WJ

Case [2021] QCAT 450 8 December 2021

Type to search within this case.

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

WJ [2021] QCAT 450

PARTIES:

In an application about matters concerning WJ

APPLICATION NO/S: GAA7070-21

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

8 December 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Joachim

Member Allen

ORDERS:

That WA pay WJ costs fixed in the amount of $179,434.35 within 90 days.

CATCHWORDS:

COSTS – where Tribunal found adult subject of application had capacity for decision making for personal and financial matters – where he had executed a valid Enduring Power of Attorney – where he had a legal team of a solicitor and 2 barristers – where very lengthy hearing ensued – where adult seeks his costs from applicant daughter – whether exceptional case exists – whether Tribunal should fix costs or have costs assessed

Guardianship and Administration Act 2000 (Qld) s 127

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100-109

BAR [2018] QCAT 278
BB v State of QUEENSLAND & Ors 2 [2021] QCAT 148
BXE [2015] QCAT 253
Cooper v Mbuzi [2012] QSC 105
DEY v Victorian Railways commissioners [1948-1949] 78 CLR91
FG [2011] QCAT 178
HB [2011] QCAT 110
JORGENSEN v JORGENSEN & ORS [2016] QSC 193
LER [2017] QCAT 266
THV [2017] QCAT 116

WH [2014] QCAT 533

WJ [2021] QCAT 30

APPEARANCES & REPRESENTATION:

Adult:

WJ represented by RJ WHITEFORD and KJ KLUSS of Counsel, instructed by Ellison Moschella & Co

Other party

WA represented by M Liddy of Counsel, instructed by Gibbs WRIGHT LITIGATION LAWYERS

REASONS FOR DECISION

WJ was the subject of a hearing in the Tribunal’s guardianship jurisdiction following an application from his daughter, WA.
WA considered her father lacked capacity for decision making as a result of:
(a)His alleged hoarding behaviour
(b)His changing his Enduring Powers of Attorney
(c)His alleged lack of understanding of Trusts set up to benefit particular individuals as part of his estate planning to the detriment of WA
(d)His changing of mind regarding how WA was to be treated financially and involved in his affairs
(e)His alleged tiredness and stress caused by his hospitalisation for prostate cancer and subsequent physical disability (paraplegia)
(f)His being allegedly subject to undue influence from his solicitor and his siblings
These factors were on a background of a long, inconsistent and irregular father/daughter relationship which the Tribunal considered fragile, WA taking an overly intrusive interest in WJ’s financial affairs, WA withholding documents from her father, his making a generous gift to WA, and WA engaging in discussions with WJ in a way the Tribunal considered bordered on harassment.
It is highly relevant to this matter that WJ had assets potentially worth several million dollars. Following his hospitalisation in late 2018 and the establishment of the Trusts he created in 2019, he essentially divested himself of most of his assets. The Tribunal had some initial concerns about WJ’s lack of understanding of the Capital Gains Tax implications of these divestments and questioned WJ extensively about these matters and the…

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 WJ

Details

AGLC: WJ [2021] QCAT 450
Case: [2021] QCAT 450
Decision Date

CaseChat Overview and Summary

This case involved a daughter, WA, who applied to the Queensland Civil and Administrative Tribunal (QCAT) to be appointed as the guardian and administrator of her father, WJ. WJ opposed the application, and the Tribunal dismissed the application. WJ then applied for costs from WA, seeking that his costs be assessed against WA. The Tribunal considered whether the case was exceptional enough to warrant a costs order against WA and, if so, whether the costs should be fixed by the Tribunal or assessed. The Tribunal found that exceptional circumstances existed, and the costs should be fixed by the Tribunal.

The Tribunal considered that the case was exceptional because WA had prosecuted her case in a manner that was wasteful, prolix, and disorganized. She had presented volumes of irrelevant material, sought to examine numerous witnesses, and relied on her own opinions regarding WJ's capacity. She also failed to produce any independent evidence to support her claims of WJ's incapacity, despite having access to considerable evidence to the contrary. The Tribunal found that WA's conduct contributed significantly to the length of the hearing and that she did not have an arguable case.

The Tribunal fixed WJ's costs in the amount of $179,434.35, which represented a reduction from the total costs claimed by WJ. The Tribunal reduced the costs to account for the excessive legal fees charged by WJ's legal team, which included a solicitor and two barristers. The Tribunal also excluded certain costs, such as those related to the NDIS and will review, as they were not relevant to the matter. The Tribunal ordered WA to pay WJ's costs within 90 days.

In summary, the Tribunal found that exceptional circumstances existed in this case, warranting a costs order against WA. The Tribunal fixed WJ's costs at $179,434.35, taking into account the excessive legal fees charged by WJ's legal team and excluding certain irrelevant costs. The Tribunal emphasized that the persistent pursuit of outcomes against a weight of contrary evidence has consequences.

Orders