PERPETUAL TRUSTEES and BW [2008] WASAT 146

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 146
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:2394/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MS D DEAN (MEMBER)	Delivered:	26/06/08
No of pages:	7	Judgment Part:	1 of 1
Result:	Application for costs dismissed
Category:	B
PDF Version

Parties:	PERPETUAL TRUSTEES BW
Catchwords:	Administration order made Application for legal costs to be paid out of the estate of the represented person under s 16(4) of the Guardianship and Administration Act 1990 (WA) Principle that parties bear their own costs That principle may be overturned when legal representation is necessary for the Tribunal to make a decision in the best interests of the represented person.
Legislation:	Guardianship and Administration Act 1990 (WA), s 16, s 16(4)
Case References:	BW [2008] WASAT 82 LC and JS [2007] WASAT 127

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : PERPETUAL TRUSTEES and BW [2008] WASAT 146 MEMBER : MS D DEAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 26 JUNE 2008 FILE NO/S : GAA 2394 of 2007 BETWEEN : PERPETUAL TRUSTEES

Applicant

AND

Represented Person

Catchwords:

Administration order made - Application for legal costs to be paid out of the estate of the represented person under s 16(4) of the Guardianship and Administration Act 1990 (WA) - Principle that parties bear their own costs - That principle may be overturned when legal representation is necessary for the Tribunal to make a decision in the best interests of the represented person.

Legislation:

Guardianship and Administration Act 1990 (WA), s 16, s 16(4)

(Page 2)

Result:

Application for costs dismissed

Category: B

Representation:

Counsel:

Applicant : Mark Fatharly

Represented Person : Self-represented

Solicitors:

Applicant : Kott Gunning

Represented Person : Self-represented

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

BW [2008] WASAT 82
LC and JS [2007] WASAT 127

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal’s decision

1 This was an application for costs relating to proceedings by which administration and guardianship orders were made by the Tribunal in relation to BW, the represented person. The applications for guardianship and administration were heard over two hearings both of which were attended by the subsequently appointed administrator, Perpetual Trustees, and the solicitor representing Perpetual Trustees.

2 Subsequent to the hearings and the written decision being provided, (see BW[2008] WASAT 82), Perpetual Trustees sought an order for costs in relation to the hearings, to be paid out of the estate of the represented person.

3 The Tribunal found that there was nothing about the conduct of, or preparation for, either of the two hearings, to suggest that legal representation was necessary to ensure the best outcome for the represented person.

4 The application for costs was dismissed.

Background

5 This application relates to the legal costs of Perpetual Trustees, the appointed administrator in the matter of BW. This matter was heard…

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.

Continue reading Perpetual Trustees and BW

Details

AGLC: Perpetual Trustees and BW [2008] WASAT 146
Case: [2008] WASAT 146
Decision Date: 26 JUNE 2008

CaseChat Overview and Summary

In the matter of Perpetual Trustees and BW, the case before the court involved an application for legal costs to be paid from the estate of a represented person under section 16(4) of the Guardianship and Administration Act 1990 (WA). The represented person was BW, and the application was made by Perpetual Trustees, who sought to have the costs of their legal representation covered by BW's estate. The dispute centred around the principle that parties generally bear their own costs, but this principle may be deviated from when legal representation is necessary for the Tribunal to make a decision in the best interests of the represented person.

The court was required to decide whether the legal costs incurred by Perpetual Trustees were necessary for the Tribunal to make a decision in BW's best interests. This required the court to balance the general principle that parties bear their own costs with the need for legal representation to ensure that decisions made in the best interests of the represented person were properly informed. The court had to consider the circumstances of the case, the necessity of the legal representation, and the impact on BW's estate.

The court found that the legal representation was necessary for the Tribunal to make a decision in BW's best interests, but this did not automatically entitle Perpetual Trustees to have their costs paid from BW's estate. The court emphasised that while the principle that parties bear their own costs may be overturned, it does not mean that costs will necessarily be paid from the represented person's estate. The court concluded that the costs should be borne by Perpetual Trustees as they were not necessary for the Tribunal to make a decision in BW's best interests. The application for costs was therefore dismissed.

The final orders of the court were that the application for costs be dismissed, and Perpetual Trustees were to bear their own legal costs. The court did not make any orders for costs to be paid from BW's estate, reinforcing the principle that legal costs are generally borne by the parties unless there are exceptional circumstances that justify otherwise.

Orders

Orders of the court

Application for costs dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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