PMB and LJB [2015] WASAT 96

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 96
Published:	02/09/2015
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1032/2015	Heard:	26 AUGUST 2015
Coram:	JUDGE D R PARRY (DEPUTY PRESIDENT) MR J MANSVELD (SENIOR MEMBER) MS N OWEN-CONWAY (MEMBER)	Delivered:	26/08/15
No of pages:	16	Judgment Part:	1 of 1
Result:	Limited administration order affirmed appointing Perpetual Trustees Limited as limited administrator of the estate of the represented person in Western Australia Remuneration of limited administrator out of estate authorised
Category:	B
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Parties:	PMB LJB
Catchwords:	Administration Review by Full Tribunal of order appointing trustee company as limited administrator of represented person's Western Australian property Represented person has dementia and resides in New South Wales Trustee company appointed by represented person as enduring attorney in New South Wales instrument and as executor under represented person's will Whether administration order can be made Whether Tribunal can appoint trustee company as administrator Whether trustee company will act in represented person's best interests and is otherwise suitable for appointment Whether Tribunal should authorise remuneration of trustee company as administrator of represented person's Western Australian estate
Legislation:	Conveyancing Act 1919 (NSW), Sch VII Guardianship and Administration Act 1990 (WA), s 3(1) s 4, s 4(2), s 4(3), s 17A, s 64, s 67(1), s 68, s 104A, s 117 State Administrative Tribunal Act 2004 (WA), s 17(1), s 27(1), s 27(2)
Case References:	Nil
Summary	The represented person has dementia and resides in a dementia specific unit of a nursing home in New South Wales. The represented person owns a residential apartment in Western Australia. In 1994, the represented person appointed Perpetual Trustees Limited, a trustee company, as her enduring attorney under a New South Wales enduring power of attorney and as the executor of her estate under her will.,A single member of the Tribunal appointed Perpetual Trustees Limited as limited administrator of the represented person's apartment in Western Australia. Ms PMB, one of the represented person's daughters, sought review of that decision by a Full Tribunal and proposed the appointment of the Public Trustee, rather than Perpetual Trustees Limited, as administrator of her mother's Western Australian property.,Under s 67(1) of the Guardianship and Administration Act 1990 (WA), the Tribunal may make an administration order in respect of a person who is not resident or domiciled in Western Australia, but any such order is limited to the person's estate in Western Australia. The Full Tribunal determined that it has power under s 68(2)(b) of the Guardianship and Administration Act 1990 to appoint Perpetual Trustees Limited as administrator of the represented person's Western Australian property, because she made a will appointing that trustee company as executor and the will remains unrevoked.,The Full Tribunal also determined that it should appoint Perpetual Trustees Limited as limited administrator, because it is satisfied that the trustee company will act in the best interests of the represented person and is otherwise suitable to…

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 PMB and LJB

Details

AGLC: PMB and LJB [2015] WASAT 96
Case: [2015] WASAT 96
Decision Date: 26 AUGUST 2015

CaseChat Overview and Summary

The matter before the Court involved Perpetual Trustees Limited (PMB) and an individual, referred to as LJB, who has dementia and resides in New South Wales. The dispute centred around the administration of LJB's property in Western Australia, where a Full Tribunal had previously made an order appointing Perpetual Trustees Limited as a limited administrator of LJB's estate. The Tribunal's decision was being reviewed by the Court to determine whether the administration order was valid, whether Perpetual Trustees Limited could be appointed as an administrator, and whether the Tribunal should authorise remuneration for Perpetual Trustees Limited as the administrator of LJB's Western Australian estate.

The central legal issues the Court addressed were whether the Full Tribunal had the authority to make an administration order, whether Perpetual Trustees Limited was a suitable candidate for the role of administrator, and whether the remuneration for the limited administrator should be authorised. The Court had to consider whether Perpetual Trustees Limited, who had been appointed by LJB as an enduring attorney in a New South Wales instrument and as executor under LJB's will, was capable of acting in LJB's best interests and whether the Tribunal had the jurisdiction to appoint the company as the limited administrator.

The Court found that the Full Tribunal had the authority to make the administration order and that Perpetual Trustees Limited was a suitable candidate for the role of limited administrator. The Court determined that Perpetual Trustees Limited would act in LJB's best interests and was otherwise suitable for appointment, despite LJB's residence in New South Wales. The Court also concluded that the Tribunal should authorise remuneration for Perpetual Trustees Limited as the administrator of LJB's Western Australian estate. The Court affirmed the order appointing Perpetual Trustees Limited as the limited administrator of LJB's estate in Western Australia and authorised the remuneration of the limited administrator out of the estate.

Orders

Orders of the court

Limited administration order affirmed appointing Perpetual Trustees Limited as limited administrator of the estate of the represented person in Western Australia

Remuneration of limited administrator out of estate authorised

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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