ODN – Application for Costs
[2013] TASGAB 11
•5 June 2013
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
ODN – Application for Costs
ODN (Costs) [2013] TASGAB 11
REASONS FOR DECISION
Anita Smith (President)
Date of decision: 5 June 2013
Costs – review of enduring power of attorney - applicant was aware of the deficits in the application but proceeded anyway – starting position ‘costs follow the event’ – no reason to deviate from the starting position
Guardianship and Administration Act 1995 s. 80
Latoudis v Casey (1990) 170 CLR 534
Hardman v Ward [2004] TASSC 74
On 8 February 2013 the Board heard an application by XT (the applicant) for review of an enduring power of attorney executed by ODN (the donor) on 17 September 2013 appointing DKX as his attorney. The applicant had asserted that the power should be revoked because the donor lacked capacity at the time of execution of the instrument. The Board dismissed the application because the presumption that ODN had capacity at the time of execution had not been rebutted and there was no evidence that he lacked capacity.
Through counsel, the donor sought an order for costs. The Board granted the donor six weeks to make a written application for costs (including an itemised statement of account with costs at 80% of the Supreme Court scale) and the applicant six weeks thereafter to respond. A letter to the parties dated 19 February 2013 indicated:
“After 3 May 2013 the Board will determine the application for costs on the papers (i.e. without a further hearing), whether or not the above submissions have been received by that date.”
Section 80 of the Guardianship and Administration Act 1995 provides:
“Where the Board is of opinion in a particular case that there are circumstances which justify it in doing so, the Board may make such orders as to costs and expenses as the Board thinks just.”
On 1 March 2013, the Board received the donor’s application for costs and an itemised statement of account in the amount of $1491.03. The donor’s solicitor indicated that he had supplied a copy of the application and account to the applicant.
By 5 June 2013 (one month after the date for the applicant’s response) no response had been received from the applicant. The Board determined that it is just to make an order for costs.
The circumstances of this case which lead the Board to the opinion that there are circumstances which justify it in making an order as to costs are as follows:
The donor’s circumstances first came to the attention of the Board on 23 October 2012 when the applicant sought an emergency order and submitted an application to review the instrument because the donor had appointed a new attorney supplanting the applicant’s role as attorney. The emergency application was dismissed by the Board on 24 October 2013 because the application and subsequent investigations by the Board did not disclose any circumstances of urgency.
On 2 November 2012 the Board’s investigator emailed the applicant’s solicitor indicating the results of her preliminary investigations and inviting her to withdraw the application. The email included a warning:
“As discussed, if this matter proceeds to a hearing and the Board makes a finding that this application was made without merit then it will be open to the Board to consider a costs order pursuant to section 80 of the Guardianship and Administration 1995.”
The applicant attempted to have the donor assessed by Dr. Emma-Jane McCrum but the donor did not participate in the assessment. As the investigation proceeded, the GAB Investigator kept the applicant’s and the donor’s solicitors apprised of developments in the application and asked on numerous occasions whether the applicant intended to proceed in light of a lack of information about the donor’s mental capacity.
According to her report, the GAB Investigator spoke with the applicant on 26 November 2012. Here report states:
“We discussed the issue of costs and he said that he was aware of the risks of a costs order being made against him.”
On 17 December 2013, the applicant indicated that he intended to proceed with the hearing of the application. The matter was listed for hearing on 8 February 2013 because the applicant indicated that he would be interstate during late January.
At the hearing on 8 February 2013, the Board had no evidence before it that suggested that the donor had lacked capacity at the time of execution of the instrument or at any time. The applicant was aware of the deficits in the application but proceeded anyway.
The donor sought legal advice and representation to defend the application and to protect the integrity of the instrument that he had executed in favour of DKX, which was reasonable in the circumstances.
The donor has been put to expense. The applicant has proceeded to hearing in this matter despite warnings from the Board that the prospects of success were limited and there was a risk of costs.
The starting position for interpretation of section 80 is that ‘costs follow the event’[1]. The applicant made no submissions in response to the application for costs. The Board sees no basis upon which to divert from the starting position. Costs will be awarded against the applicant in favour of the donor in the sum of $1491.03.
[1] Latoudis v Casey (1990) 170 CLR 534 and Hardman v Ward [2004] TASSC 74
Anita Smith
PRESIDENT
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