REN
[2018] QCAT 239
•23 July 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | REN [2018] QCAT 239 |
PARTIES: | In an application about a matter concerning REN |
APPLICATION NO/S: | GAA756-18 |
MATTER TYPE: | Guardianship and administration matters for adults |
DELIVERED ON: | 23 July 2018 |
HEARING DATE: | 20 July 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Clarkson |
ORDERS: | The tribunal directs The Public Trustee of Queensland to sell the 2012 Range Rover motor vehicle, registration number 99SCR, registered in the name of REN as soon as reasonably practicable, with the net proceeds of the sale to be apportioned between REN and RL as may be agreed between the Public Trustee and RL. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – DIRECTIONS – family conflict – ownership of car dispute – funds used to purchase property – contributor not legal owner – whether funds a gift – presumption of resulting trust – presumption of advancement Guardianship and Administration Act 2000 (Qld) |
| This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
Background
REN, (the Adult) is a self-funded retiree, aged 86 years who lives on his own in a home on the Gold Coast, which he owns jointly with his spouse RL.
Apart from his spouse, the Adult has several other family members who reside on or near the Gold Coast, and family in the United Kingdom, including a daughter, RDA.
Over the years, the Adult has appointed various attorneys under a number of enduring powers of attorney.
These enduring documents were overtaken by the tribunal’s appointment of the Public Guardian and The Public Trustee of Queensland (the administrator) as the Adult’s guardian and administrator respectively
For some time there has been a significant level of conflict and mistrust between some of the Adult’s family members, and diverse and strongly held views in relation to some of the Adult’s financial and personal matters.
The Application
On 17 January 2018, the Tribunal received an application from the administrator seeking directions in relation to the disputed ownership of a motor vehicle, purchased in October 2012.
Section 115(1) of the Guardianship and Administration Act 2000 (Qld) provides the jurisdiction for the Tribunal to hear this application:
An application may be made, as provided under the QCAT Act, to the tribunal for a declaration, order, direction, recommendation or advice in relation to an adult about something in, or related to, this Act…
In an effort to resolve the dispute, the tribunal conducted a compulsory conference on 9 February 2018. The conference was not successful.
The tribunal, with the agreement of the parties present, then set down the matter for a determination by the tribunal on the papers. Directions for further submissions were issued to the administrator, RL, and RDA.
The motor vehicle
The administrator’s application, and most recent submissions, outline the circumstances thus:
(a)The vehicle was purchased on 16 October 2012 at a price of $118,000.
(b)Part of the purchase price ($110,000) was met from the funds of RL.
(c)The vehicle was, however, registered in the Adult’s name only.
(d)As a result of the disputed ownership, the vehicle was removed from RL’s possession by a person claiming authority to do so. It has since been recovered by the administrator, placed in storage, and remains there.
(e)This circumstance is not beneficial to the Adult, or any party, given the ongoing storage fees and the depreciating nature of the asset.
(f)The Adult does not have a licence to drive the vehicle, and is now unable to obtain a licence.
(g)The Adult’s funds have been used to pay the storage fees, and RL has contributed to the ongoing registration and insurance costs in relation to the vehicle.
The matters outlined in Para [10] (a) to (g) are essentially not in dispute, but are subject to certain assertions made by RDA.
The views of the parties
The administrator and RL
The views of these parties have evolved over the few past months.
The submissions now are to the following effect:
(a)Aside from the jointly owned family home and a gift of $25,000 from the Adult to RL, the couple have always kept their financial matters separate.
(b)In the circumstances of the transaction, namely, the acquisition, funding, and title of the vehicle, equity presumes a resulting trust. That is because RL has not been given legal title to the vehicle consistent with her contribution to the purchase price, and the presumption is that the equivalent legal title ought to be held in trust for the contributor.
(c)The presumption may be displaced by evidence about the parties’ intentions at the time of the relevant transaction. For example, the contribution may have been intended to constitute a gift to the Adult.
(d)One of the alternative outcomes sought is a direction to sell the vehicle, with the net proceeds to be distributed between the Adult and RL consistent with their respective contributions, or consistent with an agreement reached between the administrator and RL – without the need for further applications to the tribunal.
RDA
RDA has provided numerous emails to the tribunal in recent months, including three major submissions with numerous attachments.
She is strongly opposed to the proposals of the administrator and RL. RDA believes that the vehicle rightfully belongs to her father, and that it should be sold to help bolster his depleting funds and to pay for his expensive home care.
RDA asserts that the Adult has a long history of transferring significant sums of money from his accounts to the accounts of RL, and that the source of RL’s contribution to the purchase price was in effect money she received from the Adult. RDA asserts that her father has told her on numerous occasions that the vehicle belonged to him and that the total purchase price originated from his funds.
Capacity
At the hearings for guardianship and administration appointments (in 2016 and 2017), the tribunal found that the Adult’s medical conditions include the slow progressive onset of dementia since about 2014. His functioning is dominated by his deficit in memory, with disorientation in time, intact ability to take in information, but rapid decay of new learning, and retrograde amnesia.
While there is no evidence to suggest the Adult lacked capacity at the time of the vehicle acquisition, clearly, he is not able at this time to provide any meaningful input into the issues before the tribunal.
It therefore follows that:
(a)Until early 2014, the Adult is presumed to have decision-making capacity for all financial matters, including all transactions, payments and financial arrangements he made with his spouse, and anyone else. This circumstance counters any suggestion that, at relevant times, he was not capable of comprehending (and therefore controlling if he so wished) the nature and effect of any financial gift, contribution and/or transfer of funds to LR (or to anyone else). In the absence of any recorded loan agreement, or other evidence to suggest the subject transactions were not gifts, the funds transferred into RL’s separate account/s became hers, and must be regarded as gifts to her.
(b)Further, the Adult had capacity to understand the purchase of the vehicle in 2012, and to comprehend that his spouse’s contribution thereto came from her own funds, regardless of how she acquired those funds. There is no objective evidence before the tribunal to suggest that the Adult considered at the time that the funds provided by RL were the repayment of a loan from him or anything similar. There is also no objective evidence to indicate that the contributions from RL were intended to be gifts. Indeed, the ongoing contribution by RL to expenses associated with the vehicle suggest the contrary is the case.
The reports of health professionals in relation to the Adult’s capacity refer to his conflicting or varying views, and no doubt that is a consequence of his dementia. While the tribunal does not doubt that the Adult may have indicated certain views to RDA, clearly, those views must be treated with caution.
Findings of fact
On the evidence the Tribunal finds:
(a)Part of the purchase price of $118,000 was sourced from the funds of RL to the extent of $110,000.
(b)The vehicle was registered in the Adult’s name solely.
(c)The Adult is not now capable of providing input into the relevant issues.
(d)RL has contributed to the ongoing expenses associated with the vehicle.
(e)There is no evidence to suggest a gift by RL to the Adult.
The concept of a resulting trust, and the circumstances in which it may arise was described by Deane J, in Calverley v Green[1]
Where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it.
[1](1984) 155 CLR 142, 242 at 266-267.
In the circumstances, the tribunal concludes:
(a)The circumstances of the motor vehicle purchase give rise to a resulting trust.
(b)There is no objective evidence to suggest that RL’s contribution was a gift to the Adult, or fell within the principles of the presumption of advancement. That is because, while the presumption may be raised for moneys given by the Adult to RL, the authorities indicate that it does not apply to transactions from wife to husband.[2]
(c)It is not in the Adult’s interests to continue to pay storage fees for a deprecating asset, and which continues to be the cause of considerable family anguish.
(d)None of the parties who have made submissions object to the sale of the motor vehicle.
[2]March v March (1945) 62 WN (NSW).
For these reasons it is appropriate to direct the motor vehicle be sold, with the net sale proceeds to be divided between the Adult and RL in accordance with agreement reached between them.
Orders made accordingly.
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