SG v AG

Case [2008] WASC 123

SG -v- AG [2008] WASC 123



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2008] WASC 123
Case No:GDA:9/20074 APRIL & 1 MAY 2008
Coram:TEMPLEMAN J9/07/08
52Judgment Part:1 of 1
Result: Appeal dismissed
B
PDF Version
Parties:SG
CG
AG

Catchwords:
Guardianship
Appeal by donee against revocation of power of attorney and appointment of administrator
Donor's aneurism and declining mental capacity
Extent of medical evidence of donor's capacity
Whether long­term relationship between donor and donee a relevant consideration
Complexity of estate
Reduction of donor's estate and enlargement of donee's estate
Tax 'minimising' purposes
Donee's conflict between interest and duty
Hearing submissions and evidence when findings inevitable
Necessity for investigation in donor's interests
Accidental slip in Tribunal orders
Whether inconsistency between Tribunal's oral and written reasons

Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 29, s 30(1)(a), s 42, s 64, s 108(1a)
State Administrative Tribunal Act 2004 (WA), s 78, s 83(1)

Case References:
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699
Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139
Edna May Collins by her next friend, Glenys Lesley Laraine Poletti v May [2000] WASC 29
G v K [2007] WASC 319
Gibbons v Wright (1954) 91 CLR 423
O'Brien v Komesaroff (1982) 41 ALR 255
PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643
SG [2007] WASAT 269

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : SG -v- AG [2008] WASC 123 CORAM : TEMPLEMAN J HEARD : 4 APRIL & 1 MAY 2008 DELIVERED : 9 JULY 2008 FILE NO/S : GDA 9 of 2007 BETWEEN : SG
    First Appellant

    CG
    Second Appellant

    AND

    AG
    Respondent


ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : MS F CHILD (MEMBER)

    MR J MANSVELD (MEMBER)
    DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

Citation : SG [2007] WASAT 269

File No : GAA 61 of 2007



(Page 2)



Catchwords:

Guardianship - Appeal by donee against revocation of power of attorney and appointment of administrator - Donor's aneurism and declining mental capacity - Extent of medical evidence of donor's capacity - Whether long­term relationship between donor and donee a relevant consideration - Complexity of estate - Reduction of donor's estate and enlargement of donee's estate - Tax 'minimising' purposes - Donee's conflict between interest and duty - Hearing submissions and evidence when findings inevitable - Necessity for investigation in donor's interests - Accidental slip in Tribunal orders - Whether inconsistency between Tribunal's oral and written reasons

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 29, s 30(1)(a), s 42, s 64, s 108(1a)


State Administrative Tribunal Act 2004 (WA), s 78, s 83(1)

Result:

Appeal dismissed

Category: B


Representation:

Counsel:


    First Appellant : Mr L A Tsaknis
    Second Appellant : Mr L A Tsaknis
    Respondent : Mr H O Moser

Solicitors:

    First Appellant : Cocks…

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SG v AG [2008] WASC 123
Case
[2008] WASC 123
Decision Date

CaseChat Overview and Summary

In this matter, SG, the donee of a power of attorney, appealed against the decision of the Federal Circuit Court to revoke the power of attorney and appoint an administrator to the estate of the donor, who suffered from an aneurism and a declining mental capacity. The court was required to decide several legal issues, including the extent of medical evidence of the donor's capacity, the relevance of the long-term relationship between the donor and donee, and whether the complexity of the estate and tax 'minimising' purposes were relevant considerations. The court also had to consider whether the donee's conflict between interest and duty and the necessity for investigation in the donor's interests were relevant to the decision.

The court found that the donee's relationship with the donor did not constitute a relevant consideration in determining the donor's capacity. The court also found that the complexity of the estate and tax'minimising' purposes were not relevant considerations in determining whether the power of attorney should be revoked. The court found that the donee's conflict between interest and duty and the necessity for investigation in the donor's interests were relevant considerations, but the donee had failed to provide sufficient evidence to support their case. The court also found that there was no inconsistency between the Tribunal's oral and written reasons.

The court dismissed the appeal and upheld the decision of the Federal Circuit Court to revoke the power of attorney and appoint an administrator to the estate of the donor. The court found that the evidence supported the conclusion that the donor lacked the mental capacity to make the decisions required of them, and that the donee had failed to discharge the onus of proving that the donor had the necessary capacity. The court found that the decision to revoke the power of attorney and appoint an administrator was in the best interests of the donor and the estate.

Orders

Orders of the court

Appeal dismissed

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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