PERPETUAL TRUSTEES WA LIMITED and NBS
[2010] WASAT 17
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: PERPETUAL TRUSTEES WA LIMITED and NBS [2010] WASAT 17
MEMBER: MS M JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 23 OCTOBER 2009
DELIVERED : 11 FEBRUARY 2010
FILE NO/S: GAA 2489 of 2009
BETWEEN: PERPETUAL TRUSTEES WA LIMITED
Applicant
AND
NBS
Represented person
Catchwords:
Enduring power of attorney Landgate refusal as invalid Appointment of applicant donee as administrator Costs refused as donee of power drafted the document
Legislation:
Guardianship and Administration Act 1990 (WA), s 64, s 68, Sch 3
Result:
Costs application refused
Category: B
Representation:
Counsel:
Applicant: Mr D Branford
Represented person : N/A
Solicitors:
Applicant: Kott Gunning
Represented person : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant was successful in obtaining an administration order for the represented person as required to complete a sale transaction of her former residence.
The applicant was the donee of a purported enduring power of attorney which was rejected by the Western Australian Land Information Authority.
The applicant sought the payment of its costs in bringing the application to be met by the estate of the represented person.
The application for costs was refused.
Background
The represented person signed an enduring power of attorney (EPA) on 18 March 1994 in which she appointed Perpetual Trustees WA Limited of 89 St Georges Terrace, Perth as her attorney. The EPA was not in the usual form as set out in Sch 3 of the Guardianship and Administration Act 1990 (WA) (GA Act), but in a longer form which articulated each of the authorities she was granting to the donee.
The EPA was expressed to continue in force notwithstanding the subsequent legal incapacity of the donor.
The represented person executed a will on 16 March 2001 appointing Perpetual Trustees WA Limited to be her executors and trustees.
On 22 September 2009, the applicant lodged an application to be appointed as the administrator of the estate of the represented person and stated at that time, that both the will and the EPA remained unrevoked.
Prior to this application, on 6 March 2009, the Tribunal appointed a guardian for the represented person to make decisions with regard to where she should live and to consent to treatment. At that time, the Tribunal was told that the represented person had executed an EPA which was in force with the Perpetual Trustees WA Limited managing her financial affairs.
During the course of managing the represented person's affairs, the applicant entered into a contract to sell her residence following her placement in residential care. Upon attempting to register the transfer of the property with the Western Australian Land Information Authority (Landgate), the applicant was informed that Landgate would not accept the EPA as being valid as it was not substantially in the form set out in Sch 3 of the GA Act.
To complete the registration of the sale of the residence, the applicant brought this application to the Tribunal to be appointed as administrator for the represented person to be able to act under the administration order instead of the EPA.
The applicant met the criteria set out in s 68 of the GA Act, necessary for the appointment of a corporate trustee as administrator.
Medical evidence
Medical evidence provided to the Tribunal confirmed that the represented person was incapable of making decisions with regard to her financial affairs, and the requirements of s 64 of the GA Act for the making of an administration order are met.
Tribunal decision
The Tribunal ordered that the applicant be appointed as plenary administrator for a period of five years, such order to be reviewed by 6 March 2014, and arranged for urgent extraction of the order so that the transaction could be finalised.
The applicant sought an order for the costs of the application to be paid by the estate of the represented person. The application for costs is refused.
Reasons for decision
The hearing was attended by Mr D Branford representing the applicant, and also by RF, the appointed guardian for the represented person. The guardian did not raise any objection to the appointment of the applicant as the administrator for the represented person.
The applicant submitted that it had been acting as the attorney of the represented person since her legal incapacity in January 2009 but that the purported invalidity of the EPA, of which the applicant was the author, and which had been executed some 15 years earlier, became known to the applicant only upon attempting to register documents with Landgate.
The applicant further submitted that the requisition notice issued by Landgate raised complex legal issues as to the manner in which, and the authority upon which, the daytoday administration of the represented person's estate and financial affairs could continue in circumstances wherein she became legally incapacitated and therefore unable to provide a new EPA.
The applicant further submitted that because of the size and complexity of the represented person's estate, with a total net asset value of $2.38 million, the fact that she has no family in Western Australia and the need to manage her affairs on a daytoday basis, the applicant's actions in seeking legal advice and representation was appropriate and in the best interests of the represented person.
The applicant submitted an account for $7,984.72 for work undertaken before the application was made and for the preparation and attendance on the application. It is noted by the Tribunal that these fees were not charged in accordance with the Legal Practitioners (State Administrative Tribunal) Determination 2008 and, further, that a considerable proportion of the fees charged could not have been the subject of a costs order, if successful, in that it related to providing advice about the Landgate rejection of the lodgement and took place prior to preparation of this application.
Whilst the Tribunal accepts that it is clearly in the best interests of the represented person to be able to finalise the sale of her residence by Landgate accepting the registration of the transfer, the Tribunal is not prepared to entertain the application for costs, given that the documentation that caused the problem was prepared by the applicant and, hence, the applicant could be said to be the author of its own misfortune. It is not, therefore, appropriate that the represented person should be required to pay for the cost of remedying this error.
Order
The application for costs is dismissed.
I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M JORDAN, SENIOR SESSIONAL MEMBER
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