SMD (No 2) - [2015] QCAT 190

CITATION:

SMD (No 2) [2015] QCAT 190

PARTIES:

SMD

APPLICATION NUMBER:

GAA7497-12 / GAA3469-13, GAA7111-13

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

19 May 2014

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

28 May 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Public Trustee of Queensland must pay HB the amount of $52,144.21 within 14 days in respect of his remuneration as the administrator for SMD for the period 1 October 2011 to 9 November 2012.

2. The entry by HB into a client agreement with AB Chartered Accountants on 1 July 2010 a conflict transaction which is not authorised by the Tribunal.

3. The Tribunal orders that HB is not entitled to reimbursement from the funds of SMD for any expenses incurred by him under the client agreement with AB Chartered Accountants for the period form 1 October 2011 to 9 November 2012.

4. Each party is to bear their own costs and HB’s costs in the application are his personal costs.

CATCHWORDS:

GUARDIANSHIP – where accountant appointed administrator for adult by Tribunal and as administrator of a family company by the Supreme Court of Queensland – no order for remuneration made at time of original appointment – administrator engages his firm to provide services - he and his firm both charge company for work performed as administrator for adult – dispute with adult’s children over the charging of fees – application for retrospective approval of remuneration of administrator – application for retrospective approval of conflict transaction in entering client agreement with the administrator’s firm – application for direction that administrator pay fees to firm

Guardianship and Administration Act 2000 (Qld) s 11, s 12, s 33, s 35, s 37, s 47, s 48, s 60, s 127, s 138, s 152, Schedule 1, Schedule 2

Ability On Financial Management Pty Ltd & Anor v JB by his tutor AB [2014] NSWSC 245
Gray v Hart [2012] NSWSC 1435
NMB [2012] QCAT 300
Perpetual Trustees v Thompson [2012] 2 Qd R 266
Re Heller [1998] QSC 128
SMD [2013] QCAT 350

APPEARANCES:

SD, son
HB
MC
GE

REPRESENTATIVES:

HB was represented by Mr Freeburn and Mr Dickson of counsel instructed by CRH Lawyers
SD was represented by Mr Irvine of HWL Ebsworth
The Public Trustee of Queensland was represented by Mr Liddy of counsel instructed by the Official Solicitor

REASONS FOR DECISION

History of HB’s appointment as administrator

HB, an accountant was appointed as administrator for SMD by the Tribunal on 27 May 2010. At the time of his appointment, SMD was embroiled in litigation before the Supreme Court of Queensland involving her four children, SD, WJ, SA, SF and the family company SMD & Co Pty Ltd. The Supreme Court referred the question of SMD’s capacity to the Tribunal for determination. SMD’s children then entered a settlement agreement on 22 May 2010, which nominated HB as administrator of the company and as SMD’s administrator if the Tribunal was satisfied that she…

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 SMD (No 2)

Details

AGLC: SMD (No 2) [2015] QCAT 190
Case: [2015] QCAT 190
Decision Date: 28 May 2015

CaseChat Overview and Summary

The case of SMD (No 2) involves a dispute over the remuneration and services provided by an accountant, HB, who was appointed as the administrator for SMD, an adult, and also as the administrator of a family company by the Supreme Court of Queensland. The central issue was whether HB was entitled to retrospective approval of his remuneration and whether the conflict of interest transaction involving his firm, AB Chartered Accountants, was permissible. The dispute arose from HB’s decision to engage his firm to provide services to the company and subsequently charge the company for these services. SMD’s children contested the charging of fees and the conflict of interest.

The legal issues before the court were whether HB's retrospective application for approval of his remuneration and the conflict transaction with his firm should be approved and whether HB should be reimbursed for expenses incurred under the client agreement with AB Chartered Accountants. The court had to assess if the conflict transaction was authorised by the Tribunal and whether HB’s actions breached the fiduciary duties owed to SMD and the company.

The court found that HB's engagement of his firm to provide services and charging the company for these services constituted a conflict of interest. The court ruled that the conflict transaction was not authorised by the Tribunal and ordered that HB was not entitled to reimbursement for any expenses incurred under the client agreement. The court also determined that HB was entitled to retrospective approval of his remuneration but required the Public Trustee of Queensland to pay HB directly. Each party was ordered to bear their own costs, with HB’s costs in the application considered personal costs.

The final orders of the court mandated the Public Trustee of Queensland to pay HB $52,144.21 within 14 days for his remuneration as administrator for SMD from 1 October 2011 to 9 November 2012. The court declared that HB’s entry into the client agreement with AB Chartered Accountants constituted a conflict transaction not authorised by the Tribunal. Furthermore, the court ordered that HB was not entitled to reimbursement from the funds of SMD for any expenses incurred under the client agreement with AB Chartered Accountants for the specified period.

Orders

Orders of the court

1. The Public Trustee of Queensland must pay HB the amount of $52,144.21 within 14 days in respect of his remuneration as the administrator for SMD for the period 1 October 2011 to 9 November 2012.

2. The entry by HB into a client agreement with AB Chartered Accountants on 1 July 2010 a conflict transaction which is not authorised by the Tribunal.

4. Each party is to bear their own costs and HB’s costs in the application are his personal costs.

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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