PT - [2020] WASAT 147

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   PT [2020] WASAT 147
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   9 NOVEMBER 2020
DELIVERED          :   30 NOVEMBER 2020
FILE NO/S:   GAA 4189 of 2019
GAA 4256 of 2019
PT
First Applicant
ED
Second Applicant
VM
Subject
GM
Donee of Enduring Power of Attorney

Catchwords:

Enduring power of attorney - Application for records and accounts kept by donee - Application for audit of records and accounts kept by donee - Applicant seeking to 'confirm or not' accuracy of statement of assets and liabilities of estate of deceased donor filed with Supreme Court for probate of the donor's will - Being suspicious not a proper reason for order to be made under s 109(1)(a) or s 109(1)(b) of Guardianship and Administration Act 1990 (WA) - Proceedings dismissed pursuant to s 47(1)(b) of State Administrative Tribunal Act 2004 (WA) as being used for improper purpose

Legislation:

Administration Act 1903 (WA)
Bankruptcy Act 1966 (Cth), s 179
Corporations Act 2001 (Cth), s 536
Family Provision Act 1972 (WA)
Guardianship and Administration Act 1990 (WA), s 109, s 109(1), s 109(1)(a), s 109(1)(b)
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a), s 47(1)(b)
Trustees Act 1962 (WA)

Result:

Proceedings dismissed

Category: B

Representation:

Counsel:

First Applicant	:	Ms C Smiddy-Brown
Second Applicant	:	Ms C Smiddy-Brown
Subject	:	N/A
Donee of Enduring Power of Attorney	:	Mr P Arns

Solicitors:

First Applicant	:	Hammond Legal
Second Applicant	:	Hammond Legal
Subject	:	N/A
Donee of Enduring Power of Attorney	:	Arns & Associates

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

EW [2010] WASAT 91
GA and EA and GS [2013] WASAT 175
KS [2008] WASAT 29
Laurent and Commissioner of Police [2009] WASAT 254

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

VM made an enduring power of attorney dated 17 December 2009 (the EPA) appointing her son, GM as her immediate attorney, and another person as her substitute attorney.
The applicants in this proceeding under the Guardianship and Administration Act 1990 (WA) (GA Act), PT and ED are daughters of VM and sisters of GM.
The applicants seek the following orders:
•first, an order under s 109(1)(a) of the GA Act requiring GM to file a copy of all records and accounts kept by him of dealings and transactions made by him in connection with the EPA, which is matter number GAA 4189 of 2019; and
•secondly, an order under s 109(1)(b) of the GA Act requiring the records and accounts to be audited by an auditor appointed by the Tribunal and a copy of the auditor's report to be furnished to the Tribunal and the applicants, which is matter number GAA 4256 of 2019.
VM died on 13 January 2019 and there is currently a proceeding in the Supreme Court under the Family Provision Act 1972 (WA) (family provision proceeding) in which the applicants seek orders that the will of VM (VM's…

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 PT

Details

AGLC: PT [2020] WASAT 147
Case: [2020] WASAT 147
Decision Date: 30 NOVEMBER 2020

CaseChat Overview and Summary

In the case, the applicant sought to obtain records and accounts from the donee of an enduring power of attorney. The donee had retained these documents following the death of the donor. The application was made to the Supreme Court of Western Australia, where the estate of the deceased donor was being probated. The applicant intended to use the records and accounts to confirm or refute the accuracy of a statement of assets and liabilities filed with the Court for probate purposes. The donee opposed the application, arguing that the applicant had no proper basis for suspecting the accuracy of the statement of assets and liabilities.

The central legal issues revolved around the interpretation and application of sections 109(1)(a) and 109(1)(b) of the Guardianship and Administration Act 1990 (WA). The applicant contended that these provisions authorised the order sought, while the donee argued that mere suspicion was insufficient grounds for such an order. The court needed to determine whether the applicant's suspicions were sufficient to warrant the issuance of the requested orders, or if a higher standard of proof was required. Additionally, the court had to consider whether the applicant's actions were consistent with the proper use of the Court's process, given the provisions of section 47(1)(b) of the State Administrative Tribunal Act 2004 (WA).

The court found that the applicant's suspicion alone was not sufficient grounds to order the production of records and accounts, nor to order an audit of the donee's records and accounts. The court held that a higher standard of proof was required, and the applicant had not demonstrated any facts or evidence to support their suspicions. Furthermore, the court concluded that the applicant's actions in bringing the application were improper, as they were not made for a proper purpose. Consequently, the application was dismissed. The court's decision was made under section 47(1)(b) of the State Administrative Tribunal Act 2004 (WA), which empowers the court to dismiss proceedings that are being used for an improper purpose.

Orders