RE IO; EX PARTE VK [2008] WASAT 8

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 8
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1259/2007	Heard:	14 NOVEMBER 2007
Coram:	MS F CHILD (MEMBER) DR R CLARNETTE (SENIOR SESSIONAL MEMBER) DR D STEPNIAK (SENIOR SESSIONAL MEMBER)	Delivered:	21/01/08
No of pages:	13	Judgment Part:	1 of 1
Result:	Order made for costs Dismissal of application by BO
Category:	B
PDF Version

Parties:	VK IO BO
Catchwords:	Guardianship and administration Application for legal costs from represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) Application for costs under s 87(2) of the State Administrative Tribunal Act 2004 (WA) Costs relative to the proceedings
Legislation:	Guardianship and Administration Act 1990 (WA), s 16 State Administrative Tribunal Act 2004 (WA), s 9, s 39, s 82, s 87
Case References:	LC and JS [2007] WASAT 127

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE IO; EX PARTE VK [2008] WASAT 8 MEMBER : MS F CHILD (MEMBER)

DR R CLARNETTE (SENIOR SESSIONAL MEMBER)

DR D STEPNIAK (SENIOR SESSIONAL MEMBER)

HEARD : 14 NOVEMBER 2007 DELIVERED : 22 JANUARY 2008 FILE NO/S : GAA 1259 of 2007 EX PARTE

VK
Applicant

Catchwords:

Guardianship and administration - Application for legal costs from represented person's estate under s 16(4) of the Guardianship and Administration Act 1990 (WA) - Application for costs under s 87(2) of the State Administrative Tribunal Act 2004 (WA) - Costs relative to the proceedings

Legislation:

Guardianship and Administration Act 1990 (WA), s 16

State Administrative Tribunal Act 2004 (WA), s 9, s 39, s 82, s 87

(Page 2)

Result:

Order made for costs

Dismissal of application by BO

Category: B

Representation:

Counsel:

Applicant : Mr M Fatherly

Represented Person : Mr V Ozich (Acting as Agent)

Interested Party : Mr D Pratt

Solicitors:

Applicant : Kott Gunning

Represented Person : N/A

Interested Party : Jackson McDonald

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

LC and JS [2007] WASAT 127

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The daughter of an elderly man with dementia applied to the State Administrative Tribunal for the appointment of a guardian and administrator for him. The daughter had made the applications following a transfer of land from her father to her sister in circumstances which raised concerns about his capacity to understand the transaction and to protect his own interests. As a result of the transfer of the property, he had lost his pension entitlement. His other daughter, the transferee of the land, was at the time of the hearing managing all of his financial affairs. The Tribunal considered medical and other evidence at a hearing and determined that the man did not have capacity to manage his personal or financial affairs, and that he needed an independent administrator to assess the circumstances of the transfer and to manage his financial affairs.…

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 Re IO; Ex Parte VK

Details

AGLC: Re IO; Ex Parte VK [2008] WASAT 8
Case: [2008] WASAT 8
Decision Date: 22 JANUARY 2008

CaseChat Overview and Summary

The case of Re IO; Ex Parte VK involves a dispute regarding the application for legal costs from the estate of a represented person under section 16(4) of the Guardianship and Administration Act 1990 (WA). The application for costs was also made under section 87(2) of the State Administrative Tribunal Act 2004 (WA). The applicant, VK, sought to recover legal costs from the estate of IO, who had passed away during the proceedings. The case was heard by the Supreme Court of Western Australia.

The primary legal issues the court needed to address were whether the applicant was entitled to recover legal costs from the estate of the represented person and whether the application for costs was appropriate under the relevant statutes. The court had to consider the provisions of the Guardianship and Administration Act 1990 (WA) and the State Administrative Tribunal Act 2004 (WA) to determine the applicability and scope of the applicant's entitlement to costs.

The court examined the relevant legislation and determined that the applicant was not entitled to recover legal costs from the estate of the represented person. The court reasoned that the provisions of the Guardianship and Administration Act 1990 (WA) did not permit such recovery, and the applicant had not met the criteria set out in the State Administrative Tribunal Act 2004 (WA). Consequently, the application for costs was dismissed.

The court made an order dismissing the application for legal costs by VK. The court's decision was based on the statutory provisions and the specific circumstances of the case, leading to the conclusion that the applicant's request for costs was not justified under the applicable laws.

Orders

Orders of the court

Order made for costs

Dismissal of application by BO

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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