QO v Protective Commissioner

[2005] NSWADT 291

CITATION:	QO v Protective Commissioner [2005] NSWADT 291
DIVISION:	General Division
PARTIES:	APPLICANT QO RESPONDENT Protective Commissioner
FILE NUMBER:	053184
HEARING DATES:	10/10/05
SUBMISSIONS CLOSED:	10/10/2005
DATE OF DECISION:	12/08/2005
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Protected Estates Act - Protective Commissioner - disposition of money - Protective Commissioner - disposition of money
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Protected Estates Act 1983
CASES CITED:	Calverly v Green (1984) 155 CLR 242 G J & Ors v Protective Commissioner [2005] NSWADT 66 Jones v Padavatton [1969] 2 All ER 616 Nelson v Nelson (1995) 70 ALJR 47 T v Mrs F [2005] NSWSC 781 The Protective Commissioner v D & Ors (2004) 60 NSWLR 513; [2004] NSWCA 216
REPRESENTATION:	K Ginges, barrister T Tunbridge, solicitor
ORDERS:	The decision of the Protective Commissioner the subject of review is set aside and in substitution thereof a decision that within 28 days the Protective Commissioner pay to QO an amount of $78,403.85 from AB’s estate.

Introduction

1 The applicant, QO, the father of a protected person, AB, has made an application seeking review of a decision of the Protective Commissioner to refuse to make a payment of $85,000 to QO from the estate of AB, which has been under the control of the Protective Commissioner since March 1994. The amount requested is that which remains outstanding from a loan that was made to AB’s former husband in 1991 so that he could comply with the terms of a property settlement he and AB had made at that time.

2 AB is 42 years of age and has suffered from a mental illness since about 1987. She is also physically impaired as a result of injuries she suffered in January 2000. Since that injury AB has also come under the control of the Public Guardian. The value of AB’s estate, as at 5 October 2005, was $2.33 million, which is primarily made up of an award of damages she received following the settlement of proceedings she had instituted against the Northern Area Health Service in respect of the injuries she had suffered in 2000.

3 After AB’s proceedings were settled, QO made a formal request to the Protective Commissioner requesting payment of the $85,000. That request was made on the basis that AB was legally bound to pay this amount pursuant to a Deed of Indemnity that had been executed, on 28 March 1991, by AB, AB’s former husband and QO and CD Pty Limited (“the 1991 Deed of Indemnity”). Under that Deed, QO and CD Pty Limited (“CD”) advanced $200,000 so that AB’s former husband could purchase a unit for “AB” (“the 1991 loan”). The circumstances in which this Deed of Indemnity was executed is explained more fully below.

4 Under s.28 of the Protected Estates Act 1983, the Protective Commissioner is authorised to make specified dispositions from the estate of a protected person. So far as is relevant to these proceedings that section provides as follows:

“28(1) The Protective Commissioner may apply money comprising the whole or any part of the estate of a protected person or protected missing person towards any one or more of the following persons:
(a) the payment of the debts and engagements of the protected person or protected missing person and the repayment of expenses chargeable to the estate of the protected person or protected missing person.”

5 In refusing to make the requested payment the Protective Commissioner in his initial reasons for decision stated:

(a) there was no legal obligation on AB to make the payment. In this regard the Protective Commissioner had obtained a legal advice from counsel in respect of AB’s obligation under the deed of indemnity. This advice had been obtained in March 2000 when QO had first intimated that he would seek to recover the $85,000; and

(b) QO’s request did not come within the terms of the Protective Commissioner’s guidelines for a gift or loan.

6 In the internal review decision, the Commissioner only relied on (a) above.

7 At the hearing, QO no longer relied on the 1991 Deed of Indemnity as giving rise to a debt owed to him by AB. Instead, he contended that a conversation he had with his daughter in January 1993 and the circumstances that surrounded that conversation were evidence of an agreement between himself and AB that he would loan AB that which remained unpaid of the 1991 loan (namely $85,000). Again details of this conversation are dealt with in detail below. QO also contended that in the alternative, this conversation and conversations subsequent thereto between himself and AB and AB and others amounted to an “engagement” for the purposes of s.28(1)(a) of the Protected Estates Act 1983. These other conversations were those between AB and her former estate manager, Pat Wheaton of the Office of the Protective Commissioner, those between AB and Terry Shine an authorised visitor, who had visited AB on 3 December 2004.

8 At the hearing the Protective Commissioner disputed the abovementioned contentions.

Issues

9 Accordingly, the principle issues in this application are:

(a) whether the evidence establishes one or more of the grounds on which the Commissioner’s discretion in s.28(1)(a) of the Protected Estates Act 1983 can be invoked, in particular whether:
i. in January 1993, a loan agreement had been entered into between QO and AB and pursuant to that agreement AB owed QO the amount claimed; and

ii. whether AB’s conduct was such that it amounted to an engagement by her in respect of the amount claimed by QO; and

(b) if the matters in (a) above are satisfied, whether the Commissioner should exercise his discretion by making the payment to QO of the amount claimed.

10 The Tribunal did not receive any evidence from AB, primarily due to her current state of health. However this did not prevent the Tribunal from determining QO’s application as the underlying events were, in general, not in dispute. These events, so far as they are relevant, are set out below.

11 AB’s mental illness does not appear to have affected her ability to manage her own affairs until some time in 1994. As mentioned above, it was at this time that AB’s estate came under the control of the Protective Commissioner.

12 In respect of the events relevant to this application, the starting point is 1991 when AB and her former husband divorced and entered into a property settlement. As part of that property settlement, AB’s former husband was required to purchase a unit for AB (“the unit”). The cost of the purchase of the unit was $287,000 and AB’s former husband was required to provide the purchase price, however the unit was to be registered in AB’s name and owned by her alone. As AB’s former husband did not have all the funds necessary to purchase the unit, AB and her former husband approached QO and asked him whether he could loan AB’s former husband $200,000.

13 QO agreed to loan the money. In order to do so QO mortgaged a property that he owned together with CD (“the mortgage”). CD is a company of which QO is a director and the major shareholder. The Tribunal was informed that the assets of CD were held on trust for the benefit of AB and her siblings. The mortgage was for a period of five years and CD and QO were responsible for the repayment of the amount borrowed and the interest thereon. At about the same time as entering into the mortgage, QO paid the amount he and CD had borrowed to AB and her former husband so that the purchase of the unit could be completed. This payment was made pursuant to the 1991 Deed of Indemnity. Under this Deed QO and CD were described as the mortgagors, AB’s former husband was described as the borrower, and AB as described as the beneficiary. The Deed provided that responsibility for the repayment of the principal amount borrowed by QO and CD pursuant to the mortgage, together with interest, was that of AB’s former husband.

14 Some time prior to January 1993, AB’s former husband experienced financial difficulties and was unable to meet the payments that he was required to make under the 1991 Deed of Indemnity. As a consequence, the unit that was owned by AB was sold. It was sold for $200,000 and of this QO and Merelx were paid a sum of approximately $115,000, which left $85,000 of the amount loaned as being unpaid.

15 In his affidavit and oral evidence QO said that in January 1993, prior to the sale of AB’s unit, he received a telephone call from AB and during that telephone call she said words to the following effect:

AB: “Dad, I can only get $200,000 for the unit. If it’s all paid to you for the mortgage there will be nothing left for me to live on.”

QO: “I couldn’t leave you with nothing to live on. I will keep paying the interest for the time being, at least until you get back on your feet. The most important thing is your wellbeing.”

AB: “Thanks dad I’ll pay it back when I can.”

16 QO explained that during this conversation AB informed him, for the first time, that a contract for the sale of the unit had already been exchanged. QO went on to say that at the time AB was working and able to manage her affairs and it was his hope and belief that her health would continue to improve. He was even hopeful that she may have been able to buy another property with the money she would receive from the sale of her unit.

17 In December 1993, AB’s former husband became bankrupt. On 21 March 1995 QO lodged a Proof of Debt against AB’s former husband’s bankrupt estate. That claim was for an amount of $85,817. In making his claim QO stated that as at 20 March 1995, the amount owing under the 1991 Deed of Indemnity was $83,000. In addition to this QO appears to have claimed the monthly payments that he made under the mortgage from September to December 1993. It is not disputed that QO was paid an amount of $4,596.15 from AB’s former husband’s bankrupt estate. It was the evidence of QO that the mortgage was ultimately discharged in 1999 when QO and CD sold the house that was security for the mortgage. In the intervening time QO paid the interest that was due and owing under the mortgage. QO has not sought repayment of the interest that was paid under the mortgage.

18 Attached to the affidavit of Wendy Steel, Regional Manager of the Protective Commissioner, sworn on 5 October 2005, was an Affidavit of Understanding signed by AB, which is not dated or witnessed. Annexed to the Affidavit were Consent Orders, dated 25 September 1992 and signed by AB and her former husband. In para. [3] of the Affidavit of Understanding, it is stated that the Consent Orders were drafted following a meeting on 5 March 1992 between AB, her former husband, her step-father, and her former husband’s solicitors. Order 3 of the Consent Orders provided for the unit to be sold as soon as practicable and that:

“After deduction of all proper disbursements including agent’s fees, legal costs and adjustments of rates, the wife shall receive $70,000 from the proceeds of sale and apply the balance of the sale proceeds in satisfaction in whole or in part as the case may be of any claim pursuant to the Deed made the 28th day of March 1991 between [QO] and CD Pty Limited of the one part, the husband of the second part and the wife of the third part. In the event that any claim shall be made by the said [QO] and/or CD Pty Limited pursuant to the said Deed against the wife, the husband shall indemnify and keep the wife indemnified in respect of any such claim. The husband acknowledges that he shall pay and satisfy any moneys due by him or by the wife pursuant to the Deed of the 28th day of March 1991 herein before mentioned whether these moneys are now due or to become due in the future.”

19 Order 5 of the Consent Orders set out the priority in which payments were to be made from the settlement of the sale of AB’s unit. This priority was consistent with that which was provided in Order 3; namely the payment of the costs of the sale (disbursements, fees and costs), the payment to AB of $70,000 and the payment of $200,000 to QO and CD. The Tribunal was informed that the Affidavit of Understanding and the Consent Orders were not filed in the Family Court. However, as they are documents executed by AB, in my opinion they are of relevance to this application, in particular on the question of engagement by AB.

20 QO said that he had not been aware of the abovementioned Affidavit or Consent Orders until they were filed as part of the evidence of the Protective Commissioner in this application.

21 As mentioned in para. [2] above, in January 2000, AB suffered physical injuries. These injuries were suffered during a psychotic episode that has been a feature of her mental illness. On this occasion AB attempted suicide by jumping in front of a train. As a result of this attempt she suffered severe injuries and lost her left arm above the elbow, her left leg above the knee and had an amputation of the right foot at the ankle. Following that incident AB also came under the control of the Public Guardian in respect of her health, housing and welfare generally. AB was also diagnosed as suffering from schizophrenia and was treated accordingly. The material before the Tribunal also contains a report of a consultant psychiatrist who questioned this diagnosis in 2001 and who suggested that she be further examined and assessed for bipolar disorder the treatment of which differs significantly. Such an examination or assessment does not appear to have taken place even though the same consultant psychiatrist came to a similar conclusion the following year. I have only mentioned this by way of background as the question of diagnosis and the appropriate form of treatment for AB and her illness is not relevant to the matters at issue.

22 Notwithstanding her severe injuries AB has continued to reside on her own in a Department of Housing apartment.

1993 Loan Agreement

23 As I have mentioned, the first issue for determination is whether the conversation between QO and AB, in January 1993, evidenced a loan agreement, in which AB promised to repay QO a sum of $85,000. In my opinion, having regard to all the material before the Tribunal it does not.

24 It is well established that the major elements to the formation of a contract is:

offer and acceptance;

consideration;

intention to assume legal obligations;

certainty of terms.

25 It is also well established that in determining whether a contract has been formed, this must be assessed objectively and where the purported agreement is not in writing it must be assed from the surrounding circumstances. In this application they are the content of the conversation between AB and QO in January 1993, and the background to that conversation (i.e. the 1991 Deed of Indemnity).

26 The January 1993 conversation between QO and AB arguably evidences an offer, an acceptance and consideration. However, there was no discussion about the amount that was to be loaned. AB merely requested that she be left with sufficient to “live on”. Having regard to the Consent Orders that she had executed previously she may have at all times intended that she would retain $70,000 from the proceeds of the sale, however this was not communicated to QO. Accordingly, there was no certainty of terms. But more importantly, in my opinion, the circumstances when objectively assessed, do not evidence an intention by QO and AB to assume legal obligations. What the evidence does establish is that AB and QO made commitments on the basis of “family ties of mutual trust and affection” and not on the basis of a legally binding agreement: see Jones v Padavatton [1969] 2 All ER 616 at 621.

27 During argument I raised with the parties the question of whether the presumption of the fact that relatives such as husband and wife and parent and child, do not intend their agreements to be contracts applied: see Carter & Harland Contract Law in Australia 4th Edition at [403]; see also Nelson v Nelson (1995) 70 ALJR 47 and Calverly v Green (1984) 155 CLR 242 in respect of the presumption of advancement. Having considered the short submissions of Mr Ginges, counsel of QO, I agree that the presumptions do not apply in this application and even if they do apply they are rebutted.

28 Accordingly, for the reasons set out above, QO has failed to establish his first contention of an agreement having been entered between himself and AB, in January 1993, to the effect that AB was legally bound to repay him and I have assumed CD that which remained outstanding from the principal amount they had loaned in 1991. Consequently, QO has failed to establish that the Protective Commissioner has power to make the payment he has requested pursuant to s.28(1)(a) of the Protected Estates Act 1983 in that he has failed to establish that AB is indebted to him.

Engagement

29 The term “engagement”, as it appears in s.28(1)(a) of the Protected Estates Act 1983, was considered by the Court of Appeal in Protective Commissioner v D & Ors [2004] NSWCA 216 at [160 to 164]. In those paragraphs McColl JA said that the word “engagement” was not limited to legally enforceable obligations. At [161] McColl JA said the following as to the meaning of the term “engagement”:

“The meaning of the term “engagement” as it appears in the proviso in s.2 of the NSW Constitution Act 1855 (Imp) and in particular, the phrase in that section “contracts, promises or engagements”, was considered by Drummond J in The Wick Peoples v State of Queensland (1996) 63 FCR 450. His Honour found (at 464-465) that in the first half of the nineteenth century the term “engagement” was “in common use” like the term “promise” to “describe government undertakings with respect to grants of interest in Crown land that did not amount to arrangements legally binding on the Crown”. Drummond J’s historical researchers revealed the term “engagements” to refer to something in the nature of a commitment, but not necessarily a legal obligation. It might be presumed that the meaning of the term did not undergo a limitation between 1855 and 1878. That that is so is borne out by the dictionary meaning given to “engagement” which includes both “a formal promise, agreement, undertaking, covenant” and a “moral or legal obligation”: The shorter Oxford English Dictionary (3rd Ed). It seems sensible to assume, therefore, that when the word “engagement” was used in s.151(a) of the 1978 Act , where, it will be recalled, it was used in contra distinction to the word “debts” (“debts or engagements”) it was intended to refer to something which may not amount to a legally enforceable obligation.”

30 At [162] McColl JA made reference to the decision of Powell J in Attorney General v Montefiore (1888) 21 QBD 461 and went on to say that in her opinion that decision did not: “detract from the significance of the fact that “engagements” was capable of referring to something which was of the nature of a moral obligation only”.

31 In Protective Commissioner v D & Ors the issue was whether s.28(1)(b) of the Protected Estates Act authorised the payment of past gratuitous care out of the protected person’s estate. The argument of the Protective Commissioner was that such payment could only be made where the care had been provided with the expectation of payment and not merely because a moral obligation to pay had arisen. In that case, as in this application, the protected person’s estate was increased substantially as a result of litigation that was settled in favour of the protected person. The Court of Appeal rejected the arguments of the Protective Commissioner and found that in the circumstances there had been an “engagement” and that the Protective Commissioner was authorised to make the payments from the estate of the protected person.

32 In T v Mrs F [2005] NSWSC 781 the son of the protected person Mrs F had sought payment of his children’s school fees from his mother’s estate. The son relied on a conversation he had with his mother after each of his children were born and the fact that she had previously paid these fees. While Wyndeyer J followed the decision in Protective Commissioner v D and appears to have accepted that Mrs F “engaged” to pay these fees, he found that her engagement was that the fees were to be paid out of the family trust and not from her estate: see [13-14].

33 In this application, for the reasons set out below, I find that AB had at all times “engaged” to repay her father that which was remaining from the amount that he and CD had advanced to her former husband in 1991 for the purchase of her unit.

34 As mentioned in [12] above, the 1991 loan by QO and CD was loaned pursuant to the 1991 Deed of Indemnity. That Deed provided that AB’s former husband was responsible for the repayment of the loan. However, under clause 3 of that Deed, AB authorised QO and CD to lodge a caveat against the title of her unit, if they so required, to secure the payment of the amount loaned. Clause 3 also provided that AB would execute all documents and do all things necessary to enable such a caveat to be lodged pending the discharge of the QO and CD’s mortgage. Although this clause did not make AB indebted to QO and CD for the amount loaned, it did impose obligations on AB in so far as her rights to her unit were concerned. That is, she agreed to her unit becoming a form of security for the loan in the event QO and CD chose to exercise their rights under clause 3 of the Deed. While those rights were never exercised prior to the unit being sold, in my opinion, the inclusion of this clause in the 1991 Deed of Indemnity was an acknowledgement or acceptance by AB that she was beholden to QO and CD in respect of the money loaned.

35 Being obliged to repay QO and CD was again acknowledged in the Consent Orders signed by AB and dated 25 September 1992. It would appear from the terms of the Consent Orders that at the time they were prepared AB and her former husband anticipated that they would sell AB’s unit for more than $270,000. While this did not eventuate, the priority of how the proceeds of the sale were to be distributed do appear to have been in accordance with the Consent Orders. There is evidence that an amount of $70,000 was paid to AB and an amount of $115,000 was paid to QO and CD. This leaves $15,000 unaccounted for but it is assumed that this related to costs and disbursements. In any event it is of no significance as what is contended is that AB engaged to repay that which remained owing from the 1991 loan after the payment from the proceeds of the sale of her unit (i.e. $85,000).

36 With this background, the inference that is to be drawn from AB’s telephone conversation with QO in January 1993, is that she felt morally obliged to repay QO and CD any amount that remained unpaid of the 1991 loan following the settlement of the sale of her unit. This finding is also consistent with what AB has said to various people since then: see [40], [43] and [48] below.

37 Accordingly, for the reasons set out above, I find that, in January 1993, AB engaged or entered into an engagement that at some time in the future, and when she was able to, she would repay QO and CD that which remained outstanding of the 1991 loan following the settlement of the sale of her unit. Consequently, QO has established that the Protective Commissioner is authorised to make the payment he has requested pursuant to s.28(1)(a) of the Protected Estates Act 1983.

Discretion

38 It is not disputed that, even where it is established that a particular payment from the estate of the protected person would amount to a payment of a “debt” or an “engagement” of that person, the Protective Commissioner has a discretion as to whether or not to make that payment pursuant to s.28(1)(a) of the Protected Estates Act 1983 and that the discretion is to be exercised in the interest of the protected person. Accordingly, the relevant factors to be considered are the wishes of the protected person, his/her family, and what the estate can prudently afford: see G J and Ors v Protective Commissioner [2005] NSWADT 66 at [50] and [54].

AB’s wishes and that of her family

39 Due to the inability of AB to give evidence her wishes must be inferred from conversations that she has had with QO, Patricia Wheaton and Wendy Steel who are officers of the Protective Commissioner and an authorised visitor, Terri Shine.

40 In his oral evidence QO said that his daughter, when not suffering from a psychotic episode, was extremely rational. He went on to say that she was highly intelligent, that he spoke to her regularly two to three times a week over the telephone and when he came to Sydney he always endeavoured to see her. He explained that his relationship with her was a close one. Her illness and subsequent physical injuries have clearly caused him great anxiety and pain not only about her general well being but also what the future holds for her. In his Affidavit and oral evidence he said that, in early January 2000, AB had thanked him for lending her the money and that she would pay it back as soon as she could. This conversation I understood took place prior to AB’s accident in 2000.

41 QO also said that, since AB had received her settlement amount from the proceeding she instituted against the Northern Area Health Service, AB has informed him that she has asked the Protective Commissioner to repay him what he is owed in respect of the 1991 loan. He also said that AB had recently become concerned about the fact that the Protective Commissioner had not paid him and she feared that the Protective Commissioner was going to make QO sue for the money from her estate.

42 Patricia Wheaton in her oral evidence said that between August 2004 and August 2005 she had been responsible for managing AB’s estate. During that time she regularly spoke to AB over the phone. While she had not met AB in person, from the conversations she had with AB and the information she had been provided about AB it was her opinion that AB was “profoundly” disabled. She explained that while AB often sounded lucid, this was generally when she had taken her medication. However she is less lucid when not taking medication, which is often the case as AB has a history of resisting medication, which results in her being forcefully medicated.

43 Patricia Wheaton also said that in the more lucid conversations with AB, AB had told her that she wanted her father to be paid as he and her family had always been there for her in the bad times and she wanted to return the favour. On other occasions however, AB told her that she did not want to have him paid.

44 From these conversations with AB and from her experience generally, Patricia Wheaton said that she was of the opinion that money did not mean anything to AB, however she did support a decision that QO be paid the amount he claimed as it was her belief that this would give AB peace of mind. She explained that she had made this recommendation to her supervisor, Wendy Steel, who had a contrary view. As a result of this Patricia Wheaton wrote to QO on 22 December 2004 and advised him that his request for payment had been refused. This was the initial decision of the Protective Commissioner.

45 In her affidavit and oral evidence Wendy Steel explained that it was her supervisor and not her who determined that QO’s request for payment be refused. It is noted that this refusal was primarily based on the legal opinion that had been obtained by the Protective Commissioner in 2000: see para. [5(a)] above. At the time this decision was made it was appropriate that the Protective Commissioner had regard to that advice as it directly related to the basis on which QO had made his claim (i.e. a debt by AB under the 1991 Deed of Indemnity).

46 Wendy Steel also said that since August 2005, when Patricia Wheaton ceased to be AB’s estate manager she has had regular contact with AB. Again this contact is by telephone. In these conversations she has found AB to be easily confused. She also said that at no time has AB said to her that she wanted her father paid. Indeed she has never raised this subject with her.

47 In my opinion nothing turns on the fact that AB has failed to raise this payment with Wendy Steel. AB’s contact with Wendy Steel is recent in time and has not been over a long period of time. Furthermore, the practice Wendy Steel adopts when contacted by AB or any other protected person is to refer AB or the other person back to his/her estate manager. This is particularly so where the protected person makes a requests for money to purchase or pay for something specific. Such a practice is completely understandable as Wendy Steel has a management role and is not responsible for the day to day management of estates of protected persons. At the same time it is difficult to see how AB or the protected person did not also understand this and consequently may regard it as inappropriate to raise such matters with Wendy Steel. This would appear to be the case here as AB did in fact raise it with her estate manager Patricia Wheaton.

48 On the other hand the report of Terri Shine, an authorised visitor, dated 29 December 2004 appears to provide the best evidence as to what AB’s views are. Terri Shine went to visit AB in early December 2004. Patricia Wheaton in her evidence said that AB must have been relatively well at that time as she generally refuses to see any strangers. Patricia Wheaton also said that in a conversation she had with AB about making the requested payment to her father, AB had said she would advise the authorised visitor of her views. In her report of her visit Terri Shine said the following:

“Client’s ability to contribute to the financial decision making process

[AB] would like to be included in making some of her financial decisions. Although she often has difficulty living within her budget, she has opinions about how her money needs to be spent. In particular, [AB] told me that she wants to reimburse her father for the “short fall” between the money he borrowed so she could purchase a home unit and the amount the unit sold for. She feels she owed him $85,000. [AB] would also like to fund her son’s private school education and extra curricular expenses. She would like to establish a trust fund for this purpose.

[AB] told me that she did not have a problem with the OPC managing her financial affairs. She told me that her Estate Manager was very responsive. She feels if her father were to manage her money then he would be more responsive to her needs and want her to have everything she asked for. She did not think that her father was as good at investing money but did not have a problem with him applying to be her private financial manager.

…

Assessment and recommendations

[AB] would like the OPC to consider funding the following:

1. A trust fund established to pay for her son’s private school fees and extracurricular activities.

2. Reimbursing her father $85,000.

3. Establishing a Cab Charge account for her to use.

4. Establishing an account at the local Cole’s.

5. A unit in a retirement village (approximately $200-$360,000).

6. An overseas holiday with a carer. However, [AB] told me that she has to be physically strong before even considering this. Her last holiday was 14 years ago.”

49 In the Summary of Recommendations in her report Terri Shine said: “In light of [AB’s] alleged history of difficulty with making decisions, it would be worthwhile asking [AB] for her opinion on the abovementioned matters again before OPC makes a commitment to funding any of the abovementioned requests.” I understand from the evidence given by Patricia Wheaton that AB confirmed with her that she had made these particular requests. As mentioned above, subsequent to listing these requests AB has indicated that she did not want the payments to be made. These indications however, appear to be far less specific than those recorded by Terri Shine and which AB subsequently confirmed. Furthermore, on other occasions AB has continued to say that she wanted the payments made, in particular to her father and the trust for her son.

50 It is also noted that QO’s former wife and the mother of AB objected to the payment being made. No reason for that objection was provided and it is the Tribunal’s understanding that the relationship between QO and his former wife is very acrimonious. If that is the case this may explain the basis of objection. Otherwise, there is no evidence of any other family member objecting to or supporting the payment requested by QO. From the material filed it would appear that AB also has a brother, who is a solicitor and who had prepared the 1991 and 1992 documents. However, no evidence was filed by him.

51 In my opinion, on balance, the material before the Tribunal when considered as a whole, evidences an underlying and ongoing wish by AB that her father be paid the amount that remains outstanding from the 1991 loan.

Affordability

52 There was very limited evidence before the Tribunal on the question of whether AB’s estate could afford to pay QO that, which had been claimed. In particular there was no evidence of the costs involved in AB’s future needs having regard to her illness.

53 Patricia Wheaton, while acknowledging that the future cost of care for AB would increase, she was of the opinion that there was sufficient money in AB’s estate to pay QO the amount that he claimed. On the other hand, Wendy Steel was more circumspect. She explained that a plan for the future care of AB was still in the process of being prepared by the Public Guardian and once prepared it would be costed by the Protective Commissioner’s finance section. Currently, the Protective Commissioner pays $620 per fortnight from AB’s estate to the Department of Housing in respect of her accommodation. Also paid from her estate are costs such as electricity and telephone. In addition to this AB receives a weekly allowance of $450. Recently a new wheelchair was purchased for AB together with some other items. As mentioned above, as at 5 October 2005 AB’s estate totalled $2.33 million. Attached to Wendy Steel’s Affidavit was a statement from Centre Link dated 11 October 2004, which stated that AB’s total assets were $2,464,146.77 and her annual income was estimated to be $122,054.31. In cross-examination Wendy Steel acknowledged that what had been spent on AB from her estate in the last year was considerably less than that which had been earnt in income from the money that had been invested from AB’s estate.

54 I accept that Wendy Steel was not in a position to give evidence of the anticipated cost of future care for AB. She and Patricia Wheaton both gave evidence to the best of their ability and experience. I did however express surprise that there was no evidence of the estimated cost of AB’s future care, particularly as this would in all likelihood have been assessed by the Protective Commissioner for the purpose of her claim against the North Sydney Area Health Service. Following the hearing of the matter Mr Tunbridge, who appeared on behalf of the Protective Commissioner, provided the Tribunal with a copy of an advice, dated 30 January 2003, from Counsel who appeared on behalf of AB in respect of her legal claim. In light of that advice, the costs that have been incurred by AB to date, the current size of AB’s estate and the income that her estate has generated, I find that a payment as requested by QO from AB’s estate is affordable. This is particularly so having regard to the unchallenged submission of Mr Ginges, who appeared on behalf of QO, that the payment would in effect reduce the annual interest on that which is invested from AB’s estate by about $4,000 in the next financial year. That is, so long as the amount invested does not change in the next financial year, AB’s income will be reduced by $4,000. As mentioned above, it was also conceded by Wendy Steele that AB’s expenditure is considerably less than what she earns. This means, for AB, so long as the amount invested remains the same, there will be no detriment to the level of her care she currently has. Further more, her estate will continue to grow. There was evidence that at some time AB will require other accommodation such as a retirement facility. This will be costly and reduce the value of AB’s estate and the amount that is invested. However, such a move, while foreshadowed did not appear to be in the immediate future as AB was happy where she was and did not want to move.

Conclusion

55 Accordingly, for the reasons set out above, in my opinion the decision of the Protective Commissioner to refuse to make the payment to QO is not the correct and preferred decision and should be set aside. A decision should be made in substitution of that decision to the effect that an amount of $78,403.85 be paid to QO and CD from the estate of AB. I have arrived at this figure from the amount that QO informed AB’s former husband’s bankrupt estate of what was outstanding as at 1995 minus the amount that had been paid from that estate.

56 The Tribunal orders that the decision of the Protective Commissioner the subject of review is set aside and in substitution thereof a decision that within 28 days the Protective Commissioner pay to QO an amount of $78,403.85 from AB’s estate.