UCC (Costs) - [2010] TASGAB 2

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

UCC – Application for costs

Neutral Citation: UCC (Costs) [2010] TASGAB2

REASONS FOR DECISION

Anita Smith (President)
Colin McKenzie (Deputy President)
Gerard Dibley (Member)

Review of Enduring Power of Attorney – consideration in an award of costs – complex application - costs of the proceedings ought to be borne by the estate in these circumstances
Powers of Attorney Act 2000 s 32(1)(a)
Guardianship and Administration Act 1995 s 80
Latoudis v Casey (1990) 170 CLR 534 and Hardman v Ward [2004] TASSC 74, Oshlack v Richmond River Council (1998) 193 CLR 72, Duke Eastern Gas Pipeline Pty Ltd (2001) ATPR 41-827

On 1 December 2009, the Board received an application from LBC (the applicant) to review her father’s enduring power of attorney registered number PA 14229 in which he appointed his partner, NC, and his son, SC, as his attorneys with enduring powers.
That application was heard and dismissed on 19 February 2010 on the grounds that:
“The Board was not satisfied that the concerns raised in the application had been sufficiently supported by cogent evidence as to warrant the making of any order or direction”.
Mr Chambers, solicitor for the attorney, NC, made an application for costs pursuant to section 80 of the Guardianship and Administration Act 1995 against the applicant. Such application was reserved.
Section 80 of the Guardianship and Administration Act 1995 provides:
“Where the Board is of opinion in a particular case that there are circumstances which justify it in doing so, the Board may make such orders as to costs and expenses as the Board thinks just.”
As in previous costs applications before this Board, the Board accepts that the starting position for interpretation of section 80 is that ‘costs follow the event[1]’ and that costs should be compensatory not punitive. We also note that, given the language of the statute, there are no absolute rules that govern how the Board exercises this discretion[2].
[1] Latoudis v Casey (1990) 170 CLR 534 and Hardman v Ward [2004] TASSC 74
[2] Oshlack v Richmond River Council (1998) 193 CLR 72
The Board considers that a number of factors are relevant to the exercise of a discretion to award costs in this case. Some of these factors relate to the Board’s own processes.
The Board’s process in hearing the application:
The Board received the application on 1 December 2009 and acknowledged its receipt to the applicant on the 8^th December 2009. On the 9^th December 2009, the Acting Registrar sent copies of the application and Health Care Professional Report to the attorneys with a request for extensive information about the operation of the powers, under threat of a summons for non-compliance, requesting that information be provided on or before 30 January 2010. The request included the words:
“You are strongly advised to seek independent legal advice to assist in the preparation of your response.”
Attorney, SC, replied with a brief but informative response on 17 January 2010.…

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.

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Details

AGLC: UCC (Costs) [2010] TASGAB 2
Case: [2010] TASGAB 2
Decision Date: 3 March 2010

CaseChat Overview and Summary

The Board was presented with a complex application from LBC, the applicant, seeking to review her father's enduring power of attorney registered as number PA 14229, where her father had appointed his partner, NC, and his son, SC, as his attorneys with enduring powers. The application was dismissed on 19 February 2010, as the Board found that the concerns raised in the application were not sufficiently supported by cogent evidence to warrant any orders or directions. Following this, Mr Chambers, the solicitor for the attorney NC, applied for costs against the applicant under section 80 of the Guardianship and Administration Act 1995. The Board was required to decide whether costs should be awarded and, if so, which party should bear them.

The court considered several factors in exercising its discretion to award costs. Firstly, the Board acknowledged that the starting point for interpreting section 80 is that costs should follow the event and should be compensatory, not punitive. The Board also recognised that there are no absolute rules governing the exercise of this discretion. The Board took into account the processes it had followed in hearing the application, including encouraging the attorneys to seek legal advice and informing the parties of the possibility of a costs award. The Board also considered the nature of the donor-attorney relationship, noting that the attorney had accepted onerous trustee duties for which she was unlikely to be remunerated. The court further examined the substance of the application and hearing, finding that the application was more of a "fishing expedition" than one supported by cogent evidence.

The Board decided that the costs of the proceedings should be borne by the estate, rather than the attorney or the applicant. The court held that the applicant should not be penalised for costs due to her genuine concern for her father and the specialised nature of the application. The Board also noted that discouraging participation in the legal process due to fear of potential costs awards could undermine public confidence in the system. The court approved the attorney's use of the donor's separate assets to meet the legal costs and, if necessary, the liquidation of such assets for this purpose.

The Board ordered that the costs of the proceedings be borne by the estate of the donor. This decision ensures that the attorney is not personally liable for the costs, while also acknowledging the impact it may have on her personal source of income. The court's decision to allocate costs to the estate reflects a balance between the need to protect vulnerable individuals from financial abuse and the importance of not discouraging participation in the legal process.

Orders