Given N2 said in his email of 30 October 2024 that NG's wish was for D to manage her affairs, I have no confidence in N2's hearsay evidence regarding what NG has said to him subsequently.
NG's wishes as expressed to me were:[16]
I've always tried so hard to have the family friendly …
And:
… you just can't say sign off because there's a lot that has got a lot of feelings, a lot of hurts, and a lot of love all rolled together, and I want happiness. That's what I want more than anything.
[16] ts 16, 31 October 2024.
NG said at the final hearing:[17]
NG: Well, if you would really want to know, I would like the boys to be friends, because, you know, they're part of the same - we adored their father. They both adore their father. I adored my husband.
MARILLIER MS: Yes.
NG: And we've been, or should be, a happy family. And I am very saddened not to have the boys, because I think a lot of it is pettiness, jealousness, jealousy, you know. And they're so lucky. They have so much more than other people do have. But I feel that they should both pull up their - I can't say trousers, though.
MARILLIER MS: Socks.
NG: Pull up their - - -
MARILLIER MS: Let's go for socks.
NG: Socks. Socks.
[17] ts 8, 14 January 2025.
I find that NG's stated wishes were that her sons should work together cooperatively.
N2 argued that there was no conflict of interest in his position in deciding not to sign the statutory declaration as NG's and his best interests were 'aligned' regarding the substantial shareholdings they each held in [the company].[18]
[18] N2 further submissions on costs 5 April 2025 paras 4.3 - 4.4.
I do not accept this submission for the following reasons:
Firstly, NG's interests required that prompt action be taken to sell her property to finance the RAD and prevent further accrual of debt.
Secondly, complex international contractual and legal matters were being contested in relation to [the company],[19] leading me to deduce that any opinion on what was the best action to take in relation to NG's shares would be contested (and that others would not share N2's view of the prospects for the company).
[19] N2 witness statement 13 January 2025, para 28.
Thirdly, N2 admitted in the passage set out at [13] above that his motivation in deciding not to sign the statutory declaration that would have allowed registration of the enduring power of attorney and the sale of NG's property was to 'provide leverage' in relation to control of NG's shares.
Registering a joint and several EPA at Landgate solely permits the use of that EPA by either of the attorneys to conduct a transfer of land in Western Australia.
When an EPA was not registered within three months of execution, Landgate requires the attorneys to file a statutory declaration to the effect that: the donor is still alive, the donee has seen or communicated with them in the last seven days, and the EPA has not been revoked or varied.[20]
[20] >
Signing of the statutory declaration would not have given any authority relating to share transactions. Refusing to sign it only achieved two things: prevention of the sale of NG's property (which was agreed by N2 to be in NG's best interest and in accordance with her wishes), incurring a further $18,000 debt for her accommodation and care, and increasing the legal costs incurred by both N2 and D.
N2's manifest and (belatedly) admitted conflict of interest, combined with a failure to understand what signing the statutory declaration to allow registration of the EPA would and would not have meant legally, has led to delay in resolving NG's affairs at significant cost to both NG and D.
N2 argues that the Tribunal's finding that the EPA cannot stand as a less restrictive alternative to the appointment of an administrator, and my appointment of the Public Trustee, vindicates his position.
N2's conflict of interest and the impact of that on his actions is the reason the EPA cannot stand as a less restrictive alternative.
N2's initial position was that his mother had capacity. He stated on 30 October 2024 that he would accept her choice that D manage her affairs. If he had signed the statutory declaration on that day, and then allowed D to make the arrangements to sell the property and pay the RAD, he would have achieved that. As joint and several appointees, either of them could act, and beyond the point of the lodgment of the statutory declaration, they did not have to act co-operatively. N2 just had to be prepared to abide by the decisions of D.

N2's next position was that he should be appointed administrator. This was revealed for the first time in his witness statement filed 13 January 2025 (the day before the final hearing). N2 set out in some detail what he labelled 'Complex Commercial Arrangements' including that there were differences between N2 and D regarding what should happen in relation to [the company]. N2 submitted that he was suitable for appointment due to his qualifications and experience in law, economics and business administration, and set out actions he had taken which he said were in NG's best interests including 'preserving the voting rights attached to [the company] shares'. N2 failed to identify the conflict of interest despite his qualifications and experience until it was spelt out for him by me.[21]
[21] Supra, [47].
Once N2 accepted that he had a conflict of interest, he submitted that the Public Trustee should be appointed rather than the legal practitioner proposed by D. This option is always available to the Tribunal where it is in the best interests of the represented person.[22] My appointment of the Public Trustee is not a vindication of N2's position, or a justification for his failure to identify and disclose his conflict of interest at the earliest possible opportunity.
[22] I explained this to the parties just after N2 conceded his conflict of interest; ts 23,14 January 2025. N2's legal representative submitted that the Public Trustee should be appointed at ts 34, 14 January 2025.
I am satisfied that between the directions hearing of 31 October 2025 and the final hearing of 14 January 2025, N2's conduct was not in the best interests of NG and caused unnecessary delay in bringing the matter to a final resolution. N2 was not candid regarding the reason for his reluctance to sign the statutory declaration. He told the Tribunal he was ready and willing to do so, and failed to provide information when that position changed, which would have allowed the Tribunal to make emergency and/or programming orders to limit the negative financial impact on NG. The delay caused D via his legal representative to continue to correspond extensively with N2 and his legal representatives on the basis of his previously expressed position and to incur significant costs as a consequence.
I find that this is an exceptional case, and that N2's conduct does warrant the partial award of costs to D.

Quantum

Given my finding that it is the period between N2's indication that he would sign the statutory declaration (at the directions hearing on 31 October 2024) and the final hearing where it was clear from the filing of his witness statement on 13 January 2025 that the EPA could not stand, I have fixed the costs that N2 should pay by considering those incurred during the period from 31 October 2024 to 15 January 2025 only.
D has provided meticulously detailed invoices regarding the costs breakdown.
The costs between 1 November and 20 December come to $4,570.50 (including GST).
The bill up to and including drafting written closing submissions on 15 January 2025 (which also includes preparation for and appearance at the 90-minute final hearing) amounts to $8,965.00.
I find that the costs incurred by D prior to the directions hearing, and after N2's true position was made clear at the final hearing, properly remain with him.
N2 submits that the costs claimed are manifestly excessive. He points to a number of costs which are excluded from my consideration because of the date range I have determined.
The exception is what the applicant labelled 'settlement negotiations' which was the attempts made to communicate with N2 and his legal representatives regarding his stated intention to sign the statutory declaration. Although GA Act matters are not a consent jurisdiction, in this case N2 had given an indication in hearing that he intended to take steps to resolve the impasse which had given rise to the application which required working cooperatively. He is responsible for those costs, given he reneged on that commitment because of his conflict of interest and the time and expense was incurred as a consequence of a lack of candour regarding that.
Arising from the same issue, preparation for the final hearing undertaken by D will in part have been misdirected due to N2's changing position and failure to communicate this clearly until the filing of his witness statement on 13 January which made his true position clear.
N2 argues that the Tribunal should take into account his personal financial position in determining quantum. Whether or not parties have funds to meet a costs order is irrelevant to the consideration by the Tribunal as to whether a costs order is appropriate.[23]
[23] PHQ [36]; WD [2022] WASAT 12 (S) [13].
The Tribunal does need to be satisfied costs incurred are reasonable and not excessive.[24] Where a client has entered into a valid costs agreement, there is no need to have regard to the Legal Profession (State Administrative Tribunal) Determination 2024.[25]
[24] PHQ [42].
[25] PHQ [42].
Adopting the 'broad and relatively robust' approach to fixing costs appropriate in the Tribunal,[26] D's costs between the directions hearing and the end of the final hearing amount to $13,535.50 and I find that they were incurred in part due to the contradictory communications received from N2 over the course of the matter. The Tribunal makes a reasonable allowance rather than awarding what was actually charged. The Tribunal fixes 'a sum that is reasonable having regards to the nature and complexity of the matter, and the work reasonably associated with it'.[27] I consider that the claim of 35 hours for the work between 31 October 2024 and 16 January 2025 is very high. I fix the amount of costs to be paid by N2 at $7,000.
[26] Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 at [67]; Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125(S) at [49].
[27] WD [2022] WASAT 12 (S) at [11].

Order

The Tribunal therefore makes the following order:
1.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), [N2] shall pay the costs and disbursements incurred by [D] in this proceeding fixed in the amount of $7,000 within 28 days.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
5 JUNE 2025