Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe

CITATION: RSD and Ors [2013] QCATA 12

PARTIES:	RSD
DEC
DIF

APPLICATION NUMBER:   APL263-12

MATTER TYPE: Appeals

HEARING DATE: 10 January 2013

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member
Professor Adrian Ashman, Member

DELIVERED ON: 10 January 2013

DELIVERED AT: Brisbane

ORDERS MADE:     1.    Application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – GUARDIANSHIP AND ADMINISTRATION – where the Tribunal issued an order that the presumption of capacity in regard to DIF is not rebutted – where the applications for the appointment of an administrator and guardian and interim order are dismissed – where an appeal is lodged against these decisions

Queensland Civil and Administrative Tribunal Act 2009, ss 5, 7

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. It is not uncommon for the Tribunal to consider matters in its guardianship jurisdiction that have their origin in disputes among family members.  In the present case, the dispute has arisen because DIF sold a half-share in the family home to her grandson CD providing him with half ownership of the property as a joint tenant.  DIF’s son DC and his wife RD applied to the Tribunal in March 2012 seeking the appointment of the Public Trustee of Queensland as administrator and the Adult Guardian as guardian for DIF.

2. As a result of considerable differences of opinion as to whether DIF had decision-making capacity, the Tribunal issued directions late in March 2012 requiring the applicants to file written statements of evidence and submission about DIF’s capacity to make decisions.  On 15 June 2012, in a hearing of the matter on the papers, the Tribunal determined that the presumption that DIF has capacity to make decisions for herself could not be rebutted and consequently the Tribunal dismissed the applications for the appointments and also for an interim order.

The bases of appeal

1. RD and DC lodged an application for leave to appeal or appeal on 27 July 2012 on the grounds that the Tribunal decision lacked “analytical assessment in mixed fact and errors of law.”

1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. In summary, the RD/DC application is based upon the view that the Tribunal came to a decision for which it had no evidence.  Strong themes within the submissions accompanying the application are DIF’s decision to sell the half share of her property to her grandson; DIF is clinically depressed; and she is subject to elder abuse perpetrated…