PWJ - [2013] QCAT 368

CITATION:

PWJ [2013] QCAT 368

PARTIES:

PWJ

APPLICATION NUMBER:

GAA3834-11 & GAA10526-12

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

11 December 2012

HEARD AT:

Brisbane

DECISION OF:

Judge Alexander Horneman-Wren SC, Deputy President
Clare Endicott, Senior Member
Les Clarkson, Member

DELIVERED ON:

20 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

THE TRIBUNAL DIRECTS THAT:

1. The Perpetual Trustee Company limited must file in the Tribunal and serve upon the Public Trustee of Queensland and PWS and PJL a draft order in accordance with these reasons.

2. The application is listed for a directions hearing at 12.00 pm on 13 September 2013.

CATCHWORDS:

GUARDIANSHIP – where Perpetual Trustee Company Limited made an agreement with the adult’s litigation for remuneration – where that agreement was found to be not enforceable – where Perpetual Trustee Company Limited filed an application in the Tribunal seeking an order authorising fees already charged – whether s 48 of the Guardianship and Administration Act 2000 applies to remuneration of a trustee company – whether s 41 of the Trustee Companies Act 1968 applies to remuneration of trustee companies – whether s 41(1) of the Trustee Companies Act 1968 imposes limits on fees charged by Trustee companies

GUARDIANSHIP – where Perpetual Trustee Company Limited made an agreement with the adult’s litigation for remuneration – where that agreement was found to be not enforceable – where Perpetual Trustee Company Limited filed an application in the Tribunal seeking an order authorising past and future remuneration – where s 48 of the Guardianship and Administration Act 2000 applies to remuneration of trustee companies – whether the Tribunal can make a prospective order for the applicant’s remuneration – whether the Tribunal can retrospectively order the applicant’s remuneration – whether the Tribunal can retrospectively order the applicant’s remuneration under s 48 of the Guardianship and Administration Act 2000 for the time when the Trustee Companies Act 1968 would have governed the remuneration of trustee companies

GUARDIANSHIP – where Perpetual Trustee Company Limited made an agreement with the adult’s litigation for remuneration – where that agreement was found to be not enforceable – where Perpetual Trustee Company Limited filed an application in the Tribunal seeking an order authorising past and future remuneration – where Perpetual Trustee Company Limited submitted that the Tribunal should make an order under the Guardianship and Administration Act 2000 changing the terms of the applicant’s appointment as guardian – whether the Tribunal should make an order for future remuneration in the terms of the agreement…

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

AGLC: PWJ [2013] QCAT 368
Case: [2013] QCAT 368
Decision Date

CaseChat Overview and Summary

In the case of Perpetual Trustee Company Limited v PWJ, the dispute arose from the entitlement of Perpetual to remuneration under the Guardianship and Administration Act 2000 (Qld) (GAA) and the Trustee Companies Act 1968 (Qld) (TCA). The primary issue before the Queensland Court of Appeal was whether Perpetual, as an administrator, could be remunerated under the TCA if it had not fixed a rate of commission as required by the statute.

The court had to determine whether section 41(1) of the TCA could be interpreted as granting an entitlement to a trustee company to charge commissions, even if the company's board of directors had not set a specific rate. Perpetual argued against such an interpretation, stating it would force an unnatural reading of the statutory language. Conversely, the Public Trustee argued that section 41(1) should be read purposively to enable a trustee company to charge commissions at the statutory cap rates when section 41(7) was inapplicable, as long as lower rates had not been advertised and subject to the court's power to reduce the commission rate.

The Court of Appeal found that section 41(1) of the TCA could indeed be construed to confer an entitlement to charge commissions at the statutory cap rates, even in the absence of a board-fixed rate. This construction was deemed to be consistent with the purpose of the legislation, allowing for compensation to be paid to the trustee company under certain conditions. Consequently, Perpetual's entitlement to remuneration was upheld under this interpretation of the statute.

Orders

Orders of the court

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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

At the time of the judgment in GAAT v Perpetual, s 48 of the GAA was in these terms:48 Remuneration of professional administrators(1) If an administrator for an adult carries on a business of or including administrations under this Act, the administrator is entitled to remuneration from the adult if the tribunal so orders.(2) The remuneration may not be more than the commission payable to a trustee company under the Trustee Companies Act 1968 if the trustee company were administrator for the adult.(3) Nothing in this section affects the right of the public trustee or a trustee company to remuneration or commission under another Act. The consequence of her Honour’s decision was that the Tribunal could not make an order entitling a trustee company acting as an administrator to remuneration. Perpetual contends that as a result of this construction of s 48 of the GAA and s 41(7) of the TCA, it could only be remunerated, under the legislation as it then stood, pursuant to s 41(1) of the TCA and subject to the statutory caps. Clearly, it had no entitlement to remuneration under s 41(7) of the TCA. Furthermore, it submits that it could only have an entitlement to remuneration under s 41(1) if its board of directors had fixed a rate of commission. It says that no such rate had been fixed, because the need to do so was unappreciated, it being believed that commissions had been set by agreement as contemplated by s 41(7). Whether Perpetual is correct in its contention requires consideration of whether it did, or may, have an entitlement to commission under s 41(1) notwithstanding what is said to have been the failure of its board of directors to fix commissions from time to time. In the course of the hearing, the Tribunal raised with the parties whether s 41(1) of the TCA could be construed as, first, conferring an entitlement on a trustee company to charge commissions, and, secondly, as restricting the rate at which those commissions might be charged to that which the board fixed or the statutory cap, whichever was lower. If s 41(1) were to be construed in that way, then a company whose board of directors failed to fix rates of commission would nonetheless have an entitlement to commissions charged at the rates of the statutory caps. The Tribunal invited submissions on this issue. Perpetual submits, in short, that such a construction of s 41(1) of the TCA is not open. It submits that: ‘[s]uch an interpretation strains too much at the language of the section’. Thus it maintains its original submission that it had no entitlement to remuneration under s 41, or at all. The Public Trustee, on the other hand, submits that such a construction of s 41(1) of the TCA is open. It submits that giving s 41(1) a purposive construction,[13] ‘s 41(1) must be seen as an enabling or entitling provision to cater for the situation where s 41(7) is not applicable’.[14] It submits that s 41(5) and (5A) impose further limitations by reference to the trustee company’s published rates with power of review by the court created by s 41(4). It submits as to the overall effect of s 41:Thus the overall context is designed to result that the trustee company can charge to the level of the default rate subject to not having advertised lower rates of commission and further subject to the power of the court to reduce the rate of commission charge (sic).[15][13]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ; s 14A Acts Interpretation Act 1954 (Qld). [14]Supplementary submission of the Public Trustee dated 19 December 2012, at [7].[15]Ibid, at [7].