Perpetual Trustees Qld Ltd v Thompson - [2011] QSC 48

SUPREME COURT OF QUEENSLAND

CITATION:

Perpetual Trustees Qld Ltd v Thompson [2011] QSC 48

PARTIES:

PERPETUAL TRUSTEES QUEENSLAND LTD

(applicant)

v

LISE THOMPSON

(respondent)

FILE NO/S:

BS11655/10

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

25 March 2011

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

16 November 2010

JUDGE:

Martin J

ORDER:

I WILL HEAR THE PARTIES ON THE APPROPRIATE FORM OF ORDER AND COSTS

CATCHWORDS:

MENTAL HEALTH- MANAGEMENT AND ADMINISTRATION OF PROPERTY- REMUNERATION OF ADMINISTRATOR-GENERAL MATTERS- jurisdiction of the Supreme Court- where compromise between the parties sanctioned pursuant to Public Trustee Act 1978, s59- where trustee company appointed administrator under Guardianship and Administration Act 2000- where question of remuneration not raised when original orders were made- where applicant does not rely upon the court’s parens patriae jurisdiction- where trustee company has been previously held not to be a trustee of the fund in question- where Trusts Act 1973 does not apply- where original orders granted trustee company liberty to apply- where order for remuneration sought does not vary the original order- whether Supreme has jurisdiction to order that applicant is entitled to remuneration in respect of its functions as administrator of fund to which office it was appointed pursuant to order of the Supreme Court

MENTAL HEALTH- MANAGEMENT AND ADMINISTRATION OF PROPERTY- REMUNERATION OF ADMINISTRATOR - GENERAL MATTERS- jurisdiction of the Queensland Civil and Administrative Tribunal - where applicant and respondent submit that the Queensland Civil and Administrative Tribunal has power to make order for remuneration and fix remuneration of administrator pursuant to Guardianship and Administration Act 2000, s48 - Where it has been held that an administrator appointed under the GAA is entitled to remuneration only if an order is made - where it has been held that s48 of Guardianship and Administration Act 2000 does not apply to the remuneration of the Public Trustee or a trustee company where acting as administrator of an adult under the Act- where Guardianship and Administration Act 2000 subsequently amended and Trustee Companies Act 1968 repealed - whether Queensland Civil and Administrative Tribunal has jurisdiction to order that applicant is entitled to remuneration in respect of its function as administrator of fund to which office it was appointed pursuant to an order of the Supreme Court

Corporations Act 2001
Fair Work (Commonwealth Powers) and Other Provisions Act 2009
Guardianship and Administration Act 2000, ss12, 14, 48, 245
Public Trustee Act 1978, s59
Trusts Act 1973, s101
Trustee Companies Act 1968, s41
Uniform Civil Procedure Rules 1999, rr 5, 95, 659, 667

13 Coromandel Place Pty Ltd v CL Custodians Pty Ltd (in liq) (1999) 30 ACSR 377
Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Boyd v Halstead; Ex parte Halstead [1985] 2 Qd R 249
Callaghan and Anor v Zevering and Ors [2010] QSC 323
Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593
Guardianship and Administration Tribunal v Perpetual Trustees…

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: [2011] QSC 48
Decision Date: 25 March 2011

CaseChat Overview and Summary

Perpetual Trustees Queensland Limited, acting as an administrator under the Guardianship and Administration Act 2000, sought to be paid remuneration for their services. The case was heard by the Supreme Court of Queensland, which was asked to decide whether it had the jurisdiction to order that Perpetual Trustees Queensland Limited should be paid remuneration for its functions as the administrator of a fund. The respondent, Thompson, argued that the Supreme Court lacked jurisdiction in this matter. The court was also asked to determine if the Queensland Civil and Administrative Tribunal had jurisdiction to make an order for remuneration.

The court examined whether the original orders made by the Supreme Court contained any provision for the remuneration of the administrator. The court found that the original orders did not address the issue of remuneration. The court further considered whether the Supreme Court had the jurisdiction to order remuneration under its parens patriae jurisdiction. The court held that the applicant did not rely upon this jurisdiction, and therefore, the court was not empowered to order remuneration in this instance. The court also noted that Perpetual Trustees Queensland Limited had previously been held not to be a trustee of the fund in question, and therefore, the Trusts Act 1973 did not apply. The court concluded that the original orders granted Perpetual Trustees Queensland Limited the liberty to apply for remuneration, and since the order for remuneration did not vary the original order, the Supreme Court had jurisdiction to order that Perpetual Trustees Queensland Limited was entitled to remuneration in respect of its functions as administrator of the fund.

The court found that the Queensland Civil and Administrative Tribunal had the jurisdiction to make an order for remuneration and to fix the remuneration of the administrator pursuant to section 48 of the Guardianship and Administration Act 2000. The court noted that it had been held that an administrator appointed under the Act was entitled to remuneration only if an order was made. The court also noted that it had been held that section 48 of the Guardianship and Administration Act 2000 did not apply to the remuneration of the Public Trustee or a trustee company when acting as an administrator of an adult under the Act. However, the Guardianship and Administration Act 2000 was subsequently amended, and the Trustee Companies Act 1968 was repealed. The court held that the Queensland Civil and Administrative Tribunal had jurisdiction to order that Perpetual Trustees Queensland Limited was entitled to remuneration in respect of its functions as administrator of the fund to which it was appointed pursuant to an order of the Supreme Court.

I will hear the parties on the appropriate form of order and costs.

Orders

Orders of the court

I WILL HEAR THE PARTIES ON THE APPROPRIATE FORM OF ORDER AND COSTS

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Perpetual Trustees Qld Ltd v Thompson [2011] QSC 48
PARTIES:	PERPETUAL TRUSTEES QUEENSLAND LTD (applicant) v LISE THOMPSON (respondent)
FILE NO/S:	BS11655/10
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	25 March 2011
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	16 November 2010
JUDGE:	Martin J
ORDER:	I WILL HEAR THE PARTIES ON THE APPROPRIATE FORM OF ORDER AND COSTS
CATCHWORDS:	MENTAL HEALTH- MANAGEMENT AND ADMINISTRATION OF PROPERTY- REMUNERATION OF ADMINISTRATOR-GENERAL MATTERS- jurisdiction of the Supreme Court- where compromise between the parties sanctioned pursuant to Public Trustee Act 1978, s59- where trustee company appointed administrator under Guardianship and Administration Act 2000- where question of remuneration not raised when original orders were made- where applicant does not rely upon the court’s parens patriae jurisdiction- where trustee company has been previously held not to be a trustee of the fund in question- where Trusts Act 1973 does not apply- where original orders granted trustee company liberty to apply- where order for remuneration sought does not vary the original order- whether Supreme has jurisdiction to order that applicant is entitled to remuneration in respect of its functions as administrator of fund to which office it was appointed pursuant to order of the Supreme Court MENTAL HEALTH- MANAGEMENT AND ADMINISTRATION OF PROPERTY- REMUNERATION OF ADMINISTRATOR - GENERAL MATTERS- jurisdiction of the Queensland Civil and Administrative Tribunal - where applicant and respondent submit that the Queensland Civil and Administrative Tribunal has power to make order for remuneration and fix remuneration of administrator pursuant to Guardianship and Administration Act 2000, s48 - Where it has been held that an administrator appointed under the GAA is entitled to remuneration only if an order is made - where it has been held that s48 of Guardianship and Administration Act 2000 does not apply to the remuneration of the Public Trustee or a trustee company where acting as administrator of an adult under the Act- where Guardianship and Administration Act 2000 subsequently amended and Trustee Companies Act 1968 repealed - whether Queensland Civil and Administrative Tribunal has jurisdiction to order that applicant is entitled to remuneration in respect of its function as administrator of fund to which office it was appointed pursuant to an order of the Supreme Court Corporations Act 2001 Fair Work (Commonwealth Powers) and Other Provisions Act 2009 Guardianship and Administration Act 2000, ss12, 14, 48, 245 Public Trustee Act 1978, s59 Trusts Act 1973, s101 Trustee Companies Act 1968, s41 Uniform Civil Procedure Rules 1999, rr 5, 95, 659, 667 13 Coromandel Place Pty Ltd v CL Custodians Pty Ltd (in liq) (1999) 30 ACSR 377 Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Boyd v Halstead; Ex parte Halstead [1985] 2 Qd R 249 Callaghan and Anor v Zevering and Ors [2010] QSC 323 Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 Guardianship and Administration Tribunal v Perpetual Trustees…