PERPETUAL TRUSTEES WA LIMITED and THE PUBLIC TRUSTEE

In the case of Perpetual Trustees WA Limited and The Public Trustee, the Full Court was called upon to determine the legality of payments made by the plenary administrator, K, in relation to legal fees and other expenses on behalf of a represented person. The dispute centred around whether the payments were authorised in accordance with the Guardianship and Administration Act 1990 (WA) and whether the Tribunal had the jurisdiction to retrospectively authorise such payments. The Full Court was tasked with addressing two primary legal issues: firstly, whether the payments made by K for legal fees were justified under the Act, and secondly, whether the Tribunal had the authority to retrospectively authorise payments that had already been made by the administrator.

The Full Court held that the payments for legal fees could not be characterised as 'debts or demands' that the represented person was obliged to pay, as per section 72(3)(b) of the GA Act. Consequently, K, as the plenary administrator, was obligated to seek and obtain the Tribunal's authorisation for these payments before making them. Since the payments had already been made and it was now too late to seek such authorisation, the Court ruled that it could not retrospectively authorise the payment of K's legal fees. Furthermore, the Court found that the payments in question relating to proceedings in New South Wales, in which the represented person was not a party, were not in the represented person's best interests as they did not pertain to matters affecting the represented person's estate.

The Full Court ultimately determined that the payments made by K were not authorised in accordance with the GA Act. The Court emphasised the importance of conserving the represented person's estate for their benefit, ensuring that the estate is not dissipated but rather conserved. Given that the legal fees were not debts or demands of the represented person, the administrator was required to seek Tribunal authorisation before making the payments. The Court also confirmed that it could not retrospectively authorise the payments already made by K. The Full Court's decision underscored the need for administrators to strictly adhere to the Act's requirements and to seek authorisation from the Tribunal where necessary.