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SW v BAR; BAR v SW

SW v BAR; BAR v SW

Case [2020] QCATA 162 27 February 2020

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

SW v BAR & Ors; BAR v SW & Ors [2020] QCATA 162

PARTIES:
In APL 232-18:

SW

(applicant/appellant)

v

BAR

DY

AUSTRALIAN UNITY TRUSTEE LIMITED

THE PUBLIC TRUSTEE QUEENSLAND

THE PUBLIC GUARDIAN

(respondents)

In APL271-18:

BAR

(applicant/appellant)

v

SW

DY

AUSTRALIAN UNITY TRUSTEE LIMITED

THE PUBLIC TRUSTEE QUEENSLAND

THE PUBLIC GUARDIAN

(respondents)

APPLICATION NO/S:

APL232-18; APL271-18

ORIGINATING APPLICATION NO/S:

GAA12495-17; GAA1191-18; GAA7394-18;
GAA7682-18

MATTER TYPE:

Appeals

DELIVERED ON:

27 February 2020

HEARING DATE:

30 August 2019

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner
Member Fitzpatrick

ORDERS:
In APL 232-18:

1.   Leave to appeal is refused.

In APL 271-18:

1. The appeal is dismissed.

2.   Seaside Legal, the solicitors for BAR, release to Australian Unity Trustee Limited, as administrator, the funds held in its controlled money account in favour of BAR.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GENERALLY – where adult found to have incapacity because second limb of definition only ‘freely and voluntarily’ not satisfied – where adult gave large amount of money and assets to another leaving him unable to adequately support himself – where adult otherwise had capacity – where member found adult overborne on the facts – where appeal tribunal found concept of ‘freely and voluntarily’ to include instance of undue influence but is not confined to that concept – where appeal tribunal found the member had correctly applied the definition of capacity to the facts

Allcard v Skinner (1887) 36 Ch D 145
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
BK v The Public Guardian, Public Trustee of Queensland & JS [2015] QCATA 27
Craig v South Australia (1995) 184 CLR 163
CRD [2011] QCAT 19
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114
Maher v Adult Guardian & Anor [2011] QCA 225
MAR [2010] QCAT 305
MDR [2011] QCAT 2
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323
PJB [2011] QCAT 194
Pickering v McArthur [2005] QCA 294
Re C (TH) and the Protected Estates Act [1999] NSWSC 456
Tonkiss v Graham [2002] NSWSC 891
Wingrove v Wingrove (1885) 11 PD 81

Wollongong Corporation v Cowan [1955] HCA 16

Guardianship and Administration Act 2000 (Qld), s 5,
s 12, s 29, s 103, s 119, s 163, Schedule 4 Section 1

Powers of Attorney Act 1998 (Qld), s 72, s 82, s 87, s 88

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146, s 147

APPEARANCES &

REPRESENTATION:

SW:  Self-represented

BAR:   S Gerber instructed by Seaside Legal

Australian Unity Trustee Limited:      A Rae, with…

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 SW v BAR; BAR v SW

Details

AGLC: SW v Bar; Bar v SW [2020] QCATA 162
Case: [2020] QCATA 162
Decision Date: 27 February 2020

CaseChat Overview and Summary

In the case of SW v BAR; BAR v SW, the primary dispute involved the capacity of an adult, SW, and the subsequent decisions regarding the management of their property. The matter was heard in the Supreme Court of Victoria. The appeal, APL 232-18, sought to overturn a decision regarding SW's capacity, while the second appeal, APL 271-18, contested the handling of SW's assets. The court was tasked with determining whether the original decision regarding SW's capacity and the subsequent management of their assets were correct.

The central legal issues the court needed to address were whether SW had the capacity to manage their property and whether the decision to appoint a guardian and administrator was justified. Specifically, the court had to consider the definition of capacity under the relevant legislation, focusing on whether SW could understand and manage their property and affairs rationally. The court also had to examine the application of this definition to the facts of the case, particularly in relation to the concept of 'freely and voluntarily' and the impact of undue influence.

The court found that SW did not satisfy the second limb of the definition of capacity, which requires the ability to act freely and voluntarily. SW had given away a substantial amount of money and assets, leaving them unable to adequately support themselves, despite otherwise possessing the capacity to manage their affairs. The court upheld the original decision that SW was overborne in the context of making these transactions, thus lacking capacity under the law. The court also affirmed that the appeal tribunal had correctly applied the definition of capacity to the facts. Consequently, the appeals were dismissed, and the original decisions were upheld.

The final orders of the court were to refuse leave to appeal in APL 232-18 and dismiss the appeal in APL 271-18. Additionally, the court ordered Seaside Legal, the solicitors for BAR, to release the funds held in their controlled money account to Australian Unity Trustee Limited, as administrator, in favour of BAR.

Orders

Orders of the court

In APL 232-18:

1. Leave to appeal is refused.

In APL 271-18:

1. The appeal is dismissed.

2. Seaside Legal, the solicitors for BAR, release to Australian Unity Trustee Limited, as administrator, the funds held in its controlled money account in favour of BAR.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

SW v Bar; Bar v SW [2020] QCATA 162

Most Recent Citation

KR [2023] QCAT 212

Cases citing this decision · 1 of 1 shown

KR
[2023] QCAT 212 Para 13

…being induced by a threat or promise or some offered advantage, undue influence, and being deprived of relevant information or advice.” [27][2020] QCATA 162 at [136]. [28][2002] NSWSC 891…

View all 1 citing cases →

Cases cited in this decision · 21 of 21 shown

BK v The Public Guardian, Public Trustee of Queensland and JS
[2015] QCATA 27 Para 1

…r caused by that error.[9] [9] Pickering v McArthur [2005] QCA 294, [3], discussed in BK v The Public Guardian, Public Trustee of Queensland & JS [2015] QCATA 27.…
Minister for Immigration and Citizenship v Li
[2013] HCA 18

…rs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 PJB [2011] QCAT 194 Pickering v McArthur [2005] QCA 294 Re C (TH) and the Prot…
Maher v Adult Guardian
[2011] QCA 225 Para 2

…QCAT 2; PJB [2011] QCAT 194. [21] L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, [34]. [22] Maher v Adult Guardian & Anor [2011] QCA 225…
PJB
[2011] QCAT 194 Para 2

…ember erred by preferring the self-serving evidence of the stepfamily.[22] [20] CRD [2011] QCAT 19; MAR [2010] QCAT 305; MDR [2011] QCAT 2; PJB [2011] QCAT 194. [21] L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, [34]. [22] Maher v Adult Guardian & Anor [2011] QCA 225…
CRD
[2011] QCAT 19 Para 2

…ent of decisions as to whether they are unwise.[21] (i)The Member erred by preferring the self-serving evidence of the stepfamily.[22] [20] CRD [2011] QCAT 19; MAR [2010] QCAT 305; MDR [2011] QCAT 2; PJB [2011] QCAT 194. [21] L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, [34]. [22] Maher v A…
MDR
[2011] QCAT 2 Para 2

…nwise.[21] (i)The Member erred by preferring the self-serving evidence of the stepfamily.[22] [20] CRD [2011] QCAT 19; MAR [2010] QCAT 305; MDR [2011] QCAT 2; PJB [2011] QCAT 194. [21] L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, [34]. [22] Maher v Adult Guardian & Anor [2011] QCA 225…
MAR
[2010] QCAT 305 Para 2

…to whether they are unwise.[21] (i)The Member erred by preferring the self-serving evidence of the stepfamily.[22] [20] CRD [2011] QCAT 19; MAR [2010] QCAT 305; MDR [2011] QCAT 2; PJB [2011] QCAT 194. [21] L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, [34]. [22] Maher v Adult Guardian & Anor…
L v Human Rights and Equal Opportunity Commission
[2006] FCAFC 114 Para 2

…2] [20] CRD [2011] QCAT 19; MAR [2010] QCAT 305; MDR [2011] QCAT 2; PJB [2011] QCAT 194. [21] L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, [34]. [22] Maher v Adult Guardian & Anor [2011] QCA 225…
Pickering v McArthur
[2005] QCA 294 Para 1

…sion is attended by error, and an appeal is necessary to correct a substantial injustice to her caused by that error.[9] [9] Pickering v McArthur [2005] QCA 294, [3], discussed in BK v The Public Guardian, Public Trustee of Queensland & JS [2015] QCATA 27.…
Tonkiss v Graham
[2002] NSWSC 891 Para 5

…induced by a threat or promise or some offered advantage, undue influence, and being deprived of relevant information or advice. [36][2002] NSWSC 891, [78].…
Minister for Immigration and Multicultural Affairs v Yusuf
[2001] HCA 30 Para 3

…29]Ibid, [26] (French CJ). [30] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. [31] Minister for Immigration Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323, 346 [68] (McHugh, Gummow and Hayne JJ). [32](1995) 184 CLR 163. [33]Ibid, 179. [34](1986) 162 CLR 24, [15] (references to the authorities cited omitted).…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 8

…s information which might lead a fair minded person to reasonably apprehend that the Member might not bring an impartial mind to the matter. [11] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.…
Re C (TH) and the Protected Estates Act
[1999] NSWSC 456 Para 6

…ing of incapacity. [18] Wingrove v Wingrove (1885) 11 PD 81. [19] Re C (TH) and the Protected Estates Act [1999] NSWSC 456, [17]: ‘A person is allowed to make whatever decision she likes about her property, good or bad, with happy or disastrous effect, so long as she is capable.’…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6 Para 3

…the decision on its merits. [29]Ibid, [26] (French CJ). [30] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. [31] Minister for Immigration Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323, 346 [68] (McHugh, Gummow and Hayne JJ). [32](1995) 184 CLR 163. [33]Ibid, 17…
Craig v South Australia
[1995] HCA 58

…td v Wednesbury Corporation [1948] 1 KB 223 BK v The Public Guardian, Public Trustee of Queensland & JS [2015] QCATA 27 Craig v South Australia (1995) 184 CLR 163 CRD [2011] QCAT 19 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 Maher v Adult Guardian…
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
[1986] HCA 40

…ortunity Commission [2006] FCAFC 114 Maher v Adult Guardian & Anor [2011] QCA 225 MAR [2010] QCAT 305 MDR [2011] QCAT 2 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration…
Cleland v The Queen
[1982] HCA 67 Para 6

…hat whether an action is in fact not free and voluntary depends on the interaction of the constraining circumstances with the particular actor. [37](1982) 151 CLR 1, 18.…
Wollongong Corporation v Cowan
[1955] HCA 16 Para 7

…s not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. [17][1955] HCA 16, [12].…
[1948] 1 KB 223
[1948] 1 KB 223 Para 3

…inding so unreasonable that no reasonable person could have arrived at it;[27] [27] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230. (b)The observations of the High Court in Minister for Immigration and Citizenship v Li [28] (‘ Li ’s case’) that an unreasonable finding may ha…
Allcard v Skinner
(1887) 36 ChD 145 Para 10

…r, Australian Unity Trustees, nor the Public Trustee’s fees; (g)That the gifting behaviour of BAR is out of the ordinary (taking into account Allcard v Skinner (1887) 36 Ch D 145 at 183 regarding not setting aside gifts out of folly, imprudence or want of foresight) and noting that was not the only factor considered; (h)Ev…
Wingrove v Wingrove
162 ER 1192 Para 6

…mber’s opinion in this regard cannot and should not have formed a basis for a finding of incapacity. [18] Wingrove v Wingrove (1885) 11 PD 81. [19] Re C (TH) and the Protected Estates Act [1999] NSWSC 456, [17]: ‘A person is allowed to make whatever decision she likes about her property, good or bad, with happy or disastrous…

Legislation cited in this decision · 4

Powers of Attorney Act 1998 (Qld)
72, 82, 87, 88 5 mentions (from Para 3)
Guardianship and Administration Act 2000 (Qld)
5 2 mentions (from Para 1)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
146 2 mentions (from Para 1)
Powers of Attorney Act 1988 (Qld)
1 mention (from Para 4)

CITATION:	SW v BAR & Ors; BAR v SW & Ors [2020] QCATA 162
PARTIES:	In APL 232-18: SW
(applicant/appellant)
v
BAR DY AUSTRALIAN UNITY TRUSTEE LIMITED THE PUBLIC TRUSTEE QUEENSLAND THE PUBLIC GUARDIAN
(respondents) In APL271-18: BAR (applicant/appellant) v SW DY AUSTRALIAN UNITY TRUSTEE LIMITED THE PUBLIC TRUSTEE QUEENSLAND THE PUBLIC GUARDIAN (respondents)
APPLICATION NO/S:	APL232-18; APL271-18
ORIGINATING APPLICATION NO/S:	GAA12495-17; GAA1191-18; GAA7394-18; GAA7682-18
MATTER TYPE:	Appeals
DELIVERED ON:	27 February 2020
HEARING DATE:	30 August 2019
HEARD AT:	Brisbane
DECISION OF:	Member Gardiner Member Fitzpatrick
ORDERS:	In APL 232-18: 1. Leave to appeal is refused. In APL 271-18: 1. The appeal is dismissed. 2. Seaside Legal, the solicitors for BAR, release to Australian Unity Trustee Limited, as administrator, the funds held in its controlled money account in favour of BAR.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GENERALLY – where adult found to have incapacity because second limb of definition only ‘freely and voluntarily’ not satisfied – where adult gave large amount of money and assets to another leaving him unable to adequately support himself – where adult otherwise had capacity – where member found adult overborne on the facts – where appeal tribunal found concept of ‘freely and voluntarily’ to include instance of undue influence but is not confined to that concept – where appeal tribunal found the member had correctly applied the definition of capacity to the facts Allcard v Skinner (1887) 36 Ch D 145 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 BK v The Public Guardian, Public Trustee of Queensland & JS [2015] QCATA 27 Craig v South Australia (1995) 184 CLR 163 CRD [2011] QCAT 19 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 Maher v Adult Guardian & Anor [2011] QCA 225 MAR [2010] QCAT 305 MDR [2011] QCAT 2 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 PJB [2011] QCAT 194 Pickering v McArthur [2005] QCA 294 Re C (TH) and the Protected Estates Act [1999] NSWSC 456 Tonkiss v Graham [2002] NSWSC 891 Wingrove v Wingrove (1885) 11 PD 81 Wollongong Corporation v Cowan [1955] HCA 16 Guardianship and Administration Act 2000 (Qld), s 5, s 12, s 29, s 103, s 119, s 163, Schedule 4 Section 1 Powers of Attorney Act 1998 (Qld), s 72, s 82, s 87, s 88 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146, s 147
APPEARANCES & REPRESENTATION: SW: Self-represented BAR: S Gerber instructed by Seaside Legal Australian Unity Trustee Limited: A Rae, with…